In re the Estate of Johnson ( 1893 )

Harrison, J. (dissenting).

William B. Johnson died intestate in San Joaquin County, January 16, 1891, and on the 13th of February, 1891, letters of administration upon his estate were granted by the superior court of that county to Eugene W. Kay; April 10,1891, Mary Eliza Johnson Howell, wife of M. D. Howell, filed a petition in said court, alleging that she was the child and sole heir of the decedent, and therefore entitled to letters of administration upon his estate, and praying that the letters theretofore granted to Kay be revoked, and that she be appointed administratrix of said estate. To this petition answers were made by Kay, both as administrator and as one of the next of kin of the deceased, and also by Mollie Settle, a grandniece of the decedent, contesting the application of Mrs. Howell, and denying that she was the child of the deceased, or entitled to any portion of his estate. At the hearing before the superior court the evidence presented was limited to that involving the determination of the issue whether Mrs. Howell was the child of the decedent. The evidence offered by her in support of this averment consisted of certain proceedings taken before tile county judge of San Joaquin County July 8, 1874, for the purpose of her adoption by the decedent, under the provisions of the Civil Code. The court held that these . proceedings were not in conformity with the provisions of the code, and that the petitioner had not been adopted as a child of the decedent, and therefore was not his heir, and dismissed her petition. From the order denying her application, and the judgment entered thereon, she has appealed to this court.

The question presented for consideration upon the appeal is whether the proceedings for adoption taken before the county judge sufficiently complied with the requirements of the Civil Code to constitute the petitioner the child of the decedent. The point chiefly urged in support of the judgment of the superior court is that it appears upon the face of the order made by the county judge that he did not make any examination of the child, whose adoption was sought, as required by the code before he could make an order sanctioning the adoption, while on the part of the appellant it is contended that under the circumstances of this ease no examination of the child was required.

The evidence offered in support of the claim of adoption consisted of:—■

1. A petition by Johnson to the county judge setting forth that the child was about five years of age; that the petitioner was desirous of adopting the child, and had made a written agreement to that effect; that the mother of the child was dead.; that its father had given his consent in writing to its adoption by the petitioner, and praying the judge to make an order declaring that the child be adopted and treated by him as his lawful child. To this petition was annexed a request of the father of the child that the county judge would make the order of adoption.

2. An agreement executed by the petitioner to the father that he would adopt and treat the child in all respects as his own lawful child should be treated.

3. An order signed by the county judge reciting the filing of the petition and the facts therein recited, and the filing of the consent and the agreement, and also that “the said David G. Strahn, the father of said minor, and the said minor, Mary Eliza Strahn, and the said petitioner, being present before the county judge of said county of San Joaquin, in open court, were then and there (save and except said child) duly sworn and examined separately in relation thereto,” and ordering “ that said Mary Eliza Strahn, minor child of said David G. Strahn and Nancy Ann Strahn, be adopted, and that the said minor is hereby adopted by said William B. Johnson, under and in pursuance of chapter 2 of title 2 of the Civil Code of California, and the acts amendatory thereof, and that said Mary Eliza Strahn be regarded and treated in all respects as the child of said William B. Johnson, and that she take his family name.” These documents were severally entitled “In the County Court of San Joaquin County,” and were each indorsed by the clerk, “ filed July 8, 1874”

Adoption has the effect to change the status of an individual from that which was impressed upon him at his birth, and can-never take place unless authorized by some positive law, and then only to the extent so authorized and in the manner prescribed by the statute conferring such authority. The common law made no provision for adoption, but within the past fifty years statutes upon that subject and providing for its exercise have been enacted in a majority of the states of this country. The principles upon which these statutes are based are taken from the civil law. They are also to be found in the Twelve Tables, and were the subject of many social regulations in Boman history, and were finally embodied by Justinian in his Institutes. (Lib. I., tit. 11, De Adoptionibus.) Under this system an adoption was always attended with restrictions and made a matter of public ceremony and sanction. (Cod. Just., lib. VIII., tit. 48.)

