Peyton v. Nord

• Decision Date: 26 February 1968
• Docket Number: No. 8456,8456
• Citation: 1968 NMSC 27,437 P.2d 716,78 N.M. 717
• Parties: Albert PEYTON, a minor, Petitioner, v. Tom NORD, Sheriff of Chaves County, New Mexico, and George L. Reese, Jr., Sitting as Judge of the Juvenile Court, of the Fifth Judicial District, Chaves County, New Mexico, Respondents.
• Court: New Mexico Supreme Court

Page 716

437 P.2d 716

78 N.M. 717

Albert PEYTON, a minor, Petitioner, v. Tom NORD, Sheriff of Chaves County, New Mexico, and George L. Reese, Jr., Sitting as Judge of the Juvenile Court, of the Fifth Judicial District Chaves County, New Mexico, Respondents.

No. 8456.

Supreme Court of New Mexico.

Feb. 26, 1968.

A. D. Solsbery, Wm. F. Brainerd, Roswell, for petitioner.

Boston E. Witt, Atty. Gen., Gary O'Dowd, Asst. Atty. Gen., Santa Fe, for respondent Nord.

Morris Stagner, Dist. Atty., Clovis, W. Byron Caton, Farmington, as amicus curiae.

PER CURIAM:

Upon consideration of motion for rehearing the opinion heretofore filed is withdrawn and the following substituted therefor:

OPINION

MOISE, Justice.

This is an original proceeding wherein petitioner seeks habeas corpus to effect his release from the custody of the sheriff of Chaves County. The record discloses that petitioner is a minor who was adjudged to come within the Juvenile Code of New Mexico, in that he violated §§ 40A--16--1 and 40A--16--3, N.M.S.A.1953; was made a ward of the court until he reaches the age of twenty-one, or until the further order of the court, and was ordered committed to the New Mexico Boys' School during that period. He is in the physical custody of respondent Nord, Sheriff of Chaves County, pending delivery to the New Mexico Boys' School pursuant to the order adjudging him to be a ward of the court, and committing him to that school.

Honorable George L. Reese, Jr., sitting as Judge of the Juvenile Court of the Fifth Judicial District, Chaves County, New Mexico, is named as a respondent. He is not a proper party since only the person having the physical custody of a petitioner, and who is able to produce him in court, may properly be named as respondent in a habeas corpus proceeding. Dunbar v. Cranor, 202 F.2d 949 (9th Cir. 1953); Clark v. State, 122 So.2d 807 (Fla.D.Ct. of App.1960); Moore v. United States, 339 F.2d 448 (10th Cir. 1964); State v. Clark, 270 Minn. 181, 132 N.W.2d 811 (1965). Respondent, Judge Reese, is accordingly dismissed as a party.

Although petitioner sets forth five points in his brief, only three serious questions are in fact presented. (1) Is the Juvenile Code adopted in 1955 and the juvenile court therein created, constitutional? (2) Was the denial of a trial by jury a denial of constitutional rights guaranteed by the United States Constitution and the New Mexico Constitution? (3) Does the fact that petitioner could and did receive a penalty different from that provided when adults violate the same provisions of law deny the petitioner due process of law and equal protection of the law?

All of the questions as thus enumerated are serious and difficult. The issue of the constitutionality of the juvenile laws preceding the 1955 Code (ch. 205, N.M.S.L.1955) and the courts thereby created has been heretofore considered by this court. In State v. Eychaner, 41 N.M. 677, 73 P.2d 805 (1937), the question of the right to appeal from the juvenile court created by ch. 87, N.M.S.L.1921, was presented. It was there held that the juvenile court was a court inferior to the district court created under authority of Art. VI, § 1, N.M.Const., and was accordingly a de jure court. Without in fact deciding the constitutionality of the legislation creating the court, the holding ws limited to a determination that judgments of the juvenile court were not appealable under Art. VI, § 2, N.M.Constitution (since amended), wherein appellate jurisdiction was vested in the Supreme Court from 'all final judgments and decisions of the district courts.'

Thereafter, in the case of In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943), a many-pronged assault was leveled on the 1921 juvenile court law (ch. 87, N.M.S.L.1921) and the juvenile court as therein established. With Justice Bickley dissenting, the court held the law invulnerable to the attacks there made against it.

