
    COURT OF APPEALS.
    Patrick Mullins agt. The People.
    The aot authorizing the manufacturers of mineral waters, &c., in bottles, with their names or marks thereon, to record and publish such names or marks, and for the protection of the owners thereof, is not unconstitutional.
    
    The only mode in which the statute can be made to effect the object of its enactment is to interpret the word “owner” in the second section, as referring exclusively to the original owner whose name or mark is upon the bottle, and the prohibition to extend only to a use or sale by, or a purchase from, a person other than such original owner.
    
    Upon a common law certiorari, for the removal of summary convictions before magistrates, the power of review is not confined to questions affecting either the jurisdiction of the magistrate or the regularity of the proceedings before him, but extends to all other legal questions; and unless it appears upon the face of the record that there was evidence sufficient to warrant the conviction, it will be quashed. (Disapproving of the limited doctrine so frequently referred to in People agt. Judges of Dutchess Common Pleas, 23 Wend., 360.)
    
      June Term, 1862.
    Appeal from judgment of supreme court rendered, at general term in the first judicial district.
   By the court,

Selden, J.

Jt must be conceded that the statute under which the respondent was convicted before the justice is peculiar in its provisions, and bears palpable evidence upon its face of having been framed without that care and caution which should attend the enactment of a penal law. The respondent insists that the act is unconstitutional. This, however, depends in a great degree upon the construction which is given to it. The first section, which simply authorizes all persons engaged in the manufacture and sale of mineral waters, &c., in bottles, with names or marks thereon, to record and publish such names or marks, is, of course, without objection.

The second section, as amended by the act of 1860, declares it to be unlawful, without the written consent of the owner, “ to fill with mineral waters, or other beverage, any such bottle so marked or stamped, or to sell, dispose of, buy or traffic in any such bottle so marked or stamped by him, her or them, of such owner thereof,” and imposes a penalty of fifty cents for every violation of the enactment. This section is very awkwardly framed, and would, if literally construed, be entirely self-destructive. It could not, of course, have been intended to require the owner of the bottle to procure his own written consent to its use or sale. This would be absurd. The manufacturer, for whose protection the statute was passed, might clearly fill his bottles and sell them with their contents, without any written consent from himself. When he has done this, the purchaser becomes the “ owner ” of the bottle, and is, therefore, according to the terms of the act, the party whose written consent is requisite to any subsequent use or sale. But his written consent could be no more essential to a sale by himself than that of the manufacturer to the original sale, nor would it afford any protection to the manufacturer to require it. This, therefore, cannot be the true construction of the provision.

The only mode in which the statute can be made to effect the object of its enactment, is to interpret the word “ owner ” as referring exclusively to the original owner whose name or mark is upon the bottle, and the prohibition to extend only to a use or sale by, or a purchase from a person other than such original owner. Thus interpreted, the provision is entirely unobjectionable, and would accomplish precisely Avhat the legislature no doubt intended. But to warrant conviction and punishment under this section, the offence must be proved. The record in this casó shows that Mullins Avas convicted by the justice of having violated the provisions of this act, in having “secreted” the bottle marked, and stamped, as described, upon his premises, and in having “ sold, disposed of, bought or trafficked ” in the bottles of the complainant. Noav it is plain that the secreting of bottles cannot subject a party to a conviction under the act. It authorizes the issue of a search warrant for the purpose of finding the bottles, but no other penalty is attached to the act of secreting. This fact is not mentioned or alluded to in. the second section, which alone imposes the penalty. To justify the imposition of a fine or imprisonment, the party charged must be shown to have violated the provisions of this section. Mullins was convicted under those provisions of having “ sold, disposed of, bought or trafficked” in the bottles of Knebel. The only evidence to support this conviction was the fact that one bottle with Knebel’s mark was found at the bottom of a barrel of bottles upon his premises, and that he was a dealer in old bottles. If this could be supposed to prove either, of the acts with which he was charged, it must be that of having unlawfully bought the bottles. It could not prove that he had sold or trafficked in the bottles of Knebel, as it had no tendency to show that he ever had any other in his possession than the one found. But how could the fact of the finding of this bottle upon his premises prove that he had bought of some person other than Knebel himself, which, upon our construction of the act, it was essential to establish ? The presumption provided for in the first clause of the third section of the act does not arise, as that attached only upon proof of the use of the bottles for the sale of mineral waters, and of this there was no evidence. At common law the presumption from the facts proved would clearly be that Mullins came lawfully into possession of the bottles. Hence, although in view of the interpretation which I have given to the statute, there is no objection to its constitutionality, still I see no evidence in the case upon which the conviction can properly rest; and the only doubt which can exist, as to the propriety of its reversal by the supreme court, arises, as I think, upon the question whether the error can be corrected upon a certiorari issued not pursuant to any statute, but under the established practice at common law.

