Boardman, J.
— The defendant had been held to await the action of the grand jury, to convene at Hay term, 1883, of ' the Albany oyer and terminer. Before the grand jurors were sworn in the defendant by counsel appeared and filed a paper containing certain objections to the grand jury and prayed the court to discharge them. The district attorney opposed this application. It was thereupon consented by both parties that the motion should stand over without prejudice to defendant’s rights, or to the right and duty of the court, that if an indictment should be found the objections should.be considered and determined with the same force and effect as if decided prior to the organization of the grand jury. The grand jury then organized found an indictment against the defendant. About three months thereafter an order was made in said oyer and terminer that as to said defendant the body impanneled as a [21]*21grand jury be set aside and discharged as of the date of the first presentation of the objections; that the said indictment be not received and stand as quashed; that such order was to take effect as of May seventh; that nothing therein was to affect the action of said grand jurors as to persons not having made such objections. From this order the people appeal, and counsel on each side desire that the case may be considered and disposed of on the main question rather than - upon any technical ground which does not dispose of the merits.
In the first place there is an obvious inconsistency in the order. A grand jury cannot be discharged as to some of the persons indicted and remain as to the others. If discharged as to some it must be discharged as to all, otherwise there would or might be two grand juries at the same time, because the section which provides for discharging a grand jury requires the summoning of another (Code of Crim. Pro., 238).
Again it is obvious that when a body of men have been sworn and impanneled as a grand jury, and as such have found indictments, they may be discharged as having finished their labors. But the}' cannot be discharged retroactively, as is attempted in this order, so that the order shall take effect as of a date prior to their action as a grand jury. Undoubtedly the indictments found by them may, for good cause, be quashed. But that is a very different matter. Ho order of the court taken subsequent to the finding of the indictment, can alter the fact that a body of men, summoned as a grand jury, were not discharged, but acted as such and found the indictment.
But counsel on both sides express the wish that this appeal should be considered as if the order had, in fact, been made on the seventh of May. And therefore we pass over the inconsistencies above mentioned. Still they seem to have occurred to the learned justice, because the order, not only discharges the grand jury nunc pro tunc, which could not have been done, but it also quashes or sets aside the indictment.
And thus we have the further difficulty that an order which [22]*22is to take effect May seventh, quashes or sets aside an indictment which had not then been found ; that is, it quashes it in advance.
The learned justice well expresses in his opinion, the doubt as to what the order should be. Let us next inquire whether the order was proper so far as it quashed the indictment. The objections raised are precisely those ui-ged in the Petrea case (64 How., 139; 65 How., 59). It was in that case held by the court of appeals affirming the decision of this court and of the court of sessions-, that where an indictment had been found by a grand jury drawn under this very law and in the very manner now in question, it should not be quashed on the defendant’s motion.
It cannot be necessary or proper to argue that question again. Whatever else may have been said in the opinion of the court of appeals, that principle was absolutely decided, and such decision should govern. The oyer and terminer then should not in this case have quashed the indictment.
We think the learned justice must have seen that his decision in this respect was contrary to the law of the Petrea case, for a large part of his opinion is made up of citations of authorities, principally from other states, tending to show that the decision of the court of appeals is wrong, and that an indictment found by a grand jury selected under an unconstitutional law should be quashed on the defendant’s motion. It is suggested, however, that although' an indictment after it is found ought not to be quashed upon the grounds urged in the Petrea case, yet if these grounds were presented to the court before the indictment was found, as a reason for quashing it after it should be found, then the decision in the Petrea case would not apply and the indictment should be quashed. But this cannot be. That decision held that no constitutional right of the defendant was invaded by holding him to answer under the indictment, although the same facts appear there as here. An indictment cannot be quashed before it is found.; After it is found the facts now alleged present no reason for [23]*23quashing it, as was decided in the Petrea case. Hence the same facts can never he a ground for quashing an indictment, because until an indictment shall be found a motion to quash cannot be made. But again, this order discharges the grand jury or the body so called, and by agreement of counsel we are to consider the order as ir it had been made May seventh.
The first objection to this part of the order which is obvious is that just stated, viz., that on a motion by a person held to trial the court assumed to discharge the grand jury as to him, and allow it to stand as to others. How could such an order be properly made at the opening of the court, or at any other time? Would the court, on the seventh of May, have summoned another especially for this defendant? Would the court have charged the one grand jury to inquire as to all crimes except those of Thomas Fitzpatrick, and the other to inquire as to his only ? It is plain that even when we treat this order as one made at the opening of the court it is inconsistent with itself.
