
    COURT OF APPEALS.
    Harvey B. Hill, plaintiff in error, agt. The People, defendants in error.
    One, who is arrested under section II of the act, entitled “ An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April ICtb, 1851, for being intoxicated in a public place, cannot be coerced into a summary trial before the magistrate.
    He has the right to give bail for his appearance, at the next oyer and terminer or sessions, to answer the charge, and have the complaint passed upon by a grand jury, and, if indicted, to be tried by a jury of twelve men.
    When lie offers the requisite bail, the magistrate has no jurisdiction to proceed further .upon the charge.
    December, 1859.
    The plaintiff in error was arrested by a constable of the town of Cherry Valley, for being intoxicated in a public place, and taken before Charles McLean, Esq., a justice of the peace of that town.
    He did not elect to be tried for the offence before the justice, but tendered the proper bond, under section 16, chapter 628, of Laws of 1857, with sureties as required by that section. The justice decided he could not give bail to appear at the oyer. He sued out a writ of habeas corpus before Judge Campbell, who, after examining into the facts, decided he was entitled to give bail. The district attorney removed the proceedings into the supreme court, by certiorari, and that court, in the sixth district, reversed the order made by Judge Campbell. Plaintiff removed the record into this court, by writ of error.
    Nathaniel C. Moak, for plaintiff in error,
    
    submitted the ■following points:
    I. Plaintiff had a right to give bail to appear and answer the charge at the oyer and terminer. (People agt. Putman, 3 Park. Cr. Rep. 386, in point. See also 20 Barb. 224; 3 Kern. 457-8-9 ; 2 Park. Cr. R. 312 ; 2 Park. Cr. R. 322.)
    
