State ex rel. Cave v. Tincher

WALKER, J. —

Mаndamus to compel the probate court of Callaway county to assume jurisdiction and hear and determine a charge of petit larceny against a boy of the age of twelve years.

The prosecuting attorney of Callaway county filed in the circuit court an information charging a boy of the age of twelve years, with the crime of petit larceny. Upon the case being called in the circuit court for trial, the judge of said court, in accordance with the provisions of section 7, page 152, Laws 1913, ordered the same transferred to the probate court for hearing and determination; the judge of said court refused to docket the case or make any disposition of same. By petition the prosecuting attorney submitted these facts to the circuit court, which issued an alternative writ of mandamus directing the probate judge to assume jurisdiction and docket, hear, and dispose of the charge against said minor, or show cause why he should not comply with such’ order. The probate judge in his return admitted that he had refused to obey the order of the court, and alleged as a reason therefor that the act in which said section 7 appears, entitled, “An Act conferring jurisdiction on probate courts in counties of less than 50,000 inhabitants to provide for the care and control of children under seventeen years of age, who are delinquent,” etc. (Laws 1913, pp. 148-154) was violative of certain sections of the .Constitution set out in the return, and, therefore, void. The circuit court sustained the сontentions of the probate judge, and refused to grant a peremptory writ, from which ruling the prosecuting attorney, complying with the formal procedure in regard thereto, appealed to this court.

The act in question is declaratory of the original and exclusive jurisdiction of probate courts, in counties of less than 50,000 population, over neglected and delinquent children. Jurisdiction once acquired is to continue until the child attains its majority. "Within the designated classes are included every offender under seventeen years of age, from the actual criminal to those guilty of evil associations, or improper conduct or conversation. Those excepted from the pror visions of the act are children who are inmates of State institutions, or those now in institutions incorporated under the laws of the State, and children charged with offenses punishable by death or imprisonment in the penitentiary.

Regardless of the nature of the offense with which the child may be charged, within the limitations abovе stated, any reputable person who has knowledge of same, and who is a resident of the county, may file a petition verified by affidavit, with the clerk of the probate court, setting forth the facts in regard to such child, which affidavit may be on information and belief. A summons shall thereupon issue, requiring the, child or the person having it in custody, to appear within the next twenty-four hours after service or as directed by the court. The parent or guardian is also to be notified to attend., and upon failure to do so he mаy be proceeded against as for contempt. A summary hearing is thereupon had by the court in the absence of counsel, and provision is made in regard to costs. If the child be adjudged neglected or delinquent, the court proceeds to provide for its future care and custody. When a child is arrested, with or without a warrant, it is to be taken before the judge of the probate court, and, while courts and magistrates may issue warrants for children, the subsequent proceedings must be before the probatе court. • Appeals are authorized to be taken, presumably to the circuit courts, but the act is silent in this regard. County courts are required to provide places of detention for children within the provisions of the act. The probate court is authorized to appoint a probation officer to serve under the direction of the court, and the Board of Charities and Corrections is required to approve of the appointment of probation officers. The powers, duties, etc., of probation officers, are defined, and county and municipal officers are required to lend their assistance to further the objects of the act. When a probate court takes a child from its parents, the ability of the latter to support the child may be inquired into, and, if found able, the court may order the parents to support the child or contribute thereto.

Laws in regard to the Girls ’ Industrial Home and the Boys’ Training School are declared not repealed by this act.

The court is empowered to formulate and publish rules and regulate the proceedings necessary to the enforcement of the act, and the county is to pay the expenses of same. Lastly, it is provided that the act is to be liberally construed.

The foregoing presents the principal provisions of the act by the terms of which jurisdiction is conferred on probate courts over neglected and delinquent children in the counties designated; such sections as are necessary to be considered in discussing the validity of thе act will he particularly referred to in the opinion.

