Van Brunt, P. J.:
In approaching the consideration of the questions which are involved in this appeal, it is first of all necessary to determine what [102]*102the Legislature intended by the amendments to the laws regulating preferences in civil actions which it enacted during the last session, as the legislative intention must always be sought after, and must control in the interpretation of statutes.
In determining this question we must look at the provisions of the Code of Civil Procedure regarding preferences as they then stood and the interpretation that had been put upon them by the courts at the time of the legislation in question.
By section 791 of the Code of Civil Procedure the Legislature had provided that civil causes should be “ entitled to preference among themselves in the trial or hearing thereof in the following order * * *.”
Then follows a long list of causes, among which appear actions for libel or slander.
Section 793 then provided for the procedure by which the preference awarded by section 791 was to be obtained.
In the counties of New York, Kings, Queens and Erie and in the seventh judicial district, the application for a preference was required to be made “ at the opening of the court, or to such justice or other term of court, or at such other time as shall be prescribed by the general or special rules of practice, and if it shall appear that the cause is entitled to a preference, and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard.”
Under these provisions the courts had held that it was discretionary with them, when an application for a preference was made, whether to allow the same or not, dependent upon the conditions of the particular case and of the other cases which were entitled to their attention.
This being the condition of the law, the Legislature at its last session amended the last paragraph of section 793 of the Code of Civil Procedure to read as follows: “ In said counties of New York, Kings, Queens and Erie and in the seventh judicial district, the application for a preference shall be made at the opening of the court, or to such justices or other term of court, or at such other time as shall be prescribed by the general or special rules of practice, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the [103]*103application is made, the court or justice must designate a day certain, dwrvng that term, on which day the said ca/use shall then be heard / if there be two or more causes so designated for trial for the same dag/, the said causes shall be heard in the order of their date of issue.”
Under the law as it stood before the last amendment, as has been said, the courts were allowed some discretion in the matter. They could see that no injustice was done in the giving of the preference provided for by the statutes, as it was their duty to do. The provisions upon which the courts had based their right to exercise this discretion were, by the amendment of the last session of the Legislature, stricken from the statutes, and they have been replaced by words of the most mandatory character. By this change in the statute it would seem to have been, without doubt, the intention of the Legislature to take away the right to exercise any discretion, because it commands the court or justice to set the case down for trial on a day certain in the term for which it is moved, and to try the case on that day. The mandate of the Legislature is to try at that term and upon that day. It says to the court: “ You are to have no discretion, no matter what may be the condition of either of the parties as to their evidence, or ability to get ready for trial; if the other party desires a trial at that term, he is entitled to have it, and you mtist hear the case on that day.”
This intention is emphasized by the provisions for the only excuse permissible under the statute for not trying the case upon the set-down day, viz., that there is another preferred case set down for that day of an older issue. If this legislation does not mean this, what can it mean ? The statute, before its amendment, gave the courts discretion. If it was not intended to take away all discretion, why was the statute amended by striking out all words allowing discretion and inserting language of the most mandatory kind? No other conclusion can be arrived at than that the Legislature intended to take away all right of the court to exercise discretion in these matters.
The question, then, is presented : Has the Legislature the authority to strip the courts of all those discretionary powers that they have exercised ever since their organization ? And is a judgment obtained by such a procedure, in which a party may be deprived of [104]*104all opportunity to prepare for trial and afforded no opportunity to avail himself of the usual and ordinary means of getting his evidence before the court, a judgment obtained by due process of law ?
It is undoubtedly true that under the Constitution the Legislature has the power to alter and regulate the proceedings in law and equity which it has heretofore exercised, but it has never before attempted to compel the courts to give a hearing to a particular suitor to the absolute exclusion of others who have an equal claim upon its attention.
One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.
That a mere ministerial duty cannot be imposed upon a court has long been recognized as inconsistent with its judicial functions, for the exercise of which alone, under our system of government, are courts organized, the ministerial and executive and legislative functions being lodged in other and independent branches of the government.