      1. Before the passage of chapter 628, of Laws of 1857 (Vol. 2, p. 405), the court of appeals, in Wynehamer agt. People (3 Kern. 378, 426, 457-8-9), hacl declared the “Maine law” unconstitutional, because it deprived the accused of the right to give bail, and of trial by jury. (See also 20 Barb. 224.)
    2. By section 16 (p. 411) of the act, it is made the duty of certain officers “ to arrest all persons found actually engaged in.the commission of any offence in violation of this act, and forthwith carry him before any magistrate of the same city or town, to be dealt with according to tire provisions of this act.”
    To avoid the possibility of this law sharing the fate of its predecessor, section 16 further provides, that unless the accused sees fit to ivaive his right of trial by jury, it shall be the duty of the magistrate, “ on sufficient proof that such offence (i. e., any offence in violation of the act) has been committed, unless such person shall elect to be tried before such magistrate, to require a bond, &c., conditioned that such offender will appear and answer the charge at the next term of the court of oyer and terminer or sessions, to be held in said county,” &c., “ or (if that bond be not given) to commit such offender to the county jail,” &c. This provision applies to any and all “ of-fences ” in violation of the act (17 N. Y. R. 519), and was here inserted to save the necessity of setting forth, at lai’ge, in each section, the method of trial, for the particular “ offence” that section might create.
    Section 17 provides that any person, found intoxicated in a public place, shall be taken before a magistrate, ¿se.; that the magistrate shall “ administer to such person an oath or affirmation, and examine him as to the cause of such intoxication, and ascertain the person or persons who sold or gave the liquor to such person.”
    3. Section 17 does not authorize the magistrate to try the accused yh?’ an “ offence ” under il. His authority to do so is conferred by section 16, or he has none.
    The provisions of section 17 are cumulative, and do not take Bom those already made by section 16. It simply provides that, independent of the trial and unconnected with it, on the preliminary examination, the magistrate shall “administer to such person an oath or affirmation, and examine him as to the cause of such intoxication, and ascertain the person or persons who sold or gave such liquors to such person.” The design of this provision was not to provide the means of, or a method for convicting the accused, but to find evidence against those who may have been selling contrary to law. (3 Park. C. R. 508.) Where a statute gives magistrates the right to hold a preliminary examination of persons accused of crimes, it does not limit the right of the people to institute accusations before the grand jury. (3 Park. C. R. 114, 124-5.) Why should not the converse of the rule hold good as to persons accused, and they be allowed to give bail, unless the statute expressly declares they shall not ? (See 2 Park. 327.)
    (a.) The legislature did not intend in this particular instance to violate the constitution (Constitution of New-York, article 1, § 6; 3 Kern. 443 ; 3 Park. 508) by compelling the accused to be a witness against, or to criminate, himself on the trial. If this is required only on the preliminary examination, it would not mingle with, or affect the merits on the trial, and could not then be given in evidence against him, because procured while under arrest.
    (Z>.) The court ought not to so construe a statute as to deprive a party accused of an “ offence,” affecting his property and liberty, of the right of trial in the ordinary manner, unless the legislature has expressly so provided.
    A new and unprecedented mode of trial ought not to be created by implication. (31 Penn. R. 306 ; 2 Park. 312, 316; 1 Johns. Cases, 28; 1 id. 229; 1 Hill, 130.)
    It is unconstitutional to disfranchise or deprive any member of this state of his “ liberty, rights or privileges, unless the matter be adjudged against him upon trial had according to the course of the common law.” (3 Kern. 394-5, 442-6; 4 Hill, 145 ; 3 Park. 22 ; 2 id. 312 ; 2 Park. 322.)
    4. But to avoid the possibility of doubt, that an “ offence,” under section 17, was to be tried differently from any other under the act (§ 17), the section creating the offence declares that being intoxicated in a public place shall be “ an offence against the provisions of this act,” using substantially the same language as, and evidently intending to expressly bring an “ offence,” under section 17, within the provisions of section 16 as to the method of trial.
    (a.) The word “ offence ” has the same meaning in section 17 it has in section 16.
    “ All through the statute, violations of provisions of the act are termed offences, and it is a primary rule for the interpretation of statutes, that where the same term or expression is used in different parts of the same statute, it shall be deemed to have the same meaning, unless the corúx&vy very plainhj appears to have been the intention of the legislature.” (17 N. Y. R. 519, 520.)
    (&.) It is conceded that, in the construction of statutes, the intention of the legislature is to govern. In seeking for that intention, however, courts are to look at the precise words used, and construe them according to their ordinary sense and meaning, unless it would lead to an absurdity. The intent is to be gathered from the plain language of the statute. (28 Barb. 343 ; Sedg. St. and Const. Law, 295-6; id. 383 ; 7 Hill, 511; 3 Seld. 97 ; id. 209 ; 7 Cranch, 52.)
    And where the statute is express, plain and clear, it leaves no room for construction, and is not to be departed from on consideration of policy or hardship, nor are exceptions to be made or qualifications inserted, “however abstract justice or the particular case may seem to require.” (Sedg. St. and Const. Law, 295, 308, 380, 383; 5 Seld. 594; 3 Seld. 97; 1 Kern. 375-6; id. 601.)
    It is conceded that 2 R. S. 53, § 1 (4th ed.), without making common or habitual “drunkards and tipplers” guilty of any offence, or providing that they may in any manner be punished, does allow justices of the peace to require them to furnish sufficient sureties for good beha.vior. But how does that prove that another statute, which makes it an offence to be once 
      intoxicated in a public place, and prescribes a punishmentfor that effence, was intended to be enforced in the same manner ?
    (c.) The word “ offence ” is used in a criminal sense in all statutes, unless otherwise expressly declared. (2 R. S. 886, § 37, 4th ed.)
    
