The relator is in the custody of and detained by the defendant by virtue of a commitment issued under section 852 of the Code of Criminal Procedure. Upon the return of the writ of habeas corpus issued
by the county judge of Rensselaer county it was dismissed and the relator remanded to custody by an order which the Appellate Division affirmed.
The proceeding was instituted in the court of the police justice of the city of Troy in Rensselaer county, a city of the second class. It was governed by the provisions of title V, chapter 1 of the Code of Criminal Procedure, except the police justice, instead of two magistrates (Code of Crim. Pro. § 848), conducted it. (Second Class Cities Law [Cons. Laws, ch. 53], § 185.) The relator, whose arrest as the father of the bastard the warrant issued by the police justice directed (Code of Crim. Pro. § 841), resided and under the warrant and the indorsements of it duly made (§ 843) was arrested in Schoharie county. Section 844 provided:
"When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or county, who may take from the defendant an undertaking, with sufficient sureties, to the effect:
"1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation that may be made, or that the sureties will pay the sum indorsed on the warrant; or,
"2. That the defendant will appear and answer the charge at the next county court of the county where the warrant was issued, and obey its order thereon."
The relator was not taken before the magistrate of Schoharie county who indorsed the warrant, or any other magistrate of that county, but was taken before the police justice of Troy, who entered upon the inquiry in respect to the charge against the relator as provided in
section 848. The relator by his counsel objected to the jurisdiction of the police justice to so proceed, upon the ground, among others, that section 844 had not been complied with. The objection was overruled, the inquiry conducted and the order of filiation, certifying the reasonable costs of arresting the relator and the sums to be paid by him for the support of the child and mother, made. (§ 850.)
Section 851 provides:
"If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect,
"1. That he will pay weekly or otherwise, as may have been ordered, the sum directed for the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the county court of the county; and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the magistrate; or,
"2. That he will appear at the next term of the county court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first subdivision of section 844."
Because the relator did not comply with the provisions of this section, he was committed to the county jail. (§ 852.)
The police justice did not have the power, under the facts presented, to subject the relator to the provisions of section 851. The common law did not make the father of a bastard liable for the support of either the mother or the child, and the liability of the relator exists solely by virtue of the statutes. (Todd v. Weber, 95 N.Y. 181; 2 Kent's Com. [13th ed.] p. 215.) The proceedings by which the liability shall be determined and fixed are defined and controlled exclusively by the statutes which must be in their substance strictly and fully complied with. (Hutton v. Bretsch, 216 N.Y. 23.)
In the present case the power of the police justice to proceed beyond the issuance and indorsement of the warrant (§§ 842, 843) depended upon either of the two sets of facts or conditions, that (a) the officer arresting the relator in Schoharie county had taken him before the magistrate of that county, who indorsed the warrant (§§ 843, 844), and the relator did not give an undertaking as provided in section 844 and had been taken before the police justice (§§ 846, 848), or (b) the officer had taken him before the Schoharie county magistrate and the relator gave an undertaking as provided in section 844, had been discharged from arrest (§ 845) and the warrant, indorsed with the certificate of the Schoharie county magistrate of the discharge of the relator, and the undertaking delivered to the police justice. (§§ 845, 854.) The police justice had not the power to commit the relator to the county jail unless the first of such sets of facts or conditions existed. (§ 852.) Unless such facts or condition existed, an order of filiation did not subject the relator to the provisions of section 851. Those conclusions are produced and compelled by the mandatory and imperative commands of the statute. The officer "must" take the defendant before the magistrate of the county of defendant's residence in order that he may take the undertaking (§ 844) and, the undertaking being
given, he "must" discharge the defendant (§ 845), and thereupon the officer "must" deliver the warrant indorsed with a certificate of the discharge, and the undertaking to the magistrate issuing the warrant. If the defendant do not give the undertaking the officer "must" take him before the last-named magistrate, who then and in that event "must" proceed as provided in sections 848-850. When the defendant gives the undertaking, and when it and the warrant indorsed with the certificate of defendant's discharge are delivered to the magistrate who issued the warrant, then and in that event the magistrate "must" proceed as prescribed in section 854, but an order of filiation made while so proceeding does not subject the defendant to the provisions of section 851, and, therefore, does not subject him to any commitment. While the word "must," when used in statutes, is not universally and necessarily mandatory (Jenkins v.Putnam, 106 N.Y. 272; Matter of Thurber, 162 N.Y. 244, 252), here, indubitably, the directions of the sections are mandatory and imperative. The validity of the order of filiation and the commitment depended upon a strict compliance with the substance of them. Such conclusion rests upon either of two rules which, while akin, are not identical. The one, the jurisdiction or, in other words, the power of a judicial tribunal to try or inquire and adjudge in a proceeding purely statutory, in which the subject-matter and the remedy are purely the creatures of the statutes, is delimited and confined by the provisions of those statutes.
