Charles Harris, Plaintiff in Error, v. The People of the State of New York, Defendants in Error

Charles Harris, Plaintiff in Error, v. The People of the State of New York, Defendants in Error. Where an act expresses in its title that its subject is to create or to revise the charter of a municipality, the giving to the municipality necessary legislative, taxing, judicial and police powers is embraced within that subject, and the separate provisions of the act defining and granting these powers are but parts of the one general subject. Accordingly 7ield, that the provisions of the act, entitled “An act to revise the charter of Long Island City ” (chap. 460, Laws of 1871), which create a City Court, are not repugnant to the constitutional provision (State Const., art. 3, § 16) declaring that a local act shall embrace but one subject and that shall be expressed in its title. (Argued January 19, 1875 ; decided January 26, 1875.) Under the act of 1863 (chap. 336, Laws of 1863), amending the provision of the Revised Statutes (3 R. S., 741, § 34) relating to writs of error in criminal cases, this court has power where, upon a writ of error, it appears that the conviction was legal and regular hut the sentence illegal, to affirm the conviction and remand the case to the court below that tire proper sentence may be imposed. Error to the General Term of the Supreme Court in the second judicial department, to review judgment affirming a judgment of the City Court of Long Island City, convicting the plaintiff in error of the crime of burglary. The said City Court was created by and organized under the provisions of the act, entitled “An act to revise the charter of Long Island City.” (Chap. 461, Laws of 1871.) . Tiie indictment under which the plaintiff in error was tried and convicted charged that he, at Long Island City, in the county of Queens, on the 3d day of January, 1874, “about the hour of twelve o’clock in the daytime of that day, at the city and in the county aforesaid, with force and arms the dwelling-house of one Robert S. Fanning, there situate, then and there wickedly, feloniously, burglariously and unlawfully did break and enter, with intent the goods, chattels and personal property of the said Robert S. Fanning, in the said dwelling-house then and there being, then and there feloniously, unlawfully and burglariously to steal, take and carry away, and two gold bracelets, each of the value of twenty-five dollars, in all of the value of fifty dollars, of the goods, chattels and personal property of Ellen Fanning, then and there being, then and there did steal, take and carry away, to the great damage of the said Robert S. Fanning and Ellen Fanning,” etc. The verdict was “guilty.” The prisoner was sentenced to “ be imprisoned in the State prison, at hard labor, for the term of seven years and six months.” William F. Howe for the plaintiff in error. The court before which the prisoner was tried was not legally constituted. (Huber v. People, 49 N. Y., 136; Const., art 3, § 6.) Benj. W. Downing, district attorney, for the defendants in error. The act under which the court was organized, before which the prisoner was tried, is unconstitutional. (Phillips v. Mayor, 1 Hilt., 483; Conner v. Mayor, 5 N.Y., 285; People v. McCann, 16 id., 58; Smith v. People, 47 id., 330; Walter v. People, 32 id., 147; Laws 1871, chap. 461; Laws 1857, chap. 446.) [MAJORITY — Folger, J.] Folger, J. It is claimed that the City Court of Long Island City, before which the plaintiff in error was convicted, has no constitutional existence. That court was created by chapter 460, of the Laws of 1871. The act is entitled, “An act to revise the charter of Long Island City.” The specific point made is, that the act is a local act, that it contains more than one subject, and that the title does not express the subject of the erection of that court. Probably the rule in Huber v. The People (49 N. Y., 132), would make this a local act. But for the purposes of this case we may concede that it is, without so deciding. The constitutional provision, which it is said has been disregarded, is in the sixteenth section of article 3, of the Constitution: that no local bill shall embrace more than one subject, and that shall be expressed in its title. We think it plain, that an act creating a municipality, and giving to it the necessary legislative, taxing, judicial and police powers, embraces but one subject. Every municipality, to be of benefit to its citizens and to be efficient in its action, must have such powers to greater or less extent. Any act which sets out to erect a municipality must give to it these powers, or it is passed in vain. It follows, then, that the separate provisions of the act defining and granting these powers are but parts of a whole, and essential to make a whole. The whole thing, the creation of the municipality, is the subject of the act; and the parts of it are not separate subjects, but separate parts of one general subject. So that the act under which Long Island City was first incorporated embraced but one subject, to wit: the erection of that municipality. The title of that act, “ An act to incorporate Long Island City ” (Laws of 1870, chap. 719, p. 1729), expressed clearly that subject. The object of the constitutional provision was two-fold: to prevent the joining of one local subject to another or others of the same kind, or to one or more general subjects, so that each should gather votes for all; and to advise the public, and the locality, and the representatives of the locality and of other parts, of the general purpose of the bill, so that those interested might be on their guard as to the whole or as to the details. (The People ex rel. v. Suprs. of Chautauqua, 43 N. Y., 10.) The act last cited did not go counter to that object. The title of it was in obedience to it. The revision of an act which has incorporated a municipality is, by parity of reasoning, but one subject; certainly so if, in the revision, no difierent general powers are given. The revision may treat of the essential parts of the whole, as well as may the original creative enactment. And if the revision of the act of incorporation, that is of the charter, is but one subject, surely an act which is entitled an act to revise that charter expresses the whole of that subject, while it expresses but one subject. Such is the title of the act complained of. In the act of 1870, which was the origin of the municipal existence of Long Island City, judicial powers had been conferred. That was an important part of the municipal organization desired and created. An act which, by its title, announced its subject to be a revision of that charter was calculated to give notice that legislation was sought for which might touch upon the subject of the judicial power of the municipality. Thus, the object of the Constitution was carried out. We do not think that the act of 1871 is unconstitutional, on the ground alleged by the plaintiff in error. We think that the indictment is to be held as one for burglary in the third degree. The verdict was general, guilty. It was, guilty of the offence alleged in the indictment ; that is, of burglary in the third degree. The punishment imposed was greater than that fixed by law for that offence. It was the sentence appropriate for burglary in the second degree. The trial appears to have been legally conducted ; the conviction appears to have been legal; the sentence-alone is illegal. It is not necessary, on account of this, to reverse the judgment. This court has power in such case to affirm the conviction, and to remand the case to the court below, that the proper sentence maybe given to the prisoner. (Laws of 1863, chap. 226, amending 2 R. S., 741, §24; Ratzky v. The People, 29 N. Y., 124.) The judgment should be affirmed, but the case remanded to the court below, that the proper sentence be imposed. All concur. Judgment affirmed and ordered accordingly.