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People v. Ewer

8 N.Y. Crim. 383 Court Supreme Court—New York County—Chambers. English

Delivered by Andrews, J.

Contents

Majority

p. 383
Supreme Court—New York County—Chambers.
July, 1892.
PEOPLE v. EWER.

Headnote

Constitutional Law—Police Power—Public Exhibition oe Child—Penal Code, § 292.
The legislature is vested with the entire police power possessed by the people of the state, and when it has determined that a child actually or apparently under the age of sixteen years of
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age shall not be publicly exhibited as a dancer or in the other ways specified in section 292 of the Penal Code, its decision is final and is not subject to review by the courts on the ground that that law infringes the rights of parents in some particular cases.
Hearing at Supreme Court. Chambers, in the first .district, upon returns to writs of habeas corpus and certiorari.
The defendant, Charlotte Ewer, was the mother of a little girl aged seven years, known as Mildred Ewer, whom she exhibited as a .dancer in a public theatre in the city of New York under the stage-name of “La Begaloncita.” She was arrested June 16, 1892, upon a warrant issued by a police magistrate on the complaint of an officer of the New York Society for the Prevention of Cruelty to Children, charging her with violation of section 292 of the Penal Code, which provides that a person who, having the care, custody or control of a child apparently or actually under the age of sixteen years, as parent, relative, guardian, employer or otherwise, in any way procures or consents to the employment, use or exhibition of such child as a dancer', is guilty of a misdemeanor.
The alleged offense was committed on the evening of June 6, 1892, when the child appeared on the stage of the Broadway Theatre, in New York city, in a dance for a period of four minutes, and in response to an encore danced for three minutes.
Upon her arrest defendant admitted the above facts, denied guilt, demanded trial by jury, and was duly committed to await the action of the grand jury in default of $500 bail.
Writs of habeas corpus and certiorari were thereupon issued.
A. J. Dittenhoefer and David Gerber, for defendant, petitioner.
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I. The act unwarrantably deprives a citizen of a parent’s right to the custody and services of his child.
The act in subdivision 4 prevents the employment of a child in any indecent or immoral exhibition or practice, and in subdivision 5 in any practice or exhibition dangerous or injurious to the life, limb, health or morals of the child. As to the power of the legislature thus to protect an infant against immorality and danger to its health and morals there is no doubt. But the legislature cannot go further and take from the parent the right to employ a child in a lawful occupation, not indecent or immoral, and not dangerous or injurious to the life, limb, health or morals of the child.
The parent is the natural guardian and entitled by the laws of nature to the custody of his or her child. He must educate and maintain it; and in return he is entitled to the services of the child. The father’s duty to maintain and educate the child is qprrelative to his right to the custody and services (Ramsey v. Ramsey, 121 Ind. 215 ).
This natural duty of a parent to support and maintain the infant is enforced in this state by sections 287, 288, Penal Code, and the corresponding right to its custody and services is recognized in chapter 266, section 1, of the Laws of 1850. In fact, the duty of the parent may be said to extend to providing the child with a profession or trade, along with a suitable education, and it is a legitimate exercise of parental authority to compel the child to labor for his subsistence (Fraser’s Treatise on Parent and Child, pp. 72, 73, 2d Ed.).
It is because of the right of the parent to the services of the child that actions are permitted by the parent for injury done to the child through either the negligent or the willful act of another.
The state will interfere whenever any act is done or threatened which will injure the health or the morals of an infant, and, if necessary, take the custody from
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the parent; and subdivisions 4 and 5 of the act under review, properly framed to protect the morals and'life and health of the child, are therefore clearly within the province of the legislature, and are surely broad enough to protect the infant from any possible injury. What we insist on is that the natural right of a parent to the services of a child cannot be arbitrarily taken from him by an edict declaring that it shall not appear in a lawful occupation—such as a theatrical exhibition—or that it shall not take part in a dance that does not affect its life, health or morals.
The superintending power which in England is placed in the court of chancery, representing the king as parens patrice, is seldom exercised except in cases of immorality and irreligión. It has been applied ■ in the following cases: where a father was outlawed in a foreign country, bankrupt in fortune and vicious in character; where the father was in Newgate for breach of the peace against his own wife; where the father was an habitual drunkard and blasphemer; where the father was an avowed atheist, having published a book denying the existence of a God and denying the institution of marriage, and acting up to his principles by deserting his wife and living in adultery; and in the case of a father living in adultery, inculcating immoral lessons in his children (Fraser's Treatise on Parent and Child, pp. 77-79, 2d Ed.). (See De Manville v. De Manville, 10 Vesey, Jr., 52, 64.)
