People ex rel. Tobano v. Governors of the House of Refuge

18 How. Pr. 409

• Court: New York Supreme Court
• Decided: December 15, 1859
• Status: Published

Opinion

James, Justice.

The only question presented for consideration, is the sufficiency of the excuse offered by the return for the non-production of the body of Thomas Tobano. The truth of the return not being controverted, it appears that the respondents have not at the time of granting the writ, nor at any time since, the custody or possession of the person named ; and although they had such custody at a time long prior to the granting of such writ, it does not appear that such custody was parted with in bad faith, or for the purpose of unlawfully restraining the said Thomas of his liberty, or of evading the command of said writ.

It is, however, insisted by counsel that the excuse is wholly insufficient; that the transfer of said Thomas to McDowell, was wholly without authority, illegal and void; that the managers of the House of Befuge, by the terms of their charter, could only put the said Thomas to employment within the premises of that institution, or bind him out to some person residing within the state; and that having sent him beyond the state, they should be compelled to produce him in answer to the command of the writ.

The statute of 1824, authorizes the managers of the House of Befuge to receive children convicted of vagrancy, and gives power to place them during their minority, at employment suitable to their years and capacities, and in the discretion of said managers, with the consent of said children, to bind them out as apprentices, servants, &c. The legal rights of the respondents, therefore, to place the said Thomas at employment is clear; and the question of binding him. was a matter wholly in their discretion. There is nothing in the act limiting the employment of such children to the premises of said institution, or their binding out to persons residing within the state, Such a construction would greatly circumscribe the institution in its efforts to care for the well being of those committed to its charge, without benefiting any one. The statute wisely gives to the board of managers a broad discretion in the matter, leaving to their determination the kind of employment and instruction, the persons with whom, and the place where it shall be given; and I can see no necessity of its being limited to this city or this state. . So long as the future well being of the child is considered, if suitable persons can be found out of the state, who will take charge of them, I see no legal objection to this selection.

In this case, the respondents made a lawful disposition of Thomas. For aught that appears or is produced, he is in the care and custody of a proper and suitable person. He is not now, nor was not at the time of granting the said writ, in the possession of the respondents; and this being so, the excuse for the non-production of the body is sufficient, and the writ should be discharged.