WRIT OF HABEAS CORPUS.

Otago Witness, Issue 2914, 19 January 1910, Page 36

WRIT OF HABEAS CORPUS.

INDUSTRIAL SCHOOLBOY i RELEASED. 1 The following is the decision of his Honor Mr Justice Williams in the matter of Robert Pomeroy, who was committed to j the Bovs Training Farm at Weraroa in. • May, 1908: In May. 1908, Robert Pomeroy, an infant I now aged 14 years, was committed to the I Boys Training Farm, Weraroa Industrial School, on the application of James Henry ‘ Pomeroy, his grandfather, under the sections of the then existing acts to which sections 18 and 19 of “The Industrial Schools Act. 1908,” correspond. “Parent.” as ..defined by the act, includes grandfather. The boy is now detained at the school. Mr Pomeroy, the grandfather, has obtained a rule nisi for a writ of habeas Corpus to procure the bov’e discharge on. the ground that he is illegally detained there. Mr Pomeroy says that ho under- , stood from the police, with whom he con- j suited, that the boy would be detained for a year onlv. and that ho made the j application thinking that at the end of a. year the hoy would bo discharged- That i Mr Pomerov was genuinely under this im- j pression when he applied to the trate for an order J quite believe. Nothing : . been suggested against his character, j ’ Nothing was said, however, as to this when ' Mr Pomeroy applied to the magistrate. If ( took place then crave the magistrate i jurisdiction to make the order the boy is . in legal custody at the school, and this , court cannot interfere by writ of habeas, j T’im rule, however, was granted on the . further grounds that rn evidence on oath ] was taken by the magistrate, and that no , security was given for the my men i: of the j maiutenranoe of the child. It was the fact 1 < that all the magistrate had before him when « he made the order were the statments, rot 1 on oath, of the navent and of a police j constable, and that he took no security ■) although he had ordered the parent, to pay | 5 at the rate of 5s a week for the mainten- | 1 ance of the child. Sections 18 and 19 are i 1 1® follow:—“18- Any parent, having a < ch :i 1 w'-oni |i,c ■> unable to control, and j 1 wishing him to be sent to a school, may, j < without, any warrant, take such child before I f the nearest available magistrate, and if Kg j t proves to the satisfaction of the mavis- j t tra+e that he is unable to control such child, ; J and gives security to the satisfaction of . the j 1 magistrate for the payment or the main- j t tenance of sne-h child, the magistrate may j < make an order as mentioned in the next j 1 succeeding section. 19: (11 Whenever, a. 1 child is brought before a. magistrate under j f either of the two hist preceding sections j 1 such magistrate ni«v. after inquiry .and the j t hearing of such evidence as may be adduced j 1

I . .. ! before him, make an order in the presoribec j form directing such child to be sent forth I with to a- school. (2) On the hearing o j any proceedings under either of the saic 1 sections, the magistrate may order that al ‘persons shall be excluded from the court: Provided that such order shall not ope rat ( to exclude any counsel, solicitor, con stable, witness. parent, or guardian or accredited newspaper representative or the representative of any institu tion or organisation interested in the wel faro of the children.” It is only by virtue o | these sections that the magistrate has juris 1 diction to make the order in the present j case. That order recites that after th« 1 inquiry and the hearing of tho evidence adduced before the magistrate he is satis j fied that the child was uncontrollable. I Now. the language of sections 18 and If i clearly makes proof by the parent and the hearing of such evidence as may be , adduced conditions precedent to the exer- | ciss of the jurisdiction of the masristrate. ! Where the act or thing reouired by a [ statu to is a condition precedent to the ; jurisdiction of the tribunal compliance cannot be dispensed with. The proceeding is a judicial proceeding. Section 1£ assumes that it is to be conducted in court. Where in a indicia! proce©diner anything is reouired to to* proved, and evidence is to heard, the sanction of and oath is universally necessary. T+ to oplv if the matter required to be proved ■>« admitted that such proof is dispensed with. Here the order is made against the child; it takes him from his natural guardian, hands him over to a ■ statutory guardian, and keeps him in quasi imprisonment till he is 21 vears of ago. The child has admitted nothing and could scarce!v be bound by any admission. An admission bv the parent that, a child is uncontrollable does not. bind the child. There is every reason why tbs magistrate should have evidence on oath before making an order which involves such serious consequences. It. is true that by section 24 a child mav be admitted as an inmate upon such terms as to the cost of bis maintenance and education, as may be agreed o.n between the parent and the manager of a school. In such a case, however, the parent remains the guardian (section 261 and oan withdraw the child from the school in the same way as any parent who sends a child to any other school can withdraw him. Nor is it clear that the omission of tho magistrate to take security is not fatal to tho order. The plain language of section 18 makes the taking of security something which the magistrate has to do before he can make the. order. That is that it is a condition ,precedent to his jurisdiction to make the order that he should take security. I have not found any case where the court, has treated ?.s directory only any act, however trivial, which a statute creating jurisdiction has made in clear language a condition orecedent to the exercise of that, jurisdiction. No doubt under section 33 if a parent proves he is unable to pay, the child may be admitted without the parent being ordered to pay anything. lii such n case section 18 could be read with section 33. and, as the parent had rob •to pay for maintenance, be oonld not be called upon to give security, and it, could not in that, case ■ be a condition precedent to the making of the order that he should give security. 'Where, however, the, magistrate fixes under section 33 a sum which the parent has to pay for maintenance, the act contemplates that before an. order is

made under section 18 security to ta* satisfaction of the magistrate for tho amount so fixed is to be given. It does not seem to mo that the section gives the magistrate a discretion to dispense with security. I think that the applicant has made out; his case and that the boy is entitled to be discharged. Fortunately the applicant is a respectable man able to maintain the boy and willing and anxious to have him back. He is fond of the hoy, and the toy, from the letter shown me, seems fond of him. If it turns but that after all Mr Pomeroy is stilt unable to control the boy, further measures can be taken. The rule will bo made absolute, and the boy ordered to be discharged without the writ issuing.