The provisions necessary to effect an adoption vary in different states, and hence, in considering opinions of other courts, it is necessary to read them in the light of the statutes under which they were given. In many of the states the proceedings partake of the nature of a judicial proceeding, either in the form of an action in court upon notice to the interested parties, wherein a judgment is rendered from which an appeal may be taken, or, if not in the form of an action, are conducted in the presence of the court, so far as to be made a matter of record therein under its sanction; while in others the act of adoption is in-valid until it has been authenticated before some designated officer and made a matter of public record. The provisions of the Civil Code of this state differ materially from those of any other state to which our attention has been called, and are characterized by much greater simplicity. The various steps requisite to an adoption under this code are in the nature of a deed of adoption which is required by the statute to be authenticated before the county judge. Upon such authentication and sanction the act of adoption is complete, and when thus executed and authenticated becomes the only evidence by which the adoption can be established. These provisions of the Civil Code are in no respect judicial in their requirements, and are entirely dissociated from any judicial supervision or sanction. The provision for their sanction by the county judge does not make it a judicial proceeding, or subject the acts done to the rules governing judicial acts. The county judge has been selected by the legislature as the officer to be charged with the function of solemnizing the ceremony of adoption, but his duties in the exercise of that function are no more of a judicial character than would be the same duties if performed before a notary public. (In re Stevens, 83 Cal. 331; 17 Am. St. Rep. 252. See also People v. Bush, 40 Cal. 346.) “ Jurisdiction,” in the sense in which that term is ordinarily employed, is not predicable of the function of the judge in making the order which he is authorized to make under section 227 of the Civil Code, but his action thereunder resembles more the execution of a power conferred upon him by the statute. The statute has conferred upon him an authority to make the order provided in that section whenever certain conditions have been complied with, but, as the power to make the order is conditional, it is always requisite to show that the condition under which the authority could be exercised existed, before the exercise of the power can be invoked in support of any right claimed thereunder. There is no provision in the code authorizing or sanctioning the filing of the instruments with the clerk, or making a record of the act of adoption, or of the order of the county judge, either in the minutes of the court or in any of the public records of the county.

The law upon this subject as it existed in 1874 is contained in sections 226 and 227 of the Civil Code, which are as follows -.—

“Sec. 226. The person adopting a child, and the child adopted, and the other persons whose consent is necessary, must appear before the county judge of the county where the person adopting resides, and the necessary consent must thereupon be signed, and an agreement be executed by the person adopting to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated.

“ Sec. 227. The judge must examine all persons appearing .before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall henceforth be regarded and treated in all respects as the child of the person adopting.”

From these sections it is seen that the acts to be performed before the adoption is complete are:—

1. The person adopting the child and the child adopted, together with its parent or parents, must all appear before the county judge, and he must make a separate examination of each of the persons appearing before him.

2. The parents of the child must execute a written consent to its adoption by the person proposing to adopt it, and he must execute an agreement to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated.

3. After such adoption and the execution of said instruments, the judge, “if satisfied that the interests of the child will be promoted by the adoption,” must make an order sanctioning the adoption of the child.

The code is silent as to the character and extent of the examination to be made by the judge of either of the persons who are to appear before him, but, inasmuch as the evident object of this examination is that the judge may be satisfied that the interests of the child will be promoted by the adoption, it is apparent that the extent, as well as the character, of the examination must be determined by the judge according to the circumstances of each case. The provision of the section is, however, imperative and mandatory that the judge “must examine all persons (including the child) appearing before him.” The fact that the consent of the child, if under twelve years of age, is not required, does not obviate the necessity of its examination. The examination is not for the purpose of obtaining any consent, as that, both of the parent, as well as the adopter, must have been previously given, ánd is required to be evidenced by writing, but is for the purpose of satisfying the judge whether the interests of the child will be promoted by the adoption. There would seem to be a greater necessity for an examination by the judge of a child under twelve years of age than of one above that age, for as the child above twelve years of age must give its individual consent, the ascertainment whether such consent was voluntary would greatly dispense with any further examination, whereas, in the case of an infant under twelve years of age, a greater responsibility is placed upon the judge in determining whether the interests of the child will be subserved by the adoption. For this purpose the judge would naturally inquire into the character and circumstances of the person adopting, the motives influencing the parent to give its consent, the history and life of the child, and whenever the child was capable of giving expression to its feelings or wishes, ■these feelings and wishes would be not only proper but essential subjects of examination. The character of the child, its sex, its age, its feelings towards its parent, as well as toward the adopter, would all be elements for the purpose of giving to the judge information on which to base his determination.

The precise age at which an examination would be followed ■with results tending to the satisfaction of the judge cannot be fixed, by general rules, but must be left to the individual case. Even in matters which affect the interests of other persons, and where the child is without any interest, he can be a witness if over ten years of age, and also though under that age, if he is capable of receiving just impressions of the facts respecting which he is examined and of relating to them truly. (Code Civ. Proc., sec. 1880.) There is no precise age at which a child can be regarded as absolutely disqualified from testifying, and therefore it has been wisely left to the judge to determine, after an examination in each particular case, the extent to which he will prosecute his inquiries for the purpose of determining its competency. The rule which formerly obtained in England, that as the child could not be examined except under oath, its evidence was excluded unless it understood the nature of an oath, not only does not obtain in this state, but would be inapplicable to the case under consideration, as the examination of neither of the parties is required to be under oath. While an infant of only a few months of age would not be competent to respond to any examination by the judge, it is equally clear that a child of eleven years of age would be presumed to have decided preferences, which should be consulted for the purpose of satisfying the judge whether its interests would be promoted by the adoption proposed. A child of five years of age has ordinarily reached such maturity as to be able to have preferences as well as memory, and to give intelligent responses to the questions that might be put to it by the judge. It was doubtless for this reason that the legislature required that such examination should be made in all instances, and that the judge should determine in each case to what extent the examination should proceed, rather than limit the age at which it might be made. As in the case when a child is a witness upon matters between other parties, its competency can be determined only after a preliminary examination. Such examination must be had in every case under the statute in question for the purpose of determining in the first instance whether the child is competent to give answers to the inquiries, and if so, then the examination. should be continued as to the matters which may enlighten the judge in reaching his conclusion.

