
    People v. Austin.
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1888.)
    Adultebation—Jubisdiction op Special Sessions—Pbooedube.
    Laws Ñ. Y. 1885, c. 183, relating to offenses concerning diluted milk, and making such offenses misdemeanors, provide that “courts of special sessions shall have jurisdiction of all cases arising under this act, "does not confer exclusive jurisdiction, and the offense not being among those named in Code Grim. Proc. § 56, of which those courts have exclusive jurisdiction, a defendant charged with a violation of the act is entitled to give hail, and to have a trial after indictment as provided in Code Crim. Proc. § 211.
    Appeal from court of sessions, Jefferson county.
    The defendant, Dempster C. Austin, was charged before a court of special sessions, with a violation of Laws N. Y. 1885, c. 183, relating to diluted milk. When arraigned he pleaded not guilty, waived preliminary examination, and offered to give bail for appearance before the next grand jury of the county. His offer was refused, and he demanded a jury, and, on the trial, a verdict of guilty was rendered, and he appeals.
    Argued before Hardin, P. J., and Martin and Follett, JJ.
    
      Thomas F. Kearns, for appellant. F. H. Peek, Dist. Atty., for respondent.
   Hardin, P. J.

Article 6 of the constitution of the state of New York, (section 26,) contains the following provision: “Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.” After the adoption of that section the legislature passed chapter 390 of the laws of 1879, which provided: “Courts of special sessions * * * shall, in addition to the powers now possessed by them, have also exclusive jurisdiction in the first instance to hear and determine the following cases.” Then the statute contains six enumerations of offenses. Shortly thereafter a controversy arose in the courts as to whether the statute was constitutional or not. Its validity has been sustained. Devine v. People, 20 Hun, 98; People v. Dutcher, Id. 241; People v. Rawson, 61 Barb. 619; People v. Justices, 74 N. Y. 406; People v. Dutcher, 83 N. Y. 240. When the Code of Criminal Procedure was passed it was provided in section 56: “Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows.’.’ Then follows an enumeration of 33 different offenses émbraced in thesection. Section 57 of the Code of Criminal Procedure provides a method for obtaining a certificate from a county judge or a justice of the supreme court “that it is reasonable that such charge be prosecuted by indictment;” and section 59 declares: “A court of special sessions, having jurisdiction in the place where any of the crimes specified in section fifty-six is committed, has jurisdiction to try and determine a complaint for such crime, and to impose the punishment prescribed upon conviction, unless the defendant obtains the certificate and gives the bail mentioned in section fifty-seven.”

In chapter 7 of the Code of Criminal Procedure, which relates to the examination of the case and discharging the defendant or holding him to answer, is found section 211, where it is provided that “if the crime with which the defendant is charged be one triable, as hereinbefore provided, by a court of special sessions of the county in which the same was committed, the magistrate, before holding the defendant to answer, must inform him of his right to be tried by a jury after indictment, and must ask him how he will be tried. If the defendant shall require to be tried by a jury after indictment, he can only be held to answer to a court having authority to inquire, by the intervention of a grand jury, into offenses triable in the county. If he shall not so require, he may be held to answer at the court of special sessions,” This last section seems to have been adopted for the purpose of preserving a practice which prevailed prior to the adoption of the Code of Criminal Procedure. People v. Putnam, 3 Parker Crim. R. 386; Hill v. People, 20 N. Y. 363.

In the case in hand the defendant did not elect to be tried in a court of special sessions, but, on the contrary, he made a request that he be permitted to give bail; which request the magistrate overruled, and compelled the defendant to go to trial in a court of special sessions, dealing with the offense of which lie is charged as though the offense was enumerated in section 56 of the Code of Criminal Procedure. As already observed, the offense charged against the defendant is not found among the enumerations contained in section 56 of the Code of Criminal Procedure. When we turn to the statute of 1885 declaring the offense against adulteration of milk, as already stated, we lin'd a declaration in section 3, c. 183, Laws 1885, that every offender against its provisions shall be guilty of a misdemeanor; and in section 14 of that act jurisdiction is conferred upon courts of special sessions in the following language: “See. 14. Courts of special sessions shall have jurisdiction of all cases arising under this act, and their jurisdiction is hereby extended so as to enable them to enforce the penalties imposed by any or all sections thereof. ”

It is observable that the language just quoted .does not confer upon such courts “exclusive jurisdiction. ” The argument addressed to us by the learned district attorney in behalf of the respondent refers to the words “all cases arising under this act, ” and asks us to construe them as indicating a legislative intent to confer the exclusive jurisdiction upon such courts. We are unable to assent to the argument. The chapter from which the quotation has been made declares 10 different offenses, and provides that a violation of any of the 10 different provisions of the statute shall be a misdemeanor.

We think the legislature intended to confer upon the courts of special sessions jurisdiction for “all cases arising under this act;” but we see no words that clearly evince an intent or warrant an inference that it was the .intent of the legislature to confer exclusive jurisdiction upon the courts of special sessions of the cases enumerated in the statute. The language of the statute ought not to be extended by construction. When the legislature shall declare that such courts have exclusive jurisdiction of all cases arising under the act of 1885, it will be timely for magistrates holding courts of special sessions to assert an exclusive jurisdiction, and to deprive a citizen of the right to give bail. Const. N. Y. art. 1, § 2; Wynehamer v. People, 13 N. Y. 378; Hill v. People, 20 N. Y. 363.

Because the court of special sessions refused the defendant the opportunity to give bail, and thus secure a trial after an indictment, we think an error was committed which requires a reversal of the judgment appealed from. All concur.  