State ex rel. Cave v. Tincher
| Decision Date | 04 May 1914 |
| Citation | 166 S.W. 1028,258 Mo. 1 |
| Parties | THE STATE ex rel. NICK T. CAVE, Prosecuting Attorney of Callaway County, Appellant, v. J. W. TINCHER, Judge of Probate Court |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.
Affirmed.
John T Barker, Attorney-General, Thomas J. Higgs, Assistant Attorney-General, and S. P. Howell for appellant.
(1) The act is not in violation of section 12 of article 2 and section 22 of article 2 of the Constitution of Missouri. These sections of the Constitution do not apply to the act in question for the reason that the care of and custody of a neglected and delinquent child and the superintending control thereof as exercised by the court is not a criminal prosecution. In this State it has been held that a prosecution under a city ordinance is not a criminal prosecution. It is civil and quasi criminal in character. Ex parte Hollwedell, 74 Mo. 395; St. Louis v. Ameln, 235 Mo. 678; Delaney v. Police Court, 167 Mo. 667. "A crime is an act committed in violation of a public law." 4 Black. Com. 5; State v. Marmonget, 111 La. 225; Molter v. Knowack, 158 N.Y. 482; 22 Cyc 525. The juvenile act in question does not authorize contemplate or sanction the prosecution of a child under the age of seventeen years. The child is to be taken care of by the State when found in the conditions described as being "neglected" and "delinquent." It is not intended that there should be a prosecution, but on the contrary a supervision by the State over its children for the purpose of improving their condition both morally and physically. Marlowe v. Comm., 142 Ky. 113; In re Sharpe, 15 Idaho 120; Rooks v. Tindall, 138 Ga. 863; Ex parte Jamuszewski, 196 F. 123, 129; Commonwealth v. Fisher, 213 Pa. St. 52; Van Walters v. Board, 132 Ind. 569; Industrial School v. Supervisors, 40 Wis. 328. This court has held in the case of Ex parte Loving, 178 Mo. 194, that a juvenile act similar to the act in question was constitutional and also has approved the doctrine of "parens patriae." Again it has been held that juvenile laws such as the one in bar are in no sense criminal and are not intended as a punishment, but are calculated to save the child from becoming a criminal. Restraint is necessary in any institution of learning, however humble. Civilized society cannot live without it. Mill v. Brown, 31 Utah 473; Pugh v. Bowden, 54 Fla. 309; Lindsay v. Lindsay, 257 Ill. 328; In re Ferrier, 103 Ill. 367. (3) Neither does this act in letter or spirit conflict with the provisions of subdivisions 2 and 15 of section 53 of article 4 of the Constitution of Missouri. A law is not local and special when it operates generally upon all persons within the class. A law may practically apply to one locality and still not be local or special. State ex rel. v. Ryan, 232 Mo. 85; Ex parte Loving, 178 Mo. 209; Ex parte Lucas, 160 Mo. 218; State v. Hayes, 88 Mo. 344; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Wofford, 121 Mo. 61; Kenefic v. St. Louis, 127 Mo. 1; Kansas City v. Stegmiller, 151 Mo. 206; State ex rel. v. Higgins, 125 Mo. 364; State v. Etchman, 189 Mo. 658; Coffey v. Carthage, 200 Mo. 624; Ex parte Swann, 96 Mo. 51; State ex rel. v. Fort, 210 Mo. 512. A classification by population has been sustained in other states and held not to be within the constitutional provisions as being local and special. Gas Trust Co. v. Harless, 131 Ind. 452; State v. Berka, 20 Neb. 378; Haskel v. Burlington, 30 Iowa 236; Iowa Ry. Co. v. Soper, 39 Iowa 115; Pennsylvania Co. v. State, 142 Ind. 439; Rambo v. Larrabee, 67 Kan. 634. (3) The act in question does not violate the provisions of section 28, article IV of the Constitution of Missouri. A juvenile court bill similar to the one at hand has been held by this court to contain only one subject, and not void and unconstitutional. The title is germane to the subject, children. State v. Loving, 178 Mo. 204. (5) This act is not in violation of sections 34 and 35 of article 6 of the Constitution of Missouri. (a) Jurisdiction conferred by these sections of the Constitution on probate courts does not include the jurisdiction and duties contemplated in the act in question. Section 34 carved out and set aside from the jurisdiction granted circuit and county courts certain subjects and gave the probate court exclusive jurisdiction thereof. Young v. Boardman, 97 Mo. 190. What the Constitution has given, the Legislature cannot take away. Redman v. Railroad, 225 Mo. 731. The only provision in section 34 that could possibly confer upon the probate court a jurisdiction which would include the relationship over a minor as contemplated by the act in question is the provision which provides that the court shall have jurisdiction over all matters pertaining to the appointment of guardians and curators of minors. The relation created by the act does not confer authority over the child's property; nor