
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Argued October 22, 1959;
    decided December 30, 1959.
    
      
      Kenneth W. Greenawalt and Harrop Freeman for appellants.
    I. No clear or present danger existed, in fact, in the situations involved here. The drills or exercises of June 15, 1955 and July 20, 1956 were in respect of a purely hypothetical and theoretical bomb attack, and not in respect of any real, actual, imminent or threatened bomb attack or danger. (Lee v. Madigan, 358 U. S. 228.) II. In the situations involved here there was, in law, no clear and present danger which justified the abridgement or denial of appellants’ constitutional freedoms of religion, speech, press, peaceable assembly and petition. (Schenck v. United States, 249 U. S. 47; Whitney v. California, 274 U. S. 357; Board of Educ. v. Barnette, 319 U. S. 624; Thomas v. Collins, 323 U. S. 516; Bridges v. California, 314 U. S. 252; Dennis v. United States, 341 U. S. 494; Hirabayashi v. United States, 320 U. S. 81; Duncan v. Kahanamoku, 327 U. S. 304.) III. The New York State Emergency Defense Act and the alleged orders thereunder, in whole or in part, inherently and as construed and applied below against appellants, are in violation of the First and Fourteenth Amendments of the United States Constitution and of sections 1, 3, 8, 9 and 11 of article I of the New York State Constitution. (De Jonge v. Oregon, 299 U. S. 353; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Jamison v. Texas, 318 U. S. 413; Murdock v. Pennsylvania, 319 U. S. 105; Board of Educ. v. Barnette, 319 U. S. 624; Martin v. Struthers, 319 U. S. 141; Taylor v. Mississippi, 319 U. S. 583; Douglas v. Jeannette, 319 U. S. 157; Prince v. Massachusetts, 321 U. S. 158; Follett v. 
      McCormick, 321 U. S. 573; Thomas v. Collins, 323 U. S. 516.) IV. The said act and the alleged orders, in themselves and as construed and applied below, abridged and prohibited appellants’ freedoms of religion and conscience and their free exercise thereof. (United States v. Ballard, 322 U. S. 78; Cantwell v. Connecticut, 310 U. S. 296; Fowler v. Rhode Island, 345 U. S. 67; Taylor v. Mississippi, 319 U. S. 583.) V. The said act and alleged orders, in themselves and as construed and applied below, abridged the rights of defendants peaceably to assemble and to petition. (De Jonge v. Oregon, 299 U. S. 353; Hague v. C.I.O., 307 U. S. 496.) VI. The said act and alleged orders, in themselves and as construed and applied below, abridged or denied appellants’ liberties of speech and press. (Murdock v. Pennsylvania, 319 U. S. 105; Martin v. Struthers, 319 U. S. 141; Lovell v. Griffin, 303 U. S. 444; Le Baron v. Kern County Farm Labor Union, 80 F. Supp. 151; Terminiello v. Chicago, 337 U. S. 1.) VII. The said act and alleged orders, in themselves and as construed and applied below, denied to appellants the equal protection of the laws and abridged their privileges and immunities. VIII. Appellants were entitled to be considered “ exempt persons ” within subdivision 1 of section 100 of the New York State Defense Emergency Act. Failure to include appellants within that exemption was discriminatory and denied them equal protection of the law as well as their freedoms of religion and conscience. (Winters v. New York, 333 U. S. 507; Fowler v. Rhode Island, 345 U. S. 67.) IX. The New York State Defense Emergency Act, insofar as it provides for, and also insofar as it has been construed to permit, infringement of the liberties of the people, including the freedoms of speech, press, religion, petition and assembly, is unconstitutional under Federal and State Constitutions. X. The evidence failed to establish that appellants violated and disobeyed any duly promulgated regulation or' order or any official order by a person duly authorized, as alleged. XI. Appellants were not trespassing on private property and were not engaged in practices which were immoral or inconsistent with public health, peace and safety. (Watchtower, Bible & Tract Soc. v. Metropolitan Life Ins. Co., 297 N. Y. 339, 335 U. S. 886; People v. Thorpe, 198 Misc. 462; People v. Bohnke, 287 N. Y. 154, 316 U. S. 667; Reynolds v. United States, 98 U. S. 145.) XII. The City Magistrates’ Courts, which did not sit herein as a Court of Special Sessions, did not have jurisdiction to hear and determine the charges against appellants. Section 102 of the New York State Defense Emergency Act, in itself and as construed and applied below, violates the New York State Constitution and the Fourteenth Amendment of the United States Constitution in providing that Magistrates’ Courts in the City of New York, in the first instance, shall have exclusive jurisdiction to hear and determine charges of violations constituting misdemeanors, such as the charges herein. (People v. Pray, 87 Misc. 464; People ex rel. Comaford v. Dutcher, 83 N. Y. 240; People v. Seidman, 266 App. Div. 793; People v. Citarelli, 247 App. Div. 53; People v. Schacher, 181 Misc. 769; Matter of Mosner v. Haddock, 181 Misc. 486; People v. Pershaec, 172 Misc. 324.)
    
