
    The People of the State of New York, Respondent, v. Alexander Meakim et al., Appellants.
    Upon a motion in arrest of judgment in a criminal action, the only objecjections which the defendant may take are to the jurisdiction of the court over the subject of the indictment, and that the facts stated do not constitute a crime. (Code Crim. Pro. §§ 331, 467.) ■
    Where public officers are clothed by statute with jurisdiction to hear complaints and take evidence with a view to some action in which individuals or the public are interested, they are bound to make a determination, and a neglect to do so is a violation of a duty imposed by law.
    An indictment under the provision of the Penal Code (§ 117), declaring that a public officer, “upon whom any duty is enjoined by law, who willfully neglects to perform that duty, is guilty of a misdemeanor,” charged in substance that in March, 1889, a license to sell strong and spirituous liquors, etc.; for one year thereafter, was issued to one A. by the .board of excise of the city and county of New York; that a complaint was duly made in writing to defendants as such commissioners that A., upon election day, carried on the business of selling such liquors within one-fourth of a mile of á polling place; that A. was summoned to appear, and on February 18, 1890, a hearing was had before said commissioners, evidence taken and the case finally submitted; that instead of deciding the case within a reasonable time, as it was their duty, defendants willfully neglected and intentionally omitted to per form this duty until after said license expired. Held, that the facts alleged constitutéd an unlawful neglect to perform a duty imposed upon defendants by the “Act regulating the sale of intoxicating liquors ’’ (§ 8, chap. 175, Laws of 1870, as amended by chap. 549, Laws of 1873), .and so, that the indictment charged a misdemeanor under said provision.
    On motion for arrest of judgment, it was claimed by defendants that they were not liable to indictment under said provision, because of the exception therein of “casesof official acts and omissions, the prevention or punishment of which is otherwise specially provided for.” Held, untenable; that the case did not come within the exception, as a punishment for the crime alleged was not otherwise specially provided for.
    The removal of commissioners of excise for neglect of duty, as provided for by the New York Consolidation Act (§ 109, chap. 410, Laws of 1882), is not a punishment within the meaning of said provision.
    A removal of a public officer is not a punishment for a crime, unless it is a removal in consequence of a conviction, and a determination in a civil proceeding, removing an officer for neglect or malfeasance in office, is not a conviction.
    The provision of the Code of Civil Procedure (§ 2090), providing that where a peremptory mandamus is awarded commanding a public officer or body to perform a public duty imposed by statute, if it appeal’s that the officer, or a member of the body, has, without just excuse, refused or neglected to perform such duty, the court may, aside from awarding damages and costs, impose a fine, payment of which will bar an action for a penalty, is not a punishment within the meaning of said provision of the Penal Code.
    
      It seems, if a fine so imposed could be regarded as a punishment for a crime, it is not exclusive, and as no such proceeding as there provided for had been instituted, no defense to the indictment could be based upon the provision.
    
      It seems, also, the words of said provision, “ otherwise specially provided for,” has reference to some provision of law specially prescribing the punishment for the particular offense charged.
    
      It seems, also, that a public officer, offending by a neglect to perform his public duties, may be proceeded against and punished both under said provision of the Penal Code and that of the Code of Civil Procedure.
    Provision may be made by statute for the recovery in a civil action of a penalty and for an indictment against the party for the same offense, and the recovery of the penalty does not bar the criminal punishment.
    
