In re Wheeler

• Decision Date: 09 October 1885
• Parties: In the matter of the Petition of GEORGE H. WHEELER for a writ of Habeas Corpus
• Court: Kansas Supreme Court

8 P. 276

34 Kan. 96

In the matter of the Petition of GEORGE H. WHEELER for a writ of Habeas Corpus

Supreme Court of Kansas

October 9, 1885

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court June 24 1885, by George H. Wheeler against Samuel Thompson, as sheriff of Brown county. The writ prayed for was issued and made returnable before the supreme court, on July 8, 1885. The material facts are stated in the opinion herein, filed October 9, 1885.

Petitioner remanded.

W. D Webb, for petitioner.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is an application for a writ of habeas corpus by George H. Wheeler, in which he alleges that he is illegally deprived of his liberty by the sheriff of Brown county. The petitioner was charged by Ida E. Robbins, an unmarried woman, with being the father of a bastard child of which she was pregnant, and at a trial in the district court a jury found him to be the father of such child, and he was adjudged by the court to pay to the relatrix, Ida E. Robbins, for the support of the child, the sum of $ 1,000, in twenty equal installments of $ 50 each. It was also adjudged that he should secure the payment of the $ 1,000 by good and sufficient sureties to be approved by the clerk of the court, and in default thereof that he should be committed to the jail of Brown county. The return made by the sheriff shows that the petitioner has failed to comply with the judgment of the court, and that he is now held by virtue of a commitment issued upon such judgment. The petitioner alleges that his restraint is illegal, for the reason that the several provisions of the bastardy act which provide for imprisonment are in violation of § 16 of the bill of rights in the constitution, which is that "No person shall be imprisoned for debt except in cases of fraud." That part of the bastardy act which provides for the enforcement of the judgment of the court reads as follows:

"SEC. 13. Such court shall, on finding or confession, render such judgment and make such order as may seem just for securing the maintenance and education to such child, by the annual payment to the mother, or if she be dead or an improper person to receive the same, to such other person as the court may direct, and of such sum or sums of money as the court may order, payable at such time or times as may be adjudged proper. The judgment shall specify the terms of payment, and shall require of such defendant, if he be in custody, to secure the payment of such judgment by good and sufficient sureties; or in default thereof, he shall be committed to jail until such security be given."

It is urged in behalf of the petitioner that this and other sections of the act that provide for commitment to the county jail come within the prohibition of the constitution above quoted. We think not. There are many forms of liability that do not constitute a debt in the technical and legal sense of that term. Imprisonment for debt as here used has a well-defined meaning, and as has been repeatedly decided, applies only to liabilities arising upon contracts. ( McCool v. The State, 23 Ind. 127; Ex rel. Brennan v. Cotton, 14 Ill. 414; Lower v. Wallick, 25 Ind. 68; Dixon v. The State, 2 Tex. 481; Musser v. Stewart, 21 Ohio St. 353; Hawes v. Cooksey, 13 Ohio 242; Moore v. Green, 73 N.C. 394; Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174.)

The charge of maintenance and education, while it is in the nature of a civil obligation, and imposed in a proceeding which is essentially civil though criminal in form, is not based upon contract either express or implied. It is the duty of the father to make provision for the support of his illegitimate offspring. To compel him to assist in the maintenance of the fruit of his immoral act, and to indemnify the public against the burden of supporting the child, is the purpose of the proceeding in bastardy.

In Musser v. Stewart, supra, it is decided that--

"A proceeding in bastardy is not a suit to recover a sum of money owed from the defendant to the complaining party. The liability sought to be enforced is not founded upon contract, express or implied, but originates in the wrongful act of the defendant, against the consequences of which the statute is designed to protect the public."

In Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174, it is said that--

"The proceeding is properly a police regulation, requiring the putative father to furnish maintenance for the support of his child, and to indemnify the public against liability for its support. The sum charged against the petitioner is not a debt in the sense in which that word is used in the constitution."

In Lower v. Wallick, 25 Ind. 68, it was expressly ruled that the payment of money compelled by the statute for the support of an illegitimate child is not in the nature of a debt due upon contract, and that the provision in the constitution forbidding imprisonment...