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It also provides that the court

may render such judgment and make such order or commitment, according to the circumstances of the case, as any court or magistrate is now or may hereafter be authorized by law to render or make in any of the cases coming within section two of this act.”

Speaking of the commitment of minors to penal and charitable institutions, the Court of Appeals, in Matter of Knowack, 158 N. Y., 482, at p. 487, said:

* These commitments are naturally relegated into three classes, commitments as a punishment for crime, commitments where the proceeding is quasi criminal and commitments for care and guardianship.”

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The commitment, in the case under discussion, comes within the third class above described, and as stated by the Court of Appeals in the above case at page 486 :

“ This is not a criminal proceeding; there is no prisoner and no crime has been committed.

The State as parens patriae by legislation, seeks to protect children who are destitute and abandoned age, even when such child has committed an offense which, if the child had been over sixteen years of age, would be called a crime.

by those whose duty it is to care for and support them." It will be observed from the language of the Monroe County Act that the power of the court in relation to the commitment of children under sixteen years of age, is governed by the power of magistrates to commit under tlie Penal Law in cases coming within section 2 of the Monroe County Act. It is necessary, therefore, to examine the express powers of other courts and magistrates relating to the commitment of children of this description.

Subdivision two of section 486 of the Penal Law confers upon courts and magistrates jurisdiction in relation to the same class of children as are described by section 2 of chapter 611 of the Laws of 1910 referred to herein as the Monroe County Act. Said section of the Penal Law provides that such children

“must be arrested and brought before a proper court or magistrate, who may commit the child to any incorporated charitable reformatory, or other institution, and when practicable, to such as is governed by

persons of the same religious faith as the parents of the child." Another provision of the Penal Law relating to the commitment of minors is found in section 2194 which provides in substance, that any person under the age of sixteen, convicted of a crime, may be placed in charge of any suitable person or institution willing to receive him," and that a child under sixteen years of age committed for a misdemeanor “must be committed to some reformatory, charitable or other institution authorized by law to receive and take charge of minors."

The provisions of section 2194 of the Penal Law must be read in connec. tion with section 2186 thereof, providing that children under sixteen years of age shall not be deemed guilty of a crime but of juvenile delinquency only. They are important in connection with this opinion as illustrating the great latitude which the Legislature has conferred upon courts and magistrates, relating to the commitment of children under sixteen years of The superintendents of the poor of the various counties of the State may commit to such asylum, if vacancies exist therein, such feebleminded persons and idiots residing in their respective counties, who are indigent or inmates of county almshouses, according to the by-laws and

The provisions of section 486 of the Penal Law were formerly found under section 291 of the Penal Code. Speaking of the language of this section, the Court of Appeal in the case of People ex rel. Leon Van Heck v. New York Catholic Protectory, 101 N. Y., 195, at p. 200 has said:

'Most clearly it means that the magistrate knowing the authority of the different institutions to receive and retain, and of existing limitations upon that authority, may select from among them that which he deems most fitting."

and again at p. 202:

“We are impressed with the conviction that the sole effect of the first alternative contained in section two hundred and ninety-one, is to permit the magist rate who, theretofore, under the consolidation act, could commit the destitute child to but one of these specified institutions, to commit such child to any charitable or reformatory institution authorized by law to take charge of minors, but in every case the insti. tution so authorized was left to take and hold the child for the time, and in the manner and under the regulations prescribed by its fundamental law."

It will be seen, therefore, that magistrates are given a wide power and discretion as to the commitment of children to institutions. The purpose of the several acts is to promote the welfare of the child, and the commitment should be to such an institution as is best fitted and adapted to the form of misfortune or vice in each particular case.

The Rome State Custodial Asylum is a charitable institution. It is particularly adapted to children who are feeble-minded. It is a proper institution to which a feeble-minded child, not having proper guardianship, such as Marie Roy, may be committed, unless there be some provision in the organic law of the asylum which prevents such commitment.

