Parker v. Nothomb

• Decision Date: 04 February 1903
• Citation: 93 N.W. 851,65 Neb. 315
• Parties: LUCY PARKER v. MICHAEL J. NOTHOMB
• Court: Nebraska Supreme Court

93 N.W. 851

65 Neb. 315

LUCY PARKER v. MICHAEL J. NOTHOMB

Supreme Court of Nebraska

February 4, 1903

REVERSED AND REMANDED.

OPINION

HOLCOMB, J.

This cause is submitted on a rehearing heretofore allowed. The controversy is with respect to the proper construction of section 1, chapter 37, Compiled Statutes, 1901, entitled "Illegitimate Children." The direct question presented is whether, under the statute referred to, an unmarried woman who has given birth to an illegitimate child and subsequently thereto marries, may after such marriage maintain an action against the putative father for the support of her illegitimate offspring. At the former hearing the word "unmarried," in the section referred to, it was held, does not properly refer to the mother's status at the time of making the complaint in bastardy, but only to such status at such time as will affect the question of the legitimacy of the child or the liability of the husband to support it. The former opinion treats of the propositions involved at some length and is referred to in connection with what is here said for a more comprehensive understanding of the views we entertain regarding the matter. Reiteration will serve no useful purpose and we shall attempt to avoid it. A brief in support of the application for a rehearing so ably and persuasively argued the question in favor of a contrary construction as to induce the court to grant the motion, for the purpose of more fully investigating and considering the subject, and to arrive, if possible, at a right decision of the controversy.

