The papers upon which this application was made, after stating in a general way the provisions of the Constitution and laws of the state relating to the powers and duties of the state board of charities, the incorporation of the defendant and its particular business and objects as stated in its articles of association, set forth in part the various annual reports which were made by its officers, which disclose that in 1875 the defendant received donations amounting to $4,965; that in 1876 its donations amounted to $3,735; that in 1877 it received various donations and subscriptions amounting to several thousand dollars, also numerous contributions of clothing by charitably disposed people; that in 1878 it received numerous contributions from members of the society as well as from those who were not members, including one bequest of ten thousand dollars, and that two hundred and eighty-six children were temporarily relieved by the society; that in 1879 two hundred and ninety-seven children had been temporarily relieved and supplied with clothing, and that large sums of money had been contributed by its members and others and that numerous donations of children's clothing were received during that year. *Page 253
In the report of 1880, its president described the needs and necessities of the society for a permanent building in which to do its work, stated that the sum of twenty-five thousand dollars was needed, and the board of directors referred to the purchase of a permanent building at an expense of forty-three thousand dollars. It then stated that the society was never closed, the manner in which the building was fitted up affording accommodations and appliances for cleansing the children who were received from various dens of misery, and who were furnished with proper food, shelter and care during the brief period required for their permanent location in other institutions. Included in its expenses for that year were items for board of children in the care of the society pending disposition by the court, and temporary relief to starving families. Its subscriptions amounted to $13,395, besides many donations of money and clothing.
The annual report for 1881 was to the effect that the defendant received by way of donations and subscriptions over nine thousand dollars, exclusive of dues of members, and also many donations of children's clothing. In the report for that year, the president explained the work carried on by the society in the following language: "Miserable little creatures are brought in at all hours from the streets; their garments, saturated with filth and vermin, are promptly removed and destroyed; they are thoroughly washed and cleansed in a lavatory provided for that purpose, and then dressed in clean clothes and fed, if hungry, with a substantial meal; they are at night, perhaps for the first time in their lives, placed in comfortable beds. In the morning they are taken before the proper court for disposition, and their places are soon filled by others. This is the practical every day and night work of the society. It is non-sensational, but none the less substantial." The report of the superintendent for that year disclosed that there had been during the year sheltered, fed and clothed in the society's reception rooms three hundred and fifty-one children, at an average cost of more than two dollars *Page 254 for each child, and that temporary aid had been extended to a number of destitute families and their children.
The report for 1882 states that three hundred and forty-five children were cared for and clothed in the society's room for that year, at an expense for board and clothing of $1,160.21; that $129.38 was expended for temporary relief to starving families, and that upwards of thirteen thousand dollars was received by donations, subscriptions and dues of members for that year.
In the report for the year 1883, the defendant's president, among other things, says: "Charitably-disposed persons are often perplexed how they can best expend money with the prospect of doing the most good." Then, after stating what was required to become a member of the defendant society, he added: "The rescue of children involves the broadest principles of charity, and those who uphold the society strengthen the hand which accomplished the result." The chairman of the board of directors in this report says: "It is one of the peculiarities of this institution that its doors are always open and no child in the city, either male or female, has ever been turned away without shelter for the night. * * * The public should bear in mind that the usefulness of this institution is limited only by the amount of pecuniary assistance given it." This report also shows that during the years 1881, 1882 and 1883 one thousand one hundred and twenty-four children were sheltered and clothed; that ten thousand one hundred and seventy-two meals were furnished them, and that upwards of seventeen thousand dollars was received in 1883 by donations, subscriptions and dues of members.
The report of 1884 shows that over seven hundred children were sheltered during the last year; that $13,200.34 was received by donations, subscriptions and dues of members; and that legacies amounting to upwards of eighteen thousand dollars in addition were paid to the society.
The reports for 1885 to 1897, inclusive, show the receipt by the society of many thousands of dollars by way of donations, subscriptions and legacies, and the payment of large sums of *Page 255 money for board and clothing of children and for relief of starving families.
In 1888 the defendant purchased a house and lot on Twenty-third street for twenty-five thousand dollars, and made alterations to its buildings at an expense of more than eleven thousand dollars.
