In re Stevens — 54 N.Y. St. Rep. 559

Majority

p. 559

In the Matter of the Application of Benjamin D. Stevens for writs of habeas corpus and certiorari.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

Children—Mayor cannot grant license for their employment in SINGING AND DANCING AT A THEATRICAL EXHIBITION.

The mayor of a city has no power under § 392 of the Penal Code, as amended in 1892, to grant a consent for a theatrical exhibition which includes singing or dancing by a child.

Appeal from order discharging writs of habeas corpus and certiorari.

Benjamin D. Stevens, the appellant, who is manager of a theatrical troupe, publicly exhibited in the Broadway Theatre, in the city of Hew York, on September 5, 1892, a little girl named Lillian Kline, aged five years, in singing and dancing, in a play called “Wang," performed therein. He was arrested September 7, 1892, upon a warrant issued by a police justice of said city, at the instance of the Hew York Society for the Prevention of Cruelty to Children, charged with a misdemeanor in violating § 292 of the Penal Code, which prohibits the exhibition of a child under the age of sixteen years in singing or dancing. Upon the examination which thereupon took place the facts alleged were proven, but he claimed to have a consent in writing from

p. 560

the mayor of the city of New York, legalizing the exhibition. He was duly committed by the magistrate to await the action of the grand jury. Immediately writs of habeas corpus and certiorari were issued by this court. The warden returned the body of the appellant, in custody, with the commitment. The magistrate returned the complaint, warrant of arrest, and testimony taken on the examination. Special demurrers were then interposed to each return, and a hearing had before Mr. Justice Beach, who dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion. From the orders of dismissal the present appeal is taken.

The following is the opinion of the special term :

Prior to the act of 1892, and under § 292 of the Penal Code, the written consent of the mayor could be given to the employment of a child in certain ways mentioned by the act of 1892, entitled : “An act to amend § 292 of the Penal Oode, relative to the licensing of children in theatrical exhibitions,” the consent of the mayor was extended to include such exhibitions.

The third subdivison of § 292 specifies certain of the prohibited acts in these words:

“ Third. In singing or dancing, or playing upon a musical instrument, or in a .theatrical exhibition, or in any wandering occupation.”

The question raised in these proceedings is whether or not the mayor can grant a-consent for a “ theatrical- exhibition ” which includes “ singing ” or “ dancing ” by the child.

I am of opinion that he cannot. The intent of the legislature is to be ascertained, and when settled, followed by the court, ■in construing the enactment. But this intent is not to be gathered from the shifting uncertainties of outside opinion or circumstance, likely to be modified or wholly changed when subjected to proof and judicial examination, but rather from the signs and indications furnished by legislation upon the particular subject then under legislative consideration.

Judicial construction is seldom assisted by that applied to other enactments, which is always influenced or controlled by particular verbiage. Such are the cases of The Society for Reformation of Juvenile Delinquents v. Diers, 10 Abb., N. S., 216 ; Bell, Treas. Philadelphia, v. Mahn, 121 Penn. St., 225 .

There is no doubt that the court can disregard the exact and literal wording of a legislative act if, upon a survey of the whole act, and the purpose to be accomplished, or the wrong to be remedied, it is plain that such exact or literal rendering of the wording would not carryout the intent of the legislature. Bell v. The Mayor, 105 N. Y., 139 , 144; 6 St. Rep., 847 .

This principle is not directly applicable ■ to the question at bar, because exact and literal wording is not opposed to plain intent.

The point involved here relates to the inclusive power of the term “ theatrical exhibition” relative to “singing” or “ dancing.” These terms are used in the act under-review, and the court, to ascertain the legislative intent, is remitted to" the use by the legis- , lature of those, terms, and-,the legal effect of that use.

p. 561

Lucien Oudin, for app’lt; De Lancey Nicoll, dist. atty., and Elbridge T. Gerry, for resp’ts.

The original act and the act as amended contain specified prohibited acts.

These under the present section, and included in paragraph three, are plainly five in number, First, “ singing; ” second, “ dancing; ” third “ playing upon a musical instrument; ” fourth, “in a theatrical exhibition; ” fifth, “in any wandering occupation.” The answer to parts of the argument urged by learned counsel for the defendant and relators is the obvious Seduction from the particular specifications that each has a distinct and separate significance, and, therefore, no one is inclusive of any other.

The final clause of the amendment, “ but no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section,” is of little aid to judicial construction.

The third subdivision • is not named, but the reason for its omission is that a violation of its parts was authorized when consent of the mayor was obtained. This applies only to the term “ theatrical exhibition,” leaving singing, dancing, playing upon a musical instrument, and wandering occupation in the same status as the other subdivisions.

The substitution of the word “ dancing ” for “ dancer ” seems to indicate an intention to enlarge the scope of prohibition beyond a signification applicable only to a professional.

It is also apparent that the third subdivision was properly omitted, because it includes what is subject to a consent by the mayor, to wit: playing on a musical instrument at a concert, and theatrical exhibitions.

The court is of opinion that the tenor of the act, its title and specific designations, by explicit words, will not permit the inclusion of singing and dancing by the words “ theatrical exhibition.”

There are under the latter term many acts not harmful or inappropriate within the limit of children’s effort, and such' may be permitted. Those of singing and dancing are excluded in the wisdom of supreme legislative authority, which cannot and should not be overruled by the courts, especially when exercised with the humanitarian object of protecting those who, from youth and consequent inexperience, are unable to guard and protect themselves.

The motions for a mandamus are denied, the writs of habeas corpus and certiorari discharged, and the prisoner remanded.

We think that the construction given to chapter 309 of the Laws of 1892, amending § 292 of the Penal Code, by the learned justice before whom the writs of habeas corpus and certiorari were brought at the special term, was correct; and, adopting his opinion as our own, an affirmance of the orders appealed from is directed, and the prisoner remanded.

Van Brunt, P. J., and O’Brien, J., concur.