#### People *ex rel.*Mount Magdalen School of Industry *v.*Dickson, Treasurer.

*(Supreme Court, General Term, Third*Department.

July 7, 1890.)

1. Reformatories—Right to Compensation fob County Prisoners.

The county is liable, on a bill audited by the supervisors, for the maintenance of children committed to a charitable institution under Pen. Code N. Y. §§ 291, 292,. providing that children in certain casés may be committed to such institutions.

8. Mandamus—Validity of Commitments.

The question of the validity of the commitments which are not absolutely void does not arise in a proceeding to collect the audited bill for the maintenance of the children.

Appeal from circuit court, Rensselaer county.

Proceeding by *mandamus*at the relation of the Mount Magdalen School of Industry to compel Thomas Dickson, as treasurer of Rensselaer county, to pay relator’s bill, audited by the-board of supervisors, for the maintenance of certain girls committed to it by committing magistrates. Peremptory writ awarded. The treasurer appeals.

Argued before Learned, P. J„ and Landon and Mayham, JJ.

*Smith & Wellington, (George B. Wellington,*of counsel,) for appellant. *James H. Ryan,*for respondent.

Learned, P. J.

This is an appeal from a final judgment, after a trial, awarding a peremptory writ of *mandamus.*The relator is a charitable institution incorporated under chapter 319, Laws 1848, and having the approval of the state board of charities, under chapter 446, Laws 1883. During the year 1889, down to October 1st, the relator had had in its charge certain girls, committed to it by certain committing magistrates. It rendered to the board of supervisors a bill, duly verified, for the board and maintenance of these girls. The board audited the • bill, December 16, 1889, at $4,015.86. The county treasurer refused to pay it, and the *mandamus*was granted to compel him to pay. His position is that the claim is not a county charge, and that the auditing was unauthorized. The question here is not whether any *605or all of the children committed by magistrates to the relator might not have obtained a discharge from custody by *habeas corpus,*on the ground of imperfections and errors in the commitments. That would be a very different question, and one which would arise between the children, respectively, and the present relator, as in *People*v. *Mount Magdalen School,*7 N. Y. Supp. 737. In the case now before us the relator has received and cared for these children under commitments mhde by magistrates, and has duly rendered its bill to the board of supervisors, and that bill has been audited. The county treasurer refuses to pay, and he places his refusal on the ground that the bill is not a county charge. Chapter 240, Laws 1879, provides that children under 16, convicted as vagrant, truant, or disorderly, must be sent to some reformatory or other institution, as provided for in the case of juvenile delinquents; and the act requires boards of supervisors to take such action in the matter as may be necessary to carry out the provisions of this act. Section 713, Pen. Code, as amended, requires that a child under 16, committed for misdemeanor under any of the provisions of that Code, must be committed to some reformatory, charitable, or other institution authorized by law to receive such child. And subdivision 5, § 291, Id., as amended by chapter 46, Laws 1884, and by chapter 145, Laws 1888, declares that a child actually or apparently under 16, found doing certain acts described in the preceding subdivisions, or coming within the descriptions in section 292, may be committed to any incorporated charitable reformatory. Subdivision 6 authorizes a similar temporary commitment for trial, anda similar commitment of a child held as a witness, and provides that the institution shall be entitled to like compensation proportionally as on a final charge. Now, these provisions plainly show that under these statutes the institution to which children are thus committed is to receive compensation. The institution, as to these children, is placed in the position of the jail or the poor-house, as the case may be. The law makes a wise and humane substitution of a charitable and reformatory institution for the prison, to which an adult, convicted or detained, would be sent; and for the poor-house, to which an adult pauper would be sent. And where provisions of this nature are made by the statute, it is evident that it is not intended, as the respondent seems to claim, that these children thus committed are to be kept without compensation, when the board of supervisors have allowed and audited the bill for such compensation.

It will be seen that section 713, above referred to, is imperative; and, although it does not use the words “juvenile delinquents, ” yet a child under 16, committed for a misdemeanor, is plainly a juvenile delinquent. Now, chapter 240 of the Laws of 1879 is general. It is not necessarily limited in its effect to institutions then existing. It directs that vagrant, etc., children be sent to the same kind of institution to which juvenile delinquents are to be sent; and that kind is defined in section 713 of the Penal Code, above cited. It is not necessary for us to decide whether, without the approval of the board of supervisors, the committing magistrates may send to any institution, of the character named, which they may select. It is enough in this case that the selection has been ratified by the board; and we cannot think that the institutions intended by these sections of the Penal Code are necessarily such as were in existence when chapter 240 of the Laws of 1879 was passed. That an institution to which children are thus committed for vagrancy, etc., is to receive compensation, is further shown by the subdivision 6 of section 291, ■above cited, which speaks of the compensation for temporary commitments and for the detention of witnesses as proportional to that on final commitments. The same is also shown by section 921, Code Grim. Proc., which, in case of a commitment of a child to an institution under the Penal Code, authorizes a magistrate to order the father to pay a sum for the child’s support, which is to be credited by the institution to the city, town, or county against ■any sum due for maintenance.

*606It is further urged by the respondent that this bill should not be paid , by reason of the imperfection, or, as alleged, invalidity, of the commitments. We have already remarked that this litigation is not between the persons committed and the institution. Questions which might be very important on a *habeas corpus*do not necessarily arise here. The children made no question as to the legality of their commitment. They acquiesced in.it. The relator accepted their custody, and cared for them. If, linder commitments of a similar character as to their alleged irregularity, an adult had been confined in jail, and the board of supervisors had allowed the sheriff’s bill for maintenance, could the county treasurer lawfully refuse to pay? We may notice here that chapter 145, Laws 1888, passed April 18th, would seem, as to many of these commitments at least, to make them sufficient. And chapter 220 of the saíne year, amending section 888 of the Code of Criminal Procedure, expressly authorizes, in certain cases, the commitment of a vagrant child described in subdivision 8, § 887, Code Crim. Proc., as provided in section 291, Pen. Code. We think, then, that, as between the relator and the board of supervisors, the custody of these children was such that the board might allow it as acounty charge. *Osterhoudt*v. *Rigney,*98 N. Y. 232. The respondent relies for his objection solely on the commitment. Ho proof was given as to any record, other than the commitment, of the trials of these children. *People*v. *Baker,*89 N. Y. 466. How, while we need not deny that a commitment could be made so entirely beyond the power of the magistrate on its face that an institution like the relator could not lawfully be paid for the custody of a child thereunder, even after the audit by the board, we do not think that such a case is here; and, though the form of the commitments is not as perfect as it might be, yet, as between the relator and the county treasurer, we are of the opinion that he should pay the audited bill. Judgment affirmed, with costs.