Petition Of Morin

• Citation: 68 A.2d 668
• Parties: Petition of MORIN et al.
• Decision Date: 03 October 1949
• Court: Supreme Court of New Hampshire

68 A.2d 668

Petition of MORIN et al.

Supreme Court of New Hampshire.

Oct. 3, 1949.

Joseph E. Morin and another, parents of Elaine Morin, a minor child, petitioned for a writ of habeas corpus seeking the child's release from the custody of the State Industrial School on the ground that the child was committed in violation of her constitutional rights.

The Superior Court, Hillsborough County, Wescott, J., denied the petition and the case was transferred on the petitioners' exceptions.

The Supreme Court, Duncan, J., held that the statute providing that a child found to be delinquent may be committed to the industrial school is not unconstitutional, and that the finding of trial court that the best interests of the child required that she remain in the custody of the industrial school was not an abuse of discretion and overruled the exceptions.

Petition in the nature of an application for a writ of habeas corpus brought by the parents of a minor child, seeking her release from the custody of the state industrial school upon the ground that she was committed to the school without due process of law and in violation of her constitutional rights. The child, Elaine, then aged fourteen, was brought before the Municipal Court of Nashua, in juvenile session, on April 8, 1948, upon petition of her father representing that she was a delinquent child. After hearing, she was placed upon probation. On April 23, 1948, following a report from the probation officer, probation was revoked by the Court and the child was committed to the industrial school.

This petition for her release was filed with the Superior Court on November 29, 1948, and thereupon heard by the Court (Wescott, J.) who entered the following decree: ‘Petition denied. The best interests of the minor child Elaine Morin require that she remain in the custody of Trustees of the State Industrial School until she reaches the age of twenty-one years, or until further order of the Court.’

To ‘the finding and * * * ruling’ of the Court, the plaintiffs duly excepted upon the ground that they are against the law and the evidence and the result of ‘plain error’, and because committal was without due process of law and in violation of rights of the child under State the Federal Constitutions. Reserved and transferred upon the plaintiff's exceptions.

Nicholas J. Costakis, Manchester (by brief and orally), for plaintiffs.

William H. Craig, County Solicitor, Manchester, William L. Phinney, Attorney General and Warren E. Waters, Law Assistant, Concord, for defendant Trustees of the State Industrial School.

DUNCAN, Justice.

The proceedings which culminated in the committal of the plaintiff's minor child were instituted pursuant to the provisions of R.L. c. 132, relating to ‘Neglected and Delinquent Children.’ The plaintiffs contend that this act in particular the provisions of § 2(II), defining ‘delinquent child’ are unconstitutional. As understood, the argument is directed to the proposition that the statute provides for imprisonment of a minor child without requiring that the child be either charged with or convicted of a crime. By the statutory definition a child ‘who is wayward, disobedient or uncontrolled by his parent * * * or so deports himself as to injure or endanger the health or morals of himself or others' is a ‘delinquent child,’ as is one who ‘violates any law of this state or any city or town ordinance.’ § 2(II) supra. Under section 13 of the act a child found to be delinquent may be committed to the industrial school, or made subject to ‘such orders as to care, custody, and probation as justice and the welfare of the child require.’ The act provides that proceedings taken under it shall ‘not be deemed to be of a criminal nature’, § 17, and that ‘no child shall be deemed a criminal by reason of an adjudication hereunder and such adjudication shall not be deemed a conviction.’ § 23. Under the provisions of R.L. c. 463, § 17, committal of a delinquent child to the industrial school is required to be for the term of his minority. The jurisdiction of the municipal court continues until the child reaches twenty-one, unless he is discharged by the court, or jurisdiction is released to the Superior Court. Laws 1945, c. 29.

We think it sufficiently plain that the act in question is designed to permit the exercise of the powers of the state as ‘parens patriae,’ for the purpose of rehabilitating minor children, and not of punishing them for the commission of a crime. ‘It is generally held that the purpose of such statutes is not penal, but protective. It is not that the child shall be punished for breach of a law or regulation, but that he shall have a better chance to become a worthy citizen.’ State v. Lefebvre, 91 N.H. 382, 384, 20 A.2d 185, 187. See also, State v. Burt, 75 N.H. 64, 66, 71 A. 30, Ann.Cas.1912A, 232. Similar statutes have been universally upheld over objections based upon constitutional grounds. Cinque v. Boyd, 99 Conn. 70, 121 A. 678; People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 86 A.L.R. 1001, certiorari denied 289 U.S. 709, 53 S.Ct. 786, 77 L.Ed. 1464; Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198, 5 Ann.Cas. 92; Ex parte Januszewski, C.C., 196 F. 123; Lindsay v. Lindsay, 257 Ill. 328, 100 N.E. 892, 45 L.R.A.,N.S., 908, Ann.Cas.1914A, 1222; Wissenburg v. Bradley, 209 Iowa 813, 229 N.W. 205, 67 A.L.R. 1075; In re Gomez, 113 Vt. 224, 32 A.2d 138. See also Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905, 907; annotations 60 A.L.R. 1342; 67 A.L.R. 1082.

The early decision of State ex rel. Cunningham v. Ray, 63 N.H. 406, 56 Am.Rep. 529, held unconstitutional a statute in no way comparable to the act before us. It permitted the court, in lieu of accepting a recognizance on binding over a minor charged with crime, to commit him to reform school without hearing, for the term of his minority. The case is not controlling here. Nor is People ex rel. O'Connell v. Turner, 55 Ill. 280, 8 Am.Rep. 645, persuasive. See In re Ferrier, 103 Ill. 367, 43 Am.Rep. 10; McLean County v. Humphreys, 104 Ill. 378; Lindsay v. Lindsay, supra. There is no evidence to suggest that the industrial school is other than ‘a real school, not a prison in disguise’ (Mack: The Juvenile Court, 23 Harv.Law Rev. 104, 114), or that committal to it is not a reasonably necessary restraint, rather than imprisonment. We conclude that R.L. c. 132 is constitutional.

The plaintiffs make no contention, if the act is constitutional, that the court did not obtain jurisdiction of their child in accordance with its provisions. The proceedings before the municipal court followed the course prescribed by the statute. There was a petition, § 3, notice to the child's parent, § 4, a hearing, § 9, and a finding of delinquency. § 13. It is apparently not questioned that the court, having thus obtained jurisdiction, in its discretion might have entered an order for committal forthwith. § 13. It is claimed however that because the order for committal followed an order for probation and was made without further notice or hearing, it violated constitutional and statutory rights, and therefore was invalid. As the cases previously cited indicate, constitutional guaranties applicable to criminal proceedings are inapplicable to proceedings such as these. Under the court's continuing jurisdiction, §§ 1, 13; Laws 1945, c. 29, deferred committal was as much within the Court's authority as was immediate committal. The order made was no more violative of constitutional requirements because it was deferred.

The particular statutory provision relied upon by the plaintiffs appears in the act by which the probation department was created. R.L. c. 379. It provides: ‘In case a probationer has violated any of the conditions of his probation any probation officer with or without a warrant, and any other officer with a warrant may arrest him, and the court, after summary hearing, may make such orders as justice requires.’ § 14. The Trustees assert that this provision is limited in its application to criminal cases, pointing out that the language of ‘arrest’ is not...