People ex rel. Barone v. Fox

Ingraham P. J.: . The question presented on- this- appeal is whether section 79 of the act in relation to inferior courts of criminal jurisdiction in the city of New York (Laws of 1910, chap. 659) is void ás a violation of the Constitution of this State. . . To clearly present the question an analysis of this act will be useful. The act itself is entitled “An act in relation to the inferior courts of criminal jurisdiction in the city of New York, defining their powers and jurisdiction and providing for their officers.” By section 2, two courts of criminal jurisdiction are established: First, the Court of Special Sessions, and, second, the City Magistrates’ Courts. Article 2 provides for the organization of the Court' of Special Sessions, and article 4 for the organization of the City Magistrates’ Courts. By section 50 the City Magistrates’ Courts in the city of New York are divided into two divisions, the first division to. embrace the boroughs of Manhattan and. The Bronx. Provision is then made for the appointment of magistrates, and article 5 relates to the jurisdiction and procedure of the City Magistrates’ Courts. By section 88 it is provided that upon a charge of vagrancy, if the person so convicted be a prostitute between the ages of sixteen and twenty-one, the magistrate may commit such person, for not exceeding one year, to certain institutions named in the act; that all other persons convicted upon a charge of vagrancy, including persons convicted as prostitutes except those committed under section 79 of this act (the section — 613 — in question) and not committed to a reformatory as herein above provided, shall be committed in the boroughs of Manhattan, Brooklyn and The Bronx to the workhouse on Blackwell’s Island, and in the other boroughs of said city to a county jail for the term of six months. Section 77 provides for night courts and a separate court for women. Section 78 provides for the identification of prostitutes, and section 79 contains the provision under which the relator was comm itted, and which it is claimed violates the Constitution. In considering this section we must bear in mind that the proceedings provided for are proceedings in a court of justice, the powers thereby granted are to be exercised by a judicial officer sitting in court, and the judgment therein rendered is the judgment of a court administering justice. The proceedings respecting vagrancy are regulated by title 6 of part 6 of the Code of Criminal Procedure. Section 887 of that Code, subdivision 3, provides that “ a person who has contracted an.infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health,” and (subdivision 1) “a common prostitute, who has no lawful employment whereby to maintain herself,” are vagrants, and, therefore, are persons coming under the jurisdiction of the inferior criminal courts, and subdivision 2 of section 1458 of the Consolidation Act (Laws of 1882, chap. 410) provides •that a common prostitute loitering or soliciting in a public place is a disorderly person. By section 79 of the act of 1910 it is provided that u Any person who is a vagrant, as defined in subdivision four of section eight hundred and eighty-seven of the Code of Criminal Procedure, or who is convicted of a violation of subdivision two of section' fourteen hundred and fifty-eight of the Consolidation Act, or of section one hundred and fifty of the Tenement House Law, shall after conviction be taken to a room adjacent to the court room, and there be physically examined by a woman physician of the department of health detailed for such purpose. After such examination the physician making the same shall promptly prepare and sign- a written report to the court of the prisoner’s physical condition, and if it thereby appears that the prisoner is afflicted with any venereal disease, which is contagious, infectious or — 614 — communicable, the magistrate shall commit her to a public hospital having a ward or wards for the treatment of the disease with which she is afflicted for detention and treatment for a minimum period fixed by him in the commitment, and for a maximum period of not more than one year; provided, that in case a prisoner so committed to any institution shall be cured of her venereal disease, which is contagious, infectious or communicable, after the expiration of the minimum period and before the expiration of the maximum period for which she was committed to such institution, she shall be discharged and released from custody upon the written order of the officer in charge of the institution to which she was committed upon the certificate of a physician of such institution or of the department of health that - the prisoner is free of any venereal disease which is contagious, infectious or communicable. If, however, such prisoner shall be cured prior to the expiration of the minimum period for which she was committed she shall be forthwith transferred to the workhouse and discharged at the expiration of said minimum period. ” The court at Special Term held that this act violated the Constitution in that it directs the detention of the accused without due process of law, in that the nature of the sentence after conviction is made to depend upon the report of a physical examination Without an opportunity for a hearing upon the facts entering into the report. .