McLain v. Meadows

FINLAYSON, P. J.

In this action, brought under section 196a of the Civil Code, the mother of an illegitimate child sues the father to compel him to contribute to the child’s support. From a judgment for plaintiff, defendant appeals.

[1]

Section 196a, added to the code by the statute of May 22, 1913 (Stats. 1913, p. 218), reads: “The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil’ suit to enforce such obligations may be maintained in behalf' of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.”

[403]

The child was horn March 28, 1913. Defendant himself is a minor, though subsequent to the commencement of the action he took unto himself a wife and is now a married man.

It is contended that, because the child was conceived and born before the legislature enacted any legislation making the father of an illegitimate child liable for its support, defendant cannot be held liable without giving the statute a retroactive effect. This objection is based upon a misconception of the purpose and nature of the action and of the code provision under which it is brought. By the great weight of authority—with which we agree—the proceeding is civil, not criminal, and its object is not the imposition of a penalty for an immoral act, but merely to compel the father to provide for the support and education of his offspring and thus keep it from being a charge upon the community. In the absence of any legislation creating a legal liability, there rests upon the parents of an illegitimate child a natural obligation to support it; and a statutory provision such as that contained in section 196a, adding legal sanction to the parents’ natural and moral obligation, is an enactment in the exercise of the state’s police power to compel those who are responsible for the child’s existence to bear the burden of the expense that its existence necessitates.

(State

v.