
    The People, Resp’ts, v. Albert Harris, App’lt.
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Daisy daw—Laws op 1884, chap. 202—Jurisdiction.
    Courts of special sessions do not have exclusive jurisdiction of the crime of diluting milk carried to cheese factories, as forbidden by chap. 202 Laws 1884, and one violating such statute may be indicted and tried at a court of oyer and terminer. No new offense was created by the law of 1884.
    2. Same.
    The statute of 1884 was not repealed by chap. 183 of the Laws of 1885, so far as the former was necessary to pumsh crimes committed under it.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment of Otsego oyer and terminer convicting defendant of the crime of watering milk in violation of chap. 202, Laws of 1884.
    _£! M. Harris, for app’lt; James A. lynes, for resp’ts.
   Ruger, Ch. J.

The defendant was indicted under § 3, chap. 202, Laws of 1884, at a court of oyer and terminer in Otsego county of the crime of carrying and selling to a cheese factory at G-arrattsville, in said county, on the 3d and 4th days of August, 1884, a quantity of milk diluted with water for the purpose of having it manufactured into butter and cheese. He was subsequently tried at a court of oyer and terminer and convicted of the offense charged in the indictment. The judgment entered upon the conviction was thereafter affirmed by the general term, and, from that judgment the defendant has appealed to this court, alleging various grounds of error.

Those which are the most strenuously urged on this appeal are: 1st. That, under the act referred to, courts of special sessions have exclusive jurisdiction of the crime described therein, and it was therefore error to indict and try the defendant at a court of oyer and terminer; and, 2d. that the statute of 1884 was repealed by chap. 183 of the Laws of 1885, and the penalties imposed for violations of the act of 1884, therefore, did not survive such repeal.

The appellant's argument on the first fioint proceeds upon the theory that the offense described in the third section of the act did not previously exist either by statute or at common law, and that the statute having created a new offense and designated a special tribunal and mode of prosecution for its punishment, no other mode of trial could lawfully be pursued.

There can be no doubt as to the general correctness of the rule referred to by the appellant’s counsel; but he errs in the application made of it to this case. The facts of the case do not bring it within the operation of the rule. Here no new offense has been created; neither is any special tribunal pointed out, or mode of trial prescribed for the offense described in the statute. The adulteration of milk was made a misdemeanor by chapter 467 of the Laws of 1862, and since that time such an offense has been punishable by indictment and triable, both at courts of sessions and oyer and terminer, as such courts might determine. The act of 1884 embraced in its provisions that offense, with numerous others theretofore existing, and assumed to collect and express in comprehensive language all of the various offenses which might be committed by persons engaged in dealing in the products of dairies and other employments connected therewith. It enumerated and defined such offenses in eight separate sections, and declared in each section that the various acts, respectively, therein described, constituted misdemeanors punishable, upon conviction, bv fine and imprisonment. No special mode of prosecuting such offenders was prescribed by the act; but that subject was left wholly to the operation of the general rules of criminal law applicable to such cases. By the 11th section of the act it was provided that: “ 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 of the sections hereof.”

We do not see in this section any intention on the part of the legislature to give such courts exclusive jurisdiction of the offenses therein described, and it is plainly evident that the section quoted was simply intended to authorize the prosecution of such offenses before that tribunal. Such courts possess a limited jurisdiction only and by express constitutional provision have authority to try offenses of the grade of misdemeanors only when specially empowered to do so by law. Sec. 26, art. 6, Constitution of the state of New York.

By the then existing statutes those courts had no power to try offenders for a violation of the crime defined in § 3 of the act of 1884, and this qualifying provision was necessary to enable them to entertain jurisdiction of such cases. People v. Austin, 49 Hun, 396 ; 19 N. Y. State Rep., 520.

There was no intent indicated by the language or reason of the act to exclude courts of sessions and oyer and terminer from exercising the jurisdiction in such cases given to them by the general provisions of criminal law and which they had theretofore been accustomed to exercise. The intent plainly was to confer jurisdiction also upon a special court, not to take it away from those which prior thereto had been authorized to try and determine such offenses. Neither do we think that the .provisions of the act of 1884 were repealed by the later act of 1885. This question is to be determined by a reference to the intent of the legislature in enacting the later statute. The statute of 1885 contains no provision expressly repealing the act of 1884, although it does provide in express terms for the repeal of many prior statutes, which were apparently suspended by the later act. Such repeal must, therefore, be effected by implication alone, if it is to be deemed established at all. Such repeals are not favored by the law and are not to be considered as intended, unless there is a clear repugnancy in the provisions of the respective statutes, or an obvious design revealed to supersede the provisions of the prior statute, leaving it no office to perform. That there is no re- '

' pugnancy in these acts is apparent by a comparison of the two sections of the respective acts defining the crime charged in the indictment. Section 3 of the act of 1885 is substantially and almost literally a re-enactment of § 3 of the act of 1884, and the act itself is expressly stated in its title to be “supplementary to and in aid of chapter two hundred and two of the laws of eighteen hundred and eighty-four.”

It is obvious in the face of this express declaration of legislative intent that there was no design on the part of the law makers to nullify or repeal the provisions of the act of 1884, except so far as subsequent crimes might be affected. While § 3 of the act of 1884 had no office to perform after the enactment of the law of 1885, except to affect those offenses which were committed while it was the only law in force, yet it was entirely competent for thelegislature to keep it alive for that purpose, and the omission to repeal it was, we think, intended to leave offenders to be prosecuted and punished in accordance with its provisions. The general rule that a later statute not purporting to amend a former one, and covering the whole subject, and plainly intended to fur-, nish the only law upon the subject, repeals former statutes by implication, would undoubtedly cover this case were it not for the explicit declaration of the legislative intent to preserve the provisions of the former statute. Heckmann v. Pinkney, 81 N. Y, 211. Mo implication of a design by the legislature to repeal a former statute can be indulged in the face of an express declaration in the later statute of a contrary intent, and it must, therefore, be held that the act of 1884 continued in force, so far as it may be necessary to punish crimes committed under it.

The indictment described but one offense, and was clearly sufficient within the liberal provisions of §§ 275 and 276 of the Code of Criminal Procedure to define the crime provided for by § 3 of the act of 1884. The evidence was ample to sustain the charges of the indictment, and rendered any other result on the trial than a verdict óf guilty clearly inappropriate.

We have examined-other exceptions taken on the trial, but find none worthy of serious consideration.

The judgment appealed from should be affirmed.

All concur. 
      
       Affirming 28 N. Y. State Rep.. 297.
     