In re Santillanes, 4760.

• Decision Date: 13 April 1943
• Docket Number: No. 4760.,4760.
• Citation: 47 N.M. 140,138 P.2d 503
• Parties: In re SANTILLANES.
• Court: New Mexico Supreme Court

47 N.M. 140

138 P.2d 503

In re SANTILLANES.

No. 4760.

Supreme Court of New Mexico.

April 13, 1943.Rehearing Denied May 14, 1943.

Original proceeding in the matter of the application of Jose Santillanes for a writ of habeas corpus.

Writ discharged.

Under special statutory civil proceedings as distinguished from a criminal proceeding, self-incrimination in a constitutional sense as it relates to the juvenile is not involved.

William T. O'Sullivan, of Albuquerque, for petitioner.

Edward P. Chase, Atty. Gen., Harry L. Bigbee, Asst. Atty. Gen., and Robert W. Reidy, Asst. Dist. Atty. of Bernalillo County, of Albuquerque, for respondent.

PER CURIAM.

Upon consideration of the motion for rehearing, the previous opinion is withdrawn and the following substituted:

MABRY, Justice.

[1] This is an original habeas corpus proceeding brought under the provisions of Article VI, Sec. 3, New Mexico Constitution, and Rule 24, Supreme Court Rules. The writ was first applied for and hearing had upon the several questions here presented before the Honorable A. W. Marshall, District Judge of the Sixth Judicial District. Petitioner was there denied the relief sought and the act was held constitutional. Petitioner then filed this original proceeding here. This he may do. Ex parte Nabors, 33 N.M. 324, 267 P. 58. And here, as in the Nabors case, we are not called upon to say, and do not decide, to what extent, if any, the decision of the district court first hearing the matter might influence us.

The writ was issued upon the petition of a minor, one Jose Santillanes, acting by and through his father and natural guardian, Moses Santillanes. The said minor had theretofore been found to be and adjudged a juvenile delinquent within the meaning of the statutes of New Mexico relative to such juveniles (1941 Comp., Art. I, Ch. 44) and sentenced to confinement to the Bernalillo County Detention Home for a period of thirty days.

All questions raised by petitioner which are important will be considered, although not in the exact order or under the particular grouping as presented.

Petitioner first challenges the constitutionality of the act creating the Juvenile Court (Chap. 44, 1941 Comp.), which act was an amendment of the earlier statute, Chapter 4, Laws 1917. He says that having held a part of the present act unconstitutional-that part dealing with those who contribute to the delinquency of minors as it purports to afford an appeal-that the whole act must fall since the offending portion is not severable. Petitioner relies upon the disposition we made of the issue in State v. Eychaner, 41 N.M. 677, 73 P.2d 805. We did not hold any portion of the act unconstitutional in the Eychaner case, though we did suggest the unconstitutionality of the portion there dealt with if provision for an appeal from the Juvenile to the Supreme Court were attempted to be made, a question which we did not decide, because not necessary.

[2] Moreover, petitioner is not in a position to attack that portion of the act dealing with those charged with contributing, because he has no such problem here. Respondent senses this difficulty confronting petitioner, the difficulty of raising the question of the constitutionality of a portion of the act with which he is not here concerned; but respondent says that, nevertheless, if an examination into the question as it pertains to such portion of the act is had, and it should be held unconstitutional as to that part, petitioner would still be without relief. Section 44-112 of the act dealing with those who contribute to delinquency must be considered severable, in any event the Attorney General argues, citing State v. Brooken, 19 N.M. 404, 143 P. 479, L.R.A.1915B, 213, Ann.Cas.1916D, 136; Schwartz v. Town of Gallup, 22 N.M. 521, 165 P. 345; State v. Walker, 34 N.M. 405, 281 P. 481; City of Roswell v. Holmes, 44 N.M. 1, 5, 96 P.2d 701. See State v. Ritchie, 97 Ohio St. 41, 119 N.E. 124; and also Mill v. Brown, 31 Utah 473, 88 P. 609, 613, 120 Am.St.Rep. 935, which hold separable the section dealing with those who contribute, thus saving the portion dealing solely with juvenile delinquents. Speaking of Section 7 of the Utah act having to do with adults contributing to juvenile delinquency, that court observes in support of its severability that: “Section 7 of the act, for the reason that it violates this elementary provision, so to speak, of criminal law and procedure, must, therefore, be held of no force or effect. This, however, in no way affects the other provisions or sections of the act. Section 7 was a mere excrescence, in one sense, on the principal provisions of the act, in no way connected with it so far as it affects the right to deal with children, ***.”

