
    The People of the State of New York ex rel. The State Board of Charities, Appellant and Respondent, v. The New York Society for the Prevention of Cruelty to Children, Respondent and Appellant.
    
      New York Society for the Prevention of Cruelty to Children — it is a charitable corporation and subject to visitation by the State Board of Charities.
    
    Tile New York Society for the Prevention of Cruelty to Children, whose main purpose, as defined by its articles of incorporation, is “ the prevention of cruelty to children and the énforcement, by all lawful means, of the laws relating to, or in anywise affecting, children,” is a charitable or eleemosynary corporation, and as such is subject to the powers of. visitation and inspection conferred on the State Board of Charities by sections 11 to 15 of article 8 of the New York Constitution of 1894, and by sections 9 and 10 of the State Charities Law (Laws of 1896, chap. 546).
    Cross-appeals by the relator, The State Board of Charities, and by the defendant, The New York Society for the Prevention of Cruelty to Children, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of January, 1899, granting in part and denying in part a mandamus against The New York Society.for the Prevention of Cruelty to Children.
    Article 2 of the articles of. incorporation of the defendant provides as follows:
    
      “ The particular business and objects of this society are the prevention of cruelty to children and the enforcement, by all lawful ' means, of the laws relating to, or in anywise affecting, children.”
    
      John 0. Davies, Attorney-General, for the relator.
    
      DeLancey Wicoll, for the defendant.
   Barrett, J. :

The question here is whether the Society for the Prevention of Cruelty to Children is a charitable or eleemosynary institution, and as such subject to the relator’s powers of visitation and inspection. It would almost seem as though the very appellation of the society suggested a solution of the question. If such a society is not a charitable institution it is difficult to define its other character. It certainly comes within every definition of a charitable society to be found in the books, whether considered in the light of the Statute of Elizabeth, or independent of that statute; and it also- comes within the provisions of the Constitution and statutes on that head, as those provisions have been construed by the Court of Appeals in People ex rel. New York Institution for the Blind v. Fitch (154 N. Y. 14). _ It was there held that the word charitable, as used in the Constitution and- statutes, conferring powers of visitation and inspection upon the relator, should be given only its usual and ordinary meaning. It needs no more than that to bring the society within the powers of the hoard. The prevention of cruelty to " children is essentially a charity in the usual and ordinary meaning of that word. Any other view of the mission of this society is quite inconceivable. . It is not organized for gain. Its services are wholly gratuitous. It relies for: support upon -public and private donations. It does not limit its beneficent functions to any particular form of cruelty. Sins of omission are within its jurisdiction as well as those of commission. The cruelly-neglected child receives its ministering care or protection, quite as much as the cruelly-flogged child. It is, indeed, impossible to read the affidavit of Mr. Jenkins, the secretary and superintendent of .this society, without finding in each of its specifications of the detailed work of the society an illustration of charity'as defined in along line of cases. He says that the society receives on commitment, upon and subject to the order of the court, all children charged with the commission of crime in the county of Hew York who* otherwise, would be sent to the city prison ; that it also receives temporarily, upon the order of a court, children who are the victims of physical violence in the county, or who are held as witnesses there pending the criminal prosecution of an offender ; that it has authority to receive under commitment to itself, at its own expense, children under the age of sixteen.— an authority which,- however, is but rarely exercised-; that the children so comniitted are retained temporarily and, as soon as circumstances permit, transferred to other institutions.. While thus temporarily retained, they are properly cared for. Isolating rooms are provided for those who suffer from contagious disease; and a skilled nurse is always in attendance, who enforces' every ordinance of the board of health and every suggestion of the society’s physicians relative. to the health of the children. The society also, so Mr. Jenkins deposes, receives and takes to court, without delay, children found in a state of destitution, for disposition by the court, as prescribed by the statute. It- maintains two officers in every Police Court, who, upon the order of the magistrate, investigate applications for the commitment of the children, and make written reports in regard thereto for the information of the magistrate. ' It receives the money which parents are required, under the orders of a magistrate, to appropriate from their weekly earnings to the support of committed children, and it pays these moneys over to the comptroller. If these moneys are not paid, it compels their payment by prosecution. It defends in the courts the custody of children committed to institutions through its instrumentality ; prepares briefs for the district attorney’s office in cases ■of cruelty, where an indictment has been found ; secures the attendance of witnesses, and assists the district attorney in the procuring and preservation of evidence.

