
    MATTER OF DONOHUE.
    
      N. Y. Supreme Court, First Department;
    
    
      November, 1876.
    Habeas Corpus. —Constitutional Law. —Protection op Children..
    A commitment of a child found in an employment contrary to the’ act of 1876, for the protection of children (Laws of 1876, p. 95, c„. 122), is a final judgment within the meaning of the habeas corpus-act.
    Upon habeas corpus the constitutionality of the statute under which the commitment was made cannot be impeached; for this would be to inquire into the “ legality ” of the judgment.
    
    Under section 3 of the act of 1876, authorizing any court or magistrate to commit to an asylum, &c., any child engaged or used in violation of the act, the recorder of a city has power to commit such a child to the care of the Hew York Society for the Prevention, of Cruelty to Children.
    The constitutional right of trial by jury, and due process of law, does-not extend to claims to the custody of children under indentures of apprenticeship.
    
    Habeas corpus.
    Joseph Donohue, and Henry and Alfred T. Ellis, boys, of the respective ages of fourteen, nine and eight years, were brought before thd Recorder of Poughkeepsie, on a charge made by the New York Society for the Prevention of Cruelty to Children, of being employed as gymnasts and ’acrobats. At the same time, their master, Alfred Smith, and John H. Murray, the proprietor of Murray’s Circus, were arrested, charged with exhibiting, using and employing these boys as gymnasts and acrobats.
    Upon their examination before the recorder, the facts charged against Smith and Murray were proved, and they tendered recognizances for their appearance at the court of oyer and terminer.
    Upon such examination, the recorder found that the boys were engaged in the business of gymnasts and acrobats, and thereupon committed them to the society aforesaid.
    Smith obtained a writ of habeas corpus to recover these children. The case was referred to Wm. Sinclair, Esq., to take testimony. It was proved, under the objection of the counsel for the society, that the boys had been apprenticed to Smith by their parents, who resided in England, to learn the trade of gymnasts and acrobats, and formal indentures were produced. No acts of cruelty on the part of Smith were proved; on the contrary, the evidence tended to show that he treated the children kindly, as if they were his own. The oldest, boy testified to being well treated, and expressed a strong wish to return to his master and his trade.
    The proceedings before the recorder, consisting of a certified copy of his minutes, constituting his judgment j and the warrant of commitment, which recited the act relating to the Common Council of the city of New York, passed January 28, 1833, and the act to prevent and punish wrongs to children, passed April 14, 1876, were put in evidence.
    
      Section 1 of the act of 1876, forbids the use, exhibition or employment of children under sixteen, in street singing, and certain other, services, and makes such use, &c., a misdemeanor. Section 2, makes it a misdemeanor to hire, &c., or have in custody a child for such purposes.
    Section 8, is as follows : “ When, upon examination before any court or magistrate, it shall appear that any child, within the age previously mentioned in this act, was engaged or used for, or in any business, or exhibition or vocation, or purpose specified and as mentioned in this act; and when, upon the conviction of any person of a criminal assault upon a child in his or her custody, the court or magistrate before whom such conviction is had shall deem it desirable for the welfare of such child that the person so convicted shall be deprived of its custody thereafter, such court or magistrate may commit such child to an orphan asylum, charitable or other institution, or make such other disposition thereof as now is or hereafter may be provided by law in cases of vagrant, truant, disorderly, pauper or destitute children.”
    
      Van Wyck, Glassey and Raymond, for the relators.
    —I. The petitioner, Smith, is the proper person to have the custody, and the Society has no authority to hold the boys.
    II. The act of 1876 is unconstitutional, in that it imposes a penalty, and deprives Smith of his rights' to these children, without a trial by jury or due process of law (U. S. Constitution, Art. III, § 2; N. Y. Constitution, Art. I, §§ 6, 7; Hill v. People, 20 N. Y. 363 ; Cancemi v. People, 16 N. Y. 501; Wood v. City, &c., 14 Barb. 425; Matter of Janes, 30 How. Pr. 448; Wynehamer v. People, 13 N. Y. 378).
    III. The proceedings before the recorder did not constitute a final judgment (People ex rel. Trainer 
      v. Cooper, 8 How. Pr. 288 ; Wilcox v. Wilcox, 14 N. Y. 575).
    IV. These proceedings were irregular, because based upon the act of 1833.
    
