Cottrell v. State

• Decision Date: 12 August 1879
• Citation: 1 N.W. 1008,9 Neb. 125
• Parties: GEORGE COTTRELL, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

1 N.W. 1008

9 Neb. 125

GEORGE COTTRELL, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 12, 1879

ERROR to the district court of Richardson county. Tried before WEAVER, J. The opinion states the case.

AFFIRMED.

Schoenheit & Thomas, for plaintiff in error.

1. The defendant was prosecuted for the crime of bastardy, and the power of the state, wielded by the district attorney, was brought to bear against him. On behalf of the plaintiff in error we say that there is no such crime as bastardy known to the law. The proceeding under the bastardy act is in no sense a criminal proceeding, but, on the contrary, it is one of a civil nature merely. The object is not to punish the defendant, but only to enforce the discharge of a moral duty. Carter v. Krise, 9 Ohio St. 402. Holmes v. The State, 2 G. Green, Iowa 501. Marston v. James, 11 N.H 156.

2. We claim that the court erred in permitting the state to prosecute the plaintiff in error as for a crime. He had committed no offense against the state, and the state had no cause of action against him.

3. At common law a father was not bound to support his bastard child. His liability to do so is created entirely by statute. Perkins v. Mobley, 4 Ohio St. 668.

4. The act is unconstitutional, having never been signed by the president of the senate. Constitution, 1867, Art. II., sec 20.

C. J Dilworth, attorney general, J. P. Maule, district attorney, and W. W. Wardell, for the defendant in error.

OPINION

MAXWELL, CH. J.

The plaintiff in error was arrested, tried, and found guilty under the provisions of the bastardy act of 1875. The case is brought into this court by petition in error.

The errors assigned are:

First. That the court erred in treating the case as a criminal case, and in permitting the same to be prosecuted in the name of the state by the district attorney.

Second. Because there is no law in force in the state of Nebraska under which this proceeding could be sustained, and the court erred in not dismissing the case.

Third. Because the "act for the maintenance and support of illegitimate children," approved February 25, 1875, is of no validity, not having been signed by the president of the senate.

Fourth. Because the complaint sets out no cause of action, either civil or criminal, against the plaintiff in error.

Fifth. Because the district court had no jurisdiction.

In Devinney v. The State, Wright's Report, 564, the supreme court of Ohio, in a circuit decision, says: "A prosecution in bastardy is only quasi criminal, and if brought in the name of the state at all, it should appear to be on the relation of the prosecuting witness. It is more proper to use her name alone." This case seems to have been followed in Ohio under a statute that appears to be similar to our own. An examination of the cases in the reports of that state will show that cases have been prosecuted indiscriminately in the name of the state, or in that of the prosecuting witness or municipality liable for the support of the child. State v. Smith, Tappan's R. 143. State v. Farley, Wright's Report, 464. Porter v. The State, 23 Ohio St. 320. State v. Morrow, 2 W.L. Monthly 308. State v. Courtney, 1 W.L. Monthly 389. Devinney v. The State, Wright's Report, 564. In some of these cases, however, the action was upon the recognizance. Perkins v. Mobley, 4 Ohio St. 668. Maxwell v. Campbell, 8 Ohio St. 265. Carter v. Krise, 9 Ohio St. 402. Musser v. Stewart, 21 Ohio St. 353. Roth v. Jacobs, 21 Ohio St. 646. Hootman v. Shriner, 15 Ohio St. 43. Darby v. Carson, 9 Ohio 149. Hawes v. Cooksey, 13 Ohio 242. It will be seen that a very large proportion of the reported cases have not been prosecuted in the name of the state. And, being essentially a civil action, the better course is to conduct the prosecution in the name of the real party in interest. But in such a case the state is a mere trustee, and the real party in interest obtains the benefit of the judgment, the object of the action being merely to enforce the discharge of a civil and moral obligation--that of support by a father of his own child. The judgment, therefore, is a bar to another action for that purpose. Had objection been made at the proper time to the form of the action, the court should have caused the real party in interest to be substituted as plaintiff, and the cause then proceeded with in the name of the substituted party, but having failed to do so, the objection is waived.

The second and third assignments of error may be considered together. It is claimed that the "act for the maintenance and support of illegitimate children," approved February 25, 1875 (Laws, 1875, p. 53), is void because not signed by the president of the senate. An inspection of the original act in the office of the secretary of state shows that the act passed the house of representatives, and was duly attested, and was signed by the speaker of the house. The act is also attested by the secretary of the senate, and is approved by the governor, but is not signed by the president of the senate. Does this omission invalidate the act? Section 20, Art. II. of the Constitution of 1867, provides that: "The presiding officer of each house shall sign publicly, in the presence of the house over which he presides, while the same is in session and capable of transacting business all bills and joint...