A controlling question in this case is whether the offense of which the prisoner was convicted was punishable under section 72 of the Penal Code, or under section 58 of the Consolidation Act of 1882.
Section 72 of the Penal Code provides as follows: "A judicial officer, a person who executes any of the functions of a public office not designated in titles VI and VII of the Code, or a person employed by or acting for the State, or for any public officer in the business of the State, who asks, receives or *Page 201 agrees to receive a bribe, or any money, property or value of any kind, or any promise or agreement therefor, upon any agreement or understanding that his vote, opinion, judgment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years or by a fine of not more than five thousand dollars or both. A conviction also forfeits any office held by the offender and forever disqualifies him from holding any office under the State."
This Code was passed July 26, 1881, and section 727 declares "This act shall take effect on the first day of December, 1882. When construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, eighteen hundred and eighty-one, so that any statute enacted after that day is to have the same effect as if it had been enacted after this Code."
The Consolidation Act was passed July 1, 1882, and is entitled "An act to consolidate into one act, and to declare the special and local laws affecting public interests in the city of New York." It contains the charter of the corporation and provides for the local government of the city. It continues the board of aldermen and the various departments of the city government.
Section 58, so far as relates to the question now at issue, is in the following words: "§ 58. Every person who shall promise, offer, or give, or cause or aid or abet in causing to be promised, offered or given, or furnish or agree to furnish, in whole or in part, to any other person, to be promised, offered or given to any member of the common council, or any officer of the corporation, or clerk, after his election or appointment as such officer, member or clerk, or before or after he shall have qualified and taken his seat, or entered upon his duty, any moneys, goods, right in action, or other property, or any thing of value, or any pecuniary advantage, present or prospective, with intent to influence his vote, opinion, judgment or action on any question, matter, cause or proceedings which may be then pending or may by law be at any time brought before *Page 202 him in his official or clerical capacity, shall be deemed guilty of a felony, and shall, upon conviction, be imprisoned in a penitentiary for a term of not exceeding two years, or shall be fined not exceeding $5,000, or both, in the discretion of the court.
"Every officer in this section enumerated who shall accept anysuch gift or promise, or undertaking to make the same, under any agreement or understanding that his vote, opinion, judgment or action shall be influenced thereby, or shall be given in any question, matter, cause or proceeding then or at any time pending, or which may by law be brought before him in his official capacity, shall be deemed guilty of a felony, and shall, upon conviction, be disqualified from holding any public office, trust or appointment under the city of New York, and shall forfeit his office, and shall be punished by imprisonment in the penitentiary not exceeding two years, or by a fine not exceeding $5,000, or both, in the discretion of the court."
The prisoner was indicted for the crime of bribery committed by him in August, 1884, as a member of the common council of the city of New York. It was assumed upon the trial that one count of the indictment was framed under section 72 of the Penal Code, and the other under section 58 of the Consolidation Act. On the trial the court, on motion of the counsel for the prisoner, required the district attorney to elect upon which count of the indictment he would proceed, and thereupon the district attorney stated that he elected to go to trial on the first count, under section 72 of the Penal Code.
The counsel for the prisoner thereupon moved to dismiss the indictment or direct an acquittal, on the ground that no conviction could be had under that count. The motion was denied and an exception taken, and the trial proceeded.
The jury rendered a verdict of guilty. A motion in arrest of judgment was made and denied, and the prisoner was then sentenced to be imprisoned in the State prison at hard labor for the term of nine years and ten months.
It will be observed that the Penal Code is a general statute, operative throughout the State, and that section 72 provides *Page 203 for the punishment of the crime of bribery committed by any person who executes any of the functions of a public office not designated in titles 6 and 7 of the Code (which relate to State officers) and fixes the maximum punishment at imprisonment in the State prison for ten years and $5,000 fine, or both, while section 58 of the Consolidation Act is a local act, applying only to the city of New York, and relates only to a special class of officers, viz., members of the common council of said city, officers of the corporation and clerks, and fixes the maximum punishment for the crime, when committed by such officers, at imprisonment in the penitentiary for two years and $5,000 fine, or both.
