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Wynhammer agt. The People.

The provision that it shall not be kept in any place except a dwelling-house or church, has been cited, with others supposed to evince a destructive purpose towards this property, and which are alleged to be plainly repugnant to the constitutional rights of the citizen. But the defendant has not been prosecuted, nor has his property been proceeded against under these provisions. When he is indicted for keeping liquor in violation of the act, or proceedings are instituted to enforce a forfeiture of his liquor for any such cause, different questions will be presented. With those questions we have nothing to do in this case. When they are legally presented for our consideration, the parties interested in them will be entitled to the deliberate and unbiased judgment of the court upon them. But to secure this, it is not only proper but indispensable that the parties interested, instead of the court, should be first heard.

The legislature have said, that the defendant shall not sell intoxicating liquor in this state. He has chosen to disregard that injunction, and has been convicted of an offence against the law. He disputes the right of the legislature to pass the law, and this question, and the question of construction, we are. called upon to decide-nothing more.

With the questions as to the wisdom, policy and propriety of the law, which were discussed with so much zeal by the defendant's counsel at the bar, we have nothing to do. Those are questions addressed exclusively to the discretion of the legislature.

This is a mere question of power. If the power which the legislature has assumed to exercise exists, and the law is plain, the duty of the judge and the citizen is the same—that of simple obedience. To both alike it speaks the language of command and not of persuasion.

I know of no principle recognized by the constitution, or resulting from any sound theory of government, which requires or authorizes the judiciary to interpose between the legislature and the people, to shield the latter from the consequences of an improvident or capricious use, or even a positive abuse of legislative power. The remedy for such abuses, if they exist,

The People ex rel. Booth agt. Fisher.

is in other hands. It rests with the people, who, in their constitution, have established the only restrictions upon legislative power that can be judicially recognized, or practically enforced, except by those in whom the ultimate power of sovereignty resides.

The judgment of the court of sessions should be affirmed.

SUPREME COURT.

THE PEOPLE, ex rel., Ezra B. Booth, respondent, agt. JOAN

FISHER, appellant.

The fifth section of the act of the 9th of April, 1855, entitled “An Act for the

Prevention of Intemperance, Pauperism and Crime," requires the magistrates therein named to hold courts of special sessions for the trial of offences arising under the provisions of said act, and to proceed to the trial thereof as soon as the complainant can be notified. Neither this power or duty is made to depend upon the defendant's request to be tried, his omission to give bail, or any other condition. The defendant is not, therefore, entitled to be discharged upon tendering sufficient bail for his appearance at the next court having cog.

nizance of the offence. These provisions are not in conflict with § 2 of Art. 1 of the constitution, which declares that “the trial by jury, in all cases in which it has heretofore been used, shall remain inviolate forever.” (See the case of Toynbee, ante page

289, adverse.) A common-law jury trial can only be had in a court of common-law jurisdiction,

both as regards the character of the court and its mode of procedure. It means such a trial as is contemplated by 6 of Art. 1 of the constitution, for persons charged with capital or otherwise infamous offences, which must be upon presentment or indictment of a grand jury, and in a court of record with

common-law jurisdiction. If an act is made criminal, but not felonious or infamous, by a statute passed after the adoption of the constitution, the constitutional privilege does not apply, and the right of trial by jury is not secured in such a case.

Monroe General Term, Dec., 1855.
Before SELDEN, Johnson and WELLES, Justices.
CERTIORARI to the county judge of Monroe county.
On the 9th of August, 1855, the appellant was brought be-

The People ex rel. Booth agt. Fisher.

fore S. D. W. Moore, Esq., police justice of the city of Rochester, upon a warrant issued by said justice, charged with a violation of the act entitled "An Act for the Prevention of Intemperance, Pauperism and Crime," passed April 9th, 1855. On being brought before the justice, he offered to give bail for his appearance at the next criminal court having cognizance of the offence. The justice was satisfied with the responsibility of the bail so offered, but refused to receive it or to take any bail. Thereupon, on the 11th day of August, 1855, the appellant presented his petition to H. Humphrey, Esq., county judge, &c., and obtained the allowance of a writ of habeas corpus, in order to be let to bail and be discharged from custody. On the same day, the officer made a return to said writ, and the same was traversed by the affidavit of the appellant, and issue was joined thereon.

