Dissenting:
First. The controlling opinion eliminates the procedure for voluntary appearance in the Youth Court of a minor with his parents. Youth Court Act, Miss. Laws 1946, Ch. 207, Sec. 6; Miss. Code 1942, Rec., Sec. 7185-06. The result is to hold invalid and unconstitutional a substantial part of Sec. 6 of the Act. I cannot agree with that action.
Section 5 states that proceedings may be instituted against a delinquent child by a petition filed in the Youth Court. The court may investigate the petition, and, “unless voluntary appearance be made as hereinafter set forth”, the judge shall fix a time for the hearing, and process shall be served personally upon the parents and the child.
However, the legislature manifestly thought there would be many proceedings of this type, in which the parents and the child would prefer to appear voluntarily before the Youth Court, without the necessity of formal process. Hence See. 6 provides for a voluntary appearance procedure. The following quoted part from the second paragraph of Sec. 6 of the Act sets forth that process. This is the part of the statute which the controlling opinion holds is invalid and unconstitutional:
*643“. . . and in case of voluntary appearance before tbe date set for tbe hearing, tbe court may, in its discretion, proceed to a bearing at any time after said petition has been filed, regardless of tbe date set for tbe bearing. In case a parent or guardian of sucb child, or tbe custodian of sucb child, if a parent or guardian cannot be located, appear before tbe court with tbe child without tbe service of summons on either of them, including tbe child, or being present in court with tbe child after service of summons on either of them, and make no objection to tbe process or lack of process, tbe court shall have tbe right to proceed to tbe bearing of tbe case tbe same as if summons bad been served on each of them; and any irregularities in tbe issuance or services of process on either of them shall not deprive tbe court of jurisdiction of tbe child and tbe right to proceed to a bearing.”
In short, if tbe parents and child appear before tbe Youth Court voluntarily, and do not object to tbe lack of formal written process on them, tbe Youth Court may proceed with tbe bearing. This is consistent with tbe effective and informal administration of a juvenile court act, and assuredly does not deny any one a notice and bearing. Tbe court “may, in its discretion, proceed to a bearing”, after sucb voluntary appearance. Hence tbe act (a) requires formal service of process, unless tbe parents and tbe child voluntarily appear before tbe court, and (b) authorizes tbe court, in sucb event, in tbe exercise of its discretion, to proceed with tbe bearing where tbe parties have thus entered their appearance.
Parents have tbe legal and constitutional right to custody of their child, unless they have forfeited tbe same. Miss. Code 1942, Sec. 399; In the Matter of Guardianship of Boyd O. Faust, et al., 123 So. 2d 218 (Miss. 1960). Apparently tbe statute is based on tbe theory that tbe parents of a child may appear voluntarily for *644themselves, and for and with their own child in a Yonth Court proceeding. I cannot see where the legislature exceeded its power in authorizing a voluntary appearance in Youth Court under these circumstances.
Essentially my disagreement with the controlling opinion is in the extent to which I would review an exercise of legislative power. If the general rule is followed that all reasonable presumptions should be made in favor of the reasonableness of a statute, this provision of the act would not seem to be unreasonable or a denial of notice. It simply deals with a procedure or technique describing what constitutes notice. Certainly the manual delivery to a minor of a summons is no more effective notice than the voluntary appearance procedure created by the statute. It is a type of substitutional or constructive process, through the voluntary appearance of the mother, father and child. The due process clause, Miss. Const. 1890, Sec. 14, does not place the legislature in a strait jacket. It does not prevent it from adjusting the requirement of notice before hearing to varying circumstances and in accord with reasonable concepts of adequate notice. That clause proscribes lack of notice, not notice in a particular manner.
The voluntary appearance procedure set forth in the statute is utilized in the juvenile court acts of other states, and elsewhere has been held valid. Those states are equally solicitous of the constitutional rights of litigants. A recent case upholding voluntary appearance is Lazaros v. State, 228 S. W. 2d 972, Tex. Civ. App. 1950. See also 31 Am. Jur., Juvenile Courts, Secs. 64, 65; 43 C. J. S., Infants, Sec. 99e, pp. 246-248. Hence in my opinion the decision of the court, invalidating the quoted part of Sec. 6 of the act, is an unwarranted application of the due process clause, and unduly restricts administration of the Youth Court Act.
Second. The Court holds that the petition filed by the youth counsellor was insufficient. The petition makes *645the parents and minor defendants, and charges that Homer “is a juvenile delinquent”. It further states that he is “fast becoming uncontrollable by his parents, and that he is violating the laws of the State of Mississippi in various ways. ’ ’ Although the petition is loosely drawn, it charges the essentials to place jurisdiction in the Youth Court, namely, that appellant is a juvenile delinquent, getting beyond the control of his parents, and is violating the state laws. If appellants desired to question its sufficiency, the place to do that was in the Youth Court, not on appeal. That issue was not raised in the trial court. I think it is too late to assert it here, and for the first time.
Third. The controlling opinion further holds that the trial court’s judgment “fails to show that either the minor or his parents were served with legal process or that they appeared voluntarily.” The judgment recites that Homer Sharp, a 16-year old minor, and his father and mother “appeared in open court and waived . . . summons in this cause and agreeing that this cause should be heard by this court on this day and a decree entered just as though they had been legally served with process to appear and defend this cause.” The judgment then states that the court found it had jurisdiction, and the minor was a juvenile delinquent; that he was beyond the control of his father and mother; and it would be to his best interest to place him in the Columbia Training School. I do not see how the court could have more clearly found a voluntary appearance by all three of the appellants.
It is basic that where a decree recites the essentials of jurisdiction and the record does not contradict those findings, the appellate court will presume that the facts were as the trial court found them. Appellants presented no record of the testimony in this case. Nothing in the record contradicts those findings. The judgment recited the parties appeared in open court, waived sum*646mons and agreed for the hearing at that time, just as though they had been served with process. It found, after hearing, the minor was a juvenile delinquent. These adjudications constitute the essential ones to support the judgment. There is no evidence in the record to contradict them.
Hence it seems to me that the controlling opinion errs in reversing the judgment of the chancery judge of Neshoba County, sitting as the Youth Court. For all of these reasons, I am unable to agree with the controlling opinion. I would affirm.
ON SUGGESTION OF ERROR
Gillespie, J.The suggestion of error requests the Court to answer several questions which were not involved in the case and which, if answered by the Court, would be dicta. The record and opinion makes it clear that we were dealing with a case of a minor who was committed to an institution by reason of being adjudged a delinquent. The case, did not involve a question of custody or informal adjustment of a youth problem. The apprehension that the Court has repudiated the doctrine of parens patriae is without foundation. We do hold that the doctrine does not authorize the State to confine a minor in an institution, in this case for a period of four years, except by hearing on a petition filed in accordance with the act, an order setting the same for hearing, and process upon the minor.
Suggestion of error overruled.
All Justices concur except Ethridge, J., who dissents.