STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 22, 1968

Edward Green, Superintendent
South Dakota Training School
Plankinton, South Dakota 57368

OFFICIAL OPINION NO. 68-22

Delinquent child; Order of Circuit Court on Appeal from commitment to State Training School, transferring custody from such institution to third persons must be obeyed; failure to comply may result in punishment for contempt.

Dear Mr. Green:

You have requested my opinion, based upon this factual situation:

"By proper proceedings held after July 1, 1968, the County Court of 'A' County made and entered its order finding 'X' to be a delinquent child, and in pursuance to statute, committing such child to the State Training School. Thereafter an appeal of such order was taken to Circuit Court and the Circuit Court issued its ex parte order requiring the State Training School, or its officials, to release 'X' from custody, the custody of 'X' to be held by named individuals pending such appeal"

In connection with such factual situation, you have submitted the following questions:

"1. Assuming 'X' was received into the State Training School prior to the Circuit Court Order, must the officials of the Training School comply with such Circuit Court Order?

"2. What should the roll of the Superintendent of the Training School be in such appeal, when he has been appointed Guardian of 'X', while an inmate in such institution, by operation of law?"

Question 1:

It is my opinion that you and the officials of the State Training School should comply with the Order of the Circuit Court.

It is well settled in South Dakota that all courts of record, in the absence of constitutional restrictions have the inherent power to punish criminal contempt. As a county court is a court of record, it has such inherent power. (In Re Taber (1900) 13 SD 62, 82 NW 638)

It is also well settled in South Dakota, as elsewhere, that when a court of record enters an order requiring certain action, a refusal to comply with such mandate is punishable by contempt proceedings so long as such mandate, however erroneous it may be, was issued within the jurisdiction of such court. In Re McCain (1896) 9 SD 57, 68 NW 163. As the court in our sister state of North Dakota said in Hodous v. Hodous (ND 1949) 36 NW 2d 554, 12 ALR 2d 1051:

"The failure of a party to obey an order that is void for want of authority in the court to issue is not punishable as a contempt. (cases cited) The rule is otherwise in a case where the court has jurisdiction of the subject matter and the parties, but has issued an erroneous order. In such a case it is the duty of the party to whom the order is directed to obey as long as it remains in full force and effect and until it has been set aside either by the court that made it or upon appeal."

You should be advised, because of the time element involved, that the ordinary way to test the validity of any mandate of court is for a party to refuse to obey the same, and then when imprisoned because of contempt, to seek release from jail by way of Habeas Corpus. If the court has no jurisdiction to issue such order, the detention of custody is illegal; if the court had jurisdiction to issue the order, the detention is not illegal, although such order may be erroneous, for the method of attacking the erroneous order is by appeal.

There can be no question that an order finding a minor child a delinquent and committing such child to the State Training School is appealable to the Circuit Court. (Section 18 of Chapter 164 of the Session Laws of 1968 repealing and reenacting SDC 43.0333 so provides.) Upon perfecting such appeal, there can be no question that the Circuit Court has jurisdiction of the subject matter of and the parties to such action.

It is well settled in South Dakota that when an appeal is taken on the law and on the facts from County Court to Circuit Court, that there is a "trial de novo"-that is the Circuit Court is furnished all evidence anew and renders a conclusion based thereon-however, the Circuit Court may exercise only the jurisdiction that the County Court can exercise in the premises. This is settled in Re Skelly Estate, 21 SD 424, 113 NW 91; Shaw v. Shaw 28 SD 221, 133 NW 292, Ann Cas 1914B 554, and in a continuous line of decisions culminating in Re Poulsen's Estate, 71 SD 149, 22 NW 2d 734. You have called my attention to the fact that under Section 17 of Chapter 164 of the Session Laws of 1968 (which repealed and reenacted SDC 43.0328) the County Court, after committing a child to the State Training School, cannot thereafter enter its order disturbing such custody, and express an opinion that this statute would render the Order of Circuit Court without its jurisdiction.

It is my opinion that such argument is untenable, for the reason that if such were true, the whole purpose of the appeal procedure would be rendered useless. The Circuit Court could find on its trial de novo that such child was not in fact a delinquent or while a delinquent, the best interest of such child would be served by a commitment elsewhere but such appellate court could not change such commitment to the training school. A consideration of such a contention proves it is false.

It is my opinion that in order to have any effective appellate procedure, that once the appeal is perfected, pending the hearing of such appeal, all orders of the County Court are set aside. This includes not only a finding of delinquency, but also the disposition of such child.

It is my opinion that at the most the ex parte order of the Circuit Court in ordering the Child 'X' to be released from custody of your institution and placed in the custody of third parties, pending such appeal, while possibly erroneous, is within the jurisdiction of the Circuit Court. Failure to comply with such order while it remains in existence would subject you, as Superintendent of the Training School, to punishment for contempt. If you are in possession of certain facts which would indicate that such transfer of the child from your institution might be detrimental to the best interest of the child, you should communicate such information to the Circuit Judge with a request that he consider revocation or modification of such order. In my opinion such a request would not amount to a refusal to comply with such ex parte order, subjecting you to punishment for contempt. If the court refuses to modify the order, you have no alternative but to comply therewith, and then seek relief therefrom by appeal.

Question 2:

The whole basis of juvenile law is that the state is exercising its prerogative as "parens patriae" of all infants within the state, and that at all times it is acting for the well-being and best interest of the individual child. If such best interest requires commitment to a corrective institution, such may be done.

In any appeal from the Order of Commitment to a state institution, the state is an interested party. You, as an agent of the state, likewise, should be interested. However, your interest arises not because you are a guardian appointed by law for such child, but because of your peculiar relationship to the state as Superintendent of one of its correctional institutions.

If you are in possession of certain information that may be helpful to the Circuit Court in the juvenile matter, you should communicate such to the Circuit Judge, and attend and testify at such hearing on appeal. However, you should at all times act in the best interest of the child, and not in a spirit of vindication for your institution, and the Order of the County Court. Your own personal feelings must be subjected to a consideration of the well-being and interest of the child.

Respectfully submitted,

Frank L. Farrar
Attorney General