By the provisions of subdivision 1 of section 35, above quoted (same law) proceedings for the punishment of most of the violations of the provisions of the act must be prosecuted by indictment by a grand jury and by trial in a court of record having jurisdiction for the trial of crimes of the grade of felony. This provision applies to every portion of the State except the city of New York, and but for the amendment of this year, contained in said section 35a, would apply to the city of New York. If it did so apply it would necessarily follow that persons charged with violations of the act in the city of New York, except in cases covered by subdivision 2 of section 34, would have to be prosecuted and tried in the criminal branch of the Supreme Court, or in the Court of General Sessions. In view of the great number of persons charged with offenses of the grade of felony who are indicted and tried in those courts and of the great number of prosecutions instituted during the past year in the city of New York under the Liquor Tax Law passed in 1896, it may be fairly presumed that the object of the Legislature in adopting the amendment contained in section 35a was not to deprive persons arrested in the city of New York of the right to a trial by jury, which is given to defendants so prosecuted in every other part of the State, but to relieve the higher courts and provide a method for the speedy trial, without a jury, for all persons prosecuted for violation of the Liquor Tax Law, who should not elect to exercise the right of removal to the higher court given by the said act of 1895.

營

To construe section 35a as depriving persons arrested for a violation of this statute in the city of New York of a jury trial is, therefore, to impute to the legislature the intention of giving to defendants in every other part of the State the right to a jury trial, but of depriving all persons prosecuted in the city of New York for violations of the same law of that valuable right. The court will not impute to the legislature the intent to pass a law which would be so unequal, oppressive and unjust. In this State and throughout the United States, the right to a trial by jury in criminal cases is one of the most cherished rights of the citizen, and is embedded in the constitution of every State, and of the United States and the court should not construe an act of the legislature as depriving a defendant of such right, unless the intention to do so is expressed in the clearest

and most unmistakable terms; and especially should the the court not hold that the legislature has discriminated against persons engaged in the liquor traffic in New York city, by depriving them of the right to a trial by jury, when all persons convicted of a violation of the Liquor Tax Law and sentenced to imprisonment in that city must be confined in the penitentiary, subject to the indignity of wearing a criminal's garb, to a discipline nearly as severe as that of the State prison, and compelled to associate with the burglars, thieves and other criminals of the most hardened and abandoned character, who may be imprisoned in that place for terms not exceeding five years, under chapter 571 of the Laws of 1875. It seems to me clear, from the language used in the statute, and from all the considerations above mentioned, that said section 35a does not operate to extinguish the right of removal from the Special Sessions to the General Sessions, which exists in this city, in the case of all other misdemeanors; but, even if the statute is to be regarded as ambiguous, and susceptible of being construed either as taking away or not taking away such right, I certainly think that a just regard for the rights of persons prosecuted under it in the city of New York demands that the latter construction should be adopted.

Lastly, in nearly all statutes passed by the Legislature of this State, which have conferred jurisdiction upon Courts of Special Sessions, or other inferior courts, to try offenses of the grade of misdemeanors (as are most of the crimes created by the statute in question) special care has been taken to preserve the right of trial by jury, either by express provisions providing for trial by jury therein, or giving defendants an absolute right to have their cases removed to a higher court where criminal proceedings are prosecuted by indictment and trial by jury The Legislature, however, did attempt in the year 1855, when it passed "An Act for the prevention of intemperance, pauperism and crime," and again in 1857, when it passed "An Act to suppress intemperance, and to regulate the sale of intoxicating liquors" to provide for the summary punishment of certain violations of those statutes through trials by a magistrate without a jury. It was, however, decided by the Court of Appeals that this legislation was a violation of that provision of the Constitution which declares that the trial by jury in all cases in which it

has been heretofore used, shall remain inviolate forever. (Citing cases.)

If, therefore, sections 35 and 35a of the statute in question do in fact deprive persons prosecuted for the various misdemeanors created by the statute of the right of trial by jury, the provisions of those sections (under the cases above cited) which have that effect are plainly unconstitutional. Both applications to remove the cases from the Court of Special Sessions to the Court of General Sessions must, therefore, be granted.

Supreme Court, Niagara County, May, 1897. Unreported.

PEOPLE ex rel. CHARLES BEDELL v. JOHN F. KINNEY.

Habeas Corpus.

Godfrey H. Wende, for relator.

Abner T. Hopkins, for respondent.

