
    The People ex rel. Mark Duntz, App’lt, v. Sarah V. Coon, Supt. of House of Refuge, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Criminal law — Common prostitutes — Laws 1881, chap. 187.
    A female may be legally confined in a house of refuge upon a record of conviction adjudging her to be a common prostitute.
    
      2. Same — Constitutional Law.
    Chap. 187, Laws 1881, is not violative of either the státe or federal constitution because it provides a different term of imprisonment for females of a certain class from that which is provided for others.
    Appeal from order of the Columbia county judge, dismissing habeas corpus proceedings and remanding one ÍNellie Victory to the care of respondent. The following is the opinion of the county judge:
    J. Rider Cady, County Judge. — On May 2, 1881, the legislature enacted chapter 187, of the laws of that year, entitled “ An act to provide for the establishment of a House of Refuge for Women.” Section one thereof provided that: “There shall be
    established in this state a house of correction for women, to be located at some point within the state, outside of the counties of New York and Kings, to be known as the House of Refuge for Women.”
    Section eight of the act provided that: “ When and so soon as the said house of refuge is ready for the reception of inmates, and all the requirements of § 7 of this act have been fully com plied with, all justices of the peace, police justices, and other mag-, istrates and courts of the counties within the limits aforesaid, any law to the contrary notwithstanding, may sentence and commit all females, between the ages of fifteen and thirty years, who have been convicted of petit larceny, habitual drunkenness, of being common prostitutes, frequenters of disorderly houses or houses of prostitution, to the said house of refuge for a term of not more than five years unless sooner discharged therefrom by the board of managers thereof.”
    Section 8 was amended by § 1, chapter 17, of the Laws of 1887, passed February 16th of that year. The language of the section was changed to some extent in form, and to the section were added a series of rules to govern the action of the hoard of managers in several particulars.
    On November 19, 1887, Nellie Victory was committed to the House of Refuge for Women at Hudson by A. R. Bruce, a justice of the peace of the town of Johnstown, Fulton county, N. Y., upon a record of conviction which recited her arrest, trial and conviction before the magistrate in question, and further states that the particulars of the offense charged are as follows: “Being a common prostitute, and associating with disreputable people.”
    The petitioner herein has sued out a writ of habeas, corpus for the said Nellie Victory, and insists that she shall be discharged from the custody of the managers of the House of Refuge for Women, upon the ground that the record of conviction and the warrant of commitment thereunder do not set forth any facts upon which she can be lawfully detained.
    It is insisted by the petitioner that she could not be lawfully convicted of being “a common prostitute and associating with disreputable people.” Upon the statutes above referred to, and the language of the record of conviction and of the commitment, which have been filed with the return, the issues in this proceeding arise.
    I am of the opinion that the words contained in the commitment: “And associating with disreputable people,” should be regarded as surplusage, not affecting the substantial question which is raised.
    T am aware that the view has been recently expressed by a very learned and distinguished justice of the supreme court, that a female committed to the house of refuge upon a record of conviction adjudging her to be a common prostitute cannot be legally confined there, and is entitled to her discharge.
    
