In Massachusetts it has long been the practice and such practice is now recognized by statute-after a verdict of guilty in a criminal case when the court is satisfied that by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the commonwealth, and upon such terms as the court, in its discretion, may impose, that the indictment be "laid on file." Such order is not a final judg ment or a discontinuance, by which the case is put out of court, but a mere suspension of sentence, and the defendant may be brought in and sentenced at any subsequent period. Com. v. Chase, Thacher, Crim. Cas. 267; Com. v. Dowdican's Bail, 115 Mass. 133. This practice was approved in New Hampshire in Sylvester v. State, 65 N. H. 193, 20 Atl. 954. In State v. Crook, 115 N. C. 760, 29 L. R. A. 260, 20 S. E. 513, the court said: "The practice of making an order, where defendants are convicted or submit on a criminal charge, that the judgment be suspended upon the payment of the costs, is one that seems to be somewhat peculiar to our own courts. better satisfy his own mind what the pun- I sentence as before, but that it can do nothishment ought to be (Com. v. Dowdican's ing to preclude itself from passing a proper Bail, 115 Mass. 133); but it was not a sus sentence whenever such a course appears pension of judgment of this sort that was to be proper. requested or desired in this case. This judge would be usurping the functions of the executive, were he to assume to give total immunity from punishment. No doubt, judges have done this sometimes, under the pressure of such influence as appears here, but this is no reason for asking a repetition of the wrong. It is rather a reason for being specially careful and particular not to invite it, lest by and by it come to be understood that the power to pardon, instead of being limited to one tribunal, is confided to many." With these views expressed by the Michigan judges we are disposed, in the main, to agree. See also People v. Kennedy, 58 Mich. 373, 25 N. W. 318. The foregoing cases are quoted with approval by the supreme court of Georgia in Neal v. State, 104 Ga. 509, 42 L. R. A. 190, 30 S. E. 858, where the court says: "The power to indefinitely postpone the punishment prescribed by the law, whether exereised by suspending the imposition or by suspending the execution of a sentence, is the power to perpetually prevent punishment,- -a power which, under such provisions as are found in the Constitution of this state, does not exist in the courts." In Re Markuson, 5 N. D. 180, 64 N. W. 939, the court said that at common law no stay after conviction could be obtained. In People v. Morrisette, 20 How. Pr. 118, the court used the following language: "I am of the opinion the court does not possess the power to suspend sentence indefinitely in any case. An indefinite suspension of the sentence prescribed by law is a quasi pardon, provided the prisoner be discharged from imprisonment. No court in the state has any pardoning power. That power is vested exclusively in the governor." This case was practically overruled by the court of appeals in People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L. R. A. 856, 36 N. E. 386, where the court said: "Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numer-lowed by the court to depart therefrom ous adjudged cases." In New York there without recognizance to appear again for was a special statute authorizing the court sentence or any other purpose. More than to suspend sentence, but the court held that three years afterwards the case was stricken this power existed at common law, inde- from the docket. At the next term it was pendently of the statute, and that it simply reinstated, and the relator sentenced to the postponed the judgment temporarily or in- penitentiary. It was held, after a review definitely, and did not encroach upon the of the authorities, that it was the duty of power of the executive to grant reprieves the courts, in criminal cases, "upon a conor pardons; that the court may suspend 'viction or plea of guilty, to pronounce judg . We search in vain for direct authority emanating from the courts of other states to aid us in determining the precise meaning of such orders, because it has not been the practice to make them elsewhere in the same way.” The court, in State v. Addy, 43 N. J. L. 113, 39 Am. Rep. 547, said that "the practice of suspending sentence after conviction of crime is, under some circumstances, justifiable." Suspension of sentence, and subsequent arrest and imposition of sentence, have also been approved in Gibson v. State, 68 Miss. 241, 8 So. 329; People v. Patrich, 118 Cal. 332, 50 Pac. 425; and Ex parte Williams, 26 Fla. 310, 8 So. 425. In People ex rel. Smith v. Allen, 155 Ill. 61, 41 L. R. A. 473, 39 N. E. 568, the relator pleaded guilty to the charge, but judgment upon his plea was stayed, and he was al ties can always exonerate themselves by surrendering the principal. If one is allowed his liberty on his own recognizance, there is no surety bound to secure his ap no one who can surrender him to the sheriff. As said in Weaver v. People, 33 Mich. 296, the release of a defendant on his own recognizance and without sureties usually signifies that the offender is to go without pun urally be put on such an undertaking by the person so released from custody. It is true, there was in the case of the relator a motion for a new trial pending, which was continued to the next term; but nothing was done in the matter although numerous terms intervened, for twenty-nine months. We are of the opinion that this was an unreasonable and unwarrantable