An impression has prevailed to some extent in this state, founded upon several decisions of our late supreme court, that the power of review upon a common law certiorari is confined, to use the language of Judge Bronson, in the case of The People agt. The Judges of Dutchess, (23 Wend., 360,) “ to questions touching the jurisdiction of the subordinate tribunal and the regularity of its proceedings.” “ If,” adds that learned judge, “ they neither exceed their powers nor depart from the forms prescribed to them by law, their decision upon the merits of the controversy before them is final and conclusive.” This has never, I think, been very cordially assented to, and from my examination of the subject, it seems to me clear that, at least in that class of cases where the writ issued to remove a summary conviction had before a magistrate under a penal statute, the doctrine is erroneous. It is true, as has been often said, that such a certiorari removes only the record, and hence it seems to have been inferred that the evidence upon which the conviction was had would not be returned. But it will be found to have been conclusively settled at common law that the magistrate, in these cases, must insert the evidence in the record of the conviction itself, for the express purpose of enabling the superior court, upon a removal of the proceedings by certiorari, to determine upon the face of the conviction whether it was lawful; and although the court would not interfere upon a question as to the mere weight of the evidence, yet a conviction, without any evidence to support it, has always, in the English courts, been reversed or quashed as erroneous.

I will refer to a few cases to show that this has been the practice of those courts. In the case of Rex agt. Theed, (2 Stra., 919,) a conviction by a magistrate under a statute called the “ Candle Act ” was quashed, “ because the evidence was not set out, it being alleged that the offence was fully and duly proved.” The report of this case is very short, and does not show how the question was brought before the court; but it was undoubtedly by certiorari, as is plainly to be inferred from a previous case against the same defendant upon the same statute, (2 Lord Ray., 1375,) in which the conviction was sustained.

In a subsequent case, to wit, Rex agt. Lloyd, (2 Stra., 996,) in which a certiorari was issued to a court of quarter sessions to bring up the proceedings upon a removal of a clerk of the peace from oEce, a distinction was taken between a conviction and a mere prder ; and it was conceded both by the counsel (Mr. Strange) and the court, that in cases of summary conviction, the record must contain the evidence, in order that the superior court may see that the conviction was legal. The chief justice said: “ it is fully settled that in convictions the evidence must be set out; and if this was to be considered as a conviction, it therefore would be bad.”

In Rex agt. Clarke, (8 Term R., 220,) the court of king’s bench expressly held that upon a conviction of a person for killing game without being duly qualified, the magistrate ought to state in the conviction the whole of the evidence for and against the defendant. The object of this requirement, and the extent to which the court will go in reviewing the case upon the merits, is shown by the case of Rex agt. Smith, (8 Term, 584, 587.) The defendant had been summarily convicted under a statute of George III, against selling bread by wholesale before it had been baked for twenty-four hours; and this conviction was removed into the king’s bench, no doubt, by common law certiorari, as that was the ordinary, if not the only mode of removing such conviction. It was there held, that where a power of conviction is given by a statute to a magistrate, he is the sole judge of the weight of the evidence; but that if no evidence appear on the conviction, to support a material part of the case, the conviction will he quashed.

The same principles were recognized in the cases of the King agt. Crisp, (7 East, 289,) and the King agt. Chandler, (14 East, 267,) in which convictions before justices of the peace, in the one case under the malt act, and in the other for an offence against the excise laws, were removed in like manner to the king’s bench. In each of these cases the principal question raised and discussed in the latter court was, whether the' evidence was sufficient to support the charge.

Many other authorities might be cited, but these are sufficient to show that, upon a common law certiorari for the removal of summary convictions before magistrates, the power of review is not confined to questions affecting either the jurisdiction of the magistrate or the regularity of the proceedings before him, but extends to all other legal questions ; and that, unless it appears upon the face of the record that there was evidence sufficient to warrant the conviction, it will be quashed.

It follows from what has been said that the judgment appealed from in this case should be affirmed.

Sutherland. J.,

was for affirmance on the grounds stated by him in the court below; Gould, Davies and Smith, J. J., on Selden’s opinion; Allen for affirmance on defect of evidence; Denio, J., for reversal; Wright, J., absent.  