
    Farrell vs. Warren.
    A justice ofthe der the^act^f 1824,in amend. «<act for sup. )( ™" a right;’ upon g^al^iew'of offences committed against ^^a^offender into the custody of a constaj^e /or sa*®ou(j issuimr á warrant) until the offender can be tried,
    This was an action for false imprisonment, tried at the Onondaga circuit, before the Hon. Enos T. ThroPp, then one of the circuit judges.
    The plaintiff was ordered into the custody of a constable by the direction of the defendant, a justice of the peace, for keeping a huckster shop within three quarters of a mile of the camp ground, where a methodist religious society were assembled for public worship,  He was conducted to the camp, and put under the preacher’s stand, where he was kept guarded. After hearing testimony, the justice imposed a fine upon him of $20 ; he gave bail for the payment of it, and was discharged. He was arrested at nine in the evening, and discharged about half an hour before midnight.
    It appeared that the plaintiff kept a huckster’s shop in a wood house, where he sold herring, crackers, (Anglice, hard biscuits,) beer and cider. A witness testified that he was at the minister’s stand when it was said, “ go down to the road and see what is going onwhereupon the witness, who acted as public prosecutor, the defendant, who was a justice of the peace, a constable, and another person, proceeded to the plaintiff’s shop, and remained there ten or fifteen minutes, during which time the plaintiff sold cakes, beer and cider to a number of persons. The defendant then addressed the plaintiff, “ I am sorry, Mr. Warren, to be under the necessity of apprehending you for a breach of the law,” and ordered him into the custody of the constable, without issuing any warrant. They then proceeded together to the camp ground, where the defendant reported, “ that they had brought in a huckster, and the subsequent proceedings of imposing a fine, &c. were had. A record of conviction, drawn up by the defendant, was produced, setting forth that on the 1st September, 1827, the plaintiff was convicted before the defendant, (a justice of the peace of the county of Onondaga,) of having on that day kept or opened a huckster’s shop on .certain lands in the town of Pompey, in the said county, within the distance of two miles from a place where a religious society in the town aforesaid was actually assembled for public worship.
    The presiding judge charged the jury, that the act to suppress immorality authorized the defendant to proceed to a summary conviction of the plaintiff, but that the offence whereof the plaintiff was convicted, was not embraced by that 
      ■statute, not being committed in a highway; that the amendment to the act embraced the case, but although it warranted a summary c&nviction, yet it did not in express terms give the power to a justice to arrest or commit an offender to a constable for trial on his view of the offence; that penal statutes are to be construed strictly, and that the liberty of a citizen is not to be taken away or restrained by implication; therefore whether the defendant made the arrest himself or ordered the plaintiff into the custody of the constable on his own view of the offence, without process, if the plaintiff was restrained in his liberty and conducted to the camp as a prisoner by the act or order of the defendant, it was an unjustifiable trespass, for which the plaintiff was entitled to recover. He thereupon left the question of fact to the jury, whether the plaintiff was .so restrained of his liberty, and if they found that he was so restrained, charged them to find for the plaintiff. The defendant excepted to the charge, and the jury found for the plaintiff with #140 damages. A motion was now made to set aside the verdict.
    
      F. G. Jewett, for defendant.
    The defendant being a justice of the peace, on view of the violation of the provisions of the act of 1824, had the same authority to order the plaintiff into custody, that he would have had under the act of 1813. The question of fact which the judge submitted to the jury was not disputed by the defendant. The defendant relied upon the law for his justification, and the question which should have been submitted to the jury, was whether the defendant, on view, ordered the plaintiff into custody.
    The justice (the defendant in this cause) proceeded under the fourth section of the act of 1813. On view of a violation of the act, he ordered the plaintiff into custody, and being brought before him, he obtained jurisdiction of his person and the record of conviction is a complete protection. The act of 1824, by declaring that offenders “ shall be subject to the same penalties, to be sued for, recovered and applied in the same manner as is provided in the fourth section of the act” of 1813, conferred the same powers and authorized the same mode of proceeding designated by the latter act
    
      
      N. P. Randall, for plaintiff.
    The naked fact of keeping a huckster’s shop within the distance of two miles from the place of a religious meéting, without intending or creating any disturbance, is not within the evil intended to be rem- " edied, nor within the meaning of the act. The latter clause of the fourth section of the act of 1813, shews the intention of the legislature, which was to punish licentious and disorderly persons, who interrupted or disturbed the public worship of any religious society. Unless the act complained of is done with the intention to interrupt or disturb, or necessarily must have that effect, there is no offence. There was no noise or disturbance ; there was no complaint made to the justice, but he left the place of worship to seek an opportunity to exercise his authority.
    The act being highly penal, must be strictly, construed. The shop was not in a highway, and therefore not within the provisions of the act of .1813. The act of 1824 prohibits such shop to be kept “ upon any part of any highway, or upon any lands, waters or streams.” The word lands must be understood here in its common or vulgar acceptation, viz. open fields, or woods, or why this particular enumeration. If used in its legal (acceptation, there was no necessity for particularizing highways, waters, and streams, as the latter would be included in the former. A statute must be so construed as that no clause, sentence or word shall be superfluous, void, or insignificant. (1 Show. 108.) The intention of the legislature is to be sought after.- (1 Black. Com. 59, 60.) A thing within the letter is not within the statute, unless it be within the intention of the maker. (Bacon’s Abr. tit. Construction of Statute, 1, 5.) A statute should be so construed, that no man who is innocent be punished or damnified. (1 Inst. 360.) Allowing the act complained of to be within the letter, it is not within the intent of the legislature.
    The act of 1824, gives no authority to the magistrate to order an offender into custody; it directs the penalties to be sued for, recovered and applied, in the same manner as is directed by the act of 1813. The right to commit upon view is not given in terms, nor necessarily implied. Where a statute of this kind admits of two constructions; that should be given to it, which is consonant to the ordinary modes of proceeding and which secures the trial by jury. (3 Caines, 259.)
    
