Kennedy v. Meara , 1906 Ga. LEXIS 739 ( 1906 )

Atkinson, J.

1. The first objection raised to the act in question is: Is it in violation of 'that provision of the constitution which declares that no law shall pass which refers to more than c-ne subject-matter or contains matter different from what is expressed in the title thereof ? Civil Code, § 5771. The act has been embodied in the Code of 3895 and became a part of the law of this State upon the adoption of that code, and the contents of the title of the original act are now immaterial. Central Railway Company v. State, 104 Ga. 832(5).

2. The act in question is not subject to the objection that it is a special law enacted in a case for which provision has been made by an existing general law. In Mathis v. Jones, 84 Ga. 804, it was held that the generality spoken of in this clause of the constitution was territorial generality, and that there was no way to convert a statute territorially general intd one territorially special; that the statute must live all over the State with equal vigor, and can be excluded from no nook or corner in which there,is subject-matter for its operation. In Union Savings Bank v. Dottenheim, 107 Ga. 606, it was stated that a law is a general law within the meaning of the constitution when it operates in every part of the State and upon every person or transaction embraced within its terms. . The right of the General Assembly to classify subjects for legislation was recognized in that decision, and a classification by the General Assembly will be upheld, unless it is manifest that it is purely arbitrary and founded upon no just reason. When these principles are applied to the act in question, it is not subject to the objection urged against it. It is true that the act applies to chartered benevolent institutions only, but it applies to all chartered benevolent institutions within the State of the character referred to in the act. The main purpose of the act is to provide for the welfare of children of certain ages who for sufficient reasons should not be left at large or in the custody of their parents and others ordinarily entitled to their control and management. A law regulating all institutions of this character wherever existing within the limits of the State is general in its nature so far as territorial generality is concerned, it being operative upon every person within the class made by the General Assembly and the classification not being purely arbitrary. See, in this connection, Glover v. State, 126 Ga. 594.

3. It is contended that the act in question is a violation of that provision of the constitution which declares that “the jurisdiction, powers, proceedings, and practice of all courts or officers invested with judicial powers (except city courts), of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment and decree by such courts, severally, shall be uniform.” -.Civil Code, § 5859. Whenever the General Assembly undertakes to establish courts of the same grade or class, there must be uniformity in such courts; but where a new and independent single court, adapted to the needs of a particular locality, is ■created, it is not necessary that the jurisdiction, etc., of this court shall be uniform with those of existing courts of a different class. Daughtry v. State, 115 Ga. 115, and eases cited. If the act could be in any event construed as local or special in its nature, establishing local courts for particular localities, it would not be unconstitutional for the reason assigned under the decision above referred to. But the act is general; and while it does not create new .officers, it does invest existing officers of a certain grade and class with given judicial powers peculiar to this act. Wherever there is'a benevolent institution within the limits of a municipal corporation of the character indicated in the act, then the court to pass on the judicial questions authorized to be raised is the police court or court corresponding to that class of municipal courts; that is to say, the judge of the police court becomes the judge of a special court for determining the issues which this act authorizes to be raised for judicial determination, just as every ordinary is authorized to pass upon a habeas-corpus ease, but he passes upon it, not as the judge of the court of ordinary, but as the judge of the special statutory court of which he is the presiding officer for the purpose of hearing eases of this character. When the act is so construed, it is manifest that a grade and class of courts is created, and the grade and class created, so far as relates to its jurisdiction, etc., is uniform throughout the State.

