
    People ex rel. Elizabeth Van Riper, Resp’t, v. New York Catholic Protectory, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Vagrant Children—Commitment of—Pacts necessary to authorize AN ARREST OR COMMITMENT—PENAL CODE, § 291.
    ■ A female child of the age of fourteen years was,on October 5,1886,brought before a police justice of the city of New York, charged with having been found on that day improperly exposed and neglected and wandering in the public park, to wit, the Union Square Park in said city, without any proper guardianship; that said child was found in the company of one Mary Ryan, who is a reputed prostitute, in violation of the provisions of the Penal Code, section 291. The justice on the same day examined the charge, and, after hearing the witnesses, adjudicated that the charges were true, and committed the child to the custody of the defendant to remain under the guardianship of said corporation until therefrom discharged pursuant to law.” Ue‘d, that it must appear that the child was abandoned and neglected by the fault of her parents or custodians to justify taking the child from their custody on the ground of abandonment or improper exposure or neglect.
    2. Same—When child “wandering without proper guardianship” under Penal Code, sec. 291, sued. 2—Sufficiency of complaint.
    That part of the complaint which charges, in connection with the circumstances that the child was wandering in the public park, the further circum-fauces “without proper guardianship” is not sufficient to bring the case within the second subdivision of Penal Code, section 291. That language of the subdivision refers to those waifs who are homeless, having no abiding place and no guardian, and to a permanent and usual condition, and not to a child casually in the street without protection.
    S. Same—Charge of being in company with prostitute—Properly pleaded—Subdivision 4 of same section.
    The second charge in the complaint, viz., that the said child was “found in company of Mary Ryan,” etc., was sufficient as a matter of pleading, under subdivision 4 of said section.
    4. Same—What does not make a case within the statute.
    The mere fact of a child meeting a prostitute in a public park and unwittingly walking and being in her company on al single occasion would not make a case within the statute.
    5. Same—Practice—Notice to parent—How given.
    Under the amendment of Penal Code, § 291, by Laws 1886, notice must be given to the parent, either under the consolidation act (Laws 1882, § 1618, et setj.), or under section 291. Quaere, whether it must he given to the father. It need not, of necessity, be personal service; under section 291, the magistrate may adjudge what and how notice shall he given.
    6. Criminal law—Summary conviction—When upheld.
    The information in case of summary conviction ought to be precise and show a case clearly within the statute. It is the foundation of the jurisdiction of the justice, and when it omits an essential ingredient or circumstance to bring the case under the statute, and the defect is not supplied by the evidence, the conviction is bad. Latitude or liberality of intendment to support the proceedings is not indulged in.
    f. Same—Presumption as to regularity of proceedings in courts of LIMITED JURISDICTION.
    Where a court or magistrate, exercising special or limited powers, has jurisdiction, the proceedings are entitled to the same presumption of regularity which attaches to proceedings of courts of higher jurisdiction, and when there is presented to a court or magistrate exercising a summary jurisdiction, evidence of an essential fact, the judgment and decision of the court or magistrate upon the fact cannot be overhauled in .a collateral proceeding, but is conclusive until reversed upon appeal.
    8. Same—Sufficiency of commitment—Traversing return.
    The commitment recited that the conviction proceeded upon proof by competent and satisfactory evidence of the charge made, and this recital was not contradicted. Held, that the admission of the facts alleged in the traverse (that the child committed had done no act prohibited, etc.) furnished no ground for .discharging the child on habeas corpus proceedings.
    Appeal from an order of the supreme court, general term, first department, affirming an order of the New York special term, discharging the relator’s child from custody. The facts sufficiently appear in the opinion.
    
      Elbridge T. Gerry, for app’lt; Dennis McMahon, for resp’t.
    
      
       Modifying 9 N. Y. State Rep., 95; see 5 id., 317.
    
   Andrews, J.

—Florence Van Riper, a female child of the age of fourteen years, was on the 5th day; of October, 1886, brought before a police justice of the city of New York, charged with having been found on that day “ improperly-exposed and neglected and wandering in the public park, to wit, the Union Square Park in said city, without any proper guardianship; that the said child was found in the company of one Mary Ryan, who is a reputed prostitute, in violation of the provisions of the Penal Code.” The justice on the same, day examined the charge, and, after hearing the witnesses, adjudicated that the charges set forth in the complaint were true, and he therefore issued a commitment committing the said Florence Van Riper to the custody of The New York Catholic Protectory, “ to be and remain under the guardianship of said corporation until therefrom discharged pursuant to law.”

Pursuant to the commitment, the child was put into the custody of the institution named therein, and was produced on the return of the writs of habeas corpus and certiorari, by its officers. The only evidence in the record pf the proceedings before the justice is found in the written complaint upon which the proceeding was initiated and in the commitment itself. These papers show that the complaint was founded upon an assumed violation of section 291 of the Penal Code; that the accused was brought before the justice for examination on the charge stated in the complaint; that a hearing was had and witnesses examined, and that Elizabeth Van Riper, the mother of Florence, was present during the trial.