    
      (d) Every presumption should be made against an intention to give an inferior magistrate an arbitrary discretion, without opportunity of review, to summarily try and convict citizens of an “ offence,” which deprives them of their liberty or property without an opportunity for defence before a jury. (Hurd's Habeas Corpus, 363 ; id. 405; 31 Penn R. 306; 1 Park. C. R. 95-6; Sedg. St. and Const. Law, 313; 2 Park. Cr. R. 312.)
    “ Lawless power is never so dangerous as when exercised by subordinate tribunals under the forms of law.” (13 Johns. 446.)
    It is immaterial what name the legislature have seen fit to give an offence. It cannot alter the right of trial by jury. (2 Park. 318; 14 Barb. 432; 17 How. Pr. 273; 2 Park. 322.)
    (e.) The argument ab inconvenienti cannot avail against the provisions of a statute. (7 Hill, 441; 26 Barb. 380; id. 481.)
    Should the liberty of the citizen be sacrificed to the convenience of the public or its officers ?
    (/) Had the legislature intended to give the justice power to try the accused in a summary manner, they would have so declared, as they have done, relative to proceedings before justices of the supreme court on habeas corpus (2 R. S. 802, § 72, 4th ed.), and to justices of the peace. (2 R. S. 82, § 59 ; 2 R. S. 84, § 72, same edition)
    
    (y.) The legislature has given this construction to the act. (Laws 1857, chap. 769, vol. 2, p. 705.)
    This act provides what offences “ courts of special sessions” shall h ave jurisdiction to try. By section 1, sub. 13, they have jurisdiction to try “ all offences against the laws, relating to excise and the regulations of taverns and groceries.”
    When this chapter was passed there was no law to which it could refer, except the act in question.
    Section 3 of the same act enumerates the cases where “ courts of special sessions have exclusive jurisdiction to hear and determine charges for crimes and offences within their respective counties,” and does not include a case like the present.
    If they have not exclusive jurisdiction, what other tribunal has jurisdiction ? Section 29 of the law in question furnishes the answer: “ It shall be the duty of courts to instruct grand jurors to inquire into all offences against the provisions of this act, and to present all offenders under this act ” (17 N. Y. R. 519), and hence the provision in section 17, that if the offender does not elect to be tried in a court of special sessions, but gives bail, he shall be fined “ ten dollars and costs at the same rate as in courts of special sessions or in other words, that his punishment shall be the same whether he is tried in the one court or the other.
    
    II. The justice had no jurisdiction to try plaintiff.
    1. Section 16 provides that, “ unless such person shall elect to he tried before such magistrate, he shall require a bond to be executed,” &c., or, if that be not given, “ to commit such offender to the county jail until the judgment of the oyer and terminer or sessions, or he be discharged according to law.” The magistrate has no jurisdiction to try and sentence the party accused, unless he elects to be tried before him. (3 Park. Cr. R. 389, 390 ; 2 Park. 327.) This election is a condition precedent to his acquiring jurisdiction to organize a court to try the accused. Before such election he acts not as a court but as an officer, to see that offenders are brought to trial. If the accused does not so elect, he is to require bail, and if that be not given, commit the prisoner. Where a statute authorizes a court to try a question in a certain manner, or on a certain state of facts, it has no jurisdiction to do so on any other state of facts, or in any other manner, even by consent of all parties. (1 Hill, 343; 1 Seld. 383; 7 Abb. Pr. R. 271; 18 New-York Rep. 128.)
    2. If he had jurisdiction, he lost it when defendant tendered bail. “ On making an offer to that effect, which was refused, a court of special sessions could proceed no further.” (People agt. Berberrich, 11 How. 338, Strong, J.; 20 Barb. 236-8, Rockwell, J.)
    
      Louis L. Bundy, district-attorney, for defendant in error,
    stíbmitted the following points:
    I. It cannot be pretended that the right to give bail is given in terms by the act in question, unless it be embraced within section 16.
    1st. That section evidently embraces the different offences of selling under the act in question, such as selling without license, sections 13 and 14; selling to Indians, section 15 ; selling to paupers, section 20; selling on Sundays, section 21. These sections refer to a class of cases, a portion of which have always been triable by a court of sessions or oyer, and those that are new are in terms made misdemeanors.
    2d. The 17th section assumes that the intoxication is to be proved before the drunkard is examined, for he is to be examined as to the cause of “such intoxication,” and again, by this section he is to be fined ten dollars, and “ costs at the same rate as in courts of special sessions, thus repelling the idea that he is to be tried in or by such a court or any other court, only in a summary way.”
    Again, section 16 provides that it “ shall be the duty of sheriffs, &c., to arrest all persons found actually engaged in the commission of any offence in violation of the actand then section 17, as if providing for a class of cases not before provided for, says, it “ shall be the duty of every such oipcer, wherever he shall find any person intoxicated, to arrest him." This provision is entirely unnecessary and unmeaning if being intoxicated is an offence under section 16, for the arrest is there provided for of all persons committing an offence under the act.
    Nor does the fact, that it is declared an “ offence,” conflict with this view, for being subject to criminal punishment would make it an “ offence ” under the general provision of the statute, although not declared in terms to be such by this act. (3 R. S., 5th ed., 990, § 43.)
    It is, therefore, insisted that, by the fair construction of this statute, it contemplates a summary trial and conviction.
    
