#### The Cincinnati House of Refuge *v.*Patrick H. Ryan.

1. The proceedings and commitment of a minor, whose father is living, to the house of refuge, under the third clause of section 2087 of the Revised Statutes, as amended (77 O. L. 217), are not void for want of notice to the father.

2. The statute under which such proceedings and commitment of homeless children are authorized, is not repugnant to section 14 or section 16 of article 1, of the state constitution, as the law provides a full and complete remedy by *habeas corpus*for any infringement of parental rights.

3. On a hearing of *habeas corpus,*the father, if an unsuitable person, is not entitled to the custody of such child, on the ground that he had no notice of the proceedings under which the child was committed to the house of refuge.

Error to the Superior Court of Cincinnati.

This was a proceeding in the court below, by defendant in error, to obtain the custody of his three minor children. In ■ his petition for a writ of *habeas corpus*he avers that he is the father of these children, all of whom are under the age of six years; that their mother is dead, and that he has always provided for them in a suitable manner and is still willing so to do; that they were forcibly taken from his home, on the 16th of November, 1880, and carried to the Children’s Home, and *198from thence, upon the commitment of Henry Harmyer, a justice of the peace, of Hamilton county, committed to the house of refuge; that he had ho notice of the taking of these children, or of these proceedings. He therefore claims, that the custody of said children by plaintiff in error is without legal authority. The answer of the directors of the house of refuge justifies the custody and detention under the warrant of commitment of said justice of the peace.

It appears that these children were found by one Joseph L. Smith, an officer of the society for the prevention of cruelty to children, and brought before the justice for hearing upon his affidavit that they were without a home and homeless.

On the hearing, which took place the same day, and without notice to the father, the justice found from the testimony of said officer, that they were infants under the age of sixteen, without a home and homeless, and were suitable persons to be committed to the discipline and instruction of the Cincinnati house of refuge. He thereupon committed them to said house of refuge, until discharged by due course of law, or until they attain their respective majorities.

On the hearing upon *habeas*corpus, evidence was adduced pro and con, touching the fitness of the father to have the custody of these children, and as to the truth of the warrant of commitment.

In rendering its decision the court held, that the proceed ings before the justice, being without notice to the father, were void, and for that reason alone, the children were discharged from the house of refuge, and restored to the father. It is conceded by the court and by counsel for defendant in error that it did not appear that the father was a proper person to have the guardianship and control of these children. It is further conceded that the proceedings and commitment by the justice were in all respects regular and valid, unless want of notice to the father invalidates them. It is for want of such notice alone that the children were discharged.

*D. Thew*Wright, for plaintiff in error:

The act (77 Ohio Laws, 217) under which these children were sent to the house of refuge is said to be uneonstitu*199tional, because it sends to prison, or provides for restricting tbe liberty of one who has committed no crime. If it were true that none could be restrained of their liberty save criminal',, then no witness could be committed in order to secure his testimony. Yet this is authorized when a witness fails to enter into a recognizance to appear. Rev. Stats. § 7153.

Upon a proper application, a probate judge issues his warrant (H*urd Habeas*Corpus, book 1, ch. 2, § 2, p. 8,) and commits an insane person, one who is incapable of crime, to an asylum. Rev. Stats. § 705. Certain of the insane may be confined in jail. Id. §§ 707, 708. Thus patients are sent to Longview Asylum. Id. § 741.

Incorrigible children are committed to the reform school. Id. § 752. “ Incorrigible ” are those who *may*commit crime. They are committed for this reason; not because they have committed crime.

The foundation of all these laws is simply the necessity of the case. It is neither a criminal prosecution, nor a proceeding in which the right to a trial hy jury is guaranteed. *State*v. Prescott, 19 Ohio St. 184. It is one of those police regulations which all governments can enforce. *Munn*v. *People,*69 Ill. 88; *s. c.,*94 U. S. 113; Cooley Con. Lim. 572; *People*v. Turner, 55 Ill. 280; *Gishwiller*v. Dodge, 4 Ohio St. 615; *Clarke*v. *Bayne,*32 Ohio St. 299; *Hurd on Habeas Corpus,*41, 483.

