State ex rel. Canfield v. Porterfield

• Decision Date: 14 February 1927
• Parties: STATE EX REL. EDWARD CANFIELD, RELATOR, v. HON. E. E. PORTERFIELD, JUDGE, RESPONDENT. [*]
• Court: Kansas Court of Appeals

292 S.W. 85

222 Mo.App. 553

STATE EX REL. EDWARD CANFIELD, RELATOR, v. HON. E. E. PORTERFIELD, JUDGE, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

February 14, 1927

Original proceeding in prohibition by the State on the relation of Edward Canfield against Hon. E. E. Porterfield Judge of the Juvenile Court of Jackson County.

TEMPORARY WRIT MADE PERMANENT.

Miller Winger & Reeder and David L. Sheffrey for relator.

Scarritt Jones & North for respondent.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.--

This is an original proceeding in prohibition seeking to prohibit the Hon. Edward E. Porterfield, Judge of the juvenile court of Jackson county, Missouri, from proceeding under section 2611, Revised Statutes 1919, against the relator in the cause of State of Missouri v. Glen Canfield, therein pending, by decreeing that the relator support or contribute to the support of his child, the said Glen Canfield, who was born out of lawful wedlock.

The undisputed facts show that Glen Canfield was born on February 14, 1924; that the child's mother and relator, the father, have not since intermarried and that relator has never taken said child into his home to live with him nor had the custody of the child nor contributed to his support and, so far as the record shows, has done nothing to recognize the child as his own. However, the mother of the child brought a proceeding in the circuit court of Jackson county, Missouri, under section 311a (see Laws of 1921, p. 118) seeking a decree establishing the paternity of the child and that court, on January 25, 1926, decrees that the child was begotten out of lawful wedlock and that relator and plaintiff therein were his father and mother. Thereafter, on April 1, 1926, a petition was filed in the juvenile court, over which respondent presides, charging that the child was destitute and abandoned by his father; that he was dependent upon the public for support; that he was suffering from the cruelty and depravity of his father and that his father would not support him. The relator was duly summoned and appeared in the cause. The court found that the circuit court had decreed that relator was the father of the child and that the petitioner in the circuit court proceeding was the mother; that the mother and relator had not since intermarried; that relator had never taken and did not have the custody of the child nor had he contributed in any way to his support and that the child was dependent on the public for support. It was ordered that the child be adjudged a neglected child within the meaning of section 2591, Revised Statutes 1919, and that he be made a ward of the court. The cause was continued until June 7, 1926, for further hearing.

On the last-named day the cause again came on for hearing for the purpose of determining whether or not relator was able to support or contribute to the support of the child but the relator filed a plea to the jurisdiction of the court on the ground, among others, that he was not the parent of the child and not liable to contribute to its support within the meaning of Article 6 of Chapter 21, Revised Statutes 1919, being the juvenile court law. This plea was overruled and the cause was then continued until June 21, 1926. In the meantime, relator applied to this court for a writ of prohibition against the respondent and a temporary writ was issued on June 28, 1926. The matter now comes up before us on the question as to whether the temporary writ of prohibition should be made permanent.

It is substantially conceded by the parties that the sole question before us is whether the juvenile court of Jackson county, Missouri, under the provisions of the juvenile court act, mentioned, supra, and, particularly, section 2611 thereof, is empowered to require relator to support or contribute to the support of the child, Glen Canfield. In determining this point it is proper to give the history of the status of illegitimate children and to show the statutory modification that has been made in this state relative to that status.