delay,-it being entirely unexplained by anything in the record,—and that the court, in view of all the circumstances, including the omis sion to require security for the relator's appearance, lost jurisdiction of the case, and that the subsequent sentence was without judicial authority. People ex rel. Smith v. Allen, 155 Ill. 61, 41 L. R. A. 473, 39 N. E. 568. ment at that time, unless, upon motion for | 297; 1 Bishop, New Crim. Proc. § 248. See new trial, in arrest of judgment, or for also Smart v. Cason, 50 Ill. 195. The sureother cause, the case is continued for further adjudication, and the defendant, by recognizance or being held in custody, required to continue to answer the charge, and if they fail to perform that duty, but dis-pearance at court. He is in the custody of charge the prisoner or permit him to go indefinitely, their power and jurisdiction over him cease, and a subsequent sentence is without judicial authority." In the case at bar the relator moved for a new trial, and on his motion the cause was continued | ishment. No other construction would natto the next term, which began the second day following. Nothing further was done in the matter for two years and five months. He had been at large on a recognizance in the sum of $1,000, with two sureties, before his trial, and, after conviction, stood committed until the day his motion for a new trial was continued to the next term. At that time he was permitted to depart from the court on his own recognizance. The law makes no provision for one accused or convicted of crime to go at large on his own recognizance. A recognizance at common law was an obligation entered into before some court of record or magistrate duly authorized, with a condition to do some particular act, as to keep the peace or appear and answer to a criminal accusation. It was not signed by the party entering into it. Shattuck v. People, 5 Ill. 477; 2 Bl. Com. 341. A recognizance differs from a bail bond merely in the nature of the obligation created. The former is an knowledgment of record of an existing debt. The latter, which is attested by the signature and seal of the obligor, creates a new obligation. 3 Am. & Eng. Enc. Law, 2d ed. p. 687. Our Criminal Code provides for the letting to bail of persons accused of crimes, and provides in § 7 of division 3 that "each of the bail shall be worth the amount of bail expressed in the recognizance over and above the amount exempt from execution, but the court, judge, justice of the peace, or officer, in taking bail, may allow more than two bail to justify severally in amounts less than that expressed in the recognizance, if the whole qualification be equivalent to two sufficient bail." It also provides for the surrender of the principal by his bail. ac Whatever may have been the practice at common law, or whatever may be the prac tice in other states of this country, in regard to the suspending of sentence for the purpose of giving the accused a chance to reform, and thus virtually reprieving him, the legislature of this state has adopted a different method to give persons convicted of crimes the opportunity to reform, by providing a system of parole, and boards to administer the same; and, in view of the expressed policy of the legislation of this state, we are disposed to hold that the trial courts do not have the power to suspend the imposition of the sentence indefinitely after conviction, or to do such acts that virtually amount to an indefinite suspension of sentence, or to release the prisoner on parole. As said in People ex rel. Smith v. Allen: "If such power remained in the court three years, it would continue indefinitely, and might be exercised at any future time: and that, too, without any reason for doing If two sufficient sureties are required of a so, except such as might exist in the min-l person merely accused of crime, it would of the judge causing the rearrest and proseem that nothing less ought to be required nouncing judgment. The state has of one convicted of crime. The very nature a right to demand, and the welfare of soof bail requires sureties. It is a deliveryciety requires, that those who are convicted or bailment of a person to his sureties upon or plead guilty to violations of the law shall their giving, together with himself, suffi- be promptly and certainly punished. cient security for his appearance; he being supposed to continue in their friendly cus tody instead of going to jail. 4 Bl. Com. Long and unreasonable delays in passing upon motions for new trials or in arrest of judgment are calculated to obstruct the administration of public justice, and to operate as a denial of the right of the citizen to a speedy trial. It is said, however, in this case, that all the delay was with the consent of the relator, and that he cannot now be heard to complain. It cannot, of course, be contended that the doctrine of estoppel has any application here; nor can it be held that the relator could waive any requirement respecting the jurisdiction of the court to enter judgment and pronounce the sentence. If the court had no power thus indirectly to suspend sentence, and to permit the relator to go at large upon his own recognizance or upon parole, such power could not be conferred by his consent, nor by his express request. Harris v. People, 128 Ill. 585, 21 N. E. 563; Morgan v. People, 136 Ill. 161, 26 N. E. 651. The rendering of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the pub lic prosecutor, nor to depend upon the subsequent conduct of the convicted person. If it were so, what subsequent conduct would demand