Opinion
December, 1904.
Henry G. Gray, for the appellant.
Michael Schaap, for the respondent.
The defendant was indicted for the crime of "admitting to a theatre managed by him a child under the age of sixteen years unaccompanied by its parent or guardian." To this indictment a demurrer was interposed, stating as the ground thereof "that the facts stated in said indictment do not constitute a crime." The Court of General Sessions of the Peace in and for the county of New York, in which the indictment was pending, sustained the demurrer, and from the judgment entered thereon the district attorney of the county of New York now appeals.
The indictment sets forth that the defendant kept and managed in part a theatre in the borough of Manhattan, in the city of New York, and at a time named did admit to and allow to remain in such theatre a child, one William H. Weiss, "actually and apparently under the age of sixteen years, to wit, of the age of fourteen years, the said William H. Weiss not being then and there accompanied by his parent or guardian, against the form of the statute in such case made and provided." This indictment is evidently framed under the provisions of subdivision 1 of section 290 of the Penal Code, which provides that a person is guilty of a misdemeanor who "Admits to or allows to remain in any dance house, concert saloon, theatre, museum, skating rink, or in any place where wines or spirituous or malt liquors are sold or given away, or in any place of entertainment injurious to health or morals, owned, kept or managed by him in whole or in part, any child actually or apparently under the age of sixteen years, unless accompanied by its parent or guardian." That the offense charged in the indictment comes directly within the terms of this provision of the Penal Code is apparent, but the contention of the respondent is that the provision of the Penal Code had no application in the city of New York for the reason that there is a local law which operates in that city and which displaces the provision of the Penal Code. It is provided in section 1482 of the Greater New York charter that "It shall not be lawful for any owner, lessee, manager, agent or officer of any theatre in The City of New York to admit to any theatrical exhibition held in the evening any minor under the age of fourteen years, unless such minor is accompanied by, and is in the care of, some adult person. Any person violating the provisions of this section shall be guilty of a misdemeanor."
We are not informed of the reasons of the learned judge of the Court of General Sessions for upholding this demurrer, but we assume that it must have been done on the ground of an inconsistency between the provision of the Greater New York charter and that of the Penal Code with relation to the subject under consideration, and that it was deemed that the charter provision was in the nature of a local law, which, while it did not expressly permit of the admission of children under the age of fourteen years to a theatrical entertainment, did nevertheless define and declare what should constitute the misdemeanor within the territorial limits of the city of New York.
Without considering whether there is or not an actual inconsistency between these two provisions of law we are of opinion that the provision of the Penal Code prevails. The history of the respective statutes, so far as legislation upon the general subject is concerned, but without regard to the effect of that legislation, seems to be accurately stated by the learned counsel for the respondent. The first general act upon the subject was chapter 428 of the Laws of 1877, which provided that no minor under the age of fourteen years should be admitted at any time to, or permitted to remain in, any saloon or place of entertainment where liquors were sold, exchanged or given away, or at places of amusement known as dance houses and concert saloons, unless accompanied by parent or guardian; and the proprietor, keeper or manager of any such place for a violation of that provision was to be regarded as guilty of a misdemeanor. It is properly pointed out that that act has no application to a theatre. The provision was incorporated in the Penal Code. (Laws of 1881, chap. 676, § 290.) As section 290 was first passed, it substantially accorded with the provision of the act of 1877. It is properly argued that under that provision of the Penal Code the act charged in this indictment would not have constituted a crime, but by the Laws of 1884, chapter 46, the Penal Code was amended so as to increase the age of a child referred to therein from fourteen to sixteen years and making the section apply to his admission to theatres as well as to other places named therein. Thus far, we have considered the general provision of law. The law with reference to the city of New York was first passed in 1859 (Laws of 1859, chap. 48). It was included and published in a compilation of local laws affecting New York city, compiled and issued in 1880, under the direction of the Legislature, and in its original form became section 2009 of the Consolidation Act of 1882, there being certain differences merely with relation to the recipient of fines that might be imposed for violation of the law. It ultimately became section 1482 of the Greater New York charter (Laws of 1897, chap. 378), and by the charter of 1901 it was continued in force in the following words:
"Section Three. The several sections of the said chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety-seven, the numbers and titles of which are set forth in the Second Schedule annexed to this act entitled 'Second Schedule. Sections to remain in force until changed by the Board of Aldermen,' are and each of them is hereby continued in full force and effect until the board of aldermen as constituted by the foregoing provisions of this act shall pass ordinances regulating the matters provided for in the said several sections mentioned in the Second Schedule, all of which ordinances the said board of aldermen is hereby expressly empowered to pass. Upon the passing of any such ordinances regulating the matters provided for in any one of the said sections respectively, such section shall cease to have any force or effect, and the same is and shall be repealed."
