[114 N.Y.S. 376] Wallace MacFarlane and Howard Taylor, for petitioner.
John B. Stanchfield, for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
The Association of the Bar of the City of New York has presented to this court a petition alleging that the respondent, a city magistrate of the city of New York, was guilty of such conduct as required his removal from office. A copy of this petition was served upon the respondent, who submitted his answer. The respondent, by his answer, does not directly put in issue any of the allegations of fact in the petition. He admits and alleges that he was appointed a city magistrate on the 18th day of July, 1907; that on January 6, 1908, while holding the magistrate's court in the Second district, he duly convicted one Louise Durand of disorderly conduct tending to a breach of the peace, and that, in pursuance of section 707 of the charter of the city of New York (chapter 466, p. 294, of the Laws of 1901), he committed her to the workhouse for a term of six months, or until the Commissioner of Correction, pursuant to chapter 701 of the charter, should order her discharge, and that the conviction and commitment of the said Louise Durand was after a trial upon which the accused was represented by counsel, and that in pursuance of such conviction the said Louise Durand was taken to the workhouse and commenced her term of commitment; that the day after the commitment a Mr. Rosenbach, a partner of the accused's counsel at the trial, went to one Isaac B. Schavrien, who theretofore had had no connection with the case, but who had been a personal friend of the respondent and who had occupied offices with him before he became a city magistrate; that the respondent talked with Schavrien and Rosenbach over the telephone; that said Schavrien received from Rosenbach a fee of $75 for his interposition in the case, but that the respondent was ignorant of that fact at the time the said conversation was had and until some time thereafter; that immediately after these conversations the respondent signed an order discharging the said Louise Durand, which he delivered to the clerk of the attorney for the convict, who had presented it.
The respondent denies that he executed this order solely as the result of the said telephonic communication, but alleges that there had [114 N.Y.S. 377] come a question in his mind as to the justice of his decision; that on the morning of the 7th of January these facts had been called to his attention in the conversation over the telephone, and that, when the respondent on that morning was brought to a realization that there was grave doubt as to the propriety of the conviction, he concluded that since the defendant had paid a higher penalty for the offense than was usually imposed by the other magistrates, where guilt was clear, she had paid a sufficient penalty for her misconduct, even upon the assumption of guilt, and that, in view of the doubt as to her guilt, the ends of justice would best be met by causing her forthwith to be released upon probation, and accordingly he issued the said order to that effect; that he issued this order without making any further investigation in the matter. The answer then alleges that there is a certain custom among the city magistrates in relation to the discharge upon probation of persons convicted of similar offenses, but admits that after he issued the probation order he did not inform the probation officer of the discharge, nor did he make a record of the same in such a way that the probation officer would know of it, alleging that the failure to make such a record and to notify the probation officer of the discharge was the result of pure inadvertence; alleges that the said release was proper and lawful, and that under the custom the person discharged on probation would not have been required to report had the record been made and the probation officer been notified; and that this act was not done pursuant to the telephone request from his personal friend, but was done as a judicial act, in the exercise of his best judgment and discretion. The court then appointed a hearing upon this petition and answer, which took place in open court, and the respondent produced such witnesses as he desired. The respondent testified to the facts alleged in his answer as explaining and justifying the order that he had made in the Durand case. He testified that it was the prevailing custom among the magistrates to place upon probation people who had been committed to the workhouse, and that he believed that he had a right to place upon probation those he had so convicted of disorderly conduct and committed; that this Durand woman had been arrested on the charge of keeping a disorderly house; that the charge was changed to one of disorderly conduct; that she was represented by counsel, and that he convicted her and committed her to the workhouse for a period of six months; that he had no means of knowing whether this offense was the first offense or not, and that subsequent to the commitment he received information that she was a woman who had been a witness against the police at the Lexow investigation; that on the next morning, at his house, he received a message by telephone from Mr. Schavrien, who had occupied one of a suite of offices with him; that Schavrien told him that Mr. Rosenbach had called to see the respondent at the office in reference to this Durand case; that the Durand woman whom the respondent had convicted was not Durand, but a Mrs. Herman, who had been famous during the Lexow investigation, and that he felt sure that the police had put up a job on her; that Rosenbach wanted to speak to the respondent, and that he could vouch for anything that Rosenbach could say; that Rosenbach then [114 N.Y.S. 378] had a conversation with the respondent over the telephone as to the guilt of the prisoner, and the respondent told Rosenbach that, if he would send up a discharge, the respondent would immediately discharge her; that shortly after he signed the discharge, and gave it to the messenger who presented it; that it was his duty to inform the probation officer, whose duty it was to make the proper entry in the records; that he did not inform the probation officer because he forgot all about it; that at the time he did not know that Schavrien had received any fee from the prisoner; that on the 15th of January one of the probation officers told the respondent that she had received no notification that this woman had been placed on probation, and the respondent told her that he had forgotten to have the entries made and information given to the probation officers; that on this same night (15th of January) the same probation officer told the respondent that a man named Lutz was about to write up some story about the probation work, or in connection with the court; that the next day the respondent asked the probation officer to inquire of a Mr. Alter, one of the lawyers connected with the magistrate's court, about Lutz, as to his character, and whether he knew anything about the story; that the next day Alter called on the respondent at his downtown office, which he then occupied with Schavrien; that Alter said he had seen Lutz, and that Lutz had said that the story was going to be a very scandalous story; that he did not learn from Alter the nature of the story-Lutz had refused to tell the details-but said that it was a story of such a scandalous nature that after it was produced the respondent would probably commit suicide; that the respondent then told Alter that there was nothing in his judicial conduct that he would care about, and Alter then told the respondent that all that Lutz wanted was to be paid for his trouble; that Alter said these people are all out for money, that they say that, if this story can be suppressed for a payment of a few hundred dollars, that would be the last the respondent would hear of it, and then Alter went away to have a further talk with the people who were getting up the story; that Alter again called on the respondent, and said the people would not publish the story if they would pay $10,000, whereupon the respondent told them to go ahead and publish the story; that the next morning Alter came to the respondent's office and told the respondent that the people who had been investigating the respondent had offered to sell the story for $250, and the respondent then gave to Alter $250 with the understanding that the story was to be bought; the witness then said that he had made other discharges in the same way; that he usually gave the discharge to one of the probation officers, but sometimes it was to a person interested in the case.
