65 Neb. 308 | Neb. | 1902
Lead Opinion
Only one question is presented in this case, — the construction to be placed upon the opening clause in section 1 of chapter 37, Compiled Statutes, relating to illegitimate children. The provision is “that on complaint made to any justice of the peace in this state by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall,” etc. The complaining witness made the following complaint: “On this 2d day of April A. D. 1900 Lucy Parker formerly Lucy West, a resident of Seward county, Nebraska, personally appeared before me, J. J. Thomas, county judge in and for Seward county and state of Nebraska, who being by me first duly sworn on her oath says that she is now a married woman but at the time of the birth of the child hereinafter set forth and at the time the same was conceived was an unmarried woman and resident of said county and state, and that she was on the 29th day of April, 1897, delivered of a male bastard child and that said child is now living and affiant further says that Michael Nothomb, name otherwise unknown is the father of said child, and further affiant sayeth not.”
Examination,was held and defendant gave bail for his
The sole question is whether “unmarried,” in the statute, relates forward to the following clauses, or back to the complaint. Must it be the complaint of a woman unmarried at the time of making it, or merely the complaint of a woman unmarried when delivered of a bastard child or pregnant with one? It is held in Johnson v. State, 55 Nebr., 781, that the complainant at the time of the birth of the child must be an unmarried woman, and that the evidence must affirmatively show it. Her status at that time fixes that of her offspring. 'If she was then a married woman her child will not be a bastard. It is held in Myers v. Baughman, 61 Nebr., 818, 820, that the purpose of the statute is twofold: To require the putative. father to support his offspring, and to protect the county in which the child is born. Stoppert v. Nierle, 45 Nebr., 105, and Ex parte Cottrell, 13 Nebr., 193, are cited, and are to the same effect.
That the marriage of the mother after the status of her illegitimate child is fixed should be made to relieve its father of all responsibility, is clearly against the general intention and object of this statute. Her husband, by the mere fact of marriage,, would not be under any obligation to support the child. Schouler, Domestic Relations, sec. 273; Mowbry v. Mowbry, 64 Ill., 383.
It is claimed that this statute is penal, and its provisions should be strictly construed. Such a holding is not in conformity with the rulings of this court. In Stoppert v. Nierle, supra, it is held that the number of challenges allowed in the selection of the jury are those provided in civil actions, and not those in criminal proceedings. It has also been frequently held that a mere preponderance
The industry of counsel has brought together the adjudications upon this subject. The holdings, where the question has been directly raised in courts of last resort, seem to be uniformly to the effect that the provision of the statute has relation to the status of the mother at the time of the conception and delivery of the child, and not at the time of the making of the complaint.
In England, under a provision that a “single woman” may malee a complaint, it is held that a woman living without access of the husband answers to the description. Regina v. Pilkington, 2 El. & Bl. [Eng.], 546; Regina v. Collingwood, 12 Q. B. [Eng.], 681; Rex v. Luffe, 8 East [Eng.], 193.
In Illinois, under a statute identical in meaning, and almost so in form, with ours, in People v. Volksdorf, 112 Ill., 292, the precise case here was held to entitle the complainant to proceed; and the opposite holding of the appellate court in the same case, in 12 Bradwell, 534, was reversed.
In Vermont, under a statute as follows: “That when any single woman shall be delivered of any bastard child, or shall declare herself to be with child, and such child is liable to be born a bastard, and shall in either case, charge any person, in writing or on oath,” etc., it was held that it was competent to proceed in the name of the woman under a complaint almost identical in terms with the one that we have here, although in that case the action was carried on jointly by the complainant and the town. Sisco v. Harmon, 9 Vt., 129.
The court, both in Illinois and in Vermont, holds that the provision as to the status of the complainant, has reference only to the time when her child is conceived and born.
These are all the cases which counsel’s industry has brought forth where courts of last resort have passed upon this point under the state of facts here presented. .
In Ohio, in State v. Brill, 29 Weekly Law B., 190, the court of common pleas dismissed the complaint of a Avoman who was married at the time of filing it, though unmarried when her child was begotten and delivered. Such action is based on several opinions of the supreme court of that state, which are broad enough in their terms to include the case which thé common pleas court had under consideration, but in each of which the status of the complainant was wholly omitted to be mentioned, or else it appeared that she was a feme covert at the time of the conception and of the birth.
