
    (67 Hun, 523.)
    PEOPLE ex rel DUNTZ v. COON.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    1. House op Repuse—Commitment op “Common Prostitutes.”
    Laws 1881, c. 187, as amended by Laws 1887, c. 17, establishing the-house of refuge for women, and providing that “justices of the peace, police justices, and other magistrates and courts, =•• * * may sentence and commit all females between the ages of 15 and 30 years, who have been convicted of petit larceny, habitual drunkenness, of being common prostitutes, frequenters of disorderly houses, or houses of prostitution,”' to such institution for a term of not more than 5 years, unless sooner discharged therefrom by the board of managers, was intended as an independent act, and is not to be constroed in conjunction with the Penal Code and Code of Criminal Procedure; and therefore a justice may convict and sentence such a female simply as “a conynon prostitute,” though no such crime is specified in the Codes, the only class of prostitutes mentioned being (Code Grim. Proc. § 887) “a common prostitute, who has no lawful employment whereby to maintain herself.”
    2. Same.
    The fact that the act does not in terms enumerate the acts which shall constitute a female “a common prostitute” is immaterial, as the term is so well understood, in a legal sense, that a definition is unnecessary.
    3. Same—Constitutional Law.
    The act is not unconstitutional, as preventing the governor from exercising the constitutional power of pardon, as it does not expressly, or by implication, interfere with such power.
    4. Same.
    ■ ' Nor is the act unconstitutional because, in allowing the commitment to such institution of females between the age of 15 and 30 years, convicted of a misdemeanor, it provides a longer term, and a different place of confinement, than for f'emales over that age, whose punishment for the same offense is a fine, or imprisonment for one year in the state prison, or both, as the legislature has the right to make such distinction.
    5. Same.
    The act is not in violation of Const. XJ. S. Amend. 14, providing that “no state shall make or enforce any law nor deny to any persons within irs jurisdiction the equal protection of its laws,” since it applies equally to all females between the ages specified.
    6. Same—Record op Conviction and Commitment—Surplusage.
    The fact that the record of conviction of a female, of being a common prostitute, and the commitment to the Plouse of Refuge, recite that she was convicted of being a common prostitute, “and associating with disreputable people,” does not render her commitment and detention unlawful, as the words quoted may be rejected as surplusage.
    Appeal from order of Columbia county judge.
    Petition by'Mark Duntz, for and on behalf of Nellie Victory, for a writ of habeas corpus to inquire into the cause of her detention and imprisonment in the house of refuge for women. From an order dismissing the writ, and remanding the prisoner, relator appeals.
    Affirmed.
    The opinion of County Judge Cady was as follows:
    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 1 thereof provided that “there shall be established hi 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 8 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 section 7 of this act have been fully complied with, all justices of the peace, police justices, and other magistrates 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 amend•ed by section 1, c. 17, of the Law's of 1887, passed February 16th of that year. The language of the section was changed, to some extent, in form; and to the section was added a series of rules to govern the action of the board 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. Brace, 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 ouc 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. I 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 re Curran, (Hudson special term, March, 1892.) 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 tliis 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, Hist. Prost; Acton, Prost.; Amos, Reg. 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 section 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 needless 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 subieet 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 1 am referred to section 8ST 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 S87 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 tins state are xhose who have no lawful employment whereby to maintain themselves, unless the conviction is liad, in terms, under a municipal ordinance. It probably will not be maintained that the provisions 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 tills 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 reinforcement 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 refuge 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 section 1 of chapter 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 purpose of control and reformation, rather than of punishment alone. If it be argued that the statutes establishing the house of refuge 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 section 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. The 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 re Application for 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.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Duntz & Aldcroftt, (Mark Duntz, of counsel,) for appellant.
    Albert Hoysradt, for respondent.
    
      
      See note at end of case.
    
