Wissenburg v. Bradley

• Decision Date: 22 October 1929
• Docket Number: No. 39927.,39927.
• Citation: 227 N.W. 136
• Parties: WISSENBURG v. BRADLEY, DISTRICT JUDGE.
• Court: Iowa Supreme Court

227 N.W. 136

WISSENBURG

v.BRADLEY, DISTRICT JUDGE.^a1

No. 39927.

Supreme Court of Iowa.

Oct. 22, 1929.

Appeal from District Court, Cherokee County; C. C. Bradley, Judge.

Proceedings in certiorari brought in this court to review certain proceedings of the juvenile court of Cherokee county. Writ dismissed; order affirmed.Wm. Mulvaney and Claud M. Smith, both of Cherokee, for plaintiff.

R. G. Rodman, Co. Atty., of Cherokee, for defendant.

FAVILLE, J.

On April 9, 1929, the county attorney of Cherokee county filed an information in the district court of said county, charging that the petitioner herein is a minor, under 18 years of age, a resident of Cherokee county, and is delinquent and incorrigible, and praying the court to make an order committing said petitioner to the Iowa Industrial School for Boys. On said day, a waiver of notice of said hearing was duly signed and filed in said action by the foster father of said petitioner, and on said 10th day of April, 1929, the petitioner appeared in person and by his attorney in said juvenile court. Both the foster parents of said petitioner also appeared with him at said time. The respondent at said time heard the evidence, under oath, of the foster parents and other witnesses, including the sheriff and the superintendent of schools, and also had a private interview with the petitioner. No order in relation to said matter was made at said time, and the respondent informed all parties present that the cause would stand continued, and would follow cases already assigned for trial in the district court. Thereafter, to wit, on April 16, 1929, all parties in interest were informed that said cause would come on for final hearing on April 17, 1929. On said date, the respondent, acting as judge of said juvenile court, signed an order appointing one Stiles as probation officer for said court, and thereafter, on said day, said hearing of said cause was resumed, at which time the petitioner appeared in person and by his attorney. The foster father of petitioner also appeared, and the probation officer was present.

It appears from the return of respondent herein that, previous to said time and after the 10th day of April, the respondent had conferred with the party appointed probation officer, and had secured his consent to act as such probation officer, if so appointed, and, in anticipation of such formal appointment, at the request of the respondent, the said party had made an investigation in regard to the matters involved in the hearing. The probation officer made his report of his investigation to the respondent at the hearing on April 17th. Other witnesses who had previously testified were present at the hearing and again testified. At said hearing, the respondent made an order finding the petitioner herein to be delinquent, incorrigible, and beyond the control of his foster parents, and sorely in need of training, discipline, and supervision, and ordered him committed to the Iowa Industrial School for Boys at Eldora, Iowa, until he shall attain the age of 21 years. Thereafter, upon petition to one of the judges of this court, a writ of certiorari was issued to review said proceedings.

[1] I. The statutory provisions regarding juvenile courts in this state are found in chapters 179 and 180 of the Code. The petitioner challenges the constitutionality of said chapters under both the federal and state Constitutions.

Section 1 of the Fourteenth Amendment to the Constitution of the United States is, in part, as follows:

“* * * Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 9, article 1, of the Constitution of Iowa, is as follows:

“The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law.”

The petitioner contends that the said constitutional provisions are violated by said chapters, for the reason that the said statutes make no provision for a trial by jury in proceedings authorized thereunder. Petitioner's contention is that he has been deprived of his liberty without due process of law by reason of the fact that he was not tried to a jury. It has been frequently announced by this and many other courts that due process of law, within the meaning of both the federal and state Constitutions, does not necessarily imply a trial by jury. McKeever v. Jenks, 59 Iowa, 300, 13 N. W. 295;Yeomans v. Riddle, 84 Iowa, 147, 50 N. W. 886;In re Bradley, 108 Iowa, 476, 79 N. W. 280;Ross v. Supervisors, 128 Iowa, 427, 104 N. W. 506, 1 L. R. A. (N. S.) 431;Hunter v. Coal Co., 175 Iowa, 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. Cas. 1917E, 803.

It has been the uniform holding, under similar statutes providing for a juvenile court with the power of commitment of delinquent and incorrigible juveniles, with no provision for a trial by jury, that such statutes are not within the constitutional prohibition. The cases are collected in 35 Corpus Juris, p. 195, § 100, and 12 Corpus Juris, p. 1210, § 986.

[2] II. The petitioner also contends that said chapters 179 and 180 are unconstitutional, because there is no provision therein for an appeal, and it is argued that, by reason of the failure to make such provision, the petitioner is denied due process of law. At common law, the right of appeal was unknown. It is purely a creature of statute. State v. Olsen, 180 Iowa, 97, 162 N. W. 781;State v. Caplan, 85 Conn. 618, 84 A. 280;Davidson v. Commonwealth, 174 Ky. 789, 192 S. W. 846. The right of appeal is not a constitutional right, and it is wholly within the power of the Legislature to grant, or deny, it in either civil or criminal cases. Ross v. Supervisors, supra; Ward v. State, 171 Ind. 565, 86 N. E. 994.

In the presentation of this question, both parties have assumed that there is no right of appeal in such cases under our statutes. We have considered the question upon this assumption, and without making any pronouncement as to whether or not such right of appeal may exist.

III. It is the contention of the petitioner that the respondent...