In re Northcutt

Mr. Justice McBride delivered the opinion of the court. At common law there was originally no legal duty of a parent to support a helpless adult child, but this defect in the law was corrected by the passage of 43 Eliz., Chap. 2, § 7, which enacted: “The father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, and impotent person, or other poor person not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person in the manner, and according to that rate, as by the justices of the peace of that county where such sufficient persons dwell, or the greater number of them at their general quarter sessions, shall be assessed, upon pain that every one of them shall forfeit twenty shillings for every month which they shall fail therein”: 1 Chitty Is Blackstone, *448, and note. Section 7054, L. O. L., which is among our very early statutes, having been passed in 1853, provides: “Parents shall be bound to maintain their children when poor and unable to work to maintain themselves; [648] and children shall be bound to maintain their parents in the like circumstances.” Section 2922, L. O. L., passed in 1854, provides: “Every poor person who shall be unable to earn a livelihood in consequence of bodily infirmity, idiocy, lunacy, or other cause, shall be supported by the father, mother, children, brothers, or sisters of such poor person, if they or either of them be of sufficient ability; and every person who shall fail or refuse to support his or her father, mother, child, sister, or brother, when directed by the County Court of the county where such poor person shall be found, whether such relative reside in the county or not, shall forfeit and pay to the county, for the use of the poor of their county, the sum of $30 per month, or such other sums as the court shall find sufficient, to be recovered in the name of the County Court for the use of the poor as aforesaid before any justice of the peace or any court having jurisdiction: Provided, that when any person becomes a pauper from intemperance or other bad conduct, he shall not be entitled to any support from any relation except parent and child. ’ ’ Prom these statutes it will be seen that a method of procedure is pointed out, which method is logically exclusive of any other. As stated by Mr. Chief Justice Wolverton, in Faling v. Multnomah County, 46 Or. 460 (80 Pac. 1009): “The policy of the law is apparent. The County Court is vested with exclusive superintendence of the poor, and the duty of a relative to support a poor relative, within the degree of consanguinity designated, is enjoined. This much is explicit and clear. The County Court is accorded the further authority, by the strongest implication, to direct such relative possessing the ability to discharge that duty. This in furtherance of its superintendence of the poor. _ The court could not very well direct the relative to discharge the duty thus enjoined upon him without according him a hearing, and to such purpose it would not be improper [649] to cite the alleged delinquent to appear before it to show canse why the direction should not be made. Several things are to be inquired into by the court before it could regularly enter the order. It should determine the degree of consanguinity, the capability of the alleged pauper, whether he has become such from intemperance or other bad conduct, and the ability of the relative to discharge the duty. Upon these questions, and others, it might be, the relative is entitled to a hearing in regular course before he can be adjudged delinquent and derelict in duty and directed to render support. Further, however, than for the determination of these things, necessary for rendering the order against the delinquent relative, we think it was not intended that the County Court should have jurisdiction. The forfeiture spoken of is entailed by refusing to observe the direction of the County Court, which gives the county a right to recover in the name of the County Court against the relative refusing to obey the order, and a proper proceeding may be instituted for that purpose before a justice of the peace or any court having jurisdiction, and it is the province of this latter court to determine as to the forfeiture and the amount proper for recovery. In such a proceeding the County Court would not become its own arbiter, but its position would be the same as any other litigant, free to establish its cause. Thus the County Court would have the means of showing what the expense would be of maintaining the pauper, which would be the proper measure of the recovery against the relative, and thus it may substantiate its cause. The statute was probably intended, not for the punishment of the relative refusing to obey the direction of the County Court, but to give a remedy to the county by which to recover the amount necessary to the support of the pauper in its superintendence of the poor.” Following the decision quoted, which we think is the only logical construction of our statutes, we conclude that we have no jurisdiction to make the order requested, and the motion is overruled. Motion Overruled. Department 2. Statement by Mr. Justice Harris. A petition was filed on December 16, 1914, by Mrs. Eva Palmerton for the appointment of a guardian to manage the estate of her father S. T. Northcutt, who owns notes and mortgages amounting to about $26,000. The petitioner is his daughter and only child. The daughter filed a petition asking for the appointment of a suitable person as guardian of the estate of the father, and alleging that by reason of his age and mental and physical infirmities he had been defrauded of considerable property and was incapable of conducting bis own business. He answered by saying that he was able to look after his own affairs, and charged that the daughter “is afraid that some portion of his estate will be spent on some person other than herself, ’ ’ and that she filed a petition for a guardian because he had planned to leave the state on account of his health, and because he intended to marry a designated woman who lives in Marion County. The petitioner replied by averring that her only purpose is to protect her father from the machinations and schemes of dishonest and designing persons. After hearing the evidence the County Court decided that S. T. Northcutt was not capable of conducting his own affairs and appointed a guardian of his estate. The appointment was set aside upon an appeal to the Circuit Court, and the petitioner is prosecuting the appeal to this court. Affirmed. For appellant there was a brief over the name of Messrs. Carson & Brown, with an oral argument by Mr. John A. Carson.