      II. This view of the statute is in entire harmony with all the antecedent legislation on the subject, and in analogous cases.
    By the Bevised Statutes in reference to vagrants, and among whom are those lodging in taverns, groceries, &c. (2 R. S., 5th ed., 879, § 1), and also in reference to disorderly persons, among whom are classed “ drunkards and tipplers” (2 R. S. 903, § 1), the mode of trial is summary before the justi’ce, and they are not entitled to a trial by jury, and similar statutes have been in force in this state, at least since 1788. (2 Greenl. Laws, 52.)
    The objects to be accomplished by those statutes, and the persons (or a portion of them) to be dealt with, are very similar to those provided for by the 17th section of the act in question, and the constitutionality of those statutes was fully settled by the court of errors in The People agt. Duffey (6 Hill, 75-78).
    Again, the court is to ascertain the intention of the legislature, if possible, and construe the act accordingly. (The People agt. Barton, 6 Cow. 293 ; 5 Wheaton, 76.)
    And, where a particular policy in reference to any class of cases or offences has been pursued for a long time, it requires a clear expression of the legislative will to change it. (Behan agt. The People, 3 Par. Cr. R. 688; per Pratt, Judge.)
    The same terms, substantially, are used in those statutes as the present 17th sectitin, viz.: the person is described as an “ offender,” and the sentence a conviction. (2 R. S. 874, § 3 ; 2 id. 903, § 2.)
    III. It is insisted that Justice Pratt has not given the true construction to the several provisions of this act, in the case of The People agt. Putnam (3 Par. C. R. 386).
    We suppose it was upon the strength of that case, and without an examination of the question, that Justice Campbell granted the discharge in the present case.
    It is conceded in that opinion, that a summary mode of conviction in analogous cases has been in existence for a long time (see page 338), but bases his opinion on the ground that the present license law does not make provision for such a conviction.
   By the court—S. B. Strong, J.

The principal and. only important question in this case is, whether the plaintiff in error, having offered to give such bond as is required by the statute to suppress intemperance, could be coerced into a summary trial for the offence imputed to him before the magistrate.

The 16th section of that statute provides, that it shall be the duty of certain officers, of whom a constable is One, to arrest all persons found actually engaged in the commission of any offence in violation of such act, and forthwith carry the offender before any magistrate of the same city or town, to be dealt with according to the provisions of the act; and that it shall be the duty of such magistrate, on sufficient proof that the alleged offence has been committed, unless the person charged shall elect to be tried before such magistrate, to require a bond, conditioned that such offender will appear and answer the charge at the next term of the court of oyer and terminer, or sessions, to be held in the same county, and abide the order or judgment of such court thereon, or to commit such offender to the county jail until such judgment of said court, or until he be discharged according to law; and the magistrate is required to entertain any complaint of a violation of the act, made by any person under oath, and forthwith to issue a warrant and cause such offender to be brought before him to comply with the provisions of the same section, and to cause such bond, together with all papers and affidavits, with a list of the persons, and residence of the complainant, and witnesses examined before him, to be delivered to the district attorney of the county, whose duty it shall be forthwith to prosecute the same.

