The history of the human race is, in part, the effect of prejudice upon motives and purposes. Nowhere is this more sharply illustrated than in the treatment of the illegitimate child. Over the centuries he has been the innocent object of prejudice transferred from the guilt of his conception. As a consequence of the sin of his parents, he was legally the child of no one. As his and his mother’s needs for care and maintenance became an increasing charge upon society, statutes were adopted to shift that burden to the natural father.
So it was that one of the first acts of the Third General Assembly in 1805 was entitled “An Act, for the Maintence and Support of Illegitimate Children.” (3 Ohio Laws 167.) It was plainly designed for the protection of the
But the offspring of a mother’s adulterous connection, the adulterine bastard, carried an even greater stigma. He could not be legitimated under any law of Western Europe and his mother’s sin was so gross it could not even be admitted under the common law of England unless her husband was proved to have been beyond the seas during all the period in which it was possible for her to have become pregnant or unless it could be shown beyond question that her husband had no powers of procreation. Powell v. State, ex rel. Fowler (1911),
These considerations may well have dictated the result in Haworth v. Gill (1876),
The statute was -not dissimilar in effect from the present form. It commenced: “When any unmarried woman, who has been delivered of or is pregnant with a bastard child, shall make complaint thereof in writing. . . .” R. C. 3111.01 commences: “When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing. ...”
Haworth denied relief, saying that the statutes were “not intended to invite or authorize an inquiry into the legitimacy of children begotten and born in lawful wedlock, whenever a heartless mother might desire to bastardize them at the expense of her own infamy.” (
Quoting Blackstone and Kent, the court defined a
When Powell, supra, was considered in 1911, Ives, supra, had already recognized an adulterine bastard as one “begotten of an adulterous connection between a man and woman who at that time could not make a valid contract of marriage.” (
By 1944, when State, ex rel. Walker, v. Clark (1944),
Eight short years later, State, ex rel. Hoerres, v. Wilkoff (1952),
Hoerres emphasized the “statutory” and “penal” nature of the proceeding (ignoring Carter v. Krise [1859],
In our present opinion, Ho erres and Haworth were actuated by those ancient passions and prejudices to which reference has heretofore been made, disregarded the correct definition of an adulterine bastard as stated in Ives by placing an arbitrary and unrealistic line of demarcation between “begotten” and “born,” are regressive in both thought and principle and, finally, should be and are hereby overruled. To the same effect, see State, ex rel. Sprungle, v. Bard (1950),
Therefore, the judgment of the Court of Appeals in case No. 71-633 is reversed and the cause is remanded for further proceedings consistent herewith.
Having established that “unmarried” relates not to the time of conception or birth, as we turn to the second situation presented by cases Nos. 71-668 and 71-669, we are confronted with that word as relating to the time of commencement of a bastardy action, thus barring a married woman from its benefits of support for herself both before and after delivery and the expenses thereof. R C. 3111.17.
But is this so of the unfortunate children who may look to no other man for support except their natural father? May the action proceed for their benefit and for necessaries furnished by their mother, if any, in the past? We think that it may.
As early as Carter v. Krise, supra (
Nearly 30 years later, in Pretzinger v Pretzinger (1887),
The latter case, of course, was concerned with a legitimate child for whose support the divorce decree of his parents made no provision, and the rule announced was that the mother, to recover against the father for necessaries furnished the child, was not relegated to return to the court which granted the decree for an award of sup>port as provided by statute, but might proceed to recover in a civil action against the father in any jurisdiction where he may be found. However, no statutory right or duty was invoked to support the decision.
In 1948, McDaniel v. Rucker (1948),
The significant attributes of those cases for our present purposes are that on the one hand they stated a public policy not in conflict with any statute but in furtherance of the objects of the statutory law. On the other hand, Carter construed the statutory bastardy proceedings not as creating a duty but as providing a remedy to enforce a common-law duty and Pretzinger and McDaniel declared a remedy supplementary to the statutes to enforce a common-law duty based upon the same considerations of public and private advantage.
Thus, we need not here inquire whether the three additional weapons in the statutory arsenal with which to force the errant father to account for his duty—the support actions of a criminal nature ordained by R. C. 2151.42, 2903.08 and 3113.01 (the first antecedent of which was enacted as late as 1890 in 87 Ohio Laws 216 )
That those statutes are now a part of our Code and apply equally to illegitimate and legitimate children fortifies our decision today. As well does the observation that as of today the illegitimate enjoys a statutory recognition and a status as nearly equal to that of his legitimate counterpart as his circumstances will permit.
For it seems eminently sound to us that the same principle which furnishes a civil remedy on behalf of legitimate children supplementary to that provided them by statute in the case of the dissolution of the marriage of which they are the offspring suffices to furnish a similar remedy on behalf of illegitimate children to enforce the identical duty—a duty arising from fatherhood. The bastard need not be left with the criminal remedies. See Annotation, 13 A. L. R. 2d 1142.
To hold otherwise would render us guilty of laying an unequal and oppressive hand on those whose only offense, if any, and whose only distinction is the irregularity of their parentage. “The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn.” Skinner v. Oklahoma, ex rel. Williamson (1942),
Nor let it be said that the bastardy statutes provide the exclusive method for determining paternity. The same principle which permits that issue to be decided in the first instance in a criminal proceeding (State v. Carter [1963],
Our final inquiry is whether the actions commenced by the mother in these two cases (Nos. 71-668 and 71-669) may be saved as actions for necessaries and support of the children. The complaints merely set forth the facts of the illegitimate births. The defendant has been served with
In case No. 71-633, judgment reversed.
In cases Nos. 71-668 and 71-669, judgments modified.
Notes
Compare Miller v. Anderson (1885),
R. C. 3111.17 provides, in part:
“If the child is alive, the court shall adjudge that he [the accused] pay to the complainant such sum as the court finds necessary for her support and maintenance, and the necessary expenses caused by pregnancy and childbirth, together with costs of prosecution. ... In the event the child is not born alive, or is not living at the time of the plea or finding of guilty, the court shall order the accused to pay the complainant such sum as the court finds necessary for her support and maintenance, and the necessary expense caused by pregnancy, including a reasonable amount for maintenance of the child until such child’s death, and for the funeral expenses of such child.”
See, however, Fulton v. Fulton (1895),
See Bowen v. State (1897),
However, Baston v. Sears (1968),
The sole additional statutory benefit to legitimate offspring is the jurisdiction granted to a divorce or juvenile court to determine custody and support upon the dissolution of the marriage of which they are the product. R. C. 3105.21, 3109.04, 3109.05 and 3109.06.