chiidren parents, I. The legislation exemplified by the act in question may not only be characterized as progressive, but humanitarian as well. In effect, it extends the rule as to an infant’s irresponsibility for crime from fourteen to seventeen years of age, except as to offenses punishable by death or imprisonment in the penitentiary. While the rule has long prevailed that a child over the age of seven and under fourteen years is prima-facie presumed inсapable of committing crime (State v. Adams, 76 Mo. 355; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844; Heilman v. Comm., 84 Ky. 457, 4 Am. St. Rep. 207; Carr v. State, 24 Tex. App. 562, ‍‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‍5 Am. St. 905; State v. Yeargan, 117 N. C. 706; 36 L. R. A. 196) under the administration of the criminal laws of England, within the last century, children have been hanged for what we now regard as trivial offenses. Earlier, under the rigorous enforcement of the law by Coke, Scroggs, Sawyer, Jeffries, Saunders, et id omne, as evidenced by those chronicles of cruelty, the reports of the Court of Kings Bench and others having jurisdiction in criminal cases, there were more than two hundred offenses punished capitally, and the law made no distinction between offenders of tender years and the most hardened criminals. The far cry, therefore, between the present statutes in regard to juvenile offenders and those records of barbarism, affords ample reason and excuse for contrast and comment by the student of jurisprudence.

In accord with the general forward movement towards a better citizenship, especially evident during the past decade, legislation, usually last to respond to the spirit of progress, manifests a marked change in its attitude.towards children; they are no longer regarded as criminals to be punished without effort at reformation and after their detention to continue as menaces to society, hut as wards to he aided, encouraged and educated, that they may, in the language of the ledger, become assets instead of liabilities.

Courts, not unmindful of the underlying spirit prompting modern legislation in regard to juvenile offenders, have, wherever it has been possible to do so without violating the cardinal canons of construction, upheld laws of this character. An apt illustration in this regard is to be found in our own reports. In Ex parte Loving, 178 Mo. 194, this court sustained a statute in regard to neglected and delinquent children in counties of 150,000 inhabitants and over — the ruling being confined, however, to the title of the act and that same was not a special or local law. This case may properly be regarded as an authority in support of the conclusion that the act in question is not special legislation. Further, it may be contendеd that the natural rights of parents in the care, control and education of their children cannot be interfered with by the State; but if it be shown, as it is required to be in the act under consideration, that parents are corrupt, immoral or otherwise incompetent, the State, which has a paramount interest in the proper personnel of its members as citizens, may, where it is found necessary, regulate their conduct in this regard. [Com. v. Fisher, 213 Pa. 48; Ex parte Crouse, 4 Whar. 9.] This power, exercised without abuse, is held to be a legal and just restriction upоn personal liberty required on account of the welfare of the community. [Re Ferrier, 103 Ill. 367, 42 Am. Rep. 109; Roth v. House of Refuge, 31 Md. 329; Prescott v. State, 19 Ohio St. 184.] While the right of parental control is a natural, it is not an inalienable right, and even in the absence of a statute the power of courts of equity to place children under guardianship has been exercised from time immemorial. [Home of Friendless v. Berry, 79 Mo. App. 566; Wis. Indus. Schl. v. Clark Co., 103 Wis. 651; Wellesley v. Wellesley, 2 Bligh (N. S.) 124.] In the last case Lord Redesdale said that the right of a chancellor to exercise this power had not been questioned in one hundred and fifty years.

The conclusion is, therefore, authorized that the State in its character of parens patriae may provide-for the comfort and promote the well being of not only infants but persons of defective understanding, or so burdened with other misfortunes or infirmities as to be unable to care for themselves. So important is this governmental function that the limitations of the Constitution are to be so construed, if possible, as to not interfere with its legitimate exercise. [Jarrard v. State, 116 Ind. 98; Ex parte Ah Peen, 51 Cal. 280; McLean Co. v. Humphreys, 104 Ill. 378; Re John Sharp, 15 Idaho, 120, 18 L. R. A. (N. S.) 886.]

Prom the authorities cited and many others of like сharacter, omitted to avoid further encumbering this opinion, these conclusions may be deduced: That acts of the character of the ‍‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‍one under discussion, if properly entitled, cannot be classed as special legislation, do not constitute an invasion of personal rights, and are not a denial of due process of law.

