94 Kan. 115 | Kan. | 1915
The opinion of the court was delivered by
Mary Turner, a girl fifteen years of age, by her father and next friend, alleges that she is restrained of her liberty by certain officers of Shawnee county, acting under color of authority from the probate court, who are unlawfully holding and imprisoning her “solely under and by virtue of'an insufficient complaint and void' warrant, and under a void order and commitment committing said Mary
The transcript of the evidence shows abundant ground for the finding already mentioned touching the delinquency and conduct of the child. The probation officer testified that he informed the judge “that she would not be here for trial if we did not take her into custody.” The copy of the warrant attached to the petition accords with the allegation of the latter, that the girl was imprisoned and deprived of her liberty solely upon a warrant based upon a complaint verified on information and belief.
It must be taken as true, therefore, that while the parents appeared without service of process upon them, the daughter was taken into custody by the probation officer on the strength of the warrant based upon the complaint, both of which have already been described. It must also be taken as true that the intention of the officers is to place the child in the industrial school as indicated.
Section 8680 of the General Statutes of 1909, enacted in 1889, provides that probate courts shall have power, to commit to the school in question: “Third, any girl under sixteen years of age who is incorrigible and habitually disregards the commands of her father, mother or guardian, and who leads a vagrant life, or resorts to immoral places or practices, and neglects or refuses to perform labor suitable to her years and condition, and to attend school.” The only other grounds applicable are liability to punishment by imprisonment under any existing law of the state. Section 2782 makes it a misdemeanor punishable by fine or imprisonment or both to carry on one’s person knucks in a concealed .manner. But there is no evidence whatever that Mary Turner made any attempt
Section 1 of the juvenile court act passed in 1905 (Laws 1905, ch. 190, Gen. Stat. 1909, §§ 5099-5118) provides that the probate judge shall be in charge of the juvenile court, which shall have authority among other things, to issue all process necessary in any case “the same as justices of the peace are authorized to do in misdemeanors.” All writs and process are to be served by the probation officer. Section 2 defines a “delinquent child” as one who, among other things, is incorrigible or knowingly associates with thieves, vicious or immoral persons, or is growing up in idleness or crime. Section 3 provides that any probation officer may, without warrant or' other process, at any time until the final disposition of the case of any child over whom the court shall have jurisdiction, take the child placed in his care by the court and bring the child before the court, “or the court may issue a warrant for the arrest of any such child; and the court may thereupon proceed to sentence or make such other disposition of the case as he may deem best.” Section 4 authorizes a petition in writing when filed to be verified upon information and belief. Section 5 requires that unless the parties voluntarily appear in court, it shall issue summons requiring the child and the persons having custody thereof to appear. If the person so summoned fails, without reasonable cause, to appear and abide the order of the court or to bring the child, he may be proceeded against for contempt, or a warrant be issued against such person “or against the child itself.” Section 12 provides for an appeal from the
At first blush the claim of the petitioner, that his daughter is unlawfully restrained and was unlawfully arrested, appeals strongly to one’s sense of liberty, but a close examination into the matter discloses that the juvenile court, while a modern institution, is provided for in numerous acts which have been before the courts for interpretation. In a general way, it may be said that these statutes, instead of attempting to punish juvenile offenders for misconduct, criminal or otherwise, try to remove them from the path of temptation, and by preventive and corrective means seek to direct them in the paths of rectitude. It is an assertion upon the part of the state of its right to exercise its power as parens patries for the welfare of such of its minor citizens as are deprived of proper parental control and oversight, and are disposed to go wrong. These words, meaning “Father of his country,” were applied originally to the king, and are used to designate the state, referring to its sovereign power of guardianship over persons under disability. When this country achieved its independence, the prerogatives of the crown devolved upon the people -of the states. “The sovereign will is made known to us by legislative enactment. The state, as a sovereign, is the parens
“And the chancery jurisdiction of the courts of the United States, as granted by the constitution, extends only to cases over which the court of chancery had jurisdiction, in its judicial character as a court of equity. The wide discretionary power which the chancellor of England exercised over infants, lunatics, or idiots, or charities, has not been conferred. These prerogative powers, which belong to the sovereign as parens patrise, remain with the States.” (p. 393.)
While the old Spartan theory that the child and the citizen are for the state has been reversed by our civilization, which regards the state as an institution for the good of the child and the citizen, still the state as parens patrise may exercise over the child parental care and authority in order that he may receive the highest good from the state and achieve the best results for himself thus guarded and directed in youth. As said in Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422:
“Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated, but one of the most important duties which organized society owes to its helpless members is performed just in the measure that the law is framed with wisdom and is carefully administered.” (p. 665.)
The authorities are nearly all to the effect that statutes of this kind are parental rather than criminal, so
The following are among the numerous authorities touching the interpretation and effect of similar statutes: Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422; Commonwealth v. Fisher, Appellant, 213 Pa. St. 48, 62 Atl. 198, 5 Ann. Cas. 92, and Note, 96; Ex parte Januszewski, 196 Fed. 123; In re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A., n. s., 886, and Note; Lindsey v. Lindsey, 257 Ill. 328, 100 N. E. 892, 45 L. R. A., n. s., 908, and Note; Hunt v. Wayne Circuit Judges, 142 Mich. 93, 105 N. W. 531, 7 Ann. Cas. 821, and Note, 831, 3 L. R. A., n. s., 564, and Note; Pugh v. Bowden, 54 Fla. 302, 45 South. 499, 14 Ann. Cas. 816, and Note, 819 ; 1 Wharton’s Criminal Law, 11th ed., §§ 368-375.
The state had the same right to bring Mary Turner before the juvenile court that her parents had, and when once there by proper compulsion of either sort of parental authority the court had jurisdiction to proceed as it did.
Finding in the record no infringement upon her legal and constitutional rights the petition for her discharge is denied.