      
      In the Matter of Maggie Curran, Hudson special term, March, 1892. Hot reported.
    A different conclusion has been forced upon my mind, and, as I understand the law, it is my duty to dispose of this matter in accordance with my own conclusions, sitting as a magistrate of co-ordinate powers so far as this particular proceeding is concerned.
    As I intimated upon the argument, a principal question presenting itself to my mind in this case relates to the power of the legislature to provide that a common prostitute may be committed to the House of Refuge for Women.
    It is beyond question that the legislature possesses, under its general police powers, the right to pass laws relating to the subject of common prostitution, and to impose restrictions of a punitive nature upon common prostitutes.
    As stated by Sanger in his History of Prostitution, page 35, “ Prostitution is coeval with society. It stains the earliest mythological records. It is constantly assumed as an existing fact in Biblical history. We can trace it from the earliest twilight in which history dawns to the clear daylight of to-day, without a pause or a moment of obscurity.” It is equally true that from the earliest periods of historical knowledge it has been subjected to regulation by the police and legislative authorities of nearly all nations. Sanger’s History of Prostitution ; Acton on Prostitution ; Amos’ Laws for the .Regulation of Vice.
    It has long been the subject of legislative enactment in this state, and it has become a well established practice on the part of the legislature, in granting municipal charters, to confer upon the trustees of villages and the common councils of cities the power to enact ordinances for the restraint and regulation of prostitution, and the punishment of common prostitutes as such.
    A familiar example of this class of legislation may be found in § 30 of the charter of the city of Hudson, chapter 468 of the Laws of 1872: “ The common council shall have the care, management and control of the city and its finances. * * * It is also particularly authorized to enact ordinances for the following purposes: 3. To restrain and punish vagrants, mendicants, street beggars, and persons soliciting alms, keepers of houses of ill fame, common prostitutes, etc.”
    It is heedless to multiply instances, of statutory provisions of this general character. Certainly if the legislature can confer upon subordinate municipal bodies the power to enact ordinances for the restraint and punishment of common prostitutes, then the legislature itself must be possessed of authority to act directly upon that subject whenever it shall see fit to do so.
    The principal ground taken by the petitioner in support of the writ is that the Code of Criminal Procedure and the Penal Code of this state nowhere provide in terms for the arrest and punishment of common prostitutes, and that-, as the offense of being a common prostitute is not enumerated or defined in either of those statutes, no persons convicted of being common prostitutes can be legally confined within the walls of the House of Refuge unless committed as vagrants, or unless the commitment, or the record of conviction, sets forth the fact that the conviction took place under some municipal ordinance enacted pursuant to legislative authority. In support of these views lam referred to § 887 of the Code of Criminal Procedure contained in title 6 of part 6 of that act, which relates to “ Special Proceedings of a Criminal Nature.”
    Section 887 provides that the following persons are vagrants: “4. A common prostitute who has no lawful employment whereby to maintain herself.” It is submitted that the record of conviction in this case does not set forth an offense because to the words “A common prostitute ” are not added the other words, “ Who has no lawful employment whereby to maintain herself,” and that the only class of common prostitutes which can be punished in this state are those who have no lawful employment whereby to maintain themselves, unless the conviction is had in terms under a municipal ordinance.
    It probably will not be maintained that the provision^ of the Code of Criminal Procedure, in respect to the vagrancy of this class of persons, would have been without the scope of the legislative power if the words “ who has no lawful employment whereby to maintain herself ” had been omitted. These words were employed from motives of policy, not because they were in any legal sense essential to the definition of a class of persons upon whom the penalty prescribed might be inflicted. The term “ common prostitute ” is well defined and understood in legal nomenclature. Her calling is a recognized and deplorable form of vice productive of disorder and disease, and neither the more nor the less so whether she happens to have a lawful employment or not.
    If the view were to obtain that the acts establishing the House of Refuge for Women and defining the class of persons to be committed thereto are to be read and construed in connection with the Code of Criminal Procedure and the Penal Code, there would be controlling force in the argument submitted by the petitioner. I am, however, of the opinion that these acts so far as they relate to the commitment of common prostitutes to this institution stand alone; that the legislature, for reasons satisfactory to itself, acting within the range of its power and authority; determined to provide for the commitment of common prostitutes to this institution whether they had any lawful employment or not, and that consequently magistrates throughout the state, whether acting in obedience to municipal ordinances or not, have the power to commit such persons to this institution for confinement under the rules governing it.
    My opinion that the acts are not in this respect to be construed in conjunction with the Criminal and Penal Codes finds especial re-enforcement in the fact that they provide for commitment to the House of Refuge for the term of five years, unless sooner discharged therefrom, of any female between the ages of fifteen and thirty years, convicted of petit larceny or any misdemeanor in addition to the offenses heretofore mentioned. Under the Codes persons convicted of misdemeanors are amenable to punishment, consisting of either imprisonment for a term not exceeding one year or a fine not exceeding five hundred dollars ($500), or both. The statutes establishing the House of Eefuge provide, it will be observed, for a very much longer term of imprisonment. It seems plain, therefore, to me that the legislature in passing those statutes meant that they should stand independently, and be so construed.
    I think from the language of § 1 of chap. 187 of the Laws of 1881, that the purpose of that act was, not the establishment of a prison, as such, but rather of a “ House of Correction for Women” for the purposes of control and reformation rather than of punishment alone.
    If it be argued that the statutes establishing the House of Eefuge do not in terms enumerate the acts which shall make of a woman a common prostitute, the answer is that such a definition is unnecessary, because the term is perfectly well understood in a legal sense, and that the legislature neither defines" these acts in § 887 of the Code of Criminal Procedure, nor in the statutes enabling municipal bodies to provide for the punishment of common prostitutes, and that such acts are not ordinarily defined in municipal ordinances.
    The acts establishing the House of Refuge are not attacked upon any constitutional ground based upon the length of the term of imprisonment imposed. Their constitutionality has, as I understand it, been maintained by the supreme court at special term held at Albany, by Mr. Justice Mayham, October, 1889, in the matter of the application for a writ of habeas corpus for Margaret Curtin, not reported.
    I am, therefore, of the opinion that the commitment and the record of conviction do set forth sufficient facts to warrant the detention of the prisoner, when they recite that she was convicted as a common prostitute, and that the words “ and associating with disreputable people ” are to be treated as surplusage.
    The prisoner should, therefore, be remanded, and the application for her discharge denied.
    
      Duntz & Aldcroft (Mark Duntz, of counsel), for app’lt; Albert Hoysradt, for resp’t.
   Putnam, J.

Appeal from an order of the Columbia county judge, dismissing proceedings by habeas corpus and remanding one Nellie Victory, on whose behalf the writ was obtained, to the custody of Sarah V. Coon, the superintendent of the House of Refuge for Women at the city of Hudson.

