Brinster v. Compton , 68 Ala. 299 ( 1880 )

STONE, J.

Our statutes make large provision for apprenticing pauper minors, who have no parents, or whose parents are unable to support them. See Code of 1876, commencing with section 1734. That section authorizes the judge of probate to “ bind out as apprentices the children of any person unable to provide for their support, until the age of twenty one years, if a male, and eighteen years, if a female.” Section 1736 provides that for good cause shown, the judge of probate may at any time revoke any letters of apprenticeship, and bind out the apprentice to another. And a parent, having a minor child, may, for like reasons, apprentice such minor child.—Section 1743. The statute prescribes no form of proceedings for having an infant pauper apprenticed. The duty is confided to the judge of probate, and no machinery is furnished for putting his powers into exercise. Section 1737 of the Code contemplates, that he shall take action, whenever the sheriff, a justice of the peace, or other civil officer of the county reports to him a minor under the age of eighteen years, who is an orphan without visible means of support, or whose parents have not the means, or who refuse to provide for the support of such minor ; and. be .must apprentice all other such minors as may otherwise come to. his knowledge. This, we are bound to hold, he may do ex proprio niotu. The only limitation we can find to this authority is in section 1745, which requires that the probate judge must notify the minor’s father, or his mother, if he has no father, when such father or mother is living in the county.—See Martin v. Mott, 12 Wheat. 19; Stuyvesant v. Mayor, 7 Cow. 588; Vanderheyden v. Young, 11 Johns. 165. In Owen v. The State, 48 Ala. 328, construing this statute, Peck, C. J. said : “ This jurisdictional fact the probate judges respectively must determine for themselves,_ when they assume to act in any particular case; and their judgment in the premises can only be reviewed in a direct proceeding for that purpose, and can not be impeached in any collateral proceeding. This jurisdictional fact appears to have been ascertained by the probate judge before he bound out the apprentices named in said indentures. In each indenture it is stated that the parents of the child to be thereby bound, were unable to provide for his support. . . As the mode or manner of ascertaining the jurisdictional fact, under said section, or what shall be the evidence of it, is not stated, we hold it sufficient if it be stated in the indentures themselves.” See also Cockran v. The State, 46 Ala. 714. The indenture in this case recites, that the apprentices were respectively of the ages of 16 and 11, “ the said minors having no parents to provide for them.” This case falls precisely within the influence of Owen v. The State, supra, and the circuit judge should not have discharged the apprentices in this collateral proceeding. Code of 1876, section 4962.

But there is another view of this case, equally fatal to the prayer of the petition. When an infant child or minor is out of the possession and custody of the father, and habeas corpus is resorted to by the latter to obtain such custody, it does not follow as necessary matter of right, that the prayer of the petition will be granted. The court is clothed with a sound discretion to grant or refuse relief, always to be exercised for the benefit of the infant primarily, but not arbitrarily in disregard of the father’s natural right to be preferred. If the father be reasonably suitable, and able to maintain and rear his child, his prayer should ordinarily be granted. If, on the other hand, he be unsuitable or unable properly to care for his offspring, and especially if that offspring, having sufficient judgment, prefer not to return to him, the court should grant no relief in the premies, but leave the parties in statu quo.—Ex parte Boaz, 31 Ala. 425. Under the testimony shown in this record, aside from the indenture of apprenticeship, the minors should not have been restored to .their father. He had abandoned them in their helpless infancy, motherless, and making no provision for their support; remained in a county not far remote from them for eight years, without letting them know where he was, or that he was living, and without even inquiring after them, so far as this record informs us. Conduct, so unnatural and unfeeling, appeals in vain for judicial assistance.

The case of pauper minors, if not among the gravest, is at least one of the most sacred functions the law casts on probate judges. A proper exercise of the powers the-law clothes them with, will be. a great check on pauperism, if not on crime.

The judgment of the circuit judge is reversed, and the proceedings dismissed at the costs of the appellee.