But it is not necessary to find a reason for the form in which the law has been enacted, or to say that because the reason which would exist in some cases does not exist in the individual case, therefore the requirements of the statute need not be observed. Laws are enacted for the purpose of prescribing a rule of action applicable to all the cases which fall within the class for which they are enacted • but to substitute the will of one man in each individual case for a general rule made for an entire class would be to subject society to a rule of men and not of law. It would be difficult to give a satisfactory reason for requiring that a summons in a civil action should be personally served upon a new-born infant in its nurse’s arms, as well as upon the person who has the custody of the infant, except that it is the requirement of the statute that in all cases there shall be a personal service upon the defendant. There would be no certainty or safety iu judicial proceedings if it were left to the arbitrament of a judge to determine in each case whether the defendant was of such tender years that it would be useless to make a personal service upon it, and therefore the legislature has wisely determined that there shall be personal service upon the defendant in all cases, as it has also said that in all cases the judge shall make a separate examination of a child proposed for adoption.

As it appears upon the face of the order made by the county judge that he disregarded this requirement of the code for an examination by him of the child, I am of the opinion that there was an essential defect in the proceedings taken for its adoption, and that the order of the judge sanctioning the adoption Avas made Avithout a compliance Avith one of the essential provisions of the code, and consequently conferred no rights either upon the person adopting or upon the child.

In thus holding that it is necessary to shoAV a compliance Avith all the requirements of the code, I do not disregard the provisions of section 4 of the Civil Code, that “its provisions are to be liberally construed, with a view to effect its objects and to promote justice.” This rule for a liberal construction is applicable only to the provisions of the code, and is limited to the objects sought to be affected. The most extended application of this rule has never justified the disregard of plain requirements of a statute, or the omission of any act which is specifically declared essential to effecting the object of the provision. “Liberal construction does not mean enlargement or restriction of a plain provision of a Avritten law. If a provision of the code is plain and unambiguous it is the duty of the court to enforce it as it is written. If it is ambiguous or doubtful, or susceptible of different constructions, or interpretations, then such liberality of construction is to be indulged in as within the fair interpretation of its language will effect its apparent object and promote justice.” (In re Jessup, 81 Cal. 419.) “The power to adopt minor children is a creation of the statute which was unknown to the common law, and the mode must be held to be the measure of the power.” (Ex parte Chambers, 80 Cal. 219.) “The right of adoption is purely statutory. It was unknown to the common law, and as the right when acquired under our statute operates as a permanent transfer of the natural rights of the parent, it is repugnant to the principles of the common law, and one Avho claims that such a change has occurred must show that every requirement of the statute has been strictly complied Avith. It cannot be said that one condition is more important than another.” (Ex parte Ciarle, 87 Cal. 647.)

The construction of a statute is the interpretation of the meaning of the legislature, and when its meaning is clear, or the language of the statute is unambiguous, there is no opportunity for construction. It is only when the language of an act is susceptible of different meanings, or when the object sought or the means provided for effecting the object are imperfectly expressed that rules of construction are invoked. The rule directing that a statute shall be liberally construed means that the terms therein used are not to be construed so strictly as to defeat the evident purpose of the statute by a strict adherence to the letter, but that, if the acts required by the statute are performed, it will be a sufficient compliance with the legislative intent, though they may not be performed in the exact mode or order prescribed by the statute. In the present case, for example, the provision in section 226, that when the parties appear before the county judge “the necessary consent must thereupon be signed, and an agreement executed by the person adopting,” does not require the literal construction that such consent and agreement are ineffective if signed prior to the appearance of the parties before the judge. The object of the statute is that the consent and agreement shall be executed and approved by the judge, and it is immaterial whether they are signed before the parties appear before him or are signed in his presence, if their execution is conceded and sanctioned by the judge. It is never permitted, however, under any rule of liberal construction to dispense with an explicit requirement of the statute, upon the theory that it could not have been intended by the legislature, or that the court or judge shall exercise its discretion in determining whether such requirement is essential; It is not within any definition of liberal construction for a court to substitute its own judgment for that of the legislature.

It cannot be presumed that the judge did any other act or made any other examination than he has recited in his order, and in the face of his recital that he examined the parties who appeared before him, “ save and except the child,” it cannot be presumed that he made any examination whatever of the child. As the order was made in the execution of a statutory authority, it was necessary to show by the order itself the existence of all the conditions under which the statute permitted him to exercise such authority, and although he was a county judge, yet the execution of this authority was not in the exercise of any judicial power, and the rules of presumption that are invoked in support of judicial action have no application.

I think that the judgment and order should be affirmed.

Paterson, J., concurred in the views expressed by Mr. Justice Harrison.