delivered the opinion of the court:
On the relation of one Ada M. Ryan three petitions under the Family Court Act (Ill. Rev. Stat. 1955, chap. 23, par. 190 et seq.) were filed in the circuit court of Cook County, seeking to take the three children of Edward and Betty Sempek from their parents and place them under the guardianship of some suitable person to be appointed by the court. The mother appeared and moved to dismiss the petitions, оn the ground that the statute is unconstitutional in numerous respects. An order was entered finding each child to be “dependent,” and appointing a guardian. The mother appeals.
Each petition alleges that the named child does not have proper parental care; that the father resides at the Elgin State Hospital in Elgin, Illinois, and the mother resides at 449 Belden Avenue in Chicago ; that the сhild is in the custody or control of or with a named individual, residing at an address different from that of the mother or father; and that the parents are unable to care for, protect, train, educate, control and discipline the child. Such allegations, which under the motion to dismiss must be taken as true, show that in the cases at bar the parents are unable to care for their children; and the question is whethеr, under those circumstances, the relief granted deprives the mother of a constitutional right.
Section 1 of the statute undertakes to prescribe in minute detail what shall constitute “dependency.” Amоng the grounds so specified is lack of proper parental care. Section 7 provides for the appointment of a guardian if the court finds (1) that the child is “dependent” and (2) that the parеnts are unable to care for it. Appellant does not deny the power to appoint a guardian where the child is not receiving parental care, but she argues at length about what is requirеd to show a lack of proper care and about the absurdity of other grounds enumerated in the statute. We think such inquiries are foreclosed by her motion to dismiss, which admitted the ultimate fact and thus rendеred unnecessary a showing by proof.
The rule is well settled that if the power to act in the particular case exists independently of the statute, the validity of the latter is a mere abstract questiоn not necessary for determination of the issue presented. (Illinois Central Railroad, Co. v. Chicago and Great Western Railway Co.
Appellant argues that the act permits extreme and cruel punishment to be inflicted upon children. The present order simply appoints a guardian. There is no punishment inflicted upon the children.
It is insisted that the act permits the court, through its probation officer, to initiate the proceedings; and that such is a function of the executive which cannot properly be conferred upon the judiciary. The present proceedings were not initiated by the court or its officer, but by a resident of the county on behalf of the child. The contention has no merit.
It is urged that “the law of parens patriae may be invoked only to enforce and execute the parent’s duties when the parent has failed to fulfill them adequately.” The allegations of the petitions, admitted by the motion to dismiss, show that in thesе cases the parents have failed to fulfill their duties.
Appellant argues that the power to investigate facts and supply evidence is an executive function which cannot be conferred upon the court or its probation officer. The constitutional question thus sought to be argued is not reached in this case, for the ultimate facts have been admitted by the motion to dismiss. No problems of proof remain in the cases, and questions as to the method or agency whereby the facts might otherwise be established cannot properly be considered here. See State of Illinois v. Milаuskas,
Complaint is made that the act embraces more than one subject, in violation of section 13 of article IV of the Illinois constitution. In support of the contention it is pointed out that the title and body of the act deal both with the civil remedy of providing for the care of children and with the criminal offence of contributing to their dependency or delinquency. It is argued that the matter of dеpendency is separate and distinct from that of delinquency. To render a provision in the body of a statute void because it is not embraced in its title, the provision must be one which is incongruous or which has no proper connection with the title of the act. (People ex rel. Coutrakon v. Lohr,
It is further urged that due process is denied because the act contains nothing to prevent authorities from taking custody of a child prior to the filing of a petition and the service of process. Here again, the record fails to disclose that such action was taken.in this case. In any event it is a suEcient answer to observe that the act contains nothing purporting to authorise such a procedure. The validity of a statute is determined by its provisions, not by its silence.
Section 5, which provides that “summons shall be made returnable at any time within twenty days after the date thereof,” is said to be invalid because it fails to afford sufficient notice to meet the requirements of due process, thereby violating section 9 of article II of the constitution of the State of Illinois which provides that every person accused of a crime shall have the opportunity to obtain counsel and prepare for trial. There is nothing in the record to show a request for and a denial of additional time. We feel that the foregoing contention has been fully answered by our opinion in Petition of Ferrier,
Objection is made that “a petition” under the act “fails to apprise respondents thereto of the charges made agаinst them with a reasonable degree of particularity.” The question is not presented on this record. There was no motion in the trial court that the present petitions be made more definite and certain. In the absence of such a request, the objection is deemed to' have been waived.
Appellant also asserts that it is impossible to determine what rules of evidence, civil or criminаl, shall apply; and that due process is violated if the court considers information supplied by the probation officer otherwise than by testimony in open court. As we have already pointed out, appellant’s motion to dismiss admitted the allegations of the petitions, thus removing any question of evidence or proof from these cases. State of Illinois v. Milauskas,
The contentions of appellant concern provisions of the statute and interpretations thereof as abstract propositions; and no attempt is made to show whereby the present proceedings, undеr the authority of the statute, have deprived her of some right. It has long been established that this court will not discuss the constitutionality of a provision of an act where the party urging its invalidity is not in any way aggrieved by its operation. State of Illinois v. Milauskas,
No error has been shown in the record, and the orders of the circuit court are therefore affirmed.
Orders affirmed.