State v. Sax

¶1(dissenting).

¶2I dissent. I do not believe that the mother of an illegitimate child has any right to appeal in her individual capacity from an order of the district court approving the payment of a lump sum in settlement of the liability of the father under M. S. A. 257.28. Consequently, I think that the appeal should be dismissed for the reason that if the mother has no right to appeal under our statutes we have no jurisdiction to consider the appeal.

¶3Appellate jurisdiction cannot be conferred upon us by consent. Even though the right to appeal is not properly raised here, we cannot overlook it. Bulau v. Bulau, 208 Minn. 529, 294 N. W. 845. See, also, Jones v. City of Minneapolis, 20 Minn. 444 (491), and Anderson v. Krueger, 170 Minn. 225, 212 N. W. 198, holding that a stipulation of the parties that the case be referred here cannot confer jurisdiction withheld by the statute. In Elliott v. Retail Hardware Mut. F. Ins. Co. 181 Minn. 573, 233 N. W. 316, 317, we said:

“… Counsel for defendant has been so accommodating as not to question our jurisdiction, but that does not help plaintiff. The jurisdiction of this court on appeal does not rest upon the consent of counsel or litigants. If it does not exist otherwise, no amount of accommodation on their part can create it. The appeal must be dismissed.”

¶4See, also, Simon v. Larson, 207 Minn. 605, 292 N. W. 270.

¶5*21The right to appeal being purely statutory, we must look to our statutes for the mother’s right to be here, if she has any such right. Nothing in our statutes pertaining to illegitimate children defines who may appeal, and it is now clear that in this state appeals in illegitimacy cases are regulated by the statutory procedure of civil cases. State v. Klitzke, 46 Minn. 343, 49 N. W. 54; State v. Jeffrey, 188 Minn. 476, 247 N. W. 692.

¶6Section 605.09 provides that an appeal may be taken to the supreme court by the “aggrieved party.”

¶7We have no quarrel with the holding of the majority opinion that the mother may have an interest in the outcome of a proceeding of this kind, but the question is: Has she such an interest that she may appeal individually? It is significant that the mother here does not pretend to appeal as an aggrieved party; neither does she appeal on account of any personal interest she may have. Her notice of appeal reads:

“… that Bertha Selin, the compiainmg witness in the above entitled action and said Bertha Selin as mother of Sally Selin, the child whose paternity has been adjudged in said action, and said Bertha Selin as mother and natural guardian of said Sally Selin, a minor child, appeals … (Italics supplied.)

¶8Ordinarily, only parties of record are entitled to appeal from an order or judgment. State ex rel. Nordin v. Probate Court, 200 Minn. 167, 273 N. W. 636. Interest in the outcome alone is not enough. Singer v. Allied Factors, Inc. 216 Minn. 443, 13 N. W. (2d) 378, holding that a stockholder of a corporation has no such interest in a judgment against the corporation as to entitle the stockholder to appeal.

¶9In order to determine whether the mother in an illegitimacy proceeding has such interest in the outcome of the proceeding that she may be said to be an aggrieved party, we must examine our statutes to ascertain what rights a mother has in this type of action.

¶10At common law, the putative father was not chargeable with any duty to support an illegitimate child. State v. Lindskog, 175 Minn. 533, 221 N. W. 911, 912; State v. Johnson, 216 Minn. 427, *2213 N. W. (2d) 26, 155 A. L. R. 23. The mother had no right to recover of the putative father. Consequently, if she has any right now,' that right must be found in our statute. “Aside from the bastardy statute, there is no liability and no remedy.” State v. Lindskog, 175 Minn. 535, 221 N. W. 912, supra. It was not a crime to beget an illegitimate child at common law, nor has it been made criminal by statute. Ladd v. Martineau, 205 Minn. 129, 285 N. W. 281. Statutes in derogation of the common law should be strictly construed.

¶11It is true that under our statute a proceeding to charge the father with support of his illegitimate offspring may be commenced by the mother filing a complaint. Section 257.19. The complaint may also be filed by the county board or any member thereof, or by the division of social welfare, or any person duly appointed to perform in the county any of the duties of the division of social welfare relating to the welfare of the child. Section 257.18. In such case, the mother, under the statute, may be required to attend as a witness.

¶12The duty to prosecute is . expressly placed upon the county attorney. Section 257.19.

¶13Proceedings are instituted to provide “for the indemnity of society against the expense of the support of the child.” Reilly v. Shapiro, 196 Minn. 376, 381, 265 N. W. 284, 287.