4. A further contention is that the act violates the provisions of the 13th amendment of the constitution of the United States and that provision in the constitution of the State of Georgia which prohibits slavery and involuntary servitude save as a punishment for crime after legal conviction thereof. When the State as parens patrise, through its properly constituted tribunals, takes ■under its custody and control those unfortunates who are unable to take care of themselves on account of physical or mental infirmity, or' on account of the fact that those charged with the duty of caring and providing for such persons fail to discharge this duty or are not of such character as that it is best for such persons to be under their custody or control, it can not be said that, because incidentally to this control such persons may be required to perform such labor as is proper to be required of them according to their age and condition, such persons are placed within slavery within the meaning of the constitutional provisions denying the power of the State to establish that condition of servitude. When the State takes into its custody, under the power above referred to, a child under the age of 21 years, the State occupies, so far as the care and custody and duty owed to the child is concerned, the same position that the parent occupies, and the parent is authorized to restrain the liberty of the child, and it is the duty of the parent to require of the child such service and labor as its age and capacity would admit of and as may be for the best interest of the child itself. Therefore it necessarily follows that when the State has to assume the control and custody of the child, its conduct towards it -would be the same that a dutiful parent would exercise, keeping in view the welfare of the child; and the action of the State in such cases would neither amount to a placing of the child in slavery, nor depriving it of its liberty in an unlawful way. See, in this connection, McGehee on Due Process of Law, p. 344; School v. Supervisors, 40 Wis. 328.

5. It is said that a parent has a property right in the labor and services of his minor child, and this is true. See Frazier v. Georgia Railroad Co., 101 Ga. 70(3). Such being the case, the parent can not be deprived of his property right in the labor and services of the minor child, except by due process of law. The parent may by his conduct forfeit his right to the custody of his minor child, but this forfeiture can not become effective until the parent has been accorded a right to be heard on the question as to whether a forfeiture has taken place. Hence in any provision made by the law for the taking out of the custody of the parent a minor child, unless the parent is given a reasonable opportunity to be heard on the question as to whether the conditions are such that the State should deprive him, either temporarily or until the child becomes of full age, of his custody and services and labor, the parent would be under the operation of such proceeding deprived of his property without due process of law. The act in question provides for a written notice addressed to the parent having the legal right to the custody of the child, and gives the parent the right to be heard before the recorder or judge of the police court after service of such notice ten days before the time fixed for a hearing. Under the act, the parent is given ten days to prepare his case, and is accorded a hearing before the police judge. An opportunity for full hearing is provided for, and the time for the service of the notice before the date of the hearing, while short, can not be said to be unreasonable. While the act does not in terms provide for a postponement of the case from time to time if the parent is not prepared for the hearing, the judge would have this power, and it is to be presumed that it would be exercised, until the contrary appears. While the act does not provide for an appeal from the decision of the judge, still, as in such case the recorder or police judge is exercising judicial powers, his decision is, under the constitution, subject to review by certiorari. When the right of a State to take the child into its custody is conceded, it is apparent from the terms of the act, taken in the light of the constitution and the laws of this State, that the rights of the parent are sufficiently guarded against an arbitrary exercise of the power conferred upon the judicial officer authorized to deal with the matter.

6. Under the scheme of this act the benevolent institution becomes an agency of the State to discharge the duty which the State owes to the class of children dealt with in the act, and during the time that the State is discharging its duty it has, through its agency, exclusive control of the child. The benevolent institution is responsible for the child, but the act authorizes such institution to apprentice or bind the child to service in its discretion. When this is done the responsibility of the benevolent institution does not cease. It is. the duty of the institution 'to see that the person to whom the child is bound or apprenticed performs all of the duties which the institution itself would be required to perform if the child remained in its custody. The General Assembly would have the power to provide that the child in, the first instance might be bound to service or labor to an individual, and there is a law in this 'State authorizing such a course in given cases. Civil Code, ■§§ 4232, par. 12, 2505, 2605. In this act the General Assembly in its discretion has seen proper to vest the benevolent institution with the discretion either to keep the child in its own custody, or to bind it or apprentice it to a proper person. There is no reason why the General Assembly could not exercise this power so long as under the terms of the act the welfare of the child is guarded and the right of supervision by the institution is required, and the State exercises its power of supervision over the institution itself. It is true that the act uses the word “adoption” in referring to the placing of the child at service, but this word is not to be construed in the sense in which it is used in those provisions of the law where one person adopts the child of another. In such cases there is a complete surrender for all time of the parental control to the person whom the parent consents shall become the adopted parent. The word “adoption” in this act is to be so construed as to confer upon the person receiving the child no greater power over the child than the benevolent institution itself had in the first instance, and that is, to retain the custody of the child until the time arrives when the child can be properly returned to its parent or returned under certain circumstances to the court from which it was received. Although, the institution may in form provide for the adoption of the child by the person to whom it is committed, such adoption would amount only to a binding to service to such persons for and during the period of time that the institution itself would have the right to retain the custody of the child.

