
    Supreme Court—General Term—First Department.
    
      January, 1890.
    PEOPLE ex rel. FELLOWS v. HOGAN.
    Police Magistrates.—Jurisdiction.—Laws 1888, chap. 181.
    Under Laws 1888, chap. 181,—which is an act to protect the owners of bottles, boxes, syphons and kegs used in the sale of soda-water and other beverages specified in the act, a violation of whose provisions is therein declared to be a misdemeanor,—a magistrate to whom a complaint is made thereunder has the discretion to refuse to bring the person complained of before him for conviction in the summary manner specified in section 4 of the act, and may proceed in the manner directed by the Code of Criminal Procedure.
    
      It seems, therefore, that after the person has been brought and examined before Mm, the magistrate may (if the law is constitutional, as to which, query) impose the punishment in the summary manner specified in the act, or, under the provisions of the Code of Criminal Procedure, send the case for trial before the Special Sessions, if the defendant so elect.
    Appeal by relator, John E. Fellows, district attorney of Hew York County, from an order of the Special Term, denying an application for mandamus to compel Edward Hogan, a police magistrate of Hew York City, to try a certain person for violating the provisions of chapter 181 of the Laws of 1888, entitled : “ An act to protect the ojwners of bottles, boxes, syphons and kegs, used in the sale of soda-water, mineral or aerated waters, porter, ale cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer or other beverages.”
    
      William T. Jerome, deputy assistant district-attorney for the relator, appellant.
    
      De Laneey Nieoll, for respondent.
   Yah Brunt, P. J.

By section 1, chap. 181, Laws 1888, any persons engaged in manufacturing, bottling, or selling soda-water, etc., in bottles, with his name or other marks or devices branded or stamped upon such bottles, may file in the office of the clerk of the county in which their principal place of business is situated, and of the secretary of state, a. description of the name or names so used by him, and may make certain publication provided for by the act. By section 2 of said act it is declared to be unlawful for any person to fill with soda-water, etc., any bottle with any name, mark, or device thereon of which a description shall have been filed or published as provided by section 1; and that any person offending against the provision of the section shall be deemed guilty of a misdemeanor, and punished as prescribed in the section: By section 4 it is provided that whenever any person mentioned in section 1 shall make oath before any magistrate that he has reason to believe, that any of his boxes, etc., a description of the names, marks, and devices whereon has been published as aforesaid, are being unlawfully used or filled or had by any person, the said magistrate must thereupon issue a search-warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession the same shall be found, and inquire into the circumstances of such possession; and, if such magistrate finds that such person has been guilty of a violation of section 2, he must impose the punishment therein described, and award the property taken on such warrant to the owner thereof. Messrs. Bolen & Byrne were engaged in the manufacture, bottling, and selling of soda-water, having their names and other marks and devices produced upon the bottle, a description of which was duly filed in the office of the clerk of the county, and also of the secretary of state, and duly published. Their agent duly made oath before the respondent that Bolen & Byrne were the owners of certain property described in the affidavit, and that he had reason to believe, and did believe, that said property, namely,—divers siphons so marked and distinguished as aforesaid,—were being unlawfully used by one Phillip H. Adler, who was manufacturing and selling ■stida, mineral, and aerated waters, and that he had been unlawfully using, buying, selling, and trafficking in said siphons so marked, upon certain premises occupied by him, without having obtained the written consent of said Bolen & Byrne. The affiant prayed the magistrate to issue a search-warrant for said property, and that he cause to be brought before him the said Adler, in whose possession the said bottles might be found, and to inquire into the circumstances of such possession, as to whether Adler had been guilty of a violation of the act aforesaid. The respondent thereupon issued his search-warrant, and also directed that, if any part of said property was found, the officer should bring the same, together with said Adler, or the person in whose custody the same should be so found, forthwith before him. The officer executed the warrant, and brought certain property and said Adler before the magistrate. The district attorney appeared for the people, and moved that the charge be tried by the magistrate, and, if the prisoner ■be convicted, that the punishment prescribed be imposed by the magistrate. The respondent denied the motion, declaring the offense to be a misdemeanor, and that the defendant could not be deprived of his constitutional right to a trial by jniy. The magistrate examined the charge, and found that the crime as charged had been committed, and that there was reasonable ground to believe defendant guilty, and thereupon ordered the defendant to find security in the sum of $300. The defendant waived his right to a trial by jury, and elected to be tried by the Court of Special 'Sessions, giving a bond for his appearance at said court. The respondent thereupon sent the case to the Court of Special Sessions for trial. The district attorney thereupon applied for a writ of mandamus against the police justice, ■commanding him to inquire whether said Adler had been guilty of a violation of the act aforesaid, and to impose upon him, if so guilty, the punishment by said statute provided. This motion, coming on to be heard before the special term, was denied; and from the order thereupon entered this appeal is taken.