      Lewis L. Delafleld, for the Society (Wm. H. Gibson, attorney).
    
    I. The proceedings before the recorder constitute a final judgment. Section 3 of the act of 1876, provides for commitments in two classes of cases which are entirely distinct. 1. Unlawful use of child. 2. Welfare of child when criminal assault on it has been made. This commitment is made under the first provision, and is final (Opinion of Leonard, J., in Matter of Mary Miller, cited below; Case of the Twelve Commitments, 19 Abb. Pr. 394; S. C. as Matter of Helen Miller, 1 Daly, 562 ; Matter of Rice, 37 How. Pr. 494 ; Matter of McCabe, 8 Abb. Pr. N. S. 112 ; 3 R.S. 875, [6th ed.] § 36 ; 3 Id. 878, §55; 3 Id. 879, § 57; 3 Hill, 658, note 30; authorities collected in 3 Abb. N. Y. Digest, 565 ; Hurd on Hab. Cor. 326, 328). This provision of the act of 1876 is analogous to the vagrant law (2 R. S. 836, 837, §§ 1-3 [6th ed.] ). Such a committal under the vagrant law has repeatedly been held to be a final judgment (Matter of Mary Miller, N. Y. Special Term, Sept. 27, 1872).  The recorder’s judgment is a final judgment. All the evidence taken under my objection is inadmissible. The only inquiry that can be made is—First. Does such a judgment exist? Second. Had the recorder’s court jurisdiction % Neither of these points is disputed.
    II. The recital in the warrant of the act of 1833 is immaterial and mere surplusage. The warrant was based on the act of 1876. A reference to a wrong statute no more invalidates an order than a wrong reason does a right decision. Matter of Barre, 14 Abb. Pr. A. S. 426.
    III. The act of 1876 is constitutional. The State as parens patria., has the original right to the control and disposition of all minors. It confides a part of its right to a parent as a trust. Like every other trust, when abused, it is forfeited and the State reassumes its original powers (Chambers on Chancery Jurisdiction relating to Infants, pp. 5, 10, 158, 160-178; Willard Eq. Jur. 619 ; Mercein v. People, 25 Wend. 64, 103; per Paige, 104 ; 2 Story Eq. Jur. § 1341 ; 2 Kent Com. 205,-195 ; Forsyth Custody of Infants, 16, &c.; 52 Law Library U. S. 16 ; Hurd on Hab. Cor. 455, 462; Matter of Clifton, 47 How. Pr. 172 ; Wilcox v. Wilcox, 14 N. Y. 575 ; 22 Barb. 178 ; 1 Crary Sp. Pr. 388). It is an abuse of language, therefore, to talk of the “property ” which a parent has in his child. He has rights over, but no property in. It is a perversion of all reasoning to claim that the clause of the constitution providing that “property” shall not be taken “without due process of law,” and “just compensation ” applies to children. There can be no property in human beings under the constitution as it is. But if it did apply, the child is taken “ by due process of law” as next shown. The other clause invoked is: “The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. But a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” Art. 1, § 2. There never was a time either here or in England when questions relating to the custody of infants were tried by jury. This is a distinct and perfectly well established branch of equity jurisprudence. There are many classes of rights which can be disposed of by courts without the intervention of juries. All equity proceedings (Matter of Empire Bank, 18 N. Y. 7.199, 210 ; Rathbun v. Rathbun, 3 How. Pr. 139). The acquiring of lands under eminent domain by commissioners is constitutional (Beekman v. Saratoga, &c., R.R. Co., 3 Paige,45; Livingston v. Mayor, 8 Wend. 85). The committal of vagrant and disorderly persons without a trial by jury on examination only, is constitutional (Duffy v. People, 6 Hill, 75 ; Morris v. People, 1 Park. Cr. 441; Plato v. People, 3 Id. 586). All cases which could be determined before 1777, without a jury, may now be so determined (See authorities collected in 2 Abb. N. 7. Digest [new ed.] pp. 123, 124). The act of 1876 is precisely analogous to the vagrant law. It is based upon it. The one permits the court to dispose of the vagrant, the other of the child upon “the examination,” (2 R. S. 836, §§ 1-3 [6th ed.]). The constitutionality of the vagrant law is undisputed. It descended to us as part of the common law. The right of the court of chancery to dispose of children descended in the same manner. It has been held that the disorderly persons act (Law of 1833), is constitutional, although it introduced to our law a variety of offenses unknown to the existing law, but of the same nature and embraced by the same principle (Duffy v. People, 6 Hill, 75, 79). The act of 1876 introduces nothing new. It only defines certain cases over which chancery had jurisdiction before. But if there was anything new, so long as it is analogous to the previous practice it would be constitutional under the above decision.
    IY. The caprice of a child should not be allowed to override his true interests in the selection of a guardian, especially when his imagination has been dazzled by the glare and glitter of the stage (Hurd on Hab. Cor. pp. 466, 531-535; People v. Mercein, 8 Paige, 47; Matter of J. N. Wollstonecraft, 4 Johns. Ch. 80).
    
