White, J.

—In this matter, Peter Squires, the relator, applies for a writ of habeas corpus, and sets forth in his petition, that he is a person holding office under the provisions of the Metropolitan Police Act, to wit; a captain of the Metropolitan Police force of the Metropolitan Police District of the State of New York, and claims that as such, he is exempted from arrest on civil process; he further states that on the 23d day of January, 1861, he was arrested by John Kelly, sheriff of the county of New York, under and by virtue of a warrant issued out of the *42Marine Court of the city of ¡New York, in an action for false imprisonment, directed to the said sheriff, commanding him to take the said Peter Squires and bring him forthwith before the said Marine Court to answer to the plaintiff in said action; that being so arrested, he was committed, and is now committed to the custody of one of the general deputies of said sheriff, until he shall find bail under said civil process; and he thereupon prays for this writ of habeas corpus, to be directed to the sheriff aforesaid, and to his said general deputy, commanding them to bring the relator forthwith at chambers before me, according to law, &c.

The writ was issued returnable on the 26th day of January, 1861, upon which day the sheriff certified and returned that he held the relátor detained in his custody by virtue of said warrant in the action of false imprisonment above mentioned.

This return the relator traversed, and denied that he was or could be put under arrest of said civil process, because, as alleged in his petition, he is a member of the Metropolitan Police force, and therefore not liable to such arrest.

The counsel for the plaintiff in the -action of false imprisonment demurred to this traverse, and the counsel for the relator joining in the demurrer, several points were presented and argued on both sides.

In deciding the matter, however, it is only necessary to state briefly the conclusions to which I have come upon the two principal questions discussed.

FIrst. I am satisfied that upon this proceeding I can examine into the legality of the warrant in question, and of the arrest or detention under it. That is the very purpose of the writ of habeas corpus. (3 Rev. Stat., 883, 5 ed., §§ 35, 39, subd. 4, 5 ; p. 887, § 54.) And also that I can discharge the prisoner, if the ease is one in which the process issued would not be allowed by law. (3 Rev. Stat., 887-8, 5 ed., § 56, subd. 4.)

Second. Upon examining section 34 of the Metropolitan Police Act, as amended in 1860, under which it is claimed that the relator, as a member of the police force created by that act, is exempted at all times from arrest on civil process; I cannot find that the phraseology of that section authorizes such an interpretation of its meaning.

The words of the section are,—

*43“ No person, holding office under this act shall be liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, while actually on duty.”

It is contended on the part of the relator, that the limitation contained in the above section, of the exemption from arrest to the time “ while” the officer is “ actually on duty,” applies only to the last antecedent clause of the section, that is, to the words “or to'the service of subpoenas from civil courts.” But I do not think the grammatical construction of the section justifies this conclusion. The phraseology is not as clear, distinct, or definite as it ought to be, and might have been; but still I think it can be sufficiently gathered from the language and structure of the section, that the words “ while actually on duty,” refer to more than one antecedent. Punctuation often determines the meaning of a sentence as much as any other characteristic of it. Arid in this case we find a comma inserted after the words, “ or to the service of subpoenas from civil courts,” and before the words, “while actually on duty,” thus separating them, which it would not be proper to do, if the last words related exclusively to the single clause immediately preceding them, but which it would be proper to do, and which is always done in sentences correctly constructed, when there is more than one antecedent to the words immediately following the comma.

I therefore understand this section as conferring upon persons holding office under the Metropolitan Police Act, an absolute unlimited exemption from military and jury duty, and a limited exemption “ while actually on duty,” from arrest on civil process, or service of subpoanas from civil courts. This, I think, is the most reasonable interpretation of the section, and one which its subject-matter and the arrangement of its language justify.

It is a construction, however, which may possibly not make the law as remedial of the mischief that was aimed at, as it was designed that it should be; but judging from the language employed, I am of opinion that the Legislature only designed to extend the protection from arrest to the members of the police force while they were actually on duty. If it was intended otherwise, the act should be amended so as to make that intention clear and unmistakable.

As it now stands, I must hold that the warrant in the case *44before me was lawfully issued; and, there being no pretence that the relator was arrested under it while actually on duty, I must order that he be remanded to the custody of the sheriff.

Citation profile

How this case has been treated — in progress