In re Application for a Writ of Habeas Corpus for Sharp

• Decision Date: 20 June 1908
• Citation: In re Application for a Writ of Habeas Corpus for Sharp, 96 P. 563, 15 Idaho 120 (Idaho 1908)
• Parties: In the Matter of the Application for a Writ of Habeas Corpus for HAZEL SHARP
• Court: Idaho Supreme Court

96 P. 563

15 Idaho 120

In the Matter of the Application for a Writ of Habeas Corpus for HAZEL SHARP

Supreme Court of Idaho

June 20, 1908

CONSTITUTIONAL LAW-CONSTITUTIONALITY OF ACT PROVIDING FOR THE CARE OF DELINQUENT CHILDREN-ACT NOT PENAL IN ITS NATURE-DUE PROCESS OF LAW-BINDING EFFECT OF ORDER AND JUDGMENT ON PARENT OR GUARDIAN-ORDERS BINDING ON THE MINOR ONLY IN PERSONAM-ORDER NOT BINDING OR CONCLUSIVE ON PARENT OR GUARDIAN-PARENT OR GUARDIAN ENTITLED TO HIS DAY IN COURT-JURISDICTION CONFERRED BY DELINQUENT CHILDREN'S ACT SIMILAR TO THAT OF APPOINTMENT-CONTROL AND DIRECTION OF GUARDIANS-JURISDICTION OF PROBATE COURT-RIGHT OF APPEAL FROM ORDERS OF PROBATE COURT.

1. The act of March 2, 1905, entitled, "An act to provide for the care of delinquent children," is not a penal or criminal statute in its nature, but is rather paternal benevolent and charitable in its purposes and operation, and is intended to confer and grant favors, privileges and opportunities rather than to impose penalties, burdens or exactions.

2. A minor child is not entitled, either by nature or the laws of the land, to his absolute and unqualified freedom and liberty in the same sense as those terms are applied to adults, but is rather, during his minority, subject to the restraint and custody of either his parents and natural guardians, or of a legally appointed guardian to whom he owes obedience and subjection, and it is not an infringement of any constitutional right of a minor for the state to summarily lay hold on him at such time as he may be deprived or bereft of his parents or duly appointed guardian, and give to him the fostering care, protection and education that would be due him from his parent or guardian.

3. For the state to thus take charge, care and custody of a minor for the purposes of protecting, educating and training him is not depriving him of his liberty without due process of law within the purview and meaning of sec. 13, art. 1 of the constitution.

4. Under the provisions of the act for the care of delinquent children, an order of the probate court directing that the delinquent child be sent to the State Industrial Training School, and there detained for a fixed period of time, acts upon the child in personam, and is not binding upon the parent or guardian unless the latter is made a party to the proceeding in the probate court, and in such case, if the order runs against the parent or guardian, or in any way affects his rights as natural or legal guardian, he is given the right of appeal under sec. 4831, Rev. Stat.

5. It is a well-settled principle of law that no one is bound by a judgment or order of a court who is not made a party thereto and has not had his day in court, except parties privy in interest.

6. If a parent or guardian deems himself improperly or unlawfully deprived of the custody of his child or ward by the action or order of a probate court under the delinquent children's act, he has his remedy in a proper proceeding in the courts to test and determine his rights and the authority under which he has been deprived of such rights.

7. Under sec. 21, art. 5 of the constitution, probate courts "have original jurisdiction in all matters of probate.... and appointment of guardians," and under and by virtue of such constitutional power and jurisdiction, it is competent for the legislature to authorize and direct probate courts to make investigations of charges preferred concerning delinquent children and to make all necessary orders in relation thereto, as has been provided by the act of March 2, 1905, entitled, "An act to provide for the care of delinquent children." (Sess. Laws 1905, p. 106.)

8. Probate courts are courts of record in the matter of appointment of guardians and all other matters within the probate department or jurisdiction of such courts, and their duty to keep and maintain such records as are commonly kept by courts of record is imposed by the constitution, and therefore exists independently of any legislation to that effect.

9. Neither sec. 13 nor sec. 20 of article 5 of the constitution confers any absolute and unqualified right of appeal from an order or judgment of a probate court, but, on the contrary grants the discretion to the legislature which may either confer or withhold the right of appeal in any and all matters coming before the probate court.

(Syllabus by the court.)

Original application by John Sharp for a writ of habeas corpus for the body of Hazel Sharp, alleged to be unlawfully detained and confined in the State Industrial Training School. Demurrer to the petition sustained and the application denied and petition dismissed.

Demurrer sustained, the writ denied and the petition dismissed.