The Í7th section of the statute is in the following words: “It shall be the duty of any such officer, whenever he shall find any person intoxicated in any public place, to apprehend such person and take him before some magistrate of the same city or town; and if such magistrate shall, after due examination, deem him too much intoxicated to be examined, or to answer on oath correctly, he shall direct said officer to keep him in some jail, lock-up, or other safe and convenient place, until he shall become sober, and thereupon forthwith to bring him before said magistrate. And whenever any person shall be brought before any magistrate, as provided in this section, it shall be the duty of such magistrate to administer to such person an oath or affirmation, and examine him as to the cause of such intoxication, and to ascertain the person or persons who sold or gave the liquor to such person; such intoxication being hereby declared to be an offence against the provisions of this act, punishable upon conviction by a fine of ten dollars and costs, at the same rate as in courts of special sessions, and imprisonment in the county jail, workhouse, or penitentiary, until paid—not, however, to exceed ten days. It shall be the duty of such officer to arrest, or cause to be arrested, all such persons when so intoxicated, and of the magistrate to entertain such complaint, and make such examination, under the penalty of fifty dollars, with full costs of suit, for any neglect to com¡fiy with the provisions of this section.”

By the 29th section, it is made the duty of courts to instruct grand jurors to inquire into all offences against the provisions of the act, and to present all offenders under it. It is provided in the 22d section, that the penalties imposed by the act, except those provided for by sections 8,15, and 19, shall be sued for and recovered in the name of the Board of Commissioners of Excise. The excepted sections direct, that the penalties therein specified shall be sued for and recovered by other officers or individuals. There can be no doubt but that the offences meant to be included in the provisions of the 16th. and 29th sections of the act arc simply those which are punishable as misdemeanors, otherwise they would be partially nugatory, as the oyer and terminer and sessions have jurisdiction only of criminal cases.

The following acts are expressly declared by the statute to be misdemeanors: Commissioners of excise granting licenses contrary to the provisions of the act (§ 6); licensed persons selling or giving away spirituous liquors or wines to Indians, or to apprentices, or to any minors under the age of eighteen years, without the consent of master, parent, or guardian (§ 15); any person selling or giving to any pauper, or inmate of any almshouse, strong or spirituous liquors or wines (§ 20); licensed persons selling or giving away any intoxicating liquors or wines on Sunday, or any election day, within a quarter of a mile of the place of holding the election (§ 21); any person adulterating imported or other intoxicating liquors, or knowingly importing or selling adulterated liquors or wines (§ 29). Ho other offences against the provisions of the statute are therein expressly mentioned as misdemeanors.

It was decided by this court, however, in the case of Behan agt. The People (3 Park. Cr. R. 686), that vending strong or spirituous liquors or wanes, in quantities less than live gallons at a time, without a license, was a misdemeanor, although it was described in the statute (§ 13) simply as an offence. The learned judge who expressed the opinion of the court in that case said, that in looking over all the provisions of the act, in their general scope and tenor, he could not resist the conviction, that offences against its provisions were designed to be punishable as misdemeanors. He relied much upon the construction which had been given to the old excise law by the la.te supreme court in the case of The People agt. Brown (16 Wend. 561), and The People agt. Sterns (18 Wend. 341), where it was held, that selling the prohibited quantities without license was an offence against the provisions of the act, and, therefore, misdemeanors, and indictable. It is, however, expressly declared in the former statute relating to excise, and the regulation of taverns and groceries (1 R. S. 652, § 28), that all offences against its provisions should be deemed misdemeanors, punishable by fine and imprisonment, whereas, in the existing statute there is no such declaration. Still, this court must have concluded, that, as the general scope of the two statutes was the same, and the legislature must have been influenced by the design to effectuate similar benevolent re-suits, what was expressly declared in the prior statute should be inferred in the latter. Whatever might have been the opinion of any of us, upon this construction of the statute, if the question had been presented as an original one, we are bound to adhere to the decision of this court in the case of Behan agt. The People.