The report for 1889 contained a statement by its attorney that the defendant had been exempted from the payment of the collateral inheritance tax upon legacies to it, but that in other cases it had been held that it was liable to such tax, and recommended the procurement of a statute to exempt it and other charitable societies.
In 1890 the report of the society shows that a law was enacted (L. 1890, ch. 553) exempting the personal estate of corporations organized for the enforcement of laws relating to children and other charitable corporations from taxation, and provided that the collateral inheritance tax should not apply to any such corporations.
Its report for 1891 disclosed that its indebtedness on its building had been discharged, and donations to enlarge it and sustain the work were urgently solicited. It then described its buildings and the purposes for which they were used, and declared that the money which enabled it to perform this work had been provided by a generous public.
In the report of 1892, the president of the defendant says that, aided by the charitable and humane, without distinction of creed, it soon had a recognized as well as a corporate existence, and that it had been supported theretofore by liberal contributions from the charitable. Among the expenditures for 1892 was the sum of $278,992.65 for the construction and furnishing of its new building.
In the report of 1894, the president makes an appeal to the public, asserting that the society needs large and liberal donations for its support, that it costs much to feed, clothe and care for children, even temporarily, and that it was greatly hoped that the charitably disposed who, on leaving this world, may desire to do something for little children, will remember that in *Page 256 this institution at least property is carefully looked after by those who give their time and attention to it. It also shows that twenty thousand dollars was received that year from the city of New York, in addition to over fifty thousand dollars from donations, subscriptions, legacies and dues from members. In that year there was paid for salaries and wages $32,179.03, and for board and clothing, medical attendance and medicine for children $9,680.40.
In the report for 1895, President Gerry states his views of the relation of the state board of charities to the defendant under the revised Constitution, and its effect upon it, as follows: "The people of the state of New York, by recent amendments to their Constitution, decided that the care and education of children are of paramount importance to the state. They enlarged the provisions for public education, and also lent strength and force to the numerous institutions conducted by individuals in a corporate form for the care, support, maintenance and reformation of the helpless and vicious. The state board of charities, composed of eminent individuals from different parts of the state, was invested with extraordinary powers; not simply for the maintenance of these institutions, but to insure the proper care and education of the children intrusted to them. Entirely unsectarian, conservative in its views and firm in its action when abuses present themselves, there is every reason to believe that this state board will give an impetus to child-saving work which will be felt by the people, the institutions and by the children alike, with most satisfactory results to each."
Section 194 of the Consolidation Act was amended in 1894 so as to compel the board of estimate and apportionment of the city of New York to include in its final estimate the sum of thirty thousand dollars for the uses and purposes of the defendant. This sum has been paid to the society annually during the years 1895, 1896 and 1897. The same provision is contained in the present charter of the city of New York. (§ 230.)
In 1896 a special appeal was made by the society for financial *Page 257 aid and for shoes and clothing for children, in which the president reviews the work of the society and says: "It relies on the voluntary contributions of the public for the support, care and maintenance of the children while temporarily in its custody. The public has never yet economized in donations to its needs, even when compelled to curtail those to other charities. With the money so given it feeds the hungry (often the starving), clothes the naked, and no child has ever been refused shelter or gone to bed hungry or uncared for within its walls. It cares for all the criminal children arrested or awaiting trial. It is in entire accord with the police, the city magistrates and the other branches of the city government. Indeed, it has well been termed by the grand jury a valuable adjunct to the latter. It is unsectarian, non-political, and its one aim is to help the children who are helpless."
The moving papers then assert that the society is a charitable and eleemosynary institution within the meaning of the Constitution and laws, and subject to the visitorial powers of the board of charities; that the defendant and its officers have refused and still refuse to allow the state board of charities to visit and inspect the institution, and have refused to recognize its rules or to allow it to have access to its grounds, buildings, books and papers.
