24 N.Y.S. 776 | N.Y. Sup. Ct. | 1893
Concurrence Opinion
In concurring with the opinion of Mr. Justice LAWRENCE herein, I think it is proper that a word or two should be said in respect to some points which have been
“Sec. 292. A person, who employs or causes to be employed, or who exhibits, uses, or has In custody tor the purpose of exhibiting or employing, a female child apparently or actually under the age of fourteen years, or a male child apparently or actually under the age of sixteen years, or who having the care, custody, or control of such a child as parent, relative, guardian, employer or otherwise, sells, lets out, gives away, or in any way ■procures or consents to the employment or exhibition of such a child, either (1) as a rope or wire walker, dancer, gymnast, contortionist, rider, or acrobat; or (2) in begging or receiving alms, or in any mendicant occupation; or (3) in peddling, singing or playing upon a musical instrument or in a theatrical exhibition, or in any wandering occupation; or (4) in any indecent or immoral exhibition or practice; or (5) in any practice or exhibition dangerous or injurious to the life, limb, health or morals of the child; is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school, or academy, or in teaching or learning the science or practice of music, or as a musician in any concert with the written consent of the mayor of the city, or the president of the board of trustees of the village, where such concert takes place.
In 1892 this section of the Penal Code was amended so as to -read as follows:
“An act to amend section two hundred and ninety-two of the Penal Code, relative to the licensing of children in theatrical exhibitions.
“Approved by the governor April 15, 1892. Passed, three-fifths being present.
“The people of the state of New York, represented in senate and assembly, do enact as follows:
“Section 1. Section two hundred and ninety-two of the Penal Code is hereby amended so as to read as follows:
“ ‘See. 292. A person who employs or causes to be employed, or who exhibits, •uses, or has in custody, or trains for the purpose of the. exhibition, use or employment of,, any child actually or apparently under the age of sixteen years; or who having the care, custody or control of such a child as parent, relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in any way procures or consents to the employment, or to such training, or use, or exhibition of such child; or who neglects or refuses to restrain such child from such training, or from engaging or acting, either (1) as a rope or wire walker, gymnast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle or contrivance; or (2) in begging or receiving or soliciting alms in any manner or under any pretense, or in any mendicant occupation; or in gathering or picking rags, or collecting cigar stumps, bones or refuse from marks's; or in peddling: or (3) in ■singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition ; or in any wandering occupation ; or, (4) in any illegal, indecent or immoral exhibition or practice ; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or (5) in an.y practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the.child, is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of -music; er as a musician in any concert, or in a theatrical exMb'tion. with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert or exhibition takes place. Such consint shall not be gimen unless forty-eight hours’ previous notice of the application shall have • been served in writing upon the society mentioned in section two hundred and ninety-three of the Penal Code, if there be one within the county, and a hearing had thereon if requested, and shall be revocable at the will of the authority giving it. It shall specify the name of the child, its age, the names and residence of its parents or guardians,*779 ■the nature, time, duration and number of performances permitted, together with the place and character of the exhibition. But no such consent shall be deemed to authorize any violation of this section.’
“Sec. 2. This act shall take effect on the first day of September, eighteen hundred and ninety-two.”
The changes in the phraseology are few, and are shown by the italics in the Code as cited.
It is claimed upon the part of the appellants that under the .act in question the mayor has a right to license children to sing and dance in theatrical entertainments; and our attention is called, for the purpose of aiding us in the construction of the act under consideration, to what are called notorious facts in connection with the emendation of the section of the Code in question. It may be a misfortune that the court is entirely unfamiliar with these notorious facts, and hence cannot seize upon them to aid it in the construction of the act. If it is true that this amendment was the result of a compromise between the advocates of different Views in reference to the propriety of the employment of children to sing and dance in theatrical entertainments, as - claimed by the appellants, and that it was understood that under this amendment such employment, as long 'as sanctioned by the mayor or president of the trustees of the village where such entertainment should take place, was permissible, it would seem that the advocates of the restricted right had been more expert in the use of language than were the advocates of the more liberal views, because a very brief consideration of the section as amended will show that there is no room for the construction claimed by the •appellants. As has been seen, by section 292, as amended, any person who—First, employes or consents to the employment of a child under the age of 16 years as a rope or wire walker, etc.; second, employs’ or consents to the employment of such child in begging, etc.; third, employs or consents to the employment of such child “’in singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupation;” or, fourth, employs or consents to the employment of such child “in any illegal, indecent or immoral exhibition or practice,” etc.; or, fifth, employs or consents to the employment of such child “in any practice or exhibition or place dangerous or injurious to the life,” etc.,—shall be guilty of a misdemeanor. The section then goes on:
“But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music, or as a musician in any concert or in a theatrical exhibition, with the written consent of the mayor of the city,”- etc.
Under the third subdivision above spoken of, the employment of such child in singing or dancing, or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation, is an offense against the statute. ¡Now, when the child, is to be permitted to appear in certain classes of entertainments, and in a certain capacity 'in such entertainments, the connection -of the phrases is entirely different, although the same words are
O’BRIEN, J., concurs.
Lead Opinion
It is too late to question the constitutionality of section 292 of the Penal. Code, and of chapter 309 of the Laws of 1892, amending the same. The opinion of Mr. Justice BEACH at the special term fully answers all the questions sought to he raised upon this appeal, and, concurring, as I do, in the views expressed by him, I am of the opinion that the order denying the motion of the relator for a writ of peremptory mandamus should be affirmed.