
    Benjamin Prescott v. The State of Ohio.
    1. Art. 5 of the amendments of the Constitution of the United States does not operate as a limitation of the power of the State governments over their own citizens, but is exclusively a restriction upon Federal power.
    2. Section 8 of the act of April 1G, 1857, to authorize the establishment of houses of refuge, and the statutes subsequently enacted enlarging the operation of that act so as to authorize commitments to be made to the “ State Reform Farm” from any county of the State, are not repugnant to either sections 5 or 10 of article 1 of the constitution of the State.
    
      Error to the court of common pleas of Yan Wert county.
    At the January term, 18Y0, of Yan Wert common pleas, the grand jury made a return in writing, signed by the prosecuting attorney, to the following effect: That an accusation was made to them that Benjamin Prescott, on February 8, 1869, in that county, unlawfully, wilfully, maliciously, and feloniously burnt and caused to be burnt a barn, the property of John Boals, of the value of three hundred dollars, contrary to the statute, etc.; and that, having examined the evidence, the jury find the accusation to be true, and that it .was supported by sufficient evidence to put Prescott on trial on the accusation; and that he was a male infant under the age of sixteen years, and of the age of fourteen years at the time of the return ; that he was then and had been for more than a year past a resident of Yan Wert county; that he was vicious and incorrigible, and a suitable person to be committed to the guardianship of the directors of the house of refuge or to the reform farm in Ohio ; and that finding him to be such a person they make the return as stated, instead of an indictment, for the court to take such action in the premises as the law provides.
    Upon this return of the grand jury, and by reason of the facts therein stated, the court ordered Prescott to be committed to the reform farm until he became of age, or was reformed, and duly discharged according to law; and that the sheriff execute the order as soon as practicable.
    To all which Prescott by his counsel excepted.
    Prescott was accordingly committed to the reform farm, and on his behalf this writ of error is prosecuted to reverse the order and judgment of the court.
    
      Barr <& Glenn for plaintiff in error:
    1. The court below erred in depriving the plaintiff in error of liberty without due process of law, in derogation of the 5th article of the amendments of the Constitution of the United States.
    
      2. The court erred in depriving him of a trial by jury, in derogation of section 5, article 1, of the constitution of Ohio.
    3. The court erred in not allowing him to appear and defend, and have a trial by an impartial jury, in derogation of section 10, article 1, of the constitution of Ohio.
    4. The court erred in making the order of commitment.
    
      James L. Price, prosecuting attorney, for the State:
    1. The action of the grand jury and the court of common pleas is based on the 8th section of the act of April 16, 1857, “ to authorize the establishment of houses of refuge ” (S. & C. 690), in conjunction with the act of April 2, 1838, “to provide for the establishment of reform schools” (S. & C. 1380-1); also an additional statute of 1865 (S. & S. 388) which extends the provisions for houses of refuge to the reform farm, etc.
    2. As to the objection that Prescott has been denied a “trial by jury,” guaranteed by the constitution to every citizen, and that he had not the opportunity to confront witnesses against him face to face, etc., and that if the statutes referred to authorize such proceedings as were had in this case, then the same are unconstitutional and void — I reply: The constitutional provisions suggested refer to the rights of a paily accused, charged amd indicted for crime ; but against Prescott no indictment was found, no cha/rge of crime preferred, upon which to put him ujion his trial. Neither has there been punishment inflicted. The statute metes out no penalty or punishment, but is intended to subserve the public good and no individual imjury. It provides a system of benei olent education or apprenticeship for young boys of evil habits or bad surroundings. The State may thus protect itself and promote the public weal. 4 Wharton, 11; Story’s Eq., sec. 1341.
    Sections 19 and 20, S. & C. 692, prescribe the method of relief.
   White, J.

The proceedings disclosed in the record were had under the eighth section of the act to authorize the establishment of houses of refuge (1 S. & G. Stat. 690), -and the statutes subsequently enacted enlarging the operation of that act so as to authorize commitments to be made to “ The State Reform Farm,” from any county in the State. S. & O. Stat. 1380-1; S. & S. Stat. 388.

The decision of the case depends upon the validity of the section named, which provides: If any accusation of the commission of any crime shall be made against any infant under the age of sixteen years, before any grand jury of the county, . . . and the charge appears to be supported by evidence sufficient to put the accused upon a trial, the grand jurors may, in their discretion, instead of finding an indictment against the accused, return to. the court that it appears to them that the accused is a suitable person to be committed to the guardianship of the directors of the house of refuge, and the court shall thereupon order such commitment.”

The subsequent legislation authorizes 'the commitment to be made to the guardianship of the board of commissioners for reform schools, who are invested by law with the care and control of the reform farm.

In the assignments in error, it is claimed that the statute in question is in conflict with art. 5 of the amendments to the Constitution of the United States; also with sections 5 and 10 of art. 1 of the constitution of the State.

The amendment to the Constitution of the United States referred to has no bearing on the case. That provision does not operate as a limitation of the power of the State governments over their own citizens, but is exclusively a restriction upon Federal .power. This has been repeatedly decided by the supreme court of the United States, and in the late case of Twitchell v. The Commonwealth (7 Wallace, 321) was not regarded as an open question.

The provisions referred to in our State constitution relate to the preservation of the right of trial by jury, and to the lights of the accused in criminal prosecutions. We do not regard this case as coming within the operation of either of these provisions. It is neither a criminal prosecution, nor a proceeding according to the course of the common law, in ■which the right to a trial by .jury is guaranteed.

The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for thp causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. Tbe institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or the penitentiary, á Wharton, 11.

In this proceeding in error the facts found in the record must be taken as true; and these facts show the plaintiff in error to be a proper subject for commitment to the reform farm. But in a direct proceeding to determine the legality of the detention, the records could only be regarded asprvmafaoie evidence of the facts found,

No provision is made by the statute for making a defence to the charge preferred, nor for requiring notice to be given of the pendency of the proceeding. It would doubtless be proper for the court, where it was practicable, befoi’e making an order of commitment, to require such notice; but it does not seem to be required.

Owing to the ex-parte character of the proceeding, it is possible that the commitment of a person might be made upon a false and groundless charge. In such case neither the infant, nor any person who would, in the absence of such commitment, be entitled to his custody and services, will be without remedy. If the remedy provided in the 20th section should not be adequate or available, the existence of a sufficient cause for the detention might, we apprehend, be inquired into by a proceeding in habeas corpus.

It is true the 419th section provides, that it shall be a sufficient return to a writ of habeas corpus that the infant was committed to the guardianship of the directors, and that the period for his discharge had not arrived; and the section further provides that the existence of the circumstances justifying the commitment shall not otherwise be examinable than in an action as provided for in the act. But we regard it as questionable whether this section can operate to restrict the power of a court, invested by the constitution with jurisdiction in habeas corpus, from inquiring fully into the cause' of the' detention of a person restrained of his liberty.

Judgment affirmed.

Brtnkerhoee, C.J., and Scott, Welch, and Day, JJ., concurred.  