# The People v. . Jaehne

> New York Court of Appeals · October 5, 1886 · 103 N.Y. 182

URL: https://www.frixlaw.com/law-library/cases/3582819

## Case

- **Full name:** The People of the State of New York v. . Henry J. Jaehne
- **Court:** New York Court of Appeals
- **Decided:** October 5, 1886
- **Citations:** 103 N.Y. 182; 4 N.Y. Crim. 478; 3 N.Y. St. Rep. 11; 58 Sickels 182; 8 N.E. 374; 1886 N.Y. LEXIS 1049
- **Precedential status:** Published
- **Opinion:** Dissent by Rapallo
- **Judges:** Andrews, Rapallo
- **Cited by:** 120 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3582819

## Opinion text

Rapallo, J (dissenting).
The important question in this case is, whether the offeree of which the prisoner was convicted was punishable under section 72 of the Penal Code, or under section 58 of the Consolidation Act of 1882.
Section 72 of the Penal Code provides as follows:
*535
“A judicial officer, a person who executes any of the functions of a public office not designated in titles 6 and 7 of the Code, or a person employed by or acting for the State or for any public officer in the business of the State, who
asks, receives,
or
agrees to receive a bribe,
or any money, property or value of any kind, or any promise or agreement therefor, upon any agreement or understanding. that his vote, opinion, judg ■ ment, action, decision, or other official proceeding shall be influenced thereby, or that he will do or omit any act or proceeding, or in any way neglect or violate any official duty, is punishable by imprisonment for not more than ten years or by a fine of not more than five thousand dollars or both. A conviction also forfeits any office held by the offender and forever ■disqualifies him from holding any office under the State.”
This Code was passed July 26, 1881, and section 727 de•clares:
“This act shall take effect on the 1st day of December, 1882. W hen construed in connection with other statutes, it must be deemed to have been enacted on the 4th day of January, 1881, .so that any statute enacted after that day is to have the same ■effect as if it had been enacted after this Code.”
The Consolidation Act was passed July 1, 1882, and is entitled “An act to consolidate into one act, and to declare the special and local laws affecting public interests in the city of New York.” It contains the charter of the corporation and provides for the local government of the city. It continues •the board of aldermen and the various departments of the city government
Section 58, so far as relates to the question now at issue, is in the following words:
“ Sec. 58. Every person who shall promise, offer, or give, or ■cause or aid, or abet in causing to be promised, offered or given, or furnish or agree to furnish in whole or in part, to any other person to be promised, offered or given to
any member
of the
■common
council, or any officer of the corporation, or clerk, after . his election or appointment as such officer, member, or clerk, or before or after he shall have qualified and taken his seat, or ■entered upon his duty, any moneys, goods, right in action, or
*536
other property, or anything of value, or any pecuniary advantage, present di prospective, with intent to influence his vote, opinion judgment or action, on any question, matter, cause or proceedings which may be then pending, or may by law be at any time brought before him in his official or clerical capacity, shall be deemed guilty ot a felony, and shall upon conviction, be imprisoned in a penitentiary for a term not exceeding
two
years, or shall be fined not exceeding five thousand dollars, or both, in the discretion of the court.
“Every officer in this section enumerated who shall accept any such gift or
promise,
or undertaking
to make the same under any agreement or understanding, that his vote, opinion, judgment or action, shall be influenced thereby or shall be given in any question, matter, cause or proceeding then, or at any time.' pending, or which may by law be brought before him in his. official capacity, shall be deemed guilty of a felony, and shall upon conviction be disqualified from holding any public office, trust or appointment
under the city of New
York, and shall forfeit his office, and shall be punished by imprisonment in the-penitentiary not exceeding two years or by a fine not exceeding-five thousand dollars, or both, in the discretion of the court.”
The prisoner was indicted for the crime of bribery committed by him /in August, 1884, as a member of the common council of the city of New York. It was assumed upon the trial that one count of the indictment was framed under section' 72 of the Penal Code and the other under section
58
of the. Consolidation Act On the trial, the court, on motion of the 'counsel for the prisoner, required the district attorney to elect upon which count of the indictment he would proceed, and thereupon the district attorney stated that he elected to go to trial on the first count, under section 72 of the Penal Code.
The counsel for the prisoner thereupon moved to dismiss the indictment or direct an acquittal on the ground that no conviction could be had under that count. The motion was denied and an exception taken and the trial proceeded.
