State v. Davis

• Decision Date: 17 December 1928
• Docket Number: 59
• Citation: 11 S.W.2d 479,178 Ark. 692
• Parties: STATE v. DAVIS
• Court: Arkansas Supreme Court

11 S.W.2d 479

178 Ark. 692

STATE v. DAVIS

No. 59

Supreme Court of Arkansas

December 17, 1928

Appeal from Grant Circuit Court; Thomas E. Toler, Judge; reversed.

Judgment rendered.

John L. McClellan and Isaac McClellan, for appellant.

T Nathan Nall and Rowell & Alexander, for appellee.

OPINION

SMITH J.

Opal Woolems made complaint on October 22, 1927, to the county court of Grant County, that Vernon Davis was the father of her bastard child, and she prayed judgment against him for the statutory allowances. There was an appeal to the circuit court from the judgment of the county court, and, upon the appeal, a jury found that Davis was the father of the child. Upon this verdict the court rendered judgment requiring Davis to pay the mother of the child the sum of $ 25 as lying-in expenses and the sum of $ 10 per month from the date of the birth of the child until it arrived at the age of fourteen years.

At a later day of the same term the court made an order reciting that act No. 111 of the 1927 session of the General Assembly (Acts 1927, page 310), was not in force at the time the child was born, and that the judgment was for that reason reduced to conform to § 777, C. & M. Digest which section was amended by the 1927 act, and the plaintiff has appealed from that judgment.

The act of 1927, which increased the allowances to the mother of a bastard child over those allowed by § 777, C. & M. Digest, was approved by the Governor March 4, 1927, and, as there was no emergency clause to the act, it became effective and operative as a law ninety days after March 10, 1927, the date of the adjournment of the General Assembly. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S.W. 2.

The child was born April 17, 1927, which was after the passage of the act of 1927, but before it became a law, and appellee insists that his liability for the support of the child cannot be increased beyond the amount provided by law at the time the child was born, as he has a vested right in the law declaring his liability. The circuit court accepted this view, and, on appellee's motion, reduced his liability to conform to the original law.

We think the court was in error, and that judgment should have been rendered in accordance with the law as it existed at the time of the trial, which was the act of 1927.

Although a bastardy proceeding is in the name of the State, it is of a civil nature (Scott v. State, 173 Ark. 625, 292 S.W. 979), and, as was said in this Scott case: "Section 772 et seq., C. & M. Digest, gives the mother of such a child the right to require the father to contribute to its support, and implies an obligation and a promise on his part to help support it, and this court has held that she can enforce such a promise, based upon moral obligations and a legal liability."

The act of 1927 is not therefore an ex post facto law, for the reason that it is not a criminal statute. It was held in the Scott case, supra, that "a bastardy proceeding is a civil action, and a petition for a change of venue in such a case would come under the provisions of law applicable to changes of venue in civil cases."

In the case of Willetts v. Jeffries, 5 Kan. 470 the contention was made by the father of a bastard child, as it is here, that he had the vested right to have his liability for begetting the child determined by the law as it existed when the child was born. This argument was answered very effectively by Justice Valentine for the Supreme Court of Kansas, who, after saying that the bastardy law of that State was not an ex post facto law, for the reason that such laws relate to criminal, and not to civil, proceedings, said also that no one has a vested right to do wrong, and that no case could be found giving one a vested...