In re Kol

• Decision Date: 19 December 1901
• Citation: 88 N.W. 273,10 N.D. 493
• Parties: In re KOL.
• Court: North Dakota Supreme Court

10 N.D. 493

88 N.W. 273

In re KOL.

Supreme Court of North Dakota.

Dec. 19, 1901.

Syllabus by the Court.

1. Chapter 87 of the Laws of 1897, entitled “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,” does not violate section 61 of the state constitution, which requires that “no bill shall embrace more than one subject which shall be expressed in its title. * * *” It is held that said act embraces but one subject, namely, the securing of homes for children of the classes named, and such subject is expressed in the title of the act.

2. Neither does said act conflict with section 111 of the state constitution, which, among other things, confers upon county courts exclusive original jurisdiction in probate matters, the appointment of guardians, and settlement of their accounts, etc. The duties placed upon county courts by said act are not in violation of, but in aid of, their constitutional jurisdiction over guardians. A children's home society, to whose custody children have been committed by a county court, occupies the legal relation of a substitute or temporary guardian to such children; and, as such temporary or substitute guardian, its acts are subject to the approval or disapproval of the court making the appointment, and such appointment may be revoked as in other guardianships.

3. It is also held that said act does not impose nonjudicial duties upon the judges of the supreme court, in violation of section 96 of the state constitution.

4. The county court of Griggs county, after a judicial investigation upon notice, determined that the petitioner for a writ of habeas corpus herein, to recover the custody of her three minor children, was leading a lewd and immoral life, and that by reason thereof she was an unfit person to continue as the natural guardian of said children, and ordered them placed in the custody of the North Dakota Children's Home Society, located at Fargo. It is held that said court had jurisdiction to make such order, and that the same is not void. The present custody of said children is therefore legally in the respondent, and the writ prayed for must be denied.

Habeas corpus by Ida Kol against the North Dakota Children's Home Society to recover possession of applicant's minor children. Writ denied.Taylor Crum, for petitioner. Pollock & Scott, for respondent.

YOUNG, J.

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. Preliminaryto 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 petitioner has resided with her said children in the village of Cooperstown, in Griggs county; that her said husband has been absent from Griggs county for three years; that in the month of August, 1901, the children were taken from her custody, without her consent and against her wish, and placed in the care and custody of the respondent, as she claims, without warrant or authority of law. The respondent made return to the writ that they had said children in custody at the home of said society, in the city of Fargo, and that such custody was under and by virtue of a certain decree or process issued by the county judge of Griggs county; that the said North Dakota Children's Home Society is a corporation organized and existing under and by virtue of chapter 87 of the Laws of 1897, and the amendments thereto; that B. H. Brasted is the duly elected, qualified, and acting superintendent of said society. Copies of the proceedings had in the county court of Griggs county are contained in the return to said writ. These records disclose the following facts: On August 24, 1901, a written petition was presented to the county court of said county, signed by the three trustees of the village of Cooperstown, setting forth that this petitioner was unfit to have the charge and custody of said children because of her immoral and lewd life, and praying that the care and custody of said children be given to the North Dakota Children's Home Society, of Fargo. Upon the filing of said petition a citation issued out of said court, directed to this petitioner and her husband, requiring them to show cause on the 27th day of August, 1901, at 10 o'clock a. m., why said children should not be taken from the said petitioner's possession and provided for under the statute. The sheriff's return shows that the citation was served upon the petitioner on the 24th day of August, 1901, and that her husband could not be found within the county. On August 29, 1901, the county court cited nine witnesses to appear on August 30th to testify in said proceeding. The sheriff's return shows that eight of these witnesses were served. On August 30, 1901, said court rendered its judgment and order upon said petition as follows: “The petition of the trustees of the village of Cooperstown, in the county of Griggs and state of North Dakota, asking that the above-named children be taken from the custody of Ida Cole and placed in charge of the North Dakota Children's Home Society, for the reason that said Ida Cole is an unfit person to have the care and custody of said children, having come on to be heard after due notice to said Ida Cole, the state's attorney, Benjamin Tufte, appearing for said petitioners, and Ida Cole appearing in person, and after hearing all the evidence produced by both parties, and after duly considering the same, the court now finds as a fact: That said minor children were born in the United States, and are of German descent, and are of the ages as follows, to wit: John Cole, eleven years old; Herole Cole, nine years old; Herman Cole, seven years old. That the father, Charles Cole, has been for three years last past absent from the county, and has done nothing for the support of said children; that the mother, Ida Cole, by reason of her violent temper, immoral habits, language, and associations, is an unfit and improper person to have the care and custody of said minor children. Thereupon, on motion of Benjamin Tufte, of counsel for said petitioners, it is hereby ordered, adjudged, and decreed that the said minor children, John Cole, Herole Cole and Herman Cole, be, and they are hereby, ordered to be delivered to the North Dakota Children's Home Society, or its agent, and to be thereafter subject to the rules and regulations of said society; and, in case of the refusal of said Ida Cole to deliver up said minor children, the sheriff of the county of Griggs is hereby ordered to take possession of said minor children and deliver the same to the said North Dakota Children's Home Society, or its duly-authorized agent.”

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 sections 3199a-3199f of the Revised Codes of 1899. It is urged that the act violates section 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...