Parker v. Nothomb

Hastings, C. Only one question is presented in this case, — the construction to be placed upon the opening clause in section 1 of chapter 37, Compiled Statutes, relating to illegitimate children. The provision is “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,” etc. The complaining witness made the following complaint: “On this 2d day of April A. D. 1900 Lucy Parker formerly Lucy West, a resident of Seward county, Nebraska, personally appeared before me, J. J. Thomas, county judge in and for Seward county and state of Nebraska, who being by me first duly sworn on her oath says that she is now a married woman but at the time of the birth of the child hereinafter set forth and at the time the same was conceived was an unmarried woman and resident of said county and state, and that she was on the 29th day of April, 1897, delivered of a male bastard child and that said child is now living and affiant further says that Michael Nothomb, name otherwise unknown is the father of said child, and further affiant sayeth not.” Examination,was held and defendant gave bail for his — 310 — appearance in district court. There he pleaded “Not guilty.” A jury was impaneled. Objection was then made to. the introduction of any evidence on the ground that the complaint stated no cause of action. This was sustained, and by instruction of the court a verdict of not guilty returned. Motion for new trial was overruled, and error is brought to reverse the judgment of dismissal. The sole question is whether “unmarried,” in the statute, relates forward to the following clauses, or back to the complaint. Must it be the complaint of a woman unmarried at the time of making it, or merely the complaint of a woman unmarried when delivered of a bastard child or pregnant with one? It is held in Johnson v. State, 55 Nebr., 781, that the complainant at the time of the birth of the child must be an unmarried woman, and that the evidence must affirmatively show it. Her status at that time fixes that of her offspring. 'If she was then a married woman her child will not be a bastard. It is held in Myers v. Baughman, 61 Nebr., 818, 820, that the purpose of the statute is twofold: To require the putative. father to support his offspring, and to protect the county in which the child is born. Stoppert v. Nierle, 45 Nebr., 105, and Ex parte Cottrell, 13 Nebr., 193, are cited, and are to the same effect. That the marriage of the mother after the status of her illegitimate child is fixed should be made to relieve its father of all responsibility, is clearly against the general intention and object of this statute. Her husband, by the mere fact of marriage,, would not be under any obligation to support the child. Schouler, Domestic Relations, sec. 273; Mowbry v. Mowbry, 64 Ill., 383. It is claimed that this statute is penal, and its provisions should be strictly construed. Such a holding is not in conformity with the rulings of this court. In Stoppert v. Nierle, supra, it is held that the number of challenges allowed in the selection of the jury are those provided in civil actions, and not those in criminal proceedings. It has also been frequently held that a mere preponderance — 311 — of the evidence is all that is necessary to uphold a verdict of guilty in these cases. Robb v. Hewitt, 39 Nebr., 217. A provision for the maintenance of helpless children otherwise without claim upon any one but the mother, is certainly remedial in its nature, and, it would seem, should be construed as a remedial statute. The industry of counsel has brought together the adjudications upon this subject. The holdings, where the question has been directly raised in courts of last resort, seem to be uniformly to the effect that the provision of the statute has relation to the status of the mother at the time of the conception and delivery of the child, and not at the time of the making of the complaint. In England, under a provision that a “single woman” may malee a complaint, it is held that a woman living without access of the husband answers to the description. Regina v. Pilkington, 2 El. & Bl. [Eng.], 546; Regina v. Collingwood, 12 Q. B. [Eng.], 681; Rex v. Luffe, 8 East [Eng.], 193. In Illinois, under a statute identical in meaning, and almost so in form, with ours, in People v. Volksdorf, 112 Ill., 292, the precise case here was held to entitle the complainant to proceed; and the opposite holding of the appellate court in the same case, in 12 Bradwell, 534, was reversed. In Vermont, under a statute as follows: “That when any single woman shall be delivered of any bastard child, or shall declare herself to be with child, and such child is liable to be born a bastard, and shall in either case, charge any person, in writing or on oath,” etc., it was held that it was competent to proceed in the name of the woman under a complaint almost identical in terms with the one that we have here, although in that case the action was carried on jointly by the complainant and the town. Sisco v. Harmon, 9 Vt., 129. The court, both in Illinois and in Vermont, holds that the provision as to the status of the complainant, has reference only to the time when her child is conceived and born. — 312 — In North Carolina, under a statute like that of Vermont, a woman Avho was unmarried at the time of the birth of two children, after marriage to another party, entered bastardy proceedings against the father; and the court held that she was entitled to carry them on, — making the same holding as in Vermont as to Avhen the requirement that she be a single woman should be held to have application. Wilkie v. West, 1 Murph. [N. Car.], 319. These are all the cases which counsel’s industry has brought forth where courts of last resort have passed upon this point under the state of facts here presented. . In Ohio, in State v. Brill, 29 Weekly Law B., 190, the court of common pleas dismissed the complaint of a Avoman who was married at the time of filing it, though unmarried when her child was begotten and delivered. Such action is based on several opinions of the supreme court of that state, which are broad enough in their terms to include the case which thé common pleas court had under consideration, but in each of which the status of the complainant was wholly omitted to be mentioned, or else it appeared that she was a feme covert at the time of the conception and of the birth. It is contended that to restrict the application of the term “unmarried woman” to the time of the conception and birth of the child is judicial legislation, and violates