State ex rel. Kelly v. Kirby
168 S.W. 746
Mo.
1914
Check Treatment

OPINION.

I.

BOND, J.

(Aftеr stating the facts as above). — The questions intended to be made in this proceeding are of the highest imрort, but the proceeding itself is in an anomalous condition. No issue has been joined on the return, eithеr by motion for judgment on the pleadings, or otherwise. We are not inclined in a matter of this gravity to rule on thе contentions set forth in relator’s brief when they do not arise upon any joinder of issue demanding their decision.

A proceeding attacking the constitutionality of the organization ‍‌‌‌‌​‌​‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌​​​‌‌‌‌​‌​​‌​​​​​​​​‌‌‍of a court and its proсedure, which were *127established by the Legislature from-the most humane, motives and were designed to protect and help the 'future men and women of the State and fit them for the duties of citizenship, should only be brought uрon the reasonable belief that the act sought to be. annulled violates the constitutional rights of the relator in some essential manner. And this court will not consider such an attack until the issues properly presenting it are evolved. Nor will it sustain such an attack, even if properly presented, if there is any reasonable theory upon which the act of the Legislature may be constitutionally upheld.

While the оbjections urg:ed in relator’s brief to the act of the Legislature (Laws 1911, p. 177) are not ripe for decisiоn under the state of the pleadings in this case, yet many of them have ‍‌‌‌‌​‌​‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌​​​‌‌‌‌​‌​​‌​​​​​​​​‌‌‍been held in. judgment and overruled when thе scheme of juvenile courts was elaborately reviewed and upheld in a decision of this court In Banc not cited by relator. [Ex parte Loving, 178 Mo. 149.] Again this beneficent judicial reform was also approved sub silentio in another case also not cited by relator. [State еx rel. v. Wilder, 197 Mo. l. c. 35.] Moreover, the power of the Legislature to create courts of this charаcter would seem to be supported by a provision of the Constitution which expressly authorizes the creation of criminal courts in counties having over fifty thousand population. [Constitution 1875, art. 6, sec. 31.]

It appears from the return of the respondent,- that he proposes to try the relator just as if he werе prosecuted by the State on the same charge in the criminal court over which respondent рresides when not performing his designated duties as judge of the adjunct to that ‍‌‌‌‌​‌​‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌​​​‌‌‌‌​‌​​‌​​​​​​​​‌‌‍court, called for convenience the juvenile court. It is manifest, therefore, that relator is not likely to experience аny deprivation of the rights and privileges granted to him under the Constitution and statutes of this State, and that he will not suffer from our *128declination to pass upon the contentions made in his briéf, but not raised under the state of the рleadings.

II.

Before disposing of this proceeding, it is well to note that there is only one statute contаining a plan for the reformation of “negligent and delinquent children” by judicial procedure, which is now in existence, and that is the act of the Legislature approved April 11, 1911 (Laws 1911, p. 177), which act by section 24 thereof, expressly repealed the previous law on the subject contained in articles 6 and 7 of chapter 35' of the Revised Statutes of 1909, which had been taken from the Laws of 1909, p. 423, and these had exprеssly repealed ‍‌‌‌‌​‌​‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌​​​‌‌‌‌​‌​​‌​​​​​​​​‌‌‍the prior ones on this subject enacted in 1903 and 1905. [Laws 1909, p. 431, sec. 25.] The later act оf 1913 (Laws 1913, p. 148), purporting to vest jurisdiction in the probate court of negligent and delinquent children in counties hаving a population of less than fifty thousand, was held unconstitutional by this court in a recent case by Walkеr, J., In Banc. [State ex rel. v. Tincher, 258 Mo. l.] That opinion dearly distinguishes the provisions of the Act of 1913, from those contained in the Act of 1911 which vests jurisdiction in the circuit court sitting as a juvenile court, and authorizes it to administer the gеneral constitutional and statutory law in cases of the trial of criminal charges arising under that act. [Laws 1911, p. 179, sec. 2, p. 181, sec. 7 et passim.]

The fact that there is left but one valid act on the statute books of this State touching the exercise of judicial power on behalf of “negligent and delinquent children,” was overloоked by the prosecuting attorney ‍‌‌‌‌​‌​‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌​​​‌‌‌‌​‌​​‌​​​​​​​​‌‌‍in the preparation of his information against the relator, for the document shows on its face that the charge therein made is based upon the Revised Statutes .1909, chapter 35, articles 6 and 7, although at *129the time it was filed all the sections contained in the articles referred to had been expressly repealed by tbe Act of 1911.

Doubtless the learned respondent will not proceed to try tbe relator under tbe present information when bis attention is directed to its term's, and will proceed in tbe matter after tbe filing of a proper information or tbe finding of an indictment as prescribed by tbe Constitution (Constitution, art. 2, sec. 12, Amendment of 1900), and will also conduct such trial in accordance with “tbe practice and procedure prescribed by law for tbe conducting of criminal cases,” and with due observance of all tbe constitutional rights of relator. [Laws 1911, p. 180, sec. 2.]

We have concluded that by bis fаilure to plead to tbe return of respondent, relator is not justified in invoking tbe ruling of this court upon the cоntentions set forth in bis brief, which brief cites no decisions of this or any other court. Under these circumstances tbe proper disposition of this proceeding is to quash our alternative writ and to dismiss tbe application therefor, which is accordingly done.

All concur, except Woodson, J., who dissents.