5 Kan. 470 | Kan. | 1870
By the Court,
This is a proceeding under the act “ providing for the maintenance and support of illegitimate children.”
In August, 1867, the relator became pregnant with a bastard child, of which the defendant was the father. In March, 1868, she married another man; in May, 1868, the child was born; in December, 1868, she was divorced from her husband, and in February, 1869, she commenced this proceeding.
When the child was begotten, the relator was a single woman; when the child was born she was married; and when she commenced this proceeding she was again a single woman.
When the child was begotten, any mother of a bastard child, married or single, under the law then in force, could commence this kind of proceeding, [Comp. Laws, 595, § 1,] but afterwards, to-wit: on March 18th, 1868, this law was changed so that only an unmarried woman could commence such proceeding. [_Gen. Stat., 516, § 1.]
It will undoubtedly be conceded that the relator had a right to commence this proceeding at any time- before the
The defendant claims that the old law was absolutely repealed, and that the new law cannot apply to this case, for if it does it is an ex post facto law, and disturbs vested rights, and the reason he urges for this claim is, that the only act of his (the begetting of the child) upon which this whole proceeding is founded, was performed before the new law was passed by the legislature.
It seems scarcely necessary for us to say that this is not an ex post facto law, for such laws relate to criminal proceedings, and not to civil proceedings, as this does. It is true that this action is prosecuted in the name of the state, on the relation of the prosecuting witness, and the remedy is quite stringent, but in every other particular, from the commencement to its close, it is essentially a civil action.
The object of the law is not to punish the defendant for his illicit intercourse with the mother of the bastard child, for such offenses are fully provided for in other statutes; but the obj ect of the law is to enforce, by a stringent remedy, that moral obligation resting upon every father to support his own offspring.
Neither do we think that this law, if applied to this
The defendant claims substantially as follows: The relator had no vested right in the remedy given to her by the old law, and therefore the legislature could and did abrogate such remedy, when they repealed said law. But he (the defendant) had such a vested right in said remedy, that he could be tried by no other; that the legislature could not change the said remedy so as to affect the defendant, and the attempt to do so wholly released Mm; or in other words, the new law was valid enough so far as it took away the remedy already existing in favor of the relator, but void when it attempted to give her a new remedy. If this is sound doctrine, then the law that is in force at the time a child is begotten must forever remain the law that shall govern the relations between that child and its parents; and any attempt on the part of the legislature to change such relations, or to impose new duties, or new liabilities on the father or the child, is futile and void. All legislation to be valid must act prospectively upon parents whose children are begotten after the law takes effect, and never retrospectively (if it is proper to use the word in this connection) upon parents whose children have already been begotten. And if the
But of course this must, all be done through the intervention of the courts; and where it is so done no vested right is disturbed. In fact a party cannot have a vested right to do wrong. If a case can be found where any one has ever been permitted to obtain a vested right to ignore the fundamental principles of morality and of natural justice, we shall be surprised.
The defendant also claims that the relator could not commence this proceeding because she was a married woman when the child was born. Section one of the statute in force when this proceeding was commenced reads as follows: “When any unmarried woman who has been delivered of, or is pregnant with a bastard child shall make a complaint thereof,” etc., etc. [Gen. Stat., 516.] It is clear from this statute that the woman who makes the complaint must be an unmarried woman at the time she makes the complaint, but there is nothing in the statute that requires that she should have been an unmarried woman at the time the child was begotten or born. The plain and obvious object of the statute would
The judgment of the court below is reversed and the cause remanded, with the instruction that the demurrer to the petition be overruled.