(79 Hun, 87.)

#### PEOPLE v. UPSON.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Statutes—Amendment—Repeal *of*Former Statute.

A statute which amends a former statute “so as to read as follows,”' and provides that “all acts or parts of acts inconsistent with or repugnant tó this act are hereby repealed,” repeals the former statute by implication.

2. Police Justices—Territorial Jurisdiction—Constitutional Law.

Laws 1887, c. 384, which provides that the police justice of Rochester shall have jurisdiction of all misdemeanors committed within the county of Monroe, is unconstitutional, in assuming to give the police justice jurisdiction beyond the limits of the city.

3. Same—Act Valid in Part.

Such statute is not valid as to so much of the county of Monroe as is within the limits of the city of Rochester, and only bad as to the residue of the county, as the designation of the territory within the jurisdiction of the police justice is entire.

*6164. Statutes—Amendment of Statute Theretofore Repealed.

A statute amending a statute which had already been superseded by an amendatory statute is valid, where it was the intention of the legislature to amend an amendatory statute, and not the amended statute.

Appeal from court of sessions, Monroe county.

Joseph S. Upson was convicted of keeping a disorderly house, and appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

H. B. Hallock, for appellant.

H. H. Widener, Asst. Dist. Atty., for the People.

DWIGHT, P. J.

The question in the case is of the jurisdiction of the police justice of Rochester, sitting as a court of special sessions, to try, and render judgment in, the case of a complaint under section 322 of the Penal Code. The offenses there defined are not among those enumerated in section 56 of the Code of Criminal Procedure as being within the jurisdiction of courts of special sessions; so that by virtue, merely, of an authority to hold courts of special sessions, with all the jurisdiction belonging to those courts in general, the police justice of Rochester was not empowered to hear and determine the charge against the defendant, upon which he was convicted in this case. If he had.the authority at all, ■ it must have been by virtue of some special provision of law, such as we might expect to find embodied in the charter of the city of Rochester; and so we do find, in several successive enactments of the legislature relating to the organization and government of that city, several provisions purporting to confer jurisdiction upon that office. Those provisions it becomes our duty to examine, and to determine their effect and bearing- upon the questions here involved.

The act of 1861 (chapter 143) was entitled “An act to amend and consolidate the several acts in relation to the charter of the «city of Rochester.” By section 245 of that act, it was provided as -follows:

> “The police justice of said city shall have jurisdiction in suits brought for the violation of any of the city ordinances, or of the laws concerning the infernal police of the state.'1 He shall not have nor exercise any other civil jurisdiction, but shall have sole and exclusive jurisdiction in preference to any other justice, to hear all complaints an"d to conduct all examinations in •criminal cases except in case of his absence from the city, or inability.”

This provision, it will be seen, does not empower the police justice to hold courts of special sessions, and gives him no jurisdiction to try and determine any charges of misdemeanor, but only, it would seem, to entertain complaints and conduct examinations with a view to holding the parties charged for the action of the grand jury.

The act of 1880 (chapter 14) was entitled “An act to further amend chapter 143, Laws of 1861, entitled [as above], and to consolidate therewith the several acts in relation to the charter of said city.” By its first section, it was provided that “chapter 143 *617of the Laws of 3861, entitled [as before], is hereby amended so ns to read as follows.” And then follows a complete resume and ■consolidation of all the acts then in force pertaining to the subject in hand, including a re-enactment of most of the provisions of the act of 1861, supra, generally without change of language or arrangement, but incorporating with it some provisions of law enacted in the interval, and some which were altogether new. And, by subdivision 2 of section 290, it was. provided that:

> “All acts and parts of acts inconsistent with or repugnant to this act or to "the charter as hereby amended are hereby repealed or declared inapplicable to said city; but the repeal hereby of any statutory provision shall not affect any action,” etc., “commenced prior to the time when this act takes effect.”

It is very apparent that- the statute of 1880, thus described, was intended to be, and was, in all respects, substituted for and in place of the statute of 1861, and that by virtue of the enactment of the former the latter statute was wholly superseded and repealed by implication. Heckmann v. Pinkney, 81 N. Y. 211; In re New York Inst, for the Deaf and Dumb, 129 N. Y. 234, 24 N. E. 378.

By section 265 of the act of 1880, it-was provided that:

> “The police justice of said city shall have jurisdiction in suits brought for the violation of any of the city ordinances, or of the laws concerning the internal police of the state, and is hereby empowered to hold courts of special ■sessions for the trial of all offenses triable in a court of special sessions.”

Since the passage of this act there has been no question of the power of the police justice to hold courts of special sessions, with the jurisdiction of those courts in respect to all those classes of offenses which are enumerated in section 56 of the Code of Criminal Procedure.

