#### People ex rel. Adelina Barone, Relator, *v.*Frank Fox, Warden of the City Workhouse, Respondent.

(Supreme Court, New York Special Term,

November, 1910.)

Constitutional law: Deprivation of life, liberty or property without, due process of law — Criminal and quasi criminal proceedings — Imprisonment on physician’s report: Privileges and immunities of citizens and equal protection of the laws — Discrimination against particular classes of persons — Females.

Section 79 of chapter 659 of the Laws of 1910, relating to the inferior courts of criminal jurisdiction in the city of New York, is not unconstitutional in discriminating between men and women, since the greater danger front the spread of disease by women of the class described in the statute is a sufficient ground for such discrimination.

The provision of said section, however, authorizing the imprisonment of a woman after conviction under said section upon the result of a physical examination by a physician for a period-greatly exceeding the maximum time of detention prescribed for the same offense in the aibsence of a physician’s report, renders the section .invalid on the ground that it may deprive a person of liberty without duo process of-law.

Hearing upon return to writ of habeas corpus.

Bertha Rembaugh, for relator.

Charles S. Whitman, District Attorney (Howard C. Dickinson, of counsel), for respondent.

Bischoff, J.

Hpon the theory of discrimination between men and women, the attack upon the constitutionality of this statute (Laws of 1910, chap. 059, § 79) is not well fotmded. It is unquestionably an enactment having for its aim the safeguarding of the health of the inhabitants of the State, and the matter is fully within the police power. Ground of argument is not lacking that the danger from the spread of disease by women of the class in question is greater than the danger existing from the disease in the *401case of *men, and that*the present regulation is necessitated a's a step distinct in its nature from ‘a corrective measure which may be directed to the diseased condition of males.

The question of expediency, therefore, was for the Legislature and is not to be determined as an original matter by the court. People ex rel. Farrington v. Mensching, 187 N. Y. 8, 18. There is clearly merit, however, in the contention that the statute directs the detention of the accused, without due process of law, in that the nature of the sentence, after conviction, is made'to depend upon the report of a physical examination without the opportunity for a hearing upon the facts entering into the report. The conclusion of the examining physician is made binding upon the court. The report is presented to the magistrate *“*and if it *thereby*appears,” says the statute, that the prisoner is afflicted with the disease in question, “ the magistrate shall commit her to a public hospital,” for a period which, in the magistrate’s discretion, may be one year — a period greatly exceeding the maximum time of detention prescribed for the same offense in the absence of a physician’s report. Since the physician is not a judicial officer, and since the magistrate cannot hear the accused as to the correctness of the facts-stated in the report, but is bound thereby,' the penalty attaching to conviction of the offense is made to depend upon an independent inquiry out of court, with the result that the convicted person is deprived of the benefit of due process of law. Matter of Kenny, 23 Misc. Rep. 9; 30 App. Div. 624; see also People ex rel. Abrams v. Fox, 77 App. Div. 245. I am, therefore, constrained to hold that the statute in question is imconstitutional and affords-no justification for the relator’s further detention.

Relator discharged.