96 P. 563 | Idaho | 1908
This is an application by the father of Hazel Sharp for a writ of habeas corpus to secure her dis
“ (1) It is contrary to the provisions of Article 1, Section 7, of the Constitution of the State of Idaho.
“(2) It is contrary to Article 1, Section 13, of the Constitution of the State of Idaho.
“(3) It is contrary to Article 1, Section 18, of the Constitution of the State of Idaho.
“(4) It is contrary to Article 3, Section 16, of the Constitution of the State of Idaho.
“(5) It is contrary to Article 3, Section 17, of the Constitution of Idaho.
“(6) It is contrary to Article 5, Section 1, of the Constitution of Idaho.
“(7) It is contrary to Article 5, Section 13, of the Constitution of Idaho.
“ (8) It is contrary to Article 5, Section 21, of the Con-, stitution of Idaho.
“(9) It is contrary to Article 1, Section 6, of the Constitution of Idaho.
“(10) The said act is criminal in its nature, but denies to a person charged the right of a trial by jury; the right to a speedy and public trial; the right to process, or to appear and defend by person or counsel, and undertakes to deprive a citizen of the right of seeking protection in the Constitutional Courts of this state, and provides for no bail.
“(11) The said act embraces more subjects than are included in its title.
“ (12) It is not plainly worded but is ambiguous and uncertain.
*126 “(13) The act fails to provide any system of appeal, and undertakes to deny to persons charged any efficient or adequate appeal.
“(14) The act grants to probate judge absolute and sole jurisdiction, and jurisdiction not warranted by the constitution.
“ (15) It is unconstitutional and void for the further reason that it provides for the taking of children from their parents, even though such parents may be able, competent and worthy of their care and education.”
These questions have been reduced to the following propositions under which they have been argued by petitioner:
“I. Upon the grounds that the act is violative of the constitutional guaranties applicable to criminal procedure.
“2. That it improperly confers jurisdiction upon probate courts.
“3. Lack of or limiting right of appeal.”
The first contention made by petitioner’s counsel is that the act of March 2, 1905, entitled, “An act to provide for the care of delinquent children” (Sess. Laws 1905, p. 106), is in conflict with and in violation of secs. 6, 7, 13 and 18 of article 1 of the constitution, for the reason that it denies the right of trial by jury, speedy and public hearing, process for attendance of witnesses, the right to appear and defend in person and by counsel, and the right of bail, and that the proceeding is without due process of law.
We shall not go into a discussion of this question, or into any extended consideration of the distinction between this act and its purposes and provisions and that of the general spirit of the criminal law. These questions have all been so extensively, exhaustively' and lucidly considered and discussed by so many courts within recent years that we shall content ourselves with a citation of some of the authorities. We may premise our citation of authorities, however, by a general statement that this statute is clearly not a criminal or penal statute in its nature. Its purpose is rather to prevent minors under the age of sixteen from prosecution and conviction on charges of misdemeanors, and in that respect to relieve them
As late as 1905, the supreme court of Pennsylvania in Commonwealth v. Fisher, 213 Pa. 48, 62 Atl. 198, had under consideration these same constitutional objections to a legislative act providing for the care and custody of delinquent children, and in the course of its opinion, the court said:
“In pressing the objection that the appellant was not taken into custody by due process of law, the assumption, running through the entire argument of the appellant, is contended that the proceedings of the act of 1903 are of a criminal nature for the punishment of offenders for crimes committed, and that the appellant was so punished. But he was not, and he could not have been, without due process of law; for the constitutional guaranty is that no one charged with a criminal offense shall be deprived of life, liberty or property without due process of law. To save a child from becoming a criminal, or from continuing in a career of crime, to end in mature years in public punishment and disgrace, the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state’s guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty by confining it in his own home, to save it and to shield it from the*128 consequences of persistence in a career of waywardness; nor is the state, when compelled, as parens patriae, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there, and the court, with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved. If experience should show that there ought to be other ways for it to get there, the legislature can, and undoubtedly will, adopt them, and they will never be regarded as undue processes for depriving a child of its liberty or property as a penalty for crime committed.
“The-last reason to be noticed why the act should be declared unconstitutional is that it denies the appellant a trial by jury. Here again is the fallacy that he was tried by the court for any offense. ‘The right of trial by jury shall remain inviolate,’ are the words of the Bill of Rights and no act of the legislature can deny this right to any citizen, young or old, minor or adult, if he is to be tried for a crime against the commonwealth. But there was no trial for any crime here, and the act is operative only when there is to be no trial.”
