People v. Ewer

• Decision Date: 30 January 1894
• Citation: 36 N.E. 4,141 N.Y. 129
• Parties: PEOPLE v. EWER.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 129

36 N.E. 4

PEOPLE

v.EWER.

Court of Appeals of New York.

Jan. 30, 1894.

Appeal from supreme court, general term, first department.

Charlotte Ewer was arrested for a violation of Pen. Code, § 292, and obtained writs of habeas corpus and certiorari. From an order of the general term (24 N. Y. Supp. 500) affirming orders of the special term (19 N. Y. Supp. 933) dismissing the writs, said Ewer appeals. Affirmed.

Charlotte Ewer was arrested upon a police magistrate's warrant, charged with a misdemeanor in violating section 292 of the Penal Code by exhibiting her child, Mildred Ewer, as a dancer at the Broadway Theater in New York city. The examination before the magistrate sustained the charge, and showed that she was of the age of seven years, and went by the stage name of ‘La Regaloncita;’ that she was clad in the usual style of the ballet dancer, in a low-necked, sleeveless, and short dress, and wore purple tights; that she danced upon the stage to the music of an orchestra, elevating her legs, moving upon her toes, and posturing with her figure. Her mother, being held upon the charge, sued out writs of habeas corpus and certiorari, to which the magistrate made return of his proceedings, etc. The prisoner demurred to the return; alleging that there were no sufficient grounds for holding her, and that the statute under which she was arrested was unconstitutional. The provisions of the Code under which this arrest was made read that ‘a person who * * * exhibits * * * a female child apparently or actually under the age of fourteen years, * * * or who, having the care, etc., of such a child as parent, etc., * * * in any way consents to the employment or exhibition of such a child either as * * * a dancer * * * or in a theatrical exhibition * * * or in any * * * exhibition dangerous or injurious to the life, limb, health or morals of the child * * * is guilty of a misdemeanor.’ At the special term the writs were dismissed, and the prisoner was remanded. The order of that court was affirmed at the general term, and the defendant has appealed to this court.

CONSTITUTIONAL LAW-POLICE POWER-PROHIBITING PUBLIC EXHIBITION OF CHILD.

Pen. Code, s 292, making it a misdemeanor for the parent of a female child under the age of 14 years to procure or consent to the employment or exhibition of the child as a dancer, is a valid police regulation, and is not unconstitutional as depriving the parent of the right to the custody and service of the child, and the child of the right to follow a lawful occupation. 24 N. Y. Supp. 500, affirmed.

A. J. Dittenhoefer and David Gerber, for appellant.

De Lancey Nicoll, Dist. Atty., (Elbridge T. Gerry, of counsel,) for the People.

GRAY, J.

The question we shall determine upon this appeal is whether the statute under which the appellant was arrested violates any just and personal rights secured to her by the constitution of the state. If it is such an interference with the legal relation of parent and child as exceeds the limits within which the legislature, exercising the sovereign power of the state, may regulate and control that relation, then it is the duty of the courts to declare its unconstitutionality; but, if it is within a proper and legitimate exercise of legislative functions, the courts may not interfere. This question falls within those which are classified under the head of the police power of the state. The extent of the exercise of that power, with which the legislature is invested, and which it has so freely exerted in many directions, within constitutional limits, is a matter resting in discretion, to be guided by the wisdom of the people's representatives. It is difficult, if not impossible, to define the police power of a state, or, under recent judicial decisions, to say where the constitutional boundaries limiting its exercise are to be fixed. It is a power essential to be conceded to the state, in the interest, and for the welfare, of its citizens. We may say of it that when its operation is in the direction of so regulating a use of private property, or of so restraining personal action, as manifestly to secure or to tend to the comfort, prosperity, or protection of the community, no constitutional guaranty is violated, and the legislative authority is not transcended. But the legislation must have some relation to these ends; for, to quote the expressions of Mr. Justice Field in the Slaughterhouse Cases, 16 Wall. 36, ‘under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded.’ In People v. King, 110 N. Y. 418, 18 N. E. 245, it was well observed by Judge Andrews: ‘By means of this power the legislature exercises a supervision over matters affecting the common weal. * * * It may be exerted whenever necessary to secure the peace, good order, health, morals, and general welfare of the community, and the propriety of its exercise, within constitutional limits, is purely a matter of legislative discretion, with which courts cannot interfere.’ The assumption of the exercise of this extraordinary and very necessary power has been the subject of severe criticism in the opinions of judges, when it has been sought thereby to regulate and control in the interest of the public the conduct of corporate or individual business transactions. Munn v. State of Illinois, 94 U. S. 113, may be referred to as starting...