constitutional of courts. II. An equally important question, however, remains for solution in regard to the manner in which the power attempted to he conferred, under the act in question, is to be exercised. No aid is to be derived from the judicial interpretation of the two earlier acts (now articles 6 and 7, Chap. 35, R. S. 1909) in regard to juvenile courts and offenders, because in each the power of enforcement is lodged in the circuit or criminal courts which have general jurisdiction of offenses (Sees. 1, 22, 31, art. 6, Constitution), while in the act under review probate courts are empowered to enforce it. The first section of the act providing that: “In all counties of less than 50,000' population, the probate court or judge thereof in vacation shall have original and exclusive jurisdiction of all cases coming within the provisions of this act. ’ ’ [Laws 1913, p. 149.] The effect of the act is to transfer the jurisdiction of offenses committed by minors under seventeen years of age, other than those punishable by death or imprisonment in the penitentiary, from the circuit and criminal courts to the probate courts. In view of the fact that the general jurisdiction of the latter courts is fully and completely defined by the Constitution and the purpose of their creation is foreign to the enforcement of the criminal law, the question may well arise as to whether the attempted extension of their jurisdiction is authorized, the general rule being that where a court is established and its jurisdiction is specifically defined by the organic law, the Legislature is powerless to diminish, enlarge, transfer or otherwise infringe upon the powers thus conferred. For example, it is held by the Supreme Court of Michigan (Allen v. Cir. Judge, 37 Mich. 474) that where jurisdiction is conferred on сertain courts by the Constitution, they are beyond the reach of legislation; and in New Jersey the Court of Errors and Appeals holds (Flanigan v. Smelting Co., 63 N. J. L. 647) that where the Constitution (Sec. 1, Art. 7, Con. N. J.) guarantees the integrity of certain courts of which the Supreme Court is one, whatever power this court had or jurisdiction it exercised at the date of the adoption of the Constitution, was by such adoption incorporated into the organic law and thereby insured against destruction or abridgement except through a changе in the Constitution itself; that to abolish the court or alter its organic character is beyond legislative power.

In North Carolina (Malloy v. Fayetteville, 122 N. C. 480; Rhyne v. Lipscombe, 122 N. C. 650), it is held that while the General Assembly may allot and distribute such power among the courts as does not pertain to the Supreme Court, it has no power to deprive the judicial department of any jurisdiction conferred by tbe Constitution. [See also 11 Cyc. 706, where the general rule is announced and cases cited.]

The Supreme Court of Florida (Ex parte Cox, 44 Fla. 537), in discussing the right of that court to review by writ of error a judgment in a habeas corpus proceeding, said: “The Constitution of this State in organizing the judiciary thereof has assigned to each court created thereby certain jurisdiction therein designated, and has provided that the Legislature may give to certain of these courts additional jurisdiction. Where no such provision is made in the Constitution, the Legislature cannot confer upon one of these courts jurisdiction. ’ ’

The following recent cases from our own reports contain rulings illustrative of the limitations placed by the Constitution upon legislation: In Redmond v. Railroad, 225 Mo. 721, 731, it is held that the General Assembly has no authority' to enact a statute (as is attempted in Laws 1903, p. 200) providing that “the probate court shall have no jurisdiction to inquire into the insanity of any person who is the owner of no property,” for the reason that the Constitution vests the probate court with general power to appoint guardians for insane persons; and that where such general power is conferred, the General Assembly is not authorized to prescribe the manner in which it is to be exercised.

In State v. St. L., I. M. & S. Ry. Co., 253 Mo. 642 in which a statutе was construed providing that certain penalties imposed on railroad corporations should be paid into the good roads fund instead of the county school fund, it was held that such act was invalid as being in contravention of that provision of the Constitution which provides that all penalties shall belong to the county school fund. Bond, J., speaking for the court in this case, says: “ ‘ The clear proceeds of all penalties and forfeitures shall belong to the county public school fund. [Constitution, art. 11, seс. 8.] Unquestionably the attempted diversion of any such penalties or forfeitures by the Legislature would nullify the act if it was passed for that sole purpose, for the Constitution having spoken as to the proper receptacle of such funds, the power of the Legislature to speak in a contrary way is stilled and ceases to exist until the constitutional provision shall be amended or abrogated. It is evident that so much of the penalty clause of the act under review as purports to creatе a penalty payable to the good roads fund is void.”

In Board of Com’rs v. Peter, 253 Mo. 520, in construing an act of the General Assembly (Laws 1911, p. 130, Sec. 8, amended by Laws 1913, pp. 143 et seq.) providing for the establishment of public tuberculosis hospital districts in certain counties, this court, speaking through Lamm, C. J., held that the taxing power of the General Assembly was limited under section 1, article 10, of the State Constitution ‍‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‍to state, county and municipal purposes; that a hospital district could not be held to be a municipal corporation, and hence the Lеgislature was not here authorized in attempting to confer taxing power on same. The rate of taxation provided for by the act was found to exceed the constitutional limit, and the act was also held invalid on this account.

