(dissenting):
The New York Catholic Protectory is authorized by section 5 of chapter 448 of the act of 1863, incorporating it, to take and receive children between seven and fourteen years of age, who may be committed to its care as idle, truant, vicious or homeless, by order of any magistrate in the city of New York empowered by law to make committal of such children for any cause.
Section 1618 of chapter 410 of the Laws of 1882, provides for the committal of any child above the age of seven and under fourteen to the protectory, on the allegation that it was found in any street, highway or public place in this city in the circumstances of want and suffering or abandonment, exposure or neglect, or of beggary specified or defined in section 1463 of the act of which that section is a part.
Section 1463 provides that if any child shall be found in a state of want or suffering, or being abandoned or improperly exposed, or neglected by its parents or such other person as may have it in charge, or begging for alms or soliciting charity from door to door, or in any street, highway -or public place within the city, the recorder or any police justice shall, on complaint and competent proof, commit the child to the alms-house, etc.
Section 291 of the Penal Code, which was in full force and effect at the time of the passage of the act of 1882, just mentioned, provides that a male child actually or apparently under the age of sixteen, or a female child actually or apparently under the age of fourteen, who is found begging or receiving or soliciting alms in any manner or under any pretense, may be committed to any charitable, reformatory or other institution authorized by law to receive and take charge of minors, or may be disposed of as the child could be in cases of vagrants, truants, paupers or disorderly persons.
Subsequently, by chapter 46 of the Laws of 1884, the last mentioned section was amended by enlarging the causes for which commitments might be made, but retaining the provision that the commitment could be made to any charitable,' reformatory or other institution authorized by law to receive and take charge of minors, *133and also the right to make any disposition of the child which was then or thereafter might be authorized in cases of vagrants, truants, paupers or disorderly persons. These statutes seem to embrace two classes of children — those who are abandoned, improperly exposed or neglected by their parents, or found in a state of want and suffering, and therefore begging for alms by soliciting for charity from, door to door; and those who are professional beggars, either from vicious habit and inclination Or from employment for that purpose. And hence the two statutes may well stand together. It must be further observed that the language of section 291 {supra) is broad and comprehensive. “ Such court or magistrate may commit the child to any charitable, reformatory or other institution authorized by law” to receive and take charge of minors. The New York Catholic Protectory is authorized by law to receive and take charge of minors. But the section further provides, “ or make any disposition of the child which now is or hereafter may be ’ authorized in cases of vagrants, truants, paupers or disorderly persons; ” and, as we have seen by the act of 1863 (chap. 448), incorporating the New York Catholic Protectory (to which the name was changed by the act passed in 1871, chap. 83), to that corporation may be committed the care of children as idle, truant, vicious or homeless. So that it would seem to be within the authority of the committing magistrate, if a child be actually found begging, under the provisions of section 291 of the Penal Code (which are clearly in force yet), to dispose of it as a truant; and if that power existed, then the right to send to the protectory seems to be undoubted.
I have been unable, from an examination of this appeal, to arrive at the conclusion that the right of the protectory to receive children is limited to the cases, only, contemplated by the act of 1882, the provisions of which have been examined and considered by the presiding justice, and therefore I must dissent.
Upon a reargument of this case, the following opinions were delivered:
Daniels, J.:Under the act, chapter 448 of the Laws of 1863, the child, the right to the custody of which is in controversy, could, by the order of the magistrate, first to be made, be detained in custody no longer than *134“ until discharged or removed therefrom in the manner ” therein-after provided. The magistrate was then required immediately after making such order, to deliver to a policeman of the city a notice in writing addressed to the father of the child, or if there should be no father, then to the mother, or in case the child had no father or mother residing within the city, then to the lawful guardian of such child, or if it had no guai lian then to the person with whom the child, appeared by the examination or testimony, to reside, informing the person to whom it should be addressed of the commitment of the child, and that unless taken from the place to which it had been committed, in the manner prescribed by law, within twenty days after the service of such notice the child would be committed to the asylum of the corporation. If no such person could be found, then a certificate of that fact containing a description of the child was required to be posted conspicuously in the police station-house nearest the alleged residence of the child. The person to. whom such notice was directed to be given, was within the twenty days entitled to appear before the magistrate and make proof that the condition in which the child was found was not occasioned by the habitual neglect or misconduct of the parents, or lawful guardian, or custodian, of such child, and thereupon it was made the duty of the magistrate to direct the superintendent of the house of correction to which it had been ordered, to deliver the child to the custody of the party named in such direction. But if no such proof was made within the twenty days, then it was made the duty of the magistrate to make and transmit to the superintendent of the house of reception a notice in writing to that effect, and thereupon the child was directed to be removed from the house of reception to the asylum of the corporation. (Laws 1863, chap. 448, pp. 771-2.) According-to these provisions the house of reception was made a place of temporary detention, extending only so long as would afford time for the other directions contained in the statute to be carried into effect. If they were not complied with, then after the time had expired for complying with them, the detention of the child would be unlawful. And it was only by compliance with such directions that the detention could be made permanent by removing the child from the house of reception to the asylum pursuant to the notice of the magistrate.
