Opinion
November 1, 1957
George Meyl, District Attorney ( Condon Lyons of counsel), for plaintiff.
Donald Gallagher for defendant.
The information herein charges the defendant with a violation of section 3 of article 3 of the Thruway Rules and Regulations of the State of New York promulgated by the New York State Thruway Authority pursuant to subdivision 1 of section 361 Pub. Auth. of the Public Authorities Law of the State of New York.
Such section authorizes the Authority, which is elsewhere defined as a body corporate and politic, constituting a public corporation, to promulgate rules and regulations with respect to the use of the Thruway. Section 3 of article 3, in essence, prohibits commercial transactions on the Thruway except by persons or corporations specifically authorized by the Authority to enter such transactions.
The People offered proof to the effect that the defendant, acting without the sanction of the Thruway Authority, had, at the request of a motorist, sold gasoline on Thruway property at the Washington Avenue interchange in Albany. No proof was offered concerning the existence of section 3 of article 3, and, at the close of the People's case, the defendant moved for dismissal of the charge on the ground that there had been no proof that the Thruway Authority had filed the rule with the Secretary of State.
The question then arose as to whether the court should take judicial notice of the existence of the rule.
Section 8 of article IV of the State Constitution provides as follows: "No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations, by appropriate laws."
It should be noted that there is no definition of what constitutes a "rule or regulation" and there is no mandate directed to the administrative agency to file anything with the Department of State. There is simply a provision that "no rule or regulation * * * shall be effective until it is filed." The operative effect of the provision seems clear. The administrative agency need not file anything with the Department of State, but anything which the agency does not file and which the courts hold to be a "rule and regulation" will be denied by the courts the legal effect that would be accorded to it if it were filed. (1 Benjamin on Administrative Adjudication in the State of New York [Report to the Governor, 1942], pp. 314-315.)
The records of the debates in the Constitutional Convention of 1938, at which convention the provision alluded to was adopted, make it apparent that the primary purpose of the convention in proposing the adoption of section 8 was to assure public knowledge of regulations having the force and effect of law.
Section 361 Pub. Auth. of the Public Authorities Law further constitutes a violation of section 3 of article 3 a traffic infraction, as defined in subdivision 29 of section 2 Veh. Traf. of the Vehicle and Traffic Law. The offence charged herein, therefore, is not a crime, but procedural requirements relating to misdemeanors apply. ( Matter of Gross v. Macduff, 284 App. Div. 786.)
Section 392 of the Code of Criminal Procedure provides that the rules of evidence in civil cases are also applicable to criminal cases. Those rules, as they relate to judicial notice of matters of law, are set forth in section 344-a of the Civil Practice Act. Subdivision 4 allows the court, in its discretion, to take judicial notice of a "rule or regulation of an executive department, public board, agency or officer of this state, or of a city, town or village thereof." The orderly administration of justice dictates that such discretion should be exercised with caution, particularly in cases where, as here, the procedural forms of the criminal law are followed. The administrative departments of the State and the authorities created by the Legislature have been vested with broad rule-making power. In a complex form of government this is as it should be, but, by the same token it is becoming increasingly difficult for the Bar, the Bench and citizens generally to keep abreast of the legal requirements imposed by such rules.
Parenthetically, I have found no precedent for the proposition that a rule promulgated by a public authority falls within the provisions of section 344-a of the Civil Practice Act.
For the reasons to which I have alluded I have declined to take judicial notice of the existence of the rule under which the offence is charged and accordingly I am dismissing the information for failure of proof and discharging the defendant.