
    Bernard F. Martin, Appellant, v. David Goldstein, Respondent.
    
      The inadvertent service of a summons upon a Jew on Saturday is iwt a misdemeanor and the process is valid.
    
    Sectioh 371 of the Penal Code, providing that “whoever maliciously procures any process in a civil action to he served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is'a party to be adjourned to that day. for trial, is guilty of a misdemeanor ”— when construed in view of the fact that the 1st and 3d clauses of the section contemplate that the acts therein recited should be done maliciously, and of the principle that penal statutes should always be construed in favor of civil liberty, and that the section occurs in that part of the Penal Code defining crimes against religous liberty and conscience, and that to constitute a crime there must be not only the act itself, but a criminal intent must accompany it —does not apply to a person who inadvertently procures a summons to be issued out of the Municipal Court of the city of Rochester, whose procedure is similar to that of a court of a justice of the peace, against a Jew, who uniformly observes Saturday of each week as “holy time,” and has it made returnable- on Saturday, and such summons and its service are-valid.
    Appeal by the plaintiff, Bernard F. Martin, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 11th day of November, 1896, which affirmed upon appeal a judgment of the Municipal Court of the city of Rochester, vacating a warrant of attachment and a summons issued in the above-entitled action.
    This action, which was brought to recover for goods sold and delivered by the plaintiff to the defendant, was commenced in the Municipal Court of the city of Rochester on the 9th day of April, 1896.
    At the time of the issuing of the summons a verified complaint was duly filed, upon which, as well as upon accompanying affidavits, a writ of attachment was issued, and the same was subsequently served upon the defendant with the summons and complaint.
    The summons was made returnable upon the 18th day of April, 1896, which was Saturday. Upon the return day the defendant appeared-in the action for the sole purpose of objecting to the jurisdiction of the court upon several grounds, but more especially for the reason, that the defendant is a Jew, and. that as such he uniformly observes Saturday of each week as “holy time.” This fact was made to appear by affidavit, to meet which the plaintiff filed a counter affidavit containing a statement to the effect that the summons was made returnable on Saturday through inadvertence, without malice, and without any intent to fix the return thereof on a day kept holy by .the defendant,
    On the defendant’s motion the summons and warrant of attachment were vacated and judgment was rendered in favor of defendant. From the judgment thus entered an appeal was taken to the County Court of Monroe county, where the judgment of the Municipal court was affirmed, and from the judgment of affirmance this appeal is brought.
    
      Frank J. Hone, for the appellant.
    
      Jacob Spahn, for the respondent.
   Adams, J.:

By express legislative enactment the Municipal Court of the city of Rochester is to be deemed a Justice’s Court, and the procedure therein is governed by the provisions of chapter 19 of the Code of Civil Procedure, which relates to courts of justices of the peace. (Code Civ. Proc. §§ 3226, 3227; Baird v. Helfer, 12 App. Div. 23.)

' This action was, therefore, properly commenced by a summons made returnable upon a day fixed and specified therein. But the return day, unfortunately for the plaintiff, happened to be on' Saturday, and when the defendant appeared' it was made known for the first time that he was a member of the Jewish faith, and that as such „it was a part of his religion to observe Saturday as “ holy time.” It was thereupon made to- appear, by the affidavit of the plaintiff’s attorney, that the return day of his summons was specified through inadvertence and without any intention of fixing the same on a day kept holy by the defendant, and also without realizing at the time the same was fixed that the return day was Saturday.

These facts are uncontroverted, and the sole question, therefore, for this court to determine is, whether or not they constitute a crime against religious liberty and conscience, and the determination of this question involves a construction of section 271 of the Penal Code, which reads as follows: “ Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party, to be adjourned to that day for trial, is guilty of a misdemeanor.”

It is contended on behalf of the defendant that, upon the undisputed facts in this case, the plaintiff has, in making his process returnable on Saturday, rendered ■ himself amenable to the penalty declared by this section, and that in consequence thereof the process-by which he sought to commence this action is absolutely void.

It is quite obvious that this contention must prevail, provided the premise upon which it rests is tenable. For although the statute does not in express terms forbid the return of a legal process upon a day regarded as holy by the party upon whom it is served, yet the penalty which it imposes implies a prohibition; and to all intents and purposes its violation entails the same consequences as would follow if its language were more explicit. (Griffith v. Wells, 3 Den. 226; Leavitt v. Blatchford, 5 Barb. 9—29; Smith v. Joyce, 12 id. 21; Barton v. Port Jackson, 17 id. 397; Best v. Bauder, 29 How. Pr. 489 ; Matter of the City of Buffalo, 68 N. Y. 167.)

The case, therefore, resolves itself into this one crucial question,, is the plaintiff guilty of the misdemeanor defined by the. section above quoted ? Upon a careful analysis of the section, it will be-discovered that three separate and distinct acts are therein impliedly prohibited : (1) The malicious' procuring of the service of any process in a civil action on Saturday upon a person who keeps that day as holy time; (2) the service úpon such a .person of any process returnable on that day; and (3) the malicious procuring of an adjournment to that day of a hearing in a civil action to which such a person is a party. It will also be discovered that, in order to constitute an offense so far as the 1st and 3d subdivisions above-mentioned are concerned, the element of malice must be established ; whereas, such is not apparently the case as regards the: 2d subdivision. And it is consequently argued that a party who unintentionally and inadvertently causes a process to be mad& returnable in violation of this statute is just as amenable to punishment therefor as if he had acted from a malicious motive.