The Penal Code, as has been stated, was passed in July, 1881, and the Consolidation Act in July, 1882. The Consolidation Act provides for the punishment of the same crime for which the prisoner was indicted; he was one of the officers specially referred to in that act, and it being the later statute in point of time, would unquestionably control where it differed from the Penal Code, and the present controversy would never have arisen, but for a peculiar provision of the Consolidation Act contained in section 2143 of that act in the following language: "For the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the 1st day of January, 1882. All acts passed after such date, and the Penal Code, are to have the same effect as if they were passed after this act. This act shall take effect on the 1st day of March, 1883."
The effect of this section is the question now before us. It is claimed on the part of the prosecution that the provisions of section 58 of the Consolidation Act are inconsistent with those of section 72 of the Penal Code, and that section 2143 by declaring that the Penal Code, although in fact passed first, is to have the same effect as if passed last, operates to repeal section 58 of the Consolidation Act, and to put in its place section 72 of the Penal Code.
This argument puts the legislature in the remarkable position *Page 204 of carefully framing and enacting the provisions of section 58, and in the same breath and by the same act, declaring that they shall have no effect whatever, but shall be deemed repealed and superseded by an act passed the previous year. Such a self stultification cannot be attributed to the legislature if there is any rational theory upon which its enactments can be reconciled.
In the first place, it should be assumed that in giving to the Penal Code the position of the later statute, the legislature had in mind the familiar and firmly established rule for the construction of statutes, that general legislation on a particular subject must give way to special legislation on the same subject, and that laws special and local in their application are not deemed repealed or modified by general legislation on the same subject, although the terms of the general act are broad enough to include the cases embraced in the special law, unless the intent to change the local law is clearly manifested. (In re Com'rs of Central Park, 50 N.Y. 493;McKenna v. Edmundstone, 91 id. 231; People v. Quigg, 59 id. 88.)
Whatever purpose the legislature may have had in view, therefore, in the enactment of section 2143, it is clear that it could not have intended it to operate as a repeal of section 58, for they well knew that even if the Penal Code had in fact been passed after the Consolidation Act, it would not have affected the provisions of section 58, which are special and local in their application, being applicable only to members of the common council and other municipal officers of the city of New York, and that to repeal those provisions, special reference to them, or some other manifestation of the intent to repeal them, than merely giving to the Penal Code the position of a later statute, was necessary. They were not, therefore, guilty of the absurdity of enacting section 58, and inserting in the same act a provision which would prevent its operation.
But looking a little further into the subject, we find that at the time of the passage of the Penal Code, there was, and for many years had been in force a special local statute for the punishment of bribery of members of the common *Page 205 council and other municipal officers of the city of New York, which differed materially from the general law on the subject of bribery, and that this special local statute was not only unaffected by the Code, but was retained in force by an express provision of the Code itself.
Prior to the adoption of the Penal Code, the general provisions of law on the subject of bribery were contained in the act of 1853 (Chap. 539), entitled "An act to amend the existing laws relative to bribery," and chapter 742 of the Laws of 1869, entitled "An act for the more effectual suppression and punishment of bribery." The act of 1853 amended the Revised Statutes, and enumerated the various officers who might commit the crime, including the governor, State officers, members of the legislature, judiciary, and also members of the common council or corporation of any city in this State, and imposed a maximum punishment on the offending officer of ten years imprisonment and $5,000 fine, besides forfeiture of office and disqualification.
The act of 1869 was more general in its terms. It did not enumerate the officers, but applied to "any person holding office under the laws of this State" who should receive or consent to receive a bribe. It imposed upon the party convicted a maximum punishment of five years imprisonment in the State prison and $5,000 fine. It omitted the punishment of forfeiture of office and disqualification from holding office, which was contained in the Revised Statutes and in the act of 1853, and it contained this remarkable provision: "§ 2. No person who has heretofore paid or offered, or shall hereafter pay or offer a bribe to any person holding office under the laws of this State which has been or shall be accepted in whole or in part, shall be liable to criminal prosecution therefor."