7. Complaint is made that the court erred in rejecting evidence going to show that the facts stated in the judgment of commitment were not true. There was no error in this ruling. We have reached the conclusion that the act provided for due process of law, and the record of the recorder’s court, which appears in the transcript, shows that the proceedings were in substantial accord with the act.

8: The applicant offered to prove that the grounds upon which the judgment of commitment was founded did not then exist so-far as the conduct of the applicant was concerned, and that she was then able and willing to take care of the child. The court rejected this evidence, and- this is assigned as error. We think this evidence should have been admitted. While the conduct of the parent which authorizes the commitment of the child to the benevolent institution forfeits the right of the parent to the custody of the child, this forfeiture is not absolute. It is only for the time being, that is, so long as the conditions are such that the parent is not a fit person to have the custody and control of the child. The act provides that the parent may make an application to the authorities of the institution for the return of the child; and if such authorities are satisfied that it would be for the best interest of the child that it should be returned to the custody of the parent, such authorities may, with the' consent of the ordinary, discharge the child from its custody and deliver it to the parent. Civil Code, § 2384. It seems under the act that the authorities of the institution are given a discretion in regard to this matter, and no provision is made in the act for reviewing the decision of the authorities on this question. Hence, if a parent should make an application to the authorities of the institution under the terms of the act, and the authorities should refuse the application for return of the child, it may be that the parent would be bound by the decision of the authorities on the condition of affairs that existed at the time that the application was made. But be this as it may, we are clear that any judge sitting in a habeas-corpus court has a right, on the application of a parent, to inquire into the propriety of the benevolent institution being required to return the •child to the parent on the ground that the conditions have changed since the judgment of commitment was made. The benevolent institution is a corporation of the State. The State has a right of visitation over every eleemosynary corporation. This right of visitation is exercised through the instrumentality of the courts. Where the custody of a child is the matter in controversy, any judge having jurisdiction of the issue of the writ of habeas corpus can, by means of this remedy, in behalf of the State exercise this power of visitation to see whether the corporation is discharging its duty under the law. If the conditions have so radically changed since the judgment of commitment that the parent should no longer be deprived of the custody and services of his child, then the retention in custody of such child by the benevolent institution is wrongful, and the' courts would restore the custody to the parent. These are matters addressed to the sound judgment and discretion of the judge of the habeas-corpus court; the evidence of which should have been admitted and the judge have determined whether this evidence was true. The evidence in regard to the character of the grandmother and her ability to support and maintain the child was irrelevant, and it was proper to exclude it. If the judge reaches the conclusion that the parent is not entitled to the custody or control of the child, and that the benevolent institution is discharging its duty under the law, the child should be allowed to remain in its custody or in the custody of the person to whom it is bound. The remedy given- the parent in the act by application to the authorities of the institution is not exclusive, and does not oust the jurisdiction of the court. Farnham v. Pierce, 141 Mass. 203-6.

Complaint is made that the court refused to render a judgment directing the Home for the Friendless to permit the mother to visit her child once a week. There was no error in this ruling: This is a matter that must be left to the discretion of the authorities of the institution. So long as the commitment stands, the child is in the exclusive custody of the institution, and whether the parents should be allowed to visit the child must necessarily be left to the sound discretion of the governing authorities of the institution. It is not to be presumed that the authorities would arbitrarily refuse a parent the privilege of seeing her child, if the parent made application for a visit to the child at a reasonable time and her character and conduct were such that such a visit would not be prejudicial to the child or the institution. The judgment is reversed solely upon the ground above referred to, and upon another hearing the judge will inquire solely into the matter as to whether the conditions are such now that the parent is entitled to have the child returned to her.

Judgment reversed.

All the Justices concur.