*135These provisions of tbe statute, prescribing the proceedings to be taken after the committal of the child to the house of protection under the order of the magistrate, were neither complied with nor in anyway observed. And if these provisions continued, and were at the time of the commitment of the child in force, it was unlawfully detained in the asylum and should have been discharged under the writ of habeas corpus. They were in form as well as language made a part of the consolidation act of the city of New York, enacted in 1882. (Chap. 410, Laws of 1882, §§ 1618-1623.) They were thus re-enacted after the enactment of the Penal Code, which by its own direction is to be deemed to have been enacted on the 4th of January, 1881, to take effect on the 1st of May, 1882. (Penal Code, § 727.) It is true that by the last paragraph of section 2143 of the consolidation act, the Penal Code is declared to have the same effect as if it were in fact passed after the consolidation act. But it could not have been intended by this provision that these other provisions inserted upon this subject in the consolidation act should be repealed or annulled by anything contained in the Penal Code. This act was enacted when the Penal Code was within the knowledge and was in the mind of the legislature. And these sections would not have been made a part of the consolidation act if it had been intended that the previously enacted Penal Code should annul or repeal them. They were considerately made a part of the consolidation act intending .that they should be observed and enforced. And the circumstance that this act was in this way subordinated to the Penal Code could not have been designed to defeat that intention. The only provision in the Penal Code relied upon as attended with a different result, is that which has been made by subdivision five of section 291. By that the magisti’ate before whom the child may be brought has been authorized to commit him or her “ to any charitable reformatory or other institution authorized by law to receive and take charge of minors.” But from what has been already said it could not have been intended by this direction and authority that the commitment should be absolute or permanent, where the law as it had been then enacted directed that it should be in effect temporary and conditional as that had been done by the act of 1863. This direction does not so conflict with these provisions in the act of 1863, and now contained in the consolidation act, as to *136produce a repeal by implication. It lias not directed that the commitment shall be absolute in tbe first instance, but merely that the magistrate may commit without declaring the form or time for which the commitment may be made, and consequently that must have been intended to be controlled by other statutes in force upon the subject. Both these provisions may well stand and be enforced together. The magistrate may commit and his commitment may at the same time remain conditional upon the notice being given of the commitment to the parent, guardian or other person with whom the child previously resided, and if neither could be found with the posting of the notice in the police station, and upon the result of the hearing to be had in case of an appearanee before the magistrate. The provision contained in the Penal Code proceeds upon this understanding of its effect; for the commitment is to be to an institution authorized by law to receive and take charge of minors. The person committed is accordingly to be sent to the institution in subordination to the law in this manner referred to. It was not designed to be changed or disregarded, but the law authorizing the institution to receive the child, was to be observed. The commitment was intended to be warranted so far and no farther than the authority of law here referred to sanctioned and provided for it. The institution to be mentioned in it was to be one which a law, other than the Penal Code, had authorized to receive minor children, and it was in obedience to that authority that the commitment was allowed to be made. By no construction can this provision of the Penal Code repeal the provisions of the act of 1863, inserted in and made a part of the consolidation act of 1882; for one act of the legislature is not allowed to repeal another by implication when both can be maintained and enforced together as these several statutory directions very clearly can be. (Hankins v. Mayor, 64 N. Y., 18, 22.) There is not the least impropriety, as the commitment is to be to an institution authorized by law to receive minor children, in concluding that the directions of that law shall be observed in making the commitment and in the following proceedings directed to render it absolute. The provisions contained in the consolidation act are local and special, while that made by this subdivision of section 291 of the Penal Code is general, and it is a rule of construction that u a special statute providing for a particular case or applicable to a *137particular locality, is not repealed by a statute general in its terms and application, unless tbe intention of tbe legislature to repeal or «Iter tbe special law is manifest, although tbe terms of tbe general act would, if taken strictly and but for tbe special law, include tbe case provided for by it.” (Van Denburgh v. Village of Greenbush, 66 N. Y., 1, 3, 4.) Under this rule, also, tbe special provisions on this subject should still be maintained. They were enacted to secure an important object. It was to prevent parents, guardians and other persons, from being summarily deprived of them children without affording them an opportunity to be beard. Tbe right to tbe custody and control of a child is an important one secured and carefully guarded by tbe law, and its forfeiture is only permitted when that may be required for tbe protection, security and well being of tbe child, and tbe law has wisely if not necessarily provided for a hearing before a forfeiture of this right has been sanctioned. It is not probable that tbe legislature intended by tbe enactment of tbe Penal Code to abridge or impair this right of custody, but rather that it designed that it should remain under the protection of tbe laws as they bad been enacted to secure this end. Certainly without a clear indication of tbe intention that this right should be divested without a bearing of tbe person entitled to assert it, tbe law should not be held or construed to allow that to be done. But doubtful or ambiguous language should be so construed as to permit tbe continuance of this right.
As already has been directed tbe order should be reversed and an order entered directing tbe delivery of this child to tbe relator. But while this lias been found to be tbe necessary effect of tbe law no doubt is intended to be intimated that by an observance of tbe requirements of tbe law, which was omitted in this case, tbe authority exists for committing the custody of such children as are included within tbe statute to tbe care, custody and guardianship of this institution.
Davis, P. J.:As tbe result of tbe opinion of Daniels, J., conforms with that of a majority of tbe court on tbe former argument, I have no reason to doubt its correctness and therefore concur in it.
Order reversed; order entered directing tbe delivery of tbe child to tbe relator.