This was the general law of the State on the subject of bribery when the Penal Code was adopted, but at the same time there were in force special and local statutes on that subject, applicable to members of the common council and other municipal officers of the city of New York and some of the other cities of the State, which differed from the general law. *Page 206
The act to amend the charter of the city of New York (Laws of 1853, chap. 217, § 14), contained a provision substantially in the same form as section 58 of the Consolidation Act, making the acceptance of a bribe or of a promise of a bribe by any member of the common council or officer of the corporation, a felony punishable by forfeiture of office and disqualification from holding office under the city, and by imprisonment in the State prison for ten years or a fine of $5,000, or both, thus conforming to the general law of 1853 on the subject of bribery.
The charter of 1857 (Laws of 1857, chap. 446) entitled "An act to amend the charter of the city of New York" (§ 52), re-enacted the foregoing provision of the charter of 1853, but reduced the maximum punishment to two years imprisonment in the penitentiary and $5,000 fine, besides being disqualified from holding any office under the city of New York. This was the first enactment which imposed a punishment for bribery on a member of the common council of the city of New York different from that established by the general law.
This provision was re-enacted in the charter of 1870 (Laws of 1870, chap. 137, § 114) and was again re-enacted in the charter of 1873 (Laws of 1873, chap. 335, § 100) in the same language, and was in force at the time of the passage of the Penal Code.
Thus it will be seen that for nearly twenty-five years before the passage of the Penal Code, it had been the law, under the charters of the city of New York, that the maximum punishment which could be inflicted upon a member of the common council of that city for accepting a bribe was two years imprisonment in the penitentiary and $5,000 fine, and a disqualification from holding any office or public trust under the city.
The general provision in the Penal Code for the punishment of bribery did not, under the general rule for the construction of statutes, before adverted to, operate to repeal or alter this local provision contained in the charter, even if the Penal Code be treated as the last enactment. It would be assumed, in conformity with that rule, that the general law was not intended to *Page 207 affect the local law, unless the intention that it should affect it plainly appeared. But so far from there being any appearance of any intention to repeal or alter these local charter provisions in respect to the crime of bribery the precise contrary is made manifest by section 725 of the Penal Code, which provides: "§ 725. Nothing in this Code affects any of theprovisions of the following statutes; but such statutes are recognized as continuing in force, notwithstanding the provisions of this Code, except so far as they have been repealed or affected by subsequent laws." Then follows an enumeration of the laws not affected by the Code, which enumeration includes "all acts incorporating municipal corporations, and acts amending acts of incorporation or charters of such corporations."
In view of this plain provision of the Code, the legislature may well have adopted section 2143 of the Consolidation Act without deeming that by so doing they impaired any provision of the charter of the city of New York which was embraced in the Consolidation Act. The Penal Code was before the legislature when the Consolidation Act was passed, the Penal Code having been passed at a previous session; the difference between the punishment prescribed for bribery in that Code, and in section 100 of the charter of 1873, and section 58 of the Consolidation Act was plainly apparent, but at the same time it was provided that nothing in the Code should affect any of the provisions of any charter or act amending the charter of a municipal corporation. It was obvious, in view of this saving clause, that had the Code been in fact passed after the Consolidation Act, it could have had no effect upon the provisions of section 58.
It is argued that it cannot be supposed that the legislature intended to provide for the punishment of the crime of bribery in one class of officers by one measure of punishment, and that for precisely the same offense they should prescribe a different punishment for a different class of officers. It is indeed difficult to assign a reason for making the distinction, and especially for making the punishment for bribery comparatively so light in respect to members of the common council of the city of New York, when the magnitude of the interests controlled *Page 208 by that body is considered. But nevertheless the distinction has been made, and has existed ever since 1857 in the city of New York, and also in several other cities of the State.
By the charter of Long Island City (Laws of 1871, chap. 471, tit. II, § 1) any city officer found guilty of bribery or corruption is punishable by imprisonment in the State prison for a term not less than three nor more than ten years, or a fine of $5,000, or both.
In this case it will be observed the provision is more severe than that of the general law, for it prescribes a minimum punishment of three years imprisonment, as well as the maximum punishment of ten years.
By the act amending the charter of the city of Brooklyn (Laws of 1873, chap. 863, tit. XIX, § 22) any member or officer of the common council, or any city officer receiving a bribe, is declared guilty of a felony and punishable by imprisonment in the State prison for a term of not less than three nor more than five years.
