
    SUPREME COURT-APPELLATE DIVISION-SECOND DEPARTMENT,
    THE PEOPLE v. DAVID FUCHS.
    (166 App. Div. 811.)
    (1.) Jurisdiction—Sabbath Breaking. —Penal Law, §§ 2142, 2143.
    A city magistrate of the city of New York has. no jurisdiction to try a defendant for a violation of sections 2142 and 2143 of the Penal' Law relating to breaking the Sabbath.
    >(2.) Same—Laws 1910, ch. 659.
    Since the enactment of chapter 659 of the Laws of 1910 neither the city magistrate nor a City Magistrate’s Court in the city of New York has jurisdiction to hear and to determine any charge of misdemeanor, except when specifically empowered so to do. Said statute prevails over the earlier statutes to the extent of an implied repeal thereof as to the city of New York.
    Appeal by the defendant, David Fuchs, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 10th day of December, 1914, affirming a conviction and sentence of the defendant by a city magistrate of the city of New York convicting defendant of a violation of sections 2142 and 2143 of the Penal Law.
    
      Rufus L. Terry [Matthew W. Carmel with him on the brief], for the appellant.
    
      Harry G. Anderson, Assistant District Attorney (James C. Cropsey, District Attorney, with him on the brief], for the respondent.
    
      
       See Note, Sunday Laws, 18, 407; 19, 41; 22, 43.
    
   Jenks, P. J.:

