18 Or. 339 | Or. | 1890
Two questions are presented for con- , ¿deration on this appeal. First, whether the decision of circuit courts, in matters arising under the Act approved. Feb. 25, 1889, which confers authority upon certain benevolent or charitable corporations incorporated under the laws of this State, to receive, control and dispose of minor children in certain cases, are reviewable on appeal to this court. Second, whether the decision rendered by the circuit court herein, under the facts and circumstances of the case, was a proper disposition of the two Chinese children m question.
The respondent’s counsel contends that the jurisdiction conferred by said Act is purely statutory, and as it does not provide for an appeal from decisions rendered in administering its provisions, no appeal will lie therefrom, and he cites some authorities which would seem to sustain his view. The constitution of the State, however, provides that. The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts. ” § 6, Art 7. Const. This provision we considered in Mitchell v Powers, 16 Or. 492, and in the same case in 17 Or. 492, as conferring jurisdiction upon said court to revise al final decisions of the circuit courts. The provision does
‘ ‘ Assuming, then, that the general care and superintendence of infants did originally vest in the crown when they had no other guardian, the question, by whom and in what manner the prerogative should be exercised, would not seem open to much controversy. Partaking, as it does, more of the nature of a judicial administration of rights and duties in foro eonscientice than of a strict executive authority, it would naturally follow, eo ratione, that it should be exercised in the court of chancery, as a branch of the general jurisdiction originally confided to it. Accordingly, the doctrine now commonly maintained is that the general superintendence and protective jurisdiction of the court of chancery over the persons and property of infants is a delegation of the rights and duty of the crown; that it belonged to the court and was exercised by it from its first establishment; and that this general jurisdiction was not even .suspended by the statute of Henry VIII. erecting the court of wards and liveries. ” Storey’s Eq. Juris. §§ 1333, 1334. The doctrinéis fully and ably discussed in chapter 2 of a work by Hockheimer, entitled “Custody of Infants,” commencing at page 45 of the book, and the conclusions fully sustain the view of the appellant’s counsel herein. I am of the opinion, therefore, that an appeal to this court in such cases will lie, that decisions of the character of the one in question are in the nature of decrees and are reviewable in the same manner.
Under this view, the case is here to be tried anew upon the transcript and evidence accompanying it, which will involve the consideration of the second question, before suggested.
The contention of the parties at this time is not whether the two Chinese children shall be taken from Fung Que and Yum Chung,'their reputed stepmother and uncle, and
The difficulty in such cases is to ascertain the truth. Chinamen such as we have among us can rarely be trusted in such matters, however bland and plausible they may appear. Those of the race who have come to this coast have generally exhibited a total disregard of virtue, candor and integrity, and have shown such a propensity to cunning, deception and perfidy, that if they were to engage in an effort to accomplish an apparently meritorious object a strong suspicion would arise that there was some covert, sinister scheme at the bottom of it. In this case their purpose may be to send these children to their grandmother for the sole benefit of the children; but we have no means of ascertaining whether or not such is their real motive, nor had the circuit court any assurance that if the children had been sent in the care of Captain Cyrus Noyes to Hong Kong they would ever have reached Chow Bow, or have found a grandmother or anyone else to care and provide for them. Captain Noyes did not know their grandmother, and could give no assurance that they would be taken beyond Hong Kong, consequently the principal part of the affair would have had to be trusted to the Chinaman if the children had gone with him.
The respondent urged in his petitions, filed in the said proceeding, the sending of the two children to their grand
It cannot be supposed for a moment that those who
As I view the proofs herein, the children were very properly disposed of by the first decisions made by the said circuit court, and, in my opinion, it would be very risky and uncertain to take them from the Boys’ and Girls’ Aid Society and put them in the custody of the respondent for any purpose, as the court could have no assurance that it would be for the interest of the children to do so.
In considering the legal aspect of this case, I have assumed that the decision appealed from was a final decision. I think I am warranted in that assumption by the decision of this court in Pittman v. Pittman, 3 Or. 472, which was cited by appellant’s counsel. The principle of that decision I regard as decisive upon the point.
The decision appealed from will be reversed and a decree entered awarding the care and custody of the said Chinese children to the Boys’ and Girls’ Aid Society, appellant herein.