It is urged by the respondent that section 1482 of chapter 378 of the Laws of 1897 is one of the sections included in the second schedule annexed to the charter of 1901, and thus plainly made the law governing the matter within the limits of the city of New York, subject to change and control by the board of aldermen, which is expressly authorized to pass ordinances regulating the matter, which shall have the force of law. It is also urged by the respondent that the history of these statutes shows that the subject of the admission of minors into theatres of the city of New York has always been deemed by the Legislature a matter for special regulation with reference to that city, and finally, under the present charter, a matter for regulation by the local legislature — the board of aldermen — without regard to the statutes governing the same subject-matter in other parts of the State; and in support of this view a very able and interesting argument has been made. We cannot, however, adopt it, for upon a consideration of other provisions of the Greater New York charter, and looking to the general purpose of the Legislature in enacting the provision of the Penal Code now under review, we think it apparent that the Penal Code must control, and reach the conclusion that subdivision 1 of section 290 of that Code applies. Section 728 of the same Code provides as follows: "No provision of this Code or any part thereof shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless such statute shall explicitly refer thereto and directly repeal, alter or amend this Code accordingly."
There is no specific mention made in or in connection with the Greater New York charter of the repeal of any part of section 290 of the Penal Code and the enactment of the charter is not to be regarded as a repeal by implication. Section 1482 of the charter is identical with section 2009 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1885, chap. 249). It is not a new enactment dating from the time of the adoption of the Greater New York charter. By section 1608 of that charter it is provided: "So far as the provisions of this act are the same in terms or in substance and effect as the provisions of the said Consolidation Act * * * this act is intended to be not a new enactment but a continuation of the said Consolidation Act of eighteen hundred and eighty-two * * * and this act shall accordingly be so construed and applied." Giving heed to this section (1608) it throws back the provision of section 1482 of the charter to the time at which the provision in the Consolidation Act was adopted, and while that act was passed at a date subsequent to the passage of the Penal Code, yet section 2143 of the Consolidation Act provides as follows: "For the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the first day of January, in the year eighteen hundred and eighty-two; all acts passed after such date and the Penal Code are to have the same effect as if they were passed after this act." The act to establish a Penal Code was passed July 26, 1881. The amendment of subdivision 1 thereof, relating to the admission of children to theatres, was passed in 1884. We are of opinion that the section of the Penal Code with this amendment must still be regarded as the law governing the case. While it is true that a statute providing for a particular case or applicable to a particular locality is not repealed by a statute general in its terms and application, unless the intention of the Legislature to repeal or alter the special law is manifest ( Buffalo Cemetery Assn. v. City of Buffalo, 118 N.Y. 61; Van Denburgh v. Village of Greenbush, 66 id. 1), yet here the intention of the Legislature seems to be manifest to widen the scope of a general law which was applicable to the city of New York as well as to the rest of the State of New York. It was merely an amendment of a law which applied to New York city as well as the State, and in that sense could not be regarded as repealing a local law in conflict with it.
We think that subdivision 1 of section 290 of the Penal Code must in its operation be given the same effect as was given to section 72 of the Penal Code as related to section 58 of the Consolidation Act in People v. Jaehne ( 103 N.Y. 182).
The judgment should be reversed and the demurrer overruled.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Judgment reversed and demurrer overruled.