Alternative writ made permanent.
Richard H. Chambers and E. T. Cusick, Tucson, and Jesse A. Udall, Safford, for petitioner.
Favour & Quail, Prescott, for Superior Court of Yavapai County, W. E. Patterson, Judge, respondent.
John J. Flynn, Dix W. Price, and Allan K. Perry, all of Phoenix, for Superior Court of Maricopa County, Charles C. Bernstein and Fred C. Struckmeyer, Jr., Judges, respondents.
La Prade, Justice. Udall, C. J., and Stanford and De Concini, JJ., concurring. Phelps, Justice (dissenting).
La Prade, Justice.
This proceeding was instituted directly in this court by petitioner George Ridgway, Superintendent of the State Industrial School for Boys at Fort Grant, Arizona, asking for a writ of prohibition against the Superior Court of Yavapai County, Arizona, W. E. Patterson, Judge thereof, and the Superior Court of Maricopa County, Charles C. Bernstein and Fred C. Struckmeyer, Jr., Judges thereof, hereinafter called respondents, to compel respondents [74 Ariz. 118] to cease and desist from proceeding in certain contempt proceedings then and now pending in said courts against petitioner. An alternative writ of prohibition was issued by this court and the matter is now before us on motions to quash the alternative writ.
The petition for the writ showed that the Honorable W. E. Patterson, Judge of the Superior Court of Yavapai County, Arizona, had theretofore issued separate rules to show cause and directed petitioner and three present employees and one former employee of the school to show cause in the Superior Court of Yavapai County, Arizona, why they should not be held in contempt of that court for subjecting two juveniles, theretofore committed by that court, to cruel, unusual and inhuman punishment. The rule asserted that the alleged conduct of the Superintendent and the employees was a wilful violation of the orders of the court.
While these proceedings were pending, the Honorable Charles C. Bernstein, one of the judges of the Superior Court of Maricopa County (presiding as Juvenile Judge), issued an order to show cause against petitioner and four present and two former employees of the school. This order to show cause asserted that in connection with the disciplinary methods of petitioner and his subordinates the orders of the court, the Constitution and the statutes of the state were being violated. In these charges some 18 wards committed to the school were alleged to have been mistreated in connection with disciplinary procedures at the school.
The rules to show cause from the Yavapai Court, directed to petitioner, charged that he was an officer of the court and that in such capacity he had subjected the named wards to cruel and unusual punishment in that he caused them to be subjected to corporal punishment exceeding the bounds of reasonable discipline, to wit: floggings, being compelled to walk long distances in bare feet and forced to work in briar patches barefooted at a time when their feet were blistered. Other charges were designated as cruel and unusual punishment, the specifications being that the wards had been subjected to ridicule by having their hair cut and clipped; deprived of food for two consecutive meals and compelled to stand at attention in the mess hall without food while other wards were eating their meals; to humiliation and fear by having directed to them opprobious epithets; being compelled to witness the striking of other wards and hearing threats of punishment made to them; that the named employees had appeared in the presence of the wards under the influence of liquor, thereby subjecting them "to care and environment contrary to his commitment and contrary to the moral welfare of said minor".
The order to show cause issued by Judge Bernstein directed petitioner and others to show cause before Judge Struckmeyer
[74 Ariz. 119] "why the orders and judgments of this Court and the laws of Arizona had not been obeyed relating to said wards of this Court, all by reason of the acts set forth in the affidavits on file herein and attached hereto".
The affidavits referred to charged as cruel and unusual punishment striking, beating and kicking of certain children, requiring them to walk long distances without shoes, food and adequate water, to work in sticker patches without shoes, shaving of heads, using obscene and vile names in the presence of wards, etc.
The petitioner asserts that a superior court is without jurisdiction to institute or prosecute proceedings in contempt for any of the matters or things set forth in the several rules to show cause directed against him and the other named employees.
Respondents, in support of their motions to quash the alternative writ, and relying on the case of Howard v. State, 28 Ariz. 433, 237 P. 203, 40 A.L.R. 1275, contend that the courts have jurisdiction to proceed by contempt for violation of their orders.