Again, there are more serious objections. This paper filed by the defendant, call it by any name he may please, is really in effect a challenge to the array. This is a well known term which calls for no definition. Similar objections were defined to be a challenge in the Petrea case (64 How., 139; 65 How., 59.)
How, the Code of Criminal Procedure (sec. 238) forbids any challenge to the panel or to the array of a grand jury. The counsel for the defendant urges that this section does not prevent objections made before the grand jury is impanneled. But a challenge is an objection made to the swearing in and impanneling of the grand jury, not an objection made after they are sworn in and impanneled. Such had been the ordinary meaning of the word, and in that sense the legislature must have used it when it forbade challenges to the panel or array. It would be trifling to enact a section which meant that challenges to the panel or array could not be made after a grand jury Avas sworn in and impanneled but might be made before.
[24]*24The learned justice, however, takes another view and thinks that the challenges to the panel or array, which are forbidden by this section, are challenges to a legal panel or array of grand jurors and not challenges to an illegal panel.
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Boardman, J.
— The defendant had been held to await the action of the grand jury, to convene at Hay term, 1883, of ' the Albany oyer and terminer. Before the grand jurors were sworn in the defendant by counsel appeared and filed a paper containing certain objections to the grand jury and prayed the court to discharge them. The district attorney opposed this application. It was thereupon consented by both parties that the motion should stand over without prejudice to defendant’s rights, or to the right and duty of the court, that if an indictment should be found the objections should.be considered and determined with the same force and effect as if decided prior to the organization of the grand jury. The grand jury then organized found an indictment against the defendant. About three months thereafter an order was made in said oyer and terminer that as to said defendant the body impanneled as a [21]*21grand jury be set aside and discharged as of the date of the first presentation of the objections; that the said indictment be not received and stand as quashed; that such order was to take effect as of May seventh; that nothing therein was to affect the action of said grand jurors as to persons not having made such objections. From this order the people appeal, and counsel on each side desire that the case may be considered and disposed of on the main question rather than - upon any technical ground which does not dispose of the merits.
In the first place there is an obvious inconsistency in the order. A grand jury cannot be discharged as to some of the persons indicted and remain as to the others. If discharged as to some it must be discharged as to all, otherwise there would or might be two grand juries at the same time, because the section which provides for discharging a grand jury requires the summoning of another (Code of Crim. Pro., 238).
Again it is obvious that when a body of men have been sworn and impanneled as a grand jury, and as such have found indictments, they may be discharged as having finished their labors. But the}' cannot be discharged retroactively, as is attempted in this order, so that the order shall take effect as of a date prior to their action as a grand jury. Undoubtedly the indictments found by them may, for good cause, be quashed. But that is a very different matter. Ho order of the court taken subsequent to the finding of the indictment, can alter the fact that a body of men, summoned as a grand jury, were not discharged, but acted as such and found the indictment.
But counsel on both sides express the wish that this appeal should be considered as if the order had, in fact, been made on the seventh of May. And therefore we pass over the inconsistencies above mentioned. Still they seem to have occurred to the learned justice, because the order, not only discharges the grand jury nunc pro tunc, which could not have been done, but it also quashes or sets aside the indictment.
And thus we have the further difficulty that an order which [22]*22is to take effect May seventh, quashes or sets aside an indictment which had not then been found ; that is, it quashes it in advance.
The learned justice well expresses in his opinion, the doubt as to what the order should be. Let us next inquire whether the order was proper so far as it quashed the indictment. The objections raised are precisely those ui-ged in the Petrea case (64 How., 139; 65 How., 59). It was in that case held by the court of appeals affirming the decision of this court and of the court of sessions-, that where an indictment had been found by a grand jury drawn under this very law and in the very manner now in question, it should not be quashed on the defendant’s motion.
It cannot be necessary or proper to argue that question again. Whatever else may have been said in the opinion of the court of appeals, that principle was absolutely decided, and such decision should govern. The oyer and terminer then should not in this case have quashed the indictment.
