Wis. Indus. Sch. for Girls v. Clark Cnty.

• Decision Date: 02 June 1899
• Citation: 103 Wis. 651,79 N.W. 422
• Parties: WISCONSIN INDUSTRIAL SCHOOL FOR GIRLS v. CLARK COUNTY.
• Court: Wisconsin Supreme Court

103 Wis. 651

79 N.W. 422

WISCONSIN INDUSTRIAL SCHOOL FOR GIRLS

v.CLARK COUNTY.

Supreme Court of Wisconsin.

June 2, 1899.

Syllabus by the Judge.

1. The expense of maintaining children, committed under sections 1546 and 1547, Rev. St., to industrial school corporations, is chargeable to the counties from which the commitments are made unless otherwise specified therein.

2. When a statute is open to judicial construction the court should look to the whole and every part of the law, to the intent apparent therefrom, the subject-matter, the effect and consequences, and the apparent reason thereof, and then give effect to the idea in the legislative mind in its enactment if that can reasonably be discovered and spelled out of the words they used to express it, though it violates the literal sense of such words.

3. The legislative will attempted to be expressed in a statute, though determinable only by judicial construction, when so determined is as much a part of the law as if it were literally expressed.

4. The constitutional provision, section 2, art. 7, vesting the judicial power of the state in courts, does not deprive judges of such courts from exercising such powers at chambers as were customarily exercised before the constitution, or any other power of a judicial nature authorized by the legislature, not requiring a trial of an issue of fact.

5. The commitment of a child to an industrial school corporation, not as a punishment for crime but to furnish the child needed guardianship, maintenance and care for its benefit and that of society, is not an interference with personal liberty requiring a trial by jury to justify it.

6. The taxing power of the state cannot be used to furnish a gratuity to a person or corporation engaged in a private enterprise, though it be one in which many persons are interested; but it may be used to compensate such person or corporation for a public service.

7. The test of whether an agency may be used by the state, or particular political subdivision thereof, by legislative authority, to perform service at public expense, is not whether the agency is private, but whether the service is within governmental functions. If the purpose of the employment be public and constitutional, and the agency be an appropriate means to accomplish such purpose, and not prohibited by state or nationalconstitution, it is, under reasonable regulations, constitutional.

8. Where a child, by reason of poverty or other cause, stands in need of proper parental care and maintenance, it is a legitimate governmental function to furnish the necessary relief; and the employment of a private corporation, organized specially to care for children in such situations, is the use of an appropriate means to perform the duty of the state, and is constitutional.

Appeal from circuit court, Clark county; James O'Neill, Judge.

Action by the Wisconsin Industrial School for Girls against Clark county. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

According to the complaint, plaintiff, during the times mentioned therein, was an industrial school corporation organized under the laws of this state. Certain vicious, abandoned, incorrigible and vagrant children, specified, were duly committed to its custody and care by the county judge of the defendant county, and such county, by reason thereof, and the services rendered by plaintiff in the care and maintenance of such children from November, 1894, to November, 1897, inclusive, became indebted to plaintiff in the sum of $1,968.64. No contract was made with the county for the maintenance of such children, but for the years prior to 1894 it customarily paid plaintiff, without objection, $2.50 per week for each such child; and the care and maintenance from November, 1894, to November, 1897, inclusive, was reasonably worth that price per week. There were further allegations that plaintiff properly filed its claim with the county clerk for the indebtedness mentioned, for consideration and allowance by the county board. The claim was disallowed by such board. Plaintiff took an appeal to the circuit court in due form of law and there made a formal complaint pursuant to the court's order. When the matter first came on for hearing in the circuit court, plaintiff's complaint consisted of its claim as filed with the county clerk, to which defendant had filed a general demurrer. The issue thus formed was decided in plaintiff's favor, with leave to the defendant to answer on the usual terms within 10 days after service of a formal complaint. A complaint was served in due time, to which defendant demurred generally. The issue thus formed was heard without objection and decided in defendant's favor. The appeal is from the order accordingly entered.

