Van Leuven v. Ingham Circuit Judge

131 N.W. 531, 166 Mich. 115, 1911 Mich. LEXIS 488

• Court: Michigan Supreme Court
• Decided: June 2, 1911
• Docket: Calendar No. 24,313
• Status: Published

Opinions

Brooke, J.

This is an application for a mandamus to compel the circuit court of Ingham county to entertain jurisdiction of an appeal from the probate court of said county, in a matter arising under Act No. 6 of the Extra Session of 1907, as amended. Relator, a child of 15 years of age, was proceeded against under the provisions of said act. She was tried by a jury and found to be a “delinquent child,” whereupon the probate court committed her to the Industrial School for Girls at Adrian, until she shall arrive at the age of 21 years. Relator thereupon perfected an appeal to the circuit court, which appeal was, on motion, dismissed. Relator contends that an appeal lies by virtue of section 669, 1 Comp. Laws:

“In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county,” etc.

Jurisdiction in juvenile matters was conferred upon probate courts throughout the State by Act No. 6 of the Extra Session of 1907, except in three counties. By the Constitution of 1909, Art. 7, § 13, original jurisdiction in all cases of juvenile delinquents and dependents was conferred upon probate courts and the judges thereof. Following the adoption of the Constitution, the “juvenile act,” so called, was amended by Act No. 310 of the Public Acts of 1909, so as to conform with the Constitution as to jurisdiction. Neither in Act No. 6, supra, nor in the amending Act No. 310, supra, is there any provision for an appeal from the finding or determination of the probate court to the circuit court.

It is urged by relator that, in passing the two acts in question, the legislature must be presumed to have acted with knowledge of the existence upon the statute books of section 669, 1 Comp. Laws, which was evidently considered sufficient for the protection of those desiring to appeal. We have no doubt that it may be presumed that the legislature had such knowledge; but we do not think it necessarily follows that it was believed that that section provided for an appeal in juvenile matters. A careful review of the act as amended leads to the conclusion that the legislature sought, by its enactment, to provide in a humane manner for the care of unfortunate children who, by reason of immoral environment and lack of healthy restraining home influences, were found to be committing offenses against law and decency. The proceeding provided by the statute is not criminal in character and is intended to be solely in the interest of the child and of the community, which profits if its youth are reared amid moral and industrious surroundings, and suffers if they are permitted to grow up among the idle and vicious.' Taking this view of the purpose of the legislation and examining the act itself, we are constrained to hold that it was not intended by the legislature that an appeal should lie. Several considerations impel us to this view. In the first place, the only judicial officer clothed by the act with the power of exercising discretion in the care and disposition of a juvenile delinquent is the probate judge. He, and he alone, may determine whether the child shall be returned to its parents or guardians, placed upon probation, or committed to one of the several institutions named in the statute. No machinery is provided for guarding the interests of the child upon appeal. If an appeal be allowed, it must be to the circuit court, a court of general criminal jurisdiction, where the delinquent must be tried in accordance with the general rules of criminal procedure. This is wholly at variance with the spirit and tenor of the act. Weight is added to this view when we consider that the act itself provides that, in certain specified cases, the delinquent may, at the discretion of the probate judge, be proceeded against in the ordinary criminal courts.

The right to an appeal is entirely statutory. In Sullivan v. Haug, 82 Mich. 548 (46 N. W. 795, 10 L. R. A. 263), it is said:

“No person has a constitutional right to a second trial, after having been duly convicted before a court of competent jurisdiction, by an appeal to another tribunal; neither is there an inherent right to appeal from a judgment of an inferior to a court of superior jurisdiction for the purpose of securing a second trial upon the merits. The right to an appeal is and always has been statutory, and does not exist at common law. If is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, and under what circumstances, and from what courts, appeals may be taken; and, unless the statute expressly or by plain implication provides for an appeal from a judgment of a court of inferior jurisdiction, none can be taken” — citing many cases.

In considering the effect of section 669, 1 Comp. Laws, with reference to condemnation proceedings (U. S. Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668 [114 N. W. 666]), this court said:

' ‘ It is the general rule that, unless the statute expressly gives an appeal, there is no appeal; nor can a review be had by writ of error in special or extraordinary proceedings, not according to the course of the common law ”— citing cases.

In Sparrow v. Ingham Circuit Judge, 109 Mich. 272 (67 N. W. 112), it was held that an appeal did not lie, under the section in question, from an order committing a person to the insane asylum.

We have reached the conclusions herein expressed with some difficulty, for, though humane in its purpose and reformatory rather than punitive, the act confers a very broad authority upon the probate judge, and it cannot be doubted that a commitment to one or other of the institutions named in the act involves restraint of the liberty of the delinquent, accompanied by a certain odium which will always attach to the individual so committed. This, however, is the lesser of two evils in cases where commitment is proper. If an error is committed, as to the fact of delinquency, the result would be truly unfortunate. It is to be presumed, however, that the legislature gave due consideration to this contingency, and, after such consideration, enacted the law in its present form. Our opinion as to the wisdom of this feature of the law is a matter of no consequence. It is the duty of courts to construe, not make, the law.

The writ must be denied.

Ostrander, C. J., and Bird, Hooker, Moore, and Stone, JJ., concurred with Brooke, J.