
    The People ex rel. Mary Clark, Relator, v. New York State Reformatory for Women, at Bedford, Respondent.
    (Supreme Court, Kings Special Term,
    June, 1902.)
    2few York city — Unauthorized conviction of a woman as a public prostitute.
    A woman between the ages of fifteen and thirty years cannot be held in custody in the State Reformatory at Bedford, N. Y., under L. 1899, ch. 632, upon a warrant reciting her conviction by a city magistrate of the city of New York as a “ public prostitute for, if her offense was a misdemeanor, the city magistrate had no jurisdiction of it, while, if it was conduct that tended to a breach of the peace and not a misdemeanor, he could only hold her to bail for good behavior.
    Heabing on demurrer to a return to a writ of habeas corpus. The warrant of commitment is that the relator was convicted of being a “ public prostitute ”. The record of conviction, complaint and other papers are vaguely for disorderly conduct in soliciting men in the street.
    Amos H. Evans for relator.
    ¡Henry G. Gray opposed.
   Gaynor, J.:

So contradictory and indefinite are the complaint, record of conviction, warrant of commitment and magistrate’s return, that it is quite impossible to ascertain on what charge, statute or theory the magistrate took jurisdiction in this case, and tried and convicted the relator, and sentenced her to three years imprisonment in the state reformatory for women at Bedford.

1. There are sections of the charter of the former city of ¡New York referring to and to some extent defining disorderly conduct tending to a breach of the peace. Section 1458 specifically defines three offenses of that category. If they be misdemeanors, magistrates have no jurisdiction to try them, exclusive jurisdiction to try misdemeanors being given by the present city charter to the courts of special sessions (§ 1409; Kolzem v. Broadway & Seventh Ave. R. Co., 1 Misc. Rep. 148, 48 N. Y. St. Repr. 656; People v. Patterson, 38 Misc. Rep. 79; People ex rel. Frank v. Rerformatory for Women, 38 Misc. Rep. 233). If they be not, then all that the magistrates have jurisdiction to do in respect of them is to hold the accused in bail for good behaviour, that being the extent of the jurisdiction given to them in the case of disorderly conduct which tends to a breach of the peace (Former charter, §§ 1459, 1461). Each of the foregoing sections of the former charter seems to be kept in life by the present charter j(§ 1610).

As for the phrase “ disorderly conduct ” standing alone, there is no such offense. If under that phrase policemen and magistrates were free to call anything they choose disorderly conduct, and to arrest and hold therefor, no one would be safe. But policemen and magistrates cannot create or define criminal offenses. That can only be done by the Legislature, and cannot under our form of government be delegated.

2. One of the persons enumerated as “vagrants” in section 887 of the Code of Criminal Procedure is “ A common prostitute who has no lawful employment, whereby to maintain herself ”, and the sections which next follow provide for the disposition of vagrants. Section 1464 of the said former charter also classes “common prostitutes who have no lawful employment whereby to maintain themselves ” as vagrants, and the next two sections prescribe how they are to be dealt with. The warrant of commitment here is that the relator was convicted of being, a “public prostitute ”, which may be the magistrate’s substitute for the common law and also statutory phrase “ common prostitute ”. But the proceeding was obviously not for vagrancy. The relator was not charged, convicted or dealt with as a vagrant. She may have had a lawful employment by which she supported herself.

Section 146 of- the state charities law (ch. 546, L. 1896, amended by ch. 632, L. 1899) permits women between the ages of 15 and 30 years to be imprisoned in the New York State Reformatory for Women at Bedford on being “convicted by any magistrate of petit larceny, habitual drunkenness, of being a common prostitute, of frequenting disorderly houses or houses of prostitution, or of a misdemeanor.” But it is obvious that this statute was not intended to create criminal offenses or confer jurisdiction on magistrates. It is loose and unscientific, but has reference only to-existing offenses and conditions. If this relator had been found guilty under the said vagrancy sections of the Code of Criminal Procedure, or former charter, of being a common prostitute without any lawful -employment to support herself as there defined, I suppose she could have been sent to this institution. And magistrates have jurisdiction under the said Code section for “vagrants”, as well as under section 899 of the same Code concerning “ disorderly persons ”, as such persons are not classed as misdemeanants, but as persons to be summarily dealt with. They are not convicted of any crime under the said sections, and may in addition be tried and convicted of the acts for which they are summarily dealt with under the said sections, if such acts come within the- definition of any crime (People ex rel. Van Houton v. Sadler, 97 N. Y. 146).

The relator is discharged.  