People v. Mitchell

By the Court, Johnson, J.

Conceding the order of filia-' tion and the bond in question to have b&en within the jurisdiction of the superintendents of the poor of 'Wayne county, they made no such compromise and arrangement with the defendant. Mitchell, relative to the support of the bastard child, as the statute contemplates. What they attempted to do was a mere evasion of the object and intent of the statute, and a fraud upon its provisions. They had, most clearly, no. authority or power whatever to discharge the putative father from the obligation he had entered into with the town, and relieve him from it altogether, without some compensation or equivalent which would effectually assure the support and maintenance of the child in the manner contemplated by the statute, or at least tend to-assure such support. By section 69 of the statute for the support of bastards, (1 R. S. 656,) the superintendents of the poor of any county are authorized to make such compromise and arrangements with the putative fathers of any bastard children, within their- jurisdiction, relative to the support of such children, as they shall deem equitable and just, and thereupon to discharge such putative fathers from all liability for the support of such bastards. The compromise and arrangement must relate wholly to the support of the child, and in no respect -to the depriving it of support. If by the arrangement nothing is taken or secured for the support beyond contingency, the superintendents exceed their powers, and the discharge is void. The nature and kind of compromise contemplated will be more fully seen by referring to the act amending the law for the support of -bastards, passed in 1838, (chap. 202,) which is incorporated in the later editions of the revised statutes, as sections 74 and" 75 of the act for the support of bastards. (1 R. S. 656.) The first section of this act provides that whenever such a compromise shall be made, the mother of the child, "upon giving security for its support, “ shall he entitled to receive the moneys paid or secured by such putative father as the consideration of such compromise.”

The second, section provides that in case the mother shall be unable to give such security but shall be willing to nurse and take care of the child, she shall be paid the same weekly allowance for nursing and taking care of the child, out of the moneys paid by the father, on such compromise, as he shall have been liable to pay by the order of filiation. These last provisions of the law were wholly ignored or disregarded by the superintendents in the compromise they undertook to make. The law always secured to the mother of a bastard child its care, custody and possession. Such was the common law, and our statutes pursue the same policy in all cases where the mother chooses to keep her child. The common law never gave the putative father of such child any right to its custody, and no provision of our statute, secures to him any such right. (Robalina v. Armstrong, 15 Barb. 247.) He is under no legal obligation for its support and maintenance, nor can he be chargeable with it in any other way than than that provided by the statute. (Moncrief v. Ely, 19 Wend. 406. Birdsall v. Edgerton, 25 id. 619.) Unless indeed upon his express promise, founded upon the order of filiation. It will be seen, therefore, that the compromise which the superintendents undertook to make in this case, was in direct and plain contravention, not only of the letter of the statute, but of its entire spirit and policy, also. In fact they made no compromise with the putative, father, or arrangement of any kind, for the support of the child. He neither paid any thing, nor gave any obligation to pay any 'thing, or to keep and support the child himself. He paid nothing and promised nothing. The entire scope and effect of the proceeding was to deprive the mother of the right which both the common law and the statute secures to her, and in case she refused to relinquish it, to deprive, absolutely, the child of all the means of support which the law had secured to it. To call this a compromise under the sanction of the statute, would be an abuse of language. If she refused to give up the child to him he was to be discharged from his bond for its support. This was the sole consideration of the agreement to discharge, for he agreed to nothing. If it could be said that the order of the superintendents and the copy of the record afforded some evidence of his parol promise to take and support the child, it was only a promise upon the condition that the mother should give up the child to him. Her clear right was, to have and retain the custody and care of the child, in case of a compromise. The condition being one which neither party had the right to make, or the power to fulfill, as against the mother, would scarcely support the promise, if otherwise unobjectionable. Besides, the statute does not contemplate any such conditional arrangement. But the only promise there was, on his part, was" rendered entirely nugatory, by the refusal of the mother to deliver the child to him upon this unauthorized and void order of the superintendents, and the discharge has nothing to support it, but the refusal of the mother to yield to an unlawful demand.

[Monroe General Term, September 5, 1865.

The superintendents had no power to discharge the putative father upon any such ground; and his obligation given in pursuance of the order of filiation, remains in full force as though no discharge had ever been attempted.

I am also inclined to the opinion that the county superintendents had no jurisdiction in the matter. The several towns in Wayne county take care of their own poor. The poor there, are a town, and not a county charge. The town, here, had secured the maintenance and support of the bastard child in question, 'by regular proceedings under the statute, and I much doubt whether it was competent for the superintendents in such a case to interfere and change or modify the security thus obtained by the town for its own exclusive benefit. It is unnecessary, however, in the view I have taken, to pass upon this question. It is enough that there is no valid discharge from .the obligation. The plaintiffs were entitled to recover the full penalty of the bond. The judgment must therefore be reversed, and a new trial ordered, costs to abide the event. Judgment accordingly.

Johnson, JS, Darwin Smith and James C, Smith, Justices.]