Section J9 of chapter 659 of the Laws of 1910 provides as follows: “Medical examination of prostitutes. On and after the first day of September, nineteen hundred and ten, any person who is a vagrant, as defined in subdivision four of section eight hundred and eighty-seven of the Code of Criminal Procedure, or who is convicted of a violation of subdivision two of section fourteen hundred and fifty-eight ofi the Consolidation Act, or of section one hundred and fifty of the Tenement House Law, shall, after conviction, be taken to a room adjacent to the court room, and there be physically examined by a woman physician of the department of health detañed for such purpose. After such examination the physician making the same shañ promptly prepare and sign a written report to the court of the prisoner’s physical condition, and if it thereby appears that the prisoner is afflicted with any venereal disease, which is contagious, infectious or communicable, the magistrate shall commit her to a public hospital *622having a ward or wards for the treatment ■ of the disease with which she is afflicted for detention and treatment for a minimum period fixed by him in the commitment and for a maximum period of not more than one year; provided, that in casé a prisoner so committed to- any institution shall be cured of her venereal disease, which is contagious, infectious or communicable, after the expiration of the minimum period and before the expiration of the maximum period for which she was committed to such institution, she shall be discharged and released from custody upon the written order of the officer in charge of the institution.to which she was committed upon the certificate of a physician of such institution - or of the department of' health that the prisoner is free of any venereal disease which is contagious, 'infectious or' communicable. If, however, such prisoner shall be cured prior to the expiration of the minimum period for which she was committed she shall be forthwith transferred to the workhouse and discharged át the expiration of said minimum period. Nothing herein contained, shall be construed to limit the authority of a city magistrate to commit any prisoner for an indeterminate period to any institution now having áuthority by law to receive inmates for detention for a period of more than one year, ” '
Section 1458 of the Consolidation Act (Laws of 1882, chap. 410), referred to in the foregoing statute, provides as follows: “Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say: * * *
“2. Every common prostitute or nightwalker loitering or being in any thoroughfare or public place for the purpose of prostitution or solicitation, to the annoyance of the inhabitants or passers-by.”
In my opinion this section of the statute violates the provisions of article 1, section 6, of the Constitution of the State of New York and amendment 5 and amendment 14 of the Constitution of the United States because it requires the magistrate to commit the prisoner upon the report of a non-judicial officer of the • ascertainment of a non-traversable state of facts in an investigation made by him out of court.
*623■ In the opinion of Mr. Presiding Justice Ingraham he attempts to avoid this construction, first, by interpreting the statute as a health measure, and, second, by construing its mandatory language as permissive only. I regret that I am not able to agree with him. This is the first attempt made by the State to deal with an important question regarding the public health, not, as suggested by the learned counsel for the relator, in the interests of a small class of vicious men to preserve them from the ■ consequences of their evildoing, but of the whole community, for facts well known to the medical faculties indicate that a very large amount of the dread consequences of venereal disease is visited upon absolutely innocent persons, men, women and children, often upon persons who have themselves been continent, who acquire the disease or its sequelce without personal wrongdoing.
It is the duty of the courts to uphold the laws passed by the Legislature if possible, and especially legislation of the charactei of that under consideration, which, I agree, has for its main object the preservation of health. But however commendable the object sought to be attained, no law can be sustained which violates the fundamental constitutional.provision that no person shall be deprived of life, liberty or property without due process of law.
Section 88 of the act under consideration provides that “ Whenever, any person * * * is convicted in the city of * * * disorderly conduct that tends to a breach of the peace, or vagrancy, the magistrate before whom such conviction is had shall, if he do not suspend sentence and place on probation, impose upon the person so convicted one or other of the penalties herein provided. Upon a charge of vagrancy, if the person so ponvicted be a prostitute between the ages of sixteen and twenty-one, the magistrate may commit such person for not exceeding one year * * * [enumerating certain institutions].- All other persons convicted upon a charge of-vagrancy, including persons convicted as prostitutes, except those committed under section seventy-nine of this act, and not committed to a reformatory as herein above provided; shall be committed- in the boroughs of Manhattan, Brooklyn and The Bronx, to the workhouse on Blackwell’s Island, and in *624the other boroughs of said city to a- county jail, for the term of six months. Upon a charge . * * * of disorderly conduct that tends to a breach of the peace (except in the case where the commitment is made under section seventy-nine of this act) the magistrate may impose a penalty as follows: 1. Commit the person so convicted in the boroughs of Manhattan, Brooklyn and The Bronx, to the workhouse and in the other boroughs of the said city to a county jail or to said workhouse to be detained for the term of six months. 2. Commit the person so convicted in the boroughs of Manhattan, Brooklyn and The Bronx to the workhouse and in the other boroughs to, the county jails therein for a definite period not to exceed six months. 3. Impose a fine not exceeding ten dollars. *, * •■. 4. Require any person convicted of disorderly conduct which tends to be a breach of the peace, to give sufficient surety or sureties for his good behavior for a period of time to be recited in- the commitment of not more than six months. * *
That is, under section 88 a prostitute convicted of vagrancy under subdivision 2 of section 1458 of the Consolidation Act, who was not infected might have sentence suspended, be placed on probation, be committed for the term of six months or for a period not to exceed six months, be fined not exceeding ten dol-lars, or be required to give surety for good behavior for a period not exceeding six months, while under section 79 a prostitute who is convicted of vagrancy who was infected is required to be committed for á minimum period not fixed by the statute and a maximum, not exceeding one year. So that the magistrate might make the minimum period eleven months and twenty-nine days, and so the prisoner, if cured within said period, would not be discharged but merely transferred from the hosr pital to the workhouse or jail; that is, one prostitute convicted of vagrancy might be fined a dollar and could not be imprisoned for .more than six months, while the other must be imprisoned for a term which might, extend for. eleven months and twenty-nine days, and this difference in possible sentence is made to depend upon a fact not traversable, decided out of court by a non-judicial' officer, whose, written report is made conclusive upon.the magistrate.