the plain intention of the statute. It is further claimed that this is unnecessary, because of the following section, •which makes provision for the county authorities bringing the action where the mother neglects to bring or to prosecute it. It certainly seems harder to find authority under that section for the county to take action where the woman has done so and been denied, than it is to find authority for her proceeding after her marriage under the previous section. It could not be a neglect to bring or to prosecute an action which produced the failure, except on a much more forced construction of the statute than plaintiff asks here. Citations are given us from other states, including — 313 — Alabama, Florida, Kentucky and Indiana, where holdings have been made that it must appear that the complainant was unmarried. But those cases, like those in Ohio, fail to indicate any conclusion as to the precise question here, namely, when she must be unmarried. They are all cases in which the woman’s status does not appear at all, or else where her coverture at the time of birth or conception of the child prevented her recourse to the statute. • It is urged that the construction sought by plaintiff in error would render the amendment of 1875, inserting the word “unmarried” in place of “any,” meaningless. This seems not to be the result. The intention of that change apparently was to do away with any attempt to establish bastardy by reason of non-access of the husband in the case of a child born of a married woman. It seems also to have been intended, as is helcl in Johnson v. State, above cited, to do away with any attempt on the part of married persons to avoid responsibility for the support of offspring. Both of these objects are as completely reached by holding that the term “unmarried” has application only to the time of the conception and birth of the child, as by including also the time of making the complaint. As is before suggested, the husband would by the marriage incur no liability for another man’s child previously born. The sole reason for holding that this required status of the mother has relation to the time of. filing the complaint seems to be the collocation of the words in the statute, and the grammatical effect of such collocation. This, of course, must not be arbitrarily disregarded in construing a statute. It, however, should not control where the.intention of the legislature requires it to be disregarded. Schuyler v. Hanna, 31 Nebr., 307. The recent case, McGavock v. Omaha Nat. Bank, 64 Nebr., 440, in this court, makes a similar holding in regard to the words of a contract. In that case the contract had reference to an extension of time on a note, which the circumstances indicated was only to be until a certain case was decided in this court. The agreement provided that it should only be good “until said case should be decided — 314 — in the supreme court, or for not to exceed two years from the date of the agreement.” This court held that the intention should be gathered from the whole circumstances, and that the final clause did not grant an alternative for, but provided a limitation upon, the preceding one. The argument would seem at least as strong that the intention of the legislature was to establish a provision for bastard children; that the amendment of 1875 introducing the word “unmarried” into this section, meant only to shut out the inquiry as to non-access of the husband', and the question of liability for the child by one marrying a pregnant woman. To do this, it is only needed that the requirement as to the status of the mother be held to apply to the time of the child’s conception and birth. It has been so. applied in Jolmson v. State, supra. To hold that it applies also to the time of filing the complaint would be to defeat the main purposes of the act, as to one class of children, by a provision as to means. It would be to leave the bastard whose mother should marry before the institution of proceedings remediless. “It is, as will be seen presently, construction alone which saves us, in many instances, from sacrificing the spirit of a text, or the object, to the letter of the text, or to the means by ■which that object was to be obtained. And, without construction, written laws, in fact any laws or other texts containing rales of actions, specific or general, would, in many cases, become fearfully destructive to the best and wisest intentions, nay, frequently, produce the very opposite of what it was purposed to effect.” Lieber, Hermeneutics, 45. It is recommended that the judgment of the district court be reversed, and the case remanded for further proceedings. Day and Kirkpatrick, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the case remanded for further proceedings. Reversed and remanded. The following opinion on rehearing was filed February 4, 1903: 1. Construction of Statute: Strict Letter oe Law: Absurd Conclusion: True Intention oe Legislature: Literal Sense. In construing' a statute, the strict letter of the law ought not to be followed when such an interpretation would lead to an unreasonable or absurd conclusion. The court will endeavor to ascertain the true intention of the legislature, and give it effect, rather than the literal sense of the terms employed. 8. Bastard Child: Common Law: Definition. At common law, a bastard child was one horn neither in lawful wedlock nor within a competent time after its termination, or under circumstances which render it impossible that the husband of its mother can be its father. 3. “Illegitimate Children”: Statute: Prosecutrix. Under the statute entitled “Illegitimate Children,” prior to its amendment in 1875, an action in bastardy could be maintained by any woman giving birtli to an illegitimate child, even though begotten and born during the existence of the married state. 4. -: -: -: Action. By the amendment of the statute in 1875, which was entitled “An act for the maintenance and support of illegitimate children,” an action can bp maintained only by a woman who, while unmarried, has become pregnant with a child which, if horn alive, would be a bastard, or has been delivered of an illegitimate child. 5. Meaning of the Word “Unmarried,” as Used in the Statute. The word “unmarried” as used in the statute as amended in 1875 (sec. 1, ch. 37, Compiled Statutes, 1901, entitled “Illegitimate Children”), propei'ly refers to the status of the mother at the time her child is begotten and born, and does not relate to her situation at the time of making the complaint therein referred to.