It is contended that to restrict the application of the term “unmarried woman” to the time of the conception and birth of the child is judicial legislation, and violates the plain intention of the statute. It is further claimed that this is unnecessary, because of the following section, •which makes provision for the county authorities bringing the action where the mother neglects to bring or to prosecute it. It certainly seems harder to find authority under that section for the county to take action where the woman has done so and been denied, than it is to find authority for her proceeding after her marriage under the previous section. It could not be a neglect to bring or to prosecute an action which produced the failure, except on a much more forced construction of the statute than plaintiff asks here.
Citations are given us from other states, including
It is urged that the construction sought by plaintiff in error would render the amendment of 1875, inserting the word “unmarried” in place of “any,” meaningless. This seems not to be the result. The intention of that change apparently was to do away with any attempt to establish bastardy by reason of non-access of the husband in the case of a child born of a married woman. It seems also to have been intended, as is helcl in Johnson v. State, above cited, to do away with any attempt on the part of married persons to avoid responsibility for the support of offspring. Both of these objects are as completely reached by holding that the term “unmarried” has application only to the time of the conception and birth of the child, as by including also the time of making the complaint. As is before suggested, the husband would by the marriage incur no liability for another man’s child previously born. The sole reason for holding that this required status of the mother has relation to the time of. filing the complaint seems to be the collocation of the words in the statute, and the grammatical effect of such collocation. This, of course, must not be arbitrarily disregarded in construing a statute. It, however, should not control where the.intention of the legislature requires it to be disregarded. Schuyler v. Hanna, 31 Nebr., 307.
The recent case, McGavock v. Omaha Nat. Bank, 64 Nebr., 440, in this court, makes a similar holding in regard to the words of a contract. In that case the contract had reference to an extension of time on a note, which the circumstances indicated was only to be until a certain case was decided in this court. The agreement provided that it should only be good “until said case should be decided
It is recommended that the judgment of the district court be reversed, and the case remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the case remanded for further proceedings.
Reversed and remanded.
Rehearing
Tbis cause is submitted on a rehearing heretofore allowed. The controversy is with respect to the proper construction of section 1, chapter 37, Compiled Statutes, 1901, entitled “Illegitimate Children.” The direct question presented is whether, under the statute referred to, an unmarried woman who has given birth to an illegitimate child, and subsequently thereto marries, may after such marriage maintain an action against the putative father for the
The statute reads: “That on complaint made to any justice of the peace in this state by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child, or being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall take such accusation in writing,” etc. Sec. .1, ch. 37, Compiled Statutes, 1901. It is earnestly insisted by defendant’s counsel that because of the language just quoted, the mother of a bastard child, who, subsequently to its birth and before instituting the proceedings therein contemplated, marries, can not thereafter bring or maintain an action under the statute. It is argued that the construction given the statute in the prior opinion is contrary to the clear import of the language therein used, and against the weight of adjudged cases bearing on the question. Chief reliance for the construction contended for by the defendant is placed on the wording of that part of the section we have quoted, and it is urged that the intention of the legislature is made so apparent therefrom that there
We abe committed to the doctrine that the status of the mother must be that of an unmarried person at the time the illegitimate child is begotten and born, and we are now asked to go a step further and unequivocally decide that she must also be unmarried when the complaint is filed and the prosecution begun. The decisions of the supreme courts of other states are appealed to in support of the construction contended for, -which will now be briefly considered. In many of the authorities to which our attention has been called, as Avell as some found by an original investigation on our part, some things are said and language used which give countenance and support to the contention of counsel for defendant. A thorough consideration, however, of these numerous cases, discloses that in no instance was the question now being considered directly involved in the decision of a court of last.resort. Much that is said, and in many instances loosely spoken, when considered in connection Avitli the facts and surrounding circumstances of the particular case, and the real controverted points therein decided, is altogether reconcilable with the views expressed in our former opinion, and AAdiich we yet entertain regarding the matter. A discussion of several of these cases will elaborate somewhat our views as already expressed.