As to notice, see, by analogy, *Shroyn*v. *Richmond,*16 Ohio St. 455 ; *Hagany*v. *Cohnen,*29 Ohio St. 82; *Cupp*v. *Comm'rs, &c.,*19 Ohio St: 173; Cooley Cons. Lim. (4 ed.) 506; Rev. Stats. §§ 3118, 3119.

It does not follow that because any one can pick up in the street houseless and homeless children, and carry them to the house of refuge, they can be retained there forever, against the will of those who are entitled to thfeir custody. The law has been careful to guard against this and to prevent abuse perpetrated under the guise of kindness. Section 2061 of the Revised Statutes provides : “ But any infant, by whomsoever or for whatever cause committed, may at any time be discharged upon the order of the board duly entered upon its minutes, or *200upon *habeas corpus*if the court or judge, upon hearing, decide that neither the interest of the minor nor of the public will be endangered by such discharge.” The wrong, therefore, if any, is not the taking the child to the institution, and committing him under the circumstances named, but it is in keeping him there after it is discovered that he is not a fit subject to be an inmate.

*Goss & Peek,*for defendant in error,

contended that the father could not be deprived of his right to his children or the children of the care and protection of their father in the summary manner exercised in this case. That proceedings against a party without notice or service of process are void for want of jurisdiction.

If the statute authorized such a proceeding as was had in this case, it is void because in conflict with sections 1, 14 and 16, of the bill of rights of the constitution.

It contravenes section 14 because it was an “ unreasonable seizure. ” It contravenes section 16 because the judgment of the justice would, without due process of law, take away the right of the parent to the services and earnings of the children during minority, which is a right of property. It contravenes section 1 because it interfered with the liberty and the right of “ seeking happiness and safety ” there guaranteed to all the people.

As to the remedy by *habeas*corpus, provided by section 2061 Revised Statutes, we have simply to say that it is hardly consistent with our ideas of jurisprudence that so important a right should be forfeited in a summary manner without the knowledge of the interested party, and that party then be left to convince a court that neither the interest of the minor nor of the public would be endangered by righting the wrong. The parent seeking to assert his rights under that section (2061) must come into court stripped of all the ordinary presumptions of law. He must show affirmatively that he is a fit and proper person to have charge of his own children. The potent affidavit, prescribed by the statute in such proceedings, has made him *prima facie*a wretch or a drunkard, and he must clear *201himself of these presumptions, and otherwise convince the court that there would be *no dcmger*of injury to the child or the public. Without a hearing he has been adjudged guilty and must prove himself innocent. We cannot believe that such is the law.

Johnson, J.

Section 2087 of the Revised Statutes, as amended 77 O. L. 217, paragraph 3, is the law under which these children were committed to the house of refuge. That paragraph authorizes a mayor, police judge or justice to commit minors under sixteen years of age, upon complaint and due proof that they are homeless, or are without proper and suitable homes.

Section 2061 provides that, *“*No commitment of an infant to a house of refuge and correction shall be for a shorter period • than till such infant shall be reformed, or attain the age of majority, except in case of infants committed to await their trial, or as witnesses, and except in such cases as the board may, by its general rule, provide ; but any infant, by whomsoever or for whatever cause committed, may at any time be discharged upon the order of the board duly entered upon its minutes, or upon *habeas*corpus, if the court or judge, upon hearing, decide that neither the interest of the minor nor of the public will be endangered by such discharge. ”

This section was amended 78 O. L. 253, but since final judgment was rendered in this case; hence the amendment need not be considered, as it does not affect the question at bar.

Houses of refuge and correction, established since May 7, 1869, are governed by sections 2031 to 2082 of the Revised Statutes, while those established prior to May 7, 1869, are governed by sections 2083 to 2090, as amended.

Section 2050, which is applicable to both classes of houses of refuge, provides that the board may, *in its*discretion, receive into such institution infants under sixteen years of age, committed to their custody by the mayor, judge or justice of . the peace, on complaint and due proof in the following cases :

1st. By parent, guardian, or next friend, of such infant, when, it appears, that by reason of incorrigible conduct, such *202infant is beyond control, and that from regard to the welfare of such infant and the protection of society, he should be placed under the guardianship of the board of directors of. such house of refuge. ' •

2d. When upon complaint by any one, and due proof that such infant is a proper subject for such guardianship, in consequence of vagrancy or of incorrigible or vicious conduct, and from the moral depravity of the parent, guardian, or next friend, they are incapable or unwilling to exercise proper care and discipline over such infant.

