Bryant v. Brown ( 1928 )

In addition to the statement of the case as contained in the majority opinion, the following appears in the record:

Ira Bryant and Lizzie Bryant, the father and mother of Howard Bryant, were made parties to this proceeding. In the petition of Mrs. Brown, the probation officer, to have Howard Bryant committed to the Mississippi Industrial Training School, the grounds for such commitment are set out as follows:

"Petitioner shows further unto your honor that the defendants are adults and have the custody of the defendant Howard Bryant, who is a minor, under the age of eighteen years, and that the said adult defendants occupy the relationship of parents to the minor defendant, and that the said minor defendant is now living with or is under the control of the said adult defendants, and the petitioner shows that the said minor defendant is destitute within the meaning of chapter 111, Laws of Mississippi 1916, for the reason that the general environment of said child is such that said child is likely to develop into criminal practices unless removed from its present surroundings, and petitioner therefore shows that the said minor should be adjudged delinquent within the meaning of chapter 111, Laws of Mississippi 1916, and amendments thereto and be committed to the Mississippi Industrial Training School; that said minor has committed felony charges involving moral turpitude and many misdemeanors including violations of city ordinances."

On motion of the parents, the probation officer was required to present a bill of particulars of the grounds for such commitment. The following grounds were set out in the bill of particulars:

"That on November 27, 1925, Howard Bryant was convicted in the city court upon a charge of petit larceny, same being case No. 2183.

"That on November 8, 1926, the said Howard Bryant was again convicted for petit larceny, as shown by said docket, the same being 8529 upon the City Docket.

"That again on July 19, 1926, the said Howard Bryant was convicted upon a charge of being a dangerous and suspicious person, in the municipal court of the city of Hattiesburg, the same being case No. 8960.

"That again in the year 1926, on November 2d, the said Howard Bryant was convicted of petit larceny of certain personal property belonging to Charles De Fatta, the same being case No. 10122.

"That again in the year 1926 the said Howard Bryant was convicted of being a dangerous and suspicious person, in the municipal court of the city of Hattiesburg, which said conviction is shown on docket No. 10152.

"That in September, 1926, the said Howard Bryant in company with other boys burglariously and feloniously broke into the storehouse of the Polk Hardware Company, a partnership, and from said storehouse took, stole, and carried away of the goods and chattels of said partnership of more than twenty-five dollars in money, and that an affidavit charging said facts was duly and legally made in the justice of the peace court, and from said court was transferred to the chancery court, which transfer merged into and was the beginning of the proceedings before this court. And now, having stated all violations of law committed by the said Howard Bryant and all of which complainant has any knowledge, complainant prays that the same be considered indeed a full and complete answer to said motion."

The parents made answer to the petition of the probation officer. The answer, leaving off the formal parts, follows:

"Defendants deny that Howard Bryant, their minor child, has been convicted of any violation of the law of the state of Mississippi, or of any municipal ordinance involving moral turpitude.

"Defendants deny that the said Howard Bryant has at any time been legally convicted of any offense known to the laws of the state of Mississippi or of any city ordinance.

"Defendants deny that the said Howard Bryant has at any time or is now being subjected or permitted to live in any surroundings wherein said surroundings would tend to make said Howard Bryant a criminal or criminally inclined.

"Defendants allege and charge and deny that it is true that Howard Bryant is an immoral, delinquent, or incorrigible child within the meaning of the statute, or in any sense of the word, or in any manner whatsoever, but defendants allege the facts to be that Ira Bryant and Lizzie Bryant, the father and mother of the said child, are well able to care for said child, and are caring for said child at the present time, and have been supporting and maintaining and educating said child under the proper environments and influences.

"Defendants deny each and every ground set out in the petition of the complainant, wherein it is alleged, or it is undertaken to be alleged, that the said Howard Bryant has been guilty of any crime or conduct involving moral turpitude, or being in any surroundings that would make him, or tend to make him, the said Howard Bryant, a fit subject to be committed to the Mississippi Industrial Training School at Columbia, Mississippi."

