In re Sanders

1. State Reform School — Valid Statute. Chapter 129, Laws of 1881, (¶¶ 6513-6529, Gen. Stat. of 1889,) is not unconstitutional by reason of conflict with § 16, article 2, of the constitution; and the title of the act providing “for the organization and management of the state reform school” is broad enough to include the provisions of the act permitting boys under the age of 16 to be placed in or committed to the school by courts of record, including probate courts. 2. Certain Words, Construed. The words, “who may be liable to punishment by imprisonment,” in the first subdivision of §4, chapter 129, Laws of 1881, may be construed as, “who may be subject to punishment by imprisonment.” With this construction, that provision of the act is also constitutional. 8. Pbobate Judge — Authority to Commit. A probate judge has no authority, under the first subdivision of § 4 of chapter 129, Laws of 1881, to commit a boy under 16 years of age, without his consent, and against the objections of his parents, to the reform school, who is charged only upon a complaint filed with him with the specific crime of burglary, when such boy has not been previously convicted of the offense by some court having jurisdiction to hear and try the same.

Oiiginal Proceeding in Habeas Corpus. On November 29, 1893, the following complaint, duly verified, was filed with the probate judge of McPherson county: “State op Kansas, 1 r ,, , , , McPherson County, )ss‘ In the Probate oourt “E. F. Haberlein, being duly sworn, on oath says, that Robert Hunt and Edward Sanders are boys under the age of 16 years; that said Robert Hunt and Edward Sanders are liable to punishment by imprisonment, under the laws of this state, for the offense of burglary; that is to say, that on the 28th day of November, 1893, and in the nighttime of said day, in the county of McPherson and state of Kansas, said Robert Hunt and Edward Sanders did then and there unlawfully, feloniously and burglariously break into and enter the store of the said E. F. Haberlein, in which store certain ■ goods, wares, merchandise and other valuable things were then and there kept and deposited, with the intent the said goods, wares, merchandise and other valuable things in said store then and there being to steal, take, and carry away. Ed. F. Haberlein. “Subscribed and sworn to before me, this 29th day of November, 1893. J. W. Walker, Probate Judge.” [ SEAL.] A warrant was issued, the boys were arrested, and five day»’ notice of the time of hearing the complaint was given to the parents. At such date the boys appeared, as did the county attorney, the father and mother of Robert Hunt, and their private counsel, Messrs. Grattan & Grattan, the father of Henry E. Sanders, and his counsel, Milliken & Galle. The parents of Robert Hunt consented that the court should commit him to the reform school, and, through their private counsel and the county attorney, vigorously urged that both boys should be so committed. The father of Henry E. Sanders personally and by counsel, so far as he was concerned, objected thereto, and insisted, that inasmuch as there was no other accusation against him than that of burglary, and that as his father not only refused to consent, but objected to the court considering the charge, and as he had never been tried or convicted of the offense charged, that the court had no power or jurisdiction to try him therefor. The court overruled such objections, and proceeded to inquire into the case, when a jury trial was demanded by the Sanderses, father and son, which was refused, and the court, after hearing the evidence, found the charge of the complaint to be true, and that Robert Hunt was 14 and Henry E. Sanders 13 years of age, and that they were both proper subjects for commitment to the reform school, and accordingly so committed both of them until their majority, unless sooner discharged as permittted by law. ... A warrant was placed in the hands of J. W. Freeborn, sheriff of McPherson county, to convey them to the school, but, before it was executed as to Henry E. Sanders, a writ of habeas corpus was sued out by him in this court, returnable on the 3d day of January, 1894, at which time the sheriff produced the child in court, justifying his detention and restraint by reason of the complaint, warrant, and proceedings. The case was submitted upon the record. The opinion herein was filed at the session of the court in April, 1894. Our contention is, that the probate court had no jurisdiction to commit the child: First, because the case was not brought within the provisions of the statute. Gen. Stat. of 1889, ¶ 6516. Second, bécause said act is unconstitutional. The respondent justifies the detention and restraint under proceedings had under the first subdivision of this act. The whole contention depends upon what is meant by the words “who may be liable to punishment by imprisonment.” We think no one can be said to have incurred such liability until he shall have had a trial according to the constitutional provisions and prescribed forms of criminal procedure. Liable means responsible, obliged, bound, answerable. An incurred liability is distinguished from an event possible or likely to occur. For example: “He was held liable upon the note or contract,” or for contempt or to punishment. The constitutionality of the law upon the first proposition depends wholly upon whether or not the proceedings had by the probate