It is claimed in the case at bar that the Legislature, in providing that the court shall put the case down for trial on a day certain in the term for which it" is moved, and try the case on that day, is compelling the court to perform a ministerial act depriving it of all discretion as to the day of trial. Upon the other hand, it is contended that the court or a justice has the judicial function to perform of determining whether the case is entitled to a preference under the statute, and that it is only when it or he has performed this judicial act that it or he must “ designate,” etc. This is undoubtedly true so far as determining the question of preference is concerned. But there are further judicial functions which have always heretofore been exercised by the courts in connection with the fixing of days for the trial of causes pending before them and the commencement of such trials, namely, whether it would be just to the parties to compel a trial at the time aked for. In determining this question the courts have always exercised their judicial discretion, and the want of its [105]*105exercise in favor of postponement in a proper case has been held to be error upon appeal.
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Van Brunt, P. J.:
In approaching the consideration of the questions which are involved in this appeal, it is first of all necessary to determine what [102]*102the Legislature intended by the amendments to the laws regulating preferences in civil actions which it enacted during the last session, as the legislative intention must always be sought after, and must control in the interpretation of statutes.
In determining this question we must look at the provisions of the Code of Civil Procedure regarding preferences as they then stood and the interpretation that had been put upon them by the courts at the time of the legislation in question.
By section 791 of the Code of Civil Procedure the Legislature had provided that civil causes should be “ entitled to preference among themselves in the trial or hearing thereof in the following order * * *.”
Then follows a long list of causes, among which appear actions for libel or slander.
Section 793 then provided for the procedure by which the preference awarded by section 791 was to be obtained.
In the counties of New York, Kings, Queens and Erie and in the seventh judicial district, the application for a preference was required to be made “ at the opening of the court, or to such justice or other term of court, or at such other time as shall be prescribed by the general or special rules of practice, and if it shall appear that the cause is entitled to a preference, and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard.”
Under these provisions the courts had held that it was discretionary with them, when an application for a preference was made, whether to allow the same or not, dependent upon the conditions of the particular case and of the other cases which were entitled to their attention.
This being the condition of the law, the Legislature at its last session amended the last paragraph of section 793 of the Code of Civil Procedure to read as follows: “ In said counties of New York, Kings, Queens and Erie and in the seventh judicial district, the application for a preference shall be made at the opening of the court, or to such justices or other term of court, or at such other time as shall be prescribed by the general or special rules of practice, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the [103]*103application is made, the court or justice must designate a day certain, dwrvng that term, on which day the said ca/use shall then be heard / if there be two or more causes so designated for trial for the same dag/, the said causes shall be heard in the order of their date of issue.”
Under the law as it stood before the last amendment, as has been said, the courts were allowed some discretion in the matter. They could see that no injustice was done in the giving of the preference provided for by the statutes, as it was their duty to do. The provisions upon which the courts had based their right to exercise this discretion were, by the amendment of the last session of the Legislature, stricken from the statutes, and they have been replaced by words of the most mandatory character. By this change in the statute it would seem to have been, without doubt, the intention of the Legislature to take away the right to exercise any discretion, because it commands the court or justice to set the case down for trial on a day certain in the term for which it is moved, and to try the case on that day. The mandate of the Legislature is to try at that term and upon that day. It says to the court: “ You are to have no discretion, no matter what may be the condition of either of the parties as to their evidence, or ability to get ready for trial; if the other party desires a trial at that term, he is entitled to have it, and you mtist hear the case on that day.”
This intention is emphasized by the provisions for the only excuse permissible under the statute for not trying the case upon the set-down day, viz., that there is another preferred case set down for that day of an older issue. If this legislation does not mean this, what can it mean ? The statute, before its amendment, gave the courts discretion. If it was not intended to take away all discretion, why was the statute amended by striking out all words allowing discretion and inserting language of the most mandatory kind? No other conclusion can be arrived at than that the Legislature intended to take away all right of the court to exercise discretion in these matters.
