People v. Harrison , 37 N.Y. Crim. 20 ( 1918 )

Jenics, P. J.:

The ordinance is essentially a statute for the city (Village of Carthage v. Frederick, 122 N. Y. 268), and is construed as a statute. (State ex rel. Mayor, etc., of Baltimore v. Kirkley, 29 Md. 85, 103; Matter of Yick Wo, 68 Cal. 294, 303.) “ It is a sound principle, that such a construction ought to be put upon a statute as may best answer the intention which the makers had in view, and that is sometimes to be collected from the cause or necessity of making it, at other times from other circumstances.” (Tonnele v. Hall, 4 N. Y. 144; Matter of O’Neil, 91 id. 520.) “ But even in penal laws, the intention of the Legislature is the best method to construe the law; though truly, that is to be deduced from all the words that it uses.” (Cowley v. People of the State of New York, 83 N. Y. 468.) The purpose of this ordinance is not far to seek — to protect the life, limb and property of him who is in the street from vehicles driven therein. For this purpose, not only is restraint put upon the person who drives the vehicle, but also upon its owner who, in the nature of things, controls the driver. In effect, the ordinance holds the master to the control of his servant.

The word “ cause ” means to effect, to bring to pass, to produce, and, in contradistinction to the word “ permit ” in this ordinance, should be interpreted as descriptive of some affirmative act — an act of' commission. The word “ permit ” in this ordinance is synonymous with “ suffer ” ' or “ allow ”— not to prohibit or to prevent — an act of omission as opposite to the commission implied in the word “ cause.” Such meaning of the word “ permit ” is well recognized. (People ex rel. Price v. Sheffield Farms-S.-D. Co., 180 App. Div. 615; Cowley v. People of the State of New York, supra, 471; Commonwealth v. Curtis, 9 Allen, 266, 271; State v. Probasco, 62 Iowa, 403; Territory v. Stone, 2 Dak. 163, 164; Cauley v. Pitts., Cincinnati & St. Louis Railway Co., 95 Penn. St. 398, 402; Matter of Eyston, L. R. 7 Ch. Div. 145.) In the case last cited, James, L. J., for the court says that it is “ almost an absurd distinction to suppose that there is any difference between the words ‘ suffer ’ and ‘ permit.’ According to the dictionaries, 1 suffer ’ means ‘ permit ’ and ‘ permit ’ means ‘ suffer.’ It would really be straining the meaning of tifie words too much to say that there is any substantial difference between ‘ suffer’ and ‘ permit.’ ” In discussion of “ permit,” Folger, Ch. J., for the court in Cowley v. People of the State of New York (supra), says: “ There was an allowance, a sufferance, a toleration, an authorization by the plaintiff,” etc.

The offense prescribed is malum prohibitum, and the offending is complete if the owner of the vehicle shall- but “ cause or permit.” The prohibition is unqualified by any words like “ willfully ” or “ knowingly ” or “ intentionally,” or the like. As the ordinance reads, “ knowledge or intention forms no element of the offense. The act alone, irrespective of its motive, constitutes the crime.” (People v. Kibler, 106 N. Y. 323; People v. Werner, 174 id. 132.)

The sole defense is the owner’s statement that although he was in his vehicle, “I didn’t know whether we were going fast or not — I was talking to my wife in the car.” If this were a defense, then the owner of the vehicle could always escape the obligation of the law by the plea of his disregard of his obligation, in that he was voluntarily occupied in some social function — or even that he was asleep or wool-gathering. Thus the owner would be careful to shut his eyes, for immunity, lest with them open he might be convicted.

The order and judgment of the County Court of Kings county is reversed, and the judgment of the city magistrate is affirmed.

Thomas, Mills, Putnam and Blackmar, JJ., concurred.

Order- and judgment of the. County Court of Kings county reversed, and judgment of conviction of the City Magistrate’s Court affirmed.