The State ex rel. Industrial Home for Girls v. Pike County
| Decision Date | 24 May 1898 |
| Citation | 45 S.W. 1096,144 Mo. 275 |
| Parties | The State ex rel. the Industrial Home for Girls, Appellant, v. Pike County et al |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Reuben F. Roy, Judge.
Reversed and remanded (with directions).
Scott J. Miller for appellant.
(1) It devolves upon respondents to show that the law creating the Industrial Home is unconstitutional. State v Addington, 77 Mo. 110. (2) The legislature has the right under the police power of the State to create eleemosynary institutions; to protect society and to regulate the morals of infant criminals and make them better men and women -- just as it has the right to maintain penitentiaries, jails and almshouses. This institution, to save fallen girls and those who have tendencies to go wrong, should appeal the more to the judiciary. (3) The prohibitory section of the Constitution does not apply to eleemosynary institutions. The intention of the legislature should be carried out by the courts, and the act must clearly appear to be unconstitutional, before the courts will declare it unconstitutional. Hurd v. Chase, 9 Barb. 266; Story on Court, sec. 451; Brown v. Buzan, 24 Ind. 197; Phillips v. Railroad, 86 Mo. 540; Kelly v Meek, 87 Mo. 401; State ex rel. v. Pond, 93 Mo 619; Reform School v. Macon Co., 107 Mo. 291; State v. Able, 65 Mo. 362; Stephens v. Bank, 43 Mo. 390.
George W. Emerson and Dalton Biggs for respondents.
(1) If the last clause of section 5760, Revised Statutes 1889, as amended by the laws of 1891, page 164, is unconstitutional, yet it does not affect the rights of the State to establish and maintain eleemosynary institutions. (2) Where a provision of a statute is void in part the whole will not be declared void because of the unconstitutionality of a part. 131 Mo. 37; 120 Mo. 7. (3) The latter clause of section 5760, as amended by the laws of 1891, providing that "any female child may be bound as apprentice to said industrial home for girls as to any other master, and subject to the same provisions of law as are now or may hereafter be in force," and the whole of section 5769, as amended by the laws of 1891, are void because they conflict with section 47, article IV, Constitution of Missouri, and section 25, article IV, Constitution of Missouri.
The State Industrial Home for Girls seeks to compel, by mandamus, the county court of Pike county to pay for the support, from May 31, 1894, to January 8, 1897, of an inmate of said institution sent there from said county. The sole ground for resisting payment is the alleged invalidity of the act of the legislature, under which the girl, for whose support the claim is presented, was "apprenticed" to said Industrial Home. We have, therefore, only to determine whether said act is constitutional. The circuit court decided this question in the negative, and held that the county was not liable. The case has been brought here by appeal.
The General Assembly, by act approved March 30, 1887 (Sess. Acts of 1887, p. 274), established the "State Industrial Home for Girls," and provided for its location, management and support. It was enacted, in section 12 of said statute, that every girl between seven and twenty years of age, convicted of "being a disorderly person or of any offense, not punishable by imprisonment for life," and "not deemed incorrigible" might be sentenced to said institution until she should become twenty-one years of age. This section was repealed in 1891 (Sess. Acts, 1891, p. 164), and a new section adopted in lieu thereof, which, in addition to a provision for the sentence to said Industrial Home of girls convicted of crime, as in the original act, also contained this clause, to wit: "Any female child may be bound as an apprentice to said Industrial Home for Girls as to any other master, and subject to the same provisions of law as are now or may hereafter be in force."
The next section requires the county to pay, quarterly in advance, to the superintendent of the home $ 75 per annum for the support of each individual sent there from such county as apprentice, or otherwise. The girl whose support is involved here, was not convicted of crime, but, at the age of fifteen years, was on May 31, 1894, duly apprenticed to said home by the probate judge of Pike county.
The petition was treated as the alternative writ, and defendants demurred thereto on the ground that "the act establishing said home is unconstitutional."
I. It is claimed that the act violates section 47 of article IV of the Constitution, which prohibits the legislature from authorizing any county "to lend its credit, or to grant public money or thing of value in aid of or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company." We do not understand the respondents to contend that it is beyond the power of the legislature to establish such an institution or to provide for its support and maintenance from the public revenues. It is the recognized duty of the State to care for the unfortunate and dependent classes, and taxes may properly be levied for such purpose. Hence, we have asylums for the insane, the blind, and the deaf and dumb, and also hospitals, poor houses and reformatories, supported at public expense. Judge Cooley in his work on Taxation [2 Ed.], 125, says: "He would be a bold man, who, in these days, should question the public right to make provision for these benevolent objects." It is also true that the counties have been and are required to pay, out of their funds, for the support of certain inmates of these institutions. "The legislature has as much control over the revenue of the counties as it has over that of the State, unless restrained by some provision of the Constitution." State ex rel. v. Holladay, 70 Mo. 137; State ex rel. v. St. Louis Co. Ct., 34 Mo. 546.
The demurrer assigns as ground therefor that the act establishing the home is unconstitutional. The argument of respondents, however, only goes to the validity of the requirement in the act of 1891 above cited, that each county, having an inmate in said home as an apprentice or otherwise, shall pay a certain sum for her support; and the clause providing that "any female child may be bound as apprentice to said Industrial Home for Girls as to any other master and subject to the same provisions of law as are now or may hereafter be in force." It is said that this is broad enough to include every female child in the State, whether such child belongs to any of the classes to whom special protection and assistance from the public revenues may properly be extended or not. It is further claimed that the statute concerning "apprentices," to which the act of 1891 refers, empowers the father, and, in some instances the mother, to bind his or her child as an apprentice without the consent of any court or officer. It is argued therefore, that, if any female child may be bound under this act as an apprentice to said home by her father or mother, and the county required to pay for her support while there, such county may be made to take the place of the parents and support all of the female children within its borders, whether rich or poor and regardless of their condition. It is attempted to bring this act within the principle announced in the very able opinion of Gantt, C. J., in the so-called "Collateral Inheritance Tax Cases" (143 Mo. 287), where it is said: "Paternalism is a plant that should receive no nourishment upon the soil of Missouri."
Should this act, however, receive the broad construction placed upon it by respondents?
"A legislative intent to violate the Cstitution is never to be assumed if the language of the statute can be satisfied by a contrary...
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