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The relator is in the custody of and detained by the defendant by virtue of a commitment issued under section 852 of the Code of Criminal Procedure. Upon the return of the writ of habeas corpus issued
by the county judge of Rensselaer county it was dismissed and the relator remanded to custody by an order which the Appellate Division affirmed.
The proceeding was instituted in the court of the police justice of the city of Troy in Rensselaer county, a city of the second class. It was governed by the provisions of title V, chapter 1 of the Code of Criminal Procedure, except the police justice, instead of two magistrates (Code of Crim. Pro. § 848), conducted it. (Second Class Cities Law [Cons. Laws, ch. 53], § 185.) The relator, whose arrest as the father of the bastard the warrant issued by the police justice directed (Code of Crim. Pro. § 841), resided and under the warrant and the indorsements of it duly made (§ 843) was arrested in Schoharie county. Section 844 provided:
"When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or county, who may take from the defendant an undertaking, with sufficient sureties, to the effect:
"1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation that may be made, or that the sureties will pay the sum indorsed on the warrant; or,
"2. That the defendant will appear and answer the charge at the next county court of the county where the warrant was issued, and obey its order thereon."
The relator was not taken before the magistrate of Schoharie county who indorsed the warrant, or any other magistrate of that county, but was taken before the police justice of Troy, who entered upon the inquiry in respect to the charge against the relator as provided in
section 848. The relator by his counsel objected to the jurisdiction of the police justice to so proceed, upon the ground, among others, that section 844 had not been complied with. The objection was overruled, the inquiry conducted and the order of filiation, certifying the reasonable costs of arresting the relator and the sums to be paid by him for the support of the child and mother, made. (§ 850.)
Section 851 provides:
"If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect,
"1. That he will pay weekly or otherwise, as may have been ordered, the sum directed for the support of the child, and of the mother during her confinement and recovery, or which may be ordered by the county court of the county; and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the magistrate; or,
"2. That he will appear at the next term of the county court of the county, to answer the charge and obey its order thereon, or that the sureties will pay a sum equal to a full indemnity for supporting the bastard and its mother, as provided in the first subdivision of section 844."
Because the relator did not comply with the provisions of this section, he was committed to the county jail. (§ 852.)
The police justice did not have the power, under the facts presented, to subject the relator to the provisions of section 851. The common law did not make the father of a bastard liable for the support of either the mother or the child, and the liability of the relator exists solely by virtue of the statutes. (Todd v. Weber, 95 N.Y. 181; 2 Kent's Com. [13th ed.] p. 215.) The proceedings by which the liability shall be determined and fixed are defined and controlled exclusively by the statutes which must be in their substance strictly and fully complied with. (Hutton v. Bretsch, 216 N.Y. 23.)