      
       By the fourth section of the act far suppressing immorality, (2 R. L. 194, passed March 5, 1813,) it is enacted “that if any person or persons whatsoever, either on the first day of the week called Sunday, or on any other day or timo, shall wilfully and of purpose disquiet, interrupt or disturb any assembly of people met for religious woiship, by making a noise, or by rude and indecent behaviour, or profane discourse, either within their place of worship or out of it, so near as to disturb the order and solemnity of the meeting, or exhibit any shows or plays, or promote or aid any horse-racing or gaming of any description, or expose to sale any ardent or distilled liquors whatever, or keep or open any huckster shop upon any part of any highway within the distance of one mile from the place where any such religious society shall be actually assembled for public worship, or shall, &c. ” and be thereof legally convicted, he or they shall for every offence, forfeit for the use of the poor $25 ‘, and if the fine is not immediately paid, or security given for the payment thereof within 20 days, the person convicted may be committed to the common jail for a term not exceeding 30 days. The statute then proceeds as follows : “ And that all judges, mayors, recorders, aldermen and justices of the peace, upon the view of any person or persons offending as aforesaid, are hereby authorized to order the said offender or offenders into the custody of any officer herein after named, or any official member of the church or society so as aforesaid assembled, for safe keeping, until he shall be let to bail, or a trial for such offence can be had according to law.” By the next clause it is made the duty of all sheriffs, constables, &c. who shall or may be present at the public worship of any religious society interrupted or disturbed in manner aforesaid, to apprehend any and every such persons, &c.
      In 1824, (Statutes, vol. 6, 374, c.) an act to amend, the act for suppressing immorality was passed, which, after enumerating the same offences specified in the original act proceeds as follows : “or keep or open any huckster shop upon any part of any highway, or upon any lands, waters or streams within the distance of two miles from the place where any such religious society shall be actually assembled for public worship, tire person or persons. so offending shall be subject to the same penalties, and tó be sued for, recovered and applied in the same manner as is provided in the fourth section of the act entitled an act for suppressing immorality.” A proviso is added excepting from the operation of the act, persons licensed before the- appointment of such meeting to keep inns, stores and groceries, who sell arde(nt or distilled liquors at his or their house, store, or other building where they usually reside or carry-on business.
    
   By the Court,

Sutherland, J.

The only question arising upon the decision of the judge before whom this cause was tried, and upon his charge to the jury, is, whether the defendant, who is admitted to have been a justice of the peace, had a right, upon his own personal view of the offence committed by the plaintiff, to order him into the custody of a constable for safe keeping, (without issuing a warrant,) until he could be tried. I am clearly of opinion that he had such authority.

It is conceded that the fourth section of the act for suppressing immorality, (2 R. L. 193,) authorizes an arrest in that manner. The terms are express: “ That all judges, justices of the peace, &c. upon the view of any person or persons offending as aforesaid, are hereby authorized to order such offender or offenders into the custody of any officer, &c. for safe keeping, until he shall be let to bail, or a trial for such offence can be had according to law.” The offence for which the plaintiff was arrested, and of which he was convicted, was created by the act of November 25, 1824, (Statutes, vol. 6, 374 c,) which was merely amendatory of the original act of 1813. The act of 1813 made it an offence to keep a huckster’s shop, &c. upon any part of any highway within one mile from the place where any religious society might be assembled for public worship. The act of 1824 enacts, That if any person or persons, &c. shall keep or open any huckster’s shop, See. upon any part of any highway, or upon any lands, waters or streams within the distance of two miles from the place where such religious society shall be actually assembled for public worship, the person or persons so offending shall be subject to the same penalties, and to be sued for, recovered and applied in t! te same manner as is provided in the fourth section of the act entitled an act for suppressing immorality.” The legislature most clearly intended to authorize the same mode of proceeding throughout for the punishment of offenders against this act, as was authorized by the fourth section of the act of 1813. It purports to be an amendatory act merely ; it enlarges the circumference ™ which the keeping of huckster’s shops is prohibited, and it is unreasonable to suppose that the legislature, at the same time that they extended the principles of the act of 1813, intended to restrict the means of punishment or conviction provided by that act. Nothing but the most explicit and unequivocal language would authorize such a conclusion. Persons offending against the act of 1824 shall be subject to the same penalties, and to be sued for, recovered and applied in the same manner as is provided in the fourth section of the apt of 1813. One means of recovering the penalties authorized by the 4th section of the act of 1813, is for the justice of the peace, upon the view of any person offending, &c. to order him into the custody of an officer for safe keeping, until he shall be let to bail, or a trial for such offence shall be had according to law. That was the course pursued in this case, and I think it was fully authorized by the act.

This being the only point presented by the charge of the judge, to which the defendant excepted, it is unnecessary to express any opinion upon the merits of the case.

New trial granted.  