RosewbeeRT, J.
The county judge found upon the hearing in 1913 that the mother was not a fit and proper person to have the care, custody, and control of the children; that they had been abandoned by their father; and that it was necessary in order to secure proper care, protection, and control to commit them to the state public school at Sparta. The mother in her petition does not allege any change in her cir[465]*465cumstances, and upon the general allegation that “your petitioner is of the opinion that it would he for their best interests to have a guardian appointed by law,” seeks to deprive the State Board of Control of the custody of the two children in question.
The first claim made is that the order commiting the children to the state public school at Sparta, having been made by the county judge who acted as a mere magistrate, is therefore subject to review. Guardianship of Klein, 95 Wis. 246, 70 N. W. 64. In that case it was held that the circuit court might, upon petition, determine who the guardian of the child should be, and that it was not concluded in that respect because the county judge had made an order awarding the custody of the child in question to another person under the provisions of sec. 4587&, S. & B. Ann. Stats.
It has been held that the county judge has authority, sitting as a magistrate, to commit minors to the state industrial school. Wis. Ind. School for Girls v. Clark Co. 103 Wis. 651, 79 N. W. 422; State ex rel. Spritka v. Parsons, 153 Wis. 20, 139 N. W. 825.
It is to be noted that the order of the county judge does not appoint the State Board of Control guardian of the said children. The children are by said order committed to the state public school at Sparta. The order itself contains no provision in regard to guardianship and therefore is not such an order as that made by the county judge in Guardianship of Klein, supra.
The State Board of Control does not become the guardian of the children in question by appointment of the county court of Walworth county, but when said children are committed to the state public school at Sparta, the statute provides (sec. 573cZ) :
“The said board of control is hereby made the legal guardian of all children who shall become inmates of said school, and it shall be its duty to use special diligence in providing [466]*466suitable bornes for tbem. It may place them in families and make written contracts with responsible and suitable persons that the children shall be kept during their minority, or, in the discretion of the board, until they attain the age of eighteen years; provide therein for their education in the public schools where they may reside, for teaching them some useful occupation, for their kind and proper treatment as members of the families in which they are placed, and for the payment, on the termination of such contracts, to said board, for the use of the children, of such sum of money as may have been stipulated in the contracts.”
While the petition of the mother in form asks that she or some other suitable person be appointed guardian of said minors, we take it that the right which the petitioner is attempting to assert is that she is entitled to the custody of her minor children if she is of sufficient ability to care for them and a fit and proper person to have their care and custody, and that she cannot be deprived of that right in a summary proceeding under a law which requires no notice of the proceeding to be given to her, and we shall regard the petition as asserting that right, although it does not in terms do so.
We think this contention of the petitioner is sound. This court in Schiltz v. Roenitz, 86 Wis. 31, 40, 56 N. W. 194, said:
“The contention that the county court could, without notice to the plaintiff or opportunity to him to defend against the charge of abandonment, grant an order depriving the plaintiff of his most sacred natural rights in respect to his child, so jealously guarded and protected by the laws, offends against all ou.r ideas affecting the administration of justice, and is opposed to the principles which lie at the foundation of all judicial systems not essentially despotic in their character and methods of procedure. It is provided by the Fourteenth amendment to the constitution of the United States that ‘no state shall . . . deprive any person of life, liberty or property without due process of law.’ Due process of law, as applied to judicial proceedings, includes a charge before some judicial tribunal, and notice to the party in some form, either actual [467]*467or constructive, and an opportunity to appear and produce evidence in Ms defense and be beard by bimself or counsel. To proceed to adjudicate in the absence of notice to the party ‘would be contrary to the first principles of the social compact, and of the right of administration of justice.’
In Milwaukee Industrial School v. Milwaukee Co. 40 Wis. 328, 339, the court said:
“We cannot think that it was intended to foreclose the right of a parent, when competent, to resume the custody and care of his child. In this respect there is a significant difference between it and the statute before the court in People v. Turner, [55 Ill. 280]. That statute provided for process against the parent or guardian of the child, making them parties to the proceeding and apparently bound by it. The statute before us carefully avoids that difficulty, and operates, so to speak, upon the child in personam, without citing the parent or guardian, without any color of intent to bind the parent or guardian by the proceeding or by the commitment. It appears to us quite obvious, upon familiar principles, that the parent or guardian is not precluded by the commitment from asserting any right to the custody and care of the child, which he may be afterwards able to establish. . . . The commitment during minority binds the child only; not the parent or guardian, when competent to fulfil towards the child the duties assumed by the state. It is conclusive as between the school and the child; but not as between the school and the parent or guardian. The statute is a humane one, and should not be bent to a construction inconsistent with one of the dearest rights of humanity.” See 120 Am. St. Rep., note p. 598.