The jury rendered a verdict of guilty. A motion in arrest of judgment was made and denied, and the prisoner was then
*537
sentenced to be imprisoned in the State prison, at hard labor, for, the term of nine years and ten months.
It will be observed that the Penal Code is a general statute, operative throughout the State, and that section 72 provides for the punishment of the crime of bribery committed by any person who executes any of the functions of a public office not designated in titles 6 and 7 of the Code (which relate to State officers and fixes the maximum punishment at imprisonment in the prison for ten years and $5,000 fine, or both, while section State 58 of the Consolidation Act is a local act, applying only to the city of Hew York, and relates only to.a special class of officers, viz., members of the common council of said city, officers of the corporation and clerks, and fixes the maximum punishment for the crime committed by such officers at imprisonment in the. penitentiary for two years and $5,000 fine, or both.
The Penal Code, as has been stated, was passed in July, 1881, and the Consolidation Act in July, 1882.
The Consolidation Act provides for the punishment of the same crime for which the prisoner was indicted; he was one of the officers specially referred to in that act, and it being the later statute in point of time, would unquestionably control' where it differed from the Penal Code, and the present controversy would never have arisen but for a peculiar provision of the Consolidation Act, contained in section 2143 of that act, in the following language: “ For the purpose of determining the effect, of this act upon other acts, except the Penal Code, and the effect, of other acts, except the Penal Code, upon this act, this act is. deemed tozkave been enacted on the 1st day of January, 1882.
“ All acts passed after such date, and the Penal Code, are to-have the same effect as if they were passed after this act.
“This act shall take effect on the 1st day of April, 1883,”
The effect of this section is the question now before us. It-is claimed on the part of the prosecution that the provisions of section 58 of the Consolidation Act, axe inconsistent with those-of section 72 of the penal Code, and that section 2143, by declaring that the Penal Code, although in fact passed first, is, to have the same effect as if passed last, operates to repeal sec
*538
tion 58 of the Consolidation Act and to put in its place section
72
of the Penal' Code.
This argument puts the legislature in the remarkable position of carefully framing and enacting the provisions of section 58, and in the same breath and by the same act, declaring that they shall have no effect whatever, but shall be deemed repealed and superseded by an act passed the previous year. Such a self stultification cannot be attributed to the legislature if there is any rational theory upon which' its enactments can be reconciled.
In the first place it should be assumed that in giving to the Penal Code the position of the later statute, the legislature had in mind the familiar and firmly-established rule for the construction of statutes, that general legislation on a particular subject must give way to special legislation on the same subject, and that laws special and local in their application, are not deemed repealed or modified by general legislation on the same subject, although the terms of the general act are broad enough to include the cases embraced in the special law, unless the intent to change the local law is clearly manifested.
In re
Comm’rs of Central Park, 50
N. Y.
493 ; McKenna
v.
Edmundstone, 91
Id.
231; People
v.
Quigg, 59
Id.
88.
Whatever purpose the legislature may have had in view, therefore, in the enactment of section 2143, it is clear that it could not have been intended to operate as a repeal of section 58, for they well knew that even if the Penal Code had in fact been passed' after the Consolidation Act, it would not have affected the provisions of section 58, which are special and local in their application, being "applicable only to members of the common council and other municipal officers of the city of New York, and that to repeal these provisions, special reference to them, or some other manifestation of the intent to repeal them than merely giving to the Penal Code the position of the later statute, was necessary. They were not therefore guilty of the absurdity 'of enacting section 58," and inserting in the same act a provision which would prevent its operation.
But looking a little further into the subject we find that at the time of the passage of the Penal Code there was, and for many
*539
years had been, in force a special local statute for the punishment of bribery of members of the common council and other municipal officers of the city of New York, which differed materially from the general law on the subject of bribery, and that this special local statute was' not only unaffected by the Code, but was retained in force by an express provision of the Code itself. Prior to the adoption of the Penal Code the general provisions of law on the subject of bribery were contained in the act of 1853 (chapter 539), entitled
“
An act to amend the existing laws relative to bribery,” and chapter 742 of the laws of 1869, entitled “ An act for the more effectual suppression and punishment of bribery." The act of 1853 amended the Bevised Statutes, and enumerated the various officérs who might commit the crime, including the Governor, State officers, members of the legislature, judiciary, and also members of the common council or corporation of any city in this State, and imposed a maximum punishment on the offending officer of ten years imprisonmenf and $5,000 fine, besides forfeiture of office and disqualification. The act of 1869 was more general in its terms. It did not enumerate the officers, but applied to
“
any person holding office under the laws of this State,” who should receive or consent to receive a bribe. It imposed upon the party convicted a maximum punishment of five years imprisonment in the State prison and $5,000 fine. It omitted the punishment of forfeiture of office and disqualification from holding office, which was contained in the Bevised Statutes and in the act of 1853, and it contained this remarkable provision:
“
§ 2. No person who has heretofore paid or offered, or shall hereafter pay or offer a bribe to any person holding office under the laws of this State, which has been or shall be accepted in whole or in part, shall be liable to criminal prosecution therefor.”