(69 Misc. Rep. 400.) There would be force- in this objection if the construction placed upon section Y9 of the act of 1910 by the learned judge at Special Term was required, but I think, without a violation of its provisions, a, construction can be given to the act which will obviate these objections. The conditions which by section 1458 of the Consolidation Act are characterized as disorderly conduct and- by section 88Y of the Code of Criminal Procedure as vagrancy are not of the character which are usually followed by imprisonment in the nature of punishment for an offense. It would not be said that a .person who had- contracted a contagious or infectious disease in the practice of drunkenness and debauchery requiring charitable aid to restore him to health should be subjected to punishment for his condition, but rather that medical assistance be extended — 615 — and his reformation attempted; yet by section 887 of the Code of Criminal Procedure such a person is a vagrant. It is recognized by those who have made a study of criminalogy that prostitution is evidence of insanity or degeneracy, and the offenses or conditions specified in these sections' require more the supervision of the health and reformatory authorities of the State than commitment to penal institutions. The detention of a person within these provisions of the statute is not so much a punishment for a crime as a means for the reformation or protection of the individual who has become a vagrant or disorderly person and for the conservation of the public health, and the jurisdiction given to these courts of inferior criminal jmisdiction over vagrants and disorderly persons is, therefore, more reformatory than penal. When a person is brought before a judicial tribunal charged with this condition he is to be. subjected to such detention or treatment as will be best calculated to accomplish the end in view, and the statute should be considered in view of what seems to me to have been the evident intention of the Legislature in enacting the provisions in question. Section 88 of the act now under review, to'which attention has been called, requires the court or a magistrate to either commit a person who is convicted of disorderly conduct or vagrahcy, unless committed under section 79 of the act, to one of the reformatory institutions mentioned in the section or to the workhouse on Blackwell’s Island for the term of six months. Section 79, however, provides for a different commitment in 'case the person arrested should "be suffering from a venereal disease which is contagious, infectious or communicable, and whose presence either in the workhouse or after discharge from detention would be a menace to the health of the inmates of the institution to which she might be committed or to the public health after her discharge. In the case of an unfortunate afflicted with such a disease the person is to be committed not to either of these institutions or to the workhouse but to a public hospital maintained for the cure of diseases, to be detained in such hospital for a period not exceeding a year or until the disease shall have been cured. The authority of the Legislature to provide for the committal of a vagrant or a person convicted of disorderly conduct to a workhouse for — 616 — a period of six months is not disputed, nor do I imagine it could be seriously contended that the Legislature was without power to commit a vagrant suffering from a contagious, infectious or communicable disease to a hospital rather than to a workhouse or other public institution. The objection taken to this statute is that the question of whether or not the convicted person was suffering from this disease is one that such person had the right to have determined by the magistrate as a matter of fact and that under this act the magistrate" is bound by the report of the physician who has made the examination and has found the existence of the disease which justifies the magistrate in sending such person to a hospital rather than the workhouse. But it seems to me this is a misconception of the duty imposed upon the magistrate and not required by the language used in the section in question. The relator was brought before the court charged with disorderly conduct under subdivision 2 of section 1458 of the.Consolidation Act, and the first question presented was whether the relator was a disorderly person within this provision. That question having been determined by the conviction of the relator as a disorderly person the question then was presented as to the extent of the detention and the institution in which the relator should be detained. To ascertain that fact the statute required that there should be a physical examination by a woman physician connected with the department of health and detailed for such purpose. This was clearly a provision directly connected with the public health and it seems to me was amply justified and clearly within the power of the Legislature. Certainly if it had appeared that the relator was suffering from smallpox, cholera or typhus fever or any other infectious disease the court would not have been bound nor would it have been justified in committing the relator to a public institution which would endanger the lives" of all its inmates, or in discharging the prisoner so infected to communicate the disease to all of the inhabitants with whom she should come in contact. The nature of venereal diseases is such