On this issue, evidence was taken to contradict the return. After hearing the case and arguments of counsel, the county judge decided not to let the defendant to bail, and ordered him remanded into the custody of the police constable, to be tried before a court of special sessions.

On the 17th day of August, 1855, the defendant sued out a writ of certiorari, removing the proceedings and adjudication of the county judge into this court, to be reviewed.

Henry HUNTER, for defendant.
J. D. STEBBINS, for The People.

By the court-Welles, Justice. The fifth section of the act entitled “An Act to Prevent Intemperance, Pauperism and Crime,” passed April 9th, 1855, is in the following words :

"5. Every justice of the peace, police justice, county judge, city judge, and, in addition, in the city of New York, the recorder, each justice of the marine court, and the justices of the district courts, and in all cities where there is a recorder's court, the recorder shall have power to issue process, to hear and determine charges, and punish for all offences arising under any of the provisions of this act; and they are each hereby

The People er rel. Booth agt. Fisher.

authorized and required to hold courts of special sessions for the trial of such offences, and under this act to do all other acts and exercise the same authority that may be done or exercised by justices of the peace in criminal cases, and by courts of special sessions, as the same are now constituted; and the term magistrate, as used in this act, shall be deemed to refer to and include each officer named in this section:-such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence under this act, but shall proceed to trial as soon thereafter as the complainant can be notified; and, for good cause shown, he may adjourn from time to time not exceeding twenty days. At the time of joining issue, and not after, either party may demand a trial by jury, in which case the magistrate shall issue a venire, and cause a jury to be summoned and empanneled, as in other criminal cases in courts of special sessions. The complainant may appear upon such trial upon behalf of the people, and prosecute the same with or without counsel. He may also prosecute the same in all the courts to which, as hereinafter provided, appeal may be taken, by attorney; or he may apply to the district attorney, whose duty it shall be, upon such application, to appear and conduct said appeal from the judgment thereon. The same costs and disbursements shall be allowed against the defendant upon such appeal as are now allowed in civil actions, in those courts to which appeal may be taken according to the provisions of this act. In all cases, if the district attorney shall appear and conduct the trial or appeal, or both, the costs, if any, shall go to him for his individual usein other cases to the complainant; and in default of the payment of the whole, or any part thereof, the defendant may be committed to the same extent as provided in the fourth section of this act.”

By this section the several officers therein enumerated are invested with the same powers, in relation to offences under the act of which it constitutes a part, with which justices of the peace are clothed in criminal cases; and are each required to hold courts of special sessions for the trial of offences under

The People ex rel. Booth agt. Fisher.

the same act, with the same powers, in reference to such offences, as courts of special sessions, possessed as they were constituted when the act was passed, in reference to cases within their jurisdiction.

By the Revised Statutes, the powers of courts of special session's are confined to cases where the party charged with an offence requests to be tried before them, or, where he shall not so request, but shall after being so required, omit for twenty-four hours to give bail for his appearance at the next criminal court having jurisdiction, &c. (2 R. S. 711, $$ 2 and 3.)

But the section of the prohibitory act referred to does not, as the Revised Statutes do, restrict the power of the courts of special sessions to cases where the party charged either requests to be tried by such court, or omits to give bail. It certainly does not do so in terms, nor, as I think, by just or fair implication ; but, on the contrary, it seems to contemplate that the justice, or other officer before whom the person charged shall be brought by virtue of the process, shall proceed at once to the trial of the charge.

Power is expressly conferred upon the officers mentioned to issue process, to hear and determine charges, and punish all offences against the provisions of the act; and for that purpose they are each authorized and required to hold courts of special sessions for the trial of such offences; such court is not required to take the examination of any person brought before it upon charge of an offence, but shall proceed to trial as soon thereafter as the complainant can be notified.

The section then proceeds to give directions respecting adjournments, and provides for a jury on the demand of either party, if applied for at the joining of issue. It then concludes with some regulations and provisions respecting appeals from judgments of the courts of special sessions, provided for in the eighth section of the act, and the costs in such appeals. It will be perceived, not only that the magistrate has conferred upon him the power to try the person charged, but that he is imperatively required to hold a court of special sessions, and proceed to the trial as soon as the complainant can be notified.

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