The defendant, without denying any of the allegations contained in the moving papers, except that it is subject to visitation by the state board of charities, sets forth in great detail its particular work in an affidavit by its secretary and superintendent. It receives on commitment, subject to the order of the court, all children charged with the commission of crime; receives temporarily, subject to the order of the court, children who are the victims of physical violence or who are held as witnesses pending the criminal prosecution of an offender, and children who are witnesses to offenses. Children who have been victims of physical violence are furnished medical attendance by a skilled physician, assisted by a competent nurse. It receives under commitment children under the age of sixteen, who are not retained except temporarily, but who are subsequently *Page 258 placed in proper institutions for their support and maintenance. Isolated rooms are provided for those who may be found to be suffering from any contagious disease, with a skilled nurse in attendance. It receives and takes to court without delay any children who may be found in a state of destitution, for disposition by the court. It has a wagon and team which are in charge of its officers or employees, and transports the children to and from the building where the courts are held. It maintains two officers in every police court who, upon the order of the magistrate, investigate applications for the commitment of children and make reports thereon for the information of the magistrate. It is permitted to receive children upon commitment at its own expense. When orders are made requiring "pecunious" parents to appropriate a certain portion of their earnings for the support of their children committed at its request to other institutions, the society receives the money and pays it to the comptroller. In case of disobedience to orders, it enforces them by prosecution. It advises with various institutions having charge of children as to the circumstances of the families, in the event of application being made for their discharge. It maintains a complete system of records of children who pass through its hands, which are the subject of reference by the police and city authorities. It prepares a brief for the district attorney's office where indictments are found, secures the attendance of witnesses and assists the district attorney in procuring and preserving evidence. It defends the custody of children committed to institutions through its instrumentality. The thirty thousand dollars a year it receives from the city of New York is applied to the uses and purposes of the society, but not for the support, education, maintenance or care of the children. It was originally organized by special charter, but is now incorporated under article five of the Membership Corporations Law, and possesses similar powers as to children as are possessed by societies for the prevention of cruelty to animals.
The only question presented by this appeal is whether the state board of charities is authorized and required to visit and *Page 259 inspect the institution known as the New York Society for the Prevention of Cruelty to Children. To its proper determination a brief reference to the provisions of the Constitution and the statutes relating both to the state board of charities and to the defendant, seems necessary.
The board of state commissioners of public charities was first established by chapter 951, Laws 1867. That act authorized and required the commissioners, at least once in a year, and as much oftener as they deemed necessary, to visit all the charitable and correctional institutions of the state, excepting prisons, receiving state aid, and to ascertain certain facts particularly set forth in the statute which need not be stated in detail.
By chapter 571, Laws 1873, the duties and powers of that board were defined and enlarged, and its name changed to "the state board of charities." The board or any of its commissioners was thereby authorized, whenever they deemed it expedient, to visit and inspect any charitable, eleemosynary, correctional or reformatory institution in the state, excepting prisons, whether receiving state aid or maintained by municipalities or otherwise. This statute remained unrepealed and was in force when the Constitution was amended in 1894.
The Constitution, as amended in that year, declares that "The legislature shall provide for a state board of charities, which shall visit and inspect all institutions, whether state, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary, correctional or reformatory character," including reformatories except those in which adult males convicted of felony shall be confined, and also excepting institutions which are subject to the visitation and inspection of the state commission in lunacy or the state commission of prisons. It then provides the manner in which the board shall be appointed, preserves the existing laws relating to such institutions, their visitation and inspection so far as they are not inconsistent with the provisions of the Constitution, and provides that the visitation and inspection therein provided for shall not be exclusive of other visitation and *Page 260 inspection then authorized by law. It also declares: "Payments by counties, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the state board of charities. Such rules shall be subject to the control of the legislature by general laws." It continues the existing state board of charities, and provides that the legislature may confer upon the board any additional powers that are not inconsistent with other provisions of the Constitution.
By chapter 771, Laws 1895, the laws relating to the state board of charities were revised and consolidated. That statute makes it the duty of the board to visit, inspect and maintain a general supervision of all institutions, societies or associations which are of a charitable, eleemosynary, correctional or reformatory character, whether state or municipal, incorporated or not incorporated, states in detail the nature and character of such inspection and supervision, and after mentioning some of the institutions subject to such supervision, adds this general provision: "And institutions, societies and associations, whether state, county, municipal, incorporated, or not incorporated, private or otherwise, which are of a charitable, eleemosynary, reformatory, or correctional character or design."
