(dissenting): I think the legislature intended by the Metropolitan Police Act, passed in 1864, as to the correct construction of the thirty-fourth- section of which, a question is presented on this appeal, to exempt all persons holding office ^under that act from arrest on civil process absolutely, and to service of subpoenas from civil courts while actually on duty, the compliance with which would require such immediate attendance as would oblige the person served to leave his post or place of duty. The absolute predicates of the section named are military duty, jury duty, and arrest; the limited or conditional predicate, “ service of subpoenas whilst actually on duty.” The particle, “ nor,” marks the second or subsequent branch of the proposition (which is its office) contained in the section, and that subsequent proposition is the limited exemption as contradistinguished from the previous positive exemption already named. “Nor,” is not only a negative particle, the office of which has been already stated; but it is correlative to “ neither ” and “ not,” and “ neither ” is sometimes included in it. The last predicate of the section may, therefore, be read, “ neither to service of subpoenas from civil courts whilst actually on duty.” These results follow, in my judgment, from the grammatical construction of the language employed. The same conclusions follow from other considerations. The legislature amended the section after a decision (Hart v. Kennedy, 14 Abbott, 433), in which it was held that a member of the police force was liable to arrest while not actually on duty ; and the amendment consisted in removing the particle “ nor ” from its place after the word “ duty,” and putting it after the word “ process.” Its former position divided the predicates, and made the liability to arrest, and to service of subpoenas, the second or subsequent branch of the proposition, and placed the .exemption to arrest upon the contingency of being actually on duty. If, however, the change has accomplished nothing in terms, it *71has at least expressed an intention, and that intention was to relieve members of the police force from liability to arrest on civil process. In my opinion, therefore, considering the question as one of legislative intent, founded upon legislative action in connection with a judicial interpretation, the order made at special term was erroneous.
I am aware that, in the case of Burton v. Burton (1 Keyes, 359), the Court of Appeals have made some changes in the rules by which statutes are to be interpreted; and that the history of legislation as to a particular statute has been eschewed as a means of ascertaining what was intended by the legislative will; but I do not think that this case falls within the prohibited line of reasoning.
I deem it also proper, as I differ from my brethren, to state some views upon the propriety of absolving members of the police force from arrest, when not actually on duty. It cannot well be denied that officers of the' police force have relaxations from duty, the duration of which must depend upon circumstances, and that such repose from actual duty may often be preliminary to important public service, which could not be accomplished, if the officer by whom the privilege is employed should be arrested and taken to the proper officer to be bailed or discharged, or both, or kept in confinement for want of bail. It happens frequently that the public service requires all the effective force of the department, and that relief from duty is merely temporary, either to enable the officer to get sustenance, or rest, indispensably necessary to make his aid valuable or serviceable. That an emergency might arise in which the absence of the officer, founded upon his arrest or detention on civil process, would be prejudicial to the public good, is a sufficient reason for legislation by which that event should be rendered impossible. It could not well result from the service of a subpoena, inasmuch as the officer, though called away, is not in duress, and may be brought back to duty by a summons thereto, leaving the court or officer before whom he was summoned, to take such notice of his failure to appear when called, as that court or officer might deem proper. I have no doubt that the probable injurious effect upon the efficiency <bf the police corps by an arrest on civil process, founded upon some actual *72occurrence of that kind, in which its bad' consequences were-demonstrated, led to the passage of the section under consideration, and its amendment. Public policy, in my judgment, renders the exemptions wise which the legislature have sought to establish, and have, in my opinion, declared by the section of the act which has been mentioned.
I think the order made at special term is erroneous, and. should be reversed.
Order affirmed.