The provisions of article 7 of the State Charities Law relating to com. mitments to the Rome State Custodial Asylum are not very clearly stated. Section 94 provides that:

regulations of the asylum." The same section also provides that:

“ Feeble-minded persons and idiots, other than the poor and indigent, may be admitted to the asylum, if vacancies exist, after providing for the care and custody of the poor and indigent feeble-minded persons and idiots, at a rate which shall not exceed the weekly per capita cost of

maintenance of inmates as determined yearly by the board of managers.” The latter sentence evidently relates to feeble-minded persons or idiots who, or whose families, are able to pay for their care. Section 95 of the law

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relating to the procedure for the detention and discharge of inmates in the Rome State Custodial Asylum in subdivision 1, provides:

“ The Rome State Custodial Asylum shall receive when it has accommodations therefor such persons of the class designed to be maintained in said asylum, as shall be duly committed thereto in accordance witb

the provisions of law and the rules and regulations of said asylum.” The same subdivision provides that it shall be the duty of the asylum, and that the asylum is vested with the authority, to detain all persons so committed, and gives the asylum the right to arrest and return any who may escape therefrom. The intention of the Legislature when it used the words in subdivision 1 of section 95, “ in accordance with the provisions of law " is far from clear. If the provisions of law referred to are merely those relating to commitments by the superintendent of the poor, as mentioned in section 94, it would seem that the Legislature would have used sonie such language as,

committed thereto in accordance with the provisions of the previous sections” instead of “in accordance with the provisions of law," and I think that it follows that commitments of persons of the class designed to be maintained in said asylum, may be made other than by the superintendent of the poor, if such persons are not poor or indigent.

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I do not deem it important, however, that the Rome State Custodial Asylum is not expressly authorized to receive feeble-minded children upon commitment by a magistrate. In this connection see Corbett v. St. Vincent's Industrial School (79 App. Div., 334, at p. 349), in which it is held in effect that such school was one of the governmental agencies of the State, and in which the Appellate Division at p. 349 said:

“It cannot be important that the defendant was not compelled by statute to receive the plaintiff or other of his class into the institution.”

The intention of the Monroe County Act and of section 486 of the Penal Law seems to be that a commitment may be made to any institution willing to receive the child, providing the institution is suitable for the care and treatment of the misfortune or vice with which the child is afflicted.

In my opinion, therefore, the County Court of Monroe county may commit to the Rome State Custodial Asylum a feeble-minded child under sixteen years of age, who is in such condition or surroundings, or under such improper or insufficient guardianship or control as to endanger the morals, health or general welfare of such child, and who is in need of the care and treatment afforded by the Rome State Custodial Asylum, and said asylum may properly receive and detain a child so committed, if a vacancy exists in the asylum, after providing for the custody of indigent feeble

minded persons and idiots, in the discretion of the board of managers, and under such regulations as to payment, and otherwise as such board shall prescribe.

If the child comes within the indigent class, however, the superintendent of the poor should join in the commitment in order to make the support of the child a public charge, and this would become the duty of the superintendent under section 13 of the Monroe County Act which makes it the duty of every county officer to render such assistance as lies within his jurisdic. tional power to further the objects of the act. In such cases, the commit.

ment would derive its direct force from the action of the superintendent of the poor, rather than from the order of the court.

Section 13 of the law provides for the payment of the support of the child in the custodial institution by the persons bound by law to support it, and the enforcement of such pay nt by contempt proceedings. If this protection afforded by statute is deemed insufficient by the board of managers, they have authority under the law, to require compliance with such other regulations as they may see fit to adopt, as a condition precedent to admission. Albany, January 4, 1912.

THOMAS CARMODY,

Attorney-General. To DR. CHARLES BERNSTEIN, Superintendent, Rome State Custodial Asylum,

Rome, N. Y.

