In re Woman's North P. Presbyterian Bd. of Missions

• Decision Date: 13 January 1890
• Citation: 22 P. 1105,18 Or. 339
• Parties: In re WOMAN'S NORTH PACIFIC PRESBYTERIAN BOARD OF MISSIONS et al.
• Court: Oregon Supreme Court

22 P. 1105

18 Or. 339

In re WOMAN'S NORTH PACIFIC PRESBYTERIAN BOARD OF MISSIONS et al.

Supreme Court of Oregon

January 13, 1890

Appeal from a decision of the circuit court for the county of Multnomah, E.D. SHATTUCK, Judge, rendered in proceedings had under the act of the legislative assembly of this state entitled "An act to confer certain powers upon certain benevolent or charitable corporations incorporated under the laws of Oregon, in relation to the control and disposition of homeless, neglected, or abused children," approved February 25, 1889.

It appears that the said proceedings were instituted on the 12th day of June, 1889, by the filing of a petition on behalf of the Woman's North Pacific Presbyterian Board of Missions for the arrest and surrender to said board of two Chinese children under and in accordance with the provisions said act. That a warrant of arrest was of issued, and the children taken and given to said board. That Yum Chung, claiming to be an uncle of said children, filed an answer to the said petition. That thereupon an amended petition was filed, in which the Boys' & Girls' Aid Society also became a petitioner. It was set out in said amended petition that the petitioners were both benevolent and charitable corporations duly incorporated under the laws of the state of Oregon. That the Boys' & Girls' Aid Society was incorporated for the purpose of receiving, caring for, and educating homeless neglected, and abused children of the state. That Ah Won and Ah Tie, the said Chinese children, were sisters, aged 8 and 10 years, respectively, and that their parents were dead. That said Yum Chung claimed to be their uncle, but petitioners, upon information and belief, denied his sustaining any such relationship. That the children lived with one Fung Que, their reputed step-mother, in the city of Portland. That their place of residence, and where they were kept, was a house of ill fame, and said Fung Que and the alleged uncle were inmates of said house, and the former was a woman of notoriously bad character. That said children were being trained to lives of immorality and vice, and, unless removed from said evil guardianship and influence, would almost inevitably become prostitutes and criminals. An answer in the form of a petition was filed to the said petition by Wong Chin Way, who claimed to be the guardian of the persons and estates of said children, in which said answer and petition said Wong Chin Way, who claimed to be the guardian of the persons and estates of said children, in which said answer and petition said Wong Chin Way denied absolutely, and upon information and belief, all the material allegations contained in the first-mentioned petition, and alleged that the relationship of the said Yum Chung referred to in said petition existed in fact, and that, if the children were taken from their relatives and said guardian, and given to said petitioners, they would attempt to entice them from the religion of their father and mother, and their relatives now living. That said guardian intended to send the step-mother and said children to China as soon as business affairs and the estate of Wong Sing, the late father of said children could be settled up; that the place where they were then kept and confined was an unfit place to keep the said children. That said guardian was a man of wealth and standing in the community, and was the duly-appointed guardian of the persons and estates of said children, and abundantly able to care for them, and would do so according to law, if their custody were awarded to him by the court. A hearing was had upon the said petition, answer, and cross-petition, and subsequent pleadings filed in the proceedings; and the said circuit court thereafter, and on the 25th day of June, 1889, rendered the following decision: "Now, at this time, the court having heard the evidence and the arguments of counsel in the above-entitled matter, it is considered, ordered, and adjudged that said children, Ah Won and Ah Tie, be, and they are hereby, until the further order of this court surrendered into the care and custody of the Boys' &amp Girls' Aid Society of Oregon; each party to pay its own witness fees, and clerk's and sheriff's costs." That thereafter, and on the 1st day of July, 1889, the said Wong Chin Way filed another petition to the said circuit court, stating therein, among other things, that the petitioner had funds sufficient to provide the children with tickets and all necessary expenses in order to send them to their grandmother, the mother of their father, Wong Sing, who lived in Chow Bow. That they would be well cared for if sent to their grandmother, and would be raised according to the customs of their father. That Wong Gin Ma was about to go home to his family in China, and was willing to take the care and custody of the children, and would safely deliver them to their grandmother. That Wong Gin Ma was a respectable Chinese merchant, and a member of the firm of Tong Way Yuen, doing business at 144 Second street, Portland, Or. That petitioner was a member of the family of Chinese to which Wong Sing belonged in his life-time, and was willing to obligate himself to the court that the children should safely arrive at their destination if they were allowed to be sent to their grandmother. Which said petition concluded with a prayer according to the tenor of said statements. That after hearing said petition, and the affidavit of Wong Gin Ma, to the effect that he knew the father of the children, and their said grandmother; that he intended to go to China about the 5th of July, 1889, and would take care and charge of the children on their voyage home, and would see them safely delivered to their grandmother,--the said court denied the said application, and ordered that said children remain in the care and custody of the Boys' & Girls' Aid Society until the further order of the court. That afterwards, and on the 10th day of October, 1889, said Wong Chin Way filed another petition or application to the said court, which, among other things, stated that the ship Coloma would sail from Portland, Or., for Hong Kong, China, on or about October 15, 1889; that Capt. Cyrus Noyes, of said ship, would take said children with him on board of the same, and see that they were properly cared for and landed at Hong Kong, if the said court would direct that said children be taken to China; that said children had friends and relatives in Hong Kong who would care for them, and see that they were safely forwarded to their grandmother at Chow Bow, China, which was about 60 miles from Hong Kong; that said children were then in the custody and control of the Boys' & Girls' Aid Society of Oregon; that their surroundings and teachings were not such as desired by their relatives and friends, and were contrary to that of their parents,--wherefore he prayed that the children might be delivered into the charge and custody of Capt. Noyes, to be taken by him to Hong Kong, to be delivered to their friends and relatives there, and by them sent to their grandmother in Chow Bow. An answer was filed to the last petition by the Boys' & Girls' Aid Society, denying all the statements and allegations therein contained, and in which it is alleged that the scheme to get said children and send them to Hong Kong was but a device to obtain possession of them, and remove them from the custody and possession of said society, so that they might be kept as property, and trained up for dissolute and immoral lives.