This was the general law of the. State on the subject of bribery when the Penal Code was adopted, but at the same time there were in force special and local statutes on that subject applicable to members of the common council and other municipal officers of the city of New York and some of the other cities of the State, which differed from the general law.
*540
The act to amend the charter of the city of New York
(Laws of
1853, chap. 217, § 14) contained a provision substantially in the same form as section 58 of the Consolidation Act, making the acceptance of a bribe or of a promise of a bribe by any member of the common council or officer of the corporation a. felony punishable by forfeiture of the office and disqualification from holding office under the city and by imprisonment in the-State prison for ten years, or a fine of five thousand dollars, or both, thus conforming to the general law of 1853 on the subject of bribery.
The charter of 1857
(Laws of
1857, chap. 446), entitled “An act to amend the charter of the city of New York,” section 52, re-enacted the foregoing provision of the charter of 1853, but reduced the maximum punishment to two years imprisonment in the penitentiary and $5,000 fine, besides being disqualified from holding any office under the city of New York. This was the first enactment which imposed a punishment for bribery on a member of the common council of the city of New York different from that established by the general law.
This provision was re-enacted in the charter of 1870
(Laws of
1870, chap. 137, § 114), and was again re-enacted in the charter of 1873
(Laws of
1873, chap. 335, § 100) in the same language, and was in force at the time of the passage of the Penal Code.
Thus it will be seen that for nearly twenty-five years before the passage of the Penal Code it had been the law under the charters of the city of New York that the maximum punishment which could be inflicted upon a member- of the common council of that city for accepting a bribe, was two years imprisonment in the penitentiary and five thousand dollars fine, and a disqualification from holding any office or public trust under the city.
The general provision in the Penal Code for the punishment of bribery did not, under the general rule for the com struction of statutes before adverted to, operate to repeal or alter this provision contained in the charter even if the Penal Code be treated as the last enactment. It would be assumed in conformity with that rule that the general law was not
*541
intended to affect the local law unless the intention that it should affect it plainly appeared. But so far from there being any appearance of such an intention the precise contrary is made manifest by section 725 of the Penal Code, which provides :
“ Sec. 725. Nothing in this Code affects
any of the provisions
of the following statutes; but such statutes are recognized as continuing in force notwithstanding the provisions of this Code, except so far as they have been repealed or affected by subsequent laws.”
Then follows an enumeration of the laws not affected by ■the Code, which enumeration includes “all acts incorporating municipal corporations, and acts amending acts of incorporation •or charters of such corporations.”
In view of this plain provision of the Code, the legislature may well have adopted section 2143 of the Consolidation Act without deeming that by so doing they impaired any provision •of the charter of the city of New York which was embraced m the Consolidation Act. The Penal Code was before the legislature when the Consolidation Act was passed, the Penal Code having been passed at a previous session; the difference between the punishment prescribed for bribery in that Code and in section 100 of the charter of 1873 and section 58 of the •Consolidation Act was plainly apparent, but at the same time it was provided that nothing in the Code should affect
any
of the
provisions
of any charter or act amending the charter of a municipal corporation. It was obvious, in view of the saving •clause, that had the Code been in fact passed after the Consolidation Act, it could have had no effect upon the provisions of section 58.
It is argued that it cannot be supposed that the legislature intended to provide for the punishment of the crime of bribery in one class of officers by one measure of punishment, and that for precisely the same offense they should prescribe a different punishment for a different class of officers. It is indeed difficult to assign a reason for making the distinction, and especially for making the punishment of bribery comparatively so light in respect to members of the common council of the city of
*542
New York, when the magnitude of the interests controlled by that body is considered. But, nevertheless, the distinction has been made, and has existed ever since 1857 in the city of New York, and also in several other cities of the State. By the charter of Long Island City
(Laws of
1871, chap. 471, title 2, § 1), any city officer found guilty of bribery or corruption is punishable by imprisonment in the State prison for a term not less than three nor more than ten years, or a fine of five thousand dollars, or both.