   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. R. 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 17 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.” In re New York El. R. Co., 70 N. Y. 342; People v. Albertson, 55 N. Y. 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 national 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 impliedly. 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 law, nor deny to any persons within its jurisdiction the equal protection of its 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 15 and 30, 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 section 700 of the Penal Code, providing that persons between 16 and 30 years of age, committing a felony, may be sent to the reformatory at Elmira, was. unconstitutional; yet under that section a person 29 years old may be sent to the reformatory, and perhaps be discharged within a year, while a man 30 years of age, convicted of the same crime, must go to state’s prison, and remain for the period of his sentence,—perhaps over 10 -years. Under a former statute a person under 16 years of age, convicted of a misdemeanor, could be sent to the house of refuge in the city of IsTew 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 female until they reached the age of 18 years. See People v. Degnen, 54 Barb. 105; Park v. People, 1 Lans. 263. It was never claimed that this statute was repugnant to the fejderal 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 reffige 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 15 and 30, 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 to 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 Re 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. All concur.

NOTH.

Judge Edwards, in his opinion in Re Maggie E. Curran, rendered at Hudson special term, (not reported,) says: “The question presented and argued by the counsel is whether the committing magistrate had jurisdiction to try and convict the defendant for the alleged offense of ‘being a common prostitute.’ Prior to the adoption of the Code of Criminal Procedure, the Revised Statutes provided for special proceedings of a criminal nature against disorderly persons. It declares that certain persons therein named should ‘be deemed disorderly persons,’ and among these are ‘all common prostitutes.’ Rev. St. pt. 1, c. 20, tit. 5, § 1. This portion of the Revised Statutes was repealed by Laws of 1886, c. 593. The Code of Criminal Procedure provides for ‘proceedings respecting disorderly persons,’ and section 899, which declares who are disorderly persons, omits from the classification the words, ‘all common prostitutes,’ but in ‘Proceedings Respecting Vagrants,’ (section 887,) which declares what persons are vagrants, describes, among other classes, the following: ‘A common prostitute, who has no lawful employment whereby to maintain herself.’ The proceeding against the defendant must have been by virtue of this section. Section 890 requires a peace officer to take a ‘vagrant’ before the magistrate, and section 891 provides that if the magistrate is satisfied from the confession of the person brought before him, or by competent testimony, that he is a vagrant, he must convict him, and must make a certificate stating that the magistrate has adjudged that the person is a vagrant. The record of conviction must show that the person was convicted of being a ‘vagrant.’ Here the defendant was not only not convicted as a ‘vagrant,’ as the statute requires, but she was not even charged, tried, or convicted as a person belonging to any of the classes which the law has defined to be vagrants. She was tried and convicted of ‘being a common prostitute,’ without the qualifying words of the statute, ‘who has no lawful employment whereby to maintain herself.’ Clearly, the magistrate has no authority to try the defendant on the charge of ‘being a common prostitute,’ or to convict her as such. There is no such offense as ‘being a common prostitute.’ These words are but part of the offense. The legislature intended that the qualifying words, ‘who has no lawful employment whereby to maintain herself,’ should have the significance which they import, and the magistrate has no power to disregard them. To be a vagrant, within the subdivision, one must come within the class of persons therein described. The statute makes the qualifying words an' essential part of the crime. A justice has no more right to disregard them than he has, under the third subdivision or classification of the same section, to convict one of being ‘a person who has contracted an infectious or other disease,’ and disregard the additional and qualifying words of that class. Although the mere statement of the ¡facts would seem sufficient to show the invalidity of the conviction, an authority for the conclusion which I have reached may be found in 19 How. Pr. 457, (In re Forbes.) In that case the words of the commitment were: ‘Whereas, Catherine Forbes stands charged, and is, on competent testimony made before me, lawfully convicted, of being a vagrant, in this, to wit, that she is a common prostitute,’ etc. The question there arose under an act applicable only to the city of New York, by which certain persons are declared to be vagrants, and one of the classes therein defined is, ‘All common prostitutes who have no lawful employment whereby .to maintain themselves. It will be observed that the language of that act, in describing this class of persons, is the same as contained in the section of the Code of Criminal Procedure under which the proceedings here were instituted. Mr. Justice Sutherland, before whom that case was heard, held that the conviction was erroneous, and in his opinion said: ‘It is presumed that the prisoner, Catherine Forbes, was arrested and convicted under this act; but, by this act, common prostitution is neither defined, nor declared to be a crime.’ By tiffs net a certain class or description of common prostitutes are declared to be vagrants. Every word which defines this class, or makes a part of this description's material and important The magistrate, in acting under the act, has no right to drop or disregard one word of this description. To be a va - grant, within the act, the common prostitute must be without any lawful employment whereby to maintain herself.”  