Upon cross-examination he testified that on the night of the 15th of January he had a conversation with a reporter from the New York World, who said that they were looking over the probation records of the court, but would not give the respondent anything in the nature of an assurance about the story; that the respondent was admitted to the bar here in 1896, and, on being asked as to what law gave to a magistrate power after commitment to discharge a prisoner on probation, the respondent stated that it was section 710 of the charter. The [114 N.Y.S. 379] witness further testified that as a rule he would turn over these charges to the probation officer and let him attend to the rest of it.
One of the probation officers testified that, as a rule, when an application was made to discharge on probation a prisoner after he had been committed to the workhouse by the magistrate, the probation officer investigated the case and tried to verify the statement of the person making the application, and the discharge would depend upon the report of the probation officer; but that it occasionally occurred that this was not done, and the prisoner would be discharged without such investigation; that the usual practice was to order the investigation first.
Schavrien, who first communicated with the magistrate in relation to this charge, testified as to his communication with the respondent and as to the respondent's communication with him; that two or three days after the discharge Rosenbach said that he had got a good fee in the matter and would give the witness a piece of it; that Rosenbach then gave the witness $75; that he had two other cases in which he had obtained a discharge from the magistrate, and that in these two cases he received a fee, and had also received a fee of $25 in another case.
After this hearing, and after the case had been submitted, there was presented by the Bar Association of the City of New York what may be called a supplemental petition also asking for the removal of the magistrate, upon additional facts. From that petition it appears that the petitioner had received from the corporation counsel of the city of New York a special report by the commissioners of accounts, appointed by the mayor of the city of New York, based upon an investigation by the said commissioners of the proceedings of the respondent, a copy of such report being annexed to the petition. From that report it appeared that the respondent had discharged from the workhouse, either absolutely or upon probation, prisoners committed to that institution after a conviction and sentence by the respondent. The respondent submitted an answer to that petition, and the case was referred to a referee, who had made his report, and the proceeding has been reheard upon the original testimony taken before the court and that taken before the referee. Upon the original hearing the respondent attempted to justify his action under section 707 of the charter of the city of New York. No mention was then made of section 398 of the consolidation act (chapter 410, p. 106, of the Laws of 1882), and it was not then claimed by the respondent that he knew of that section, or relied upon it in his judicial action which is now under review. While it is entirely clear that that section of the consolidation act was repealed by section 1608 of the charter of 1897 (chapter 368, p. 555, of the Laws of 1897, as amended by chapter 466, p. 651, of the Laws of 1901), it is quite evident that this claim now made, that the relator considered that he had power under the consolidation act to discharge prisoners convicted and sentenced by him under section 707, is an afterthought, and the provisions of the consolidation act, having been clearly repealed, will not be considered in determining this application. The referee reports that between September 23, 1907, and January 5, 1908, a period of a little over three months, the respondent, without [114 N.Y.S. 380] observing the formalities required by the provision of the charter, and in violation of its plain and mandatory provisions, discharged 16 persons who had been convicted and sentenced by him. In all these cases the referee has reported that these discharges were not authorized by the charter and that they were unlawful. There was evidence before the referee that it was the custom of the city magistrates to discharge persons thus convicted and sentenced in violation of the provisions of the charter, and there is annexed to his report a statement of the discharges made by certain of the city magistrates of the First and Second Divisions from January, 1907, to September, 1908, there being in the First Division, which includes the county of New York, 287, of which 165, considerably more than one-half, were by five magistrates, and the referee reports that:
" It is shown, therefore, strange as it may seem, that the practice of granting discharges on probation after commitment, and also of granting absolute discharges in less than 20 days after the commitment, had prevailed to a greater or less extent among practically all the magistrates for a considerable period prior to the respondent's appointment, and that it continued down to the date of the present proceeding. Considering the number of the magistrates involved and the high standing of many of them, there can, of course, be no question that the practice in question was adopted by them in entire good faith, and with the honest belief that in some way or other they were vested with the powers which they so assumed to exercise."
