Opinion
January, 1909.
Abraham Pearlman, for relator, for motion.
Francis K. Pendleton, corporation counsel, opposed.
This is an application for a peremptory writ of mandamus, directed to John J. Barry, commissioner of corrections of the city of New York, commanding and directing him forthwith to prepare and transmit a written order to the superintendent, warden or sheriff in charge of the workhouse, Blackwells Island, New York, pursuant to section 710 of the Greater New York charter, as amended by the Laws of 1905, specifying the date of the discharge of the petitioner, who is now committed at the said workhouse, Blackwells Island, New York, and also commanding and directing the superintendent, warden or sheriff in charge of said workhouse forthwith to comply with the terms and conditions of the said written order so transmitted by the said commissioner of corrections. The facts are not disputed. The petitioner, on the 17th day of November, 1908, was arraigned before one of the magistrates of the city, charged with violating section 141 of the Tenement House Act (Laws 1901, chap. 334, § 141). She was found guilty of the charge and committed to the workhouse for a period of six months. The commissioner has refused to make any written order under section 710 of the charter, as amended by Laws of 1905, chapter 638. Under the Laws of 1901, chapter 334, section 141, under which the petitioner was prosecuted, she was, when found guilty, "deemed a vagrant" and was to be committed "to a county jail for a term not exceeding six months from the date of commitment." That section further expressly provided that "the procedure in such case shall be the same as that provided by law for other cases of vagrancy." Referring then to the procedure in other cases of vagrancy, we find that, upon conviction, the person convicted shall be sentenced to the workhouse "for the term of six months." Greater N.Y. Charter, §§ 707-710, 712. But by the provisions of section 710 (as amended by Laws 1905, chapter 638), the commissioner of corrections is required, within two days after the commitment of any person upon a conviction of vagrancy, to ascertain from the records therein referred to whether such person was committed to the workhouse, penitentiary or county jail within two years next preceding the date of such commitment for public intoxication, disorderly conduct or vagrancy and to make a written order specifying the date at which such person shall be discharged; and, in the case of a person who has not previously been committed, the order shall direct that such person shall be discharged at the expiration of five days from the date of his commitment. The constitutionality of this law has been sustained. People ex rel. Abrams v. Fox, 77 A.D. 245. There has been no reason advanced why the provisions of the charter referred to do not apply to the case at bar. By the conviction of the petitioner she was "deemed a vagrant;" and the procedure was by statute declared to be the same as provided by law "for other cases of vagrancy." The intent of the statute is clear, to place all cases of vagrancy in the same category and to make the procedure uniform. By the command of the statute the commissioner of corrections, as well as all other officials, is obliged to adopt and follow the procedure in this case as that provided by law for other cases of vagrancy. The duty of the commissioner being ministerial, a writ of mandamus may issue compelling him to obey the command of the statute as to which he has no discretion.
Motion granted.