court are a trial, within the meaning of §§ 5 and 10 of the bill of rights, and this depends somewhat upon whether or not the commitment to the reform school of a boy charged with a crime and so tried is punishment. As to the distinction between commitment for crime and for want of proper parental care, which is the pivotal point in this case, § 80 of Hochheimer on the Custody of Infants says: “The principle upon which legislation authorizing the commitment of infants without proper parental care or guardianship to industrial schools and similar institutions is upheld does not extend to authorize the commitment of infants to juvenile institutions as a punishment for the commission of crime without the observance of all the regular formalities of criminal procedure.” On page 52 of 30 Central Law Journal, this author, in a leading article, reaffirms the above doctrine in these words: “When the object of the restraint or imprisonment in any institution is punished for crime, a minor cannot be proceeded against or committed without the observance of all the regular formalities of criminal procedure. The constitutional guaranties of jury trial, due process of law, and the like, apply with equal force in these cases as in the case of adult offenders.” See, also, Ex parte Grouse, 4 Whar. 9; People v. Turner, 55 Ill. 280; McLean v. Humphreys, 104 id. 378; Prescott v. The State, 19 Ohio St. 184; The State v. Pay, 55 Am. Rep. 458; In re Ferrier, 103 Ill. 367; In re Ryan, 37 Ohio St. 197; Farnham v. Fierce, 141 Mass. 203; The State, ex rel., v. Brown, 52 N. W. Rep. (Minn.) 925; In re Mason, 28 Pac. Rep. (Wash.) 1025; Industrial School v. Supervisors, 40 Wis. .328; Both v: House of Refuge, 31 Md. 329; Commonwealth v. Horregan, 127 Mass. 450. While the title and subject-matter are to be liberally construed to sustain legislation, it is mandatory upon the courts, when in conflict with this provision, to declare them void, to guard against the abuses intended to be prevented. Suth. Stat. Cons., §92; The State v. Barrett, 27 Kas. 213; Comm’rs of Sedgwick Co. v. Bailey, 13 id. 600. The act is broader than its title. Shepherd v. Helmers, 23 Kas. 509; Swayze v. Britton, 17 id. 625; Comm’rs of Sedg-wick Co. v. Bailey, 13 id. 600. If the statute in controversy confers a jurisdiction upon the probate court as a court that is not within the limits prescribed by the constitution, it contravenes article 3 of §8, and is void. There is no language in the act that by any possible construction can be interpreted to mean that his acts are those of the judge. It is “courts of record and probate courts” that have authority to act, and everywhere that the term is used it is the “court,” not the judge, that is named. The “court” is to be “satisfied that the complaint is true,” and that upon the “final hearing” renders the judgment of commitment, etc. The petitioner contends that the proceedings had by the probate court in this case were a trial, within the meaning of §§ 5 and 10 of the bill of rights. An examination of the authorities plainly shows that the position of the petitioner cannot be maintained. In our opinion, the words “ all prosecutions,” as used in § 10 of the bill of rights, were intended to mean only all criminal prosecutions for violations of the laws of the state. The State, ex rel., v. City of Topeka, 36 Kas. 86. See, also, The State, ex rel., v. JDurein, 46 Kas. 695. “An act of the legislature providing for the committing to .•an industrial school of dependent infant girls found begging, ■etc., is not unconstitutional as being in restraint of personal liberty, nor because a trial by jury is not accorded.” In re Ferrier, 103 Ill. 367 (42 Am. Rep. 10); Ross v. Irving, 14 Ill. 171. See, also, Éxparte Grouse, 4 Whar. (Pa.) 9. “The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent who would otherwise be condemned to confinement.” Prescott v. The State, 19 Ohio St. 188. A reform school is not a penal institution, and, in case of ■conviction for crime, sentence is only suspended, and the offender committed for the purpose of being reformed. In re Mason, 28 Pac. Rep. (Wash.) 1025. The mode of procedure pointed out in this legislation is not in violation of the fundamental law of the state which provides that the right of trial by jury shall remain inviolate. The State, ex rel., v. Brown, 52 N. W. Rep. (Minn.) 935. The title to the act contains the one broad subject, “a reform school,” and everything found in the act is germane to such subject. The one object of the act was to determine what boys needed reforming, and to provide a place for their reformation. See Cooley, Const. Lim. 144; The State v. Barrett, 27 Kas. 213; The State v. Bush, 45 id. 140; Woodruff v. Baldwin, 23 id. 491; Gomm’rs of Cherokee Go. v. The State, ex rel., 36 id. 337. The petitioner contends that the powers and jurisdiction conferred upon the probate court by the act in question are unauthorized, and quotes §8 of article 3 of the constitution. In In re Johnson, 12 Kas. 102, the court held that, while this provision of the constitution might limit and restrict the legislature in conferring the jurisdiction upon the probate court, yet it did not prevent the legislature from giving to the probate judge such powers and duties as were not inconsistent with those given to the probate court by the constitution. See The State, ex rel., v. Dennis, 39 Kas. 509; Mendenhall v. Burton, 42 id. 570; In re Latta, 43 id. 534.