How what is this but charity, pure and simple? Every,specification of the work of this society is but a detail of the methods .adopted to effect the objects which it seeks to attain, namely, the prevention of cruelty to children. It rescues them from vice; cleanses them morally and physically; mitigates their miseries; shields them from brutality or neglect, and alleviates the consequences thereof. It also kelps to make such examples of the guilty .as will prove a warning to others, and thus lessen the evils against which its moral and material forces are arrayed. We quite agree with the society that the furnishing temporarily of shelter, food, clothing and medical attendance are incidental to its main purpose. The test of its character is undoubtedly the objects which it seeks to attain as specified in the law of its being and, following that law, in its certificate of. incorporation. (Fire Ins. Patrol v. Boyd, 12 Penn. St. 624.)

These objects, as we have seen, are inherently charitable. While the furnishing temporarily of shelter, food, clothing and medical .attendance are but incidents of the society’s main purpose, so, too, for example, are the furnishing of lawyers to prepare briefs and of agents to make arrests. These latter are not the fundamental objects to which the temporary furnishing of food are incidental, for they are themselves but' incidents of' the primary and essential purpose. That purpose is the prevention of cruelty to children and the enforcement, by all lawful means, of the laws relating to or in any way affecting children. The laws relating to or affecting children are laws which have been passed for their protection and good. Aid gratuitously given by this institution in the efficient execution of these laws is just as much a charity as any direct aid given by it to unfortunate children. The enforcement of these laws is but a part and parcel of the general scheme of charitable beneficence comprehended within the expression “ the prevention of cruelty to children.” The laws upon the subject of children are of interest-to the society only as a means to its special end. It is thus that it proposes to aid in their enforcement — not as a mere lover of abstract justice or a defender of law in general.

The authorities, both in England and this Country, are all one way upon this subject. Many of them are considered by Judge Martin in Ms elaborate opinion in People ex rel. New York Institutionfor the Blind v. Fitch (154 N. Y. 29-33). That learned judge cites with evident approval Judge Gray’s admirable definition of the word charity in Jackson v. Phillips (14 Allen, 539). That definition covers the relief of an indefinite number of persons from “ disease,, suffering or constraint.” Judge Gray’s definition is but an amplification of Lord Camden’s pithy expression“ A gift to a general public use, which extends to the poor as well as to the rich.” (Jones v. Williams, Amb. 652.) It was said by Judge Swayne, in delivering the opinion of the Supreme Court of the United States in Ould v. Washington Hospital (95 U. S. 311), that-“a charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and well-being of social man.” To give the use the character of a public charity, it is only necessary that there appear some benefit to be conferred upon, or duty to be performed toward, either the public at large or some part thereof, or an indefinite class of persons. (Going v. Emery, 16 Pick. 119 ; Saltonstall v. Sanders, 11 Allen, 446.)

In University of London v. Yarrow (1 De G. & J. 72) it was held that a bequest for the founding, establishing and upholding-an institution for investigating, studying, and, without charge beyond immediate expenses, endeavouring to cure maladies^ distempers and injuries any quadrupeds or birds useful to man may be found subject to,” was a good charitable bequest.

The lord chancellor (Ckanwobth), after stating that charitable bequests often failed for uncertainty, said: “ Where, however, the testator points out what he contemplates, and that which he contemplates is something highly beneficial to the community at large, I do not know that any question has then been raised-as to whether it was within the Statute of Elizabeth or not. The Statute of Elizabeth enumerates several objects which it says have been those to which well-disposed persons have been in the habit of devoting property, but the objects there enumerated awe not to be tabeen as tbie only objects of charity, but core given as instances. If that were not. so, a cursory glance at the statute has satisfied me that no general hospital -would be within it, as the only charity of this kind mentioned is the maintenance of sick and maimed soldiers and mariners. * * * The courts have ahvays construed the act as applying to objects of the same nature as those specified, and I cannot entertain for a moment a doubt that the establishment of a hospital in which animals, which are useful to mankind, should be properly treated and cured, and the nature of their diseases investigated with a view to 'public advantage, is a charity.”

In the case of In re Douglas (L. R. [35 Ch. Div.] 472) there is a dictum of Lord Lindley, on the authority of the case last cited, that the Home.for Lost Dogs was a charity, and an intimation that the Society for the Protection of Animals from Vivisection, as described by the testatrix, was also charitable.

