40 Wis. 328 | Wis. | 1876
We live in a time of inquiry and innovation, when many things having the sanction of time are questioned, and many novelties jarring with long accepted theories are proposed. In political science, there are those who would reduce government to a mere skeleton of absolutely necessary powers, purely political; and those who favor paternal government, recognizing in the sovereignty much of the authority of patriarchal rule. All this is seen chiefly in political discussions; "but the late reports show that these conflicting theories are finding their way into judicial tribunals. The business of courts, however, is not to correct, but to administer, the existing system of government.
Some authorities cited in this case, and the logical tendency of part of the argument, would go to question the right of the state to make involuntary provision for the care of the destitute, whom misfortune or folly have rendered incapable of caring for themselves. But the political necessity and duty of the sovereignty to make provision for the care of subjects or citizens, unable for any cause to take care of themselves, and destitute of other care, has been too long recognized in all civilized countries, too well established under the state governments of this country, to be regarded as an open question. All public asylums,- here and elsewhere in the country, for the poor, for the insane, for orphans, for the helpless and desti
In fulfilling this duty, as in all things else, the power of the legislature is subject to all positive provisions of the constitution; perhaps to what Judge Eedeield calls the abstractions of state constitutions; and to those natural and fundamental principles of right and justice, which are recognized in all civilized countries, and enter into all civilized governments. And the main question in this case is, whether the industrial school act, ch. 325 of 1875, in its essential provisions, is in conflict with any of these.
We confess that we approach the consideration of the statute with a strong desire to uphold it. Theoretically, the provision for the support of the poor is very well. Practically, poor houses are perhaps often, sometimes certainly, administered with as little attention to the comfort and as little respect for the persons of their inmates, as some of our prisons. They are not fit places for children; without means of intellectual, moral or religious instruction, or for the peculiar care needed by children, especially children within the age of nurture. And it is manifestly better for poor children that they should be supported in some other asylum, where they may have fitting culture and better care; where some person or body may stand to them in loco pa/rcntis, and measurably discharge towards them the parental duties of nurture and education.
If poor houses, certainly common jails and penitentiaries are unfit places for the confinement of children; even of ordinarily vicious children. In these it cannot be said that children are altogether without opportunities of education; but it is vicious education. All experience has shown the. tendency
Such were doubtless the views of the legislature in passing ch. 325 of 1875 and ch. 142 of 187'6. The latter act makes it the duty of the poor authorities throughout the state, to place healthy children as paupers, not in poor houses, but in families, orphan asylums or other appropriate institutions. The former act had already authorized the incorporation of industrial schools in every county, for the care and support of destitute children, and for the confinement of children convicted of crime. There might be constitutional difficulties or defects, in general or special provisions, in statutes of this character; but we think that even Judge Redfield would readily have recognized, not only their humanity, but their propriety, as reforms strictly within a proper legislative function, and not a meddlesome interference with private discretion or discipline. And we cannot forbear the remark that the general scope of these statutes, whatever defects there may be in their details, reflects honor upon the legislative bodies which passed them, and upon the state.
Notwithstanding this prepossession in favor of the statute before us, it is our duty to test all its provisions involved in
Sections 1, 2, 3 and 9 provide for the incorporation and organization of industrial schools. Section 4 subjects the corporations to the same visitation and inspection of the state board of charities and reform as other state charitable and penal institutions.
Section 5 authorizes courts and officers having criminal jurisdiction, judges of courts of record and mayors of cities, to cause to be brought before them children between the ages and of the classes prescribed by the section.
The power conferred is clearly judicial, and cannot be exercised by mayors of cities (Attorney General v. McDonald, 3 Wis., 805); probably not by judges of courts of record at chambers. Re Kindling, 39 Wis., 35. Any defect of jurisdiction in them, however, could not affect the authority conferred on courts.
The provisions of the section include any male child under twelve, and female child under sixteen years of age, coming within either of these conditions: “ That is begging or receiving alms, whether actually or under pretense of selling or offering for sale anything, or being in any public street or place for the purpose of begging or receiving alms; or that is found wandering and not having any home or settled place of abode, proper guardianship or means of subsistence; or is found destitute either by being an orphan or having a parent or parents who is undergoing imprisonment or otherwise; or that frequents the company of reputed thieves, or of lewd, wanton or lascivious persons in speech or behavior, or notorious resorts of bad characters; or that is found wandering in streets, alleys or public places, and belonging to that class of children called ragpickers;’ or that is an inmate of any house of ill fame or poor house, whether in comjiany with its parent or parents or
There is diversity of conditions in these several classifications, and some of them were severely criticised on the argument, and may perhaps be open to criticism. In this case, we have only to do with the provision relating to inmates of poor houses. And, without indicating any opinion as to the other classes of children embraced in the section, it is sufficient to say here, that the provisions of the statute,, as they affect each class of children, are independent. The statute might be inoperative as to one class or classes, and valid as to other class or classes. Lynch v. The Economy, 27 Wis., 69.
Courts and officers before whom a child within the conditions of the section may be brought, “ if satisfied on inquiry of the fact, and that the welfare of such child will bo promoted thereby, may order such child to be sent to an industrial school in his own county, if there be one, and if not, to one in another county; and may direct such child to be kept and maintained in such school, at the expense of the county, until twenty-one years of age, or earlier discharged, as provided later in the act.” The rest of the section makes similar provision for sending children convicted of crime to such schools.