      Frank S. Hogan, District Attorney (Peter Preiser and Richard G. Denser of counsel), for respondent.
    I. Appellants’ guilt was proved beyond a reasonable doubt. II. The New York State Defense Emergency Act is a valid exercise of legislative powers and its particular application to these appellants was not unconstitutional. (United States v. Constantine, 296 U. S. 287; United States v. Macintosh, 283 U. S. 605; Richter v. United States, 181 F. 2d 591, 340 U. S. 892; Ludecke v. Watkins, 335 U. S. 160; Hirabayashi v. United States, 320 U. S. 81; Matter of Viemeister, 179 N. Y. 235; People ex rel. Nechamcus v. Warden of City Prison, 144 N. Y. 529.) III. Appellants’ constitutional rights were not violated. (United States v. Schwimmer, 279 U. S. 644; Atherton v. United States, 176 F. 2d 835, 338 U. S. 938; Rase v. United States, 129 F. 2d 204; Hamilton v. Regents, 293 U. S. 245; United States v. Miller, 233 F. 2d 171; Poulos v. New Hampshire, 345 U. S. 395; Prince v. Massachusetts, 321 U. S. 158; Cox v. New Hampshire, 312 U. S. 569.) IV. Appellants were not engaged in an exempt activity, and failure to exempt them did not violate their rights. (Selective Draft Law Cases, 245 U. S. 366.) V. The City Magistrates’ Court had exclusive jurisdiction to hear and determine the misdemeanor charges herein involved. (People ex rel. Sinkler v. Terry, 108 N. Y. 1; People ex rel. Townsend v. Porter, 90 N. Y. 68; Landers v. Staten Is. R. R. Co., 53 N. Y. 450; Haggerty v. City of New York, 267 N. Y. 252; People ex rel. Comaford v. Dutcher, 83 N. Y. 240; People v. Pray, 87 Misc. 464; People v. 
      Seidman, 266 App. Div. 793; People v. Aptaker, 19 Misc 2d 602; People v. Citarelli, 247 App. Div. 53; People v. Pershaec, 172 Misc. 324.)
   Per Curiam.

We agree that it was not unconstitutional for the Legislature in section 102 of the State Defense Emergency Act (L. 1951, ch. 784, as amd.) to give jurisdiction over these misdemeanors to Magistrates’ Courts in New York City (N. Y. Const., art. VI, § 18).

Appellants may constitutionally be compelled to take shelter during an air raid drill, a purely defensive measure within the class of nonaggressive activities recognized in Girouard v. United States (328 U. S. 61). Nor do we accept appellants’ position that they were coerced into war preparation against their religious scruples. This was merely training in how to take shelter in the event of an air raid, in the nature of a lifeboat drill at sea or a fire drill in a school.

In each case, the judgment of the Appellate Part of the Court of Special Sessions of New York City should be affirmed.

Fuld, J.

(dissenting). I cannot accept the view of the majority that the Legislature has the constitutional power to vest the Magistrates’ Courts of the City of New York with jurisdiction to try misdemeanors.

Section 18 of article VT of our Constitution reads:

“ Courts of special sessions and inferior local courts of similar character shall have such jurisdiction of offenses of the. grade of misdemeanors as may be prescribed by law, and the legislature may authorize them to try such offenses without a jury.” (Emphasis supplied.)

The italicized words were added in 1925. I have always thought that their purpose was simply to make it clear that section 18 covers not only courts of special sessions, so denominated, but the equivalent of such courts, though not so denominated, which function outside New York City — namely, city courts, village courts and, perhaps, others. In other words, the phrase “ inferior local courts of similar character ” means inferior local courts of similar or equivalent jurisdiction.

