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CRIMES.

In 1824 Chancellor Sanford, considering the validity of the antidueling act of 1815, chap. 1, made some observations in Barker v. People (1824) 3 Cow. 686, 15 Am. Dec. 322, which may properly be quoted at the beginning of an article on the power of the legislature in relation to crimes. "The power of the legislature in the punishment of crimes," he said, "is not a special grant or a limited authority to do any particular thing, or to act in any particular manner. It is a part of 'the legislative power of this state.' . . . It is the sovereign power of a state to maintain social order by laws for the due punishment of crimes. It is a power to take life and liberty and all the rights of both when the sacrifice is necessary to the peace, order, and safety of the community. This general authority is vested in the legislature; and as it is one of the most ample of their powers, its due exercise is among the highest of their duties. When an offender is imprisoned, he is deprived of the exercise of most of the rights of a citizen; and when he suffers death, all his rights are extinguished. The legislature have power to prescribe imprisonment or death as the punishment of any offense. The rights of a citizen are thus subject to the power of the state in the punishment of crimes, and the restrictions of the Constitution upon this, as upon all the general powers of the government, are that no citizen shall be deprived of his rights unless by the law of the land or the judgment of his peers, and that no person shall be deprived of life, liberty, or property without due process of law. . . The power of the state over crimes is thus committed to the legislature, without a definition of any crime, without a description of any punishment to be adopted or to be rejected, and without any direction to the legislature concerning punishments. It is, then, a power to produce the end by adequate means,—a power to establish a criminal code, with competent sanctions, a power to define crimes and prescribe punishments by laws in the discretion of the legislature." This is a general statement of the power of the legislature on this subject, and its application will be noted in the following cases.

The court sustained the anti-dueling act, which, among other things, deprived the person convicted under it of the right thereafter to hold any "post of profit, trust, or emolument, civil or military, under this state."

Arson. By early statutes relating to crimes arson ceased to be a common law offense and became a statutory crime, and it was classified into four degrees. This classification was valid, and an accused

person, being chargeable with knowledge of the law, was bound to know that such a classification had been made, and that under an indictment for a higher he might be found guilty of a lower degree. People v. Didien (1859) 17 How. Pr. 224.

Electrocution.-"Whether the use of electricity as an agency for producing death constituted a more humane method of executing the judgment of the court in capital cases was a question for the determination of the legislature," and its determination is conclusive upon the court. People ex rel. Kemmler v. Durston (1890) 119 N. Y. 569, 7 L. R. A. 715, 16 Am. St. Rep. 859, 24 N. E. 6.

Future cases.- -"The legislature has power to pass a statute as to criminal offenses applicable alone to the future, and such statute will not repeal the prior law on the subject, nor give immunity to past offenders." People v. Maxwell (1894) 83 Hun, 157, 31 N. Y. Supp. 564.

Indeterminate sentence.-The legislature has power to provide for an indeterminate sentence; such a sentence is definite for the maximum term. The board created for this purpose may also be constitutionally vested with the power to terminate the sentence before the expiration of the maximum period, on conditions prescribed by law. Such legislation does not interfere with the governor's pardoning power. People ex rel. Clark v. Sing Sing Prison (1902) 39 Misc. 113, 78 N. Y. Supp. 907, Sp. T.

The same principle was applied in commitments for vagrancy under the provisions of 88 707-712 of the Greater New York charter, which vested prison authorities and magistrates with power to fix the term of imprisonment according to specified conditions. People ex rel. Abrams v. Fox (1902) 77 App. Div. 245, 79 N. Y. Supp. 56, distinguishing Re Kenny (1898) 23 Misc. 9, 49 N. Y. Supp. 1037, affirmed in (1898) 30 App. Div. 624, 53 N. Y. Supp. 1111, where these sections, as they stood prior to the amendment of 1901, were held unconstitutional, on the ground that they deprived the persons of liberty without due process of law.

Jurisdiction. A state has no extraterritorial jurisdiction of crimes. People v. Merrill (1855) 2 Park. Crim. Rep. 590.

Place of imprisonment.—In Brown v. People (1878) 75 N. Y. 437, sustaining the act of 1874, chap. 209, authorizing boards of supervisors to contract for the confinement of short term prisoners in penitentiaries, the court cite the remark in King v. Bishop of Rochester (1722) Fortescue, 101, that "the King can choose his own prison to detain, as well as his own court to try;" and say that the

people may do the same thing, but they "must prescribe by law what prison or prisons they may choose." This had been done by the act of 1874. "We have no doubt of the power of the legislature to designate a place of imprisonment in a part of the state other than the county jail of the county of the offense and trial; nor of its power to use all the instrumentalities of the state in procuring such place, and in securing confinement in it."

Place of trial.-A person accused of burglary and larceny in one county may be tried for the burglary in an adjoining county, if he has carried the stolen property into that county. A statute authorizing such a trial is constitutional. The legislature can take away, in a particular instance, the local character of the offense of burglary, and may lawfully direct that the offender be tried in another county than that in which the act was done. Mack v. People (1880) 82 N. Y. 235.