These cases, while aptly illustrative of the application of the general rule in regard to the limitations placed by the Constitution upon legislation, do not, except in the Redmond case, supra, have particular references to the jurisdiction of courts аs defined by the organic law. The rule, however, was by clear implication approved in Vail v. Dinning, 44 Mo. 210, construing an act of the Legislature which authorized a contestor for the office of circuit judge to institute an original proceeding in the Supreme Court to determine the issue. Wagner, J., speaking for the court, said: “In the first place, . . . the jurisdiction of this court is defined and limited by the Constitution. It has such powers and jurisdiction as the Constitution has conferred upon it — no more, no less. It cannot shirk any duty imposed on it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body ban invest it with no original jurisdiction when it is not given by the Constitution, nor can they deprive it of its appellate jurisdiction.” The doctrine here announced was approved in State ex rel. v. Flentge, 49 Mo. 488, in which the court held that the Legislature was not authorized to enact a law subjecting clerks of courts to trial in the Supreme Court for misdemeanоrs in office. By parity of reasoning it would seem that this rule should apply with equal force to any other constitutional court whose powers are therein definitely defined, as is the case in regard to probate courts. [Sec. 34, art. 6, Constitution.]

It may be contended, however, that as the Constitution in defining the jurisdiction of probate courts, uses no words of restriction, the Legislature is authorized in conferring upon such courts or the judges thereof other duties, powers and functions. Notwithstanding the approval of the general rule elsewhere in regard to the jurisdiction of constitutional courts, and its implied approval here, our Legislature has, in several instances, before and since the adoption of the present Constitution, in evident recognition of the rule in regard to the absence of words of restriction, added to the powers of probate courts, and .the Supreme Court has, in some instances, put the seal of its approval upon such enactments. Illustrations of these added powers are to be found in the statute (Sec. 2442, R. S. 1909) which prescribes that applications for writs of habeas corpus may be directed to “some court of record or to any judge thereof in vacation,” this court holding in State v. Millsaps, 69 Mo. 359, that a probate judge, under this statute, may issue the writ and admit to bail. The authority to grant writs of injunction, under certain conditions, is also conferred by the Legislature on probate courts or judges thereof in vacation (Secs. 2512, 2513, Revised Statutes 1909); and the judges of such courts are declared to be conservators of the peace, with power to let to bail persons indicted for bailable offenses (Sec. 4061, Revised Statutes 1909; State v. McElhaney, 20 Mo. App. 584); and probate judges are authorized in the absence of county judges to hold county courts [Sec. 4062, Revised Statutes 1909].

Despite the constitutional provision, therefore, in regard to jurisdiction and the evident purpose in view in the establishment of probate courts, it is no longer an open question here as to the right of the Legislature to add to the powers of such courts.

courts? Powers'1 However, if this right be conceded, the powеrs conferred must apply alike to all of the probate courts in the State, otherwise the statute conferring the powers will contravene that provision of the Constitution (Sec. 35, Art. 6) which requires that probate courts shall be uniform in their1 organization, jurisdiction, duties and practices.

Under this act it will scarcely be contended that probate courts, clothed with the power to hear and determine offenses against neglected and delinquent children, are uniform in any of the constitutional requirements with those not possessing this power.

courts-6 conformity p°ocedure.al IH. Further considering the power conferred by the act in question upon probate courts and the manner in which the same is. to be exercised, ‍‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‍we bftd that a • ‘‘ delinquent child” is defined, among other things, to be one which “ violates any law of this State.” This definition includes, under the exceptions heretofore noted, any child which may violate any law not punishable by death or imprisonment in the ’ penitentiary (Sec. 2, Laws 1913, p. 149), or in other words, this definition includes any felony or misdemeanor of which a child may be guilty save those expressly excepted.