In re Foveaux (L. R. [2 Ch. 1895] 501) it was held that societies for the abolition and suppression of vivisection are charities. Chitty, J., said: “ On principle, if a society for the prevention of cruelty to animals is a charitable society, it would seem to follow that an institution for .the prevention of a particular form of cruelty to animals is also charitable. The mere infliction of pain is not necessarily cruelty; into the question of what is cruelty the moral element largely enters. * * * It may be truly said that the infliction of justifiable pain is no cruelty. The question of what is and what is not justifiable is a question of morals, on which men’s minds may reasonably differ, and do, in fact, differ. Cruelty is degrading to man ; and a society for the suppression of cruelty to the lower animals, whether domestic or not, has for its object, not merely the protection of the animals themselves, but the advancement of morals and education among men. The purpose of these societies,' whether they are right or wrong in the opinions they hold, is charitable, in the legal sense of 'the term.’’

■ The same doctrine was maintained in Armstrong v. Reeves (L. R. [25 Ir.] 325), Vice-Chancellor Chatterton there observing: “ I am of opinion that anything that tends to prevent the demoralization of public opinion, which would be caused by an unauthorized and unnecessary practice of dissection of living animals, would be for the public benefit, as tending to correct and prevent cruelty or carelessness in reference to the sufferings of brute beasts. I do not mean to express any opinion —• I really do not entertain any opinion — on the question of the total abolition of vivisection; but even if I differed in that respect from the objects of the society, which, perhaps, I might do as an individual, that is not the question. The question is, whether the object in ¡view is such as may fairly, .within the principles of decided cases, be deemed a charitable purpose. * * * If the members of this society honestly believe, as I have no doubt they do, that vivisection is a practice involving unnecessary cruelty to animals, I see nothing illegal in their desire to procure its abolition by enactment. * * * I next come to the bequest to the Carlsruhe Society. This society was formed for the protection of animals, and, if this were all, it would prima facie be a charitable society. * * * The prevention of cruelty to animals has not' only been a matter of legal decision, but it is a subject of statute.”

We need not refer to other authorities. If societies for the prevention of cruelty to animals are charitable institutions, surely societies for the prevention of cruelty to children are equally so. Indeed, the charitable character of this society has never been questioned until now. On the contrary, that character has been asserted, proclaimed and insisted upon by its o'fficers and agents over and over again. It is because of that character that it has received from the city of Hew York, by authority of law and from private individuals, the means essential to its existence as a working institution; and it is because of the same character that it has been exempted from certain forms of: taxation. In the solicitation of donations it has earnestly pressed upon the public its charitable objects. It is only when supervision is imminent that it protests against its being placed in the charitable "category

y And what place does it now claim to occupy outside of that category ? It is really hard to say from anything suggested upon the argument or to be found in its brief. If it is not a charitable institution, what is it ?' There is no distinct answer to this question. There is a trace of suggestion that it may be styled “ a subordinate governmental agency,” whatever in the present connection that may mean. It is the first time- we have ever heard it intimated that a private corporation, created under legislative authority, could be appointed and removed — in analogy to public officials — as an agent for the execution of the laws of the State. When Judge Finch, in Trustees of Exempt Firemen's Fund v. Roome (93 N. Y. 313), applied that phrase to certain exempt firemen, he pointed out that their duties were public; that their appointment came from the common council; and that they were liable to be removed by the authority which appointed them. The truth is that the powers to which the society points as suggestive of its “ subordinate governmental agency ” were conferred upon it independently for its direct corporate purposes and not in any just sense as the agent of the' State. It could not well have been otherwise. For, as Mr. Justice Landon clearly pointed out in Fox v. Mohawk & Hudson River Humane Society (25 App. Div. 26), while private corporations may be employed to serve the government in various matters which are the subject of contract, they are certainly not eligible to public office. “It is obvious,” said that learned judge, “that the execution of police regulations, which affect the life, liberty, property, health and happiness of human beings, should be vested in human beings, and not in such legal entities as cannot be endowed with moral qualities and cannot be adequately punished for official misconduct.”