Second offense.-The imposition of a more severe punishment for a second offense is not limited to cases where the first offense is committed in this state. Such a first offense committed in another state may be made the basis of a second conviction and punishment here, notwithstanding a pardon granted by the executive of such other state. People v. Price (1889) 53 Hun, 185, 6 N. Y. Supp. 833, affirmed in (1890) 119 N. Y. 650, 23 N. E. 1149.

State not liable to person convicted of crime.-John Roberts was convicted of burglary in 1877, and sentenced to state prison for twenty years. In October, 1878, he was pardoned by the governor, and in April, 1895, was restored to citizenship. The legislature of 1895 passed a law permitting Roberts to present to the board of claims a claim for damages sustained by him in consequence of his conviction, on the theory that the state, having used its power and judicial machinery to convict him of an offense of which he was innocent, should make compensation to him for the loss, damages, and expenses sustained or incurred by him under such improper arrest and conviction. The board of claims made an award in his favor which was reversed by the appellate division, and its judgment was affirmed by the court of appeals. Roberts v. State (1899) 160 N. Y. 217, 54 N. E. 678. The latter court said that the pardon and restoration to citizenship had no retroactive effect on the judgment of conviction, which remained unreversed. A pardon implies guilt, and is an act of grace, not of right. "If the judgment was erroneous, the remedy was by appeal, or by application to set it aside, and not by pardon. That question was for the judicial branch of the state government to determine, and not for the legislative or executive

department." But aside from this question, the court said that the evidence showed that Roberts was properly convicted, and that, on the facts, the award of the board of claims was, for that reason, erroneous. If the claimant "was not improperly convicted and imprisoned, he had no valid claim."

Suspension of sentence.-The act of 1893, chap. 279, amending the Penal Code by authorizing the suspension of sentence in certain cases, was a valid exercise of legislative power, and it did not interfere with the governor's prerogative to grant reprieves, commutations, and pardons. People ex rel. Forsyth v. Court of Sessions (1894) 141 N. Y. 288, 23 L. R. A. 856, 36 N. E. 386.

Uniformity not required.-Punishment for crimes need not be uniform throughout the state. The court sustained the act of 1880, chap. 456, under which petit larceny in Cohoes was punishable by an imprisonment not exceeding one year, although elsewhere, under the general law, the maximum imprisonment could not exceed six months. The act was valid if it applied to all persons in Cohoes. Re Bayard (1881) 25 Hun, 546. See Williams v. People (1862) 24 N. Y. 405.

DECLARATORY STATUTE.

The legislature has no judicial powers, and cannot, upon any pretense, interpose its authority respecting questions of interpretation pending in the courts. People ex rel. Mutual L. Ins. Co. v. New York (1857) 16 N. Y. 424.

DELEGATION OF LEGISLATIVE POWER.

The Constitution in terms vests legislative power in the senate and assembly; but, by recent amendments, extensive powers of local legislation may be delegated to municipal corporations. In addition to these specific constitutional provisions the courts have had frequent occasion to determine the validity of statutes which, in effect, delegated legislative power to subordinate governmental agencies or other departments of the government. These statutes include various aspects of administration, both local and general, and many of them have not received judicial attention. The following cases present numer

ous questions relating to the delegation of power, and show some diversity of judicial construction.

Boards of supervisors.-The application of principles relating to the delegation of power was considered with reference to boards of supervisors in People ex rel. Wakeley v. McIntyre (1898) 154 N. Y. 628, 49 N. E. 70, and the court there said that within the limits of the power delegated to such boards by the Constitution, they are "clothed with the sovereignty of the state, and are authorized to legislate as to all details precisely as the legislature might have done in the premises;" and therefore that such a board, in authorizing a town to borrow money for the construction of highways, might prescribe conditions for the protection of taxpayers and to insure proper administration.

Cemeteries.-A statute conferring on the municipal authorities of New York the right to make by-laws regulating or prohibiting interments in that city was sustained in Coates v. New York (1827) 7 Cow. 585.

The legislature may delegate to cemetery associations power to make ordinances in relation to the administration of their affairs, but they are binding only on members. Johnstown Cemetery Asso. v. Parker (1899) 45 App. Div. 55, 60 N. Y. Supp. 1015.

Corporations.-"The legislature cannot confer upon a moneyed corporation power to enact by-laws contravening, repealing, or in any wise changing the statutory or common law of the land." Seneca County Bank v. Lamb (1858) 26 Barb. 595.

Courts. The act of 1884, chap. 439, authorizing the supreme court and county court to require railroad corporations to station flagmen at certain crossings, did not vest legislative power in those courts. The power is judicial. People v. Long Island R. Co. (1892) 134 N. Y. 506, 31 N. E. 873.

Eminent domain.—The power of eminent domain may be delegated to corporations. Re Union Ferry Co. (1885) 98 N. Y. 139. Additional citations on this point will be found under the heads of "Eminent Domain" and "Public Use," in the note to § 6 of article 1.

Foreign insurance companies.-The act of 1875, chap. 60, which required the superintendent of insurance to collect from outside instrance companies taxes, license fees, etc., equal in amount to those imposed in the home state of such companies on New York insurance companies doing business there, when such amount charged is

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