That, in view of that fact, the referee is of the opinion that the respondent can hardly be blamed for following their lead, and that granting the discharges, he, like others, believed that he had power to do so. But one of the other magistrates was called by the respondent as a witness. That was Mr. Charles H. Whitman, who was a city magistrate from January 1, 1903, until 1909, when he was appointed a justice of the Court of General Sessions. He testified that he had never discharged any prisoners who had been convicted and sentenced absolutely, but had occasion to discharge some prisoners on probation who had been committed by him to the workhouse; that during the four years he had been magistrate he had discharged six or eight prisoners convicted and sentenced; that it was his custom in cases of this kind which were brought to his attention to have a probation officer attached to the court make an investigation and report to him in writing, together with a statement from the physician at the workhouse and usually the magistrate's own physician; that, if it appeared that the prisoner's physical condition was such that the further incarceration was likely to result seriously, he would discharge the prisoner on probation; that the papers were given to the probation officer, and this probation officer reported to the magistrate; that before he made such discharge he invariably had such investigation made by one of the official probation officers, also by his own officer, and sometimes he, himself, made such investigation, going to the workhouse to examine the case; that he never granted any discharge without notifying the probation officer in whose custody the prisoner was committed. This magistrate, during four years of service, discharged nine persons to the custody of the probation officer after making the investigation and ascertaining facts which made the continued imprisonment improper. The respondent, in less than two months, discharged sixteen persons [114 N.Y.S. 381] without any investigation, without the slightest justification and in violation of the express provisions of the statute, and without notifying the probation officer in whose charge the prisoners were to remain, and acting apparently upon the most frivolous reasons upon the solicitation of private individuals, or suggestions made by persons not connected with the administration of justice. The very broad distinction between a magistrate who, under a mistaken idea of his power, but in the conscientious discharge of what he considered to be a duty devolving upon him, has exceeded his power, and an officer who continually acted without regard to the proper or orderly exercise of the power that he supposed he had, is here clearly presented. The referee, in his report, has expressed his opinion that under the charter the magistrate had no power to discharge a prisoner convicted and sentenced, except under the provision of section 711 of the charter. That section provides that the magistrate who signed the last warrant of commitment may, after the expiration of 20 days, direct the discharge of any person committed; but the section further provides:
" Nor shall such order be granted by any magistrate except upon the written certificate of the commissioner specifying the date of discharge named by him for the person so committed, and upon an affidavit setting forth facts which, in the opinion of said magistrate, shall justify such discharge."
By section 707 of the charter the court or magistrate before whom a person is convicted of disorderly conduct is required to impose upon a person so convicted one or the other of the penalties therein provided. The magistrate may commit the person convicted to the workhouse to be detained for the term of six months, impose a fine not exceeding $10, or require the person convicted to give sufficient surety for his good behavior. The section also provides that any court or magistrate may suspend sentence in the case of any person convicted, and may release such person upon probation, upon such terms and conditions and for such period of time, not exceeding six months, as the court or magistrate may deem best; that a person released on probation, in accordance with the provisions of the section, shall be placed under the charge and supervision of a probation officer, to be appointed as therein provided, and shall be furnished by the clerk of the court with a written statement of the terms and conditions of his release.
It is made the duty of the probation officers to supervise the conduct of each person placed under their charge respectively, and to report any violation by any such person of the terms and conditions of his release. If two or more probation officers were assigned to any city magistrate's court, the court or magistrate is required to designate the officer under whose charge each person on probation shall be placed. It is quite clear that the magistrate had no power under this section to discharge a prisoner who had been convicted and committed to the workhouse. After conviction the magistrate could have suspended sentence and released the person upon probation, upon such terms and conditions and for such periods of time, not exceeding six months, as he might deem best. When thus released, the person that had been convicted of disorderly conduct was not to be discharged, but [114 N.Y.S. 382] was to be " placed under the charge and supervision of a probation officer," and furnished by the clerk of the court with the terms and conditions of his or her release. If the magistrate did not see fit to suspend sentence, he was then required either to impose a fine not exceeding $10, or require the convicted person to give security for good behavior, or commit the person so convicted to the workhouse to be detained for a period of six months. With the commitment to the workhouse the jurisdiction of the magistrate ceased, and the time of the prisoner's discharge was to be ascertained under sections 708 and 710 of the charter by the commissioner of correction, and with such a discharge the magistrate had nothing to do. When a prisoner who had been committed under section 710 of the charter, where the date of discharge named in the commitment was more than 20 days and less than 160 ...