Opinion
February, 1923.
Charles Irving Oliver, for relator.
Carl Sherman, attorney-general ( William M. Cahill, of counsel), for respondent.
A writ of habeas corpus issued herein on February 19, 1923, was returnable before a Special Term of the Supreme Court, held in the city of Albany on February 24, 1923. The New York State Training School for Girls at Hudson, N.Y., is an institution situate in the county of Columbia.
The attorney-general appeared upon the return of the writ and moves to dismiss the proceeding upon the preliminary objection that the relator has failed to comply with section 1239 of the Civil Practice Act which provides as follows: "All writs of habeas corpus directed to the agent and warden of a state prison, or the superintendent, manager or board of managers of a state institution, must be made returnable before a justice of the supreme court, or a county judge in the county in which the prisoner is detained. If at the time there is no such official in the county capable of acting the writ shall be made returnable before the nearest accessible supreme court or county judge in an adjoining county."
The learned attorney-general contends that the writ must be made returnable before a justice of the Supreme Court or a county judge in the county in which the prisoner is detained, if there be such capable of acting. The court takes judicial notice of the fact that the county of Columbia has a county judge, who is presumed to be capable of acting in this matter.
The respondent urges that this provision of the Civil Practice Act is unconstitutional, for the reason that the right to a writ of habeas corpus is beyond legislative control or limitation.
The case of People ex rel. Whitman v. Woodward, 150 A.D. 180, the latest authority, so far as I have been able to find, dealing with a determination of this question, holds that a statute providing that a person detained in the jail of a county upon a criminal charge, shall not be removed therefrom by writ of habeas corpus, unless such writ shall have been issued by or returnable before the Supreme Court then in session in such county, is a valid enactment.
I regard this case as controlling authority upon the question raised upon the preliminary objection of the attorney-general, and an order may, therefore, be entered dismissing the proceeding, without costs.
Writ dismissed.