It seemed to be assumed on the argument, that the power of courts to send children to these schools under either branch of the provision, was peremptory. But we think that it rests clearly in discretion, controlled by the welfare of the child. And we should have been inclined to hold the term of commitment, during minority, to be also discretionary (Cutler v. Howard, 9 Wis., 309; Market Bank v. Hogan, 21 id., 317; Dutcher v. Dutcher, 39 id., 651), if the language of this section had not been controlled by the provision in sec. 7, that all sentences and commitments shall be until majority.
Sec. 6 authorizes industrial schools to receive children so sent to them, and thereupon to take exclusive custody, care
It was strongly objected to the statute, that it authorizes the same disposition of children destitute by misfortune, and of children convicted of crime; committing them alike to these schools, during minority, there to associate together. It must be remembered, however, that this evil, if evil it be, is subject to judicial discretion, and that in sentencing criminal children courts will not overlook the discretion to confine them in ordinary prisons or in these schools, or the degree of depravity of convicted children, or the liability of destitute children in these schools to be demoralized by association. Children guilty of crime are not always, perhaps not often, so depraved as to make their presence in such schools dangerous to their associates. The state, providing for children dependent upon it, whether from indigence or crime, has an essential discretion in the manner of doing so. And it appears to have been in the mind of the legislature, that children guilty of accidental offenses might be more sure to gain than children destitute by misfortune would be to lose by the association, under the careful discipline provided by the act, subject to the supervision of the state board of charities and reform. Rut, if the objection were as grave as represented, it would be a defect of detail only, not of power; a blemish, not surprising in the in
Such commitments of destitute children were stigmatized as tlie punishment of poverty as a crime. We have already sufficiently expressed our opinion that the removal of children from poor houses to these schools is mercy, not punishment.
Such commitments of poor children were denounced as an arbitrary interference with the natural affections and relations of parent and child; as an arbitrary invasion of natural and inalienable rights of both parent and child. As will be presently seen, we cannot consider the statute as authorizing the separation of parent and child, when the parent is able and willing to perform his duty to the child. And when a parent is unable or unwilling to provide for his child, and leaves the child dependent on the charity of the state, we are at a loss to comprehend the right of the parent to object to the form which the state gives to its charity, with intelligent regard for the welfare of the child. And, as regards the right of the child infringed by such considerate benevolence exercised towards it by the state, on which misfortune has made it dependent, we can only say that we have little consideration for the inalienable right of idleness, ignorance and vice, or for the care or want of care which fosters it.
The gravest objection, however, made to the statute is, that the commitment of a child to one of these schools until majority, except for crime, operates as an imprisonment of the child for that period, without due process of law, and that the statute authorizing it is therefore a positive violation of the constitution. We will consider this objection separately, as it affects the right of the child, and as it affects the right of the parent.
And, in the first place, we cannot understand that the detention of the child at one of these schools should be considered as imprisonment, any more than its detention in the poor house; any more than the detention of any child at any board
In the second place, the statute, certainly so far as it is involved here, does not go on failure in the measure of support or education by the parent, on some nice fault-finding with the course of the parent with the child, as the court appeared to think that the Illinois statute did, in People v. Turner, 55 Ill., 280. 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.
It was argued, however, that the disability of a parent to support his child might well be accidental or temporary, and that the commitment until majority would operate as an imprisonment of the child, as against both parent and child, in pases where the parent should afterward be able and willing
But we cannot consider the statute, in its true construction, open to the objection. We cannot think that it was intended to foreclose the right of a parent, when competent, to resume the custody and care of his child. In this respect, there is a significant difference between it and the statute before the court in People v. Turner. That statute provided for process against the parent or guardian of the child; making them parties to the proceeding and apparently bound by it. The statute before us carefully avoids that difficulty; and operates, so to speak, upon the child in personam, without citing the parent or guardian, without any color of intent to bind the parent or guardian by the proceeding or by the commitment. It appears to us quite obvious, upon familiar principles, that the parent or guardian is not precluded by the commitment from asserting any right to the custody and care of the child, which he may be afterwards able to establish. When a parent or other proper guardian should be able to show that the disability or default on which the child’s commitment proceeded was accidental or temporary, and no longer exists, and that he is, in the language of sec. 5, ch. 112, E. S., not otherwise unsuitable for the custody of the child, his right to the custody should prevail over the commitment to which he was not a party. In such a case, if the officers of a school should re
We have already given reasons for calling the statute humane; but there is another worthy of notice, as showing the considerate and benevolent spirit in which it was framed. Women alone, or women and men, but not men alone, may incorporate themselves under the statute. Thus no industrial school can be without the sex which is by nature best qualified for the nurture of children. Such chai-ities are best committed to women, in whole or in part. And in such lies the truest and noblest scope for the public activities of women, in the time which they can spare from their primary domestic duties. Such a statute, so framed and so guarded, is not an arbitrary assumption of meddlesome authority, outside of the scope of the proper function of legislation; but is evidence that public charity is here losing the offensive and oppressive character sometimes attributed to it.
The case of People v. Turner appears to turn on the question of compulsory education, a very different question from that here. We are not prepared to say that we might not decide a similar case, under a similar statute, in the same way. But there is much said in the opinion inconsistent with some of the views which we have expressed, to which we could not assent, and which has failed to change our views of this case. We were greatly interested in the note appended to that case,
It is so apparent to us that this statute does not go to dis-tixrb the uniformty of county government, that we do not think it necessary to discuss it. We did not understand counsel as seriously relying upon the point.
By the Court. — The judgment of the court below is affirmed.