      
       For another act see Laws of 1874, p. 132, c. 116.
    
    
      
       Compare People ex rel. Tweed a. Liscorab, 60 N. T. 559, rev’g 3 Hun, 760.
    
    
      
       Compare DeKrafEt v. Barney, 2 Black, 704; Mercein v. Barry, 5 How. U. S. 103; Nickerson d. Howard, 19 Johns. 113.
    
    
      
       In the Matter of Mart Miller (Supreme Court, First District; Special Term, September, 1873), which was a certiorari to review a conviction and commitment of a child as a vagrant, it was held that—
      1. On the return of a habeas corpus or certiorari, if it appear that the prisoner is detained under the final judgment of a court of competent jurisdiction, the judge who granted the writ will not examine the record to see whether the judgment is sustained by the evidence.
      3. The commitment of a vagrant is a final judgment within the habeas corpus act.
      Certiorari to review criminal conviction.
      Leonard, J.—The prisoner was committed by a police justice to
      
        the House of Refuge last March, as a vagrant; viz., wandering about at all hours of the day and night, and without any visible means of support. She was so committed after conviction, on competent evidence, as it is stated in the warrant of commitment. She is now brought up on habeas corpus, accompanied by a return on certiorari of the record of the trial and conviction, before the police magistrate.
      This record states that the conviction was upon the proofs and examination of the said Mary; but there appears to be no examination of said Mary reduced to writing and returned, with the record, under the certiorari.
      It is urged, among other matters, that the judge before whom the proceeding is now pending, having granted the certiorari, must examine the record of conviction to ascertain if the conviction is sustained by the evidence, and whether the proceedings are regular. And if the conviction on record be found to be erroneous or irregular, that the petitioner must be discharged.
      This is manifestly an unfounded claim.
      It is provided by 3 5. S. 568, § 43 (5th ed. vol. 3, p. 888, § 57), that no court or officer, on the return of any habeas corpus or certiorari, shall have power to inquire into the legality or justice of any process, judgment, decree or execution specified in the preceding 33nd section. That section (§ 36, 5 ed.) declares (subd. 3), that “persons committed or detained by virtue of the final judgment, or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree,” . . ' . . shall not be entitled to prosecute the writ of habeas corpus or certiorari.
      I think these sections make it clear that I cannot examine or decide upon the question whether the magistrate committed an error in the trial or conviction of the prisoner.
      The process of commitment is regular. The statute forbids that the judge, before whom the writs of habeas corpus or certiorari are heard, should inquire into the legality or justice of such a final judgment, or of an execution issued on such judgment.
      The girl is detained by execution issued upon a final judgment of a criminal court. She is committed as a vagrant.
      The writ of habeas corpus is discharged, and the prisoner remanded.
      The girl has been committed to a reformatory institute by reason of her tender yea s. She had become a vagrant from neglect or the incapacity of her natural guardians. How can it be assumed that they can any better provide for her in the future ? There is nothing indicating that it is not best for the girl to remain until she has reached, at least, to such years as will enable her to earn an honest living. The law provides for her discharge at that period.
    
   Westbrook, J.

The children, whose custody this proceeding involves, are confessedly of tender years, and were, when the order committing them to the care of the society was made, employed by the relator, Smith, as acrobats ; and if they are again committed to his care, they will doubtless be used for the same purpose, as he claims they are regularly indentured to him for that object.

