
    The People of the State of New York ex rel. James C. Cropsey, as District Attorney of Kings County, Appellant, v. The Court of Special Sessions of the City of New York, Second Division, and Others, Respondents.
    Second Department,
    December 3, 1915.
    Crime—practice—remission of fine — section 31, Inferior Criminal Courts Act, construed.
    Under section 31 of the Inferior Criminal Courts Act of the City of New York, giving the court jurisdiction in its discretion to remit a fine imposed by it and in place thereof to substitute imprisonment, the Court of Special Sessions, having imposed both fine and imprisonment for a violation of the Liquor Tax Law, as required by said law, may in its discretion, at the request of the defendant, remit the fine without substituting therefor an additional imprisonment.
    Section 484 of the Code of Criminal Procedure, relating to the remission of fines, is not exclusive, and the court has concurrent powers under section 31 of the Inferior Criminal Courts Act.
    Appeal, as stated in the notice of appeal, by the People of the State of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1915, as resettled by an order entered in said clerk’s office on the 9th day of June, 1915, denying relator’s application for a writ of absolute prohibition.
    
      Harry G. Anderson, Assistant District Attorney [James C. Cropsey, District Attorney, and Hersey Egginton, Assistant District Attorney, with him on the brief], for the appellant.
    
      John L. Danzilo, for the respondent Azzento Philippo.
    
      Thomas F. Magner [George A. Green and Louis H. Hahlo with him on the brief], for the city of New York.
   Jenks, P. J.:

Subdivision 2 of section 31 of the Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659) reads: 2. It shall have jurisdiction at the request of a defendant to remit a fine imposed by it and in place of such fine to substitute in its discretion imprisonment.” The relator contends that when the court, pursuant to this statute, remits a fine, the court must substitute imprisonment therefor. Such procedure would be prescribed precisely without the words “in its discretion.” But we should not disregard these words, nor reject them as surplusage, nor consider them as misplaced, if they, in their place and afforded their recognized meaning, can be read as further expressive of a legislative intent. I think that the words naturally refer to the word “substitute.” To remit is “To give up; to relinquish; as to remit a fine ” (Bur. Law Diet.); “to discharge, as, a penalty; to pardon, as, an offense ” (And. Law Diet. 876). Thus the word is apt to express the power to annul the fine and does not necessarily imply that there may be only a substitution of imprisonment therefor. I think that the legislative intent expressed is that the court may, not must, substitute imprisonment. The words “in its discretion ” are not referable' to any other expression of this sentence as if misplaced after the word “ substitute.” The phrase “ It shall have jurisdiction” but confers upon the court the right to determine whether there should be remission (Daniels v. Tearney, 102 U. S. 415, 418), and does not require the exercise of the power of remission. Therefore, the qualification of such phrase by the words “in its discretion” would be unnecessary, if not redundant.

The jurisdiction is to be exercised at the request of the defendant which indicates that he must show cause why the court should remit. The Legislature contemplated that facts thus brought before the court might warrant either absolute remission of the fine or substitution of imprisonment therefor. The case at bar affords illustration. The punishment prescribed is both fine and imprisonment. (Liquor Tax Law, § 36, subd. 1, as amd. by Laws of 1910, chap. 485.) Absolute remission of the fine would not annul the punishment, for the original imprisonment imposed remains. The court might be satisfied that the fine should not be exacted and that the punishment of the original imprisonment under the circumstances sufficed, or the court might be satisfied that although the fine should not be exacted, yet the punishment of imprisonment, without some further imprisonment in substitution of the fine, would not suffice. The discretion referred to is the exercise of judicial function in consideration of the circumstances shown by the request of .the defendant. Thus Marshall, Ch. J., in Osborn v. United States Bank (9 Wheat. 866), speaking of the courts, says: “When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”

My conclusion is not affected by the circumstance that the statute in this case prescribes a sentence that requires both fine and imprisonment. The court fulfilled its function to mete out punishment when it imposed a sentence in conformity with the law. The question presented does not involve consideration of the power of the court inherent or under the common law to vary or to change the sentence after the term at which it was rendered or after any part thereof has been carried out, as discussed in Ex parte Lange (18 Wall. 163), Commonwealth v. Mayloy (57 Penn. St. 291, 299), State v. Addy (43 N. J. Law, 113) and Commonwealth v. Foster (122 Mass. 317). It involves consideration of the express statutory power of remission conferred upon the court additional to its jurisdiction to try the case and to pronounce the judgment. The exercise of jurisdiction to remit is not inconsistent with the exercise of the jurisdiction to try the case and to pronounce the judgment of punishment.

I think that section 484 of the Code of Criminal Procedure is not exclusive, but that the “ powers ” of the court, expressed in the statute under consideration, and of the county judge as conferred by the said section of the Code óf Criminal Procedure, are concurrent.

The order is affirmed.

Stapleton, Mills, Eioh and Putnam, JJ., concurred.

Order affirmed.  