In Ex parte Skinner (9 Moore, 278) it was held that the jurisdiction of the king, as parens patrice, vested absolutely in the court of chancery ; but that court decided (In re Curtis, 28 L. J., ch. 458, 1858) that, though possessing this vast power, it could not interfere with the rights of a father unless he so conducts himself as to render it essential to the safety and welfare of the child, either physically, intellectually or morally, that he should be removed from his custody. While we find
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the rights of the king vested in the court of chancery, we also find that court specifying when and when alone it can exercise that jurisdiction to interfere with the parent over the custody of his child. There may be doubt of the origin of the jurisdiction, but there is no doubt of the instances when alone the jurisdiction can be exercised. It is not an arbitrary right. It may, perhaps, be difficult to exactly specify to what extent the jurisdiction is circumscribed, but it is undoubted that the jurisdiction was exercised only when it was found to be essential to the health and morals of the child. It was not an unlimited right to take from parents the custody of their children.
The right to the custody of the child, like the right to the services of the child, are reciprocal rights in return for the obligation to support and educate the child. (Ramsey v. Ramsey, 121 Ind. 215 ) ; and is only to be interfered with when shown to be essential for the safety and .welfare of the child (In re Finn, 2 De G. & S. 457 ; s. c., 12 Jur. 713).
In this country we have no court of wards and no feudal .system, and there certainly is not vested in the state greater rights over infants than existed in the king under the common law. The right undoubtedly exists somewhere to protect infants against acts which will endanger their health and morals, but the right nowhere exists to arbitrarily take from parents the custody of a child, or to deprive them of the corresponding right to its services.
A question closely analogous came up in the People v. Turner ( 55 Ill. 280 ), where an infant was committed to a reformatory under an act which gave the police magistrate authority to commit any boy or girl within the ages of six and sixteen years who was destitute of proper parental care, or was growing up in mendicancy, ignorance, idleness or vice. The court held that that act was unconstitutional, and that the state, as parens patries, can
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not exceed the power of the natural parent, except in punishing crime.
Judge Redfield referred to this case with approval in 10 Am. Law Reg. 372 , 373n.
II. This act is not a valid exercise of the police power of the state, for it has no relation to the comfort, safety or welfare of society (Matter of Jacobs, 98 N. Y. 98 ; 2 N. Y. Crim. Rep. 539 ; People v. Morse, 99 N. Y. 377 ; 3 N. Y. Crim. Rep. 200 ).
It cannot be seriously argued that a law prohibiting a child from pursuing a certain trade, without regard to its effect upon its health, is an exercise of the police power. That the provision of the act under discussion is not aimed at the protection of the health or morals of children is evident from the face of the act itself, for in a separate subdivision it forbids an exhibition or dance, which will affect the health or morals of the child. In other words, the act first declares that every performance by a child, which affects its morals or health, shall be punishable, and then further declares that theatrical exhibitions and dances which do not affect its health or morals shall be likewise punished.
If theatrical exhibitions and the prohibition against-dancing had not been expressly mentioned in the act, subdivisions 4 and 5 would protect an infant against, the danger to its health or morals. But it would seem that in order to prohibit a performance not injurious to its health or morals special provision was made to proMbit an appearance in a lawful, harmless, theatrical exhibition or dance.
III. The act is a violation of the liberty secured to the infant by the constitution.
Without taking into consideration the rights and privileges of parents, but viewing the act solely as affecting the rights of children, we insist that an act prohibiting an infant from following a lawful calling not injurious to its health or morals is an infraction of his liberty
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(Mill on Liberty, 27, 28 ; Smith, Wealth of Nations, b. 1., ch. 10, pt. 2 ; 2 Kent, Comm. 1-8 ; 2 Story on Constitution, 5th Ed., 697, 698 ; People v. Gillson, 109 N. Y. 400 -411 ; Bertholf v. O’Reilly, 74 N. Y. 515 ; Wynehamer v. People, 13 N. Y. 420 ; Slaughter House Case, 16 Wall 116 , 119, 122 ; Live Stock, etc., Association v. Crescent City, etc., Co., 1 Abb. N. S. 398).
In Ex parte Maguire ( 57 Cal. 604 ) the supreme court of California held it to be unconstitutional to prevent females from pursuing a certain business, in the pursuit of which males were not disqualified, saying that it was violative of the liberties of the female to disqualify her from following a lawful business or profession permitted to be followed by a male. And in Ex parte Kuback ( 85 Cal. 274 ) the act which prohibited the employment of Chinese in certain trades was held to be unconstitutional as an unlawful discrimination.
IV. If the provision of the act forbidding dancing can be saved at all, it can only be by construing the term “ dancer ” to refer to a rope or wire dancer.
Elbridge T. Gerry, for the people.
I. Fifteen years ago the existing law, now embraced in section 292 of the Penal Code, was enacted, and the precedent thus established in our own state was rapidly copied by the legislatures of our sister states, the provisions of the law in every case being almost identical with those of the statute now assailed (N. H. Pub. Stat. 1891, ch. 265 ; Mass. Pub. Stat. 1882, ch. 48, § 8 ; Georgia Code 1882, § 4612 f. ; Wis. Rev. Stat. 1883, § 4587a ; Cal. Pen. Code [Deering, 1885], § 309 ; Ill. Crim. Code [Starr and Curtis], 1885, § 82 ; Minn. Gen. Stat. 1891, § 2115).