The appellant challenges the jurisdiction of a city magistrate of the city of New York to try him for a violation of a statute relating to the Sabbath, in that ,he did work neither necessary nor charitable on Sunday. (Penal Law, art. 192.) The appellant’s single contention is that, as the Court of Special Sessions of said city has in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanor committed in the city of New York, except libel (Laws of 1910, chap. 659, § 31), and as this offense is a misdemeanor (Penal Law, art. 192; Id. § 2142), the city magistrate was without jurisdiction. I neither overlook nor disregard Matter of Erbe (13 Misc. Rep. 404) and Steinert v. Sobey (14 App. Div. 505), which may be considered in view of the fact that the powers of a justice of the peace in the premises seem to be continued to a city magistrate of said city. (See Laws of 1801, chap. 70; Laws of 1804, chap. 27; Laws of 1807, chap. 139; Laws of 1844, chap. 315, art. 1, § 4; Laws of 1848, chap. 153, § 7; Laws of 1873, chap. 538, § 1; Laws of 1895, chap. 601, § 3; Laws of 1897, chap. 378, § 1396; Laws of 1910, chap. 659, | 72, as amd. by Laws of 1913, chap. 372.) But I think that the authority of those decisions cannot dispose of this appeal, in view of the enactment of the said chapter 659 of the Laws of 1910, known as the Inferior Criminal Courts Act o.f the City of New York. This statute is entitled “An act in relation to the inferior courts of criminal jurisdiction in the city of New York, defining their powers and jurisdiction and providing for their officers.” Thus it purports to be and it is a statutory scheme relative to the administration of the criminal law- by these so-called inferior courts of that city. It prescribes and defines the jurisdiction and the procedure of the Court of Special Sessions (Art. 3) and of the City Magistrates’ Courts and of the city magistrates. (Art. 5, especially § 72, as amd. by Laws of 1913, chap. 372.) Section 31 specifieally provides as to the Court of Special Sessions: “ The court shall have in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the city of New York, except charges of libel.” Exclusive ” precludes the idea of co-existence. (Trustees of Exempt Firemen’s Fund v. Roome, 93 N. Y. 328.) And “ exclusive jurisdiction ” as thus used in this statute means that the Court of Special Sessions in the first instance has jurisdiction to hear and to determine all charges of misdemeanor to the exclusion of any other court or officer of the same grade. (State v. Jones, 73 Maine, 280, is directly in point. See, too, People v. McCarthy, 168 N. Y. 549, and Commonwealth v. O’Connell, 8 Gray, 466, 467, 15 N. Y. Crim. 385.) This statute, enacted subsequent to the enactment of the Penal Code, the Code of Criminal Procedure and the Penal Law, is of equal dignity. I think that it limits the purview of the decisions in Matter of Erbe and Steinert v. Sobey (supra), and that neither a city magistrate nor a City Magistrate’s Court in the city of New York has jurisdiction to hear and to determine any charge of misdemeanor except when specifically empowered so to do. In fine, the specific statute prevails over earlier statutes, which, perforce of general provisions, would otherwise apply, and to the extent of an implied repeal thereof so far as the city of New York is concerned. (See Gassenheimer v. List, of Columbia, 6 App. Cas. [D. C.] 108; Brown v. United States, 171 U. S. 631; Lewis’ Suth. Stat. Const. [2d ed.] §§ 249-260; Endl. Interp. Stat. §§ 200, 216, 217, 223; Hoey v. Gilroy, 129 N. Y. 132; Wormser v. Brown, 149 id. 163; Matter of Murray Hill Bank, 153 id. 199, 211; People v. Gold & Stock Tel. Co., 98 id. 67.) It is to be noted that this case neither presents the clash of provisions in the same statute, nor even the conflict of specific provisions in different statutes, but the application of provisions of general statutes which by construction in pari materia (Matter of Erbe, supra, 407) were held to apply to justices of the peace, whose powers are found as now vested in city magistrates by general expressions of continuance articulated in many statutes. And it is to be noted also that in the said statute of 1910 the jurisdiction conferred upon Courts of Special Sessions is not even limited by the words “ except as otherwise provided in this title,” which appeared in the similar-statute (Laws of 1897, chap. 378 § 1406) construed in People v. McCarthy (supra). If the Legislature intended to confer jurisdiction upon the city magistrates or City Magistrates’ Courts, there appears in the premises no good reason why it should not have followed the form used as to other offenses, i. e., affirmative declaration. For, not only did the Legislature specifially except libel in section 31 of the act of 1910, but in the same section it provides, “ The court shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases,” and one of those cases is the violation of the Motor-Vehicle Law, and another the violation of any law for the prevention of cruelty to animals—both minor offenses. (See, too,. § 72, as amd. by Laws of 1913, chap. 372.) And there are a number of minor offenses which, although misdemeanors, are-specifically committed to the jurisdiction of a magistrate or his court. (Id. § 95; Laws of 1910, chap. 699, adding to Penal Law, § 494; Laws of 1914, chap. 464, amdg. Laws of 1910, chap. 569, § 74.)

There may be found good reasons why the provisions of the-general statutes relative to summary proceedings before justices of the peace relative to Sunday laws should not be repealed. Justices of the peace are constitutional officers provided for throughout the State (N. Y. Const, art. 6, § 17. See,, too, Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 103; Village Law [Consol. Laws, chap. 64; Laws of 1909, chap. 64], art. 7), and, therefore, in more sparsely settled parts of the State it seems entirely wise that there should-. be some officer who could deal summarily with such an offense as Sabbath breaking.

Although the offense is essentially rather against police regulations than a crime (Steinert v. Sobey, supra; People ex rel. Burke v. Fox, 205 N. Y. 490; 27 N. Y. Crim. 266), and although it may be said that it is somewhat inconsistent with the general provisions of section 2 of the Penal Law to constitute an act, which is not a crime, a misdemeanor, nevertheless the fact is that the Legislature has seen fit to thus constitute it. (Penal Law, § 2142.) It had the power so to do as to any act committed or omitted in violation of the public law forbidding or commanding it (Commonwealth v. R. I. Sherman Manuf. Co., 189 Mass. 76), and this power can be limited by the Constitution only. (People v. West, 106 N. Y. 295, 6 N. Y. Crim. 382.)

I think that the judgment must be reversed.

Thomas, Stapleton, High and Putnam, JJ., concurred.

Judgment of conviction reversed. Order to be settled before the presiding justice.

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