Chapter 122 of the Laws of 1876, entitled “ An act to prevent and punish wrongs to children,” makes the use, employment, or exhibition of children under sixteen years of age, by any person, for any such purpose as Smith has used and held them, a misdemeanor. By section three of the act, the recorder of the city of Poughkeepsie was fully authorized to make the order committing them to the care of the society aforesaid ; and the principal questions which this proceeding presents concern the act, and by implication only, the action of the recorder, which action such act fully justifies.

The order of the recorder committing these children to the care of the society now detaining them, was his final judgment upon that matter. It was one which, under the act aforesaid, he was fully authorized to make, and which, as it seems to me, is not reviewable by habeas corpus. The writ is not allowable (2 JR. 8. 563, § 22 ; 6th ed. vol. 3, p. 875, § 36), to a person “ committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction ; ” and if the writ issues, and it appears the party is so detained (2 JR. 8. 567, § 40, 6th. ed. vol. 3, p. 878, § 55), it is the duty of the “court or officer” before whom such proceeding is pending, “forthwith to remand such party;” and lastly (2 JR. 8. 568, §42, 6th ed. vol. 3, p. 879, § 57), “ no court or officer, on the return of any habeas corpus . . . shall have power to inquire into the legality or justice of any „ . . judgment . . . specified in the preceding twenty-second section.”

I am aware that a plausible argument can be made upon the words “competent tribunal” used in the statute. It is said that the order of the recorder was not one made by a “ competent tribunal,” because the statute conferring the power is unconstitutional, and hence it was not “competent” for him to make the one under which the children are now held. If the act be unconstitutional, it was undoubtedly not “ competent ” for the officer to act under it at all, and if in that sense the word is used in the habeas corpus act, the action of the recorder would be reviewable upon this proceeding. The same statute, however, has also declared, that the court or officer before whom the court is returnable is without power “ to inquire into the legality or justice of any . . . judgment” rendered “ by any competent tribunal of civil or criminal jurisdiction ; ” and by necessity, therefore, it is forbidden, as that must involve the “legality” of the “judgment,” to inquire into the constitutionality of the act under which the officer in making the order acts. In one sense, the recorder was a “ competent tribunal.” To him the same power,—the Legislature, —which passed the habeas corpus act, had confided the duty and right of doing what he undertook to do, and it is hardly supposable that there was any intention, in the use of the words we are considering, to clothe an officer or court, which must summarily act, with the grave prerogative of nullifying legislative action. It is safe and better, when a judgment has been rendered, which an express statute authorizes, to leave its review to the regular and more deliberate process of the higher courts than to make of every court and officer authorized to issue this writ a tribunal summarily to decide such grave and momentous questions (People ex rel. Phelps v. Fancher, 2 Hun, 226).

If, however, the decision upon this application must depend on the constitutionality of the act of 1876, no great difficulty is seen. The right of the State to care for its children has always, and with very great propriety, been exercised. Under its laws whenever the welfare of the child has demanded, its courts have frequently interfered for the protection of children of tender years. It has again and again taken them from one parent and given them to the other, and has sometimes refused so to do, the good and welfare of the child being the object always in view. It has so acted without the intervention of a jury, and that power has never been supposed to have been improperly exercised, because a jury was not allowed, and due process of law not had. If the courts of the State may, by virtue of their general powers, interfere for the protection and care of children, it is not seen why the legislature may not prescribe the cases, in which children shall be rescued from their custodians and a mode provided for their summary disposition. For example, if children should be placed to learn the business of stealing, could not the legislature provide a summary remedy for the evil ? Has the law no power to rescue, summarily, female children held for purposes of prostitution, or interfere in an expeditious manner in very many cases, when children of tender years are exposed to peril or temptation ? This will hardly be argued, or, if claimed, authority most abundant can be found to justify it. Precisely this ground the act of 1876 covers. In my judgment it is a most wise, salutary and beneficent statute, born of Christian civilization, and founded upon the teachings of Him to whom children were objects of tender love and care. It needs no evidence to demonstrate to our judgment that the life to which these children were subjected, and from which they were rescued, was perilous to all their best interests. It was a dangerous one to them, physically and morally. The "contortions, evolutions and performance of the acrobat are clearly, physically dangerous, and the surroundings, accompaniments and companions of the circus-ring are equally so morally. The recorder of the city of Poughkeepsie was clearly right, and his action must be upheld.

The writs of habeas corpus are discharged, and the children remanded to the care of the society, which has thus far properly discharged its duties.  