Mill v. Brown

• Decision Date: 17 January 1907
• Docket Number: 1749
• Citation: 31 Utah 473,88 P. 609
• Court: Utah Supreme Court
• Parties: MILL v. BROWN, Judge

88 P. 609

31 Utah 473

MILL v. BROWN, Judge

No. 1749

Supreme Court of Utah

January 17, 1907

Application by Emil Mill for certiorari to review the proceedings of Willis Brown, Judge of the juvenile court of Salt Lake city, state of Utah.

JUDGMENT ANNULLED.

N.W Sonnedecker for appellant.

Benner X. Smith, Frank B. Stephens, and James Ingebretzen for respondent.

FRICKJ. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an application to this court, in its original jurisdiction, for a writ of certiorari.The application is made under section 3631,Revised Statutes 1898, by Emil Mill(hereinafter styled applicant) as father of Albert E. Mill, a minor.The writ was duly issued by this court, directed to Willis Brown, as judge of the juvenile court of Salt Lake City, who made and filed his return by filing an answer in connection with what purports to be a transcript of the proceedings of the juvenile court which it is sought to have reviewed by this application.From the application and return it appears that Albert E. Mill is a minor of about the age of thirteen years; that a complaint in writing was duly filed in the juvenile court against him as a delinquent child under chapter 117, p. 182, Laws Utah 1905, entitled "Juvenile Courts;" that in such complaint he was charged with petit larceny for taking a box of cigars, was found guilty of that charge, and ordered committed to the Industrial School of the State of Utah as a delinquent child until he shall have attained the age of twenty-one years, unless sooner released by the board of control of said institution.The proceedings of the hearing and the judgment of the court are attacked upon various grounds, some of which will be noticed hereafter, and those presently noticed are: That chapter 117, aforesaid, is unconstitutional and void; that the judge of said court does not possess the legal qualifications to act as judge of said court; and that he was not chosen or appointed in accordance with law.While the record of the proceedings certified up is somewhat meagre and unsatisfactory, sufficient appears therefrom to warrant us in reviewing the essential parts of the proceedings.

At the threshold of this investigation we are met by the respondent with two propositions: (1) That we cannot, in this proceeding, examine into and pass upon the constitutionality of said chapter 117; and (2) that we cannot pass upon either the regularity or manner of appointment or the qualifications of respondent.

In view of the nature of the inquiry before us, we cannot accede to the first of the two propositions above stated.True, if the inquiry were limited to the determination as to whether the respondent was entitled to hold the office as juvenile judge under a certain law, then we could not, in this proceeding, inquire into, and pass upon, the constitutionality of the law under which he held the office.The inquiry, however, is much broader.The attack upon the law is that it affects the rights of the applicant, regardless of whether the respondent is holding the office legally or otherwise.If the law be unconstitutional, then the acts of the respondent which affect the rights of the applicant have no support, and are, therefore, void and of no force or effect.This inquiry goes directly to the power--jurisdiction--of respondent to act, not to his qualification to do so, and hence can be inquired into in this proceeding.We cannot assent to the doctrine that a citizen affected by a law may not, at any time and in any judicial proceeding, attack that law as being unconstitutional and therefore void.An unconstitutional law by which it is sought to affect the rights of the citizen is of no force or effect and would not bind any one.( Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178.)Any act, therefore, of the respondent affecting the applicant's rights, if such act is based upon an unconstitutional law, is both without and beyond jurisdiction, and therefore void.The first objection cannot be sustained.

The second objection, however, is well taken.If the acts complained of are supposed to be illegal only because the respondent was chosen or appointed under a supposed invalid law, or because he does not possess the proper qualifications, then the attack must be direct, not a collateral one.But this is so because the respondent would, in such a case, still act as judge, if not under strict legal right, then as one in fact.His legal right to act would have to be determined by a direct proceeding for that purpose.This principle of law is not changed by the fact that the same statute or law under which he acts also provides for his qualifications, election or appointment.This principle is well established by the following authorities: Scheiwe v.Holz, 168 Ill. 432, 48 N.E. 65;Fraser v. Freelon, 53 Cal. 644;State v. Osburn, 24 Nev. 187, 51 P. 837;Coyle v. Sherwood, 1 Hun (N.Y.) 272;Nelson v. People, 23 N.Y. 293;People v. Whito, 24 Wend. (N.Y.) 520-526.