Testimony was taken and submitted by both parties in regard to said matter, and thereafter, and on the 15th day of October, 1889 the said circuit court rendered the following decision: "Now, at this time, this matter comes to be heard upon the petition of Wong Chin Way, guardian of said children, for an order directing that they be turned over to Capt. Cyrus Noyes, of the bark Coloma, to be taken from Portland, Oregon, to Hong Kong, China, and there to be delivered to their relatives, to be taken to their grandmother, the mother of their deceased father, Wong Sing, at Chow Bow, China. The petitioner appearing by J.C. Moreland, W.Y. Masters, and W.L. Boise, his attorneys, and the respondent, the Boys' & Girls' Aid Society of Oregon, by its attorney, T.N. Strong, and it appearing to the court, from the testimony submitted, that it is for the best interests of said children that the prayer of said petition be granted upon the filing of a bond by the said petitioner, with good and sufficient sureties, in the sum of five hundred dollars, to the state of Oregon, for whom it may concern, and said petitioner having filed a bond herein which has been duly approved by this court, it is therefore ordered and adjudged that the prayer of said petitioner be granted, and that the said Boys' & Girls' Aid Society of Oregon turn over to the sheriff of this county, and that said sheriff do take from said respondents said Ah Won and Ah Tie, and deliver them to said Capt. Cyrus Noyes, upon the service on said respondents of a copy of this order." This is the decision from which the appeal herein was taken. The appellant's attorneys, after the service and filing of the notice of appeal, prepared an undertaking for a stay of the execution of the said decision, and applied to the said circuit court to fix the amount of the undertaking necessary for such stay; but said court refused to do so, upon the grounds that no appeal lay from the decision. Thereupon said attorneys applied to this court for a mandamus to be directed to the honorable judge of the said circuit court, commanding him to allow said appeal, and grant a stay of execution of the decision. An alternative writ of mandamus was accordingly issued, and the return thereto by the said judge has...