To the same effect, see Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 935, 88 Pac. 609; Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388; Milwaukee Industrial School v. Supervisors of Milwaukee County, 40 Wis. 328, 22 Am. Rep. 702; Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N. E. 830; (and for exhaustive note on this subject, see pages 456 to 460 of 55 Am. Rep.); State v. North Dakota etc. Home Society, 10 N. D. 493, 88 N. W. 273; Reynolds v. Howe, 51 Conn. 472; Ex parte Liddell, 93 Cal. 633, 29 Pac. 251; Ex parte Nichols, 110 Cal. 651, 43 Pac. 9; State v. Phillips, 73 Minn. 77, 75 N. W. 1029; In re Mason, 3 Wash. St. 609, 28 Pac. 1025; In re Kelley, 152 Mass. 432, 25 N. E. 615; State v. Kilvington, 100 Tenn. 227, 45 S. W. 433, 41 L. R. A. 284; Matter of Knowack, 158 N. Y. 482, 53 N. E. 676, 44 L. R. A. 699; Jarrard v. State, 116 Ind. 98, 17 N. E. 912; State v. Brown,
Chief Justice Ryan of Wisconsin, in Milivaukee Industrial School v. Supervisors of Milwaukee County, in considering the constitutionality of an act somewhat similar to the one under consideration, said:
“When the state, as parens patriae, is compelled by the misfortune of a child to assume for it parental duty, and to charge itself with its nurture, it is .compelled also to assume parental authority over it. This authority must necessarily be delegated to those to whom the state delegates the nurture and education of the child. The state does not, indeed we might say could not, intrude this assumption of authority between parent and child standing in no need of it. It assumes it only upon the destitution and necessity of the child, arising from want or default of parents. And, in exercising a wholesome parental restraint over the child, it can be properly said to imprison the child, no more than the tenderest parent exercising like power of restraint over children. This seems too plain to need authority; but the cases cited for the respondent, and others, amply sustain our view.....It goes on the total failure of the parent to provide for the child. And it is difficult to comprehend the right of a'parent to complain, that the discharge by the state of his own duty to his child, which he has wholly failed to perform, is an imprisonment of the child as against his parental right in it.”
Although a child is in the care and custody of its parents, still the state assumes direction and control of its education to the extent of making its attendance upon the public schools compulsory, and that power is now recognized in almost every state in the union. In the exercise of this supervision and control on the part of the state, the child is not deprived of any constitutional or inalienable right, nor is the parent deprived of any right. On the contrary, the state is only demanding and enforcing obedience to both the natural duties and obligations of the parent or guardian as well as the legal duties and obligations demanded by society and the public welfare. It would be carrying the protection of “inalienable
It was seriously argued on the oral argument that this act has the effect of depriving a parent of the custody of his child without due process of law and in violation of his constitutional rights. On first blush, this contention might seem sound, but it will not bear investigation. In the first place, the order or decree of the probate court in such matters is one in personam, and acts upon the child alone. It is the paternal and benevolent hand of the state reaching out as parens patriae to take hold of the child during its minority for purposes of fostering, protecting and educating the child, and this power and authority and duty is intended to be exercised only in eases where the child is without the care and protection of a parent or guardian, or where the parent or guardian has become unable or neglects or refuses to control, manage, care for, educate and protect the child. In other words, this power and duty and obligation is exercised on the part of the state only in cases where the child is destitute of that care and protection to which it is entitled.
Now, as for the contention that the parent is deprived of the natural right to the custody and care of the child, we think that proposition is answered sufficiently and satisfactorily in this manner: If the parent objects to the child’s being taken care of by the state in the manner provided for by the act, he may appear and present his objection. If, on the other hand, he is not made a party to the hearing and proceeding, under all the recognized rules of legal procedure, he is clearly not bound by the judgment and none of his rights are precluded. If he desires to contest the state’s right to take the steps it has taken, he has his remedy in the courts to contest that right and adjudicate his own rights as fully and completely as if no order had been made with reference to the child. If his child were taken without any process whatever, or if it were kidnapped, he would have his remedy in the courts.