Stockslager & Bowen, for Applicant.

Such acts as the delinquent children act of 1905 are criminal and violative of constitutional guaranties. (People v. Turner, 55 Ill. 28, 8 Am. Rep. 645.)

The act in question is in violation of art 10, secs. 20 and 21 of the constitution, in that it undertakes to limit the constitutional powers of the district courts and enlarge the constitutional powers of the probate court.

The jurisdiction of probate courts is not general, but is limited to the jurisdiction expressly granted by the constitution, and cannot be enlarged by implication. (11 Cyc. 656, 771; Moore v. Koubly, 1 Idaho 55; Dewey v. Schreiber Imp. Co., 12 Idaho 280, 85 P. 921.)

In guardianship matters, probate courts are courts of record (Const., art. 5, sec. 21; Dewey v. Schreiber Imp. Co., 12 Idaho 280, 85 P. 921), and the procedure provided for in the act is not the procedure of courts of record.

If the jurisdiction of the probate court is to be upheld in regard to juvenile offenders, on the ground that it is a matter of guardianship, then the procedure should be such as would be proper. The juvenile court does not proceed as a court of record. The hearing is informal; neither the parent nor the child is entitled to counsel; no court is held. Under sec. 11, any person may make a complaint. (No provision that the same shall be in writing.) The probate court shall hear and determine that complaint and the child may be committed to the industrial school. Under sec. 12 the probation officer shall "investigate" and furnish to the court such "information." In other words, the probation officer may inquire around and find out all the gossip and hearsay for or against the accused child, and furnish same to the court. There is no opportunity for cross-examination, no opportunity for defense, but the child is subject to the informal orders of the judge made at any time or place, and upon any sort of testimony, competent or otherwise. (Hutkoff v. Demorest, 103 N.Y. 377, 8 N.E. 899, 10 N.E. 535.)

Where under a constitution it is provided that "final judgments in inferior courts may be brought by writ of error, or by appeal, into the supreme court in such a manner as may be prescribed by law," a statute which denies the right is unconstitutional. (Norman v. Curry, 27 Ark. 440; Simpson v. Simpson, 25 Ark. 487, 489.)

J. J. Guheen, Attorney General, and Edwin Snow, for Respondent.

Idaho has adopted its delinquent children law almost verbatim from the laws of other states. The particular law which we have evidently used as a form is found in the Session Laws of Utah of 1905 (chapter 117, page 182). As the Idaho act in question is compared section by section with the Utah law, it will be seen to contain the identical provision relative to procedure in the case of neglected and delinquent children. In the state of Utah the same attacks were made upon this law as are made in this proceeding here. The case in which these objections are disposed of is Mill v. Brown, 31 Utah 473, 120 Am. St. Rep. 935, 88 P. 609.

Where this state has adopted a constitutional or statutory provision from the law of some other state, the judicial decisions interpreting that law are a part of the law itself. (Shoshone County v. Profitt, 11 Idaho 772, 84 P. 712.)

Counsel has called attention to only one case that is at variance with the principle laid down in the Utah decision. This is People v. Turner, 55 Ill. 280, 8 Am. Rep. 645. But even in the Illinois jurisdiction that case has been entirely overruled, and the interpretation laid down has been abrogated in In re Ferrier, 103 Ill. 367, 43 Am. Rep. 10.

The care and custody of delinquent children is properly a probate and guardianship matter wherein express jurisdiction was conferred by the constitution. (State v. North Dakota etc. Society, 10 N.D. 493, 88 N.W. 273.)

Proceedings of this kind for the care and custody of neglected and delinquent children is in the nature of proceedings whereby the state, as parens patriae, substitutes itself for the natural and legal guardian under whose charge the child is on the path of immorality and crime. (1 Bailey on Jurisdiction, sec. 373; Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N.E. 830; Milwaukee Industrial School v. Milwaukee Supervisors, 40 Wis. 328, 22 Am. Rep. 702; Van Walters v. Board, 132 Ind. 567, 32 N.E. 568, 18 L. R. A. 431; McFall v. Simmons, Judge, 12 S.D. 562, 81 N.W. 898.)

Counsel complain that the legislature did not follow the law of Utah and Colorado and other states in creating special juvenile courts having jurisdiction over this class of cases. But the provisions of our constitution expressly limit the legislative power to create courts additional to those mentioned in the constitution to cases where courts are established for "any incorporated city or town" (sec. 2, art. 5).

Appeals to the district court are entirely a matter of statute. They may be allowed or taken away by the provisions of the statute, and there is no constitutional provision to prohibit it (Pierson v. Board...