II. The principle upon which such laws are based is the broad one that the state protects children during their minority to the end that their health may not be
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injured, and that the physical and intellectual material of the body politic shall not be impaired.
1. The exhibitions prohibited are injurious. They deprive children of their natural rest and subject them to unnecessary efforts which engender disease. (See People v. Meade, 24 Abb. N. C. 357 .)
2. In the next place, when such children are exhibited in the daytime, they lose their education. In all such exhibitions, whether at night or by day, much time is spent at rehearsals; so that, apart from the question of physical exhaustion, which unfits them for study, they have no opportunity for obtaining proper education.
3. Again, the associations are bad for the children. In the spectacular -plays alluded to they are constantly brought into contact with persons about whose morality or virtue the less said the better.
4. The police power of the legislature to regulate theatres has been sustained by the court of appeals (People v. King, 110 N. Y. 427 ).
III. It was to protect children from being used in these theatrical exhibitions in order to make money for their parents or guardians that the law now assailed was passed, just as it forbids their use in begging, peddling, or in factories.
The sole object of such exhibitions is not the support of the child, but to compel the child by its work to support some one else, which by law the child cannot be compelled to do. Mr. Schouler states the rule “ that there is no legal obligation resting upon a child to support a parent; that, while the parent is bound to supply necessaries to an infant child, an adult child, in the absence of positive statute, or a legal .contract on his own part, is not bound to supply necessaries to his aged parent ” (Sch. Dom. Rel., 3d Ed., § 265 ; Field's Law of Infants, etc., § 48 ; Edwards v. Davis, 16 Johns. 261 ).
IV. The power of the legislature to regulate the re
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lations between parent and child has never before been questioned.
1. The state, as parens patrice, for the reasons above shown, has the absolute control and regulation of its children.
2. It delegates to parents, as the natural guardians of the child, its primary care and education, and with a view of preserving the rights of the latter compels the parent to so educate and train the child that its health and morals will be preserved, (a) Thus, it compels the parent to properly educate the child by the Public School Act (Laws 1874, ch. 421). (b) Again, it limits the employment of children in factories until they have reached a certain age, and then allows the labor only with certain restrictions (Laws 1892, ch. 673. (c) It compels the parent or guardian of the child to supply him with proper food and medical attendance (People v. Cowley, 21 Hun, 415 ; s. c. affirmed, 83 N. Y. 464 ).
3. And the courts of this state have uniformly held all acts intended for the prevention and punishment of wrongs to children to be constitutional. They are in the nature of public regulations to prevent as well as punish crime (Matter of Forbes, 4 Park. 611 ; Duffy v. People, 1 Hill, 355 ; s. c., 6 Hill, 75 ; Matter of Donahue, 1 Abb. N. C. 1 ).
V. The courts have uniformly upheld the police power of the legislature when enacting laws for the protection of the public health or morals.
1. The Skim-milk Act, People v. West, 106 N. Y. 293 ; S. P., People v. Kibler, 106 N. Y. 323 . 2. The Lottery Advertising Act, Hart v. People, 26 Hun, 396 . 3. The Clean Sidewalks Act, Village of Carthage v. Frederick, 122 N. Y. 268 . 4. Act Regulating the Height of Buildings, People v. D’Oench, 111 N. Y. 359 .
5. The police power was also expressly sustained in Bertholf v. O’Reilly (Civil Damage Act), 74 N. Y. 509 ; in Phelps v. Racey (Game Law), 60 N. Y. 10 ; in People
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v. Gallagher (Colored Schools), 93 N. Y. 438 ; in People v. King (Civil Rights), 110 N. Y. 418 ; in People v. Budd (Grain Elevator Charges), 117 N. Y. 1 , 7 N. Y. Crim. Rep. 189 ; and in Lawton v. Steele (Fishing Law), 119 N. Y. 226 .
6. Even in the cases where enactments were held unconstitutional, our court of appeals has been uniformly consistent in disclaiming any right to question the discretion of the legislature as to the methods and expedients adopted to protect the public health or morals when legislating on those subjects, (a) In the Tenement House Cigar-making Case (People v. Jacobs, 98 N. Y. 98 ; 2 N. Y. Crim. Rep. 539 ), which arose under chapter 272 of the Laws of 1884, the court took the ground that while it could not review the discretionary power of the legislature when legislating on the public health, the legislation in question did not concern the public health; that the public health was not the end aimed at; and that the enactment was not appropriate to that end (S. P., People v. Gillson, 109 N. Y. 389 ).
(b) Again, in People v. Marx ( 99 N. Y. 377 ; 3 N. Y. Crim. Rep. 200 ) the court affirmed the undoubted power of the legislature in matters relating to the public health or morals.
(c) In all these cases the court has invariably asserted and upheld the right of the legislature to use its discretion when legislating upon the public health or morals. It is when the legislature assumes to enact laws ostensibly upon these subjects, but actually upon some other subject, that the court has interfered.