WHITE, J.: The relator was convicted of the crime of having sold liquor without having obtained a liquor tax certificate as required by chapter 112 of the Laws of 1896, at the December, 1896, term of the County Court of Niagara county. Upon such conviction and on January 23rd, 1897, the said court sentenced the relator to imprisonment in the county jail of Niagara county for the term of six months, and imposed a fine of $1,050.00 upon the relator and directed that he be imprisoned until the fine was satisfied, not to exceed 1,050 days. Following the sentence by the court, and on January 26th, 1897, a special deputy clerk of Niagara county made a written certificate, signed the same and affixed the seal of the court thereto, stating in substance that the relator had been tried and convicted at the December term of the Niagara County Court, upon an indictment charging a violation of the liquor tax law; that upon the said conviction the relator had been, on January 23d, 1897, sentenced to be imprisoned in the Niagara county jail at hard labor for the term of six months. and to pay a fine of $1,050, or to be imprisoned until the fine should be paid, not to exceed 1,050 days; and, further, that it had been proved by satisfactory evidence to the court that the prisoner

had learned and practiced the trade of a saloon keeper. Said certificate states that it is a true abstract from the minutes of the court in the case in which the relator was so convicted and sentenced. The fine imposed has not been paid.

At some time after the relator was sentenced and before the writ of this proceeding was served upon the respondent, the relator was, and still remains in the custody of the respondent, and confined in the county jail of Niagara county. It does not appear when the relator was taken into such custody, nor that the respondent took him into custody by virtue of any certificate, mandate or commitment, based upon the sentence of the court; in fact, the respondent disclaimed having taken the relator into custody by virtue of any such certificate, mandate or commitment, but alleges that he took and holds him a prisoner by virtue of the sentence of the court, which was written out by the said judge in his minutes, before being pronounced, and then read as so written out, to the relator.

The relator insists that he is imprisoned and held in the custody of the respondent solely by virtue of the certificate made by the special deputy clerk above referred to.

That statute which was violated, by the relator, creates the offense of which he has been found guilty, denominates it a misdemeanor and commands its punishment by a fine of not less than seven hundred, nor more than two thousand dollars, and in addition to the fine authorizes the court to imprison the offender in the county jail for a term of not more than one year.

So in that case the court had the right to impose the amount of the fine it has imposed and to imprison for the term of six

months.

The statute made it the duty of the clerk of the court in this case forthwith upon the conviction of the relator to make and file in the office of the clerk of Niagara county, a certified statement of such conviction and sentence, and thereupon it became the duty of the clerk of the county to enter in the docket book kept by him for the docketing of judgments in his office, the amount of the fine imposed upon the relator, viz., $1,050, as a judgment against the relator, and in favor of the State Commissioner of Excise. The said clerk should also have entered in the docket of said judgment a brief statement setting forth the facts that said judgment was for a fine or penalty imposed for a violation of the liquor tax law, the said clerk should then,

and immediately, have mailed or delivered to the County Treasurer of Niagara county, or to the special deputy State commissioner of excise for that county, a duly certified transcript of said judgment. At that state of the case the relator was entitled to five days' time after having been sentenced, in which to pay the judgment which should have been so entered against him, before any further proceedings to collect the judgment could have been taken against him. If at the expiration of said five days the judgment was not paid, it then became the duty of said county clerk to issue an execution upon the judgment to the sheriff of said county, whose duty it would then have been to collect the executions as executions in civil cases, arising on contracts, are collected.

The record now before the court fails to disclose a compliance or any attempt to comply with the law, concerning the collection of the fine imposed upon the relator by the court. Instead of doing that the attempt is being made, according to the record before me, to collect the said fine by confining the relator in jail, at the expense of Niagara county, and crediting him a dollar a day for the time he passes in that manner. The two methods are inconsistent. It is a well-settled rule that where a statute creates a crime and prescribes its punishment, no other or different mode of punishment than that so prescribed can be adopted by the court.

It is for these reasons, that neither section 15 nor 484 of the Code of Criminal Procedure is applicable here, and so it follows in this case that to the extent that the judgment pronounced by the Niagara County Court against the relator commands his imprisonment until the fine imposed is paid, it is void for the reason that it contravenes the statute in that respect.

The only punishment that could be inflicted under or by virtue of a fine, under this statute is pecuniary and not physical, or by depriving the offender of his liberty.

While it is not necessary to a proper disposition of this branch of the case to pass upon the question there would seem to be no reason why the steps following the sentence as prescribed by the statute for the collection of the fine may not now be taken, if they have not been. That part of the sentence which inflicts imprisonment for the term of six months is clearly authorized by the statute, and no reason is apparent why it should not be carried out.