The legislature, by chapter 546, Laws 1896, passed a general act relating to state charities, the provisions of which, so far as they relate to this subject, are in substance like those of the Laws of 1895, and again after naming certain institutions, adds: "And all asylums, hospitals and institutions, whether state, county, municipal, incorporated or not incorporated, private or otherwise, except institutions for the custody, care and treatment of the insane, are subject to the visitation, inspection and supervision of the state board of charities, its members, officers and inspectors." *Page 261
Thus, we find that under the Constitution and statutes of the state, the board of charities is required to visit, inspect and supervise the defendant institution, if it is charitable, eleemosynary, correctional or reformatory in its character or design. The main contention of the appellant is that such is not the character or design of its institution.
The proper determination of that question involves an examination of the statutes under which the defendant was organized, its articles of association and the proof contained in the record as to its character and design, and the nature of its work as indicated by the statute, its charter and the acts and offices it performs. It is to be borne in mind that the question to be here determined is the character and design of the defendant, and not merely the powers which are conferred upon it, or the means which may be adopted by it to carry that design into effect.
The defendant was organized under chapter 130 of the Laws of 1875. The title of that act was, "An act for the incorporation of societies for the prevention of cruelty to children." It provides the manner in which and by whom such societies may be organized, and confers upon them the power to prefer complaints for the violation of any law relating to or affecting children, and to aid in bringing the facts before a court or magistrate. It then requires all magistrates and peace officers to aid them in the enforcement of all laws relating to or affecting children.
In pursuance of that statute the promoters of the defendant made and executed a certificate, in which it was stated that they desired to associate themselves together for the purpose of preventing cruelty to children, and that the particular business and object of the society was to prevent cruelty to children, and the enforcement, by all lawful means, of the laws relating to or in anywise affecting children.
Thus it is seen that the primary object of the institution was to prevent cruelty to children. It was only for that purpose that the institution could have been properly organized under the statute. It is true that it conferred upon the defendant *Page 262 the right to make complaints and furnish proof for the violation of any law affecting children, but obviously that right was given only as a means of effecting the primary purpose of the statute, which was to prevent cruelty to that class of the community. When we ascertain the manner in which this institution has been maintained and conducted, it corroborates our views and renders it quite obvious that its primary and only purpose was to prevent cruelty to children.
There is no dispute as to the manner in which this institution has been maintained and conducted. It is stated in the moving papers, no portion of which is denied except the conclusion of law as to the power of the board to visit and inspect the defendant. The defendant, however, sets forth in considerable detail the offices and acts it performs and the manner of their performance. It has been and is supplied with means to carry on and conduct its affairs by donations and contributions from benevolent persons, both by present gift and legacy, and by an annual appropriation of thirty thousand dollars, which is levied upon the taxpayers of the city of New York. During its existence, at an expense of more than three hundred thousand dollars, it purchased a site, constructed a building and furnished it. The building is seven stories in height. The third floor is used as a dining and play room, a reception room for the children and for matron's and attendants' rooms. The fourth and fifth floors are used for dormitories, for an infirmary and for nurses' rooms. Upon the sixth floor are a kitchen, laundry and nurses' quarters, and the top floor is an open playground for children. It has appliances for cleansing the children who are received at all hours of the day and night, and who are furnished with proper food, shelter, medical attendance and medicine during the period required for their permanent location elsewhere.
Among other acts and offices performed by the defendant, it supplies children with temporary relief and with clothing; affords temporary relief to destitute families and their children, provides them with medical attendance, pays the wages and *Page 263 salaries of its numerous employees and assistants, amounting annually to many thousands of dollars, and performs other acts to prevent cruelty to the children of the city of New York.
As there is no dispute as to the facts which disclose the defendant's purpose and the methods it employs to effectuate the design of its organization, the question is presented whether, when its acts and methods are considered in connection with the statute and its certificate of organization, they show that its character and design is charitable, eleemosynary, correctional or reformatory. When thus considered it is manifest that the primary and fundamental purpose and design of this institution and of its promoters was to prevent cruelty to the children of the city of New York.
