
    The People of the State of New York ex rel. Frederick C. Horton, Appellant, v. Helen T. Fuller, Respondent.
    
      Pauper children— commitment of, to an orphan asylum by the supiervisor of a town on the recommendation of the overseer of the poor.
    
    Under chapter 173 of the Laws of 1875, the provisions of which are substantially re-enacted in section 56 of the Poor Law (Laws of 1896, chap. 335), pauper children between the ages of three and sixteen years may be committed to an orphan asylum or other charitable or reformatory institution by the supervisor of a town on the recommendation of the overseer of the poor of the town, and no judicial proceeding before a magistrate is necessary.
    The statutory provisions referred to were not repealed or superseded by sections 391 and 393 of the Penal Code, nor by chapter 438 of the Laws of 1884.
    Appeal by the relator, Frederick 0. Horton, from orders of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 1st day of October, 1898, dismissing writs of habeas corpus issued to inquire into the cause of the detention of Amy Horton and Cliauncey Horton by the respondent, who is^superintendent of the Albany Orphan Asylum
    
      Charles Morschauser, for the appellant.
    
      Abram J. Miller, for the respondent.
   Hatch, J.:

The evidence is convincing of the fact that the father of the two children, the subjects of the writs of habeas corpus in this proceeding, had abandoned them and left them solely to the care of their mother. It is equally convincing of the fact that the mother was living in adulterous intercourse with another man, and gave to the children little or no care and attention. It is evident that the mother and her paramour were wretchedly poor, and that the children, in the dead of a severe winter, were destitute of food, clothing and care. Under such circumstances, the overseer of the poor of the town, after full investigation, reached the conclusion that they were in every sense pauper and destitute children, and applied to the supervisor of the town, who also’ after investigation, determined that they were pauper and destitute children, and thereupon committed them as such to the Albany Orphan Asylum, where they have since remained. The children were above the age of three, and under the age of sixteen years. It is presently claimed that the proceeding by which these children were committed to this asylum was not judicial, and that the pretended commitment was illegal and void. The commitments were made by the supervisor of the town, and, as recited therein, were made pursuant to the provisions of chapter 173 of the Laws of 1875, and of the various other acts since passed relating to the same subject. The act of 1875 is entitled “An Act to provide for the better care of pauper and destitute children.” Section 1 of the act prohibited a justice of the peace, police justice or other magistrate from committing any child over three and under sixteen years of age as vagrant, truant or disorderly to any county poorliouse, and required that such child should be committed to some orphan asylum or other charitable or reformatory institution. The section also required the county superintendent or overseer of the poor or other officer to send any pauper child, except a certain class, into which these children did not fall, to such institutions as are before enumerated. The 2d section required county superintendents of the poor, or other proper officers charged with the care of indigent persons, to remove pauper children from the county poorhouses after they shall have arrived at the age of three years, and place them in the care of families, orphan asylums or other appropriate institutions. The boards of supervisors of the several counties were required to take such action as should be necessary to carry out the provisions of the act. Pursuant to this law the board of supervisors of the county of Putnam, in which is the town of South East, from which place the children were committed, entered into a contract with the Albany Orphan Asylum for the care of the pauper children of the county falling within its provisions, and also passed a resolution authorizing the supervisor of the town to make the orders committing such children to such institution, and directed that they be conveyed to such place by the overseers of the poor of the town. Neither the contract nor resolution appears in the printed papers, but the fact that both were made does not appear to be disputed by the appellant. It is quite evident from the provisions of the act that a judicial proceeding was not contemplated. The children authorized to be committed by the overseers of the }Door or other persons charged with such duty, were not either in fact or law criminals, or guilty of any criminal act or offense ; they were simply destitute and pauper. The act in terms provided for vagrant, truant or disorderly children, and assumed that as to such children magistrates would commit under form of judicial procedure. As to the other class, not being in any sense criminal or guilty of offense, no such form was required. It was never the law that pauper children, solely, required commitment by a magistrate when taken to a county poorhouse. They were so taken to such institutions by the authorities of the county or town without the intervention of a judicial officer. The act itself recognized that such children were, at the time of its passage, in the several almshouses of the State, and it directed their removal by the poor authorities, and it is clear that judicial authority was not to be invoked in effecting such removal. As to pauper children not inmates-of such houses, authority for their care was committed to the supervisors and the poor authorities of the county or town.

We have, therefore, two classes of children recognized by the act: One class in a sense criminal, which magistrates were required to commit, and the other pauper and destitute, for which the supervisors and poor authorities were required to care. The act which we have reviewed was repealed by the Poor Law (Chap. 225, Laws of 1896), but therein, so far as authority was vested in the poor authorities of the county, town and boards of supervisors, the law. is in all essential respects re-enacted in section 56 of such law. It is, therefore, evident that authority of law existed for the commitment of these children to this asylum, and the form and manner of their commitment have the support of statutory authority. It is claimed, however, that these laws are repealed and superseded by sections 291 and 292 of the Penal Code. We think that this contention cannot be upheld. The re-enactment of the law of 1875-by the laws of 1896 was subsequent to the adoption of these sections of the Code and of any amendment made thereto. If either statute, therefore, is to yield, it must be the former and not the latter ; and this would be so even though the two were not wholly repugnant, and even though there be nó repealing clause. (Heckmann v. Pinkney, 81 N. Y. 211; The People v. The Gold & Stoch Tel. Co., 98 id. 67, 78.) But we do not think that either statute is required to yield to the other. Repeal of statutes by implication is not favored, and these two statutes are not repugnant. The provisions of the Penal Code evidently refer to a class of children in some sense guilty of criminal acts, and against whom the law requires the proceeding therein provided. The later act does not contemplate such steps, as tlie child does not fall within the class. The two statutes may, therefore, easily stand. (Matter of Riley, 31 Hun, 612; People ex rel. Van Heck v. N. Y. Catholic Protectory,, 101 N. Y. 195.) It is quite likely that the terms of section 291 are broad enough to confer jurisdiction upon a magistrate to commit a child of the latter class; but even though this be the fact, it cannot operate to destroy the authority of the later act. For reasons already assigned, chapter 438, Laws of 1884, cannot be held to operate in derogation of the statute of 1896. The act of 1884 contemplates commitment of children upon consent of parents and under different circumstances. It is not necessary that we review such act, for even though we should find some of its provisions in conflict with the present statute, we should be bound to adopt the provisions of the later act. Aside, however, from these provisions, it is quite evident that the court is required to look to the welfare of these children. The statute contemplates a condition of necessity existing upon the part of the public to care for the child, that its welfare may be promoted and its interest protected. Under such circumstances, the public becomes its guardian, and as it is not criminal, its welfare as to custody ought to be a controlling consideration. As between private persons seeking the custody of a child, this is the governing consideration. (The People ex rel. Wilcox v. Wilcox, 22 Barb. 178; People ex rel. Wehle v. Weissenbach, 60 N. Y. 385.) The same reasons exist in the case now before us as induced the court to enunciate such doctrine, and if such rule be applied, the court was clearly right in determining that the best interests of the children required their continuance in the asylum, rather than that they be awarded to the custody of their father.

In any view of the case, the orders should be affirmed.

All concurred.

Orders affirmed.  