The question, then, is presented : Has the Legislature the authority to strip the courts of all those discretionary powers that they have exercised ever since their organization ? And is a judgment obtained by such a procedure, in which a party may be deprived of [104]*104all opportunity to prepare for trial and afforded no opportunity to avail himself of the usual and ordinary means of getting his evidence before the court, a judgment obtained by due process of law ?
It is undoubtedly true that under the Constitution the Legislature has the power to alter and regulate the proceedings in law and equity which it has heretofore exercised, but it has never before attempted to compel the courts to give a hearing to a particular suitor to the absolute exclusion of others who have an equal claim upon its attention.
One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.
That a mere ministerial duty cannot be imposed upon a court has long been recognized as inconsistent with its judicial functions, for the exercise of which alone, under our system of government, are courts organized, the ministerial and executive and legislative functions being lodged in other and independent branches of the government.
It is claimed in the case at bar that the Legislature, in providing that the court shall put the case down for trial on a day certain in the term for which it" is moved, and try the case on that day, is compelling the court to perform a ministerial act depriving it of all discretion as to the day of trial. Upon the other hand, it is contended that the court or a justice has the judicial function to perform of determining whether the case is entitled to a preference under the statute, and that it is only when it or he has performed this judicial act that it or he must “ designate,” etc. This is undoubtedly true so far as determining the question of preference is concerned. But there are further judicial functions which have always heretofore been exercised by the courts in connection with the fixing of days for the trial of causes pending before them and the commencement of such trials, namely, whether it would be just to the parties to compel a trial at the time aked for. In determining this question the courts have always exercised their judicial discretion, and the want of its [105]*105exercise in favor of postponement in a proper case has been held to be error upon appeal. It certainly cannot be that the Legislature can say that the court or a justice shall be justified in compelling A to go to trial under exactly the same circumstances wherein it would be error to compel B to go to trial. And yet this is what this act commands the court or a justice to do.
It seems to me that no one can read the amendatory law, having in mind, as he is bound to do, the previous condition of the law upon the subject, without having the conclusion forced upon him that the Legislature intended to deprive the courts of all discretion and to compel them to try these cases at the term for which they are moved, thus depriving the courts of the right to exercise that judicial discretion which has always been their prerogative. I do not think that the Legislature can do this. The courts are not the puppets of the Legislature. They are an independent branch of the government, as necessary and powerful in their sphere as either of the other great divisions. And while the Legislature has the power to alter and regulate the proceedings in law and equity, it can only exercise such power in that respect as it has heretofore exercised; and it has never before attempted to deprive the courts of that judicial discretion which they have been always accustomed to exercise.
There is another view that may be taken of this extraordinary provision which is equally fatal to its constitutionality. Under this law, may not a party be deprived of life, liberty or property without due process of law ? “ In discussing the constitutionality of this act, it is to be remembered that the question is to be determined not by what has been done under it in any particular instance, but by what may be done under and by virtue of its authority. (Stuart v. Palmer, 74 N. Y. 183; Gilman v. Tucker, 128 N. Y. 190, 200.)” (Colon v. Lisk, 153 N. Y. 194.) “ It is difficult to define with precision the exact meaning and scope of the phrase ‘ due process of law.’ Any definition which could be given would probably fail to comprehend all the cases to which it would apply. It is probably wiser, as recently stated by Mr. Justice Miller of the United States Supreme Court, to leave the meaning to be evolved ‘ by the gradual process of judicial inclusion, and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions [106]*106may be founded.’ (Davidson v. Board of Administrators of New Orleans, 17 Albany Law Journal, 223.) It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard and to defend, enforce and protect his rights. A hearing or an opportunity to be heard, is absolutely essential. We cannot conceive of due process of law without this.” (Earl, J., in Stuart v. Palmer, 74 N. Y. 191.)
