V, In re, 46356
| Decision Date | 12 November 1957 |
| Docket Number | No. 46356,46356 |
| Citation | 306 S.W.2d 461 |
| Parties | Matter of _____ V _____, a Child Under Seventeen Years of Age. |
| Court | Missouri Supreme Court |
Paul H. Reis, St. Clair, Robert C. Frith, Chillicothe, for petitioner.
John M. Dalton, Atty. Gen., Robert R. Welborn, Harold L. Henry, Asst. Attys. Gen., for respondent.
Habeas Corpus. The petitioners seek the release of their daughter, now aged 14 years, from the State Training School for Girls at Chillicothe, where she is held in custody pursuant to a judgment of the Magistrate Court of Franklin County, rendered on January 19, 1957, adjudging her to be a delinquent child within the meaning of the juvenile laws of this state and committing her to the State Board of Training Schools for an indeterminate time, not to exceed, however, her attainment of the age of twenty-one years.
It is alleged that the Magistrate Court was without jurisdiction of the subject matter or the person of the child and that she was denied due process of law. Issuance of the writ was waived. The return admitted custody of the child and pleaded the judgment as lawful authority for her detention. The issue to be determined turns upon the meaning and efect of the herein italicized portion of Article V, Sec. 20, of the Constitution of Missouri, V.A.M.S., which provides:
'Until otherwise provided by law consistent with this constitution, the practice, procedure, administration and jurisdiction of magistrate courts, and appeals therefrom, shall be as now provided by law for justices of the peace; and in counties of less than seventy thousand inhabitants magistrate courts shall have concurrent juvenile jurisdiction with the circuit court, and the powers of the circuit judge in chambers when the circuit judge is absent from the county.'
In 1945, the Legislature, as a part of its monumental task of implementing the portions of the Constitution it considered not to be self-executing, enacted a statute, Laws 1945, pp. 765-804, providing for the organization and administration of magistrate courts. Section 11 thereof, pp. 771-772, provided:
'Magistrate courts, in counties of less than 70,000 inhabitants, shall have concurrent juvenile jurisdiction with the circuit court, and the powers of the circuit judge in chambers when the circuit judge is absent from the county.'
However, in 1947, Laws 1947, pp. 240-241, the Legislature, repenting of its haste in vesting magistrate courts with jurisdiction over juveniles coextensive with that of circuit courts, repealed the foregoing section and enacted a new Section 11, providing only that:
'Magistrate courts, in counties of less than seventy thousand inhabitants, shall have the powers of the circuit judge in chambers when the circuit judge is absent from the county.' Section 482.130 RSMo 1949, V.A.M.S.
Since that time there has been no enactment of legislation implementing Article V, Sec. 20, of the Constitution with respect to the exercise by them of any jurisdiction over any phase of the laws relating to 'juveniles'. To the contrary, the code in existence at the time of the adoption of the Constitution (and certain amendments as found in Chapter 211, RSMo 1949, V. A M.S.) relating to the treatment of neglected and delinquent children has been repealed and a comprehensive new and modernized code enacted in lieu thereof. See Laws 1957, pp. ___, ___. That code declares, Section 211.021(3), V.A.M.S.:
"Juvenile court', means the Cape Girardeau court of common pleas and the circuit court of each county, except that in the judicial circuit having more than one judge, the term means the juvenile division of the circuit court of the county.'
Is the portion of Article V, Sec. 20, in question self-executing?
A constitutional provision is self-executing when it appears it was intended to have immediate effect and ancillary legislation is not necessary to the enjoyment of the right given or the enforcement of the duty imposed. When, however, general principles or powers are declared and specific legislation is contemplated or is necessary to make such principles or powers operative within the scope of their fair intendment and meaning, they are not and cannot be self-executing. State ex rel. City of Fulton v. Smith, 355 Mo. 27, 194 S.W.2d 302, 304; State ex rel. Millar v. Toberman, 360 Mo. 1101, 232 S.W.2d 904, 905-906; 11 Am.Jur., Constitutional Law, Secs. 74, 75, pp. 691-694. And, obviously, if the provision is so vague as not to admit of an understanding of its intended scope, it cannot be self-executing. Scopes v. State of Tennessee, 154 Tenn. 105, 289 S.W. 363, 366, 53 A.L.R. 821. Especially is this true if to construe it to be self-executing would work confusion and mischief. State ex rel. Moore v. Toberman, 363 Mo. 245, 250 S.W.2d 701, 705. 1
The first clause of Article V, Sec. 20, in unmistakable terms not only defines in specific detail the jurisdiction of the newly created magistrate courts insofar as their jurisdiction would supersede that formerly exercised by justices of the peace, but it goes further and directs that until the Legislature otherwise provides such jurisdiction shall be exercised and administered according to the existing laws regulating the practice and procedure of justice courts. Thus, there appears a clearly expressed intention to make that provision immediately self-executing.
Not so phrased, however, is the clause with which we are concerned. That clause with which we are concerned. That created magistrate courts 'concurrent juvenile jurisdiction with the circuit court', makes no provision, by reference or otherwise, for rules of practice, procedure or administration by which its jurisdiction in that respect shall be exercised. Neither does it declare whether the 'concurrent' jurisdiction of magistrate courts shall be co-extensive with that of the circuit courts and common pleas court so as automatically to vest magistrate courts with all phases of 'juvenile jurisdiction' which heretofore have been or hereafter may be vested in the latter courts; nor does it fix or define the scope and meaning attached to the term 'juvenile jurisdiction'. The extent to which the provision is meant to apply in that respect is of grave moment. The jurisdiction of magistrate courts (successors to justice of the peace courts) in criminal cases is now and traditionally has been limited to misdemeanors and preliminary examinations in felony cases, while circuit courts now have and traditionally have had concurrent jurisdiction of misdemeanors and exclusive jurisdiction of felonies. If, however, by...
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