Moore v. State

• Decision Date: 06 February 1892
• Citation: 47 Kan. 772,28 P. 1072
• Parties: J. M. MOORE v. THE STATE OF KANSAS, on the relation of Carrie Vernon
• Court: Kansas Supreme Court

28 P. 1072

47 Kan. 772

J. M. MOORE v. THE STATE OF KANSAS, on the relation of Carrie Vernon

Supreme Court of Kansas

February 6, 1892

Error from Wyandotte District Court.

PROCEEDING under the bastardy act. From a judgment against the defendant, Moore, he appeals. The opinion states the facts.

Judgment affirmed.

Hutchings & Keplinger, Buchan, Freeman & Porter, and Scroggs & Gibson, for plaintiff in error.

Hale & Fife, Van Hoorebeke & Ford, and M. P. Murray, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON C.

This a proceeding under the bastardy act. The evidence on behalf of the state having been introduced, the defendant elected to rely on a jurisdictional question presented by the evidence for the state. This question is, whether the courts of this state have any jurisdiction in a case where the mother and her illegitimate child are and always have been non-residents of the state of Kansas. The jury found specially as follows:

"1. Is Carrie Vernon, the relator, a citizen of the state of Kansas? A. No.

"2. Was the relator, Carrie Vernon, ever a citizen of the state of Kansas. A. Yes.

"3. Was the relator, Carrie Vernon, delivered of a bastard child? A. Yes.

"4. When was said bastard child born? A. 9 P. M. on June 1, 1889.

"5. Where was said bastard child born? A. Carlisle, Clinton county, state of Illinois.

"6. Was said bastard child ever a citizen of the state of Kansas? A. No.

"7. When was said bastard child begotten? A. September 3, 1888.

"8. Where was said bastard child begotten? A. Kansas City Kansas.

"9. Was the relator, Carrie Vernon, born in the state of Illinois? A. Yes.

"10. Has the relator, Carrie Vernon, always resided in the state of Illinois, except when temporarily absent? A. No.

"11. Where does the said relator, Carrie Vernon, now reside? A. Carlisle, Clinton county, state of Illinois.

"12. Has said bastard child ever since its birth been a resident and citizen of the state of Illinois? A. Yes."

After the jury had returned these special findings, the defendant below made a motion to set aside the answers to questions Nos. 2 and 10, on the ground that said answers were wholly unsupported by evidence. This motion was sustained, and said answers set aside. The jurisdictional question is raised by motion to discharge the defendant, by instructions asked and refused, and by the motion for a new trial. The district court adjudged the defendant to be the father of the bastard child, and that he may be charged with its maintenance and education, and ordered the defendant to pay into court the sum of $ 1,200 for that purpose, in definite sums, at stated periods.

The first question to be considered is, the object to be accomplished and the results to be attained by proceedings under the bastardy act of this state. These things have been the subject of some comment by this court. The act itself is a strange admixture of criminal process and civil procedure, but has been classified as a civil proceeding. The power exercised by the legislature in the passage of the act, and the proceedings to be taken under it, can be traced on the one hand to the police power of the state, and on the other as conferring personal benefits to private parties. The title to the act is somewhat suggestive of its objects and purpose. It is, "An act providing for the maintenance and support of illegitimate children."

In the case of In re Wheeler, 34 Kan. 96, 8 P. 276, it is said by this court that "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." This means that the proceeding is strictly a statutory one, and whatever rights are created or obligations imposed are by reason of the express terms of the statute. The court also says: "It is the duty of the father to make provision for the support of his illegitimate offspring." That is, the moral obligation is made a legal duty by the words of this statute. The court proceeds:

"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."

The case of Musser v. Stewart, 21 Ohio St. 353, is cited to support the decision. That case declares--

"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."

Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174, is cited, and that case says:

"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."

All the books abound in such expressions. It seems, therefore, that bastardy acts such as ours convert the moral obligation of the father of an illegitimate child to support it into a legal duty, enforceable in the courts. Various states prescribe different forms of procedure to enforce this duty, but in all states, so far as we have read the reports of their final tribunals, the avowed purpose of these acts is to prevent the child from becoming a public charge to the county, township or district in which the mother resides. This is generally accomplished by a provision that the mother, if she be a proper person and is in charge of the child, or, if she be not, then some person who is, be paid certain sums at definite periods. And the amounts paid, the times at which paid, and to whom paid, are all questions to be determined by the court. If this is the inducing cause and sole purpose of the legislative act, there is much reason to call it an exercise of the police power of the state, and the public charge to be guarded against could not occur unless the child was a resident of the state. In any view, the mother is benefited, because, so far as the father is compelled to contribute to the maintenance and education of the child, she is relieved from expense. If she is not in the custody of the child, or is adjudged to be not a proper person to have the custody, yet she is relieved from a legal obligation to the extent that support is given the child by the putative father. Hence, it seems to follow from such a construction that the primary object of a bastardy act is to relieve the public of the charge and support of an illegitimate child, and that the benefits derived by the mother from the enforcement of the law are only incidental. These proceedings do not bar or interfere with her right of personal action against the father for the injuries done her. If that is the primary object of a bastardy act, it can only operate within the boundaries of the state in which it originates. If the child is a non-resident, no municipality of this state could be made chargeable with its maintenance. This is too plain to require elaboration. The case of Sutfin v. The People, 43 Mich. 37, 4 N.W. 509, is one strongly in point. It holds that--

"The main purpose of the Michigan bastardy act is to indemnify the public for the support of the child, and it does not apply to cases where the child lives out of the state, even though it was begotten within the state."

The court says:

"The proceedings under this act are purely statutory. They are partly for the benefit of the complainant, and may be instituted in her name, and partly for the purpose of indemnifying the public, and may be instituted in the name of the people. The warrant may be executed in any part of the state, and if upon the trial the defendant is found guilty he shall be adjudged to be the father of the child, and shall stand chargeable with the maintenance thereof, with the assistance of the mother, in such manner as the court shall order. The person so adjudged to be the father shall give bond to the superintendents of the poor of the county, with sufficient sureties, to the satisfaction of the court, to perform such order, and also to indemnify the county which might be chargeable with the maintenance of such child. The mother and superintendents, respectively, may recover from the defendant any sum of money which ought to have been paid them respectively in pursuance of such order of the court; and the superintendents are given power to compromise and arrange with the father relative to the support of such child, and thereupon to discharge him from all liability for the support of such bastard. It seems very clear, indeed, from these several provisions, that the support of the bastard child, and thereby to prevent its becoming a charge upon the public, is the primary object and purpose of the act. In so far as the putative father is required to contribute to its support, it is a benefit to the mother; but for the performance of such order a bond is given to the superintendents of the poor, and to indemnify the county which might be chargeable with the maintenance of the child. These two things go hand in hand together. Where the mother and child are actual residents of another state, or of a foreign country, it surely could not have been intended that the bond to the superintendents would be for the indemnity of the county where the mother and child resided; nor could it have been intended to meet a contingency that might never happen, by a change of residence to the county in this state where the proceedings were instituted, or any county into which the parties might come. The statute is designed to meet cases where the...