We must hold, therefore, that the right of the petitioner to the custody of her minor children is not foreclosed bjr a proceeding, notice of which was not required to be given to her under the terms of the law.
The fact that the petitioner was present at the hearing on the first petition which resulted in the commitment of the minors is immaterial, the statute not requiring any notice, to be given to her. Having under consideration an act conferring the power of eminent domain upon a municipality, the [468]*468statute not requiring any notice to be given, but it appearing that the property owner was present, this court said:
“It is not seen, therefore, how, if the plaintiff -had been notified of the time and place of meeting, or if he had been present at such time and place but taking no part, either circumstance could have availed to cure the defect or render the proceeding of any validity.
Free access — add to your briefcase to read the full text and ask questions with AI
RosewbeeRT, J.
The county judge found upon the hearing in 1913 that the mother was not a fit and proper person to have the care, custody, and control of the children; that they had been abandoned by their father; and that it was necessary in order to secure proper care, protection, and control to commit them to the state public school at Sparta. The mother in her petition does not allege any change in her cir[465]*465cumstances, and upon the general allegation that “your petitioner is of the opinion that it would he for their best interests to have a guardian appointed by law,” seeks to deprive the State Board of Control of the custody of the two children in question.
The first claim made is that the order commiting the children to the state public school at Sparta, having been made by the county judge who acted as a mere magistrate, is therefore subject to review. Guardianship of Klein, 95 Wis. 246, 70 N. W. 64. In that case it was held that the circuit court might, upon petition, determine who the guardian of the child should be, and that it was not concluded in that respect because the county judge had made an order awarding the custody of the child in question to another person under the provisions of sec. 4587&, S. & B. Ann. Stats.
It has been held that the county judge has authority, sitting as a magistrate, to commit minors to the state industrial school. Wis. Ind. School for Girls v. Clark Co. 103 Wis. 651, 79 N. W. 422; State ex rel. Spritka v. Parsons, 153 Wis. 20, 139 N. W. 825.
It is to be noted that the order of the county judge does not appoint the State Board of Control guardian of the said children. The children are by said order committed to the state public school at Sparta. The order itself contains no provision in regard to guardianship and therefore is not such an order as that made by the county judge in Guardianship of Klein, supra.
The State Board of Control does not become the guardian of the children in question by appointment of the county court of Walworth county, but when said children are committed to the state public school at Sparta, the statute provides (sec. 573cZ) :
“The said board of control is hereby made the legal guardian of all children who shall become inmates of said school, and it shall be its duty to use special diligence in providing [466]*466suitable bornes for tbem. It may place them in families and make written contracts with responsible and suitable persons that the children shall be kept during their minority, or, in the discretion of the board, until they attain the age of eighteen years; provide therein for their education in the public schools where they may reside, for teaching them some useful occupation, for their kind and proper treatment as members of the families in which they are placed, and for the payment, on the termination of such contracts, to said board, for the use of the children, of such sum of money as may have been stipulated in the contracts.”
While the petition of the mother in form asks that she or some other suitable person be appointed guardian of said minors, we take it that the right which the petitioner is attempting to assert is that she is entitled to the custody of her minor children if she is of sufficient ability to care for them and a fit and proper person to have their care and custody, and that she cannot be deprived of that right in a summary proceeding under a law which requires no notice of the proceeding to be given to her, and we shall regard the petition as asserting that right, although it does not in terms do so.
We think this contention of the petitioner is sound. This court in Schiltz v. Roenitz, 86 Wis. 31, 40, 56 N. W. 194, said:
“The contention that the county court could, without notice to the plaintiff or opportunity to him to defend against the charge of abandonment, grant an order depriving the plaintiff of his most sacred natural rights in respect to his child, so jealously guarded and protected by the laws, offends against all ou.r ideas affecting the administration of justice, and is opposed to the principles which lie at the foundation of all judicial systems not essentially despotic in their character and methods of procedure. It is provided by the Fourteenth amendment to the constitution of the United States that ‘no state shall . . . deprive any person of life, liberty or property without due process of law.’ Due process of law, as applied to judicial proceedings, includes a charge before some judicial tribunal, and notice to the party in some form, either actual [467]*467or constructive, and an opportunity to appear and produce evidence in Ms defense and be beard by bimself or counsel. To proceed to adjudicate in the absence of notice to the party ‘would be contrary to the first principles of the social compact, and of the right of administration of justice.’
