Matter of Donohue.

boys, of the respective ages of fourteen, nine and eight years, were brought before the 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, and the warrant of commitment, which recited the act relating to the Common Council of the city of New York, passed January 23, 1833, and the act to prevent and punish wrongs to children, passed April 14, 1876, were put in evidence.

Matter of Donohue.

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 3, 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. 446; ynehamer v. People, 13 N. Y. 378).

W

III. The proceedings before the recorder did not constitute a final judgment (People ex rel. Trainer

Matter of Donohue.

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. Delafield, 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 ld. 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 record

*

* In the MATTER OF MARY MILLER (Supreme Court, First District; Special Term, September, 1872), which was a certiorari to review a conviction and commitment of a child as a vagrant, it was held that1. 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.

2. 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

Matter of Donohue.

er'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

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 2 R. S. 568, § 42 (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 22nd section. That section (§ 36, 5 ed.) declares (subd. 2), 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

Matter of Donohue.

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. N. S. 426.

III. The act of 1876 is constitutional. The State as parens patriæ, 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

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 ycars as will enable her to earn an honest living. The law provides for her discharge at that period.