At English common law a bastard or illegitimate child was considered the child of no one. It was not able to inherit property from either of its parents or anyone else and was not entitled to the support of its father and it is very questionable if even its mother was required to support it. The sin of its parents was visited, without mercy, upon its innocent head. It was a social outcast and was barely given the status of a member of the human family. [See 1 Schouler's Marriage, Divorce, Separation and Domestic Relations (6 Ed.), pp. 736, 747; 7 C. J., pp. 955, 956, 959.] However, under the common law of Missouri the mother of an illegitimate child is under the primary duty to support it although the putative father is not. [Easley v. Gordon, 51 Mo.App. 637; Sponable v. Owens, 92 Mo.App. 174, 178; see, also, 1 Schouler's Marriage, Divorce, etc. (6 Ed.), p. 743; 7 C. J. 955.] However, the mother was given the custody of such a child by statute. [See section 371, R. S. 1919.] At an early day an illegitimate child was given the right to inherit from its mother and in 1915 an act was passed providing that if a man, having by a woman a child or children, should afterward intermarry with her and recognize such child or children as his own, they should thereby be legitimated "and capable of inheriting." [Gates v. Seibert, 157 Mo. 254, 277, 278, 279, 57 S.W. 1065.] The Act of 1815 with the exception of the words quoted, is found in section 312 of the Revision of 1919. In 1822 an act was passed providing that the issue of all marriages decreed null in law or dissolved by divorce, should be legitimate. [See Gates v. Seibert, supra, l. c. 277.] This last act is the same as section 313, Revised Statutes 1919. Later an act was passed concerning the legitimating of children born of slave parents. [See section 314, R. S. 1919.] Some other acts relating to the status of illegitimate children were passed by the legislature in 1921, which will hereinafter be referred to. In some States what are called "Bastardy Acts" have been passed under which the putative father of an illegitimate child may be arrested and required to give security for the support of such child, but no such law has ever been enacted in this state.

The juvenile court act of Jackson county was passed in 1911 (see Laws of 1911, p. 177) including section 2611 under which respondent was attempting to proceed at the time he was prohibited by us. This section provides as follows:--

"In any case in which the juvenile court shall find a child neglected or delinquent, it may in the same or a subsequent proceeding, upon the parents of said child, or either of them, being duly summoned, or voluntarily appearing, proceed to inquire into the ability of said parent or parents to support the child, or to contribute to its support, and if the court shall find that such parent or parents are able to support the child, or contribute thereto, the court may enter an order or decree requiring said parent or parents to support said child or contribute thereto, and may enforce the same by execution; otherwise the necessary support of the child shall, until the court shall commit the child to a person or institution willing to receive it without charge, be paid out of the funds of the county, only, however, upon the approval of the judge of the juvenile court."

Respondent insists that he has jurisdiction under the provisions of this section to proceed against relator in the manner we have described. In construing statutes, the rule is that illegitimate children are not especially favored and will not be brought under a statute except where it purports to cover such children, but when the statute bestows upon them a given status it is to be liberally construed so that such child may be given the advantages of existing remedies. [Wasmund v. Wasmund, 90 Wash. 274, 276, 156 P. 3; Bell v. Terry & Tench Co., 163 N.Y.S. 733; Breidenstein v. Bertram, 198 Mo. 328, 344, 348, 95 S.W. 828; Haddon v. Crawford, 97 N.E. 811; 7 C. J. 960; 1 Schouler's Marriage, Divorce, etc., supra (6 Ed.), pp. 737, 742.] A statute referring to a "child" or "children" or "parent" or "parents" is construed as referring to legitimate children and not to illegitimate children or bastards. [Gates v. Seibert supra, l. c. 272; 1 Schouler's Marriage, Divorce, etc. (6 Ed.), p. 743; 7 C. J. 957, 959; 29 Cyc. 1583; Bell v. Terry & Trench Co., supra; State v. Miller, 52 A. 262 (Del.); People v. Fitzgerald, 152 N.Y.S. 641; Creisar v. State, 97 Ohio St. 16, 119 N.E. 128; Moss v. United States, 29 App. Cases D. C. 188.] In the last case the question of the obligation of the putative father of a child born out of wedlock to support the child under a juvenile court act, was involved. The court said, l. c. 194--

" 'We are convinced that the terms "parent or guardian," "father or mother," "father and mother," so often occurring (in the juvenile court act) cannot be construed to relate to a man charged with being the father of a bastard child; but mean lawful parents; and "that any person" means the lawful parent or guardian of such child.' "

And it was held that the juvenile court had no right to compel the putative father of an illegitimate child to maintain it.

Section 2611, Revised Statutes 1919, refers to "parent or parents" and the power of the juvenile court to require such parent or parents to support the child or contribute thereto, but it does not say anything about bastards or illegitimate children and under the authorities, supra, we must hold that it does not cover such children. While the juvenile court act is to be liberally construed (see State v. Trimble, 269 S.W. 617), this rule of construction...