The act of 1887 (chapter 384) consists of a single section, which purports to amend only section 265 of the act of 1880, supra. This it attempts to do by providing that the courts of special sessions held by the police justice of Rochester shall have—

4‘In the first instance, exclusive jurisdiction to hear, try and determine all •charges of misdemeanors committed within the county of Monroe, as is now -or may be hereafter provided for in relation to courts of special sessions bisection 56 of the Code of Criminal Procedure, and shall also have exclusive jurisdiction, in like manner, * * * to hear, try and determine all other charges of misdemeanors and other offenses and crimes punishable as such, as are now defined to be misdemeanors by sections 5 and 6 of the Penal Code or other statute now or hereafter passed.”

The definitions of sections 5 and 6 of the Penal Code include in the class of misdemeanors all crimes not felonies, and are broad enough to include the offense of which the defendant was convicted; and here, as will be seen, was the first enactment which assumed to give to the police justice of Rochester, sitting as a court of special sessions, jurisdiction of that offense. But the provision was clearly unconstitutional, because it assumed to give to the police justice of Rochester a territorial jurisdiction throughout the county of Monroe. The office in question finds its only warrant for being in that provision of the constitution of the state which provides for the establishment by the legislature of “inferior local courts *618of civil and criminal jurisdiction.” Const, art. 6, § 19. The meaning of the term “local courts” is well established by the authorities. It means courts possessing a jurisdiction localized within the territorial limits of the city or village for which each is created, and by the electors of which its incumbent is chosen. Such is the plain doctrine of such cases as Brandon v. Avery, 22 N. Y. 469; Waters v. Langdon, 40 Barb. 408; Geraty v. Reid, 78 N. Y. 64; People v. Terry, 108 N. Y. 1, 14 N. E. 815; Curtin v. Barton, 139 N. Y. 505, 34 N. E. 1093. In the two cases last cited the constitutionality of the enactments assailed was upheld only because, by a just construction of their terms, it was apparent that the jurisdiction of the courts created thereby was intended to be limited, iff the one case, to the city (of Syracuse), and, in the other, to the village (of Canton), in which the courts were, respectively, constituted. The suggestion of the learned court of sessions that the words-“within the county of Monroe” were inadvertently employed in place of “within the city of Rochester,” as intended by the legislature, can hardly be accepted as an answer to the objection to the act in question. There is no recognized mode of ascertaining the intention of a legislative enactment, except from the plain sense and reasonable construction of the terms employed; and by no-process of construction can the city of Rochester be held to have been intended by the use of the designation “the county of Monroe.’” Neither can the contention of the district attorney be maintained, to the effect that the act, though bad as to the whole of the county of Monroe, was good as to that part of it which is included within the territorial limits of the city of Rochester. The provision i» single, and the designation of the territory embraced in the jurisdiction defined is entire. It must be good as to the whole, or bad as to the whole. The same objection must prevail to the attempted: further amendment of section 265 of t.he act of 1880 by chapter 561 of the Laws of 1890. It consists of a re-enactment of the section as amended by the act of 18.87, with scarcely more' than a verbal amendment, which, however, serves to emphasize the intention of the legislature to extend the jurisdiction of the police justice of Rochester over the whole of the county of Monroe.

The next attempt to amend the provision of the charter of Rochester relating to the jurisdiction of its police justice is found in chapter 204 of the Laws of 1893. This act, we may well suppose, was; passed with the intention of remedying the error of the legislation of 1887 and 1890 relating to that subject. If valid legislation, it accomplished that object, because it undertook, by express provision, to limit the jurisdiction in question as it was, no doubt, impliedly limited by the act of 1880, viz. to offenses committed within the city of Rochester, and thus avoided the constitutional objection to the enactments of 1887 and 1890. The objection is made to this statute that it is void because it purports; to amend a statute which has no existence, by reason of its repeal; There seems to be no reported decision of our own courts on this question. In several of the western states the rule has been held *619as contended for by the defendant (see 23 Am. & Eng. Ene. Law,. 276, and the cases cited), whereas, in Massachusetts, a statute amending a section of a previous statute, which had been superseded and repealed by implication, was held to be valid on the-ground that it was the evident intention of the legislature to amend the amendatory, and not the amended, section. Commonwealth v. Kenneson, 143 Mass. 418. There can, of course, be no doubt of the intention of the legislature in this case; and we are much disposed to follow the doctrine of the Massachusetts case, and give effect to the act of 1893 as a valid definition of the jurisdiction, after that date, of the police justice of Rochester, which covers the-offense of which the defendant was convicted. Such being the case, the constitutional objection to the acts of 1887 and 1890 is avoided, and a jurisdiction was conferred upon the police justice to hear, try, and determine the complaint against the defendant. A most unquestioned case of gross violation of the law was made out against him, and that by evidence to which no objection was made. The judgment should be affirmed. All concur.

Judgment appealed from affirmed, and case remitted to the court of sessions of Monroe county, to proceed thereon.