Ex Parte Davidge

Two propositions submitted in this petition for rehearing, though fully considered by the Court, were not discussed in the opinion, because the law as to them was regarded too clear in principle to require special attention. Indeed, it was supposed they were not especially relied on by respondent's counsel. Elaborate argument, however, is now submitted in support of respondent's view and the propositions will be separately considered, although they are not regarded serious enough to justify a rehearing. Respondent first submits:

"That the Court has overlooked the fact that the respondent has been duly appointed by the probate court of Greenville County guardian of both the persons and estates of the infant children; the writ of habeas corpus can issue only in cases of illegal restraint, and so long as the said order of appointment is unrevoked, the custody of said children under said order cannot be illegal."

The act of 1824 (6 Stat., 248), gave to the ordinary the power to appoint guardians of the persons and estates of minors in certain cases. The act of 1839 (11 Stat., 44), entitled "An act concerning the office and duties of ordinaries," conferred the power to appoint guardians of estates of minors only. Both of these acts were repealed in 1872. While the court of probate is, by the Constitutions of 1868 and 1895, given general jurisdiction of business pertaining to minors, the jurisdiction and disposition of their persons is not expressly conferred. Section 38, Code of Procedure, provides as follows:

"The judge of probate shall have jurisdiction in relation to the appointment and removal of guardians of minors, insane and idiotic persons, persons non compotes mentis, and in relation to the duties imposed by law on such guardians, and of the management and disposition of the estates of their wards."

Certainly it cannot be contended this enactment expressly confers upon probate courts the power to appoint guardians of the persons of minors. It is to be observed further, that the provisions of chapter 83, article I., of the Civil Code, entitled, "Concerning Guardians in General," seem to relate to the estates of wards and not to the custody of their persons. It might be argued from the omission of the express authority to grant guardianship of the person to the court of ordinary, and its successor, the probate court, that the law makers intended to deny to these courts the right to do more than appoint guardians of the estates of minors.

But if it be conceded that the probate court may appoint a guardian of the person of an infant, nevertheless, even if our statute law was silent as to the parent's rights, it would be most extraordinary and revolting to hold that such guardian appointed without notice, on his own ex parte application, could obtain the custody of an infant and withhold it from the father, its natural guardian, on the ground that the guardian's custody would not be illegal. The superior claim of the father as the natural guardian to the custody of the child over that of the official guardian is universally recognized. But our statute law is not silent, for it expressly gives to the father the right to dispose of the custody of an infant by deed or will. Civil Code, sec. 2689. His power to dispose of its custody necessarily implies his legal right to the custody against the world, and makes the custody of a guardian and its restraint of the child from the father illegal. It is true, this right of the father as the natural guardian is subordinate to the interest of the child, and may be forfeited by him, but it is not subordinate to the claims of an official guardian.

But aside from the provisions of our statute, courts have not hesitated to exercise their chancery powers in habeascorpus proceeding to adjudge the custody of children, especially to restore those of tender years to the father or mother as the natural guardian against the official guardian, or any other person having charge of them. As it is said in Hurd on Habeas Corpus, page 453, "The use of the writ of habeascorpus in this class of cases, infers some modification of the general idea of imprisonment, and an extension of the original design of the writ.

"The term imprisonment usually imports a restraint contrary to the wishes of the person; and the writ of habeascorpus was designed as a remedy for him to be invoked at his instance, to set him at liberty, not to change his keeper. But in the case of infants, an unauthorized absence from the legal custody has been treated at least for the purpose of allowing the writ to issue, as equivalent to imprisonment; and the duty of returning to such custody, as equivalent to a wish to be free. It has been held that the writ may not only issue without privity of the child, but against its express wishes." 15 Am. Eng. Ency., 150-185. The people v. Mercein, 8 Paige Ch., 47; Gwynn v. McCauley, 32 Ark. 97; Richards v. Collins, 17 Atl., 831 (N.J.); Buckley v. Perrine, 34 Atl., 1054.

The second proposition is "that this Court is without jurisdiction to order these children into a foreign jurisdiction." The Court has only ordered the custody of the child, Alicia Hayne Davidge, to be restored to the father. Without any reference to the merits of this cause, it would hardly be contended that this Court would be impotent to aid a father to recover the custody of his child illegally detained in this State, merely because he intended to take it to his home in another State. Cases might arise where the Court, in the interest of the children, would refuse to permit their removal, or allow it only on terms. But, as said by Chancellor Walworth, in Wood v. Wood, 5 Paige Ch., 595, 604: "It must be a very extreme or special case, however, which would induce this Court to interfere with the natural rights of a parent in this respect." As has already been held, such a case is not here presented.

By reference to the opinion heretofere rendered, it will be seen that other points mentioned in the petition are fully considered and decided. It only remains to say that after a full hearing, it is manifest the judgment may not now be opened to allow the respondent to offer further testimony as to existing facts, upon the mere vague intimation that additional evidence might possibly be obtained by further investigation.

The petition for rehearing is refused.