Beyer v. Vanderkuhlen

Cole, J. ¥e think the demurrer to the complaint was properly sustained. It is insisted by the learned counsel for the defendant, that sec. 32, ch. 158, Tay. Stats., has no application to the contest of a parent, or a contest between parents for the custody of their children, but that the penalty attaches for the unlawful recommitment or imprisonment of a person who has once been delivered on habeas corpus. It is said that the evil intended to be prohibited was the imprisonment of the citizen over and over again for the same cause or pretended cause or offense, after an adjudication had been had that his restraint or imprisonment was unlawful; that the object of the statute was to protect the liberty of the citizen, and guard against oppres [322] sion, by inflicting a penalty for knowingly recommitting a person once set at large. This position of counsel certainly derives great sanction from the language of the statute. The words “recommit” and “imprison” evidently refer to courts or magistrates, and imply some judicial or ministerial act on their part. True, the unauthorized absence of an infant from the legal custody of a parent has been treated, for the purposes of allowing the writ of habeas corpus, as equivalent to imprisonment; but the removal of the infant from the parent to whose custody it had been awarded, cannot be deemed a recom-mitment or imprisonment in any sense of the words. The provision is a penal one, and must be strictly construed. And it seems to us it would. be an unreasonable construction to say that the penalty attached to the acts of the defendant stated in the complaint. In this case the children had been awarded to the plaintiff by the order of the commissioner, and it was certainly wrong, Rnd a violation of that order, for the defendant to aid the mother or any other person in taking the children from the plaintiff’s custody. But that the defendant incurred the penalty by his conduct in that regard, is a position which, it seems to us, cannot be maintained. The thirty-second section is substantially the same as the sixth section of the act of the 33 st Charles II. (4 Bacon’s Abr., Habeas Corpus, B., p. 126); and we were not referred on the argument to any case, nor have we been able to find one, which extended the provision to a case like the one at bar. Perhaps we should not be justified in assuming, on the demurrer, that this was a contest between the father and mother for the custody of their children, though defendant’s counsel so states in his brief. Of course, if this action will lie, one could be maintained against Wilhelmina Beyer, even if she were the mother. But the question as to the remedy of the father where his children, awarded to him on habeas corpus, have been unlawfully taken from his custody, has often arisen and been considered by the courts; and it is strange, if the professional [323] understanding was that tlie penalty extended to a case like the present, that a precedent for the action cannot be' fonnd. Penalties are not to be imposed without express words or necessary implication. Hecker v. Jarrett, 1 Binney, 374. But if we are wrong on this point as to the meaning of the section, we fully agree with the defendant’s counsel in the view that the plaintiff is not the party to recover the penalty, if an action in such a case could be maintained. The person aggrieved is surely the one who is recommitted or imprisoned after having been discharged. And if the penalty is given to any one, it is given to the child in his own right, and not to the father. The penalty is by way of indemnity to the person recommitted or reimprisoned after having once been discharged on habeas corpus for the same cause. “ That the father has a legal and paramount right to the custody and services of his child will not in general be denied” (In re Goodenough, 19 Wis., 274); but this does not clothe the father with all the legal rights and remedies of the child. "We do not wish to be understood as intimating that an action on behalf of the child could be maintained upon the facts stated in the complaint. But we do say we have no doubt that the penalty is given to the person aggrieved, and the person aggrieved is surely the one who is recommitted or imprisoned. ' Further comments would seem unnecessary to vindicate the correctness of this construction of the section. By the Oourt. — The order of the circuit court is affirmed.