The questions presented are whether the magistrate had, under section 4 of the act in question, exclusive jurisdiction to try said Adler for the offense alleged to have been committed by him; and, if so, whether such provision is not unconstitutional, as depriving the said Alder of his constitutional right to a trial by jury. These questions are not entirely plain. It will be observed, upon a reading of the section in question, that it is entirely discretionary whether, if he issues a search-warrant, he shall also cause to be brought before him the person in whose possession such property may be found. It is clear that this provision of the section is not at all mandatory, and therefore it seems to be the plain intent of the Legislature that the jurisdiction of the magistrate, in case the misdemeanor had been committed, should not be exclusive. The having in possession and use of bottles under circumstances described in the act is proclaimed to be a misdemeanor, and, if the construction claimed by the appellant was correct, then, if the magistrate exercised his option not to cause the person in whose possession the property might be found to appear before him, there would be no method whatever of punishing the offender for the misdemeanor. It is clear that this was not the intention of the Legislature. Consequently, courts having a general discretion in the matter of trying all complaints for misdemeanors had the jurisdiction to entertain the complaint. By section 64 of the Criminal Code, the Court of Special Sessions is given jurisdiction to try all complaints,for misdemeanors, unless the defendant elects to be tried by the Court of General Sessions, or the Court of Special Sessions sends the case to the Court of General Sessions to be tried. The magistrate refusing to cause the person in whose possession the property is found to be brought before him for examination, it is clear that the Court of Special Sessions would have jurisdiction of the defendant for that which under the act of 1888 is declared to be a misdemeanor, unless the defendant elected to be tried at the Court of Geneeral Sessions. It is true that the subsequent language of section 4 provides that, in case the magistrate causes the person to be brought before him, he shall then inquire into the circumstances of such possession, and, if he finds that such person has been guilty of a violation of the act, he must impose the punishment therein prescribed. But, as already observed, the question being entirely within his discretion as to whether he shall cause the person to be brought before him at all, and it being clear that he has not the exclusive jurisdiction of punishing offenses of this character, the use of the words “shall” and “must” are necessarily to be construed in accordance with the permissive portions of the section ; and the magistrate must be held to have the right to allow the proceeding to take the ordinary course relating to the punishment of misdemeanors, rather than to exercise the extraordinary power attempted to be conferred by the provisions of the act in question. In fact, it does not seem to be claimed upon the part of the appellant but that, if the magistrate has not exclusive jurisdiction, hi's action is entirely protected by the other provisions of law. As has already been seen, the act proclaims certain things to be a misdemeanor. Courts have the general power to try all complaints for misdemeanors, and consequently have a right to try this complaint for a misdemeanor. The magistrate has the right to refuse t,Q bring such person before him for the purpose of being convicted in that summary way for a misdemeanor, and to issue his warrant and bring the person before him, and then to pro-seed in the manner which the Criminal Code points out. It seems, therefore, to be clear that, if the person has been brought and examined before him, the magistrate, if the law in question is constitutional, has the right to impose the punishment, or, under the provisions of the Criminal Code, to send the case for trial before the special sessions, if the defendant so elect.

Under this view of the case, it is not necessary to consider the question as to whether the magistrate would have the constitutional right to fine and imprison the defendant, upon conviction before him under the act in question. There are other provisions of the act which are certainly unconstitutional; but it is needless, in view of the conclusion at which we have arrived, to decide the constitutional question. We think, therefore, that the provisions of the Criminal Code might apply, and were made to apply, by the action of the magistrate under the complaint filed before him. The order should be affirmed.

Beady and Daniels, JJ., concur.  