      People ex rel. Garbutt v. R. & S. L. R. R. Co. (96 N. Y. 294), distinguished and explained.
    Reported below, 61 Hun, 327.
    (Argued April 11, 1892;
    decided April 26, 1892.)
    Appeal from order of the General Term of the Supreme Court in the first judicial department, made October 16,1891, which reversed an order of the Oyer and Terminer, which arrested judgment on a verdict in favor of defendants directed by the court.
    The defendants were indicted under section 117 of the Penal Code which provides as follows: “A public officer, or person holding a public trust or employment, upon whom any ‘duty is enjoined by law, who willfully neglects to perform the duty, is guilty of a misdemeanor. This and the preceding section do not apply to cases of official acts or omissions, the prevention or punishment of which is otherwise specially pro-, vided by statute.” The indictment alleges that on the 29th day of March, 1889, at the city of New York, a license in due form of law, to sell strong and spirituous liquors, ale, wine and beer, to be drunk on the premises there situate, was duly granted- and issued to Henry Ahrens by tile board of excise of the city and county of New York, which license was in full force and effect for one year thereafter; that on the 6th day of January, 1890, the defendants were commissioners of excise for the city and county of New York; that on that date one Welling, a resident of the city, duly made a complaint in -writing to the defendants as such commissioners that Ahrens carried on the business of selling intoxicating liquors on election day, November 5, 1889, within one-fourth of a mile of the polling place, in violation of law; that on the thirteenth day of January, thereafter, the defendants, as such commissioners, summoned Ahrens before them; that in pursuance of such summons he appeared before them on the eighteenth day of February; that"on that day there was a hearing and inquiry upon and into the allegations and charges, and evidence was taken and the case finally submitted for their action and decision; that it was their duty to act upon and decide the complaint and the questions arising thereon within a reasonable time; that nevertheless they, as such commissioners, unlawfully, willfully neglected and omitted to perform their duty and act upon and decide the complaint and the questions arising thereon within a reasonable time, but on the contrary, for an unreasonable time thereafter, and until the finding o f the indictment, unreasonably and designedly failed and intentionally omitted to decide the complaint and the questions arising thereupon, by reason whereof the license granted to Ahrens expired pending and without such action, determination and decision, against the form óf the statute in such case made and provided. The defendants were arraigned upon the indictment and interposed a plea of former acquittal of the crime charged against them. Upon the issue formed by this plea the case was brought to trial, and under the direction of the court the jury found in favor of the plaintiffs. Thereupon the defendants made a motion in arrest of judgment upon the verdict. That motion was denied, and from the order denying the same the defendants appealed to the General Term and from affirmance there to this court.
    Further facts are stated in the opinion
    
      George F. Dan forth for appellants.
    The court had no jurisdiction to inflict a punishment upon the defendants. (Penal Code, §§ 3, 117; Laws of 1857, chap. 628; Laws of 1870, chap. 175; Laws of 1873, chap. 549; Laws of 1882, chap. 410, § 109; Id. chap. 145, § 109; Laws of 1875, chap. 175, § 2; Laws of 1879, chap. 145, § 2; 2 R. S. chap. 1, p. 696, § 38 ; Id. 702, § 32; People v. Schiellen, 95 N. Y. 124; People v. Meakim, 123 id. 660; People ex rel. v. R. & S. L. R. R. Co., 76 id. 294; Code Civ. Pro. §§ 2090, 3015; 2 R. S. 587, § 60.) The facts stated in the indictment do not constitute a crime. (Laws of 1870, chap. 175, § 8; Laws of 1873, chap. 549, § 4; Laws of 1857, chap. 628, §§ 5, 21; Laws of 1873, chap. 549, § 5; People v. Lowndes, 42 N. Y. 360; Laws of 1870, chap. 175, § 8; Laws of 1873, chap. 549, §4; People ex rel. v. Leonard, 74 N. Y. 447.) The plea of former acquittal should have been sustained. (Const. N. Y. art. 1, § 6; Code Crim. Pro. §§ 388, 400, 402, 410.) FTo power is given the court to interrupt the progress of a criminal trial, direct a verdict for variance and discharge the jury. (Code Crim. Pro. § 452.) The defendants were in jeopardy from the time the jury were impannelled and charged with the defendants on the first indictment, and they should now, by reason of the proceedings then had, have the advantage of a general acquittal upon the merits. (Cooley on Const. Lim. chap. 10, 326, 327; Bishop on Crim. Law, §§ 1013-1019; Commonwealth v. Heart, 149 Mass. 7; People v. Klock, 2 Park. Crim. Rep. 676; People v. Barrell, 2 Caines, 304; United States v. Shoemaker, 2 McLean, 114; State v. Connor, 5 Cold. 311.)
    