The prevailing opinion construes the mandatory word of the. *625statute “shall” into the permissive word “may.” I think this construction is clearly against the legislative intent. Section 88, as shown above, gives the widest latitude to judicial discretion in the case of the healthy prostitute, but proceedings •under section 79 are expressly and explicitly excepted from said provisions. There is no alternative. The magistrate shall commit upon the written report of the physician if it “ thereby appears that the prisoner is afflicted, ” etc. This act was prepared and reported to the Legislature by the commission appointed pursuant to chapter 211 of the Laws of 1908. In its report the commission said under the heading “prostitution”: “ Women of this class are arrested upon various charges, such as vagrancy, soliciting for purposes of prostitution,- disorderly conduct, violation of the Tenement House Law, etc. *■ * * The magistrates differ widely as to the disposition of such cases.' It is a problem so old and so'difficult that there is of necessity a conflict of opinion as to how such cases should, be disposed of. At present, some magistrates pursue a practically consistent course of sending these women to the workhouse. Others quite as consistently impose fines, and others discharge, while nearly all place on probation some cases which suggest in their opinion possibilities of reform. * * * Instances have come to the attention of the commission where a prostitute has been fined many times and yet when she is committed to the workhouse, if that be her first commitment, she can be detained only five days, while on the other hand, another woman who has been convicted, perhaps for the first or second time, may be punished to an equal or greater extent than the constant offender. * * * The ■ difference of views of the magistrates as to the disposition of cases of this character leads to other results. If a magistrate has the reputation of sending these women to the workhouse, the public streets are much less patrolled by them than if the magistrate has the reputation of fining or discharging. Some .of the magistrates who commit to the workhouse fear that the severity of the punishment leads to a greater opportunity by police officers, because suck a woman will more readily accede to extortion where she fears that she may be imprisoned. "x" * * It is apparent that some step *626must be taken to deal more adequately and intelligently with this problem, and although the commission realizes that no law which can be devised at this time will solve the problem, nevertheless steps can be taken which may at least to some extent diminish the attendant evils. * * * We deem it ■ wise, .therefore, to recommend that in every case where a woman is convicted of an offense connected with prostitution, such woman must be examined by a woman physician detailed for that purpose by the board of health, and such physician shall certify to the magistrate the results of her examination. We recommend, .where such certificate shows that the woman has a venereal disease, that the magistrate shall be required to commit her for an indeterminate sentence of not to exceed one year. . * * * The magistrate should have the fullest power to deal with each case upon its merits, placing on probation if he thinks wise, or taking such other steps as he may deem proper, with the limitation, however, that he must commit to an institution in a case of disease as above described.”
An examination of the statute as passed clearly shows that it was drawn in view of the facts reported and upon the lines suggested. When we find in the report that wide discretion should be lodged in the magistrate, “with the. limitation, however, that he must commit to an institution in a case of disease as above described, ” and the statute as passed conforms to. the recommendation, it follows,, it seems to me, that we have no. right to construe mandatory into permissive language but must conclude that the Legislature, acting upon the report, meant • what it said in the language used, and there is no room for .construction. .
I cannot avoid the conclusion, therefore, that a woman coming 'within the provision of the section receives a sentence not . for the offense for which she was brought into court and upon which she has been convicted, but based upon her condition of health, in regard to which, she hasmot had a hearing, and that under such circumstances she may be detained of her liberty, cured or uncured, for eleven months and twenty-nine days, where another woman convicted of the same offense but not diseased can in no event be deprived of her liberty for more than six months. A person deprived of liberty upon facts not *627ascertained upon a hearing is so deprived without due process of law. It is no answer to say that in no case yet has the sentence of a magistrate exceeded six months as a minimum, for when the validity of an act is under consideration the court must “ consider not only what has been done under the law in a particular instance, but what may be done under and by virtue of its authority.” (Fisher Company v. Woods, 187 N. Y. 90.) The prevailing opinion alludes to section 887, subdivision 3, of the Code of Criminal Procedure (and the ..same provision is found in section 1464 of the Consolidation Act), “ a person who has contracted an infectious or other disease, in the practice of drunkenness or debauchery, requiring charitable aid to restore him to health,” is a vagrant. But section 890 requires him to ' be taken before a magistrate and this alleged condition is a traversable issue for section 891 provides: “If the magistrate be satisfied from the confession of the person so brought before him, or by competent testimony * * *" he must convict him.” It' is the absence of the requirement of competent testimony in the case at bar that affects the statute.
In the fundamental defect, namely, that the term of imprisonment depends upon a fact found out of court by a non-judicial officer, this legislation is similar to that condemned in Matter of Kenny (23 Misc. Rep. 9; affd. on the opinion below sub nom. People ex rel. Kenny v. Creamer, 30 App. Div. 624). See, also, People ex rel. Abrams v. Fox (77 App. Div. 245), .where the law under consideration in said' cases after amendment to meet the defects pointed out, was sustained. For the proposition that the fact that the object and purposes of an act are not penal but protective, does not take said act without the constitutional provision as to due process of law see People ex rel. Ordway v. St. Saviour’s Sanitarium (34 App. Div. 363).
For these reasons, and without considering the further objections to the legislation, ¡properly disposed of at the Special Term, I think the order appealed from was right and should be affirmed. . .
■ Dowling, J., concurred.
Order reversed, proceeding dismissed and relator remanded.