The statute authorized the defendant's incorporation but for one single purpose, which was to prevent cruelty to children. While it also conferred upon such an institution the power to make complaints and to aid in bringing the facts before a court or magistrate, yet, obviously, that power was not the sole right intended to be conferred. The certificate filed by the defendant expressly declares its purpose and the desire of its promoters to be to associate themselves together for the purpose of preventing cruelty to children, and that its particular object is the prevention of cruelty to children and to enforce by all lawful means the laws relating to or in any way affecting children, thus showing that the first and important purpose of its organization was to prevent cruelty to children, and that that purpose might so far as necessary be accomplished by enforcing the laws relating to them. It is manifest that the last clause of this provision was not intended to limit the general purpose to the means specified. It was one of the means that might be employed, but not the only one.
The work of the defendant is supported and maintained by gifts from benevolent and charitably disposed individuals, and the surrender of a portion of the funds raised by the city of New York to aid or sustain its various charitable institutions. (Laws 1882, ch. 410, as am. by chs. 25, 336, L. 1894; charter Greater New York, § 230.) Therefore, that the funds *Page 264 employed by the defendant in its work were by their donors, both individual and municipal, intended as charities, there can be no doubt.
When we consider that the defendant, in executing the purpose of its organization, clothes the naked, shelters the houseless, feeds the hungry, defends the defenseless, heals the sick and finds homes for the homeless, it is difficult to believe that in character and design it is not charitable. Still, we are told that the sole purpose of its organization was that it might act as a governmental agency to aid in the enforcement of the criminal law, and that all its charitable acts and benefactions were mere incidents to that purpose. I fancy if, at the incorporation of the defendant, its worthy and generous president and the band of benevolent and charitable persons who were associated with him had been told that the sole purpose of its organization was to collect fines, enforce the criminal law and assist the district attorney, their surprise would have been simply confounding, and such a statement would have been denied with an energy characteristic of the president and his associates. To them such a claim would then have been as repugnant as it is unfounded.
Moreover, if it be true that this institution is not that embodiment of a noble charity claimed by its president and other officers when appealing to a charitable public for assistance, then their appeal was based upon an assurance which was unfounded, and, consequently, untrue. Our respect for the individuals who have inaugurated and carried into successful operation this noble charity forbids us to believe them guilty of such an act. It was then believed by them to be, as we think it is, one of the most noble charities that exist in the state.
But it is said that the declarations of the defendant's officers as to its charitable character and design should have no weight in determining this question, as the views they then entertained were incorrect, and that, even though they were such as to induce the benevolent to aid in what was denominated "a noble charity," yet their declarations should be utterly disregarded. *Page 265 We cannot assent to that proposition. Obviously, the promoters of this institution, who were all men of rare intelligence and some of them of eminent legal ability, correctly understood its character and design, and to now say they did not is to cast distrust either upon their intelligence or their integrity.
Any construction of the statute which would limit the purpose of the defendant solely to the execution of the criminal law as a governmental agency, is too narrow to meet with our approval. If the enforcement of the criminal law was the sole purpose of the defendant's organization, it is difficult to discover the necessity for nurses, physicians, matrons and attendants, the erection and maintenance of large and expensive buildings and many other acts and things which are employed and done by the defendant in its benevolent work for the rescue of the miserable and suffering children of a great city.
Besides, if such had been the object of the statute, its title would have been "An act to authorize the organization of corporations to aid in the enforcement of the criminal law." With that title thus showing that such was the plain purpose of the law, the inquiry would at once arise by what authority and under what law was a corporation organized under such a statute justified in furnishing houses for shelter, physicians, medicine and nurses for the sick, food and clothing for the hungry and destitute and naked. None can be found. To justify the acts of the defendant and the manner in which it has executed the trust confided to it by a generous public and a liberal municipality, it must rely upon the statute as it is, and it must be construed as authorizing the noble charity which its officers described when they sought aid for its support, and which it has been declared to be by the chief executive of the city whose taxpayers so largely contribute to its maintenance. Otherwise, they have, by a misappropriation of the funds placed in their hands, been guilty of a breach of the trust reposed in them by a confiding public.
The claim that the allusion which is made by the respondent *Page 266 to the declarations of its officers as to the charitable character of the defendant is "to capture the rabble," naturally provokes the inquiry whether such was the purpose of its officers when they made those declarations. We think not, but that they were the sincere expressions of intelligent and honest minds to correctly represent the character of the institution, and the design of those who were instrumental in its inception.
