1 Abb. N. Cas. 1 | N.Y. Sup. Ct. | 1876
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
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
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
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.