Passing now to the next contention made by petitioner to the effect that the jurisdiction here conferred upon probate courts is unconstitutional and in violation of sec. 21 of art. 5 thereof, in that it confers an unwarranted jurisdiction on the probate courts, we will briefly examine the constitutional jurisdiction conferred as compared with the jurisdiction granted by this act. Sec. 21 of art. 5, which confers jurisdiction on the probate courts, is as follows:
“The probate courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, and appointment of guardians; also jurisdiction to hear and .determine all civil cases wherein the debt or damage claimed does not exceed the sum of five hundred dollars, exclusive of interest, and concurrent jurisdiction with justices of the peace in criminal cases. ’ ’
Assuming for the purposes of this decision, which we do, that the power and authority granted by this act is purely judicial in its nature, still we are satisfied that it comes clearly within the constitutional jurisdiction of probate courts whereby they are granted original jurisdiction for the appointment of guardians. It is true that in ordering and directing a delinquent minor to be sent to the industrial school, the court is not appointing a guardian in the usual and ordinary way, and yet the effect is, and must of necessity be, that the superintendent, officers and instructors of the school, working under and by appointment and authority of the state, for the time being have the care, custody and nurture of the minor during its stay at the school. To this extent, the order of the probate court has the effect of appointing a temporary guardian for the person of the minor. This is no more, however, than the parent does for his child when he sends him away from home to boarding-school or college; or, indeed, during the day while the child is in the public school." The authority of the teacher in the public school is superior and paramount to that of the parent or guardian during school
In this connection it is further contended that the act is unconstitutional, for the reason that probate courts, as such, are courts of record, and that the procedure provided for in the delinquent children’s act is not the procedure of courts of record. We fail to see any merit in this contention, for the reason that if the act itself made no provision whatever for the keeping of the record, it would still be the duty of the probate court to keep a proper record of its proceedings in relation to all matters transacted under the provisions of the act, since that court is a constitutional court of record in all matters of guardianship and all other matters transacted in the probate department thereof. But sec. 2 of the act itself specifically provides that “The probate courts of the several counties in the state shall have jurisdiction in all cases coming within the terms and provisions of this act. Record books’shall be kept by the court for all cases coming within the provisions of this act, to be known as ‘The juvenile rec
It is next contended that the act is unconstitutional, for the reason that it does not provide an adequate remedy by appeal, or if it be held that it provides for any appeal, that it has undertaken to limit the right thereof. Sec. 3 of the act provides as follows:
“When the information or complaint so states a cause of delinquency under the provisions of this act, that the court may understand it, all irregularities or defects of form therein must be disregarded and all technical pleas or objections thereto, must be summarily disposed of by the court, and the court’s ruling thereon shall be final.”
Here it will be observed that the legislature simply undertook to make the ruling of the probate court final on such matters as it termed-“irregularities or defects of form,” or “technical pleas or objections.” Now, as to just what the legislature meant by those expressions would be a matter for judicial construction and determination. We take it, however, that it was simply a re-enactment of the old provisions of our statute to the effect that defects and irregularities should be disregarded that do not affect the substantial rights of the parties litigant. (Sec. 4231, Rev. Stat.)
Sec. 13 of the act provides that “all orders of final judgments made by any probate court or the judge thereof, under this act, may be reviewed upon questions of law only.” Counsel for petitioner insists that this limitation has the effect of making the decision or order of the. probate court final as to all the facts involved in the matter, and that it thereby abridges a constitutional right. Now, as we have above said, the parent or guardian cannot be bound by the order or
If it be argued that the infant should have the right of appeal and that such a right is a constitutional right, we answer by saying that the right would be of no avail to the minor who is being proceeded against, for the reason that he could not exercise it except by his parent or guardian or next friend. In other words, he himself, in his individual capacity, could have no standing in court on account of his minority, except through his legal representative. On the other hand, when the court undertakes to make any order or enter any judgment that is binding upon or affects the minor’s legal representative, either removing him as guardian or adjudging and decreeing his incapacity or unfitness for the office, or affecting any of the property rights of the ward, — then and thereupon the parent or guardian must be duly and regularly brought into court and have his day in court, and from the judgment or order entered, has his right :of appeal under sec. 4831, Rev. Stat. (See authorities last above cited.)
It is well enough, perhaps, to say here and now that the constitution grants no absolute right of appeal from an order or judgment of a probate court. See. 20, art. 5 of the state constitution provides that ‘ ‘ The district court shall have original jurisdiction in all eases both at law and in equity, and such appellate jurisdiction as may be conferred by law.” Now, we take it that the legislature might decline to confer any appellate jurisdiction from an order or judgment of a probate court (In re Estate of McVay, 14 Ida. 56, 93 Pac. 28), and if it should do so, we know of no power or authority to enforce such an assumed right or of the courts to intervene and
Counsel for petitioner lays particular stress on the provisions of see. 13 art. 5 of the constitution, which provides that the legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government, but that it shall provide a proper system of appeals, etc. Counsel argues that this section of the constitution has the effect of granting the right of appeal from judgments and decisions of probate courts, and that the legislature cannot limit or abridge that right. We do not think the framers of the constitution ever intended by adopting this section to confer the right of appeal as an absolute and unqualified right. It was rather, as we view the matter, the intent to leave the matter of appeals to the legislature. The cases and matters in which appeals might be prosecuted and also the practice and procedure was left to the legislature, and if it should see fit not to provide any method of appeal or should provide that appeals could not be
In concluding our consideration of this case, it is well enough to observe that the petitioner does not make any charge in this ease that his daughter was not in fact a delinquent child within the meaning and purview of the legislative act, nor does he make any contention that he has been improperly deprived of her custody and control, if the act is valid. The only contentions urged here have been that the legislative act itself is unconstitutional. We are,satisfied that the act is valid and was a constitutional exercise of the legislative will and judgment. The demurrer to the petition is therefore sustained, the writ is denied and the petition is dismissed.