
    County Court, Onondaga County,
    April, 1897.
    Reported. 20 Misc. 149.
    The People ex rel. John Shortell v. John D. Markell.
    Criminal law—Public intoxication—Liquor Tax Law.
    The offense of intoxication in a public place, in violation of section 40 of the Liquor Tax Law (Laws 1896, chap. 112), is a misdemeanor, of which a Court of Special Sessions has jurisdiction.
    Return of a Tiabeas corpus to inquire as to the cause of the detention of the relator.
    The relator was, on the 21st of December, 1896, tried in the Police Court of the city of Syracuse, charged with being a disorderly person, having been intoxicated in a public place or street, to wit, Water street in said city of Syracuse, in violation of section 40, chapter 112 of the Excise Law of 1896, and- having pleaded guilty was convicted and adjudged that he be imprisoned in the Onondaga County Penitentiary for six months. A return was made by the defendant, the superintendent of the Onondaga County Penitentiary, stating the above facts.
    M. L. McCarthy, for the relator.
    George W. Standen, Assistant District Attorney, for defendant.
   Ross, J.

It is claimed by the relator that the conviction by the Court of Special Sessions was unauthorized and that no jurisdiction is given to said court by the provisions of the act in question. Section 40 reads as follows: “Intoxication in a public place. Any person intoxicated in a public place is a disorderly person and may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars, or by imprisonment not exceeding six months or by both such fine and imprisonment. The purchase or procurement of liquor for any person to whom it is forbidden to sell liquor under section 30 of this act, is a misdemeanor, punishable upon conviction, by a fine of not less than ten dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment.”

It has recently been held in the Sixth Judicial District in the case of People ex rel. McCarthy v. Webster (unreported and no opinion), by Mr. Justice Walter Lloyd Smith, that a person charged with public intoxication under section 40 is a disorderly person subject to summary care by a magistrate pursuant to the provisions of part 6, title 7, of the Code of Criminal Procedure, sections 899 to 913, inclusive, and that a conviction of a Court of Special Sessions and a commitment to a penitentiary is unauthorized. A decision of that learned justice is entitled to great weight but the decision referred to was rendered while the justice was engaged at Circuit and disposed of as usually those proceedings are, hastily, and without an opportunity for careful examination. The use of the words “disorderly person'1 in the first clause of section 40, and the omission of the words specifically declaring the offense in question to be a misdemeanor, coupled with the declaration that a violation of the acts forbidden in the second sentence of the section are misdemeanors, would lend much force to the position taken hy the learned justice. But see opinion of Mr. Justice Pratt in Behan v. People, 17 N. Y. 516, hereafter inserted. Also section 42 of the act in question specifically provides that a viola tion of any provision of the a.ct for which no punishment Is otherwise provided is a misdemeanor.

The provisions of title 7, above mentioned, in brief defined nine classes of persons who are termed disorderly persons. The first and second subdivisions relate to persons who neglect to provide for their families. The other persons classified are fortune tellers, jugglers, habitual criminals and so forth, and upon a conviction by a magistrate provision is made that the defendant may give security in those cases where he is charged with neglect to support his family that they will not become a charge, for one year, upon the public; and in the other cases for his good behavior during the space of one year.

The Legislature may add new offenses of the same grade or class as those previously constituting a disorderly person, but they can not by declaring an offense which at common law is indictable to be punished summarily in the provisions relating to disorderly persons. 1 Colby’s Criminal Law, 138.

But assuming that such authority exists and that the Legislature had the right to deprive in this manner a person charged with intoxication in a public place of the right to trial by a jury, such a radical change in the method of disposing of this class of offenses can not be inferred and such intent must be manifest. The attempt to incorporate the provisions of the first sentence of section 40 of chapter 112, Laws of 1896, in or to add the same to title 7, Code Criminal Procedure, is most incongruous and unsatisfactory. The provisions of section 40 authorize an arrest without warrant, while the provisions of section 900 require both a warrant and complaint. The persons classed as disorderly persons are all cases of threatened rather than consummated misconduct, as was said in the case of Hill v. People, 20 N. Y. 368: “In those cases, persons are charged with habitual misconduct, and not with a specific offense.” And a provision creating an additional class of disorderly persons without making any change from the former method of punishment is useless. If a person convicted of being intoxicated in a public place can be arrested without a complaint and without a warrant as heretofore, and punished in the same manner as before, to simply term him a disorderly person has no meaning.

