State ex rel. Miller v. Bryant

• Decision Date: 24 December 1913
• Docket Number: No. 18,351.,18,351.
• Citation: State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804 (Neb. 1913)
• Parties: STATE EX REL. MILLER, SUPERINTENDENT OF PUBLIC INSTRUCTION, v. BRYANT, COUNTY JUDGE.
• Court: Nebraska Supreme Court

94 Neb. 754

144 N.W. 804

STATE EX REL. MILLER, SUPERINTENDENT OF PUBLIC INSTRUCTION,

v.BRYANT, COUNTY JUDGE.

No. 18,351.

Supreme Court of Nebraska.

Dec. 24, 1913.

Syllabus by the Court.

The provisions of chapter 59, Laws 1905, entitled “An act to regulate the treatment and control of dependent, neglected and delinquent children,” are not opposed to sound public policy. On the contrary, they tend to foster and promote such a policy.

The provisions of the act above described defining the power and jurisdiction of the district court is not unconstitutional as creating a new court; such court being an existing court of general common-law and equity jurisdiction, and recognized by the Constitution.

The proviso to section 2 of the act giving concurrent jurisdiction to the police judge in cities having a population of 40,000 and upwards within the limits of such city was not an inducement to the passage of the act, and it is not necessary in this case to determine its constitutionality.

The legislative amendment of 1913 (Laws 1913, c. 38) to the act which relates to the pensioning of dependent children who have indigent parents is not involved in this controversy, and its validity is not decided.

Appeal from District Court, Cedar County; Graves, Judge.

Mandamus by the State, on the relation of William E. Miller, Superintendent of Public Instruction of Cedar County, against Wilbur F. Bryant, County Judge of Cedar County. From a judgment awarding the writ, respondent appeals. Affirmed.Wilbur F. Bryant, of Hartington, for appellant.

Lincoln Frost and Walter L. Pope, both of Lincoln, amici curiæ.

W. E. Miller, pro se.

BARNES, J.

Appeal from a judgment of the district court of Cedar county awarding the relator a writ of mandamus to compel the county judge of that county to file a petition, under the provisions of the juvenile court law of 1905, to issue the process of the court and proceed to a hearing thereon.

It appears that the relator prepared and tendered to the county judge, in the absence of the judge of the district court from Cedar county, a complaint in due form charging that one Leo Tatro, a child 13 years of age, living with his father at Hartington in said county, is a neglected child, in that he has never been sent to the public school of the district in which he resides, or to any other school, as provided by the statutes of this state, and that he is kept at hard manual labor above and beyond his strength.

The prayer of the petition was for process, and an examination before the court, and for such order as might be found necessary and proper in the premises. Relator, at the same time, tendered to respondent the necessary fees, which he refused to accept or receive, and thereupon respondent declined to file said petition, and refused to take any action thereon. Relator then commenced this action in the district court in mandamus. On a hearing on a demurrer to the application, the writ was awarded, and the respondent has appealed.

[1] The respondent contends that the juvenile court law of 1905 (Laws 1905, c. 59 [Comp. St. 1911, c. 20, art. 2, § 1 et seq.]) is against public policy, and summarizes his argument as follows: First. That this law makes the state the supreme authority over a child, while its parents are mere trustees. Second. That section 14 of the original act permits brokerage in children. Third. That the legislative amendment of 1913, which relates to the pensioning of children who have indigent parents, is unconstitutional and void.

The law in question substantially in its present form has been adopted by many of the other states, and the courts of those states have often been called upon to determine its nature, scope, policy, and validity. It may be said that its purpose is to help, not punish, the child. Its functions are largely parental, and it acts in the interests of the child, not adversely thereto. The law is not of a criminal nature. The purpose of the criminal law is to punish, while the juvenile law is to help, the child, and restraint is only imposed as a means of such help.

The policy and constitutionality of a statute very like our own was before the Supreme Court of Pennsylvania in Commonwealth v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 Ann. Cas. 92. It was there said: “The design is not punishment, nor the restraint imprisonment, any more than is the wholesome restraint which a parent exercises over the child. The severity in either case must necessarily be tempered to meet the necessities of the particular situation. There is no probability, in the proper administration of the law, of the child's liberty being unduly invaded. Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated; but one of the most important duties which organized society owes to its helpless members is performed just in the measure that the law is framed with wisdom and is carefully administered. The conclusions above expressed are in accordance with adjudications elsewhere, with but very few exceptions.”

In Re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A. (N. S.) 886, the court uses the following language: “We may premise our citation of authorities, however, by a general statement that this statute is clearly not a criminal or penal statute in its nature. Its purpose is rather to prevent minors under the age of 16 from prosecution and conviction on charges of misdemeanors, and in that respect to relieve them from the odium of criminal prosecutions and punishments. Its object is to confer a benefit both upon the child and the community in the way of surrounding the child with better and more elevating influences, and of educating and training him in the direction of good citizenship, and thereby saving him to society, and adding a good and useful citizen to the community. This, too, is done for the minor at a time when he is not entitled, either by natural law or the laws of the land, to his absolute freedom, but rather at a time when he is subject to the restraint and custody of either a natural guardian or a legally constituted and appointed guardian to whom he owes obedience and subjection. Under this law the state, for the time being, assumes to discharge the parental duty, and to direct his custody and assume his restraint.”

In Mill v. Brown, 31 Utah, 473, 88 Pac. 609, 120 Am. St. Rep. 935, the court said: “Such laws are most salutary, and are in no sense criminal, and not intended as a punishment, but are calculated to save the child from becoming a criminal. The whole and only object of such laws is to provide the child with an environment such as will save him to the state and society as a useful and law-abiding citizen, and to give him the educational requirements necessary to attain that end. To effect this purpose, some restraint is essential.”

Statutes of the nature of the one in question, unless they plainly conflict with the Constitution, are generally taken by the courts to be the best evidence of an enlightened public policy. It is a naked assumption to say that any matter allowed by the Legislature is against public policy. The best indication of public policy is found in the enactments of our Legislatures. To say that such a law is of an immoral tendency is disrespectful to the Legislature, who no doubt designed by its adoption to promote morality. This court has gone so far as to hold that, before a law can be determined unconstitutional, the express provision of our Constitution which that law contravenes must be pointed out. Boyes v. Summers, 46 Neb. 308, 64 N. W. 1066. And...