that the result of infection is more serious than of the ordinary contagious or infectious diseases that are so carefully guarded against. To deny the power of the Legislature to provide for the isolation or detention of persons suffering from a venereal disease until — 617 — cured or until the danger of infection has passed would prevent the health authorities from removing from a crowded tenement house a person suifering from smallpox, scarlet. fever or tuberculosis, or the quarantine authorities from removing to a hospital a passenger arriving at the port of New York suffering from cholera or plague precautions that have been always recognized as within the police power and justified by the danger of contagion from those suffering from such diseases. Assuming, therefore, that the court had power to institute an inquiry as to whether the relator was suffering from such a venereal disease and if found to have such a venereal disease to commit her to a hospital instead of to the workhouse, the question then arises as to whether or not this statute, giving it a fair construction, deprived a convicted person of any right to which she was entitled under the Constitution of this State. The statute provides that after such a physical examination ■ the physician making the same shall promptly prepare and sign a written report to the court of the prisoner’s physical condition, and if it thereby appears that the prisoner is afflicted with any venereal disease which is contagious, infectious or communicable, the magistrate shall commit her to a public hospital having a ward or wards for the treatment of the disease with which she is afflicted for detention and treatment for a minimum period fixed by him in the commitment and for' a maximum period of not more than one year. There is nothing in this statute which in terms makes the report of a physician binding- upon a magistrate and nothing which prevents a magistrate from hearing testimony as to the prisoner’s condition or from determining the question as to her condition contrary to the report of the physician. It does not appear that the relator denied that she .was suffering from such a disease or asked to have that fact further investigated or that she be allowed to prove that she was not afflicted with such a disease. It is true that the mandatory word “ shall ” is used rather than the permissive word “may” or “has authority to ” commit the relator. But the instances are many in which courts have treated the mandatory word as merely permissive when necessary to sustain an act or accomplish the purpose which was clearly intended. Considering all the provisions of — 618 — this article of the statute it seems to me that the provisions of section -79 were provisions for the health of the community and were intended to ameliorate the • condition of one suffering from-one of the. most terrible of diseases and to protect, the Community from infection. There is no provision that took away from the court its inherent power to determine a question of. fact upon which it was required to ■ act or prevented the court, if requested by t the relator, from questioning the truth ' of the report of the physician, or from taking further testimony or investigating the correctness of the report and .determining for itself .the existence of the disease which justified detention in a hospital rather than in a public institution. It will be noticed that under section 88 of the act the court is required after conviction if it do not suspend sentence ■ or commit the person charged under section 79 of the act to commit the relator to one of the institutions named for a period of six months. The court under the powers conferred by section 79 committed the. relator to a public hospital for detention and treatment.for .a period of not less than two months and not more than twelve months.' We must assume the relator had; been properly convicted. The question as to the nature of the detention only was before the ■ court and this question of detention was the only one to which section 79 applied. The. commitment did not however absolutely commit the relator to the hospital or workhouse for a period exceeding six months, which was the period justified by section 88 of the act. It fixed upon two months as the minimum period of detention which was within the power of the magistrate under the provisions of section .88, and it further provided that, suffering from this contagious or . infectious disease, she should be detained in a hospital until she was cured or until the danger of infection had come to an end, the period of such detention, however, not to exceed in' any event more than twelve months.. There was not involved in this commitment any absolute detention .exceeding the period of six months. Her detention beyond, the period of two months depended entirely upon the character of the disease and the period within which the disease could be cured. Under this commitment at any time after the period of two months, which was the detention which the act of the — 619 — relator justified, she was entitled to he immediately discharged upon her being cured of, or if she was not then suffering from the infectious disease with which she had been afflicted. If she was cured or had not then the disease and the hospital authorities refused to release her she was entitled to apply to the courts for relief. There certainly was