      Henry B. B. Stapler for respondent.
    Defendants’ contention is that, having gone to trial upon the previous indictment and having been acquitted, that they cannot be again tried for the same offense. It is submitted that this contention is not well founded. (Code Crim. Pro. § 340; People v. Barrett, 2 Caines, 304; 1 Johns. 65 ; People v. Olcott, 2 Johns. Cas. 301; People v. Casborus, 13 Johns. 351; People v. Goodwin, 18 id. 187; Burns v. People, 1 Park. Cr. Rep. 182; Klock v. People, 2 id. 676; Grant v. People, 4 id. 527; King v. People, 5 Hun, 290; Croft v. People, 15 id. 484; Shepherd v. People, 25 N. Y. 406; Hartung v. People, 26 id. 179 ; Carter v. People, 1 Abb. Ct. App. Dec. 305 ; 38 How. Pr. 91; People v. Palmer, 109 N. Y. 416; Code Crim. Pro. § 341; Sedg. on Stat. Const. 412; Stuart v. Laird, 1 Cranch, 299 ; Moers v. City of Reading, 21 Penn. St. 188; Norris v. Clymer, 2 id. 277; People v. Green, 2 Wend. 266; Contant v. People, 11 id. 511; 1 Bish. Crim. Law, §§ 998, 1000; U. S. v. Perez, 9 Wheat. 579; Gerard v. People, 4 Ill. 364.) The facts stated in the indictment state a crime. (Penal Code, § 117; People v. Norton, 7 Barb. 477; People v. Bedell, 2 Hill, 196; People v. Brooks, 1 Den. 457; Laws of 1873, chap. 549, § 8; People ex rel. v. Meakim, 123 N. Y. 660 ; People ex rel. v. Daly, 37 Hun, 461; People ex rel. v. Wright, 3 id. 309.) The further contention is understood to be made by the defendants that they are protected from criminal liability for the alleged omission of duty complained of on the ground that the duty, a failure to perform which is alleged against them, was a judicial duty, and that they cannot be charged criminally for a failure to perform such duty, unless it be alleged that such neglect was with a corrupt and evil motive and intent. This is untenable. (Wilson v. Mayor, etc., 1 Den. 595; People v. Norton, 7 Barb. 481; People v. Jones, 54 id. 311; People v. Calhoun, 3 Wend. 420; Russell on Crimes, 208; Rex v. Holland, 5 Johns. 607; Gardner v. People, 62 N. Y. 304; People v. Brooks, 1 Den. 457.) The appeal should be dismissed. (Code Crim. Pro. § 519.) It is contended that the Court of Oyer and Terminer had no jurisdiction to try the crime charged in the indictment against these defendants, viz., neglect of duty, because the state, as argued, has specially provided for its punishment otherwise, viz., by removal from office by the governor. It is submitted that this contention is erroneous. (Penal Code, § 3; Blaufus v. People, 69 N. Y. 107.)
   Earl, Ch. J.

Upon a motion in arrest of judgment, the only objections which a defendant can take are to the jurisdiction of the court over the subject of the indictment, and that the facts stated do not constitute a crime. (Code of Cr. Pro. §§ 331, 467; People v. Buddensieck, 103 N. Y. 487.) It cannot be questioned that the court had jurisdiction of the subject of the indictment, and, therefore, the only question which needs our attention is whether the facts alleged constitute a crime.

It is provided in section 8 of chapter 549 of .the Laws of 1873, which amends prior acts, as follows:

“ The board of excise of any city, town or village, may at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed as aforesaid; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts hereby amended, they shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary, to enter upon the premises and take possession of and cancel such license. Upon an inquiry, the said board, or the party complained of, may summon and the said board may compel the attendance of witnesses before them and examine them under oath.”

The indictment against the defendants was for unlawfully neglecting to perform their duty upon the complaint made to them under this section. The alleged violation of the Excise Law by Ahrens was on November 5, 1889. The complaint to the defendants was made on the 8th day of January, 1890. The hearing upon the complaint was on the 18th day of February, 1890, when the case was finally submitted to them. It was then clearly their duty to decide the matter thus submitted. It is not expressly provided in the statute that they shall proceed and make a determination of the matter within any particular time; and indeed there is no express provision that they shall make any determination whatever. But that they shall is necessarily implied in the statute, and what is necessarily implied is just as much a part of the statute as if it were specially written therein. They were bound to receive the complaint and entertain it, and to summon the person licensed. They had authority to summon witnesses and hear evidence, and if they became satisfied of a violation of the law by the person summoned, then they were bound to revoke, cancel and annul his license. If they could, after entertaining the ■complaint and hearing the evidence, entirely omit to make any decision, they could always frustrate the law with impunity. "Where public officers are clothed with jurisdiction to hear ■complaints and take evidence with a view to some action in which individuals or the public are interested, they are from the nature of the case bound to make a determination; and if they do not make it they violate the duty imposed upon them by law. Here the ease was finally submitted to the commissioners more than a year before the indictment was found, and they made no determination thereon, permitting Ahren’s license to expire by its own limitation. " That it is a public duty imposed by the statute upon commissioners of excise in such a case to make, a determination and decision, was expressly decided by us in People ex rel. Welling v. These Defendants (123 N. Y. 660), affirming the same case reported in 56 Hun, $26.

The learned counsel for the defendants contends that they were not liable to indictment under section 117 of the Penal Code, by reason of the provision therein contained that that and the preceding- section do not apply to cases of official acts and omissions, the prevention or punishment of which is otherwise specially provided for by statute; ” and he claims that the prevention or punishment of the alleged offense of the defendants is otherwise provided for. We will notice separately the grounds upon which he bases this claim.

