STATE V. BROWN.

[50 MINNESOTA, 853.]

CONSTITUTIONAL LAW-REFORM SCHOOLS.-A statute authorizing and em powering justices of the peace to commit infants to the care and guard. ianship of the board of managers of a reform school in consequence of incorrigibly vicious conduct, though for a time exceeding the criminal jurisdiction of such justices, is a valid exercise of legislative power. REFORM SCHOOLS-CONSTITUTIONAL LAW.-A person committed by a justice

of the peace to the care and custody of a board of managers of a reform school is not punished or imprisoned in the ordinary meaning of those words. Hence a constitutional provision regulating and limiting the jurisdiction of justices of the peace in criminal matters has no applica tion in the premises.

REFORM SCHOOLS JURISDICTION OF COMMITTing Magistrate—Constitutional Law.—When committing an infant to the care and custody of the board of managers of a reform school, a justice of the peace is not appointing a guardian for him, nor does such magistrate or the board of managers assume any control over his estate. Hence the committing magistrate does not violate a constitutional provision conferring jurisdiction in matters of guardianship solely upon probate courts.

REFORM SCHOOLS-JURISDICTION TO COMMIT To—ConstitutionAL LAW.An infant committed by a justice of the peace to a reform school is not punished or imprisoned in the ordinary meaning of those words, hence he is not deprived of his constitutional right to a jury trial.

REFORM SCHOOLS-PROCEEDING TO COMMIT TO-PARTIES.-In & proceeding to commit a minor to a reform school his natural or legal guardian should be made a party.

Sawyer, Abbott, and Sawyer, for the appellant.

Moses E. Clapp, attorney-general, and H. W. Childs, for the respondent.

356 COLLINS, J. Appeal from an order dismissing a habeas corpus proceeding wherein the writ was directed to the superintendent of the state reform school, commanding that he produce one Oscar E. Olson, a minor son of the relator, said to be unlawfully restrained at said school. Young Olson and one Connolly were brought before the municipal court of the city of Waseca on the charge of incorrigibly vicious conduct, and were committed to the guardianship of the board of managers of the reform school at the same time and on the same testimony. The proceedings had in the municipal court, and as they were certified to the district judge, in so far as we were then advised, fully appear in a statement found in State v. Brown, 47 Minn. 472.

But the technical points upon which the latter case was decided and the relator released from the reform school do not now arise; for the record in this case, as we view it, af

firmatively shows that all the evidence introduced before the municipal court was reduced to writing, and transmitted to the judge of the district court, who approved the commitment. The additional evidence upon this hearing in the district court was competent, and in no way tended to impeach the record of the municipal court. There is nothing in the point that the municipal judge did not reduce to writing the questions propounded to the witness, but simply took the testimony in a narrative form. Neither is there anything in the point that he transmitted a typewritten copy of the evidence to the district judge, instead of the original.

In proceedings to commit infants to the care and guardianship of the board of managers of the reform school, the right of the municipal court in question is derived through the statute under which it was organized, conferring upon it the authority, powers, and rights of a justice of the peace, under the general laws of the state. It follows that, if a justice has no power to commit to the reform school, the municipal court for the city of Waseca has not, and the claim 357 is made by the relator that the statute by which this power is given to justices is unconstitutional and void. We are therefore obliged to consider the relator's contention that the legislation of this state, whereby justices are authorized and empowered to commit infants to the care and guardianship of the board of managers of the reform school in consequence of incorrigibly vicious conduct, and for a time exceeding three months, is not a valid exercise of legislative power, under the constitution of this state. Two propositions are laid down in support of this contention: 1. That the authority is conferred upon a justice of the peace to punish a criminal by imprisonment for a period exceeding three months, contrary to the constitution, article 6, section 8; and 2. That jurisdiction in the matter of "persons under guardianship" has been conferred on such justices, contrary to the provisions of section 7 of the same article, by which jurisdiction over such persons is granted unto another constitutional tribunal, the probate court.

The questions raised by the first of these propositions have often been discussed by the judicial tribunals of this country. Legislation which, brushing aside and disregarding the views, wishes, or supposed rights of natural guardians, has had for its object the future welfare of the minor children of incapable and unworthy parents, or the care, custody, and proper train

