88 N.W. 273 | N.D. | 1901
A petition has been filed in this court by Ida Kol .asking that a writ of habeas corpus ■ issue, directed to the North Dakota Children’s Home Society, of Fargo, and its agent, B. H. Brasted, commanding them to produce the bodies of her three minor ■children, John Kol, Harold Kol, and Herman Kol, and to return the cause of their detention, to the end that they may be restored'to their liberty and to the custody and control of the petitioner. The petition is based upon the affidavit of the petitioner and Taylor Crum, her attorney. A similar application was made on October 14, 1901, to the Honorable Charles A. Pollock, judge of the Third judicial district, wherein said children are now detained and upon such application the writ was issued. That court, however, after a hearing upon the merits, denied the petitioner’s request to restore to her the custody of said children. Preliminary to the application which is now made to this court, counsel for the petitioner and the respondent have stipulated that the writ shall not issue in the first instance, and that the application to this court shall be heard and determined upon the merits as they shall appear from the petition presented to the lower court, and the return of the respondent thereto.
It appears from the affidavit filed in support of the petition'that the petitioner is a married woman, and that her husband, Charles Kol, is now living, but that she lives separate and apart from him; that John Kol, Harold Kol, and Herman Kol are the children of the petitioner and her said husband; that said children are of the .ages of 11, 9, and 7 years respectively; that for several years last past the
The respondent claims no further right to the custody of the. children than is given by the order of the county court of Griggs county, above set out. It is therefore apparent that the question as to which of the contending parties is entitled to the custody of these children depends entirely upon the validity of the order of the county court of Griggs county. If the order of that court placing said children in the custody of the respondent is valid, then its possession is rightful. But if, on the other hand, the order is invalid, then the right of the petitioner, as the natural guardian of her children, to have their possession and control, has not been cut off, and she is entitled to their custody. Counsel for the petitioner contends that the order of the county court of Griggs county was made without authority of law and without jurisdiction. It is urged that the entire act which authorizes county courts to place children of the classes to which these children belong, in societies, is an unconstitutional and void enactment. The right of the present custody of these children depends upon a solution of this question. The order was made under chapter 87 of the Laws of 1897, now known as § § 3i99a-3i99f of the Revised Codes of 1899. It is urged that the act violates § 61 of the state constitution, which provides that “no> bill shall embrace more than one subject, which shall be expressed in its title.” As we understand counsel, his position is that the act embraces more than one subject, and that neither of the subjects embraced in the act is expressed in the title.' We are of opinion that the act in question is not vulnerable to the objections urged. The title of the act is as follows: “An act relating to societies organized for the purpose of securing homes for orphans or abandoned, neglected or grossly illtreated children, by adoption or otherwise, and providing rules for the regulation of the same.” The act consists of six sections, and the provisions of each of said sections relate to and are in furtherance of the object or purpose of the act, which is to provide homes for the classes of children described in the title. The purpose of the legislation is commendable, for it is recognized in all civilized countries that -it is not only the right, but also the
Having reached the conclusion that the provisions of the act are congruous and relate to a common subject, we will now inquire whether that» subject is expressed in the title. We are agreed that it is. Mr. Justice Harlan, in construing a similar provision found in the constitution of the state of New Jersey, in Montclair Tp. v. Ramsdell, 107 U. S. 147, 2 Sup. Ct. 391 27 L. Ed. 431, said: “It is not intended by the constitution of New Jerse3>- that the title to an act should embody a detailed statement, nor be an index or abstract, of its contents. The one general object, the creation of an independent municipality, being expressed in the title, the act in question properly embraced all the means or instrumentalities to be employed in accomplishing that object. As the state constitution has not indicated the degree of particularity necessa^r to express in its title the one object of an act, the courts should not embarrass legislation by technical interpretations based upon mere form or phraseology. The objections should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or, if but one object, that it was not sufficiently expressed by the title.” The section of the constitution is fully complied with when the law has but one general object, which is fairly indicated in its title. People v. Mahaney, 13 Mich 495. On this subject the supreme court of South Dakota, in State v. Morgan, supra, said: “The title need not index all the details of the act. It is sufficient if the language used in'the title, on a fair construction, indicates the purpose of the legislature, so that, making
Testing the title of the act in question by the foregoing rules, we have no hesitation in holding that the subject of the act is sufficiently expressed in the title. The title is extremely crude. Fewer words would have been sufficient to have expressed the purpose of the legislation, and those employed could have been more aptly arranged. It is patent, however, from the title that the general purpose of the act is to provide means for securing homes for abandoned, neglected, or grossly illtreated children. All reference to children’s home societies in the title could have been properly omitted, for such societies are clearly instrumentalities utilized by the state to accomplish its purpose to secure homes for children of the classes named. The fact that they are named, however, does not mislead or conceal the general object of the act, which is otherwise sufficiently expressed. Indeed, counsel for petitioner does not contend otherwise. He states in his brief that “the title indicates that it is for the purpose of securing homes for children.” His contention is that “the act really makes provision for securing children for homes.” This contention is sufficiently disposed of by the conclusion already announced, — that all of the provisions of the act are germane to the common purpose of securing homes for children of the classes referred to. The securing of homes for such children naturally and necessarily requies the aid of such legal means as may be necessary to accomplish that object: One of the means so employed is the investigation conducted by the county court. It is apparent, also, that the purpose of the legislature to provide homes .for such children could not be accomplished in the absence of provisions authorizing them to be taken from their abandoned condition or from parents who had forfeited their rights as parental guardians. These provisions are clearly germane and in furtherance of the general purpose of the act. The act m question, including the title, was copied literally from Minnesota. Chapter 17, Gen. Laws Minn. 1893. Important amendments have been made by the legislature of that state, but the act, in its substantial features, still continues in force; and, while that state has the same constitutional provision as is found embodied in section 61, it