does it confer the legal authority to represent a child in court. The jurisdiction is neither criminal nor probate, but tends more toward criminal jurisdiction than probate jurisdiction. The jurisdiction assumed is more an exercise of the State's police power, viz.: to benefit the State at large and to guard its morals, safety and health, thereby insuring such economic conditions that civilization and citizenship will be advanced to a higher and more perfect standard. The guardianship, if it can be called a guardianship, intended to be created by the words "guardians and curators" is a guardianship of comparatively recent origin assumed by the State for the purpose of protecting its children in such manner that citizenship and civilization may be of a higher physical, mental and moral standard. The Legislature of this State, however, has already indicated that a similar act to the one in question was not of probate jurisdiction as defined by the Constitution of this State in section 34 of article 6. The juvenile court act of 1903 conferred the jurisdiction of juvenile matters upon the circuit courts in counties having 150,000 population and over. If such jurisdiction was of probate jurisdiction the act was in violation of the Constitution when it conferred that jurisdiction upon the circuit court. This court has declared the act of 1903 valid and constitutional. Ex parte Loving, 178 Mo. 194. The court, in rendering the decision in the case of Ex parte Loving, supra, must have considered that the exercise of jurisdiction given under juvenile acts was not an exercise of probate jurisdiction within section 34 of article 6 of the Constitution. If juvenile courts are of probate jurisdiction, under the Constitution such jurisdiction is exclusive in the probate courts and circuit courts could not constitutionally exercise such jurisdiction. (b) Section 35 of article 6 only requires uniformity as to probate jurisdiction and duties conferred upon probate courts by section 34 of article 6. Section 35 of article 6 requires that probate courts shall be uniform in organization, jurisdiction, duties and practices. This section of the Constitution refers to section 34 of article 6 and means a uniformity of probate courts there described. The only jurisdiction and duties, therefore, that of necessity under the Constitution need to be uniform is that jurisdiction and those duties described in section 34. In accordance with the section above the exercise of jurisdiction over juvenile courts is not an exercise of probate jurisdiction as defined by the Constitution. (c) The Legislature may place upon officers and judges of this State such additional duties as it may deem proper. The Legislature of this State by statute has frequently cast upon officers, courts and judges of this State duties different and separate and apart from those placed upon such officers, courts and judges by the Constitution in creating such offices. Bank v. Refrigerating Co., 236 Mo. 414; State ex rel. v. Higgins, 125 Mo. 368; State ex rel. v. Gordon, 245 Mo. 28; Throop, Public Officers, p. 19, sec. 19. (d) The Legislature can cast an additional duty upon any court when not prohibited by any provision of the Constitution from so doing. State ex rel. v. Higgins, 125 Mo. 368; State v. Hathaway, 115 Mo. 49; People ex rel. v. Provines, 34 Cal. 540; State v. Tolle, 71 Mo. 648.
J. R. Baker for respondent.
(1) The act in question violates section 12, article 2, of the Constitution of Missouri. It has been held by this court in the case of State v. Shartell, 93 Mo. 123, that the information meant by the above quoted section of the Constitution is meant an information by a public officer, and that no information other than the information by a public officer authorized to prosecute crime is sufficient to support a prosecution. So it would seem then that the act in question, inasmuch as it authorizes an information to be filed by any resident of the county, violates these plain provisions of the Constitution. (2) The act violates section 22, article 2, of the Constitution of Missouri. An examination of Sec. 5, p. 150, Laws 1913, which prescribes the mode of procedure, shows that such cases shall be heard in a summary manner, and that the hearings may be conducted in the judge's chambers, and that the decision shall be made by the judge alone. A reading of this section, and of section 6, shows conclusively that the right of trial by jury is not contemplated. Inasmuch as this procedure is the procedure prescribed when any child under the age of seventeen years is accused of violating any law of this State, it certainly is a procedure for enforcement of criminal law. Being a procedure for the enforcement of the criminal law, it is certainly a criminal prosecution. If it is a criminal prosecution, then it violates this section of the Constitution, in that it deprives ...
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