To sustain the contention of the appellant it is urged that two classes of supervision could not have been contemplated by the members of the constitutional convention or by the legislature. The answer to this argument lies in the fact that the Constitution expressly provides that the visitation and inspection by the state board of charities provided for by the Constitution, shall not be exclusive of other visitation and inspection authorized by law.
It is also claimed that as the acts of charity which are performed by the defendant are temporary and dispensed to the many instead of the few, its design is not charitable. The logic of this contention is not apparent. Can it be properly said that an institution which dispenses its charity among the many, and for a short period of time, is less a charitable institution than one which aids a lesser number for a longer time? We think not. The charity of the former may be of more general application than that of the latter, but it is none the less a charity.
It is likewise argued that the fact that its agents are made peace officers is controlling evidence that the defendant is a mere governmental agent and has none of the attributes of a charitable institution. To this we cannot yield our assent. The necessity for their being made peace officers is obvious. The class of children which the defendant seeks to benefit is found in the slums and dens of a metropolitan community. They are oftentimes surrounded by criminals and desperate and dissolute men and women. To effect the rescue of these children it is oftentimes necessary that the defendant's agents shall have the power to arrest them or the persons by whom they are detained, and, hence, the powers of a peace officer *Page 267 are required to accomplish its design. Otherwise it could not rescue the little victims of cruelty, and its efforts would be futile. That the power of peace officers is conferred upon its agents in no way indicates that the enforcement of the criminal law was the defendant's only purpose. What it does indicate is that by reason of the conditions by which they are many times surrounded, such authority is necessary to enable it to pursue the charitable work of rescuing unfortunate children from their environments of cruelty and brutality. Obviously the purpose of the statute was not to enable such agents to act as peace officers in the enforcement of the law of the state, but the power was conferred as an additional means by which the defendant could accomplish the general purpose of its organization. In other words, it was a provision of convenience or necessity and does not determine the character of the institution. The important purpose of this law, together with the laws authorizing the defendant's organization, is not to enable the defendant to aid the police department of New York in administering the law, while the prevention of cruelty to children is a mere incident; but the prevention of cruelty to children is the primary purpose, and the aid which it renders the police department in preventing such cruelty is incidental merely to such principal or primary object.
Again it is said: "The public-spirited citizens, who are the officers of the society and who have given many years of patient and unselfish toil to building up a most praiseworthy and indispensable institution, naturally resent unnecessary interference with their laudable work." That any such interference has been attempted or contemplated nowhere appears, and it may here be said that this feeling cannot have long existed as is manifest from the statement of its president, that "The people of the state of New York, by recent amendments to their Constitution, decided that the care and education of children are of paramount importance to the state. They enlarged the provisions for public education, and also lent strength and force to the numerous institutions conducted *Page 268 by individuals in a corporate form for the care, support, maintenance and reformation of the helpless and vicious. The state board of charities, composed of eminent individuals from different parts of the state, was invested with extraordinary powers, not simply for the maintenance of these institutions, but to insure the proper care and education of the children intrusted to them. Entirely unsectarian, conservative in its views and firm in its action when abuses present themselves, there is every reason to believe that this state board will give an impetus to child-saving work which will be felt by the people, the institutions and by the children alike, with most satisfactory results to each."
The purpose of the Constitution and statutes, continuing and defining the duties of the state board of charities, as was said by this court in People ex rel. N.Y. Inst. for Blind v. Fitch (154 N.Y. 14), was to require a close and more efficient supervision of these institutions, and they were adopted in response to a public sentiment which existed throughout the state at the time. Their purpose was not only to secure the proper expenditure of the public money of the state and different municipalities, but also to protect the generous and charitable by requiring their benefactions to be properly devoted to the particular purpose for which they were intended, and thus that the contemplated recipients should receive the benefactions that were designed for them, at least in the case of institutions which are supported and maintained, wholly or partly, by the state, or any of its political divisions or municipalities.
But we have nothing whatever to do with the question whether the constitutional amendment and the statutes relating to this subject are wise or unwise, desirable or undesirable, beneficial or harmful, but the question before us is what is the law, and when ascertained it is our plain duty to apply it as we find it to the undisputed facts. When this is done, but one result can follow. If the rules and requirements of the state board of charities are supposed to be improper or harmful to the defendant, the remedy lies with the legislature and *Page 269 not with the courts. Not only by every consideration of reason and propriety must the defendant be regarded as an institution which is partly if not wholly charitable in its nature and design, but it clearly falls within the term "charitable institutions," as it has been defined and applied in a great number of cases by our own courts and those of many other jurisdictions.