3d. When such infant is without a suitable home, and means. of obtaining an honest living, or is in danger of growing up to an idle and vicious life.

Sections 2051, 2052 and 2053 provide for commitment of such infants, committed of crimes and offenses.

Section 2051 authorizes grand juries, in their discretion, where the evidence against an infant under sixteen years of age would warrant an indictment, to return to the court that the accused is a suitable person to be committed to the guardianship and correction of the directors of the house of refuge. Thereupon, *on notice to the minor*and giving him an opportunity to be heard, the court shall, without a jury, dispose of the case, and if satisfied of the truth of the return, commit the accused.

The last clause of section 2061 clearly recognizes this principle :

> “ But any infant, by whomsoever or for whatever case committed, may at any time be discharged upon the order of the board, duly entered upon its minutes, *or upon habeas corpus if the court or judge, upon heari/ng, decide that neither the interest of the minor nor of the public will be endangered by such discharge.*”

No provision is made in the statute for notice to the parent, guardian or next friend.

It was not the intention to confer upon mayors and like officers judicial powers over the legal rights of parents to the custody of their children. The paramount object is the good of such infants as are destitute of parental care. It is the *203exercise -of that parental guardianship which the state has assumed. The proceeding is, in its nature, special. While notice to parents, or others standing in that relation to infants, should be given where practicable, it is not essential to the jurisdiction of the examining officer. These officers are not invested with power to finally adjudicate the legal rights of parties. The scope and purpose of this statute is to provide, in a summary manner, for the destitute and homeless, as well as the vicious, and to provide for the maintenance and discipline of those who might otherwise grow up in habits of idleness and crime. It is conceded that such a notice is not required when the infant is accused or convicted of crime, or is held as a witness. This is so, not because the parent has forfeited any of his legal rights, but because, in such cases, the police power of the state is paramount.. So, where the grand jury, in place of an indictment for crime, makes a return that the infant should be committed to the house of refuge, or the reform farm, the court, after notice to the infant alone, and without a jury, determines the case, and commits the accused.

If this is a correct exposition of the statute, the next inquiry is, whether an act which does not require notice, is against public policy, and in violation of the fundamental law of the land *%*The error of the court below consisted in assuming that the judgment of the committing officer divested the parent of his legal right, without an opportunity of being heard. It is obvious that this is a misconception. The proceeding is purely statutory. It is intended to provide a summary method for caring for destitute children.

The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison. While no provision is' made for a notice to those interested, if such there be, of the pendency of the proceeding, yet it would doubtless be proper for the examining officer, *204where it is practicable, before making the order, to require such notice, but the statute does not seem to require it as essential to the exercise of this power. As was said in *Prescott*v. *State,*19 Ohio St. 188, where a similar question arose, “neither the infant, nor any person who would in the absence of such commitment be entitled to his custody and services, will be without a remedy.” The statute itself, as well as the provisions relating to *habeas corpus,*provide an adequate and complete remedy. In such a direct proceeding, the commitment does not operate to restrict the power of the court on *habeas corpus,*to inquire fully into the cause of the detention, and to determine upon the whole case, whether the parent is entitled to the custody of his child.

The court below should have fully heard this ease upon its merits, the commitment being in due form, and if the father was not a suitable person to have the care of these children, should have remanded them to the custody of defendants, until legally discharged. The authority of the state, as *pa/rms pat/rice,*to assume the guardianship and education of neglected homeless children, as well as neglected oi’phans, is unquestioned. The institutions of public charity, for this purpose, in this state, are a subject of just pride to every citizen. The provisions of law under which these institutions are maintained, should receive such a construction as will not defeat their humane intention. So long as the management of these institutions is held to public account, and is amenable to the courts, there need be no apprehension that personal rights will be infringed, especially where, as in this case, direct and ample remedies by *habeas corpus*are provided for the protection of the legal rights of parents and others.

*Judgment*reversed, *and cause remanded.*