
    The People of the State of New York, Resp’ts, v. Dempster C. Austin, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Adulteration of milk—Courts of special sessions—Jurisdiction of-—N. Y. Constitution, art. 6, § 26—Code Grim. Pro., §§ 56, 57, 59, HAVE NOT EXCLUSIVE JURISDICTION OF VIOLATIONS OF LAWS 1885, CH. 183, § 3.
    It is provided by New York Constitution, article 6, section 26, that court», of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may he prescribed by law, and by Laws 1879, chapter 390, subsequently passed, that in addition to the powers then possessed by them should have exclusive jurisdiction in the first instance to hear and determine certain classes of offenses therein specified. It was provided in: Code Criminal Proceedure, section 56, that subject to the powers of removal therein provided for, courts of special .sessions, except in the city and. county of New York and the city of Albany, shall have in the first, instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within the respective counties, enumerating certain charges to which the provision applied. By section 57 of that act a method is provided for obtaining a certificate from a county judge or a justice of the supreme court that such charge be prosecuted by indictment, and section C9 declares that a court of special sessions having jurisdiction in the place where any of the crimes specified in section 56 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 57. In chapter 7 of Code Criminal Procedure it is provided that if' the crime with which the defendant is charged be one triable by a court of special sessions of the county in which the same was comm.tted, the-magistrate, before holding the defendant to answc r, must inform him of his right to be tried by a jury after indictment, and must ask him how lie-will be tried. It is further therein provided that if the defendant shall require to be tried by a jury alter 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, and that if he shall not so require he-may be held to answer at the court of special sessions. The defendant therein was charged, in Jefferson county, with violation of Laws 1885, chapter 1 8, section 3, prohibiting and punishing the dilution or adulteration of milk, etc. By section 14 of that act it is provided that courts of special sessions shall have jurisdiction of all cases arising under the act, and that their jurisdiction is thereby extended so as to enable them to enforce the penalties imposed by any or all sections thereof. Held, that thereby the-legislature intended to confer upon the courts of special sessions jurisdiction of all cases arising under that act, but that the inference was not warranted that it meant to confer exclusive jurisdiction, and that the.language of the statute ought not to be extended by construction.
    2. Same—Jurisdiction of—When error to refuse defendant opportunity TO GIVE BAIL AND SECURE TRIAL AFTER INDICTMENT.
    The defendant' herein did not elect to be tiied in a court of special' sessions, but requested that he be permitted to give bail. This request, was overruled by the magistrate, and he compelled the defendant to go to trial in a court of special sessions, dealing with the offense of which' he-was charged as though it were one enumerated in Code Criminal Proceedure, section 56, of which in the first instance it had exclusive jurisdiction. Held, that the court of special sessions in refusing the defendant, the opportunity to give bail, and thus secure a trial after her indictment, committed an error.
    Appeal from a judgment of affirmance pronounced by the court of sessions of Jefferson county of a conviction, and judgment rendered in a court of special sessions in that county.
    Defendant was charged with violation of section 3 of chapter 183, of the Laws of 1885, in respect to diluted milk. That section provides, viz.: “ Whoever violates the provisions of this section shall he guilty of a misdemeanor, and shall be punished for each offense by a fine of not less than twenty-five dollars or more than $200, or not less than one month or more than six months’ imprisonment, or both such fine and imprisonment.”
    After the prisoner was arraigned in the special sessions,, he pleaded not guilty, and the return shows, viz.: “Defend.-ant waives preliminary examination and offers to give bail for appearance at next grand jury of Jefferson county. Defendant’s offer overruled.”
    Thereafter the defendant demanded a jury, which was summoned, and a trial had, and a verdict of guilty rendered.
    It is claimed by the defendant that the evidence was insufficient to warrant a conviction in as much as the princi: pal testimony furnished against him were certain tests made by the lactometer.
    
      Thomas F. Kearns, for appl’t; F. H. Peck, district-attorney,"for resp’ts.
   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, viz.: “ 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. The People, 20 Hun, 98 ; The People v. Dutcher, 20 id., 241; The People v. Rawson, 61 Barb., 619 ; The People v. Justices, 74 N. Y., 406 ; The People v. Dutcher, 83 id., 240.

When the Code of Criminal Procedure was passed, it was provided in section 56, viz. : “ 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 the- respective counties as follows :” Then follows an enumeration of thirty-three different offenses embraced in the section.

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, viz. : “A court of special sessions having jurisdiction in the place where any of the crimes specified in section 56 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 57. ”

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 in section 211, where it is provided that, viz. : “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. The People v. Putnam, 3 Park., 386 ; Hill v. The 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 he 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 find a declaration in section 3 of chapter 183 of the Laws of 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, viz.': “Section 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 ten different offenses, and provides that a violation of any of the ten .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. Article 1, section 2, State Constitution; Wynehamer v. The People, 13 N. Y., 378; Hill v. The 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.

Conviction and judgment of the court of special sessions, and of the court of sessions reversed, and the prisoner discharged.

Follett and Martin, JJ., concur.  