
    The People ex rel. John R. Fellows, District Attorney, App’lt, v. Edward Hogan, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Criminal law—Laws 1888, chap. 181—Jurisdiction op magistrate.
    The jurisdiction of the magistrate under chap. 181, Laws 1888, declaring it unlawful to have or use bottles, etc., a description of which has been published as required by the act, is not exclusive, but a double jurisdiction and a double remedy is given by the act.
    2. Same.
    The mandatory provisions of § 4, chap. 181, Laws 1888, apply only where the magistrate takes jurisdiction under its summary provisions, and do not prevent him from sending the case to the sessions for trial.
    Appeal from judgment of supreme court, general term, first department, affirming order of special term denying writ of mandamus.
    
    
      Wm. Travers Jerome, for app’lt; Oourtland V. Anable,. for resp’t.
    
      
       Affirming 29 N Y. State Rep., 110.
    
   Finch, J.

We are entirely satisfied with the opinion of Yan Brunt, J., rendered in this casé at the general term. It leaves nothing to be added beyond some consideration of the criticisms upon it which have been made on behalf of the appellant.

To the argument that a double jurisdiction, and so a double remedy, is given by the act of 1887, as amended in 1888, chap. 181; that one jurisdiction flows from the provision of § 2, which makes the offense a misdemeanor, and the other from the language of § 4, which authorizes the magistrate issuing the search warrant to try in a summary manner the alleged offender; and that to hold the latter to be exclusive would leave it in the option of the magistrate to prevent any remedy whatever by declining to bring the accused before him, which the act gives him the right to do in the exercise of his discretion; to this argument the learned district attorney makes two answers. He suggests that the discretion of the magistrate, indicated by the word “may," is not an arbitrary, but a judicial discretion, which may to some extent be controlled; and then that, conceding the double jurisdiction of the courts of sessions and bf the magistrate, it is at least concurrent, and the one first exercised becomes exclusive, and that of the magistrate was so exercised in the present case, and, therefore, should have been pursued to a judgment either of acquittal or conviction.

It may be that the discretion of the magistrate who has issued a search warrant to bring before him the person in whose possession the stamped syphons were found, or to refuse to do so, is not arbitrary, but judicial, and that he might be compelled to act in a proper case, but that fact, giving it all possible force, would still fail to answer the inquiry why, if the one remedy was meant to be exclusive, the statute should have carefully provided another by declaring the offence to be a misdemeanor, and why the one sole remedy permitted should be confided at all to the magistrate’s discretion in respect to the arrest and examination of the offender. It is clearly the better interpretation that two remedies were effectively given, and that the first was not provided merely to be at once taken away by the existence and terms of the second.

But upon that construction it is still argued that the magistrate took jurisdiction under § 4, and so ivas bound to proceed with the summary remedy. I think that contention is not warranted by the facts. The affidavit presented to the magistrate showed that certain marked syphons had been stolen and were in defendant’s possession. There was enough without the aid of the statute to authorize the issue of a search warrant, which was the first step taken by the magistrate. That act was, therefore, ambiguous and could be referred to his jurisdiction under the Criminal Code or under the special statute in question. Upon the recovery of the property the possessor was arrested and brought before him. That, again, was an act of the magistrate which he might do by force of the provisions of the code or those of the statute of 1887 as amended. We are compelled to look further to discover which jurisdiction he exercised, and then we see that the precise question was presented to his mind, and thereupon he declined to act under the provisions of § 4, and did act under those of § 2 and the provisions of the code. I think, therefore, that neither answer to the general term opinion is sound, and that the mandatory provisions of § 4 apply only where the magistrate takes jurisdiction under its summary provisions, and do not prevent him from sending the case to the sessions for trial. It thus becomes needless to consider the constitutional question, as to which we express no opinion.

The order denying a writ of mandamus should be affirmed.

All concur, except Huger, Ch. J., not voting.  