# Boone Ex Rel. Ferry v. Danforth > Supreme Court of Missouri · March 8, 1971 · 463 S.W.2d 825 URL: https://www.frixlaw.com/law-library/cases/9673496 ## Case - **Full name:** Frank Allen BOONE, a Minor, by His Next Friend, Newell S. Ferry, Appellant, v. John C. DANFORTH, Attorney General, State of Missouri; Fred T. Wilkinson, Director, Department of Corrections; Harold E. Swenson, Warden, Missouri State Penitentiary; W. E. Sears, Director of Training Schools; Walter S. Declue, Supt.; Ray F. French, Supt., Intermediate Reformatory for Young Men, Respondents - **Court:** Supreme Court of Missouri - **Decided:** March 8, 1971 - **Citations:** 463 S.W.2d 825 - **Precedential status:** Published - **Opinion:** Dissent by Holman - **Judges:** Finch, Donnelly, Seiler, Morgan, Bardgett, Holman, Henley - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673496 ## Opinion text HOLMAN, Judge (dissenting). I respectfully dissent. First, I disagree with the principal opinion on the issue of mootness. I think the case is moot and should be dismissed. It is my view that the function of this court is to decide actual controversies and not to render advisory opinions. Appellant is no longer in custody and hence has no personal interest in the constitutionality of § 219.230(2). No relief can be granted to him in this action. In order to say he has an interest it must be assumed that between now and his 21st birthday he will violate the law or other terms of his parole and for that reason will be returned to the training school, and that he will thereafter again become an incorrigible and be transferred by the State Board of Training Schools to the custody of the Department of Corrections. I do not think it is proper to make those assumptions, and certainly appellant should not be heard to advocate that those things will occur. In other words, appellant should not be permitted to use the already overburdened *831 judicial machinery of this state in order to seek a judgment which would be beneficial to him only in the event he would thereafter violate the law or be guilty of other misconduct which would cause his parole to be revoked and a transfer of his custody from the training school. I also disagree with the principal opinion on the merits. That opinion adopts what is said to be the minority view and is based on a hypertechnical application of consti-tional principles and fails to properly consider the reasonable necessity for custodial provisions required for the protection of the persons committed to the training school. It should be kept in mind that the statute in question was enacted in order to provide an appropriate place of confinement for inmates found by the Board to be unmanageable or otherwise unfit for training school custody. It was enacted to provide protection for the unruly inmate and all others in the school who would be subjected to his unsavory influence. It is simply a custodial question; and while such an inmate is temporarily under the control of the officials of the adult institution the Board is vested with general control and may, in its discretion, parole him as it did in this case. There is no change in the judgment which originally caused the confinement and no change in the length of such period. By reason of his transfer to an adult institution such an inmate would not thereafter become, to use a slang expression, an “ex-con.” The statute provides a reasonable and necessary means whereby the officials of the training school may endeavor to maintain reasonable discipline and a generally wholesome atmosphere in which reformation of many of the inmates may occur. Since the transfer order of the Board (with the approval of the Governor) relates only to custody it is not a usurpation of judicial power. The views heretofore expressed are supported by many cases which have considered contentions similar to those advanced by appellant. A very similar case is Sheehan v. Superintendent of Concord Reformatory, 254 Mass. 342 , 150 N.E. 231 , wherein the transfer statute was said to be unconstitutional because it “was a delegation of judicial functions to an administrative board, and was an imposition of a greater, additional or substituted sentence for that prescribed by the court.” 150 N.E. 1 . c. 232. In ruling to the contrary the court said: “It would frustrate this general humanitarian scheme for the administration of the Industrial School for Boys if those not responsive to the reformative methods of the school must continue there in association with other boys yielding to its influences. Manifestly it would be within the power of the Legislature to provide for the segregation of such refractory inmates. There hardly could be question that in appropriate buildings more rigorous treatment and closer confinement might be provided for such inmates as a part of the regular course of the school. No substantial reason is perceived why such segregation may not be accomplished also by transfer to another state institution adapted to the needs of such inmates. There is no constitutional prohibition against reasonable enactments by the Legislature correlating the reformatory and penal institutions of the commonwealth so as to render them to a certain extent a unified system and to prevent unnecessary duplication of buildings or administration. * * * The determination of the question whether the petitioner after his sentence was ‘unmanageable or an improper person’ longer to remain at the industrial school is not necessarily judicial in nature. It stands on the same footing as the decision of numerous questions touching the discipline of inmates of reformatory or penal institutions. It was administrative in its essence.” 150 N.E. 1 . c. 233. The transfer statute was also held to be constitutional in Harwood v. State, 184 Tenn. 515 , 201 S.W.2d 672 , the court saying that “[i]t was clearly foreseen by the Legislature when the Juvenile Court and other reformatory statutes were enacted that provision should be made for screening incorrigibles from other inmates who were being given an opportunity to be *832 trained in good citizenship. With this in view, it was provided in Code section 4707 that the unruly, the incorrigible, whose baneful influence was detrimental of the best interest of the institution, should be placed elsewhere. It was a matter of wise administration of an institution erected for the betterment of wayward young people, and not an added punishment for crime. The constitutional provision which protects the citizen against imprisonment without an indictment and trial by jury is not applicable to the administrative control of penal or other corrective institutions.” 201 S.W.2d 1 . c. 674. Other cases in which transfer statutes are upheld are Cassidy, Petitioner, 13 R.I. 143 ; Wilson v. Coughlin, 259 Iowa 1163 , 147 N.W.2d 175 , and Glazier v. Reed, 116 Conn. 136 , 163 A. 766 . Also, it is noted that in Sonnenberg v. Markley, 7th Cir., 289 F.2d 126 , the court upheld the power of the Attorney General to order a juvenile delinquent to be confined in or transferred to an adult prison. As I understand it, the principal opinion holds that it is constitutionally impermissible to transfer the person of a juvenile committed to the custody of the State Board of Training Schools to an institution operated by the Department of Corrections, although the juvenile has become incorrigible and a menace to himself, to other juvenile inmates, and to the training center itself unless the juvenile is accorded “due process” and “equal protection” as required by the state and federal constitutions in criminal prosecutions. In other words, the principal opinion apparently would require, as “due process”, before a transfer could be made: (1) a law creating or defining the requirements for transfer such as, for example, incorrigibility; (2) an impartial tribunal of competent jurisdiction; (3) an accusation in due form; (4) notice and an opportunity to defend with counsel; (5) counsel to be provided by the state if the juvenile is a pauper; (6) a trial by jury according to established procedures; and (7) proof by competent evidence of the requirements for transfer. These are, in general, the elements of “due process” in criminal prosecutions. But, this is not a “criminal prosecution” within the meaning and application of the “due process” clause of either the Fifth or Fourteenth Amendments to the Constitution of the United States or Art. I, § 10, Constitution of Missouri; it is no more than an administrative transfer to another place of confinement, 4 and does not rise to constitutional dignity. I find nothing in the language of either the Missouri Constitution or the amendments to the U. S. Constitution above referred to which either requires or contemplates the result reached by the principal opinion. . See, in addition to above cited cases, People ex rel. Latimer v. Randolph, 13 Ill.2d 552 , 150 N.E.2d 603 ; Ex parte Burns, 88 Okl.Cr. 270 , 202 P.2d 433 ; Moffett v. Hudspeth, 165 Kan. 656 , 198 P.2d 153 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673496. Public record. Not legal advice.