In Milwaukee Industrial School v. Milwaukee Co. 40 Wis. 328, 339, the court said:
“We cannot think that it was intended to foreclose the right of a parent, when competent, to resume the custody and care of his child. In this respect there is a significant difference between it and the statute before the court in People v. Turner, [55 Ill. 280]. That statute provided for process against the parent or guardian of the child, making them parties to the proceeding and apparently bound by it. The statute before us carefully avoids that difficulty, and operates, so to speak, upon the child in personam, without citing the parent or guardian, without any color of intent to bind the parent or guardian by the proceeding or by the commitment. It appears to us quite obvious, upon familiar principles, that the parent or guardian is not precluded by the commitment from asserting any right to the custody and care of the child, which he may be afterwards able to establish. . . . The commitment during minority binds the child only; not the parent or guardian, when competent to fulfil towards the child the duties assumed by the state. It is conclusive as between the school and the child; but not as between the school and the parent or guardian. The statute is a humane one, and should not be bent to a construction inconsistent with one of the dearest rights of humanity.” See 120 Am. St. Rep., note p. 598.
We must hold, therefore, that the right of the petitioner to the custody of her minor children is not foreclosed bjr a proceeding, notice of which was not required to be given to her under the terms of the law.
The fact that the petitioner was present at the hearing on the first petition which resulted in the commitment of the minors is immaterial, the statute not requiring any notice, to be given to her. Having under consideration an act conferring the power of eminent domain upon a municipality, the [468]*468statute not requiring any notice to be given, but it appearing that the property owner was present, this court said:
“It is not seen, therefore, how, if the plaintiff -had been notified of the time and place of meeting, or if he had been present at such time and place but taking no part, either circumstance could have availed to cure the defect or render the proceeding of any validity. It is the omission or unconstitutional feature in the statute which vitiates, and that can be cured only by the legislature itself, or, in particular cases, it may be, by the waiver or voluntary abandonment of his constitutional rights by the landowner, who has that power.” Seifert v. Brooks, 34 Wis. 443, 448.
■ Has the county court of Walworth county jurisdiction, upon the proper petition, to hear, try, and determine whether or not the petitioner is of sufficient ability to support the minors and is a fit person to have their care and custody, and to award the custody of said minors to the petitioner ?
Piad the county court declined to proceed further upon the petition filed in this case on the ground that the petition did not state facts calling for any exercise of the equitable powers of the court, its determination would have been correct. The county court, however, did not decline to proceed upon that ground, but upon the ground that it had no jurisdiction in the premises. If the petition had alleged the facts as to the former commitment of the children and further alleged that the petitioner, the mother, by reason of her changed circumstances (indicating with some particularity at least the degree of the change), was now of sufficient ability to support and care for the children, and that because of reformation or for some other reason she was now a fit and proper person to have their care and custody and asked a determination thereon, and if found to be a proper person and to be of sufficient ability to have the care and custody of the children that their care and custody be awarded to her, a different question would have been presented. It is clear that upon such a petition, proper notice being given, the county court would have jurisdiction over the subject matter of the petition.
[469]*469By the provisions of see. 573/, Stats., as well as by the general provisions of the statutes in regard to guardianship of minors, the county court is given jurisdiction of the person of . minors. This in effect constitutes the minor a ward of the court, and in the exercise of this jurisdiction it has all the powers of a court of equity as well as a court of law in the premises. While the proceeding upon a proper petition in a matter like the one before us is not strictly a proceeding to appoint a guardian, it is nevertheless one which affects the person and the right to custody of a minor who is the ward of the court. The county court, therefore, has jurisdiction in the premises. This jurisdiction is concurrent with that of the circuit court in like matters. But the jurisdiction of the circuit court will not be exercised originally in matters wherein the county court has jurisdiction, unless it appears that the county court cannot grant relief as adequate, complete, prompt, and efficient as can be granted by the circuit court. Glasscott v. Warner, 20 Wis. 654; Guardianship of Klein, 95 Wis. 246, 70 N. W. 64; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; Wisdom v. Wisdom, 155 Wis. 434, 145 N. W. 126.
Upon the petition being amended so that it will show proper grounds upon which to proceed, the county court will fix a time and place for. hearing, give notice thereof to all parties in interest, and determine judicially whether or not the petitioner is of sufficient ability to properly support and care for the minors in question and is a fit and proper person to have their care and custody.
By the Gourt. — That part of the order appealed from reversing the order of the county court dismissing the proceeding is affirmed. The remainder of the order appealed from is set aside. The clerk of this court is directed to return the record in this case to the county court of Walworth county for further proceedings in accordance with this opinion; no costs to be taxed by either party.
Owen, J., took no part.