In this case it will be observed the provision is more severe than that of the general law, for it prescribes a minimum punishment of three years imprisonment.
By the act amending the charter of the city of Brooklyn
{Laws of
1873, chap. 863, title 19, § 22), any member or officer of the common council, or any city officer receiving a bribe, is . declared guilty of a felony, and punishable by imprisonment in the State prison for a term of not less than three nor more than five years. '
• These provisions clearly were left in force by the Penal Code, and after the passage of that Code, in the charter of the city of Albany, adopted in 1883
(Laws of
1883, chap. 298, title 18, § 6), a provision w^s inserted that any member of the common council or other officer of the city who should accept a bribe or a promise of a bribe, should be disqualified from holding office under the city of Albany, and be punished by imprisonment in the penitentiary not exceeding two years, or by a fine not exceeding five thousand dollars, or both, which provision is almost identical with section 58 of the Consolidation ■ Act There is no ground upon which it can be pretended that the provisions of that act are affected by the Penal Code, which took effect December 1, 1882.
The contention, that it was the policy of the legislature to provide a uniform punishment throughout the State for the ■ crime of bribery, is not_ sustained by reference to its acts. It rather seems to have been the practice to pass local laws, operative .in the several municipalities providing for the punishment of the municipal officers when guilty of bribery. Several ingenious arguments have been presented by the counsel for
*543
the people for the purpose of avoiding the plain language of these statutes. It is urged that subdivision 1 of section 725 of the Penal Code, which declares that nothing in that Code affects any of the provisions of any act incorporating a municipal corporation or amending the charter of such corporation, is qualified by subdivision 4, of section 725, which enumerates among the statutes not affected by the Code “all acts defining and providing for the punishment of offenses not defined and made punishable by this Code.” We fail to perceive how this provision affects subdivision 1. It is an additional exception and covers all enactments, though riot contained in any municipal charter, which provide for the punishment of particular offenses not provided for in the Code.
The usual general repealing clause in section 726, of all acts and parts of acts inconsistent with the provisions'of the Code, is also referred to. But that clause in a general law is not sufficient to repeal a special local law riot' referred to in terms, and which is capable of co-existing with the general law. Whipple
v.
Christian, 80
N. Y.
523, 526 ;
In re
Evergreens, 47
N. Y.
216 , and other cases;
In re
Commissioners of Central Park, 50
N. Y.
493 .
A provision affecting only a certain locality or a speeded class of persons is not necessarily inconsistent with a general law, but is an exception to it. The discussion of that question is, however, unnecessary when we find that the general law expressly ratifies and recognizes the exception.
The entire repealing section 726 reads as follows:
“Sec. 726. All acts and parts of acts which are inconsistent with the provisions of this act' are repealed so far as they impose any punishment for crime, except as herein provided.”
The words “so far as they impose any punishment for crime,” are commented upon in support of the position that so much of the Consolidation Act as prescribes the punishment for bribery was intended to be embraced in the repeal. It is difficult to see how this could be when it is remembered that the Consolidation Act had not then been passed. But to meet that point it is sought to apply the language to the charter of 1873. This is equally impossible when we recall the provision of section
*544
725, that
nothing
in the Code affects “any provision” of any charter act of a municipal corporation; and the concluding sentence of section 726 settles the question by declaring that inconsistent acts imposing punishment for crime are repealed, “ except as herein provided,” thus recognizing that some acts inconsistent with the Code imposing punishment for crime are excepted .from the repeal and are retained in force. The charter acts referred to come within this category.
The further ground is taken that section 100 of the charter of 1873 and section 58 of the Consolidation Act stand upon' the footing of a mere municipal ordinance created by the legislature and making that a crime against the corporation which in some of its features is also a crime against the State, and that consequently the general law against bribery is in full force, notwithstanding the special law relating to the city of New York. .
This argument it is difficult to understand. If, under authority conferred by the legislature, an ordinance had been passed by the corporation for the punishment of an offense, there would be force in the suggestion that if the same offense were punishable under the general laws of the State they could be enforced and would not be superseded by the corporation ordinance. But the provision in question was not a corporation ordinance. It was a law of the State, enacted by the same authority as the Penal Code, and although affecting only particular local officers, had all the force with respect to crimes committed by them of a law of the State.
Our conclusion is that the judgment of the Supreme Court and of the Court of Oyer and Terminer must be reversed and a'new trial ordered.
Earl, J. concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3582819. Public record. Not legal advice.