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McKinnon v. Harwood

December 31, 1913

J. E. MCKINNON, SUPERINTENDENT OF THE STATE ORPHANS' HOME, JOHN E. BRAY, WILLIAM MCMILLAN, AND C. L. DEADY, AS THE BOARD OF ORPHANS' HOME COMMISSIONERS, PETITIONERS, V. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR WASHOE COUNTY, AND THE HON. COLE L. HARWOOD, JUDGE THEREOF, RESPONDENTS.


Geo. B. Thatcher, Attorney-General, for Petitioners.

L. A. Gibbons, for Respondents.

By the Court, Talbot, C. J.:

The petitioner McKinnon is the superintendent of the State Orphans' Home, and petitioners Bray, superintendent of public instruction, C. L. Deady, surveyor-general, and William McMillan, state treasurer, constitute the board of directors of that institution. This is an application by them for a writ to prohibit the second judicial district court and Hon. Cole L. Harwood, the judge thereof, from punishing them for contempt for refusing to receive at the orphans' home a child which was by that court ordered committed to that institution under the act relating to dependent, neglected, or delinquent children, and designated as the “Juvenile Court Law.” the order was made in a proceeding entitled The State of Nevada in the interest of Howard Eggendorfer, a Dependent Child, Plaintiff, v. Carrie Eggendorfer, His Mother, Defendant, to which the petitioners were not made parties. The order also recites: “The above-named Howard Eggendorfer having been regularly brought before the above-entitled court upon a petition duly verified and filed, as provided in the statute of the State of Nevada, said petition showing that said Howard Eggendorfer was within the said county of Washoe, and is a dependent child within the meaning of said statute, and due notice of the hearing of said petition having been given, and Carrie Eggendorfer, the mother of said child, and the only parent thereof, appearing and being present in the above-entitled court upon the hearing thereof, and it appearing to the satisfaction of the court that the said Howard Eggendorfer is under the age of 18 years, and

[35 Nev. 494, Page 496]

is of the age of 13 years, and within the said county of Washoe, and is a dependent child within the meaning of said statute, and that his mother is unable to properly take care of, train, educate, and maintain said dependent child, and it further appearing that it is for the best interests of said child and other people of this state that said child be taken from the custody of his mother, and that he be committed to the care of the State Orphans' Home at Carson City, Nevada, the same being a suitable state institution for the care of dependent and neglected children: Now, therefore, it is hereby ordered, adjudged and decreed that the said Howard Eggendorfer is a dependent child within the meaning of the statute of this state, and that he be and hereby is committed to the care of said State Orphans' Home at Carson City, Nevada, for the period of his minority, or until the further order of this court, and that the superintendent of said institution, J. E. McKinnon, is hereby appointed guardian of said dependent child, Howard Eggendorfer, during the time he is kept under this order in said institution, and that the expense of his keep and care shall be borne by and paid by the State of Nevada at a monthly cost of not to exceed $10, and that said J. E. McKinnon, as guardian, shall place said child in said State Orphans' Home and hold said child, care for, train, and educate him subject to all the rules and laws in force governing said State Orphans' Home, and said J. E. McKinnon and said State Orphans' Home are hereby directed and authorized to receive and care for said dependent child, Howard Eggendorfer.”

In the petition filed in this court it is alleged that the order of the district court was made without the consent and without consultation with or notice to any of the petitioners, and that the petitioner, McKinnon, the superintendent of the State Orphans' Home, was appointed the guardian of the child without his consent or notice to him; that no order of the board of county commissioners of Washoe County was ever made committing Howard Eggendorfer to the State Orphans' Home; that the petitioners “Bray, Deady, and McMillan, acting as the board

[35 Nev. 494, Page 497]

of directors of the State Orphans' Home, in the exercise of their discretion imposed on them by statute, and acting upon the advice and report of its examining physician that said Howard Eggendorfer, by reason of his diseased condition and unclean habits, was an unfit person to be received into the said home, refused to admit into or accept such Howard Eggendorfer as an inmate therein.”

Thereafter, upon affidavit, the Second judicial district court cited the petitioners to show cause why they should not be punished for contempt of court in refusing to obey the order committing the child to the State Orphans' Home. The petitioners applied to the district court to set aside the order that citation issue and the citation and order to show cause why the petitioners should not be punished for contempt, and also moved to set aside the original order committing Howard Eggendorfer to the State Orphans' Home and appointing J. E. McKinnon, as superintendent, guardian of the child.

It is alleged that the district court refuses to set aside these orders, and threatens to, and will, unless prohibited by this court, punish the petitioners for contempt in refusing to obey the orders of the district court, notwithstanding that these orders and citation are wholly void and in violation of law, and without authority or jurisdiction of the district court, and in usurpation of the rights, powers and duties of the petitioners as the board of directors of the State Orphans' Home. Provision was made for a State Orphans' Home by the acts of March 3, 1869 (Stats. 1869, c. 62), and March 1, 1873 (Stats. 1873, c. 45; Rev. Laws, 4087-4103). The act of 1873 provides that the administration of the State Orphans' Home shall be under the control of three directors, to consist of the superintendent of public instruction, surveyor-general, and state treasurer, and that they shall have power to manage and administer the affairs of the home.

It also provides that all orphans duly admitted to the State Orphans' Home become the wards of the state and are entitled to the care, protection, and guardianship of the state, which for the care, protection and guardianship of such wards is entitled to their services, and has

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the right to train and educate them for useful places in society, and that such rights of the state are superior to the claims of relations or persons, resident or nonresident.

It is also provided that upon the application in writing of any citizen of the state to the district judge of any county in behalf of any whole orphan, showing such orphan to be the child of parents, one or both of whom at the time of decease were residents of the state, and that the condition of the orphan is such that it would be for his or her best interest to be admitted to the State Orphans' Home, the district court may after notice take testimony and order the orphan ...


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