We think the learned justice must have seen that his decision in this respect was contrary to the law of the Petrea case, for a large part of his opinion is made up of citations of authorities, principally from other states, tending to show that the decision of the court of appeals is wrong, and that an indictment found by a grand jury selected under an unconstitutional law should be quashed on the defendant’s motion. It is suggested, however, that although' an indictment after it is found ought not to be quashed upon the grounds urged in the Petrea case, yet if these grounds were presented to the court before the indictment was found, as a reason for quashing it after it should be found, then the decision in the Petrea case would not apply and the indictment should be quashed. But this cannot be. That decision held that no constitutional right of the defendant was invaded by holding him to answer under the indictment, although the same facts appear there as here. An indictment cannot be quashed before it is found.; After it is found the facts now alleged present no reason for [23]*23quashing it, as was decided in the Petrea case. Hence the same facts can never he a ground for quashing an indictment, because until an indictment shall be found a motion to quash cannot be made. But again, this order discharges the grand jury or the body so called, and by agreement of counsel we are to consider the order as ir it had been made May seventh.
The first objection to this part of the order which is obvious is that just stated, viz., that on a motion by a person held to trial the court assumed to discharge the grand jury as to him, and allow it to stand as to others. How could such an order be properly made at the opening of the court, or at any other time? Would the court, on the seventh of May, have summoned another especially for this defendant? Would the court have charged the one grand jury to inquire as to all crimes except those of Thomas Fitzpatrick, and the other to inquire as to his only ? It is plain that even when we treat this order as one made at the opening of the court it is inconsistent with itself.
Again, there are more serious objections. This paper filed by the defendant, call it by any name he may please, is really in effect a challenge to the array. This is a well known term which calls for no definition. Similar objections were defined to be a challenge in the Petrea case (64 How., 139; 65 How., 59.)
How, the Code of Criminal Procedure (sec. 238) forbids any challenge to the panel or to the array of a grand jury. The counsel for the defendant urges that this section does not prevent objections made before the grand jury is impanneled. But a challenge is an objection made to the swearing in and impanneling of the grand jury, not an objection made after they are sworn in and impanneled. Such had been the ordinary meaning of the word, and in that sense the legislature must have used it when it forbade challenges to the panel or array. It would be trifling to enact a section which meant that challenges to the panel or array could not be made after a grand jury Avas sworn in and impanneled but might be made before.
[24]*24The learned justice, however, takes another view and thinks that the challenges to the panel or array, which are forbidden by this section, are challenges to a legal panel or array of grand jurors and not challenges to an illegal panel. One would suppose there was pot much necessity to prohibit challenges to the panel or array of a legal grand jury. The section means just what it says, that is, that challenges or objections to the panel or array of the grand jury can no longer be taken. It was evidently thought that as the grand jury was only an accusing body, it was unnecessary to give an accused person the right to make objections to the details of its selection. If the Code had not forbidden challenges of this kind, still under the decision of the Petrea case, we do not see how this could be allowed. If the law in question was unconstitutional this could not be asserted by a party whose rights it did not effect (Cooley Const. Lim., 163; People agt. B. F. and C. I. R. R. Co., per Finch, J., MS.; Pierpoint agt. Loveless, 72 N. Y., 211). And the decision in the Petrea case was that the defendant’s constitutional rights were not invaded by holding him to answer the indictment, and, therefore, not invaded by the mode' of selecting the grand jury (Fierey agt. The People, 2 Keyes, 425).
.The learned judge, however, places this order on another ground. Section 238 above cited, after forbidding, provides that the court may, in its discretion, discharge the grand jury and order a new one to be summoned for any of several causes, among them, •“ that the requisite number of ballots was not drawn from the grand jury box of the county.” We can hardly understand how the order appealed from could have , been made in the exercise of that discretion, because the learned justice says in his opinion, that “ whenever it plainly appears that every safeguard of law in the selection of grand jurors has been disregarded,” etc. blow then, ’’that it is by the enactment of the very excellent chapter 532, Laws of 1881,” then it was a wise exercise of discretion to set aside the supposed panel and to order a new panel to be summoned, blow if this were so, the same wise discretion would seem to [25]*25require that other indicted persons should be protected as well as this defendant. And it would seem an unwise exercise of discretion to grant as a special favor to this defendant the safeguard to which others were equally entitled. Yet the order in the discretion, withholds from those who have not made the objections “ the guaranties which the constitution gives to every citizen for his protection.