no punishment inflicted or that could be inflicted under the provisions of the section in excess of that justified by law for the condition of which she had been convicted. The detention beyond which the court was justified in requiring and which this commitment provided for depended upon .the relator’s suffering from this disease and was merely, it seems to me, a provision for the conservation of the public health. It is claimed that the relator had been deprived of her .liberty without due process of law. It seems to me, however, that neither the section cpntemplated that commitment without a hearing nor does it appear that in this case the relator was committed without a hearing. The petition for the writ of habeas corpus is not made a part of the record, the appeal being based entirely upon the return to the writ. The return simply states that the defendant held the relator under a commitment, a copy of which was attached to the return. By that commitment it appeared that the relator was in due form of law arraigned before the magistrate on the 25th of September, 1910, upon an information in writing and upon oath charging her with disorderly conduct tending to a breach of the peace under subdivisión 2 of section 1458 of the Consolidation Act, and was duly tried by the magistrate and duly convicted; that after her conviction the' relator was taken to a room and physically examined by a woman physician of the department of health detailed for such purpose; that such physician made a written report whereby it appeared that the relator was afflicted with a venereal disease which is contagious, infectious and communicable; whereupon the magistrate did order and adjudge that the relator be committed to a hospital for detention and treatment for a period of not less than two months and a period of not more than twelve months. And on the 25th of October, 1910, within less than two months from the commitment, this writ of habeas corpus was applied for. It — 620 — is not claimed but what this commitment would have been valid for two months or in fact for six months from the date of the determination of the Magistrate’s Court. It would not be claimed, I suppose, that the commitment of the relator to the “workhouse hospital,” which was a hospital maintained as part of the workhouse system of the city of New York, would have been void rather than to the workhouse itself, where it appeared that the relator was suffering from a disease which was contagious, infectious or communicable. The able brief of the relator submitted on this appeal seeks to establish that the relator was committed without due process of law, but it appeared that she was before the Magistrate’s Court, was tried and convicted by it, that the magistrate then investigated the question as to whether or not the relator was suffering from a venereal disease and determined that she was, and, therefore, committed her to a hospital for treatment for a period not to exceed twelve months or until the disease was cured. Entertaining the views that I do as to the construction to be given to section 79, and upon this record, it seems to me that the relator was not entitled to be discharged. Nothing appears ■ either by the return or by the papers before the court'which shows that the relator was not given every opportunity to which she was entitled; that she was not tried and convicted according to law, or that there was not a judicial investigation and determination of the question upon which the warrant was based. The cases cited by the learned counsel for the respondent are all cases in which the incarceration of a person was allowed without an investigation by-a judicial tribunal, of which the person had notice or an opportunity to defend, but in this case the statute requires that the person proceeded against should be before the court; that the court should pass upon the condition of the person proceeded against, of which procedure such person necessarily had notice; that the determination was a judicial act with the person proceeded against present before the court, and not only the conviction of the. defendant, but the term of detention was a part of one proceeding of which . the person proceeded against had notice. Other objections are taken to this proceeding, on which extended comment is unnecessary. It is said that this commit — 621 — ment was class legislation, and deprived the relator of the equal protection of the laws; but clearly under the police power the Legislature had power to prescribe the punishment or detention of those convicted of vagrancy‘or disorderly conduct, and the extent of the punishment upon a conviction was within the power of the Legislature. It is also claimed that this act relates to women only and not to men who are suffering from these diseases. But it was clearly a question for the Legislature to say whether the public interests or the public health required that a woman afflicted with a venereal disease should be treated differently from a man. But public prostitution only applied to wonien, and every person convicted of public prostitution is within the act. Nor do I think this can be said to be an unreasonable exercise of the police power. My conclusion; therefore, is that the order appealed from should be reversed and proceeding dismissed, and the relator remanded. Laughlin and Miller, JJ., concurred; Olarke and Dowling, JJ., dissented.