State ex rel. Bethell v. Kilvington

• Decision Date: 17 January 1898
• Citation: 45 S.W. 433,100 Tenn. 227
• Parties: STATE ex rel. BETHELL v. KILVINGTON, School Superintendent.
• Court: Tennessee Supreme Court

45 S.W. 433

100 Tenn. 227

STATE ex rel. BETHELL v. KILVINGTON, School Superintendent.

Supreme Court of Tennessee.

January 17, 1898

Error to circuit court, Davidson county; J. W. Bonner, Judge.

Habeas corpus by the state of Tennessee, on the relation of Grace Bethell, against W. C. Kilvington, superintendent of the Tennessee Industrial School. From an order dismissing the application, petitioner brings error. Affirmed.

Merritt & Brien and J. W. Moore, for plaintiff in error.

E. A Price, Champion, Head & Brown, and J. A. Ryan, for defendant in error.

WILKES J.

This is a habeas corpus proceeding to test the detention in the Tennessee Industrial School at Nashville, Tenn., of Lyndall Williams, a female about seven years of age at the time she was placed in said institution. The relator in the case is the mother of Lyndall Williams, and claims the right to recover the child, and its custody by virtue of the parental relation to her. It appears that her father is dead. The defendant Tennessee Industrial School was originally founded by the benefaction of E. W. Cole, one of the most public-spirited and charitable men Tennessee has ever produced. After its foundation it was taken in charge by the state, and is now being operated as a state institution under a board of directors consisting of the governor and other state officials of the executive department and a number of gentlemen of the highest character and standing, residing in different portions of the state. The defendant W. C. Kilvington is the superintendent, and has immediate charge of the institution. The state contributes liberally to its support, year after year, and reports of the operations are made to the general assembly at its stated sessions, and that body exercises a supervisiory jurisdiction over it. There have been committed to the care of the institution since its opening 1,408 persons, boys and girls white and black. Of this number 821 have been discharged, and 647 are now in the institution. They are instructed in the trades as well as in the common branches of education. It is not a penal, nor altogether a reformatory, institution, but is rather a place of refuge and school for homeless penniless children, where they may be received and cared for, taught the different grades of a common-school education, and trained in useful trades and branches of industry. The objects and purposes of the institution are best illustrated by the provisions of the acts of the general assembly, the latest being Acts 1891, c. 195; Shannon's Code, §§ 4418-4433. The act is entitled and provides as follows, among other things:

"An act for the benefit and protection of orphan, helpless, wayward and abandoned children.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that any judge or chairman of a county court in this state may cause to be brought before the court any child between the age of eight and eighteen years that comes within any of the following descriptions, to wit: (1) That is begging to receive alms, whether openly or under pretense of selling or offering for sale anything, but not when the selling is bona fide and not a pretense or cover for begging or receiving alms. (2) That is found wandering, and not having any home or settled place of abode. (3) That has no proper or sufficient guardianship to care for its physical, moral and mental welfare, to at least such a degree as will probably save the child from pauperism, lewdness and crime. (4) That is found destitute, either being an orphan, or having a parent or parents undergoing imprisonment or confined in a lunatic asylum, or where both parents are habitual drunkards, or where the only living parent is a habitual drunkard, and any child of such parent is not properly supported and controlled. (5) That frequents the company of lewd, wanton or lascivious persons in speech or behavior, or notorious resorts of bad character. (6) That is found wandering in streets, alleys or public places, with no means of support. (7) That has been abandoned in any way by parent or parents, or guardian, and has no means of support, and with idle habits; and if it shall appear to the satisfaction of the said county court that it would be manifestly for the interest of said child that it be committed to the Tennessee Industrial School, the court will so order and send the child to said school, to be held by it under the charter and by-laws of said school.

"Sec. 2. Be it further enacted, that said Industrial School may receive any child placed in its care and keeping by its parent or parents without the authority of any court; and said school may keep and care for said child until it is twenty-one years of age, unless sooner taken away by the request of its parent or parents, and released under the authority and by-laws of said school.

"Sec. 3. Be it further enacted, that the parent or parents may, and guardians other than parents must, invoke the authority of the county court when they desire to commit any child to said school, on the ground that said parent or parents, or guardians, or those having the child in charge are unable to control the child; and this is hereby made a ground for committing a child to said school: provided, it appear to the satisfaction of the court or officer before whom said child is brought for commitment that the commitment would probably be for the child's interest and welfare. But said Industrial School shall not receive any child under this or the preceding section until its parent or parents, or guardians or persons having the child in charge, shall satisfactorily agree with the officers of said school to supply sufficient funds for the maintenance of the child therein during its stay, and shall further agree to abide by all the rules, by-laws and requirements of said Industrial School.

"Sec. 4. Be it further enacted, that no child shall be committed to said school or received or retained therein on any ground other than the one single ground that the interest and welfare of the child will be thereby probably promoted.

"Sec. 5. Be it further enacted, that from the time of the lawful reception of any child into the school,

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