E. E. Chapin and R. J. MacBride, for appellant.

George B. Parkhill and George L. Jacques, for respondent.

MARSHALL, J. (after stating the facts).

The following propositions are urged in support of the order appealed from, either one of which, if sound, is fatal to plaintiff's cause of action: (1) The expense of care and maintenance of children committed to industrial schools of this state by county judges under section 1547, Rev. St. and received, cared for and maintained accordingly under section 1786, Id., is not by statute imposed on the counties from which the children are committed. (2) The statute purporting to confer on judges of courts of record authority to commit children to industrial schools contravenes the constitutional provision vesting all judicial power in certain specified courts created by legislative enactment pursuant thereto, and contravenes the constitutional guaranty of trial by jury. (3) The duty of maintaining dependent children, so far as assumed and exercised as a function of government, cannot be delegated to a private corporation to be performed at public expense. (4) Children not paupers or restrained of their liberty as punishment for crime cannot be maintained at public expense by a private corporation. We will consider each of such propositions.

1. There is no county liability in the circumstances stated in the first proposition unless there is a statute expressly or by necessary implication creating it. To determine whether such a statute exists, at the outset recourse must be had to the first legislation on the general subject of caring for children in state industrial schools, and a comparison of it with the law on such subject as it now exists.

Following precedents in other states dating at least as early as 1826 (Ex parte Crouse, 4 Whart. 9), the legislature of this state enacted chapter 325, Laws 1875, providing for the organization of industrial schools for the care, guardianship, education and training of such boys and girls as should be committed to their custody for that purpose under its provisions. In order to insure the beneficent object of the law it was provided that each organization should be composed in whole or in part of ladies not less than 20 years of age. The law contemplated the organization of corporations without capital stock, for purely charitable purposes, without income other than to pay the expenses of the work to be conducted. The only requisite to membership was that an applicant therefor should be a contributor to the expense of the corporation in the manner provided for in the by-laws. No provision was made for distribution of profits, as there was to be no such feature as profits to members. The object was to enable several persons to unite and act as one in caring for and maintaining such boys and girls as might stand in need of such services for the reasons mentioned in the law. Any judge of a court of record, among other officers, was authorized to cause to be brought before him any male child under the age of 12 years, or any female child under the age of 16 years, found begging or receiving alms, or in a public street for that purpose, or found wandering without a home or settled abiding place, proper guardianship, or means of subsistence, or found destitute, either by means of being an orphan or having a parent or parents undergoing imprisonment, or frequenting the company of reputed thieves or lewd, wanton or lascivious persons, or notorious resorts of bad characters, or found wandering in streets, alleys or public places, belonging to the class of children called “rag-pickers,” or an inmate of a house of ill fame or poor house, whether in common with its parent or parents or otherwise, or abandoned in any way by parents or guardian, or without means of subsistence or support. Having brought any child of the description mentioned before him, the judge was authorized, upon being satisfied that the welfare of such child would be promoted thereby, to order it sent to an industrial school organized under the act, to be kept and maintained at the expense of the county until it arrived at the age of 21 years, or was sooner discharged as provided in the act; and it was expressly provided that a child so placed should be there maintained at the expense of the county. The act further provided for the reception, care and maintenance of any child belonging to either of the classes mentioned, when so placed in an industrial school by its parents or guardian, or committed to such school by a judge of a court of record of the county upon complaint of its parents, guardian, or, if none, those having it in charge, because of their inability to control the child and desire to have it sent to an industrial school, upon due proof that the welfare of the child would be promoted thereby. There were further provisions in regard to the commitment of children to industrial schools upon their conviction of crime punishable by imprisonment. Sections 5 and 6 of the law contained all of the act relating to the manner of placing children in the schools and their maintenance by the corporations at public expense. Other parts of the act related to...