74 S.E. 12 | N.C. | 1912
This case was heard in the Superior Court upon a case agreed, which is, in substance, as follows:
The defendant is register of deeds of New Hanover County, (567) and on or about 27 December, 1910, issued a license for the marriage of Ednia Littleton, daughter of plaintiff, and, at the time, under eighteen years of age. Consent of the father to the marriage of his daughter was never given, but instead the written consent of her mother, Melia Littleton. At the time the mother's consent was given and the license was applied for and issued, the said Ednia Littleton was living in the home of her father and being supported by him.
The court, being of opinion, upon the facts stated, that the plaintiff was entitled to recover the penalty given by Revisal, sec. 2090, adjudged that he recover of defendant the sum of $200 and costs. Defendant excepted and appealed.
After stating the case. The Revisal, sec. 2088, provides that where either party to a proposed marriage is under eighteen years of age and resides with the father, or mother, or uncles, or aunt, or brother, or elder sister, . . . the register of deeds shall not issue a license for such marriage until the consent in writing of the relative with whom such infant resides, or, if he or she resides at a school, of the person by whom the minor was placed at school, "and under whose custody or control he or she is," shall be delivered to him, and the written consent shall be filed and preserved by the register. Section 2090 provides that a register of deeds who shall knowingly, or without *475
reasonable inquiry, personally or by deputy, issue a license for the marriage of any two persons to which there is any legal impediment, or where either of the persons is under the age of eighteen years without the consent required by law, shall forfeit and pay $200 to any parent, guardian, or other person standing in loco parentis, who shall sue for the same. These two sections are in pari materia and must, therefore, be construed together. Bowles v. Cochran,
We do not understand that the question of reasonable inquiry by the register as to the age of the applicant for license, or other impediment to the marriage, is involved in this case. There is no suggestion in the record about it. The case agreed presents the single question, whether, upon the admitted facts, the written consent of the (568) mother was sufficient to justify the issuing of a license. There is no controversy as to the age of the applicant, and the written consent of the mother would indicate at once that she was under eighteen years of age, as such consent is not required when the parties are over eighteen years of age. Our opinion is that the issuing of the license upon the written consent of the mother alone, and without the written consent of the father, was not a compliance with the statute. The consent of the persons named in the statute, and in the order named, should be obtained. If a child is not residing with its father, but is residing with its mother, then the written consent of the latter is sufficient, and so on with the others named. The father is considered in law as the head of the household and is entitled preferentially to the custody of his child, his right being superior to that of the mother. He is the child's natural guardian. 29 Cyc., 1588; Ely v. Gammel,
But as a general rule, and at the common law, the father has the paramount right to the control and custody of his children, as against the world; this right springing necessarily from and being incident to the father's duty to provide for their protection, maintenance, and education. 21 A. and E. Enc., 1036; 1 Blackstone (Sharswood), 452 and note 10, where the authorities are collected. This right of the father continues to exist until the child is enfranchised by arriving at years of discretion `when the empire of the father gives place to the empire of reason.' 1 Blk., 453." The case of In re Turner,
But it is not necessary that we should resort to the principle just considered in order to decide the question before us, except in so far as it may shed light upon the meaning of the statute. The case agreed shows, as we construe it, that the daughter was residing with her father, for it states that she was living in his home and was supported by him. The mother may also have been living in the same house and residing with her husband in his home, but, upon the facts stated, it cannot well be contended that her daughter was residing with her within the meaning and intent of the law. The language of the statute is plain, that if she is residing with her father, his written consent must be produced and delivered to the register before the license is issued; otherwise the officer incurs the penalty.
Construing a somewhat similar statute, it was said in Riley v. (570) Bell,
It was urged in the argument that this statute, being penal, should be construed strictly, but in Coley v. Lewis,
No error.
Cited: Howell v. Solomon,
(571)