The return of the appellants to the writs of habeas corpus and certiorari, consisted simply of an averment that it was incorporated under the act of May 5, 1863, and the acts amendatory thereof, and that Florence Van Riper, by virtue of said act and of section 292 of the Penal Code, as amended by chapter 31 of the Laws of 1886, was committed to its custody by a police justice of the city of New York under a commitment, a copy of which was annexed to the return, and that she was there held by the appellant thereunder.

The evidence taken before the justice has not been returned and is not before us.

The writs were not directed to the magistrate, but to the House of the Good Shepherd, by whom it was alleged the said Florence was detained, and they called simply for the production of her body before the court, and that the institution detaining her should certify the time and cause of her imprisonment.

The commitment, while it does not set forth the evidence, recites in substance that the material allegations and matters set forth in the complaint were established to the satisfaction of the justice by “ competent testimony and evidence.”

The relator relies upon several grounds to sustain the order of the special term sustaining the writs and discharging the said Florence.

First. It is insisted that the complaint before the justice did not bring the case within section 291 of the Penal Code. This ground is, we think, well taken as to the first charge in the complaint, viz.: that the said Florence was found improperly exposed and neglected and wandering in the public park, to wit, Union Square Park in said city without any proper guardianship.”

The only subdivision of section 291, to which this charge has any relation, is the second, which specifies one of the conditions under which a child being so found is subjected to this summary jurisdiction, viz.: ‘ ‘ not having any home or other place of abode or proper guardianship; or who has been abandoned or improperly exposed or neglected by its parents or other person or persons having it in charge, or being in a state of want or suffering.”

The charge that the child was found “improperly exposed and neglected and wandering in the public park,” did not, as observed by the general term, warrant her arrest, unless she had been so exposed by her “parents or other person or persons having her in charge,” and there is no allegation to this effect. It must appear that the child was abandoned and neglected by the fault of her parents or custodians, to justify taking the child from their custody on the ground of abandonment or improper exposure or neglect. The information in these cases of summary conviction ought to be precise and show a case clearly within the statute.

It is the foundation of the jurisdiction of the justice, and when it omits an essential ingredient or circumstance to bring the case under the statute and the defect is not supplied by the evidence, the conviction is bad. It is not consistent with the proper security of personal liberty to indulge, in cases of summary convictions, in latitude or liberality of intendment to support' the proceedings. They are conducted contrary to the course of the common law, without the intervention of a jury, usually before magistrates of limited experience, and are often attended with the gravest consequences. This summary jurisdiction is doubtless most necessary to be maintained in the public interest, but at the same time the proceedings shall be carefully scrutinized to see whether they are fully warranted by the statute.

“I would fain know,” said Lord Holt, in Roe v. Whistler (Holt, 215), “when a penalty is inflicted and a different manner of trial from Magna Oharta instituted, and the party offending, instead of being tried by his neighbors in a court of justice, shall be convicted by a single justice in a private chamber upon the testimony of one witness, if on a consideration of such a law we ought not to adhere to the letter.”

That part of the complaint which charges, in connection with the circumstances, that the child was wandering in the public park, the further circumstance “without proper guardianship,” is not sufficient to bring the case within the second subdivision of section 291. That language of the subdivision manifestly refers to those waifs who are homeless, having no abiding place and no guardian, and to a permanent and usual condition, and not to a child casually in the street without protection. In this" case we cannot assume that the evidence was broader than the formal accusation. The finding or adjudication of the justice was in the exact language of the complaint.

But the second charge in the complaint, viz.: “That the said child was found in the company of Mary Ryan, who is a reputed prostitute,” follows substantially the language of the fourth subdivision of section 291. This, according to the general rule governing accusations in criminal or quasi-criminal proceedings, as matter of pleading is sufficient. People v. Taylor, 3 Den., 91. Whether the evidence brings the particular case within the statute is another question. What constitutes “being in the company of reputed thieves or prostitutes,” may not always be easily determined. I agree with the counsel for the relator that the mere fact of a child meeting a prostitute in a public park, and unwittingly walking and being in her company on a single occasion, would not make a case within the statute. But the complaint as such was sufficient. Whether the charge was established can only be known by an examination of the evidence taken before the justice, and that is not before us.

Second. It is insisted that upon this record it conclusively appears that the child Florence was not subject to be imprisoned, because she did no act and was not found under any circumstances which, according to section 291, made her amenable to conviction and imprisonment. This contention is based upon the fact that in the traverse of the relator to the return of the New York Catholic Protectory, it was alleged, in substance, that Florence Van Riper had done no act prohibited by section 291 of the Penal Code, but was in the park at the time charged in the complaint for an innocent and lawful purpose, and having parents, with whom she resided, in Hoboken, K J., etc. To this traverse, the respondent demurred, thereby, as is alleged, admitting the facts therein, and consequently her innocence and her right to be freed from restraint. But it is to be observed that the facts stated only go to the point that in fact the child had not by her conduct rendered herself amenable to the jurisdiction of the magistrate. It was not alleged in the traverse that there wras no evidence before the justice of the facts adjudicated by him. /;

The traverse, in connection with the admission of the facts alleged by the demurrer, may show that the child was wrongfully convicted of “being in the company of Mary Ryan, a reputed prostitute, but it cannot be inferred that no evidence justifying the finding by the justice of that fact was produced before him. The demurrer presented simply the question whether a summary conviction can be set aside on habeas corpus or certiorari on averments and proof made before the court, that the fact proved before the magistrate, upon which the conviction depended, was not true, and that the real fact was otherwise, and 'if known, would have entitled the accused person to his discharge.