In the present case the power of the police justice to proceed beyond the issuance and indorsement of the warrant (§§ 842, 843) depended upon either of the two sets of facts or conditions, that (a) the officer arresting the relator in Schoharie county had taken him before the magistrate of that county, who indorsed the warrant (§§ 843, 844), and the relator did not give an undertaking as provided in section 844 and had been taken before the police justice (§§ 846, 848), or (b) the officer had taken him before the Schoharie county magistrate and the relator gave an undertaking as provided in section 844, had been discharged from arrest (§ 845) and the warrant, indorsed with the certificate of the Schoharie county magistrate of the discharge of the relator, and the undertaking delivered to the police justice. (§§ 845, 854.) The police justice had not the power to commit the relator to the county jail unless the first of such sets of facts or conditions existed. (§ 852.) Unless such facts or condition existed, an order of filiation did not subject the relator to the provisions of section 851. Those conclusions are produced and compelled by the mandatory and imperative commands of the statute. The officer "must" take the defendant before the magistrate of the county of defendant's residence in order that he may take the undertaking (§ 844) and, the undertaking being
given, he "must" discharge the defendant (§ 845), and thereupon the officer "must" deliver the warrant indorsed with a certificate of the discharge, and the undertaking to the magistrate issuing the warrant. If the defendant do not give the undertaking the officer "must" take him before the last-named magistrate, who then and in that event "must" proceed as provided in sections 848-850. When the defendant gives the undertaking, and when it and the warrant indorsed with the certificate of defendant's discharge are delivered to the magistrate who issued the warrant, then and in that event the magistrate "must" proceed as prescribed in section 854, but an order of filiation made while so proceeding does not subject the defendant to the provisions of section 851, and, therefore, does not subject him to any commitment. While the word "must," when used in statutes, is not universally and necessarily mandatory (Jenkins v.Putnam, 106 N.Y. 272; Matter of Thurber, 162 N.Y. 244, 252), here, indubitably, the directions of the sections are mandatory and imperative. The validity of the order of filiation and the commitment depended upon a strict compliance with the substance of them. Such conclusion rests upon either of two rules which, while akin, are not identical. The one, the jurisdiction or, in other words, the power of a judicial tribunal to try or inquire and adjudge in a proceeding purely statutory, in which the subject-matter and the remedy are purely the creatures of the statutes, is delimited and confined by the provisions of those statutes. An invalidity of its determination or adjudication in the proceeding will result from its action in disobedience to or contravention of the statutory requirements, as well as from its lack of power to take cognizance of the claim or accusation — want of jurisdiction of the subject-matter — or to secure the constructive or actual appearance of the defendant or accused — want of jurisdiction of the person. The order of filiation was void unless all the material requirements
of the statute were substantially complied with. (People ex rel.Ritzenthaler v. Higgins, 151 N.Y. 570; Hutton v. Bretsch,216 N.Y. 23; Sprague v. Eccleston, 1 Lans. 74; People v.Crispi, 106 App. Div. 176; Brahmstead v. Ward, 44 Wis. 591;State v. Wakefield, 60 Vt. 618.) The other, compliance with the commands of a mandatory statute, is a condition precedent to the validity of an act or determination under it. The mode or way in which the act shall be done or the determination reached prescribed by it must be strictly pursued, otherwise the act or the determination will be void. (2 Lewis' Sutherland Statutory Const. [2d ed.] § 627; State v. Perkins, 58 Vt. 722;Norwegian Street, 81 Pa. St. 349.)
From the facts and the references to the Code sections already stated it is clear and certain that the police justice did not obey in matters of substance, or proceed in conformity with the statutory requirements. His power, from the commencement of the proceeding to its termination came to him through and as given in those mandatory and imperative provisions and a step or act in the proceeding in disobedience of or in conflict with them wascoram non judice. For the reasons stated the order of filiation was void and the relator did not become subject to the provisions of section 852.
This conclusion does not conflict with the directions of section 684 of the Code of Criminal Procedure to the effect that a departure from the prescribed form or mode of pleadings or proceedings not prejudicing a substantial right of the defendant does not render a judgment or proceeding invalid. The procedure of the officer and the police justice was prejudicial to the relator in three respects: (1) It deprived him of the right to give an undertaking under section 844 in the county of his residence and thereby secure his discharge from arrest. (2) It subjected him to the provisions of sections 851, 852, whereas if he had given an undertaking under section
844 those sections would have been inapplicable. (3) He could give an undertaking under either subdivision of section 844 and have, upon an appeal to the County Court from an order of filiation, a full rehearing, that is, he could appeal from the entire order. He could not give an undertaking under subdivision 1 of section 851 and appeal from the entire order; his appeal in that case would be limited to the part of the order fixing the weekly or other allowances to be paid. (§§ 861, 862, 864, 865, 867.)
The reasons for reversal are not opposed, at any point, to those for the decision in People v. Eberspacher (79 Hun, 410). The mere illegality of the act of the officer in refusing to take the relator before the magistrate of Schoharie county, or in taking him directly before the police justice is not the basis for our conclusion. The basis for it is that the taking of the relator before the Schoharie county magistrate was a condition precedent, by virtue of the statutory requirements, to the making of the inquiry and the order of filiation, and was not fulfilled. This feature was lacking in the Eberspacher case. The relator did not waive the non-fulfillment (Jones v. Jones, 108 N.Y. 415,425; Baird v. Helfer, 12 App. Div. 23) and was not bound to appeal from the order of filiation in order that he might escape its effect. Inasmuch as it was void, because the police justice transgressed his power, the relator might assert its invalidity through the writ of habeas corpus. I concur in the opinion of my brother Chief Judge BARTLETT.
The orders of the Appellate Division and County Court should be reversed and the relator discharged.