•In section 109 of the Hew York Consolidation Act (Laws of 1882), it is provided that the commissioners of excise shall “ be removed for any neglect or malfeasance in office in the same manner as provided by law for the removal of sheriffs.” His argument is that the removal provided for by this section is a punishment and that, therefore, the neglect of official duty charged to the defendants can be thus punished. The question is whether the removal of the commissioners of excise under that provision is a punishment within the meaning of section 117 of the Penal Code, and we are clearly of opinion that it is not. It is true that it is provided in section 3 of the Penal Code that a crime is an act or omission prohibited by law and punishable upon conviction by death or imprisonment or fine, or “ removal from office,” etc. But these are punishments imposed only after a conviction for a crime; and there are a number of cases specified in the Penal Code where removal from office follows a conviction of a public officer for a crime. (§§ 42, 45, 53, 54, 72, 707 and 708.) Section 707 contains a general provision that a sentence to a state prison for any term less than life, forfeits all the public offices held by the person sentenced. It is provided in section one of article six of the Constitution that a public officer impeached shall be removed from office; but it is further provided that the party impeached is still liable to indictment and punishment according to law, thus showing a distinction between a mere removal from office and a punishment for an offense on account of which the removal was made. The simple removal of an officer from office is not a punishment for crime unless it is a removal in consequence of a conviction for a crime. It cannot be said that a determination made in a civil proceeding to remove a public officer for neglect or malfeasance in office is in any proper sense a conviction of such officer of a crime. A"or can it be said that the provision for removal from office contained in section 109 is a provision in any proper sense for the punishment of the officer removed. His removal simply deprives him of the office which he is unworthy to hold, and he may be removed and thereafter punished for any malfeasance or criminal violation of the law committed while in office. It would be against the policy of our laws, as shown by numerous .acts of the legislature, that a public officer guilty of a misdemeanor in office, should suffer only by removal from his office; .•and a legislative intent requiring such a result should be found expressed in very clear and precise language.

But a further claim is made under the same clause of section. 117 that other provision for the punishment of these defendants for the crime charged against them is found in section 2090 of the Code of Civil Procedure, in which it is provided that “ where a final order awards a peremptory mandamus directed to a public officer, board or other body, commanding him or them to perform a public duty enjoined upon him or them by special provision of law, if it appears to the court that the officer, or one or more members of the board or body have, without just excuse, refused or neglected to perform the •duty so enjoined, the court, besides awarding to the relator his damages and costs, as prescribed in this article, may, in the same order, impose a fine, not exceeding $250, upon the officer, or upon each member of the board wild has so refused or neglected. The fine, when collected, must be paid into the treasury of the state, and the payment thereof bars any action for a penalty incurred by the person so fined by reason of his ■ refusal or neglect to perform the dnty so enjoined.” It will be observed that special provision is made as to the effect of the imposition and payment of the fine, to wit: That it shall bar any other action for a penalty, not any other punishment for crime, nor any indictment for the crime. Under that section there is no conviction for a crime, and probably there could not be without violating the constitutional rights of a public officer. It is exclusively a civil procedure, a civil remedy for a refusal or neglect to perform a public duty imposed upon a public officer. He cannot be imprisoned or .sentenced under that section, and none of the consequences follow from the imposition of a fine there imposed which may follow a conviction for a crime. But even if the fine imposed under that section could be regarded as a punishment for a crime, the proceeding under that section is not exclusive. The fine is only imposed as incidental to the civil remedy, and if it be assumed that a mandamus could have been obtained against the defendants on behalf of the people to compel them to make a determination upon the complaint made to them, and that they could have been fined in that proceeding, and that if such a proceeding had been instituted and they had been fined and had paid the fine, those proceedings could have been set up as a bar to this indictment, it is a sufficient answer to say that no such proceeding was instituted, and that, therefore, these defendants can base no defense to this indictment upon that section.

Still further, the prevention or punishment contemplated in section 117 must be otherwise specially provided by statute.” Some force must be given to the word specially.” It is not enough that the prevention or punishment is in some other way provided by statute, but it must be “ specially ” provided. The provision contained in section 2090 for the imposition of a fine is general and not special. It is as general as section 117. What undoubtedly is meant by this clause in section 117 is where the prevention or punishment is specially provided for a particular case. If there had been any particular provision for the prevention or punishment of the particular offense charged against these defendants in the indictment, then section 117 would not have been applicable. It is provided in section 14 of the Penal Code that a person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by fine of not more than one thousand dollars, or by both;” and in.section 15, it is provided that “a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.” To take a ease out of these general provisions, it is needful to find some provision of law specially prescribing the punishment for the particular crime under consideration.