These provisions clearly were left in force by the Penal Code; and, after the passage of that Code, in the charter of the city of Albany adopted in 1883 (Laws of 1883, chap. 298, tit. XVIII, § 6) a provision was inserted that any member of the common council or other officer of the city who should accept a bribe, or a promise of a bribe, should be disqualified from holding office under the city of Albany and be punished by imprisonment in the penitentiary not exceeding two years or by a fine not exceeding $5,000, or both, which provision is almost identical with section 58 of the Consolidation Act. There is no ground upon which it can be pretended that the provisions of that act are affected by the Penal Code, which took effect December 1, 1882. The contention, therefore, that it was the policy of the legislature to provide a uniform punishment throughout the State for the crime of bribery is not sustained by reference to its acts. It rather seems to have been the practice to pass local laws, operative in the several municipalities, providing for the punishment of the municipal officers when guilty of bribery. *Page 209
Several ingenious arguments have been presented by the counsel for the people for the purpose of avoiding the plain language of these statutes. It is urged that subdivision 1 of section 727 of the Penal Code, which declares that nothing in that Code affects any of the provisions of any act incorporating a municipal corporation or amending the charter of such corporation, is qualified by subdivision 4 of section 725, which enumerates, among the statutes not affected by the Code, "4, all acts defining and providing for the punishment of offenses not defined and made punishable by this Code." We fail to perceive how this provision affects subdivision 1. It is an additional exception, and covers all enactments, though not contained in any municipal charter, which provide for the punishment of particular offenses not provided for in the Code.
The usual general repealing clause in section 726, of all acts and parts of acts inconsistent with the provisions of the Code, is also referred to. But that clause in a general law is not sufficient to repeal a special local law, not referred to in terms, and which is capable of co-existing with the general law. (Whipple v. Christian, 80 N.Y. 523, 526; In re theEvergreens, 47 id 216, and other cases; In re Com'rs of CentralPark, 50 id. 493.) A provision affecting only a certain locality or a specified class of persons, is not necessarily inconsistent with a general law, but is an exception to it. The discussion of that question is, however, unnecessary, when we find that the general law expressly ratifies and recognizes the exception.
The entire repealing section (726) reads as follows: "§ 726. All acts and parts of acts which are inconsistent with the provisions of this act are repealed, so far as they impose any punishment for crime, except as herein provided."
The words "so far as they impose any punishment for crime" are commented upon in support of the position that so much of the Consolidation Act as prescribes the punishment for bribery was intended to be embraced in the repeal. It is difficult to see how this can be, when it is remembered that the Consolidation Act had not then been passed. But to meet that point it is sought to apply the language to the charter of *Page 210 1873. This is equally impossible when we recall the provision of section 725, that nothing in the Code affects "any provision" of any charter act of a municipal corporation; and the concluding sentence of section 726 settles the question, by declaring that inconsistent acts imposing punishment for crime are repealed "except as herein provided," thus recognizing that some acts inconsistent with the Code, imposing punishment for crime, are excepted from the repeal, and are retained in force. The charter acts referred to, come within this category.
The further ground is taken that section 100 of the charter of 1873 and section 58 of the Consolidation Act, stand upon the footing of a mere municipal ordinance created by the legislature and making that a crime against the corporation which in some of its features is also a crime against the State, and that, consequently, the general law against bribery is in full force notwithstanding the special law relating to the city of New York.
This argument it is difficult to understand. If under authority conferred by the legislature an ordinance had been passed by the corporation for the punishment of an offense, there would be force in the suggestion that if the same offense were punishable under the general laws of the State, they could be enforced, and would not be superseded by the corporation ordinance. But the provision in question was not a corporation ordinance. It was a law of the State, enacted by the same authority as the Penal Code, and although affecting only particular local officers, had all the force, with respect to crimes committed by them, of a law of the State.
My conclusion is that the judgments of the Supreme Court and of the Court of Oyer and Terminer should be reversed and a new trial ordered.
All concur with ANDREWS, J., except RAPALLO and EARL, JJ., dissenting.
Judgment affirmed. *Page 211