or justify the pronouncing or the withholding of the sentence? And who would determine its character? Such conduct might be innocent in itself, yet offensive to those in whom the power to apprehend or to punish resided. The liberty of the citizen cannot, in a free country, be made to depend for its security on the arbitrary will of any public officer. It can be taken from him by due process of law only. The act of 1899 providing a system of parole (Hurd's Rev. Stat. 1901, p. 669) is the only law in this state authorizing the parole of a person convicted of crime. Provisions are made and means and instrumentalities are provided for its uniform operation and for its due administration. If the many criminal courts of the state had the power to enlarge persons convicted of crime, on their own recognizance, during their good behavior or at the discretion of the presiding judge, there would, in effect, be in full force another and different system of parole, without bounds or limitations and without uniformity, but wholly dependent in its operation in each individual case upon the discretion of the sitting judge. We are of the opinion, as we have already said, that no such power exists in the courts. It follows that the imprisonment and detention of the relator by virtue of the mittimus issued in pursuance of the judgment and sentence so rendered were without authority of law, and that he should be, and accordingly is, discharged therefrom. Relator discharged. NEW YORK COURT OF APPEALS. PEOPLE of the State of New York ex rel. | Court, Third Department, reversing an order v. Erastus C. KNIGHT, Comptroller of New York, Appt. (174 N. Y. 475.) 1. That practically the whole capital of a corporation is represented by patent rights which are not subject to taxation does not prevent the assessment against it of a franchise tax regulated by the amount of the capital which is employed within the state. 2. A domestic, as well as a foreign, corporation may be subject to the payment of a tax upon the right to do business within the state, graduated by the amount of capital employed. (April 28, 1903.) of the state comptroller assessing a franchise tax against relator. Reversed. The facts are stated in the opinion. Mr. W. H. Wood, with Mr. John Cunneen, Attorney General, for appellant: The capital stock of the relator may be used as the basis of computation of a franchise tax, although wholly invested in patent rights. People ex rel. Edison Electric Light Co. V. Campbell, 138 N. Y. 543, 20 L. R. A. 453, 34 N. E. 370; Monroe County Sav. Bank v. Rochester, 37 N. Y. 365; People v. Home Ins. Co. 92 N. Y. 328; 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593. Messrs. Newell Martin and Louis Dean Speir, with Messrs. Smith & Martin, for respondent: In computing the relator's franchise tax the comptroller should not have included its nontaxable patent rights as a part of its appraised capital. APPEAL by defendant from an order of copyrights, on page 57. 88 L. R. A. 126, 53 N. E. 685; Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 1200, 7 Sup. Ct. Rep. 1118. Patents cannot be taxed by any state or municipal authority. stock in this state, and its indebtedness was about $30,000, which exceeded the value of all its property other than patent rights. The comptroller appraised its capital stock employed in this state for the year ending October 31, 1899, at the sum of $22,000, and assessed the tax at $33. For the following People ex rel. Edison Electric Illuminating Co. v. Brooklyn, 156 N. Y. 417, 42 L. R. A. 290, 51 N. E. 269; Patterson v. Ken-year such capital was appraised at $90,000, tucky, 97 U. S. 501, 24 L. ed. 1115; Webber v. Virginia, 103 U. S. 344, 26 L. ed. 565; People ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y. 70, 45 L. R. A. 126, 53 N. E. 685; Philadelphia & S. Mail S. 8. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 1200, 7 Sup. Ct. Rep. 1118. The statute, by providing that foreign corporations "shall pay a like tax” to that paid by domestic companies, compels the comptroller to allow the same exemptions to both domestic and foreign companies. If the relator is taxable, then a New Jersey company in New York is exempt from the New York franchise tax (1) on interstate commerce, (2) on patents, (3) or on copyrights; but a New York corporation in New York must pay the New York franchise tax (1) on interstate commerce, (2) on patents, and (3) on copyrights. E. 1043. In matters of taxation or constitutional right, the court will always consider substance, and not form. and the tax assessed at $135. The relator, feeling aggrieved because patent rights were included in the valuation, procured a writ of certiorari to review the action of the comptroller, and from the order of the appellate division reversing his determination this appeal was taken. If the tax under review was assessed upon patent rights, it is void, because they are exempt from taxation by Federal law. People ex rel. Edison Electric Illuminating Co. v. Brooklyn, 156 N. Y. 417, 42 L. R. A. 290, 51 N. E. 269. If, however, it was imposed upon a corporate franchise involving the right to use all kinds of property, including patent rights, it is not void, because franchises are not exempt by any law. The system of taxation in this state is so complicated as to invite mistakes on the part of those who are called upon to enforce the In some instances the tax is laid law. The whole statute must be read together. People ex rel. New York & E. River upon property, and in others upon rights Ferry Co. v. Roberts, 168 N. Y. 14, 60 N. and privileges connected with property. There is direct taxation of real estate and of some personal property, indirect taxation of other personal property, taxation of the capital stock of corporations and of their franchises, taxation upon the right of succession to the property left by decedents, and the like. The case now before us involves one form of taxation to which certain corporations, such as the relator, are subject, and, in order to appreciate the principle upon which it is based, we will consider for a moment the other forms of taxation to which corporations of this class are liable. Where a company has no profits or surplus, and pays no dividends, even though the tax is the price of its doing business, that tax is, in substance, a direct tax on its property, and, if that property is patents, the tax cannot stand. Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Weston v. Charleston, 2 Pet. 449, 7 L. ed. 481; Almy v. California, 24 How. 169, 16 L. ed. 644; Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U. S. 326, 30 L. ed. 1200, 7 Sup. Ct. Rep. 1118; Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep. 673; Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747. There is, first, an organization tax payable to the state, which is imposed but once, and is exacted for the privilege of becoming a corporation. Tax Law (Laws 1896, p. 855, Next, there is a tax chap. 908, § 180). upon the real estate owned by the corporation in this state, which is assessed the same Vann, J., delivered the opinion of the as if it were owned by an individual. Id. pp. 797, 802, chap. 908, §§ 3, 11. The per- 856, chap. 908, § 182. This is not a tax | powers to be exercised under it, and annex conditions to its enjoyment, and make it contribute to the revenue of the state. If the grantee accepts the boon it must bear the burden." upon property, although it is measured by the value of the property, but upon the right of a corporation to exist and exercise the powers granted by its charter. These forms of taxation do not all rest upon the This case was cited with approval in Peosame principle. The organization tax is in ple v. Home Ins. Co. 92 N. Y. 328, which the nature of a license fee for the right to also involved a tax upon the corporate franbecome a corporation. The tax upon real chise or business of a corporation. Laws estate is a direct tax upon real property, 1880, p. 765, chap. 542, § 3; Laws 1881, p. and the tax upon capital stock is an in- 481, chap. 361. The defendant in that case direct tax upon personal property, while claimed that the amount of its investment the franchise tax is not laid upon property in United States bonds should be deducted at all, but is imposed upon the corporation from the total amount of its capital stock, for the privilege of carrying on business in upon the ground that such bonds were this state and exercising the corporate fran-exempt from taxation. Chief Judge Ruger, chises granted by the state. The distinc- after reviewing the authorities, speaking for tion between a tax upon the property of a all the judges said: "Applying the tests corporation and a franchise tax, although well established and of great importance, is easily overlooked, as we find from our own experience. We will refer to some of the cases which make this distinction clear. In Monroe County Sav. Bank v. Rochester, 37 N. Y. 365, the tax involved was imposed, pursuant to statute, upon the franchise and privileges granted to a domestic corporation, and it was claimed that the tax was void because the corporation, a savings bank, had invested part of its funds in United States bonds. The court said: "It now becomes important to inquire whether the assessment in the case now before us is affected by the fact that the banks have invested a portion of their moneys received from depositors, or of the profits arising on such moneys, in bonds or securities of the United States, which are exempt from taxation. In my opinion, if the whole of the plaintiff's funds were so invested it would not affect the derived from these authorities, it seems validity of the act. The tax being levied is plainly sustainable upon justifiable upon the franchises and privileges of the grounds. Well and long settled rules forcorporation, the special use which it makes bid us from placing such an interpretation of its lawful power is quite unimportant. upon statutory enactments, and require us Because, I repeat, that neither the aggre- to make every reasonable intendment to upgate property employed nor the accumulated hold, rather than to nullify, the exercise profits are taxed. They are regarded as im- of legislative authority. The authorities portant only as they may furnish a just cited would seem to require us to hold this and fair measure of estimating the value of law valid as a tax upon franchise, even the property which produced them, in order though that character had not been expressthat such value may form the basis of taxa-ly ascribed to it by the terms of the act." tion. It is true that, where a state The case was removed for review to the tax is laid upon the property of an individual or a corporation, so much of their property as is invested in United States bonds is to be treated, for the purposes of assessment, as if it did not exist; but this rule can have no application to an assessment upon a franchise, where a reference to property is made only to ascertain the value of the thing assessed. . . It must, therefore, be regarded as sound doctrine to hold that the state, in granting a franchise to a corporation, may limit the Supreme Court of the United States, and, |