The evidence introduced to sustain the allegations of the petition of the probation officer tended to show that Howard Bryant had been convicted of crimes in the city court of Hattiesburg as follows: On November 27, 1925, of petit larceny; on July 19, 1926, of "being a dangerous and suspicious person;" on November 2, 1926, of petit larceny; on November 8, 1926, of petit larceny and, in addition, that in September, 1926, he, in company with some other boys, burglarized the store of Polk Hardware Company, in the city of Hattiesburg, and stole therefrom property of the value of more than twenty-five dollars, and that Howard Bryant was charged with this crime (which, under our statute, is a felony, and therefore a penitentiary offense) before a justice of the peace of the county, who, proceeding under the statute here involved, transferred the charge to the chancery court, which rendered the decree appealed from in this cause.

There was no testimony, either introduced or offered by the probation officer, to show that the parents of Howard Bryant were unfit to have his care, custody, and training. The statement, therefore, in their answer to the petition of the probation officer, that they were suitable persons to have his custody and training, went unchallenged.

The supreme court of Illinois, in People ex rel. O'Connell v.Turner, 55 Ill. 280, 8 Am. Rep. 645, in passing upon the constitutionality of a statute of that state similar to the one here involved, expressed my views so clearly and forcibly that I copy the opinion in that case, in part:

"What is proper parental care? The best and kindest parents would differ, in the attempt to solve the question. No two scarcely agree; and when we consider the watchful supervision, which is so unremitting over the domestic affairs of others, the conclusion is forced upon us, that there is not a child in the land who could not be proved, by two or more witnesses, to be in this sad condition. Ignorance, idleness, vice, are relative terms. Ignorance is always preferable to error, but, at most, is only venial. It may be general, or it may be limited. Though it is sometimes said that ``idleness is the parent of vice,' yet the former may exist without the latter. It is strictly an abstinence from labor or employment. If the child perform all its duties to parents and to society, the state has no right to compel it to labor. Vice is a very comprehensive term. Acts, wholly innocent in the estimation of many good men, would, according to the code of ethics of others, show fearful depravity. What is the standard to be? What extent of enlightenment, what amount of industry, what degree of virtue, will save from the threatened imprisonment? In our solicitude to form youth for the duties of civil life, we should not forget the rights which inhere both in parents and children. The principle of the absorption of the child in, and its complete subjection to the despotism of, the state, is wholly inadmissible in the modern civilized world.

"The parent has the right to the care, custody, and assistance of his child. The duty to maintain and protect it is a principle of natural law. He may even justify an assault and battery, in the defense of his children, and uphold them in their lawsuits. Thus the law recognizes the power of parental affection, and excuses acts which, in the absence of such a relation, would be punished. Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children. To aid in the performance of these duties, and enforce obedience, parents have authority over them. The municipal law should not disturb this relation, except for the strongest reasons. The case with which it may be disrupted under the laws in question, the slight evidence required, and the informal mode of procedure, make them conflict with the natural right of the parent. Before anyabridgment of the right, gross misconduct or almost totalunfitness on the part of the parent should, be clearly proved.This power is an emanation from God, and every attempt toinfringe upon it, except from dire necessity, should be resistedin all well-governed states. ``In this country, the hope of the child, in respect to its education and future advancement, is mainly dependent upon the father; for this he struggles and toils through life, the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent abruption of this relation would not only tend to wither these motives to action, but necessarily, in time, alienate the father's natural affections.'

"But even the power of the parent must be exercised with moderation. He may use correction and restraint, but in a reasonable manner. He has the right to enforce only such discipline as may be necessary to the discharge of his sacred trust; only moderate correction and temporary confinement. We are not governed by the Twelve Tables, which formed the Roman law. The fourth table gave fathers the power of life and death, and of sale, over their children. In this age and country, such provisions would be atrocious. If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the unnatural act, and every tender mother and kind father would rise up in arms against such monstrous inhumanity. Can the state, as parens patriae, exceed the power of the natural parent, except in punishing crime?