But there is a still broader view to be taken of the point which we are now considering which ought not to be overlooked. The sections of the Penal Code and of the Code of Civil Procedure referred to, do not provide for alternative punishments. A public officer offending by a neglect to discharge his public duties, may be proceeded against and punished under both sections without violating his consitutional rights by putting him twice in jeopardy for the same offense.

The mandamus proceeding is purely a civil remedy, and the fine therein imposed is, at most, the imposition of a penalty; and so it is spoken of in the case of People ex rel. Garbutt v. Rochester, etc., R. R. Co. (76 N. Y. 294); and it is well settled that the law may provide for the recovery in a civil action of a penalty and for a criminal proceeding by indictment against the party for the some offense. In People v. Stevens (13 Wend. 341), it was held that where a statute creating an offense imposes a specific penalty, and also declares that the offense shall be a misdemeanor punishable by fine and imprisonment, the offender is subject to indictment in like manner as he would have been had the offense been a misdemeanor at common law. Sutherland, J., writing the opinion said: “ It is undoubtedly competent for the legislature to subject any particular offense both to a penalty and a criminal prosecution. It is not punishing the same offense twice. They are but parts of one punishment. They both constitute the punishment which the law inflicts upon the offense. That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well he contended that a man was punished twice when he was both fined and imprisoned, which he may be in most misdemeanors.’5 In Blatchley v. Moser (15 Wend. 215), that case was approved, and it was there held that an indictment for selling spirituous liquors, without license, as a tavern keeper, is no bar to an action for the penalty given by the statute in such cases. In Lawyer v. Smith (1 Denio, 207), the action was on the statute (1 R. S. 696, § 1) giving treble damages to the party injured, against one who negligently sets fire to his own woods, and it was held that the action was penal in its nature and as to two-thirds of the recovery that it was wholly penal. The same statute made the act for which treble damages could bo recovered, .a misdemeanor punishable by fine and imprisonment, and yet it was not doubted that the penalty could lie recovered and the guilty party also punished for a misdemeanor. There is a class of actions in which punitive damages may be recovered by a plaintiff for the purpose of punishing the defendant, and the punishment of a defendant by a civil action in that way has never been held a bar to an indictment where the acts complained of were also, either at common law or by statute, a misdemeanor. (Chiles v. Drake, 2 Met. [Ky.] 146.) By section 8 of the Code of Civil Procedure, a court of record has power to punish for a criminal contempt, a person guilty of certain acts mentioned, and by section 143 of the Penal Code the same acts aré declared to be misdemeanors, and are made punishable as such. These provisions have been embodied in our law for a long time (2 R. S. 207, 208); and it has never been supposed that a punishment under either law was a bar to a proceeding under the other. (Bishop on Crim, Law, § 1067.) Indeed it is provided in section 13 of the Code of Civil Procedure, as it was also provided in the Eevised Statutes, that punishment for a contempt in a civil proceeding “ does not bar an indictment for the same offense, but that when a person who has been so punished is convicted on such an indictment, the court in sentencing him must take into consideration the previous punishment.”

It is a general rule that the recovery of punitive damages or a penalty in a civil action, or the imposition of a fine in a civil proceeding does not bar a criminal punishment of the person for the same act. (Bishop on Criminal Law, supra.)

We have not exhausted the discussion on this interesting point. We have, however, gone far enough to show that the remedy provided in section 2090 is no bar to an indictment under section 111 of the Penal Code, and nothing in conflict with this was decided in People ex rel. Garbutt (supra). There Judge Bapallo said : “ This power of the court granting the mandamus to fine for past neglect was intended to obviate the necessity of a criminal prosecution under the statute which constitutes such a neglect a misdemeanor, and to enable the court awarding the mandamus to dispose of the whole matter in one proceeding.” He did not say that the power of the court granting the mandamus to fine for past neglect stood in the way of a criminal prosecution. It is quite true that generally in a mandamus proceeding a sufficient punishment could he imposed, and whatever punishment by way of fine might there be imposed, would be taken into account by any court in measuring its punishment irpon a conviction of the same person for a misdemeanor under section 111. Ordinarily the punishment inflicted in the mandamus proceeding would end the whole matter, and that is what Judge Bapallo had in mind.

Our conclusion, therefore, is that the objections to the order appealed from are untenable, and that it should be affirmed.

All concur, except Maynard, J., not voting.

Order affirmed.  