Section 292 of the Penal Code provides, among other things, that a person who, having the care, custody or control of a child, under the age of sixteen years, as parent, procures or consents to the employment or exhibition of such child as a dancer, is guilty of a misdemeanor. The defendant, who is the mother of

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an infant girl, seven years of age, was arrested upon a charge of having violated this statute, and, having waived an examination, was held for trial, and the question of the legality of her commitment is now brought before this court by writs of habeas corpus and certiorari. The sole ground upon which it is claimed that the defendant should be discharged is that the above-cited provisions of the Penal Code are unconstitutional. The first contention is that said provisions of the Penal Code are unconstitutional, because they infringe upon a parent’s right to the custody and. services of his child. It is conceded that for reason's, which concern both the state and the children themselves, the legislature has the power to prevent parents from employing their children, or permitting them to be employed, in any indecent or immoral exhibition or practice, or in "any practice or exhibition dangerous or injurious to the life, limb, health or morals of the children. Indeed, in view of the various laws passed for the protection of children against the acts of their parents, by this statej and by every other civilized state in the world, and the validity of which has never been questioned, the learned counsel for the defendant could not well avoid making this concession. But, says counsel, the legislature cannot go further and take from the parent the right to employ a child in a lawful occupation, not indecent or immoral, and not dangerous or injurious to the life, limb, health or morals of the child; and, while the nightly exhibition of very young girls as dancers in public theatres, concert-halls, and dance-houses, may, in many cases, be injurious to their health or morals, nevertheless, in this particular case, the nightly exhibition by the defendant of her little girl, as a dancer, in a separate piece, performed in a respectable theatre, could not injure the health or morals of the child ; and, therefore, the above-cited provisions of the Penal Code, which forbid the mother to permit such exhibition, are unconstitutional.
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It seems to me that the mere statement of this argument is a refutation of it. But, to go further: in the first place, counsel assumes, without a particle of evidence, that the defendant’s child, which is of the age of seven years, will not be injured in health or morals by being continuously exhibited as a dancer ;• and as this assumption is wholly unwarranted, the argument, which rests entirely upon it, necessarily falls to the ground. But, assuming that in this present case, and in some other cases, young girls may be exhibited as dancers without injury to their health or morals, that fact does not tend to establish that the act in question is unconstitutional. The legislature is vested with the entire police power possessed by the people of this state, and in having determined that it is for the best interest of the state, and of young girls, that they should not be exhibited as dancers before they reach the age of fourteen years, its decision is final, and is not subject to review by the courts, upon the ground that the law infringes upon the rights of parents in some particular cases.

It is said that the statute is a violation of this liberty secured to the infant by the constitution; in other words, that, in the present case, a female child, of the age of seven years, has a constitutional right to exhibit herself as a dancer. This claim seems to me to have no foundation whatever: In this state, and in every civilized community, children are under many liabilities. In most jurisdictions they cannot make contracts, their earnings belong to their parents, to whom also they must render obedience; they cannot marry before certain ages, they are not allowed to purchase intoxicating liquors, nor to attend theatres, except in company with adults, and the male infant is not allowed to vote until he reaches the age of twenty-one years. In view of these and many other restrictions which have been imposed upon the “ liberties ” of infants, it is certainly a

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most extraordinary doctrine, and one which finds no support in our constitution, that girls of the age of seven years have an inalienable right to publicly exhibit themselves as dancers, of which they cannot be deprived by an act of the legislature.

Various cases are referred to by defendant’s counsel, but they lend no support to the views set forth in his brief. All that was decided in those cases was that the legislature could not, under pretense of protecting the health or morals of the community, prevent the carrying on of particular kinds of business in certain places, or the manufacturing of certain articles. In the case at bar no such question can arise, for there can be no question but that the above-cited provisions of the Penal Code were adopted by the legislature in good faith, with the sole purpose of protecting the health and morals of children.

The writs of habeas corpus and certiorari must be dismissed.

Note.—For a collection, of cases on the question of the state guardianship of children, see note, to Whalen v. Olmstead (Conn.), 15 Lawyers’ Rep. 593.

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