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People ex rel. Moore v. Holmes

Supreme Court of New York, Appellate Division

May 8, 1912

THE PEOPLE OF THE STATE OF NEW YORK ex rel. FRED T. MOORE, Appellant,
v.
JAMES HOLMES, a Police Officer of the City of Buffalo, New York, Respondent.

APPEAL by the relator, Fred T. Moore, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17th day of January, 1912, dismissing a writ of habeas corpus and remanding the relator to custody.

COUNSEL

Elijah W. Holt and William J. Hickey, for the appellant.

Clifford McLaughlin and Wesley C. Dudley, for the respondent.

Page 258

FOOTE, J.:

By this appeal relator seeks to present the question as to whether section 936a of the Penal Law is constitutional. That section is as follows: 'Any person or persons acting as the general officer, chief officer, grand officer or supreme, or grand officers or body, in and for a secret fraternal association, society, order or organization, which maintains in this State local branches, lodges, nests, aeries, divisions, chapters, or subdivisions, who shall solicit, receive, invite, admit or initiate any person or persons to membership or to participation in any such local branch, lodge, nest, aerie, division, chapter or subdivision, upon condition that such person shall pay any dues, assessments, money or reward, directly or indirectly, to any grand officer, chief officer, grand officer or supreme, or grand officers or body, unless such grand officer, chief officer, grand officer or supreme, or grand officers or body shall have been chosen or elected by and from delegates chosen by the members of the local branches, lodges, nests, aeries, divisions, chapters or subdivisions of such secret fraternal association, society, order or organization to their regular convention at which such chief officer shall be elected, shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars or more than two hundred dollars, or by not more than thirty days' imprisonment, or by both.' It was enacted as new legislation by chapter 837 of the Laws of 1911, and took effect July 28, 1911.

Relator was arrested by defendant, a police officer of the city of Buffalo, on September 25, 1911, on a warrant issued by a judge of the City Court of Buffalo. This warrant was based upon written information under oath made by Warner J. Hutchinson, complainant, in which he said that he was a resident of the city of Buffalo; 'that the Order of Owls is a fraternal organization founded in the year 1904, and is controlled by the Home Nest, which is located at South Bend, Indiana, and that the said Order of Owls have local branches called Nests in the State of New York; * * * that the general officers, grand or chief officers, of the said Order of Owls, are not chosen or elected by and from delegates chosen by the members of the local branches or Nests, but that such general or chief officers

Page 259

are all chosen or elected by the said Home Nest at South Bend, Indiana; * * * that one Fred T. Moore is a general officer of the said Order of Owls, elected or appointed by the said Home Nest, and was such general officer at all the times hereinafter mentioned, and was duly authorized by said Home Nest to organize branches of the said Order of Owls in the State of New York, and that the said Fred T. Moore was not chosen or elected by and from delegates chosen by the members of the local branches of the said Order of Owls, but that he was chosen or elected by the Home Nest at South Bend, Indiana; * * * that on or about the 18th day of September, 1911, the said Fred T. Moore, did unlawfully solicit and invite this deponent, the said Warner J. Hutchinson, to join and become a member of a local branch or Nest of said Order of Owls, which the said Fred T. Moore was and is organizing in the City of Buffalo, in the State of New York; and that the said Fred T. Moore did receive from and the said Warner J. Hutchinson did on said day pay to the said Fred T. Moore as such general officer, the sum of Five Dollars as an initiation fee, and that said payment of said Five Dollars to said Fred T. Moore entitled this deponent to become a member and made him a member of the Order of Owls and a charter member of the said branch which the said Fred T. Moore is now organizing in the City of Buffalo, in the State of New York; that said solicitation was made and said money received in violation of Chapter 837 of the Laws of 1911, which amends Chapter 88 of the Laws of 1909, and is ยง 936a.'

On the same day relator sued out a writ of habeas corpus returnable at Special Term and in his petition for the writ alleged that his 'imprisonment and restraint is illegal in this, to wit: That said chapter 837 of the Laws of 1911 is unconstitutional.' Defendant produced relator at Special Term in obedience to the writ and made return that he held relator by virtue of said warrant. The proceeding seems to have been held open or adjourned until October 11, 1911, when relator filed an answer to this return in which he alleged that the warrant under which he was imprisoned was null and void and the magistrate without jurisdiction because chapter 837 of the Laws of 1911, for violation of which the warrant

Page 260

was issued, is unconstitutional and void: First. Because it violates section 1 of article 1 of the State Constitution, which provides: 'No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.' Second. Because it violates section 6 of article 1 of the State Constitution, which provides that 'No person shall * * * be deprived of life, liberty or property without due process of law.' Third. Because it violates section 1 of the 14th amendment of the Constitution of the United States, which provides that 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' Fourth. That it violates the 5th amendment to the Constitution of the United States, which provides that 'Nor shall any person * * * be deprived of life, liberty or property, without due process of law.' Fifth. That it violates subdivision 1 of section 2 of article 4 of the Constitution of the United States, which provides that 'The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' Sixth. That it violates article 1, section 10, subdivision 1, of the Constitution of the United States, which provides that 'No State shall * * * pass any * * * law impairing the obligation of contracts.' The answer then proceeds to allege that relator is a citizen of the State and a member of a secret fraternal association known as the order of Owls, which has its chief lodge or nest located at South Bend, Ind., and which has established and has in existence many subordinate branches throughout the States of the Union and several branches in the State of New York; that he is a general officer appointed, as are all its general or chief officers, by the home nest and not from delegates chosen by members of local branches; that he is duly authorized by the home nest to contract with citizens of the State of New York to become members of the New York State branches and to institute new branches in the State of New York, and that he entered into the contract with

Page 261

the complainant, Hutchinson, to become a member of a local branch which was being organized in Buffalo, and received five dollars from said Hutchinson as an initiation fee; also, 'That an agreement has been entered into in writing between your relator and said Order by which he is to receive compensation for his services and expenses in securing such members and organizing such branch; and he alleges upon information and belief that such agreement is authorized by the constitution and laws of said Order; ' also, that he is ready and desirous of performing his part of said agreement and believes he will be able to secure sufficient members to organize such new branch and thereby will be enabled to secure such compensation; he further alleges that ...


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