• A more accurate description of the society from its own standpoint would be that it is an auxiliary of the government, State and municipality, and of their officers, so far as in working out its objects it gives practical aid to those who are officially required to enforce the laws with regard to children. But as such auxiliary it is still engaged in the execution of its charitable purposes. Ho matter in what direction its efforts may lead, it is still pursuing its corporate road; still working, without gain or- hope of gain, upon the capital of public and private donations, for the prevention of every form of cruelty to children, and for the enforcement of every law which, aims at such prevention. It is surely immaterial, then, whether it was incorporated under the act of 1848 (Chap. 319), with regard to benevolent, charitable, scientific and missionary societies in general, or under the act of 1875 (Chap. 130), with regard specially to societies for the prevention of cruelty to children. It was simply a novel form of charity which called for powers not embraced within the act of 1848, and consequently demanded an independent, though still general, act. The same observations apply to the place given to these societies in the Membership Corporations Act of 1895 (Chap. 559, §§-70-72). The question under consideration is entirely unaffected by such subsidiary considerations

. The provisions of the Revised Constitution (Art. 8,. §§ 11-15) and of the act of 1896, the State Charities Law (Chap. 546, §§ 9, 10) are not limited to charitable institutions incorporated under the act of 1848 and its amendments. They embrace all charitable or eleemosynary institutions, however inborporated, or however specially endowed with powers or privileges properly applicable to their essential characteristics. . The language of the Constitution and of the act of 1896 covers this society both in letter and in spirit. Clearly it covers it in letter. The Constitution says that the Legislature shall provide for. a State Board of Charities which shall visit and inspect “ all institutions whether State, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary, correctional or reformatory character” (Art. 8. § 11), with certain exceptions'liaving no bearing upon the present question. There is nothing-in this language which limits the Legislature with regard to the subjects of visitation and inspection. It may extend these subjects at its will. But it must make provision for the visitation and inspection of. the constitutionally defined institutions. The act of 1896 {supra) is even broader than the constitutional requirement, and evinces a legislative purpose to leave nothing to construction, but to bring all asylums, hospitals and institutions, other than institutions for the custody care and treatment of the insane, distinctly and beyond the possibility of debate, within the area of the jurisdiction of the State Board of Charities. This section 10 reads: in part as follows: “All institutions of a charitable, eleemosynary, reformatory or correctional character or design, including reformatories (except those now under the supervision and subject to the inspection of the prison commission), hut including all reformatories, except those in which adult males convicted of felony shall be confined, asylums and institutions for idiots and epileptics, alms-houses, orphan asylums, and. all asylums, hospitals and institutions, whether State, cou/nty,. mxtnicipal, incorporated or not incorporated, private or otherwise,. except institutions for the custody, care and -treatment of the insane, are subject to the visitation, inspection and supervision of the State Board of Charities, its members, officers and inspectors.”

And the previous section (ft) gives the board jurisdiction over all institutions “ which are made subject to its supervision by the Constitution or hy law.”

So much for the letter of the law. Its spirit seems equally clear. Why, it may well be asked, should the people or the Legislature have intended to withdraw these societies from the supervisory powers of the board ? The very fact that they are clothed with unusual, peculiar and even extraordinary powers, instead of beina ground for exemption, seems rather to suggest a conclusive reason why they should be supervised, and indeed quite as vigilantly, as institutions possessing less power for good or evil.

Ho reason has been assigned which would justify the exceptional withdrawal contended for. Surely the State Board of Charities can be trusted with the sacred confidences of these societies quite as freely as the. officers of the societies themselves. This society has no reason to fear an abuse of power on the part of such a board. It is simply a question, then, Avhether the convenience of these societies shall count for more than the public policy of the State with regard to the visitation and inspection of public and private institutions, as evidenced by the Constitution and the law. There can be but one answer to such a question. In our judgment the relator here was clearly within its jurisdiction in demanding the right of general visitation and inspection given to it by the Constitution and by section 10 of the act of 1896 ; arid the mandamus should have been granted in full, according to the tenor of its notice of motion.

The order appealed from should, therefore, be reversed,, with costs, so far as it refuses the mandamus asked, and affirmed so far as it grants it; and the motion for mandamus as asked by the relator should be granted, with fifty dollars costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, J.J., concurred.

Order reversed, with costs, so far as it refuse's the mandamus- asked, and affirmed so far ás it grants it; and motion for mandamus as asked by relator granted, with fifty dollars costs.  