It -is also urged by counsel for petitioner that the act conflicts with section 111 of the state constitution. This section, among other things, confers upon county courts, exclusive ■ original jurisdiction in probate and testamentary matters, and for the appointment of guardians and settlement of their accounts, and such other probate jurisdiction as may be conferred by law. -It is claimed that the act in question confers upon county* courts other and further jurisdiction than is granted by the constitution. We are of opinion that the duties'enjoined by the statute in question upon county courts come within the constitutional jurisdiction of such courts, in the matter,of guardianship. But, even were this not so, the exclusive jurisdiction not being vested in other courts by the constitution, it was within the province of the legislature to confer this jurisdiction upon county courts. ■
A more serious criticism is directed against those provisions of the act which seemingly confer upon sociéties receiving children of .the classes named an unrestricted authority over them, including the right, to do with them as they see fit, and to bind them out up to the age of 16 in the case of girls, and 18 years of age in the case of boys. It requires no argument to show that no such unlimited authority and discretion as to the control of infants can be conferred either upon private individuals or corporations organized for the purposes named. Such a provision would not only impair the constitutional juridiction of county courts over infants, but would be repugnant to every consideration of justice and reason. We are of opinion, however, that this authoritj^ is more apparent than real. This act, in legal effect, makes the society the temporal or special guardian of children received by it upon order of a county court; that is it occupies a guardianship relation in reference to children received by it under appointment of the county court. In this state jurisdiction over the persons and property of infants is lodged exclusively in county courts. These courts have plenary jurisdiction and authority over guardians and infants. They may appoint and remove them and may appoint new guardians, and they have complete control of the guardians so appointed. The act in question merely creates a new kind of guardian, of a special and temporary nature, and must be construed with reference to kindred statutes relating to the guardianship of infants and the duties of guardians, as well as the powers of county courts in reference thereto. If this view is correct, — and we think it is, — the acts of these societies are restricted and controlled by the superior power of the county court having juridiction of the children. As was said by the supreme court of South Dakota in McFall v. Simmons, 81 N. W. Rep. 898. “The county court does not lose jurisdiction to appoint a guardian or discharge him by reason of the making of one order or judgment. It may make a new order, and appoint, remove; or dis
Section 1 of the act requires such society, after incorporating, to procure and file with the secretary of state “a certificate signed by the governor and three or more members of the supreme court * * * of their confidence in the trustworthiness of said corporation for such puropsés,” as a condition to the power to legally receive children thereunder and to have the legal relation authorized by the act. It is claimed that this imposes a nonjudicial duty upon the members of this court, in violation of § 96 of the state constitution,, and renders the act void. There is no merit in this contention. There is no legal duty imposed upon the members of the court. The obligation is placed upon societies to get this certificate of trustworthiness as a condition of having the legal status contemplated by the statute. But no legal obligation is placed upon the judges of this court to make such certificates. They may make them, or refuse, at their option, and in so doing would violate no requirement of the law. The duty, if duty at all, is a moral one only, and not a legal duty.
It is also claimed that the statute provides for an involuntary servitude which is not a punishment for a crime, and this without due' process of law. Neither contention is sound. The act provides for a judicial investigation of the condition of children of the classes named, after notice, and the custody provided for such children is not servitude, as referred to in the constitution. We quote with approval the following from Ryan, C. J. in Milwaukee Industrial School v. Milwaukee Co. Sup’rs, 40 Wis. 328, 22 Am. Rep. 702: “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 destitute by any cause, are witnesses to the political necessity of public charity. And we
In this case it appears that the county court of Griggs county, in the proper exercise of its jurisdiction, and after an investigation and hearing, determined that the petitioner, because of her lewd and immoral life, was unfit to longer sustain the relation of natural guardian to' her children, and, pursuant to the authority conferred by the statute ordered them to be placed in the custody of the respondent. Whether all of the proceedings in the county court which culminated in the order were strictly regular we need not inquire. For it is well settled that courts will not review mere errors upon an application for a writ of habeas corpus, where the court has jurisdiction of the person and subject-matter, as in this case. The order under which respondent retains the custody of petitioner’s children was made by a -court having jurisdiction of the children, and clothed with authority to make the order in question. Neither did the making of such order exhaust and terminate the jurisdiction of said court over these children, as counsel for petitioner mistakenly assumes. That jurisdiction is continuous during their infancy, and_ extends to the making of such new and further orders concerning their care, education, and custody as shall be deemed necessary and proper. That court is open to the petitioner, as well as to others, to correct or check any abuses of said children by the respondent or any other person to whose custody they may be committed. It is also open to hear her application to be restored to her relation as their natural guardian, upon proof, satisfactory, that she has become fit to sustain that relation, which by her lacivious conduct she has
For the reasons stated, it follows that the writ will be denied.