In other words, can there in this proceeding be a retrial upon the merits of the question, whether the child had or had not committed any act or been found in any situation which subjected her to restraint or imprisonment, under section 291 of the Code. The authorities conclusively settle this question adversely to the claim of the relator. Where a court or magistrate, exercising special or limited . powers, has jurisdiction, the proceedings are entitled to the same presumption of regularity which attaches to proceedings of courts of higher jurisdiction, and when there is presented to a court or magistrate, exercising a summary jurisdiction, evidence of an essential fact, the judgment and decision of the court or magistrate upon the fact cannot be overhauled in a collateral proceeding, but is conclusive, as .is the judgment of a court of general jurisdiction, until reversed on appeal. Brittain v. Kinnard, 1 Bro. & B., 432; People v. Cassels, 5 Hill, 164; 2 Smith’s L. Cas. Note, 976, 992, and cases cited.

We are of opinion, therefore, that as the commitment recites that the conviction proceeded upon proof by competent and satisfactory evidence of the charge made, and this recital is not contradicted, the admission of the facts alleged in the traverse furnishes no ground for the discharge of the child in this proceeding.

Third. It is further insisted that the magistrate proceeded without jurisdiction by reason of an omission to give notice of the proceedings to the father of the child. The recital in the commitment that “Elizabeth Van Riper, the parent, guardian and custodian of said child, ” _ was present at the examination and that she had such notice of the examination as the magistrate “deemed and judged sufficient,” is not controverted in the record. But it is alleged in the traverse to the return and admitted by the demurrer thereto, that “no notice was ever given of any of said proceedings before the committing magistrate, to Thomas D. Van Riper, the fáther of such infant Florence, in whose house said Florence was then residing, and who was the natural guardian of said child, nor was the said Thomas D. Van Riper present at the examination of said child’s case before the justice.”

. The question is, therefore, presented whether notice of the proceeding was required to be given to the father of the infant as a condition to a valid adjudication under section 291 of the Penal Code, as amended by chapter 31 of the Laws of 1886, there having been no other notice except to the mother, who was present at the examination.

It was held by this court in the case of Peóple ex rel. Van Keck v. The New York Catholic Protectory (101 N. Y., 195) —being the same institution to which the child in this case was committed—that it was an essential prerequisite to a valid, final commitment to the protectory in a case arising under section 291 of the Penal Code, that notice should be given to the father of the child in accordance with the provisions of the consolidation act of 1882 (section 1618, et seq.), although the mother was present during the proceedings and the court affirmed the order of the court below, discharging the son of the relator for want of such notice. Section 291 was amended in 1886, after the decision in the Van Heck Case, by inserting the following provision:

“Whenever any child shall be committed to an institution under this Code, and the warrant of commitment shall so state, and it shall appear therefrom that the parent, guardian or custodian of such child was present at the examination. before such court or magistrate, or had such notice thereof as was by such court or magistrate deemed and adjudged sufficient, no further or other notice required by any local or special statute in regard to the committal of children to such institution shall be necessary.” The precise question now presented is whether the mother having been present at the examination, which the magistrate adjudged to be sufficient notice to her, was notice of the proceedings to the “parent, guardian or custodian” of the child within the provisions of the amendment of 1886. The word is “parent” in the singular. The mother of course is one of the parents. Is it the true meaning of the statute that notice to either parent is sufficient, or did the statute intend that when both parents were living the notice should be given to the one who is the child’s natural guardian and custodian which is the situation of the father if he be living? People ex rel. Nickerson, 19 Wend., 16.

Under the consolidation act (section 1619) the notice was to be served on the father if living, etc., and, if not, on the mother, etc. The two acts are in pari materia, and the former act may, we think, be considered in construing the latter one. The father is the parent who, probably, in most cases, would be best able to provide for the proper defense of the child. The proceeding directly effects his right of parental control and custody. We think the amendment of 1886 implies that notice must be given to the parent either under the consolidation act, or under section 291 of the Code as amended. It need not of necessity be personal, and under section 291 the magistrate may adjudge what and how notice shall be given. The learned judge at special term placed his decision discharging the child upon the ground that under the statute notice must be given to the father. The question is not free from difficulty, but we think the statute may, and perhaps ought to receive this construction. The fact that the father is not the relator and does not make the application for the discharge of the child, has, we think, no bearing upon the legal question involved. The rights of the child are primarily in question, and every step which the statute requires to be taken in the exercise of this summary jurisdiction must be observed. These views lead to an affirmance of the order of the special and general terms, but it should be without costs in this-court, and we think also that costs should not have been granted in the court below, and that in that respect the order should be modified. See People ex rel., etc., v. Gilmore, 88 N. Y., 626.

All concur.  