We, however, deem it unnecessary at this time to review the cases upon this subject, as we have so recently examined them that it would be a work of mere supererogation. When the cases referred to in the opinion in People ex rel. N.Y. Inst. forBlind v. Fitch (supra) and the cases cited in this case by the learned Appellate Division are examined, it will be found that they fully sustain the decision of that learned court. Although it has sometimes been difficult to define the word "charity" so accurately and acceptably that no doubt could arise as to its application, yet we think that the definition given by Judge GRAY in Jackson v. Phillips (14 Allen, 539) is correct, that it should be followed in this case, and that it fully justifies the action of the court below. In that case the learned judge, after a careful and painstaking examination of many cases where the question of what constituted a charity was involved, and of the various definitions which had been given by learned judges and commentators, said: "A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government."
Moreover, the question whether the defendant is a charitable institution does not seem to be an open one. We think the decision of this court in People ex rel. N.Y. Inst. for Blind v. Fitch (supra) is controlling in this case. It was there held that the word "charitable," as used in the Constitution and *Page 270 statutes subjecting charitable institutions to the supervision of the state board of charities, is to be given its usual and ordinary meaning, and that it is not necessary that an institution should be wholly charitable to fall within their provisions, but it is enough if the institution is partly charitable in its character and purpose. Giving to the word "charitable" its usual and ordinary meaning, it is obvious that the defendant is a charitable institution within the meaning and intent of the Constitution and statutes, or at least that it is partly charitable in its character and design.
The claim that all the charitable acts and benefactions of the defendant are mere incidents to the purpose of executing the criminal law, cannot, and we think ought not to, be sustained, not only because such was not the intent and purpose of the statute and the organization of the defendant, but it was not the intention of the benevolent and philanthropic citizens who procured it. Their object was to inaugurate and maintain a benevolent and charitable institution for the benefit of an unfortunate and suffering class of the community in which they live. Its purpose was to rescue miserable and unfortunate children from the cruelty to which they were subjected, shield them in the future by securing for them places where they might be cared for until they could protect themselves, thereby relieving them from the brutality and noxious influences by which they were surrounded, and thus enabling them to become respectable members of society. If an institution with such a purpose and performing such offices is not charitable in its character and design, pray, what is charity? We cannot accept the contention of counsel that charity has become so scientific as to not mean charity at all.
The contention that the fact that the board of charities has not hitherto visited and inspected the defendant is evidence that it was not subject to such supervision, is, under the circumstances, entitled to little weight. It was not until about 1894 that this question was agitated by the public press, and petitions addressed to the constitutional convention from every part of the state were presented, calling attention *Page 271 directly to the necessity for an improved, more rigid and more general supervision and visitation of such institutions. That at that time the question had become one of public interest is manifest not only from the public prints of that date, but also from the proceedings of the constitutional convention. To carry into effect a general and public desire for closer public supervision, the constitutional convention proposed the amendment to which we have referred, and it was adopted by the people. That amendment came with a force and meaning which called the attention of the board sharply to its requirements and the duties that it imposed. It was when the people and the legislature had thus spoken in no uncertain terms and declared the duties and powers of the board clearly and emphatically, that it sought to comply with the requirements of the Constitution and statutes and with their spirit and purpose. But if it were assumed that the present board of charities or its predecessors in office had been lax in the discharge of their duties, it in no way changed the Constitution or statutes which imposed them. Neglect of duty upon the part of public officers can hardly be held as evidence of the meaning of a statute or constitutional provision, nor relieve them or their successors from the discharge of a plain public duty. (People ex rel. N.E.D. Meat Co. v. Roberts, 155 N.Y. 408,415; People ex rel. Eckerson v. Zundel, 157 N.Y. 518.)