At this juncture, it might be well to observe what were the specific orders alleged to have been violated. The commitment from the Yavapai court recited that a petition had been filed against the named child charging him with being a delinquent, that a hearing was had; that the court found that he was a delinquent child, naming the particulars, and that he was a minor subject to the provisions of the juvenile court laws of the state, and then decreed:
"It is therefore ordered, adjudged and decreed that the said Frankie Holt be and he is hereby committed to the Industrial School for Boys located at Fort Grant, Arizona, for the period of his minority, unless sooner discharged by due process of law. It is further ordered that this Court retain jurisdiction over said minor."
The Maricopa commitment was to the same general effect and, in addition thereto, provided that
"A certified copy of this order shall be a warrant for the Sheriff of Maricopa County to deliver the said child to the said Industrial School, and for the authorities of said Industrial School of the State of Arizona to receive
and keep said child as herein ordered and provided."
It is our opinion that these commitments are no more nor no less than orders to receive and keep the named child for the period of his minority unless sooner discharged by law.
Respondents contend that under the provisions of the Constitution and applicable statutes the juvenile court has exclusive and continuing jurisdiction in all proceedings and matters affecting delinquent children, and as a consequence can punish a disobedience of its order in relation thereto by contempt proceedings. The applicable [74 Ariz. 120] portion of the Constitution (Art. 6, Sec. 6), in part, reads as follows:
"* * * The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting dependent, neglected, incorrigible, or delinquent children, or children accused of crime, under the age of eighteen years. * * * The powers of said judges to control such children shall be as prescribed by law. * * *"
The statutory provisions (Juvenile Code) are to be found in Chapter 80 of the Session Laws of 1941, the various sections of which have now been given arbitrary section numbers in the Supplement to the Arizona Code Annotated, 1939. The applicable code provisions are:
Section 46-118, Jurisdiction of juvenile court, is a rescript of the constitutional provision just quoted.
Section 10 of said Chapter 80, Session Laws of 1941, section 46-125, is entitled Disposition of Child. (This section was attempted to be amended by Chapter 13, Session Laws 1951, but is now held in abeyance, referendum having been filed against it.) It specifically authorizes the commitment of children to various institutions including the State Industrial School.
Section 46-132, Code Supplement, in part provides as follows:
"(a) When jurisdiction has been obtained by the juvenile court in the case of any child, the child shall continue under the jurisdiction of the court until he becomes twenty-one (21) years of age, unless sooner discharged. No commitment shall divest the court of jurisdiction for the purpose of enforcing its judgments and orders. No commitment of any child shall extend beyond the minority of the child, and commitments to the state industrial school or a school or institution for girl juvenile offenders shall be for the term of the child's minority, unless sooner discharged."
By Chapter 98, Session Laws of 1952, (effective June 26, 1952) this section was amended by striking therefrom the sentence:
"No commitment shall divest the court of jurisdiction for the purpose of enforcing its judgments and orders."
and in lieu thereof, there was inserted a sentence referring to committed children, as follows:
"A child shall be subject to the exclusive control of the board of directors of state institutions for juveniles until his absolute release."
Section 46-136, When board may release child, authorizes the board of directors of state institutions for juveniles to issue an absolute release of a child when certain conditions exist. Under the provisions of this section, as originally enacted by Chapter 80, Session Laws 1941, the board could not release except with the consent of the court. This section was amended by Section [74 Ariz. 121] 2, Chapter 28, Session Laws 1945, vesting the board with the sole power to release.
Section 46-139, Contempt, reads as follows:
"Any person who wilfully violates or neglects or refuses to obey or perform any order of the juvenile court may be proceeded against for contempt."
This section was in effect at the time these contempt proceedings were initiated, but has now been repealed. (Sec. 3, Ch. 98, S.L.1952, effective June 26, 1952.)
For the past 50 years the state has maintained an institution for the confinement, discipline, education, employment and reformation of juvenile delinquents. See Section 3733, Revised Statutes ...