
    Matter of the Petition of John Quinn for Release on Habeas Corpus.
    (Supreme Court—Kings Special Term,
    January, 1896.)
    1. Affidavits.
    Affidavits obtained in an irregular manner and by an improper use of criminal process will not be regarded with favor by the court.
    2. Constitutional law-—Judicial officers—Term of office.
    The provision of. section 22 of article 6 of the Constitution of 1894 that the local judicial officers provided for in sections 17 and 18 “shall hold their offices until the expiration of their respective terms ” refers to their terms as they then were, or as they might thereafter be abridged by the legislature.
    3. Same — Police justices.
    Chapter 601, Laws 1895, abolishing the office of police justice in the city of New York and providing for the appointment of city magistrates, is not unconstitutional.
    Application for discharge on habeas corpus from arrest.
    
      William Sullivan, for the petitioner.
    
      Noah Davis, George Hoadly and A. L. Pincoffs, opposed.
   Gaynor, J.

John J. Ryan, claiming to he a police justice ■ ■of the city of -Hew York, issued a warrant on' October 22nd last for the arrest of the petitioner for the. abandonment of his wife and leaving- her without adequate support. The said ' warrant was indorsed by a police justice of the city of Brook- . lyn with a direction that it might be executed in the city of Brooklyn, and thereupon he was arrested in that city. He sues out the writ of habeas corpus, claiming to be illegally deprived of his liberty. He contends that the said Ryan was mot a police justice of - the city of Hew York when he issued the warrant, and that therefore it is- void. He bases this contention upon the act, chapter 601 of the Laws • of 1895, which in terms abolished the office of police justice in the - city of Hew York from and after June .•30th, 1895, and provided for the appointment of city inag- ' istrates instead. On the other hand, it is contended that . the said act is; Unconstitutional, and therefore' void, which .would leave the said Ryan a police justice.

After the case was argued, counsel for the said city magis- ' trates intervened and made a private suggestion to the court that the proceeding was collusive, and should not be he.ard. Out of regard to the eminent counsel who had apjDeared in and argued the case, the court declined to entertain such a suggestion unless it were substantiated by affidavits. Thereafter affidavits were handed in, and being submitted to the .counsel in the case, affidavits in opposition were handed -in. ■ The court disavows responsibility for the main affidavits submitted by the intervening counsel. They were not obtained . under any proceeding or authority of the court. Instead, papers purporting to be subpoenas from. the district attorney of Hew York county were served upon the said Quinn (the petitioner herein), • and the marshal, who arrested him,- to appear before the grand jury of Hew York county as witnesses “■ in a. criminal action prosecuted by the People of the State of Hew York against John Doe.” Upon presenting themselves they were not taken before the grand jury, but before an assistant district attorney, who ■ put them through a rigid examination, in the presence of the said intervening counsel, which was taken down by a stenographer. Quinn was then put in the custody of an officer by the direction of the said assistant district attorney, and taken through the streets to the private office of the said intervening counsel, to sign his examination after the stenographer should have written it out. No charge or warrant was pending against Quinn, and no official or officer had the right to detain him, or take him through the streets. Nor does it appear that any criminal action concerning the matter was pending before the grand jury at all. The subpoenas mention a criminal action against John Doe, viz., some one whose name was not known. Moreover, testimony given before the grand jury is made secret by law. I regret that it was thought that evidence obtained in this way could find favor with any court. The straining of the machinery of the-criminal law, whether to get convictions, or for any other purpose, is a dangerous evil. Immediate results may be so obtained, but they do not stand the test of either just opinion or review upon appeal. As to the so-called examination of the marshal, obtained in the way I have stated, it is not sworn .to at all.

Coming to the merits of the case,, and the question of law involved, I am of opinion that the said statute abolishing the. office of "police justice is valid. Concededly, before the Constitution of 1894 was adopted, the legislature had full power over the tenure of. police justices in New York city. It was able to shorten it, or abolish the offices altogether. But it is claimed that section 22 of the judiciary article of said Constitution put the terms of office of the then existing police justices beyond the power of the legislature. It is as follows: “ Justices of the peace and other local judicial officers provided for in sections 17 and 18, in office when this article takes effect, shall hold their offices until the expiration of their respective terms.” Deference to the history and terminology of prior Constitutions shows that this provision was adopted only out of caution, lest a question might arise whether the general effect of the revision might not be to oust such judicial officers from their offices. It grew out of that over caution common in constitutional and statutory revisión. It was not meant to take away the power of the legislature over the offices and ten lire of such police justices. -That would .produce the strange result of giving such immunity to the then incumbents only; and upon the expiration of their - terms, those of their successors would again be at the pleasure of the legislature. I see no reason. for such an interregnum of legislative power. I cannot find any intention in the coil- '' stitutional convention to deal with such incumbents with such strange favor and- tenderness. . The- reference to the terms of the said police justices by the words in the said section of the ■ Constitution, viz., “ until the' expiration of their respective . terms,” was to their terms as they then were, or as they might thereafter be abridged by the legislature. . - ,

The petitioner is discharged.

Petitioner discharged.  