FIRST DEPARTMent, March TERM, 1875. kind, or whether the board may return the assessment with instructions to the board of assessors to reconsider and revise the awards. Nothing of that kind has been attempted in this case; but, as we understand the action of the board of revision, it has returned the assessment list to the board of, assessors, with direction to strike out the assessment of the relator's damages, on the sole ground that the latter board had no jurisdiction to estimate and assess them. In the decision of that question we are of opinion, that the board of revision erred, and that it was its duty, if no other objection to the assessment existed, to have proceeded to its confirmation. It was not suggested to the court below that any other ground of objection existed. The case was submitted at the Special Term upon the facts presented by the petition and affidavits on the part of the relator, which were either conceded or assumed to be true, and for that reason the mandamus was made 'peremptory. No other facts are suggested to us. It is urged by the counsel for the relator, that the assessment had become confirmed by operation of law by reason of the lapse of time. The act of 1861 declares that the revision of such assessment lists shall be made without delay, so that the same shall be confirmed within thirty days from the time they shall respectively be presented for confirmation, and if not so confirmed, they shall be deemed to be confirmed at the expiration of thirty days after they shall be respectively so presented for confirmation. This provision is clearly mandatory, and not simply directory. The assessment in this case was presented for confirmation, February 11th, 1874. No action was taken by the board until the 26th of March, 1874, when the resolution remanding the assessment for revision was adopted. We have not examined subsequent legislation, to see how far the provisions of the act of 1861 may have been modified, because we do not deem it material to pass upon the effect of the delay of more than thirty days. If, however, the board of revision were right in the position that the board of assessors had no power over the question of such damages, then the proceedings of the latter board would be coram non judice and wholly void. No lapse of time would confirm such a nullity, and there would, in such case, be no objection to the return of the lists for the purpose of eradicating the excess of jurisdiction, and conforming it to the FIRST DEPARTMENT, MARCH TERM, 1875. authority possessed by the board of assessors. If this could not be done, then the law would be chargeable with the absurdity of confirming by lapse of time, an assessment which it must in the next breath declare to be absolutely void for want of jurisdictional power in the assessors who made it. * Third. The remedy by mandamus seems to be the appropriate and only one at this stage of the proceedings. The relator has no remedy by action at law for her damages. They are at common law damnum absque injuria, as has been adjudicated in numerous cases. Her sole remedy is through the special proceedings authorized by statute, and, unless those proceedings are regularly brought to complete consummation, she cannot enforce payment as permitted by the acts above referred to. Whatever official step is essential to that end, whenever it becomes a duty which an officer or board of officers is legally bound to perform, becomes also the appropriate subject of mandamus, if the officer refuses to perform the duty to the prejudice of public or private rights. In this case the official requisite to perfect the assessment lists is withheld, in good faith, doubtless, but upon an untenable ground, which in law is no excuse; and besides this, the board of assessors are directed to do an act officially, which the board of revision had not authority to command, but which, if done, will deprive the relator of legal rights, by de facto destroying an assessment lawfully made in her favor. To compel the performance of official duties which will prevent any such consequence seems to us a proper office of the writ of mandamus, although it incidentally arrests action which, when taken, might be the subject of other remedies. Under the circumstances, we think the appellants should not be charged with costs of the appeal. Order appealed from affirmed. Present -- DAVIS, P. J., DANIELS and BRADY, JJ. Order affirmed, * Radcliff's Executors v. Mayor of Brooklyn, 4 Comstock, 195; Mills v. Brooklyn, 32 N. Y., 489, and numerous cases therein cited. FIRST DEPARTMENT, MARCH TERM, 1875. THE PEOPLE EX REL. WILLIAM M. TWEED v. JOSEPH L. LISCOMB, WARDEN, ETC. Revised Statutes relative to sentence of imprisonment in county jail — when applicable to case where sentence and commitment are for imprisonment in penitentiary — Misdemeanors — jurisdiction of Special Sessions of New York over — Technical words in statute-construction of- Habeas corpus-what cannot be inquired into upon return of — Indictment—when two or more distinct offenses may be alleged in, in different counts, and sentence pronounced upon each ·when prosecuting officer not put to an election — Jury — manner of selection of, within legislative control. A statute providing that whenever a sentence of imprisonment in a county jail shall be pronounced upon any person convicted of any offense, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county a transcript of the entry of such conviction in the minutes of the court, and of the sentence thereupon, duly certified by such clerk, which shall be a sufficient authority to such sheriff to execute such sentence, and he shall execute the same accordingly (3 R. S. [5th ed.], p. 1032, § 13), is applicable to a case in which the sentence and commitment are for imprisonment in the penitentiary, it being provided by statute that such penitentiary should become one of the jails of the city by the name of the penitentiary of New York, and that it should thenceforth continue the jail of said city for the confinement and safe keeping of all persons convicted of any crime or misdemeanor and sentenced to confinement therein by any Court of Oyer and Terminer in said city, and that the keeper of such penitentiary should keep all persons committed to it in the same manner and under the same penalties as the sheriffs of other counties in the State ought to keep, in the jails of the respective counties, the criminals committed to them. (Laws of 1814, chap. 176, §§ 1, 3.) Where the sentence and commitment direct that the criminal be confined in the