The statute reads: "That on complaint made to any justice of the peace in this state by any unmarried woman resident therein, who shall hereafter be delivered of a bastard child or being pregnant with a child which, if born alive, may be a bastard, accusing on oath or affirmation any person of being the father of said child, the justice shall take such accusation in writing," etc. Sec. 1, ch. 37, Compiled Statutes, 1901. It is earnestly insisted by defendant's counsel that because of the language just quoted, the mother of a bastard child, who, subsequently to its birth and before instituting the proceedings therein contemplated, marries, can not thereafter bring or maintain an action under the statute. It is argued that the construction given the statute in the prior opinion is contrary to the clear import of the language therein used, and against the weight of adjudged cases bearing on the question. Chief reliance for the construction contended for by the defendant is placed on the wording of that part of the section we have quoted, and it is urged that the intention of the legislature is made so apparent therefrom that there is left no room for any other construction as to the meaning of the language than that the mother of the illegitimate child must be an unmarried woman when she makes the complaint in bastardy, and that an allegation that she is at the time of filing the complaint an unmarried woman is essential and necessary to be made and proved in order to give her and her illegitimate child the benefit and advantage afforded by the statute. It should, perhaps, here be said that on a first reading of the statute no other view seems admissible. Nevertheless, maturer reflection and full consideration of the entire act, bearing in mind the object and purpose which the legislature had in view in adopting the statute, as gleaned from the title as well as the act itself, produces in our minds a well-settled conviction that such construction would, in a measure, defeat the intention of the lawmaking body which passed the measure. In a very recent decision we have said: "It is a well-settled rule in the interpretation of statutes that the reason and intention of the law given will control the strict letter of the law when the latter would lead to palpable injustice or absurdity." Kelley v. Gage County, 66 Neb. . In the interpretation of statutes courts ascertain the intention of the legislature and give effect to it rather than to the literal sense of the terms employed. State v. Baushausen, 49 Neb. 558, 68 N.W. 950. The law is manifestly one created by a statute remedial in character, and to which resort must be had in the first instance in order to determine the legislative intendment and the objects and purposes sought to be accomplished by its enactment. In determining the character and proper construction to be given a law of the kind under consideration we should, perhaps, first consider the action taken by the lawmaking body, the changes, if any, which have been made, the reasons for such changes, and the evils sought to be remedied thereby, and thus more certainly ascertain the legislative intent and purpose. The first act on the subject was passed and approved in 1869, and was entitled "An act to provide for the support of illegitimate children." In that act it was provided that on complaint made by "any woman," etc. proceedings should be had for the purpose of compelling the father to support his illegitimate offspring. By the wording of the statute as then enacted, the question of the status of the woman making the complaint, with reference to her being married or unmarried at the time of the birth of the child, was not made the test as to her right to maintain an action against the putative father for its support. Under such statute the questions to be determined were whether the woman, be she married or unmarried, had been delivered of a bastard child or was pregnant with a child which if born alive would be a bastard. The illegitimacy of the child was the sole test of the mother's right to prosecute the action. "At common law," it is said, "a bastard is one who is born neither in lawful wedlock nor within a competent time after its termination; or under circumstances which render it impossible that the husband of his mother can be his father." 5 Cyc. 625; Commonwealth v. Shepherd, 6 Am. Dec. [Pac.] 449; Smith v. Perry, 80 Va. 563. See, also, Wilson v. Babb, 18 S.C. 59. Thus by the old statute a married woman, although such at the time a bastard child was begotten and born, could maintain an action in bastardy for the support of such child. It is said, and, we are convinced, with much merit, that a law of this character was subject to much abuse, and permitted the prosecution of an action by a woman who while in lawful wedlock gave birth to an alleged illegitimate child and resorted to the statute solely for the purpose of gain, in an attempt to bastardize a child begotten and born in lawful wedlock and thus stigmatize as a bastard one whose coming into the world was sanctioned by every law governing the martial relations. To avoid this possible condition of things, we apprehend, was the sole aim and object of the legislature in amending the law as it did in 1875 by inserting the word "unmarried" after the word "any," so that the section should read that on complaint made by "any unmarried woman," instead of "any woman," as originally existing. It can not, we think, be successfully controverted that this was the prime aim and purpose of the amendment of the statute which in all other respects was left substantially unchanged. What we conceive to be the intention of the legislature by making the amendment was to deny to the married woman giving birth to a child, even though in truth and fact not begotten of her husband, the right to maintain an action against some third party for its support, who is alleged to be its father. The amended act is entitled "An act for the maintenance and support of illegitimate children." The title is, we assume, an unerring index, disclosing the object and purpose of the act. These were to provide for the support and maintenance by the putative father of his illegitimate child, begotten and born out of lawful wedlock. It is hard to conceive of any good reason, and we know of none, for saying that an illegitimate child should be denied the protection afforded by the statute because the mother, subsequent to its birth, enters into a contract of marriage with one other than its father. The law does not discourage marriages, and certainly the legislature did not intend to throw any impediment in the way of the unfortunate mother who had given birth to an illegitimate child to enter into a marriage alliance. It can not be doubted, as was held to in the former opinion, that the husband of a woman contracting such marriage would sustain the legal relation only of stepfather to the illegitimate child, and would be under no legal obligation for its nurture, support and maintenance. The child, notwithstanding such marriage, is in the same attitude with respect to the law, and in the same need of its beneficent provisions, as before the marriage. It is as much an object of legislative solicitude as other innocent unfortunates of its kind whose mothers have contracted no such alliances. There is in fact no substantial reason, nor can any be advanced, why the legislature intended to deny to the illegitimate child, whose mother after its birth has married, the protection of the statute, and yet extend such protection to those in exactly the same condition whose mothers have not married. The rule is unvarying, so far as we have examined, to the effect that if the mother of an illegitimate child shall marry one other than the father after the commencement of bastardy proceedings, such marriage will not have the effect of abating the action, or relieving the putative father of the legal obligations imposed upon him by the statute. Austin v. Pickett, 9 Ala. 102; Roth v. Jacobs, 21 Ohio St. 646; State v. Ingram, 5 Tenn. 220, 4 Hayw. 220. See, also, Swett v. Stubbs, 34 Me. 178. If a marriage of the mother after the action is instituted, and before judgment,...