It must be conceded, we think, that if strict grammatical rules-are to be observed in our effort to interpret this statute, the. defendant’s contention is entitled, to very serious consideration; and the same may be said if the ordinary rules of legal construction .are to control. For the use of the word “ maliciously ” in connection with the 1st and 3d subdivisions, and its omission from the 2d, are certainly facts which possess considerable significance. But, with this much which is favorable to the defendant’s contention admitted, we are nevertheless persuaded that the statute should not receive the- interpretation claimed for it; and this conclusion is reached by adhering to certain well-recognized canons of construction which may perhaps be termed extraordinary, because not generally resorted to, but which are, nevertheless, just as available and just as potent in proper cases as are those to which we have already adverted.

One of these rules is, that a penal statute should always be liberally construed in favor of civil liberty; or, to adopt the language of an eminent text writer upon this subject: Let everything that is in favor of power be closely construed; everything in favor of the-■security of the citizen and the protection of the individual compe'hensively, for the simple reason that power is power, which is able to take care of itself, and tends by its nature to increase, while the ■citizen wants protection.” (Lieber’s Political Hermeneutics, chap. 6, § 10; also, see Dwarris on Statutes, chap. 2; The V. C. C. Co. v. Murtaugh, 50 N. Y. 314; Hintermister v. The First Nat. Bank ■of Chittenango, 64 id. 212; Wood v Erie Ry. Co., 72 id. 196.)

With this rule in mind, the plaintiff is in a position to invoke still .another, which is, in-effect, that the intent of the Legislature in •enacting a particular law must govern where such intent is manifest, ■even though the construction thus given seems contrary to the precise letter of the statute. And, furthermore, that where the intent •is at all obscure or ambiguous resort may be had to other parts of the same statute, and even to the title; in order to ascertain its true ' intent. (Smith v. The People, 47 N. Y. 330; Matter of Rochester Water Comrs., 66 id. 413; People ex rel., etc., v. Coleman, 121 id. 542.) ,

Turning, therefore, to the section under consideration^ we find that it is a part of chapter' 1 of title 10 of the Penal Code, which •defines crimes against religious liberty and conscience. Now, it-is •elementary that to constitute a crime there must he not only the act itself, but a criminal intent must also accompany the act. (Stokes v. The People, 53 N. Y. 164-179 ; People v. Powell, 63 id. 88-91.) And yet, in order to give to this section the construction claimed for it by the defendant’s counsel, we must hold that the Legislature has not only utterly -ignored this elementary principle, but, in violation thereof, has declared that while in the case specified malice or intent must exist in order to constitute the crime of procuring a process to be served on Saturday, or of procuring a civil action to be adjourned to that day, the crime of serving a process which is returnable on Saturday may be committed without any intent accompanying the act. This proposition, it seems to us, has only to be stated to render its absurdity manifest; for the person who served the summons in this action, as is generally the case, was a public officer; and it is fair to assume that he performed his official duty in this instance without knowing, or having any reason to suppose, that the party served regarded one day of the week as more sacred than another. It is true that the defendant is a Jew, and certain racial characteristics may have manifested themselves to such an extent as to acquaint the officer with that-fact, but there are ■other religions than the Jewish which require the observance of the .seventh-day of the week as “holy time,” and, consequently, if the rule contended for is to obtain, an officer must somehow ascertain,' in every instance before serving a process, -that the party upon whom it is to be served does not come within the favored class; otherwise he renders himself amenable to the statute.

It is inconceivable that the Legislature- intended that a person thus serving a process returnable on Saturday, in ignorance of the fact that he was in any way interfering with the religious liberty of the party served, should be regarded as a criminal, and it is equally certain that a conviction under such circumstances would be absurd and unjust, if not impossible. A construction, of a statute, therefore, which leads to such a result should manifestly be avoided if practicable. (In re Folsom, 56 N. Y. 60; People v. Jaehne, 103 id. 182.)

Chancellor Kent, in laying down certain general rules for construing statutes, says that the intent with which they were enacted “ is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the objects and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion.” (1 Kent’s Com. *462.) ■ "

Applying the principle thus stated to the case in hand, it. would certainly seem “ consonant to reason and good discretion ” to hold that it was the design of the Legislature to punish only such persons as intentionally, that is, maliciously, annoy and vex any class of citizens who religiously observe any part of the week as holy time,” by either serving them with process upon that day, or procuring, a process to be made returnable upon, or a hearing in a civil action to-be adjourned to, that day.

If we are correct in this conclusion it follows that- the summons, as well as the warrant of attachment issued in this action, was not void, .and that the judgment appealed from should, therefore, be reversed.

Judgment reversed, with costs.

. All concurred, except Ward, J., dissenting.

Judgment of the County Court and of the .Municipal Court reversed, with costs.  