Had section 18 of the Constitution been intended to apply to magistrates ’ courts, it would have simply read ‘1 Courts of special sessions and other inferior local courts ” — eliminating the significant expression of similar character As the section now reads, however, the Legislature is without power to vest magistrates’ courts with jurisdiction to try misdemeanors since these courts are ‘1 inferior local courts ’ ’, but not ‘ ‘ inferior local courts of a similar character ” to courts of special sessions.

In point of fact, prior to the enactment of the Defense Emergency Act (L. 1951, ch. 784, as amd.) whose constitutionality is before us for the first time on this appeal, the Legislature never attempted to empower magistrates’ courts in New York City to try misdemeanors. Indeed, it is expressly provided by statute that in New York City the court of special sessions 11 shall have * * * exclusive jurisdiction to hear and determine all charges of misdemeanors committed within the city of New York ” (N. Y. City Crim. Cts. Act, § 31). And the courts which have given thought to the subject have consistently declared that magistrates’ courts neither had the power nor could be given the power to try such misdemeanors. (See People v. Citarelli, 247 App. Div. 53, 55; People v. Aptaker, 19 Misc 2d 602; People v. Pershaec, 172 Misc. 324; People v. Pray, 87 Misc. 464, 467-468.)

Furthermore, it should be noted that, when in 1915 the Legislature desired to empower a magistrate to try certain misdemeanors, it did not vest the magistrate with power to try them, but, instead, explicitly provided that the magistrate had to sit as, and hold, a court of special sessions and, in addition, that the defendant had to give his consent to such a trial (N. Y. City Crim. Cts. Act, §§ 130, 131). And, if he did not give his consent, the statute provided, then, the misdemeanor had to be tried by the justices comprising the court of special sessions. So strong did this court deem the requirement of consent that it decided that a defendant, having consented to a trial by a court of special sessions to be held by a particular magistrate, could not, without the defendant’s further consent, be tried by any other magistrate. (See, e.g., People v. Geltman, 293 N. Y. 715, affg. 267 App. Div. 83.)

If the Legislature had the competency to grant magistrates the power to sit as such and to hear and determine charges of misdemeanors, there would have been no need for the elaborate procedure set up in the New York City Criminal Courts Act. Moreover, and this, of course, is an important consideration, if we hold that the Legislature is under no constitutional inhibition, that body will then be able simply to provide that a New York City magistrate may try any misdemeanor without the defendant’s consent and over his objection and protest. This may mean a more speedy disposition of cases, but that cannot decide the constitutional question presented. If a defendant charged with a misdemeanor does have a right to be tried in New York City by a court of special sessions, composed of three judges, it is impossible to justify a trial by a single magistrate over the defendant’s objection. The provision, carefully written into the New York City Criminal Courts Act, requiring the defendant’s consent was “considered necessary to avoid the serious constitutional objections which might otherwise have existed to the trial by a Magistrate’s Court of offenses of the gradé of misdemeanor.” (People v. Citarelli, 247 App. Div. 53, 55, supra; see, also, People v. Aptaker, 19 Misc 2d 602, 604, supra; People v. Pershaec, 172 Misc. 324, supra; People v. Pray, 87 Misc. 464, 467-468, supra.)

In sum, then, a defendant charged with a misdemeanor is entitled to a trial in a court of special sessions — which in New York City is a court consisting of three justices or, in certain specified cases, of one judge only if the defendant consents thereto — and a statute which takes from him his right to a trial by such a three-man court deprives him of something truly substantial and contravenes .the constitutional provision discussed (N. Y. Const., art. VI, § 18). Consequently, the Defense Emergency Act, insofar as it empowers magistrates’ courts in New York City to try violations constituting misdemeanors, is invalid, and it follows that the magistrate who convicted the defendants before us lacked the power to try the charges.

In the view which I have thus taken, I do not reach the question— in my opinion, a close and difficult one- — whether the Defense Emergency Act, as applied in this case to these defendants, violates provisions of the Federal and State Constitutions (U. S. Const., 1st and 14th Arndts.; N. Y. Const., art. I, §§ 3, 8, 9).

The judgments appealed from should be reversed and the cases remanded to the Magistrates’ Court for further proceedings.

Chief Judge Conway and Judges Desmond, Dye and Froessel concur in Per Curiam opinion; Judge Fuld dissents in an opinion in which Judges Van Voorhis and Burke concur.

In each case: Judgment affirmed.  