The 16th section of the statute under consideration, when speaking of “ any offence in violation of the act,” must be deemed to include any act which is thereby prohibited, and which is therein declared to be an offence. Indeed, the latter part of the section goes further, and subjects to its provisions any complaint of a violation of the act. Surely a person who is intoxicated in a public place violates the statute, and such intoxication is expressly declared to be an offence against its provisions, and punishable by a fine, and, if that is not paid, by imprisonment. The 16th section includes all offences under the act, either previously or subsequently defined, unless, indeed, there is an express or strongly implied exception. There is clearly no express exception of the case of the inebriate in the 17th section, nor is one strongly, or, I think, at all implied. The direction to arrest the offender, and convey him before the magistrate, is undoubtedly a mere reiteration of what is required in the 16th section ; but it appears to have been repeated for the purpose of engrafting upon it the addi tional duty of examining the inebriate, and detaining him in temporary custody until he shall become sober. There is no provision whatever for a trial in the 17th section, and the inference from the omission is, that the same proceedings must be had for the conviction of the accused, and his punishment, as in other cases under the same statute. Two modes of procedure are indicated: one by a civil action, in the name of the Commissioners of Excise, for the recovery of a penalty (§ 22), and the other by a public prosecution for the offence (§§ 16, 29). There is no provision for an anomalous proceeding, such as is specified in the provisions of the Revised Statutes, relative to beggars, vagrants, and disorderly persons, where the magistrate is authorized to act upon a summary in-. Yestigation or trial. In those cases persons are charged with habitual misconduct, and not with a specific offence. Persons who are found intoxicated in public places may well be considered as disorderly at the time; so may persons when perpetrating almost any crime ; but when publicly arraigned for the offence, they can be summarily tried by the magistrate alone, under the act relative to disorderly persons. Upon a complaint under the act the magistrate can inflict no pecuniary penalty, nor can he punish the inebriate at all, if he proffers sufficient security for his good behavior for one year. Mo great harm can result from the practice of subjecting such offenders (if they may be so called) to a summary trial before the magistrate alone. But our laws (organic as well as statute) exempt persons charged with criminal offences from coercive summary trials without a jury. Our state constitution provides (article 1, § 2) that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate for ever.

Under our statute laws, existing'at the time of the adoption of our present constitution, a justice could hold a court of special sessions, and could try without a jury, if one should not be demanded, or with a jury of six men, if one should be requested, persons charged with certain misdemeanors, who should elect to be thus tried, or who should fail to give the requisite security, to appear at a court of oyer and terminer, or general sessions, where they could not be tried without indictment, nor by any except a common-law jury of twelve men. Such must be the rule, and such must be the rights, of persons charged with crimes or misdemeanors, now. Any one who may proffer the requisite security has the right to have the complaint exhibited against him, for any crime or misdemeanor, examined and passed upon, by a grand jury, before he can be coerced into a trial, and, if indicted, to be tried by a jury of twelve men. The legislature, no doubt, intended to act in compliance with the constitutional organization in framing and adopting the 16th section of the act under •consideration. There is, therefore, a cautious reservation to the accused, of the privilege existing at the time when the constitution was adopted and to which it refers, to take his case to a higher tribunal, and when he complies, or offers to comply, with the condition which entitles him to it, the justice of the peace has no longer jurisdiction to adopt any further procedure upon the charge. The legislature deemed, and justly deemed, many of the practices which it condemned, and endeavored to prohibit, as so derogatory to the character of the accused, that he should have a right to the salutary precautions, customary in criminal cases, before he should be subjected to the penalties and degradations consequent upon a conviction. Neither will the community nor the cause of temperance suffer by the delay. Certainty is more desirable than celerity, in the punishment of offenders. Had the framers of the statute designed that the persons accused of its infraction should have been coerced into a summary trial, before the justice, they would have adopted and enacted some clear and explicit provisions to that effect; and certainly they would not have adopted provisions which, if they have any significance, indicate a contrary intent.

The justice of the supreme court, before whom the plaintiff in error was brought on the habeas corpus, was right in discharging him from imprisonment, and the judgment of the general term, overruling him, should be reversed.

Judgment accordingly.  