In re Stevens

Lawrence, J.:

We think that the construction given to chapter 309 of the Laws of 1892, amending section 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., concurred.

The opinion of the justice before whom the writs were brought at Special Term was as follows:

Beach, J.:

Prior to the act of 1892, and under section 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 section two hundred and ninety-two of the Penal Code relative to the licensing of children in theatrical exhibitions,” the consent of the mayor was extended to include such exhibitions.

The third subdivision of section 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 wlien settled followed by the court in construing tbe enactment. But this intent is not to be gathered from the shifting uncertainties of outside opinion or circumstances likely to be modified or wholly changed when subject 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. Pr. [N. S.] 216); Bell Treas. Philadelphia v. Mann, (121 Penn. St. 225).

There is no doubt but 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 carry out the- intent of the Legislature. (Bell v. The Mayor, 105 N. Y. 139, 144.)

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 Legislature of those terms and the legal effect of that use.

The original act, and as amended, contains specified prohibited acts.

These under the present section, and included in paragraph 3, are plainly five in number: First, singing; second, dancing; thvrd, 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 deduction 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 exhibitions.”

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 writ of habeas corpus and certiorari discharged, and the prisoner remanded.