It may be remarked in passing that while in the opinion of the court of appeals in the Petrea case the act in question was spoken of as unconstitutional, yet it was distinctly held that the question of constitutionality could not be raised by the defendant in that case. As it could not be raised by him it ■ could not in that case be decided by the court. As is said by judge Finch, in People agt. Brooklyn, Flushing and Coney Island Railroad (MS. opinion): “ It is our duty to decide a constitutional question only when it is directly and necessarily involved in the issue to be determined.” Whatever was said as to the unconstitutionality of the law ivas obiter, that it is, was not involved in the decisions, and only served to encourage further efforts to thwart the criminal law.
Was then the discretion proper which was thus exercised by the court of oyer and terminer in favor of Fitzpatrick and refused as to other accused persons ?
The court of appeals had held that such a grand jury was competent to find valid indictments. Why then should the court of oyer and terminer set aside this competent jury ? The requisite number of ballots had been drawn. These ballots had been drawn from the only box and list of jurors made up in the county from which to draw grand jurors.
This box and list were, in fact, the grand jury box and list. It was plainly immaterial what the box was called. It held in fact the names selected under color of law as grand jurors.- And there was no other box or list from which grand jurors could be drawn. This box and list were to such extent the box and list from which to draw grand jurors- and it had been held by the court of appeals that [26]*26a grand jury drawn therefrom was a valid grand jury. For what possible reason or under what discretion then should a grand jury so drawn be set aside ? Not the least objection was made to the competency or qualifications of any or all of them.
If the learned justice had refused to set the jury aside, the indictments found by them would have been valid and the adminstration of the criminal law would not have been obstructed by an objection without any real merit. We think it was not a wise exercise of discretion to set aside a body of unexceptionable men, whose competency to find indictments had been established by the court of appeals.
It seems to us the error which underlies nearly all of the reasoning of the learned justice in his opinion is that he assumes that any man may set up the unconstitutionality of a law although it dees not affect his rights or subject him to any wrong. This is carried a step farther in assuming that it is a wise discretion to set aside a body of competent officers against the mode of selection, of whom even, if it be illegal, no one has the right to set aside any objection.
No objection is made by the defendant to the right of the people to appeal from the order and so that subject is not considered.
The order appealed from should be reversed.
Learned, P. J., and Bocees, J., concur.
Bockes, J.
—I think the order should be reversed. It was, afe I think, improper to quash or set aside the panel as to Fitzpatrick, yet in effect to hold it good as to all other persons charged with crime who omitted to interpose objections, inasmuch as the objections raised a question of jurisdiction. If the panel was without jurisdiction as to Fitzpatrick’s case, it was equally without jurisdiction as to all others similarly charged. But we are asked to consider the case on the merits, just as it was examined in the court of oyer and terminer, to raise the. validity of the objection urged against- the panel by [27]*27Fitzpatrick as regards the mode of drawing, summoning and impanneliug the grand jury. This question, I think, is settled against Fitzpatrick by this court, and by the court of appeals in the Petrea case. It was held in that case that the objections here urged in Fitzpatrick’s behalf could not be maintained by one charged with a criminal offense, further than to see that the action or proceeding challenged as irregular and void was taken under the color of lawful authority / and, as was said in the case cited, it would not alter the case even if such action involved some proceeding of an officer or of officers taken under an unconstitutional law. The court would still retain this jurisdiction over the matter and the proceedings. The authorities upholding this conclusion are cited in Petrea’s case as well in this court as in the court of appeals. It was said in the latter court, in answer to the objections here urged, that an indictment found by a body drawn, summoned and sworn as a grand jury before a competent court, and composed of good and lawful men, fulfil the constitutional guaranty; that a jury so formed was a defacto jury, because selected and organized under the forms of law. That a defect in its constitution owing to the invalidity of a law under which a panel was drawn, affected no substantial right of one charged with crime, hence an objection based thereon was not available to him. So it was held “ that an indictment found by a grand jury of good and lawful men, selected and drawn under color of law, was a good indictment by a grand jury within the sense of the constitution, although the law under which the selection was made was void, it would seem to follow that if an indictment when found would be good and valid, it could hardly be maintained that the grand jury which found it acted without jurisdiction or authority in. the premises. I am of the opinion that the decision in the Petrea case determines all questions presented on this appeal against the objections urged in the oyer in Fitzpatrick’s behalf.
It follows that the order appealed from should be reversed.-