
    The People ex rel. The Mount Magdalen School of Industry, Resp’t, v. Thomas Dickson, as Treasurer, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    County — Bills fob support of children committed to charitable inSTITUTIONS CHARGES AGAINST.
    The relator was a charitable institution incorporated under chap. 319, Laws of 1848, and having the approval of the state board of charities under chap. 446, Laws of 1883. Chapter 340, Laws of 1879, § 713, Penal Code and § 391,Penal Code,as amended in 1884 and in 1888 make provision for the commitment of children under sixteen years. Under these statutes, ’ and by commitments not in all respects perfect, children were sent to relator and its bill therefor, audited by the supervisors, defendant refused to pay. Held, that the bills were a county charge; and that the court would not here scrutinize the commitments with that care which it would exercise if the proceeding were a habeas corpus and the commitment were claimed to be illegal or insufficient.
    Appeal from judgment awarding a peremptory mandamus.
    
    
      George B. Wellington, for app’lt; James H. By an,' for resp’t.
   Learned, P. J.

This is an appeal from a final judgment, after a trial, awarding a peremptory writ of mandamus. The relator is a charitable institution incorporated under chap. 319, Laws 1848, and having the approval of the state board of charities under chap. 446, Laws of 1883. During the year 1889 down to October 1st, the relator had had in its charge certain girls, committed to it by certain committing magistrates. It rendered to the board of supervisors a bill duly verified for the board and maintenance of these girls. The board audited the bill December 16,1889, at $4,015.96. The county treasurer refuses to pay it and the mandamus was granted to compel him to pay. His position is that the claim is not a county charge and that the auditing was unauthorized.

The question here is not whether any or all of the children committed by magistrates to the relator might not have obtained a discharge from custody by habeas corpus, on the ground of imperfections and errors in the commitments. That would be a very different question, and one which would arise between the children respectively and the present relator, as in People ex rel. Day v. Mount Magdalen School, 28 N. Y. State Rep., 254.

In the case now before us, the relator has received and cared for these children under commitments made by magistrates, and has duly rendered its bill to the board of supervisors, and that bill has been audited. The county treasurer refuses to pay, and he places his refusal on the ground that the bill is not a county charge.

Chapter 240, Laws of 1878, provides that children under sixteen, convicted as vagrant, truant or disorderly, must be sent to some reformatory or other institution, as provided for in the case of juvenile delinquents. And the act requires boards of supervisors to take such action in the matter as may be necessary to carry out the provisions of this act

Section 713., Penal Code, as amended, requires that a child ■under sixteen, committed for misdemeanor under any of the provisions of that Code, must be committed to some reformatory, ■charitable or other institution authorized by law to receive such ■child.

And subdivision 5, § 291, of the same Code, as amended by -chapter 46, Laws of 1884, and by chapter 145, Laws of 1888, declares that a child actually or apparently under sixteen, found ■doing certain acts described in the preceding subdivisions, or coming within the descriptions in § 292, may be committed to any •incorporated charitable reformatory. Subdivision 6 authorizes a .similar temporary commitment for trial and a similar commitment of a child held as a witness, and provides that the institution shall be entitled to like compensation proportionally as on a final charge.

Mow, these provisions plainly show that under these statutes the institution to which children are thus committed is to receive compensation. The institution as to these children is placed in the position of the jail, or the poor-house, as the case may be. 'The law makes a wise and humane substitution of a charitable -and reformatory institution for the prison to which an adult, convicted or detained, would be sent, and for the. poor-house, to which an adult pauper would be sent. And where provisions of ■this nature are made by the statute, it is evident that it is not intended, as the respondent seems to claim, that these children thus committed are to be kept without compensation, when the board of supervisors have allowed and audited the bill for such compensation.

It will be seen that § 713, above referred to, is imperative; and .although it does not use the words “juvenile delinquents,” yet a child under sixteen committed for a misdemeanor is plainly a juvenile delinquent. Mow chap. 240 of the Laws of 1879 is general. It is not necessarily limited in its effect to institutions then existing. It directs that vagrant, etc., children be sent to the same kind of institution to which juvenile delinquents are to be sent. And that kind is defined in § 713 of the Penal Code :above cited.

It is not necessary for us to decide whether, without the approval of the board of supervisors, the committing magistrates may send to any institution of the character named which they may select. It is enough in this case that the selection has been ratified by the board; and we cannot think that the institutions intended by these sections of the Penal Code are necessarily such as were in existence when chap. 240 of the Laws of 1879 was passed.

That an institution to which children are thus committed for vagrancy, etc., is to receive compensation, is further shown by the subd. 6 of § 291, above cited, which speaks of the compensation for temporary commitments, and for the detention of witnesses as proportional to that on final commitments. The same is ■also shown by § 921, Code Criminal Procedure, which, in cases ■of a commitment of a child to an institution under the Penal Code, authorizes a magistrate to order the father to pay a sum fa^ the child’s ^support, which is to be credited by the institution to the city, town or county against any sum due for maintenance.

It is further urged by the respondent that this bill should not be paid by reason of the imperfection, or, as is alleged, invalidity ■of the commitments. We have already remarked that this litigation is not between the persons committed and the institution. Questions which might be very important on a habeas corpus do not necessarily arise here. The children made no question as to the legality of their commitment. They acquiesced in it. The relator accepted their custody, and cared for them. If, under commitments of a similar character as to their alleged irregularity, an adult had been confined in jail, and the board of supervisors had allowed the sheriff’s bill for maintenance, could the county treasurer lawfully refuse to pay ?

We may notice here that chap. 145, Laws of 1888, passed April 18th, would seem, as to many of these commitments at least, to make them sufficient. And chap. 220 of the same year, amending § 888 of the Code of Criminal Procedure, expressly authorizes in certain cases the commitment of a vagrant child described in subd. 8, § 887, Code Criminal Procedure, as provided in § 291, Penal Code.

We think then that, as between the relator and the board of supervisors, the custody of these children was such that the board might allow it as a county charge. Ousterhoudt v. Rigney, 98 N. Y., 232. The respondent relies for his objection solely on the commitment. No proof was given as to any record other than the ■commitment of the trials of these children. People ex rel. Trainor v. Baker, 89 N. Y., 466.

Now, while we need not deny that a commitment could, be made so entirely beyond the power of the magistrate on its face that an institution like the relator could not lawfully be paid for the custody of a child thereunder, even after the audit by the board, we do not think that such a case is here. And though the form of the commitments is not as perfect as it might be, yet as between the relator and the county treasurer we are of the •opinion that he should pay the audited bill.

Judgment affirmed, with costs.

Land on, J., concurs.  