A patient, not indigent nor an inmate of a county almshouse when com

mitted to the Rome State Custodial Asylum by a superintendent of the poor, should be discharged by the board of managers, unless a vacancy exists in the institution and provision is made for the cost of her mainte

nance.

STATEMENT. A girl apparently under 21 years of age was committed to the Rome Cu-todial Asylum as an indigent person by the superintendent of the poor of the county of Oneida. An investigation made at the request of the board of managers of the institution revealed that the parents of the girl were owners of three houses in the city of Utica, that the father of the girl was receiving a salary of $70 per month and that such parents are financially able to take care of the patient.

INQUIRY. Can a feeble-minded person or idiot, who is not indigent nor an inmate of a county almshouse, be legally committed to the Rome State Custodial Asylum?

What disposition should be made of cases so committed ?

OPINION,
Section 94 of the State Charities Law provides :

“The superintendents of the poor of the various counties of the state may commit to such asylum, if vacancies exist therein, such feeble-minded persons and idiots residing in their respective counties, who are indigent or inmates of county almshouses, according to the by-laws and regulations

of the asylum. This same section also provides that feeble-minded persons and idiots, other than the poor and indigent, may be admitted to the asylum, after providing for the care and custody of the poor and indigent feeble-minded persons and idiots, at a rate which shall not exceed the weekly per capita cost of maintaining all inmates as determined yearly by the board of managers.

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The maintenance of the institution and the poor and indigent inmates thereof is made upon the State.

Under this section it is clearly apparent that the Rome State Custodial Asylum is maintained by the State of New York primarily for the custody, maintenance, training and treatment of feeble-minded persons and idiots who are indigent or inmates of county almshouses. The class of feeble-minded persons and idiots who are not poor and indigent can only be admitted to the asylum after the poor and indigent are first provided for and then only where the cost of the maintenance, training and treatment of such feebleminded persons and idiots is paid at the rate fixed by the board of managers.

An inmate of a county almshouse is presumably a poor person and the answer to this inquiry therefore depends to a great extent upon the definition of the term “indigent.” There appears to be no definition of the word in the State Charities Law, but the term “poor person

" and also the term “ indigent person,” as applied to the insane, are defined by section 2 of the Insanity Law, as follows: “ The term

poor person,' when used in this chapter, means a person who is unable to maintain himself and having no one legally liable and able to maintain him."

* The term •indigent person,' when used in this chapter, means one who has not suflicient property to support himself while insane, and

the members of his family lawfully dependent upon him for support." The words “

indigent insane persons," as used in the Insanity Law, have also been defined by the Court of Appeals in the case of People ex rel. Benheim V. Board of Supervisors, 121 N. Y. 350, as “such as usually provided for themselves, or are provided for by friends, and who only need assistance when sent to an asylum under the visitation of insanity.” In the Century Dictionary the word “indigent” is defined as " lacking means of comfortable subsistence or support; wanting necessary resources; needy; poor.”

From the above definition I think it clear that an indigent feeble-minded person or idiot is one who is unable to maintain himself and whose relatives liable at law for his support are unable to maintain him.

The parents of the patient in question are apparently well able to care for and maintain her. She could have compelled these parents to furnish her with means for her support and not being, therefore, indigent,” was im. properly committed to the asylum by the superintendent of the poor.

Cases of this nature are of frequent occasion, because persons, having dependent upon them for support relatives who are afflicted with insanity or feeble-mindedness, often apply for the commitment of such persons to institutions maintained at the expense of the State, notwithstanding the fact that they are financially able and charged by law with the support and maintenance of the person so committed. In cases of this nature where the commitment to the institution is regular upon its face, such commitment is sufficient protection to the institution until it has developed that the person so committed is not a proper charge upon the State. When this situation arises at the Rome State Custodial Asylum, the board of managers, if vacancies exist, should notify the parents or other relatives liable for the support of the person committed that such person will be retained only upon

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