The provisions of the act in question require that the right to a preference and the intention to try at the term for which the application is made, being shown, the court or justice must designate a day certain during that term, on which day the justice holding the court must try the cause, no matter whether the party moved against is ready for trial or not, no matter whether he has used due diligence to get ready or not, no matter whether his witnesses are sick or temporarily absent from the State or not, no matter whether his witnesses may reside in foreign countries and he has had no opportunity to take their evidence upon commission in the usual way or not. The court or justice is commanded to set the cause down for a day certain, and try it on that day. Oan it be said that the court would not be justified under this law in going on with the trial under such circumstances ? Clearly not. It is commanded so to do, and it has never yet been held to be error to obey the plain mandate of a constitutional law; on the contrary, it would be error if it did not follow it. Can a judgment obtained under such circumstances be said to be obtained by due process of law ? It seems to me clear that it cannot.
In the case of People ax rel. Witherbee v. Supervisors (70 N. Y. 234) due process of law is defined as follows : “ Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the Constitution and the usages of the common law, would be a protection to him or his property.” He is not only to be brought into court, but must have an opportunity to present his evidence. If he is not allowed sufficient time to prepare his evidence, according to the usual means of obtaining evidence for use in courts of justice, his so-called day in court is only a snare and a delusion. He is deprived of a right which is not only accorded to [107]*107other suitors, but which it would be error to refuse them. This cannot be due process of law. The process of the law includes every step from summons to judgment, and if a party is deprived of any right usually accorded to others, it is not due process of law.
The United States Supreme Court discussed quite at large the question as to what is due process of law, in the case of Hovey v. Elliott (167 U. S. 409). In that case it was held that it was not within the power of the Supreme Court of the District of Columbia to order the answer of the defendant in a chancery suit pending in that court to be stricken from the files, and a decree to be entered that the bill be taken pro confesso against him, simply because he was held to be guilty of contempt in neglecting to pay into court money held by him which was the subject of controversy in the suit, and declined to appear when summoned to do so.
The learned justice writing the opinion of the court in the case cited truly says: “ At common law no man was condemned without being afforded opportunity to be heard. Thus Coke (2 Inst, p. 46), in commenting on the 29th chapter of Magna Charta, says: ‘No man shall be disseized, etc., unless it be by the' lawful judgment ; that is, verdict of his equals (that is, of men of his own condition) or by the law of the land (that is, to speak it once for all), by the due course and process of law.’ ”
He calls attention to the definition of Judge Cooley in his Constitutional Limitations (
In the case of Galpin v. Page (18 Wall. 350) the same court said: “ It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to [108]*108appear, and has been afforded an opportunity to be heard. Judgment- without such citation and opportunity wants all the attributes of a judicial determination ; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.”
It is thus seen that the rule which runs through all these cases is that not only shall a party be brought into court, but after he is brought into court he shall have an adequate opportunity to be heard according to the general rules prevailing in courts of justice. (Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S., 230.) In other words, that he shall have an opportunity to prepare his case for trial, to produce witnesses and to be heard in court by his witnesses, in the same manner and under the same conditions as suitors generally before the court.
It is no answer to this proposition to say that the Legislature has provided a procedure; and that as it has the power under the Constitution to regulate procedure, it has only acted within its constitutional limitations. The courts have said in enforcing the protection guaranteed by the Constitution when sought to be invaded by the Legislature that “ the Legislature is not vested with the power to arbitrarily provide that any procedure it may choose to declare such shall be regarded as due process of law. If it possessed that power, the guarantees of the Constitution would be rendered unavailing, and private rights of citizens would be within its absolute control.” (Colon v. Lisk, 153 N. Y. 195.)
It being clear that every party is entitled to the same opportunity to procure and present his evidence upon the trial that usually obtains in courts of justice; and that this amendment tó the statute requires the court to act in such a way that it may deprive him of that right, it seems to be manifest that the amendment is unconstitutional, as allowing a party to be deprived of life, liberty or property without due process of law. It is what may be done, not what has been done, that determines the constitutionality of an act of the Legislature.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Patterson, O’Brien and Hatch, JJ., concurred ; Laughlin, J., dissented.
Dartmouth College v. Woodward (4 Wheat. 581).— [Rep.