As was noted in the former opinion, one of the inferior courts of Ohio has held that a prosecution under the bastardy act could be maintained only by a woman who was
In Haworth v. Gill, 30 Ohio St., 627, relied on by counsel for defendant, it is decided that under the bastardy act of that state, proceedings can not be maintained on complaint of the mother when the child in question is begotten and born during lawful wedlock. It is said in the opinion, in discussing the question at issue, that the law “was intended to provide for the support and maintainance of an unfortunate class of children, whose condition of illegitimacy would be apparent and unquestionable, by reason of their being begotten and born out of wedlock. The statute authorizes the complaint to be made either during pregnancy or after delivery. If made during pregnancy, it is certain that the pregnancy alleged must be that of an unmarried woman, and if not made till after delivery, it is equally certain that the complainant must still continue to be unmarried.” Whether we are to understand from the language last quoted that it refers to the status of the mother up to the time of the birth of the child, or to the time of making the complaint, is not entirely clear. The words, as used, may very properly refer to the fact that her status during her time of pregnancy and until the birth of the child, must be that of an unmarried woman. It does not necessarily follow from what is said that the court is committed to the doctrine that if the mother of an illegitimate child, who is unmarried when it is begotten and born, marry after its birth, she can not thereafter maintain a bastardy action for the child’s support. In that case the child’s mother was a married woman at the time of coition and for eight months after the child’s birth, and it was with reference to this condition of affairs that the court was discussing
In Kansas the court of appeals (Blush v. State, 46 Pac. Rep. [Kan.], 185) has directly decided that a prosecution for the maintenance and support of an illegitimate child can only be maintained when the complainant at the time of the commencement of the action is an unmarried woman. The decision follows Willetts v. Jeffries, 5 Kan., 470. In the latter case the supreme court construes the statute of that state, which is similar' in terms to ours, to mean that a woman must be unmarried at the time of commencing an action in bastardy, and that the word “unmarried” does not refer to her status at the time of the begetting and birth of the child. It is there held that a married woman who has given birth to an illegitimate child may maintain an action in bastardy, provided she is divorced or unmarried when the complaint is filed. This holding is in direct conflict with the principle announced in Johnson v. State, supra, and should not, in our judgment, be followed or accepted as authority in the case at bar. Regarding the two different constructions, we are of the opinion that ours is the more reasonable, and more nearly in accord with the true intention of the legislature.
In the states of Florida (Andrew G. v. Catherine A., 16 Fla., 830; William H. T. v. State, 18 Fla., 883; C. T. v. State, 21 Fla., 171; Thomas v. State, 37 Fla., 378), Alabama (Pruitt v. Judge, 16 Ala., 705; Judge County Court v, Kerr, 17 Ala., 328), and Kentucky (Sword v. Nester, 33
In support of the view Ave have adopted as to the proper interpretation of the statute, it is stated in the text in 5 Cyc., 650, that the fact that the mother is a married Avoman will not preclude her from instituting proceedings under the bastardy act. The key note of the controversy is, Ave think, fairly stated by the supreme court of Vermont (Gaffery v. Austin, 8 Vt., 70), where it is held that a married Avoman can,not sustain a prosecution under the statutes relating to bastardy for the purpose of compelling the father of the child begotten and born during the coverture to contribute to its support. Such a case, says the court, is one not provided for by the statute. In the opinion it is said: “No doubt such offspring is illegitimate and bastard. It is well settled at common law, that the issue may be bastardized, although born during cov
Upon full consideration of the subject in all the different phases in which it has been presented, and with all the research we have been able to give to the questions involved, we are of the opinion the conclusion reached at the former hearing is the correct one, and should be held to as the law in this jurisdiction. The judgment of reversal is accordingly adhered to.
Reversed and remanded.
Note. — Construction of Statute — Strict Letter — Absurd Conclusion — Selling Intoxicating Liquor — “And” Tantamount to “or.” Section 8 of char ter 50, Compiled Statutes, provides a punishment for any persoe “who shall give or sell any malt, spirituous and vinous liquors” t.. a minor. Is “and” tantamount to “or,” or must an offender sell beei,