The rule to be applied in determining the separability of the constitutionally objectionable portion of an act from the unobjectionable has been well stated by our court in Schwartz v. Town of Gallup, supra. Since those portions of the statute dealing with those who contribute to delinquency are entirely separable from the part which deals with delinquents themselves, respondent argues, to hold unconstitutional such portion could not affect the remainder of the act. We agree with this contention. We are not prepared to say that the lawmakers “would not have passed the portion retained” in the act if they should have “known that the void provisions must fall”. Schwartz v. Town of Gallup, supra [22 N.M. 521, 165 P. 348]. However, we need not, and we do not, decide the question. We merely point to the serious query thus presented. See 31 Am.Jur. 809, § 47, and cases cited under note 15, holding such legislation unconstitutional.

Petitioner challenges the constitutionality of the act for the reason that an attempt is thereby made to deprive the district courts of that original jurisdiction which he thinks was given exclusively to them under the Constitution. He relies upon the following constitutional provision found in Article VI, Section 13, which reads: “The district court shall have original jurisdiction in all matters and causes not excepted in this constitution, and such jurisdiction of special cases and proceedings as may be conferred by law, ***.”

But, Article VI, Section 1, of the Constitution provides: “The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a supreme court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as may be established by law from time to time in any county or municipality of the state, including juvenile courts.”

Petitioner urges that control of minors, which, unless otherwise provided, would repose in the district courts as an inherent power, is not a matter “excepted in this constitution”. No one disputes his contention that under any proceeding the district court, sitting as a court of equity, has broad inherent power concerning the custody and control of minors.

Petitioner's attack upon the constitutionality of the statute, numbered 4, is as follows: “4. In conferring upon said Juvenile Court exclusive original jurisdiction over juvenile delinquents and over those who contribute to such delinquency and over all matters arising under said Act, the resulting diminution in the jurisdiction of district courts is violative of the provisions of Article VI, Section 13, of the Constitution of the State of New Mexico.”

If Chapter 4, Laws 1917, which is entitled “An Act defining juvenile delinquents,” etc. as amended by Chapter 87, Laws of 1921, undertakes to abrogate the jurisdiction of district courts reposed by that portion of Section 13 of Article VI of the Constitution, as follows: “The district court shall have original jurisdiction in all matters and causes not excepted in this constitution” a serious question might be presented.

[3] We indulge the well-known presumptions that the legislature is presumed to have performed its duty and kept within the bounds fixed by the Constitution, and therefore the judiciary will, if possible, give effect to the legislative intent unless it clearly appears to be in conflict with the Constitution. Asplund v. Alarid, 29 N.M. 129, 219 P. 786; State v. Eldodt, 33 N.M. 347, 267 P. 55; State v. Sargent, 24 N.M. 333, 171 P. 790.

[4] From the earliest times, children have been regarded as the wards of chancery. The Crown was parens patriae and exercised its prerogatives to aid unfortunate minors through the Great Seal. Generally the Chancellor acted only when a property right was involved, but this element went only to the exercise of jurisdiction, and not to the jurisdiction itself. For a comprehensive discussion of this branch of equity jurisdiction, see Pomeroy, Equity Jurisprudence, 5th Ed., Chapter X, Section 1303 et seq.

[5] We assume that the legislature by the enactments herein involved did not intend to take away from the district courts, entirely, this jurisdiction over infants, as historically exercised.

[6] Legislation establishing juvenile courts and providing methods to deal with delinquent children is a recent product of the solicitude of the law for the welfare of infants, 31 Am.Jur. 785.

“Juvenile courts are generally defined as courts having special jurisdiction, of a paternal nature, over delinquent and neglected children.” 31 Am.Jur., Sec. 7. (Emphasis ours.)

They are frequently referred to as “specialized courts”.

[7] We turn again to Section 13 of Article VI of the Constitution and we find immediately after the phrase quoted above, the following language: “and such jurisdiction of special cases and proceedings as may be conferred by law, ***”

That the juvenile delinquency act deals with special cases and sets up special proceedings, we do not doubt. See Words and Phrases, Permanent Edition, Vol. 39, defining “Special Cases” and “Special Cases and Proceedings”. Among these definitions we find the following: “In a proceeding in the domestic relations...