#### Matter of Lizzie Motley on Habeas Corpus.

(Supreme Court, New York Special Term,

August, 1898.)

Criminal law — Power of city magistrate.

A city magistrate has no power to commit a person, on summary conviction for disorderly conduct, for a definite period of imprison- ■ ment, but only for a period upon default of sureties for good behavior, and the continuance of the imprisonment is dependent upon failure to give sureties.

*489. Application for discharge from imprisonment under summary commitment by city magistrate.

Louis Lowenstein, for relator.

Keyran J. O’Connor (assistant district attorney), for respondent.

McAdam, J.

The relator was, by one of the city magistrates, committed to the workhouse for thirty days on a summary conviction for disorderly conduct, and her discharge is demanded on the ground that such commitment is unauthorized. The magistrate being an officer of inferior jurisdiction, his power to act must be based upon some statute expressly conferring the authority which he assumed to exercise. Code Grim. Proc., § 74. Under the former Revised Statutes the power of such a magistrate on summary conviction for disorderly conduct was limited to requiring the offender to give sufficient sureties for his or her good behavior for the space of one year (Colby’s Grim. L. 73; People v. Carroll, 3 Park Crim. 73), and the only commitment authorized was one until such sureties were found. (Id.) The provisions of the Consolidation Act (§§ 1461, 1462) are patterned after this statute, and so are those contained in the Code of Criminal Procedure. Sections 901 to 903, and see Matter of McMahon, 64 How. Pr. 285. The. commitment in this instance is for thirty days without permitting the taking of sureties for good behavior, so that the prisoner has been unlawfully deprived of at least this substantial provision for obtaining her liberty. The legislative intent that the commitment shall be only until sureties for good behavior are found is manifest in all the statutes up till the Act of 1896 (chap. 886) and sections 707 to 711 of the charter (the latter being a re-enactment of the former), and these authorize the magistrate to commit the offender to the workhouse or jail, to be detained until discharged pursuant to sections 710 and 711 of said charter, and for a term not exceeding six months from the date of the commitment, which it is required, must recite these facts. The opportunity of obtaining the speedy discharge provided for by sections 710 and 711 upon the certificate of the commissioner of corrections, etc., is made an essential part of the power to commit and of the commitment itself. These provisions have been declared unconstitutional and void (Matter of Kenny, 23 Misc. Rep. 9), so that the entire system of the charter *490provisions in question, (one part being dependent upon the other) fails. Cooley on Const.-Lira. 178. The people are, therefore-, in no manner aided by the act of 1896, nor by the charter provisions. Indeed, the district attorney makes no claim to hold the relator under these enactments. If then, we are, as the district attorney claims, relegated back to the provisions of the Consolidation Act and those contained in the Code of Criminal Procedure, it is clear that the imprisonment is illegal because not made upon default of sureties for good behavior nor on condition making a continuation of the imprisonment dependent upon failure to give the required security according to legal requirements. It might perhaps be for the public good if persons guilty of disorderly conduct were summarily committed, as was done from the best of motives by the magistrate in this instance, but this is a subject for legisative’ reflection only. There is no conceivable principle which permits a court of justice, upon a habeas corpus proceeding toi sanction a deprivation of liberty which finds no warrant in law. The prisoner must be discharged.

Ordered accordingly.