Calendar No. 24,070 | Mich. | Jun 8, 1910
(after stating the facts). If this was a proceeding brought to determine the right of a parent or guardian to the care and custody of a child, it would be urged with propriety that the determination of the right by a court of competent jurisdiction ought not to be reviewed or set aside by another court exercising the same jurisdiction upon the same facts. In re Sneden, 105 Mich. 61" court="Mich." date_filed="1895-04-16" href="https://app.midpage.ai/document/in-re-sneden-7937622?utm_source=webapp" opinion_id="7937622">105 Mich. 61 (62 N. W. 1009, 55 Am. St. Rep. 435). In the case supposed an appellate court would not disturb a finding of fact based upon competent testimony (Carpenter v. Carpenter, 149 Mich. 138" court="Mich." date_filed="1907-07-01" href="https://app.midpage.ai/document/carpenter-v-carpenter-7944331?utm_source=webapp" opinion_id="7944331">149 Mich. 138 [112 N. W. 748]; Smith v. Kiel, 150 Mich. 417 [114 N. W. 229]), and any court would be bound to consider the interest of the child in awarding custody to either claimant. It is true the person suing out the writ describes herself as guardian of the child. This is of no significance except as showing her interest. Any person may make the application. 3 Comp. Laws, § 9860. The issue here does not arise between persons claiming the right to custody of a child. The issue is between the child and the person who detains her, between the child and the law and procedure invoked as authority’for her detention.
It is alleged in the petition that the child is imprisoned by an officer, and that she is not one of the persons mentioned in 3 Comp. Laws, § 9859. In such a case it is no bar to habeas corpus proceedings in this court that some other court exercising a like jurisdiction has refused to discharge the imprisoned person. And no finding or order of such other court in such a proceeding can be relied upon in this court as authority for the detention. The single question which is presented for determination, therefore, is whether the probate court for Wayne county had authority to commit this child. We assume, for the purposes of decision, that she is charged before that court with having committed a felony in the county of Wayne, and that, if she were more than 14 years of age, she might be tried for the offense charged in that county. She is not 14 years of age. Therefore she cannot be prosecuted for
A careful reading of the statute (Act No. 6, Pub. Acts 1907) passedat the extra session of the legislature leads us to the conclusion that the probate court for Wayne county is, in this case, without jurisdiction to make the inquiry and to thereafter dispose of this child as the result thereof may seem to warrant. The statute is in many respects one of uncertain meaning. It is, however, a general law in force in every county of the State. It appears to be contemplated that the probate court of each county shall have jurisdiction over the delinquent, dependent, and neglected children, or those charged as such, resident in the county. It is not always easy to determine the precise meaning which the legislature intends shall be given to the words “residence” and “resident” in a particular statute. With respect to the statute under consideration, we think it is reasonably clear that jurisdiction of the court does not depend upon the place where the alleged offense is committed, the commission of which is the basis for charging the child as delinquent. So long as the child may not be prosecuted for the crime, there is no good reason for saying that status, although depending upon the fact of a crime committed, must be determined in the county where the offense was committed. There is much reason for saying that a child resident in any county may be charged in that county as a delinquent, dependent, or neglected child upon facts none of which occurred in that county. Section 5 of the act provides that the sworn petition to be filed in the probate court shall set forth that the child is a “resident in said county,” with the facts which show that the child is a delinquent, dependent, or neglected child within the meaning of section 1 of the act. At the same time, it must be admitted that in other portions of the law language is employed which appears to support the idea that the probate court of the county in which the child shall be found or shall be apprehended has jurisdiction.
We do not hold or intimate that a child may not become resident in a county, within the meaning of this law, independent of the place of residence of his parents or guardian. We hold upon the facts of this case that Lois Mould was not, and is not, a resident in the county of Wayne within any meaning which may be given to the words of the statute. She is described in the complaint as a resident of Livingston county. She went into Wayne county in obedience to the process of a court of record. She was resident in Livingston county, living there with her relatives, one of whom was and is, by order of the probate court of that county, guardian of her estate if not of her person. If her conduct in court in Wayne county was such that she may be charged with being a delinquent child, the necessary inquiry can as well be made in Livingston county, her status as well determined in that county. While the law is in a sense remedial in character, it is nevertheless a penal law. The essential thing to the child, and to the public, is the inquiry upon the result of which her status depends. It better accords with established notions of justice, and with the general purpose of this general law, to hold that the inquiry should be had in the county of her home rather than in a county in which she was never in any sense a resident. So much significance we feel bound to give to the language which requires the petition to show that the child complained about is
Upon the hearing, the child was given in custody to Miss Ada Freeman, the probation officer of Wayne county. An order will be entered requiring her to deliver the child to the petitioner upon request. The child was in the custody of petitioner and lived with her when she was summoned to appear as a witness in Wayne county. If there is apprehension that the child should not remain with her, the courts of Livingston county are open; and, if she is regarded as a delinquent child, a proper petition in the probate court for that county will institute the statute inquiry. We award no costs.