Again the silence of the statute as to any method of procedure relating to this class of persons, would seem to be very strong evidence that it was not intended. If it was intended to remove these offenders from a classification with those who are charged with the actual commission of crime and treat public intoxication, not as a crime consummated, but as an act to be prevented, which is contrary to the actual fact, the entire details of such a change would not be left to inference. But beyond all, such an interpretation is contrary to all preceding legislation existing in this State for nearly a century. And in arriving at a question of legislative intent, the previous legislation upon the same subject is not only important, but a change of so radical a nature as that perhaps con not be presumed, as was said by Mr. Judge Pratt in the Behan case: “It has been the policy of the State, at least since the year 1801, if not before, to make offenses against the excise laws punishable by indictment * * *. The presumption, therefore, is against the design on the part of the Legislature, in the restoration of the license laws, to change a policy so long adhered to. -It should require a clear expression of the legislative will to that effect to justify the courts in holding that offenses against those laws are no longer indictable.” Hill v. People, 20 N. Y. 363. It would require a great deal of hardihood to judicially determine that after an almost uniform course of legislation in this State for nearly a century declaring that public intoxication is a crime and providing for its punishment, that the Legislature of 1896 intended to omit or did omit any provision for the punish ment of this crime, this most common of all crimes. Such an interpretation would leave the public unprotected in this regard, not only by its omission from the act in question, which was designed as a uniform and complete act upon the subject to which it relates, but by the language of section 44 repeals all special or local laws in conflict with its provisions, which would at least render it doubtful whether the provisions of the various citj charters in relation to this subject would afford any protection and in those localities unaffected by local or special law§ there would be no protection whatever.

The offense in question is not only not termed a misdemeanor, but the offender is called a “disorderly person” and the punishment is prescribed. If no punishment were fixed it would seem to be ipcluded in the provisions of section 42, which provides that any wilful violation of a provision of this act for which no punishment or penalty is prescribed shall be a misdemeanor. Mr. Judge Folger, in the case of Foote v. People, 56 N. Y. 330 and 331, said of the act of 1857: “We find the statute throughout declaring certain acts to be offenses; often giving to them no place in the gradation of crime and affixing to them no punishment usually inflicted upon a criminal offender; and again, ranking others of them as misdemeanors and specifying the punishment, or specifying the punishment with no nomination of the grade of the offense.”

Take section 13 of the act of 1857 as an illustration of the class last named by the learned judge: “Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offense.” A violation of this section was held to be a misdemeanor in the Behan case, in which Mr. Judge Pratt, on page 520, used the following language: “The only reasons worthy of consideration which have been suggested, in opposition to the views expressed above, are based upon the fact that the act itself declares some three or four of the violations of its provisions misdemeanors. It is insisted that the maxim, ‘eccpressio unius est exclusio alterius/ in its legal application to this statute, would exclude the assumption that any other offenses were designed to be deemed misdemeanors. In a statute which appears to have been carefully drawn up, and all its provisions carefully considered, I should be inclined to give great force to that maxim; but the statute under consideration appears upon its face to have been very carelessly framed, and to have been adopted without a very careful consideration of its provisions. In such case, it would not be safe to give that maxim much force. It would be much safer to look at the general scope and purpose of the act, and to search there for an expression of the legislative intention; and in looking over all the provisions of the act, in their general scope and tenor, I cannot resist the conviction that offenses against its provisions were designed to be punishable as misdemeanors.”

I think the Behan case is in point. The cases are similar in that there is no nomination of the crime unless the words “disorderly person” is such a nomination. Also, in the fact that the punishment is specified. The words “disorderly person” are, I believe, merely descriptive, as was said by Mr. Judge Strong, in Hill v. People, 20 N. Y. 368: “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 offense they cannot be summarily tried by the magistrate alone, under the act relative to disorderly persons.” And I think the words in question are to be interpreted the same as if the words “is a criminal” were inserted.

The act is forbidden and punishment is prescribed. Section 3 of the Penal Code defines a crime: “A crime is an act or omission forbidden by law and punishable upon conviction by

“1. Death.
“2. Imprisonment.
“3. Fine.” * * *
Section 4 provides that a crime is either,
“1. A felony, or
“2. A misdemeanor.”

Section 5. “A felony is a crime which is or' may be punishable by either,

“1. Death, or
“2. Imprisonment in a State prison.” .

Section 6. “Any other crime is a misdemeanor.” It would, therefore, seem that if this act is forbidden by law, that by the process of elimination it is necessarily a misdemeanor.

It was held in the case of The People ex rel. Kopp v. French, 102 N. Y. 583, that the offense of intoxication created by the Excise Law of 1857 (Chap. 628, § 17) is a crime. If the charge of public intoxication is a misdemeanor, the police justice sitting as a police court had jurisdiction and a conviction was authorized. State ' Const., art. 6, § 23; Code Crim. Pro. §§56 and 74; Penal Code, § 725, subd. 3; charter of the City of Syracuse, §§ 52, 53.

The writ dismissed and relator remande^.

As the term of imprisonment of the relator will expire before he can have this decision reviewed by the Appellate Division, a stay is granted upon the relator’s giving an undertaking in the sum of $300. But if an appeal is not taken within three days from the entry of an order hereon, or the relator does not serve his case upon the district attorney within twenty days thereafter, or does not argue or submit the appeal at the June term of the Appellate Division, then upon his default in any of these particulars, the stay herein will be vacated without notice.

Ordered accordingly.  