Nor do I see any force in the contention that the provision of chapter 553, Laws of 1890, which exempts the defendant from taxation, is evidence that it was not an institution of a charitable, eleemosynary, correctional or reformatory character or design. That the act was procured by the defendant is plainly shown by the record. It was not, however, exempted from taxation upon the ground that it was a governmental agency of the state or city, but was classified with other charitable and benevolent associations. Thus, the action of the defendant in procuring this legislation not only indicated that it intended to procure its exemption from taxation, but the record shows that its avowed purpose was to secure and *Page 272 that it secured such exemption upon the express ground that it was a charitable institution, and should be classified with other corporations of that character and exempted upon that ground.
Counsel for the defendant insists that the authorities cited by the court below, wherein it was held that societies to prevent cruelty to animals were of a charitable character, have no application here, and that those cases are clearly distinguishable from the case at bar. We not only find no sufficient ground upon which to base any such distinction, but the defendant seems to have entertained a contrary view, as it distinctly states in its opposing papers that while it is not associated with societies for the prevention of cruelty to animals it possesses similar powers as to children.
The importance of this question may, perhaps, be more fully appreciated when we remember that there are now at least twenty such societies organized in the state which expend annually for this charity in the neighborhood of a quarter of a million dollars, that they affect at least fifteen thousand children during the same period, and, as indicated by the past, that it is at least probable that such a society will soon be organized in nearly every county in the state.
Moreover, it is extremely difficult to discover any authority for the organization of a private corporation to act as a ministerial or administrative officer of the state or of any of its political divisions or municipalities for the execution of the criminal or other laws of the state. (Fox v. M. H.R.H.Soc'y, 25 App. Div. 26.) If the defendant is held to be exempt from such visitation, then all other institutions, similar in character and purpose, must likewise be excepted from the operation of the Constitution and laws relating to the subject.
After a careful examination of all the questions presented in this case, we are unable to reach any other conclusion than that the defendant is subject to the inspection and visitation of the state board of charities, and that the court below correctly so held.
That those who inaugurated and carried into successful *Page 273 operation, and have maintained this institution which has awakened the interest and aroused to action the charitable and humane everywhere throughout the land, object to the supervision of the state board of charities, is somewhat difficult of explanation. But assuming, as we do, that the reason in no way involves a lack of integrity or uprightness on the part of those connected with it, still, it in no way changes the duty of the court. It has ever been the theory of our government that the rich and the poor, the powerful and the weak, the high and the low, all stand alike in courts of justice. Therefore, although the reputation of the promoters of the defendant may be a moral assurance that no supervision of the institution is necessary, it is not a legal one. Indeed, one of the greatest difficulties which has been encountered in this case is the unimpeachable and unstained reputation of its promoters. That fact has been kept prominently before us. It is sometimes difficult to divert the mind from accompanying facts and individual friendships, even when a mere principle of law is involved, especially when a situation is disclosed where its application may seem unnecessary or unimportant. That such considerations may sometimes unconsciously warp the judgment and dull the perception of the most upright and independent, cannot be denied. And, yet, it is our imperious duty to close our eyes to questions of policy and personal friendship and simply decide the question before us without any regard to whom it may affect.
An erroneous decision of this case may not be especially important or harmful so far as the mere denial of the right to visit the institution of the defendant is concerned. The injury of such a decision arises from the fact that it practically repeals or substantially ignores the Constitution and statutes by which it was sought to protect the people, the charitable or eleemosynary institutions of the state and the objects of their bounty. This was to be accomplished by a reasonable supervision by a board which, in the language of the defendant's president, is "composed of eminent individuals from different parts of the state," and which is "entirely unsectarian, *Page 274 conservative in its views and firm in its action when abuses present themselves." To again subject those institutions to the negligence or rapacity of careless or unscrupulous officers or employees is to be deplored and, if possible, avoided. Hence this court should hesitate before it disregards the plain and direct mandate of the people and of the legislature, their constitutional representative.
We are of the opinion that the defendant is an institution of a charitable or eleemosynary character, and that under the Constitution and statutes the state board of charities is required to visit and inspect it in the same manner as in case of other institutions of a similar character.
We think the order of the court below is right and should be affirmed.
O'BRIEN, J., reads for reversal; PARKER, Ch. J., concurs in memorandum; GRAY, J., concurs in memorandum, and BARTLETT, J., concurs; MARTIN, J., reads for affirmance, and HAIGHT and VANN, JJ., concur.
Orders reversed, etc.