Kennedy v. Meara

• Citation: 56 S.E. 243,127 Ga. 68
• Parties: KENNEDY v. MEARA et al.
• Decision Date: 12 December 1906
• Court: Georgia Supreme Court

56 S.E. 243

127 Ga. 68

KENNEDY v. MEARA et al.

Supreme Court of Georgia

December 12, 1906

Syllabus by the Court.

Even if the act of 1894 (Acts 1894, p. 80), now contained in the Civil Code 1895, § 2372 et seq., is subject to the objection that the body of the act contains matter different from what is expressed in the title, or that it refers to two subject-matters, such act having been incorporated in the Code of 1895, became, by the adoption of that Code, a valid law of this state, without reference to any defects of the character above referred to that might have existed in the original act.

The act above referred to is not subject to the objection that it is a special law enacted in a case for which provision has been made by an existing general law.

The special courts created by the act in question are all of the same grade and class, the presiding officer in each being the judge of a given municipal court in the particular municipality, and the act is not subject to the objection that it is violative of that provision of the Constitution contained in the Civil Code 1895, § 5859.

When the state, as parens patriae, in a proper case, through its constituted officers or agencies, takes under its control an infant, the law authorizing such child to be bound to service under proper instructions is not a violation of those provisions of the Constitution of this state and of the United States which prohibit slavery and involuntary servitude, except as a punishment for crime after conviction thereof.

The act in question provides for a hearing before the child is finally taken from the custody of the parent and a reasonable notice before such hearing, and, when the terms of the act in reference to the hearing are construed in the light of the Constitution and general laws of this state regulating the procedure of inferior judiciatories, there is nothing in the act which deprives the parent of any right without due process of law.

The General Assembly has authority to authorize benevolent institutions of the character indicated in the act under consideration to bind out to service a child committed to its care, such institution reserving the right of supervision to see that the child is properly cared for.

The judgment of commitment to the benevolent institution under the act in question is a judgment made by a court of competent jurisdiction, and, so long as it stands unreversed it is binding upon the parties. It was, therefore, not erroneous to reject evidence tending to impeach the validity of this judgment.

When a child has been committed to a benevolent institution under the provisions of the act under consideration, the parent may apply to any judge having the authority to issue a writ of habeas corpus, alleging that the conditions have changed since the commitment was made, and that the parent is now a fit person to have the custody of the child, and is willing and able to maintain and educate it, and, if the judge is satisfied that such is the truth, he is authorized to restore the child to the custody of the parent. The remedy given in the act to the parent applying for the return of the child by application to the authorities of the institution is merely cumulative, and does not oust the jurisdiction of the court. The court erred in not admitting evidence tending to show that the conditions had so changed since the judgment of commitment that the parent was entitled to the custody of the child.

Error from City Court of Atlanta; H. M. Reid, Judge.

Even if the act of 1894 (Acts 1894, p. 80), relating to charitable institutions for the custody of children, now contained in Civ.Code 1895, § 2372 et seq., is subject to the objection that the body of the act contains matter different from what is expressed in the title, or that it refers to two subject-matters, the act having been incorporated in the Code, it became, by the adoption of that Code, a valid law without reference to any defects of the character above referred to.

The plaintiff sued out a writ of habeas corpus for the recovery of her child from the possession of the defendants. The defendants contended that they had received the child from the "Home for the Friendless," to which it had been properly committed from the recorder's court of the city of Atlanta, and at the hearing of the writ introduced in evidence a paper showing the proceedings before the recorder respecting the commitment of the child. The plaintiff objected to the evidence, upon the ground that it did not show sufficient authority for the retention of the child because the recorder, in committing the child, relied on the authority of the act of the Legislature, approved December 18, 1894 (Code 1895, § § 2372-2387), and this act was unconstitutional. The caption of the act was as follows "An act to regulate benevolent institutions in this state, to define the powers of those now or hereafter incorporated, and to provide for the incorporation of the same." The body of the act was as follows:

"Section 1. Be it enacted by the General Assembly of the state of Georgia, that from and after the passage of this act, any three or more persons desiring a charter for any benevolent institution shall file, in the office of the clerk of the superior court of the county in which they desire to transact business, a petition or declaration specifying the objects of their association, together with their corporate name, and the time (not exceeding fifty years) for which they desire to be incorporated; which petition shall be recorded by said clerk, and shall be published once a week for four weeks in the nearest public gazette to the point where such institution is to be located, before said court shall pass an order declaring said application to be granted.

Sec. 2. Be it further enacted, that said corporation shall have power to purchase and hold real estate sufficient for the actual occupation and necessary uses of the society or institution, and may receive, by gift or devise, property of any kind, on the terms contained in the gift or devise.

Sec. 3. Be it further enacted, that the directors or board of managers of such institution shall have power to make by-laws and regulations for the government of the institution, and may control the children under their care, and prescribe their course of instruction and management to the same extent and with the same rights as in the case of natural guardians.

Sec. 4. Be it further enacted, that in all cases where a child shall have been surrendered by its natural guardian or custodian to the care and management of any such institution by any instrument or declaration in writing, or committed to its custody according to law, it shall be lawful for the directors or board of managers, at their discretion, to place such child, by adoption or at service, in some suitable employment, and with some proper person or persons; provided that in all such cases the terms of the indenture shall be first approved by the ordinary of the county, which approval shall be signified on such indenture by the signature of said ordinary; but in every case the requisite provisions shall be inserted in the indenture or contract of binding to secure the child so bound such treatment, education, or instruction as shall be suitable and useful to its situation and circumstances in life; and in all such cases where a child shall have been surrendered by its natural guardian or other legal custodian to the care and management of such institution without any instrument or declaration in writing, but because of poverty or other inability to care for such child, it shall be lawful for the board of managers to place such child, for adoption or at service, in the manner hereinbefore provided, after having kept such child at least one year, and there being no reasonable probability of such parent or custodian being able to resume the care of such child.

Sec. 5. Be it further enacted, that in case of the death or legal incapacity of a father, or of his imprisonment for crime, or of his abandoning and neglecting to provide for his family, the mother shall be deemed the guardian of her children for the purpose of making such surrender as aforesaid; and if in any such case the mother be either dead or legally incapable of acting, or imprisoned for crime, or an inmate of a house of ill fame, or shall have abandoned or neglected to provide for her child or children, the ordinary of the county in which such institution is established shall be, by virtue of his office, the legal guardian for the like purpose; and in all cases where said child has been abandoned by the person legally entitled to its custody, the said ordinary shall be ex officio such guardian for the same purpose, and in either case, whether such surrender be made by the mother or by the ordinary, and whether before or after admission into said institution, it shall be deemed a legal surrender for the purposes and within the true intent and meaning of this act.

Sec. 6. Whenever any girl under the age of 14 or any boy under the age of 10 years shall be found by any policeman or other officer of the county in which any such institution devoted to the relief or care of children is located, in any street, highway, or public place in said county, or in any city therein, in circumstances of destitution and suffering or abandonment, exposure or neglect, or of beggary, or in any house of ill fame, it shall be the duty of any such policeman or other officer to bring such child before the mayor, recorder, or other judicial officer in said county, or any city therein, for examination as to the cause of such suffering, exposure or neglect; whenever any such child

is so brought before the mayor, recorder, or other magistrate, etc., and it

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