"These laws provide for the ``safe-keeping' of the child; they direct his ``commitment,' and only a ``ticket of leave,' or the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood by contact with the busy world. The mittimus terms him ``a proper subject for commitment,' directs the superintendent to ``take his body,' and the sheriff indorses upon it, ``Executed by delivering the body of the within-named prisoner.' The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty, can afford no relief, for the sovereign power of the state, as parens patriae, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the state are to be thus confined for the ``good of society,' then society had better be reduced to its original elements, and free government acknowledged a failure.

"In cases of writs of habeas corpus to bring up infants, there are other rights beside the rights of the father. If improperly or illegally restrained, it is our duty, ex debitojustitiae, to liberate. The welfare and rights of the child are also to be considered. The disability of minors does not make slaves or criminals of them. They are entitled to legal rights, and are under legal liabilities. An implied contract for necessaries is binding on them. The only act which they are under a legal incapacity to perform is the appointment of an attorney. All their other acts are merely voidable or confirmable. They are liable for torts, and punishable for crime. Lord KENYON said: ``If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it, in a court of justice.' Every child over ten years of age may be found guilty of crime. For robbery, burglary, or arson, any minor may be sent to the penitentiary. Minors are bound to pay taxes for the support of the government, and constitute a part of the militia, and are compelled to endure the hardship and privation of a soldier's life, in defense of the Constitution and the laws; and yet it is assumed that to them liberty is a mere chimera. It is something of which they may have dreamed, but have never enjoyed the fruition.

"Can we hold children responsible for crime, liable for their torts, impose onerous burdens upon them, and yet deprive them of the enjoyment of liberty, without charge or conviction of crime? The Bill of Rights declares that ``all men are, by nature, free and independent, and have certain inherent and inalienable rights — among these are life, liberty, and the pursuit of happiness.' This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that ``all men,' all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the state, you shall not enjoy this right — a right independent of all human laws and regulations? It is declared in the Constitution, is higher than Constitution and law, and should be held forever sacred.

"Even criminals cannot be convicted and imprisoned without due process of law — without a regular trial, according to the course of the common law. Why should minors be imprisoned for misfortune? Destitution of proper parental care, ignorance, idleness, and vice, are misfortunes, not crimes. In all criminal prosecutions against minors, for grave and heinous offenses, they have the right to demand the nature and cause of the accusation, and a speedy public trial by an impartial jury. All this must precede the final commitment to prison. Why should children, only guilty of misfortune, be deprived of liberty without ``due process of law?'

"It cannot be said that in this case there is no imprisonment. This boy is deprived of a father's care, bereft of home influences, has no freedom of action, is committed for an uncertain time, is branded as a prisoner, made subject to the will of others, and thus feels that he is a slave. Nothing could more contribute to paralyze the youthful energies, crush all noble aspirations, and unfit him for the duties of manhood. Other means of a milder character, other influences of a more kindly nature, other laws less in restraint of liberty, would better accomplish the reformation of the depraved, and infringe less upon inalienable rights."

The position of the supreme court of Illinois is sustained by the supreme court of New Hampshire, Kansas, and California, inState ex rel. Cunningham v. Ray, 63 N.H. 406, 56 Am. Rep. 529, In re Sanders, 53 Kan. 191, 36 P. 348, 23 L.R.A. 603, andEx parte Becknell, 119 Cal. 496, 51 P. 692.

Section 15 of our Constitution provides that there shall be neither slavery nor involuntary servitude, except in punishment of crime for which the defendant has been duly convicted. Section 31 of the Constitution provides for trial by a jury in allcriminal prosecutions. Section 27 of the Constitution prohibits prosecution for a felony, except upon a precedent indictment by a grand jury. Section 22 of the Constitution, among other things, provides that no person's life or liberty shall be twice placed in jeopardy.

