People ex rel. Bryant v. Zimmerman

• Decision Date: 12 January 1926
• Citation: 241 N.Y. 405,150 N.E. 497
• Parties: PEOPLE ex rel. BRYANT v. ZIMMERMAN, Chief of Police, et al.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 405

150 N.E. 497

PEOPLE ex rel. BRYANT

v.ZIMMERMAN, Chief of Police, et al.

Court of Appeals of New York.

Jan. 12, 1926.

Habeas corpus by the People of the State of New York, on the relation of George W. Bryant, against Charles F. Zimmerman, Chief of Police of the City of Buffalo, and another. From an order of the Appellate Division (210 N. Y. S. 269, 213 App. Div. 414), affirming an order of the Special Term dismissing the writ, relator appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

John H. Connaughton and W. F. Zumbrunn, both of Washington, D. C., and John K. Gerken, of Buffalo, for appellant.

Guy B. Moore, Dist. Atty., of Buffalo, for respondents.

Albert Ottinger, Atty. Gen. (John H. Clogston, of Buffalo, of counsel), for the State.

POUND, J.

Relator is held in custody under the provisions of section 56 of the Civil Rights Law (Laws 1923, c. 664; Consol. Laws c. 6), article 5-A of which law is quoted in full in the footnote.¹

The charge against him is that he attended a meeting of and remained a member of Buffalo Provisional Klan of the Knights of the Ku Klux Klan with knowledge that said association, which has more than 20 members, requires an oath as a prerequisite or condition of membership, and is not a labor union or a benevolent order mentioned in the Benevolent Orders Law (Consol. Laws, c. 3), had not complied with the provisions of the statute by filing with the secretary of state a sworn copy of its constitution, by-laws, rules, regulations, and oath of membership, together with a roster of its membership and a list of its officers for the current year. His contention is that the statute is void for unconstitutionality, in that is deprives him of his liberty without due process of law and denies him the equal protection of the law for the reason that it is arbitrary and discriminatory class legislation.

Secret societies have, in the past, been recognized as meeting a desire of many of our citizens to band themselves together by oaths more horrific than harmful. Thus in Purple v. Horton, 13 Wend. 9, 27 Am. Dec. 167, the court had before it the oath of a master mason and found nothing therein to disqualify a freemason as a juror in an action where one of the parties to a suit at law was a freemason and the other was not. The act before us places its approval on numerous well-known lodges, chapters, commanderies, consistories, councils, temples, grottos, posts, tribues, aeries, camps, tents, nests, encampments, and cantons wherein brothers, sisters, sons or daughters are united in mystic ties. Benevolent Orders Law, § 2. Labor unions and, more recently, college fraternities and sororities (Laws 1925, c. 521) whose name is legion, have also received legislative approval. They have a good reputation, at least the Legislature has recognized the innocuous, if not excellent, character which they claim for themselves.

[1][2][3] But the Legislature may take notice of the potentialities of evil in secret societies, and may regulate them reasonably without depriving the members thereof of their liberty without due process of law. Indeed, the danger of certain organizations has been judicially demonstrated. The manifesto of the political party known as the Left Wing of the Socialist party, or Communists, has been said openly to advocate criminal anarchy in violation of the provisions of the Penal Law. People v. Gitlow, 136 N. E. 317, 234 N. Y. 132, affirmed 45 S. Ct. 625, 268 U. S. 652, 69 L. Ed. 1138. Secret societies may be formed for the same purposes. The Legislature must, however, adopt a reasonable ground of classification in regulating such secret societies and organizations. Lawton v. Steele, 14 S. Ct. 499, 152 U. S. 133, 38 L. Ed. 385;People v. Klinck Packing Co., 108 N. E. 278, 214 N. Y. 121, Ann. Cas. 1916D, 1051;People v. Beakes Dairy Co., 119 N. E. 115, 222 N. Y. 416, 429,3 A. L. R. 1260. It cannot legitimately vent its permanent or passing wrath on a single society, unless such society is known or shown to be in a class by itself. The present statute addresses itself to very general characteristics which admittedly may include the most laudable as well as the vicious. It seems reasonable to separate the known from the unknown, the presumtively good from the possibly evil, the sheep from the goats. Benevolent orders, labor unions, and college fraternities have existed for many years, and, while not immune from hostile criticism,have on the whole justified their existence. Conceivably those that remain, or some of them, might win equal favor on better acquaintance. With the wisdom of the legislation in question we have not to do. The Legislature may doubtless strike at a fancied evil, believed by many to exist, without balancing with accuracy the actual danger to the state against the beneficent purposes publicly avowed by the members of such societies. Otis v. Parker, 23 S. Ct. 168, 187 U. S. 606, 609, 47 L. Ed. 323. It follows that a classification which does not include all oath-bound secret societies may be reasonable.

[4] Another objection to the statute requires consideration. The act in question aims only at societies which require an oath as a prerequisite or condition of membership. Similar organizations which are not oathbound are entirely outside of its provisions. Any organization under the ban might take itself out of the regulations by adopting a solemn pledge or affirmation rather than an oath.

A promissory oath is defined by Webster's New International Dictionary as:

‘A solemn appeal to God, or, in a wider sense, to some superior sanction or a sacred or revered person (as the temple, the altar, the blood of Abel, the Koran, a tribal superior, etc.) * * * in witness of the inviolability of a promise or undertaking.’

The state in dealing with judicial oaths, which are taken as a sanction for the truth of an affirmation or declaration in legal or quasi legal matters, like the oath of a witness or an affiant, defines ‘oath’ (General Construction Law, § 36; Consol. Laws, c. 22) to ‘include every mode authorized by law of attesting the truth of that which is stated,’ and punishes for perjury both one who swears and one who affirms that any material matter is true which is known to be false (Penal Law, §§ 1620, 1621; Consol. Laws, c. 40).

The policy of the state is, therefore, to disregard the form of the sanction ‘on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered.’

Public policy thus makes no distinction between oaths and affirmations so far as the pains and penalties of perjury are concerned. But promissory oaths are not included in the definitions quoted. They may not be the basis of a criminal prosecution for perjury. The faithless public official who violates his oath of office is punishable, but not for perjury.

Can it be said that a solemn promise or obligation, not in the form of an oath or appeal to Almighty God, is not as binding on the conscience of the ordinary member of a secret organization as the oath...