The manner of procedure prescribed by the act is as follows: “Any reputable person, being' a resident of the county, having knowledge or information of a child, who appears to be a neglected or delinquent child, may file with the clerk of the probate court a petition, in writing, setting forth the facts, verified by affidavit. It shall be sufficient that the affidavit be on information and belief.” [Sec. 3, Laws 1913, p. 150.] Upon the filing of this petition a summons is issued, etc., and the subsequеnt proceedings are much akin to those authorizing the appointment of guardians for minors. [Secs. 4, 5> and 6, Laws 1913', pp. 150 and 151.]

While this act extends the prima-facie rule of an infant’s non-liability for crime to seventeen years, it could not, without revolutionizing the entire system of the criminal law, nor, in fact, does it attempt, by its terms, to change the class or character of offenses designated in the Constitution and the statutes as felonies and misdemeanors.

These classes or character of offenses not being changed, the samе procedure must be observed in their prosecution whether the offender be an adult or an infant, and that provision of the Bill of Rights which prescribes that “no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information,” etc., must be complied with. [Sec. 12, art. 2, Constitution.]

It does not help matters here that the prosecuting attorney did proceed by information against the offender, because there is nothing in the act to authorize this course of procedure.

It is, in onr opinion, begging the question to assert that the same rules of construction should not be applied to this act where it refers to “violations of laws of the State” as is applied to the Constitution and other statutes having a like reference. It is true, the purpose of the act is salutary and every effort should be made to sustain it, but where it seeks to include, as it does, the entire category of crimes within its purview, save as to the exceptions noted, and attempts to engraft upon our proсedure powers foreign to the Constitution and the laws passed in conformity therewith in regard to' crimes, it should not receive judicial sanction.

An indictment or information being necessary to a prosecution for a violation of the laws of the State, it must be such as is meant by the common law, viz.: in the one instance be found and presented by a grand jury, and in the other be instituted by a public officer authorized to prosecute crimes. [State v. Kyle, 166 Mo. 287; State v. Hicks, 178 Mo. 433; State ex rel. v. Bland, 189 Mo. l. c. 208; State v. Minor, 193 Mo. l. c. 605.] Failing to require these necessary prerequisites in the exercise of jurisdiction over offenders, the act cannot be sustained. Furthermore, the power conferred on the court to hear in a summary manner and to conduct the examination of witnesses without the assistance of counsel, or, as is evident from the entire purport of the act, to conduct the hearing in an ex parte manner, is contrary not only to the letter but to the spirit of the Constitution (Sec. 22, Art. 2, Constitution) which provides that “in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of-the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy, public trial by an impartial jury of the county.”

Former Acts. IY. In the two earlier acts (Arts. 6' and 7, Chap. 35, R. S. 1903) in regard to neglected and delinquent children in certain counties, it is expressly provided that the practice and procedure prescribed by law for the conduct of criminal cases, so far as the same may be applicable, and when not otherwise provided therein, shall govern all proceedings under said articles; and in all trials under same any person interested therein may demand a trial by jury. [Parts of Secs. 4099 and 4124, Revised Statutes 1900.]

Rejecting, therefore, such portions of said statutes as are obnoxious to the Constitution, enough remains to render a proceeding under either valid. The record in the Loving case, suрra, discloses that the proceeding therein was based upon an information filed by a prosecuting attorney, and that the other provisions of the act, there under review, in regard to summons, summary hearing, trial without a jury, etc., were disregarded. While these acts have been repealed, the statute enacted in lieu thereof (Laws 1911, p. 177) contains a like provision in regard to the right to a trial by jury.

The act in question, however, contains no such plenary provisions, and being in contravention with the organic lаw it must be declared invalid.

The presence of a ’prentice hand is evident in the framework of this act. Given a laudable purpose, the Legislature, looking only to results, proceeds to enact a substantive law embodying a system of procedure applicable to certain counties, for the hearing and determination ‍‌​​‌​‌‌‌​​‌‌​​​‌‌​‌​​​‌‌​​‌‌‌‌‌​‌​​​‌​​‌‌​‌​​​‌‌‍of cases against infant offenders. While such legislation should be sustained and encouraged, it cannot be when it is, as in this case, in conflict with the organic law and as a consequence out of accord with our entire system of criminal jurisprudence.

From the foregoing it follows that the judgment of the trial court should be affirmed. It is so ordered.

All concur.

Case Details

Case Name: State ex rel. Cave v. Tincher

Court Name: Supreme Court of Missouri

Date Published: May 4, 1914

Citation: 166 S.W. 1028

Court Abbreviation: Mo.