It is true that the constitutionality of statutes of other states similar to ours has been upheld by the greater number of cases in those states; but in my judgment their reasoning is unsound, and therefore the weight of authority is the other way. It cannot be said truthfully that the Industrial Training School in this state is not a penal institute. It is as much a penal institution as the modern, well-regulated, humanely managed penitentiary. Its inmates are restrained of their liberty of action, notwithstanding the purpose of the law is to reform and educate them. That also is true in a large measure of all penal institutions, both state and Federal. Under the statute the child is arrested and tried, and pending the trial he is in the custody of the sheriff, and is entitled to bail. On conviction he is committed to the institution — he is in prison, where he may be kept until he is twenty-one years of age. And, while so imprisoned, the statute makes it a criminal offense for any one to aid him in escaping from the institution. Under the statute correction in the form of corporal punishment may be administered if necessary. A child proceeded against under the statute is charged with crime. It is not a civil proceeding, but a criminal proceeding.

In Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8, in discussing the line of demarkation between a criminal cause and a civil case, our court said:

"The term ``civil cause,' in our judgment, was intended to comprehend every conceivable cause of action, whether legal or equitable, except such as are ``criminal' in the usual sense; that is, where the judgment against the defendant may be a fine or imprisonment, or both, and, in case of fine alone, imprisonment until payment."

Under the authority of the statute the child is charged with a crime or crimes, tried and convicted without the right of trial by jury, and, in case of a felony, without a precedent indictment by a grand jury. And, furthermore, under the statute the crime may be made up of other crimes of which the child has already been convicted. Therefore, in my judgment, the statute, as sought to be enforced in this case, violates sections 15, 22, 27, and 31 of our Constitution. The main theory on which such statutes have been upheld is that the state has the right to act as parent for the child, in case his parents are unfit to have his care and custody. In other words, where the parents leave off in their duty to the child, the state is entitled to take up the burden and act in the place of the parent. Conceded, for argument's sake, that this is a sound principle — can the state, in the care and training of the child, go further than the parents have a right to go? It seems to me that to ask the question is to answer it. The state can only do those things for the child that the parents fail to do. Surely no one would take the position that the parents would have the right to imprison their child until he was twenty-one years of age for any offense whatsoever. That is exactly what the state may do under this statute.

I deny the constitutional right of the state to take a child from its parents to rear and educate, without their consent, unless it be shown that the parents are unfit for the undertaking. The statute involved authorizes exactly that to be done. As stated, there was no effort to show that Howard Bryant's father and mother were unfit to have his custody and training. The parents of a child are its guardians. They are so by the law of nature. God has so decreed, and that decree cannot be rightfully violated by the state, any more than it can be by man, unless the parents have failed to carry out their sacred trust. Here the state has torn this child away from the arms of its mother and father, without any pretense of showing that they are unfit to rear it, unless it can be said that the fact of the child's being convicted of various petty offenses, and having been charged with a felony, was sufficient to show the unfitness of the parents. I deny that this was sufficient. How many parents, standing at the top morally and socially, who are doing their best to rear their children as they ought to be reared, nevertheless have one or more who are constantly committing the same character of crimes of which Howard Bryant was convicted. They are on every hand. Where is our state going to stop in its march of paternalism?

What has become of one of the fundamental principles of our government, that the people who are the least governed are the best governed. When the state undertakes to do too much for the people, the result is they do too little for themselves — they rely on the state. By the statute here involved the state enters the sacred precinct of the home, and says to the parents of the child, although you are doing the best you can to rear your child properly, you are making a failure of it, and the state is going to undertake the job. If the state can go that far, why not go a step further, and say by law that only those who are fit according to a moral, intellectual, and property standard fixed by the state, shall marry and bring children into the world?

The companionship and services of their children are a valuable property right given their parents both by the laws of nature and by the laws of the state. Like any other property right, it cannot be arbitrarily taken away from them by the state. To take such a property right away, the state must show the parents have done something to forfeit it. Otherwise they would be deprived of their right in violation of the due process provision of the federal and state Constitution.