State v. Scholl , 1918 Wisc. LEXIS 131 ( 1918 )

Winslow, C. J.

A democracy cannot long exist unless the great body of its voters be not merely intelligent, but moral. The children of today are the voters of tomorrow. It is the greatest concern of the State, therefore, that its children be preserved from vicious habits, for the vicious child is the father of the vicious man.

The láw before us may be said to be founded on these propositions.

Its aim is to keep something like a parental watch over children who are neglected or wayward or both, and hence are subject to vicious influences; to bring them and their parents or guardians before an experienced and humane judge who shall inquire into the situation, not with the awe-inspiring and frigid methods of a criminal court, but informally and intimately, like a wise and gentle elder brother, or like the good Samaritan of holy writ, and who shall, when fully advised, do that which is best for the child’s future, either by way of sending it to an institution or by providing for kind and tactful but in no sense degrading surveillance for a limited time at home.

It would be a public misfortune to set aside a law so designed even though it were not perfect in its details. Only the most weighty and convincing considerations could justify such action, and we do not think they exist here.

The serious claims made will be briefly considered. It is said the constitutional guaranties of trial by jury and due process of law are denied and in this connection reliance is placed on Robinson v. Wayne Circuit Judges, 151 Mich. 315, 115 N. W. 682.

It is sufficient to say on this point that the proceedings under this law are in no sense criminal proceedings, nor is the result in any case a conviction or punishment for crime. They are simply statutory proceedings by which the state, in the legitimate exercise of its police power, or, in other words, its right to preserve its own integrity and future existence, reaches out its arm in a kindly way and provides for the protection of its children from parental neglect or from vicious influences and surroundings, either by keeping watch over the child while in its natural home, qr, where that seems impracticable, by placing it in an institution designed for the purpose.

In the Robinson Case the law provided for fine and imprisonment in case of a finding of delinquency, and the Michigan court held the law invalid because it provided for the trial of criminal actions before a jury of six. In all other respects the law there in question (which in its essentials was quite similar to the law in question here) was fully sustained.

It is unnecessary to go outside of our own state for authority on this subject. The power of the state to exercise such control over the child is fully vindicated by Chief Justice Ryan in the case of Milwaukee Ind. School v. Milwaukee Co. 40 Wis. 328, and it is there distinctly and eloquently held that sucli proceedings as these are not in any sense criminal proceedings. They are. in fact simply investigations by the state into serious conditions which if unchecked may lead to the making of its children into criminals instead of law-abiding citizens.

The same considerations apply with equal force to the contention that the proceedings in question do not constitute due process of law.

In such investigations we know of no rule which prevents the use of investigation and unsworn testimony in ascertaining the essential facts. The desideratum is to obtain, by the use of kindness and sympathy, the confidence of the child and of its parents if possible, to convince them that the judge and probation officer are friends and not the avengers of offended law. Good results are far more likely to be obtained in this way by the use of informal methods than by bringing them into a court conducted with the form and ceremony attendant upon trials for crime, where all the proceedings suggest that the law is about to be invoked to inflict punishment upon hardened malefactors.

It may be advisable, in cases where it seems best to take the child permanently from its parents and consign it to the care of an institution, that sworn testimony he taken and the essential facts thus proven before the final order is made, because in such case the natural right of the parent to the custody of the child is invaded and it would be desirable to avoid any question as to the validity of the order. We intimate' no opinion on this point. It does not arise here. In the present case the boys were simply put on probation, and we regard. the proceedings taken as entirely sufficient, although no witness was sworn. The investigations of the probation officer and the facts brought out by the kindly questioning of the judge upon the hearing substantiate the fact of: delinquency fully as well as sworn testimony.

As matter of fact there is no “juvenile court” in the sense ■ of a separate and independent court; it is so called simply for convenience and is a jurisdiction rather than a distinct court. As will be seen by reference to the act, all the courts of record of the state are endowed with the necessary jurisdiction to enforce it, and the judges of such courts in each county from time to time select one of their number to exercise this jurisdiction for a stated period. If he be a municipal judge the juvenile court is in fact the municipal court while he is presiding, if he be a county judge.it is the county court, and if he be a circuit judge it is the circuit court. This seems somewhat anomalous to us because we have been so long accustomed to the rigidity of our court system, but no constitutional or serious practical objeétion can be successfully urged against it. It is a common-sense step toward greater elasticity in the administration of the law by the courts which will doubtless be followed by many more. The power given to the judges of a county to designate one of their number to perform the delicate duties of the office is clearly an administrative duty which may be properly imposed upon the judiciary because such appointment is helpful if not necessary in the performance of the judicial duties of the various courts. In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670.

Laws similar in character to the one before us have been recently sustained in a number of states. One of the most recent cases is Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892, 45 L. R. A. n. s. 908, where the subject is fully discussed with full citation of recent authorities.

By the Gourt. — Judgment affirmed on both appeals, without costs.