ing of incorrigible and vicious youth by the state, has occasionally been denounced with great vigor by the courts. A notable example of this species of denunciation may be found in the opinion in People v. Turner, 55 Ill. 281, 8 Am. Rep. 645, written by Mr. Justice Thornton. But legislation of this character has been adopted in nearly all of the northern states, and its validity has often been upheld. We do not propose to add to the very many pages which, in the reports and text-books, have been devoted to the support of the position, now taken almost universally by the courts, that a person committed to the care and custody of a board in charge of an institution of the character of the Minnesota state reform school is not "punished," nor is he "impris oned," in the ordinary meaning of those words. Hence, the constitutional provision which regulates and limits the jurisdiction of justices of the peace in criminal matters has no application. We can do no better than 358 to call attention to some of the leading authorities on this subject, and to quote from the case first cited the clear language used therein by the late Chief Justice Ryan: Milwaukee Industrial School v. Supervisors, 40 Wis. 328; 22 Am. Rep. 702; Farnham v. Pierce, 141 Mass. 203; 55 Am. Rep. 452; Prescott v. State, 19 Ohio St. 184; 2 Am. Rep. 388; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197; Roth v. House of Refuge, 31 Md. 329; Ex parte Crouse, 4 Whart. 9; In re Ferrier, 103 Ill. 367; 42 Am. Rep. 10; McLean Co. v. Humphreys, 104 Ill. 378; Tiedeman's Limitation of Police Power, c. 33. In the Wisconsin case, commencing on page 337, Judge Ryan thus expressed his views: "And, in the first place, we cannot understand that the detention of the child at one of these schools should be considered as imprisonment, any more than its detention in the poorhouse-any more than the detention of any child at any boarding-school, standing, for the time, in loco parentis to the child. Parental authority implies restraint, not imprisonment. And every school must necessarily exercise some measure of parental power of restraint over children committed to it. And when the state, as parens patriæ, is compelled, by the misfortune of a child, to assume for it parental duty, and to charge itself with its nurture, it is compelled also to assume parental authority over it. This authority must necessarily be delegated to those to whom the state delegates the nurture and education of the child. The state does not, indeed we might say could not, intrude this

assumption of authority between parent and child standing in no need of it. It assumes it only upon the destitution and necessity of the child, arising from want or default of parents. And, in exercising a wholesome parental restraint over the child, it can be properly said to imprison the child no more than the tenderest parent exercising like power of restraint over children. This seems too plain to need authority; but the cases cited for the respondent, and other cases, amply sustain our view."

We pass to an examination of the claim that, under the constitution, a justice has no power to place a person under the guardianship of this board of managers, because jurisdiction has been conferred solely upon the probate courts in all matters of guardianship.

359 When committing an infant to the care and custody of the board of managers of the reform school the magistrate is not appointing a guardian for him, nor does such officer or the board of managers assume any control over his estate, if he has one. A proceeding of this nature would not stand in the way of, nor would it be prevented by, the appointment of a statutory or testamentary guardian-the only guardian coming within the purview of the constitution. It is no more a violation of the fundamental law for the magistrate to commit a child to the guardianship of the managers of an institution of this kind than it would be for a competent court to appoint a guardian ad litem for him. The language of the constitution does not apply where the state acts as the common guardian of the community, exercising its power whenever the welfare of an infant demands it, or where the state acts in the legitimate exercise of its police power. Therefore the lawmakers were not prohibited from conferring jurisdiction in such cases upon any of the judicial officers of the state.

The mode and method of procedure, as fixed by statute and followed in this case, are also attacked by relator's counsel. The proceeding is wholly statutory, and the party proceeded against is not punished or imprisoned. What has been said heretofore in regard to the nature of the proceedings, as well as the views expressed in City of Mankato v. Arnold, 36 Minn. 62, State v. Harris, 50 Minn. 128, disposes of the claim that Olson was deprived of his constitutional right to a jury trial.

It is not necessary for us to pass upon a further claim made

by the relator that in all such cases the parent or guardian or next friend must be made a party, and that because such parent or guardian or next friend stands charged in the complaint (General Statutes of 1878, chapter 35, section 44, subdivision 2) with moral depravity, or of being incapable or of unwillingness to care for and discipline the infant, the justice has no right to proceed until he had obtained jurisdiction over the parent or the guardian or the next friend, as the case may be.

There may be a stronger reason than the one suggested why the natural or legal guardian of the infant should be made a party to the proceeding in question, but the statute does not seem to contemplate it, and it is possible that it is not necessary: Milwaukee Industrial 360 School v. Supervisors, 40 Wis. 328; 22 Am. Rep. 702; Fitzgerald v. Commonwealth, 5 Allen, 509. But from the record in this case it affirmatively appears that the relator herein, the only living parent of the boy, did appear in bis behalf in the municipal court, and did take part in the proceedings which resulted in his commitment. She has no cause for complaint on that score.

This disposes of such of the assignments of error as are of importance, and our conclusion is that Olson is not improp erly held at the reform school.

Order affirmed.

CONSTITUTIONALITY OF STATUTES CONCERNING INDUSTRIAL SCHOOLS.-In the following cases, statutes providing that children under a certain age, who have been abandoned by their parents, and are growing up under circumstances exposing them to lead idle or dissolute lives, should be committed to reform or industrial schools were held not unconstitutional as authorizing imprisonment without due process of law: Farnham v. Pierce, 141 Mass. 203; 55 Am. Rep. 452, and extended note thoroughly discussing the subject: Milwaukee Industrial School v. Supervisors, 40 Wis. 328; 22 Ain. Rep. 702; Prescott v. State, 19 Ohio St. 184; 2 Am. Rep. 388; Petition of Ferrier, 103 Ill. 367; 42 Am. Rep. 10. The contrary doctrine is maintained in People v. Turner, 55 Ill. 280; 8 Am. Rep. 645. See also Doyle, Petitioner, 16 R. L 537; 27 Am. St. Rep. 759, and note, and Portland v. Bangor, 65 Me. 120; 20 Am. Rep. 681.