The 1955 Juvenile Code has never been considered by this court except in State v Urioste, 63 N.M. 335, 319 P.2d 473 (1957), where without examining any possible change in the nature of the juvenile court as organized under the Code, from that created by ch. 87, N.M.S.L.1921, it was determined that ch. 205, § 41, N.M.S.L.1955, providing for an appeal from juvenile court to the Supreme Court, violated Art. VI, § 13, N.M.Const., and under the authority of State v. Eychaner, supra, the particular section of the law was held unconstitutional and, further, it was concluded that this court was without jurisdiction to consider the appeal.

The instant case is not an appeal and our jurisdiction arises out of Art. VI, § 3, N.M.Const., wherein this court is given original jurisdiction in habeas corpus proceedings. Respondent does not question either the right of petitioner to attack the constitutionality of the Juvenile Code or to proceed in this court, and we do not see that there is any barrier to our considering the issues raised. See In re Hickok's Will, 61 N.M. 204, 205, 297 P.2d 866 (1956). Although it has been our practice to refuse to take jurisdiction in habeas corpus proceedings which could be brought in the district courts in the first instance, under the circumstances here present whether the juvenile court in a separate court inferior to the district court presided over by the same individual who is also the district judge or is a part or branch of the district court, it would seem quite apparent that to require presentation of a petition for habeas corpus in the first instance to the district judge would be a vain and useless prerequisite.

We are here called upon to examine our Constitution and the 1955 Juvenile Code as related thereto and, based thereon, to arrive at a conclusion as to whether the court created by the Code can withstand an attack on its constitutionality. The really pertinent provision is Art. VI, § 1, N.M.Const., as it existed in 1955 (it was amended in 1965 to provide for a court of appeals, but is otherwise unchanged). It read:

'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.'

Article VI, § 13, is also pertinent. It reads, in part:

'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, and appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts, and supervisory control over the same. The district courts, or any judge thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and all other writs, remedial or otherwise in the exercise of their jurisdiction; provided, that no such writs shall issue directed to judges or courts of equal or superior jurisdiction. The district courts shall also have the power of naturalization in accordance with the laws of the United States. Until otherwise provided by law, at least two terms of the district court shall be held annually in each county, at the county seat.'

These sections of our Constitution clearly specify the jurisdiction of the district courts, and authorize creation by the legislature of courts inferior to district courts in any county or municipality of the state. However, we do not consider that the provision allowing creation of inferior courts in counties or municipalities, 'including juvenile courts,' in any sense required that the jurisdiction of district courts over juveniles established by Art. VI, § 13, supra, be transferred to a court inferior to the district court. To the contrary, the jurisdiction was placed in the district courts and was to remain there until an inferior juvenile court was created. Is this what was done in 1955, or was a juvenile division of the district court thereby created? Respondent argues that the juvenile code created a division of the district court. In our view, this is correct.

Our first juvenile court was established in 1917 by ch. 4, N.M.S.L.1917. It was provided in Section 2 thereof, that 'The district court of each county in this state shall have exclusive original jurisdiction over juvenile delinquents and over those who contribute to such delinquency * * * and while sitting in exercise of its said jurisdiction shall be known and referred to as the juvenile court.' An appeal was provided to the Supreme Court from judgments involving persons contributing to juvenile delinquency, 'in the same manner as other final judgments from the district court.' No provision was made for appeals from other determinations made under the act. However, it seems amply clear that the 'juvenile court' created by this act was nothing more than the district court while sitting and considering the matters covered thereby. Notwithstanding its jurisdiction over juvenile matters, that it was not a court inferior to the district court created for a county or municipality, and was not in conflict with the restraints of Art. VI, § 1, quoted above, would seem to be beyond argument.

However, what was the situation under ch. 87, N.M.S.L.1921? That act changed ch. 4, sec. 2, N.M.S.L.1917, creating the juvenile court, to read, 'There is hereby established in each County of this State a Court to be known as the 'Juvenile Court of _ _ County, New Mexico.' Said court shall have exclusive original jurisdiction over juvenile delinquents and over those who contribute to their delinquency, and over all matters arising under this act. The District Judges of the State shall be the Judges of the Juvenile Courts in the Counties of their respective districts; * * *.' (Emphasis added). In view of the change from 'the district court of each...