penitentiary, and by the judgment record it appears that he is to be confined in the county jail, the signification of the terms used as descriptive of the prison must be determined by the circumstances under which they were used; and it must be understood that the jail referred to was the one in which the prisoner could be properly imprisoned, which, in this case, was the penitentiary. Section 5, chapter 337, of the Laws of 1855, which provides that "the Court of Special Sessions of the Peace, in and for the city and county of New York, shall have power to hear, determine and punish, according to law, all complaints for misdemeanors, and shall possess exclusive jurisdiction thereof, unless," etc., does not give the Special Sessions exclusive jurisdiction of all misdemeanors, but only of complaints of misdemeanors, which includes only cases commenced by complaint, technically understood as the foundation for a warrant in the mode prescribed by the Revised Statutes. Where technical words occur in a statute they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation. Where a court has jurisdiction to try the charges contained in an indictment, FIRST DEPARTMENT, MARCH TERM, 1875. and after conviction to impose punishment upon the prisoner for the offense of which he has been convicted, the legality or propriety of its action cannot be investigated or determined upon the return to a writ of habeas corpus. If, on the return to a writ of habeas corpus, it appears that the relator is held under the final judgment, by virtue of process issued to execute it, of a court of competent criminal jurisdiction, it is the duty of the court, to which the return is made, to recommit the relator. Where the court, on the trial of indictment, sentences the prisoner for distinct terms of imprisonment upon several convictions of misdemeanors, under several different counts of the indictment, the question of its right to impose more than one such term of imprisonment under the indictment, cannot be reviewed on the return to a writ of habeas corpus. Every indictment which contains more than a single count, assumes to charge a separate and different offense in each. Two or more distinct offenses may be included in one indictment in several counts, where the offenses are of the same general nature, and where the mode of trial and the nature of the punishment are also similar or the same; and upon conviction of more than one offense, the prisoner may be sentenced for each. In case of felonies the prosecuting officer may, in the discretion of the court, be put to an election, but in the case of misdemeanors he may join and try several distinct offenses in the same indictment, and cannot be compelled to elect on which one he will proceed. Chapter 427 of the Laws of 1873, providing for the trial of all challenges by the court, and chapter 475 of 1872, providing that the previous formation or expression of an opinion, etc., in certain cases shall not disqualify a person summoned as a juror, are not obnoxious to any constitutional provision, the mode and manner of the selection of a jury being matters of legislative control. If it were otherwise, the question cannot be inquired into on the return to a writ of habeas corpus. A statute prescribing a penalty to be recovered in a civil action for a simple refusal or neglect to perform a duty, does not prescribe the punishment on conviction, in a criminal proceeding for a willful neglect of duty by a public officer. THE relator was brought before the Court of Oyer and Terminer of the county of New York on a writ of habeas corpus. Upon the return made to the writ, and the traverse of the relator, a motion was made to the court for his discharge from imprisonment. That was denied and the writ dismissed. The relator thereupon procured a writ of certiorari to the Court of Oyer and Terminer, on the return to which the case is now before this court. For a very full statement of facts, see the opinion of Judge WESTBROOK, page 774. David Dudley Field, George F. Comstock, William Fullerton, William O. Bartlett, Elihu Root, Willard Bartlett, Dudley Field, HUN-VOL. III. 96 FIRST DEPARTMENT, MARCH TERM, 1875. Edward R. Bacon, for the relator. Authorities to show that the distinction, taken in England between felonies and misdemeanors, with respect to the joinder of offenses in one indictment, is not applicable to our jurisprudence: (King v. Roberts, Carth., 226; Rex v. Benfield, 2 Burr., 980; Young v. King, 3 T. R., 105; R. v. Jones, 2 Camp., 132; R. v. Saunders, 2 Burr., 984; R. v. Kingston, 8 East, 41.) The reasons why the joinder of misdemeanors is permitted in England have no application here. There it is permitted simply because in cases of misdemeanor, no challenge is allowed, nor a motion to quash or to elect; here all these are allowed. Cessante ratione, cessat lex. Authority to show that, as a general rule of the common law, only one crime can be charged in one indictment. (State v. Lincoln, 49 N. H., 465; see 1 Bishop on Crim. Proc., §§ 205-213; The State v. Porter, 26 Mo., 201; Hampton v. The State, 8 Humph., 69; McGregg v. The State, 4 Blackf., 101; Baker v. The State, 4 Pike, 56; Kane v. The State, 8 Wend., 203; United States v. Pirates, 5 Wheat., 201; The State v. Canterbury, 28 N. H., 226; The State v. Fly, 26 Me., 312; The State v. Marvin, 35 N. H., 26; Wharton's Crim. Law, 204, 207; 1 Archb. Cr. Pl., 95.) The respondent's counsel do not distinguish between the joinder of disconnected offenses and the awarding of cumulative sentences thereon. do not find a single case cited of the joinder of disconnected offenses, except United States v. O'Callahan (6 McLean, 598), which was expressly authorized by act of Congress; the case of Com. v. Hills (10 Cush., 590), which rests upon the peculiar practice of Massachusetts; and cases under excise laws, depending upon special statutes. The cases of Rex v. Fussell (3 Cox Cr. Cases, 291); Young v. King (3 T. R., 98); O'Connell's case (11 Cl. & Fin., 155); Rex v. Jones (2 Camp., 132); Gregory v. Reginam (15 Q. B., 974); State v. Kirby (7 Mo., 317); Com. v. Birdsall (69 Penn., 482); Com. v. Sylvester (Brightly, 331); Harwood v. Com. (2 P. F. Smith, 424); Carlton v. Com. (5 Met., 532); Joslyn v. Com. (6 id., 236); Crowley v. Com. (11 id., 575); Kite v. Com. (id., 586); State v. Fuller (34 Conn., 280); Kane v. People (8 Wend., 214); People v. Rynders (12 id., 429); People v. Baker (3 Hill, 159), and People v. Costello (1 Den., 83), all appear to have been cases of connected offenses, several counts being inserted for different We |