In re Goodenough ex rel. Goodenough

By the Court, Dixon, C. J. There is no doubt in the mind of the court that the indentures are void for not specifying some “ profession, trade or employment ” in which the apprentice was to be instructed. The statute is very plain upon this point. Such are its words in case of the apprenticeship of an infant, of his or her own free will, with the consent of the father, mother, guardian, or supervisors, &c., as prescribed by chapter 113, Revised Statutes. In the case of orphans or minors otherwise likely to become chargeable to the public, the requirement is the same. - It is made the duty of the supervisors, or superintendents of the poor, “to bind such minor as an apprentice to some respectable householder of the county, * * * * by written indenture, which shall bind such minor to serve as an apprentice, and shall be executed in like manner, and shall be of the same tenor and effect, as inden [277] tures executed pursuant to the provisions of the chapter entitled ‘Of Masters and Apprentices.’” R. S., ch. 34, sec. 19. If this language were not sufficiently explicit without, the word “ apprentice ” would, ex vi termini, imply service in some specific “profession, trade or employment.” The reason of this requirement is obvious. Beside their present support and education, the legislature intended that such children should be trained up in the knowledge of some trade or art by which, when they became their own masters, they might honestly maintain themselves. For the attainment of this humane object it becomes the duty of the supervisors or superintendents, whose power in such cases is absolute and compulsory, to name some trade or employment suitable to the sex and mental and physical condition of the child, in which it shall serve, and to cause the same to be inserted in the indentures, and not to leave this most important requirement to the self-interest or caprice of the person about to become the master. The indentures being illegal, and there being nothing to preclude the father, the natural guardian, from asserting such illegality, the question arises, what order ought the county judge to have made as to the custody of the child ? That he ought not, against her will, to have remanded her to the custody of the respondent is very evident. The indenture being void, the respondent has no legal claim to the custody or services of the child. Ought the judge then to have ordered her into the custody of her father ? That the father has a legal and paramount right to the custody and services of his child will not in general be denied; and that such right will sometimes be enforced upon this writ seems settled by the later and better considered decisions. The Queen v. Clarke, 7 Ellis & Black., 186 (90 E. C. L., 185); State v. Richardson, 40 N. H., 272 ; The King v. Greenhill, 4 Adolph & Ellis, 624 (31 E. C. L., 153). Formerly the rule was different, and it was held that the court was not bound in any case to deliver the infant over to any particular person, though such person was the natural [278] or legally appointed guardian. Rex v. Delaval, 3 Burrow, 1434; In the matter of Waldron, 13 Johns., 418 ; In the matter of McDowle, 8 Johns., 328; Commonwealth v. Hammond, 10 Pick, 274. All that the court was bound to do was, to see that the infant was not wrongfully imprisoned, or detained against his will. If he was they would set him at liberty, and, if of sufficient age, leave him to go where he pleased. But if he was of such tender years that he could not form a proper judgment, the court would exercise its judgment for his benefit, and do what it thought most for bis interest and welfare. It was in the sound discretion of the court to change the custody of the infant, or not. But by the later decisions, those first above cited and others, this doctrine seems to have been somewhat modified. If the father apply, the child should, if within the age of nurture, which is fixed at fourteen years, be delivered over to him, unless there be something in his situation or conduct which renders him unfit for the trust. If the father be dead, and the mother still a widow, the same rule applies to her. But if the mother be married again and her husband living, the old rule prevails. The infant, if of sufficient age, must choose for himself; if not, the court will choose for him. In such case the mother is considered by her subsequent marriage as having lost her right of guardianship for nurture. Commonwealth v. Hamilton, 6 Mass., 273; State v. Scott, 10 Foster, 274; Worcester v. Marchant, 14 Pick, 510. But when the infant is above the age of fourteen years, he must, it seems, in every case, choose for himself. The court will not compel him, upon habeas corpus, to submit to parental authority. In this case the infant is a girl now nearly twelve years of age. Prima facie, therefore, the father is entitled to have her delivered over to him, unless enough is shown in the return to rebut that right. The exception, as we have seen, is where it appears that the father is an improper person to have the care and management of the child. It is said in State v. Richardson, [279] supra, that in determining this question the court will take into consideration the right of the father, his ability and inclination to perform faithfully the trust imposed upon him,the present condition of the child, and, if of years of discretion, its wishes upon the subject. It is furthermore said, that a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs. Tested by these rules we are of opinion that enough is shown by the return to justify the court in exercising its discretionary power, and in refusing to deliver the child to the petitioner. It appears that the respondent is a respectable householder of the county of Dodge, and that the child has resided with, and been kept and maintained as a member of his family now upwards of six years. Nothing is shown to cause a doubt that her treatment has not been proper and suitable in every particular. It also appears that at the time she came to reside with the respondent, she and her mother were inmates of the poor house of the county, and her father, the petitioner, a convict undergoing punishment in the penitentiary of the state. Upon these facts we cannot hesitate. Nor do we deem it necessary to comment upon them. A husband and father who has been so culpable or so unfortunate as to bring his wife and infant child to the poor house, and himself to the felon’s cell, and these so recently, should at least be required to make some explanation to entitle himself to the favor of the court, in a proceeding like this. He should, at all events, show a change of circumstances, and that he is morally and pecuniarily fitted to have the . care and education of his child, before the court will place her in his custody, especially where it appears that she is so suitably provided and cared for as in the present instance. It will be seen from the reported cases that children between the ages of seven and fourteen are often interrogated as to their wishes, and, if of sufficient intelligence, allowed to choose for themselves. There are several instances of those between ten and twelve being thus allowed their choice. It is probable, [280] therefore, that the county judge should have examined the girl and have given her the privilege of determining for herself whether she would go to her father or remain with the respondent. But for reasons already stated, he should not have remanded her to the custody of the respondent; and because he did so, his order must be reversed. Order reversed.