Nellie Victory was, on the 19th day of November, 1887, brought before A. E. Bruce, a justice of Johnstown, N. Y., charged with being a common prostitute, and having been duly convicted, and said justice having determined her age to be seventeen years, committed her to the said House of Refuge as a common prostitute, by virtue of the provisions of chapter 187 of the Laws of 1881, as amended by chapter 17 of the Laws of 1887.

I think the county judge reached the correct conclusion on all the questions submitted to him, and his opinion renders it unnecessary to write, except briefly, upon the question as to the constitutionality of the above mentioned act of the legislature, which was not questioned or considered below.

In considering this question, we should bear in mind the well settled principle that “ every statute is presumed to be constitutional, and every intendment is in favor of its validity. When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation. Matter of N. Y. E. R. R. Co., 70 N. Y., 342; People ex rel. Bolton v. Albertson, 55 id., 54.

Construing the act under consideration as required by above cited and kindred cases, I am unable to see that its enactments are in violation of either the state or hational constitutions.

The relator claims that said statute conflicts with the constitution of the state, because it prevents the governor from exercising the' constitutional power of pardon as to persons committed to the House of Refuge under its provisions. I think the position is founded on a mistaken construction of the statute, and am unable to discover that it interferes, or attempts to interfere, with the pardoning power of the governor. It neither takes away such prerogative expressly or implied. In the absence of any express provision in the law interfering with the power of pardon conferred on the governor by the constitution, we should not by a forced and strained construction hold that the statute deprived him of such prerogative.

The relator also claims that the act in question violates the provisions of the fourteenth amendment to the Federal constitution, which provides that “ No state shall make or enforce any lavr nor deny to any persons within its jurisdiction the equal protection of the laws.” That the said statute imposes an imprisonment of five years on a certain class of females for a misdemeanor, while the punishment for all other females, except such class, for the same offense is imprisonment for one year or a fine or both.

The House of Refuge which the act creates is rather a reformatory than a prison, and all females in the state of the age stated are subject to the provisions of the law. Every woman between fifteen and thirty, guilty of a misdemeanor, is liable to the punishment provided therein. I think it within the power of the legislature to provide a punishment for children and young women at a different place and for a different period than the imprisonment provided for persons of a different age for the same offense.

It has never been suggested that § 700 of the Penal Code, providing that persons between sixteen and thirty years of age, committing a felony, may be sent to the reformatory at Elmira, was unconstitutional; yet under that section a person twenty-nine years old may be sent to the reformatory and perhaps be discharged within a year, while a man thirty years of age convicted of the same crime, must go to state’s prison and remain for the period of his sentence, perhaps over ten years. Under a former statute a person under sixteen years of age convicted of a misdemeanor could be sent to the House of Refuge in the city of New York. It was not necessary to specify in the commitment the time of their imprisonment, as male prisoners were under the law to be detained until their majority, and females until they reached the age of eighteen years. See People v. Degnen, 54 Barb., 105; Park v. The People, 1 Lans., 263.

It was never claimed that this statute was repugnant to the federal constitution, although in cases of misdemeanors the ordinary punishment was six months imprisonment, while under the statute in question a boy convicted of a misdemeanor was held five years or more. In cases of a felony under said statute, the detention of a person in the house of refuge would often exceed the ordinary period of imprisonment of one of mature years, for the same crime, in state’s prison.

The statute under consideration does not violate the provisions of the federal constitution to which appellant calls our attention, because it applies equally to all females between the ages of fifteen and thirty convicted of a misdemeanor. As all of the age stated are subject to» its provisions, it does not have the effect of denying to any person the equal protection of the law; also, because the house of refuge created by the act is a reformatory, not a state prison. The legislature may legally provide for the sending of young persons to such an institution, with a view of their reformation. The power of the legislature to prescribe different places of detention and different periods of confinement for criminals of different ages, committing the same crime, has been too long exercised to be now questioned.

It has been determined that the legislature may prescribe a different punishment for the same crime in different localities of the state. In Matter of Bayard, 25 Hun, 546, it was held that, although the legislature has established a general maximum punishment throughout the state for crime, it may change or increase the punishment as to particular localities. The law construed in that case provided that a person convicted of a petit larceny in the city of Cohoes should be punished by a fine not exceeding $250, or by imprisonment in the Albany penitentiary for a term not exceeding one year, or both, and said law was held not unconstitutional, although other parts of the state punished petit larceny by a fine not exceeding $100, or by imprisonment not exceeding six months, or both. But the statute applied to all citizens of the state who might be found guilty of petit larceny in Cohoes. See also Williams v. People, 24 N. Y., 407.

So, I think, the legislature may prescribe a different punishment for different ages as well as different places, and for the purpose of reforming, as well as punishing, may provide for the imprisonment of young women in the reformatory for a longer period than that prescribed by statute for older women committing the same offense in state prison.

The order should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  