There are many other constitutional objections presented which we shall not notice or discuss in detail, for the reason that they are all thoroughly considered by the courts whose decisions we will cite hereafter, and which are all determined against the contentions of the applicant.Apart from the general objections just referred to above, there are several that are directed specially to some of the provisions of our Constitution.It is asserted, for instance, that chapter 117 is unconstitutional because (1) it confers jurisdiction and powers upon a court created by an act of the Legislature which are now discharged by the district courts, which courts are constitutional courts; and (2) because, in the state at large, the powers of juvenile courts are still to be exercised by the district courts, while in cities of the first and second classes such is not the case.This contention is not tenable.The classification of cities for certain purposes is too well established to require discussion.But the fact that certain powers or duties may be exercised by certain courts does not prohibit the Legislature from creating new courts and conferring upon those like powers and duties.Indeed, our Constitution seems to have been framed with this object in view.Section 1 of article 8 vests the judicial powers of this state . . . in a Supreme Court, in district courts, in justices of the peace and such other courts inferior to the Supreme Court as may be established by law."While there are certain limitations in respect to certain powers as applied to certain courts, the Constitution wisely refrains from conferring exclusive original jurisdiction upon any of the courts, but vests such original jurisdiction in all the courts to be apportioned and exercised as the Legislature may direct.There can be no valid reason, therefore, to dispute the right of the Legislature to create a court or courts wherein juvenile offenders or delinquents may be dealt with although they were formerly dealt with in other courts.Nor does the fact that in cities of the first and second classes juvenile courts are given exclusive jurisdiction over juvenile offenders in any way offend against any constitutional provision.The object is to relieve already over-crowded courts in such cities from this burden, and confer the power to deal with children belonging to the class defined in the act upon the courts especially designed and adapted to carry into effect the provisions of the act.Nor does it in any way contravene any constitutional provision, because the act devolves the duties of the juvenile courts, as exercised by them, in cities of the first and second classes, upon the district courts held outside of such cities.The act, for this reason, is not obnoxious to the uniformity clause of the Constitution.Uniformity, in the sense used in the Constitution, simply means uniformity in respect to the class into which a subject-matter may be classified, upon which the law is to operate.The children are dealt with precisely the same whether they are brought before a juvenile court in the city or before a district court in the state at large.The law operates in the one instance precisely as in the other.The only difference is that a district court in the state at large may be required to pass upon fewer cases.The law was enacted for the express purpose of relieving the district courts in cities of the burden, and thus give them the opportunity the country courts have to confine their work more strictly to contested law and equity cases.The law, therefore, aims at uniformity, in one sense, rather than at the opposite.The district courts are not deprived of any constitutional right or power by chapter 117 by reason of conferring jurisdiction upon juvenile courts.(11 Cyc. 711;State v. Archibald, 52 Ohio St. 1, 38 N.E. 314;Hagany v. Cohnen, 29 Ohio St. 82.)

Nor is the objection valid that chapter 117 is against that provision of the Constitution which prohibits the Legislature from amending any law or section without setting forth the new section as amended.Chapter 117 is an independent and complete act in itself.It is not intended thereby to directly amend or modify any other law or section.If such is its effect, it is so incidentally or by implication merely.The provision of the Constitution now under consideration was not intended to prevent new legislation that might incidentally affect older laws without setting forth all the laws that might incidentally be affected by the new ones.If the constitutional provision were thus construed, new legislation would be made almost impossible; it would at least impose intolerable burdens upon both the Legislature and the courts, and would, in the end, be of much greater...