¶14In State v. Nestaval, 72 Minn. 415, 416, 75 N. W. 725, we said:

“… the statute makes the putative father one in law for a particular purpose, viz. for the indemnity of society against the expense of the support of the child, and upon complaint of the mother or certain designated public officers an inquiry may be had as to the identity of the putative father, and upon sufficient proof he may be adjudged to pay a certain amount in support of his illegitimate child, or be imprisoned in default thereof.”

¶15With respect to the nature of the proceeding, we said in the above case (72 Minn. 419, 75 N. W. 726) :

“… But neither the common law nor statute law permits the mother of a bastard child to sue the putatwe father as plain*23tiff in her own name in the first instance, for its support, even if she so desires. The humane legislative enactment steps in, and does for the mother and bastard child what the rigor of the common law would not permit.” (Italics supplied.)

¶16From time to time our legislature has seen fit to amend our statutes relating to illegitimate children, and the rights of a mother under such statutes have likewise been changed. By our decisions, we have defined the rights of a mother under statutes as they existed at the time. Thus, in State ex rel. Schumacher v. Hausewedell, 94 Minn. 177, 179, 102 N. W. 204, 205, we held that a reasonable allowance may be made for the support of the child, to he paid to the mother under G. S. 1894, § 2044, which was the operative statute at that time, and, furthermore, that the father’s liability may be released for such sum of money or other property as “she [the mother] may agree to receive, and the county commissioners approve.” Authority for holding that the mother may compromise the liability is found in G. S. 1894, § 2041, and the county commissioners were given authority to compromise under § 2053. A settlement by the mother alone was not a discharge. State v. Dougher, 47 Minn. 436, 50 N. W. 475. Under G. S. 1913, § 3223, the mother is given the right to sue and recover omy sum of money which ought to be paid pursuant to the order and judgment of the court.

¶17In August 1916, at the request of many civic, commercial, and welfare agencies, the governor of this state appointed a commission of eminent men and women to “revise and codify the laws of the state relating to children.” This was designated the Child Welfare Commission. After a thorough study of the whole subject, the commission, among other things, made many far-reaching recommendations concerning desired changes in our laws relating to illegitimate children. See, Keport of Minnesota Child Welfare Commission, 1917. As a result of this study and the recommendations of the commission, the legislature adopted a number of amendments to existing laws, both with respect to the rights of *24the mother and the obligations of the father. L. 1917, c. 210. The purpose of the act is stated to be (L. 1917, c. 210, § 3225 [d]):

“This chapter shall be liberally construed with a view to affecting [sic] its purpose, which is primarily to safeguard the interests of illegitimate children and secure for them t,he nearest possible approximation to the care, support and education that they would be entitled to receive if born of lawful marriage, which purpose is hereby acknowledged and declared to be the duty of the state; and also to secure from the fathers of such children repayment of public moneys necessarily expended in connection with their birth.”

¶18The right of the mother to settle the liability of the father was entirely eliminated. Authority to effect a settlement was vested in the state board of control or the duly appointed guardian of the person of the illegitimate child, subject to the approval of the court having jurisdiction of the paternity proceedings. L. 1917, c. 210, § 3225(a). The statute remained as then enacted until it was again amended by L. 1941, c. 152, § 2, when the right to make such settlement was vested in the director of social welfare, subject to the approval of the court. The right of a guardian of the person of the child to make such settlement was there eliminated. The statute has since remained as so amended. M. S. A. 257.28.

¶19Prior to the 1917 amendment, the county board could settle the father’s liability. Gr. S. 1913, § 3226. The 1917 amendment limited the right of the county board to settle the liability of the father to those expenses incurred by the county for which judgment may be or shall have been entered by the court’s order. L. 1917, c. 210, § 3224. That provision has remained the same since. its enactment. M. S. A. 257.27. Since the 1917 amendment, the mother has no right to effect a settlement with the father under any circumstances.

¶20In Lawson v. McLeod, 189 Minn. 93, 97, 248 N. W. 658, 659, we said:

“As further indicative of the legislative purpose, it is to be noted that in the 1917 amendment, 1 Mason Minn. St. 1927, § 3272(a), *25the state board of control or the duly appointed guardian of the illegitimate child is authorized to make, with the approval of the court, a settlement with the acknowledged father. The mother is given no such right.”

¶21The right of a mother to sue the father was likewise greatly curtailed by the 1917 amendment. Prior to that time, the mother or the county board could sue to recover any sum of money which ought to have been paid pursuant to the court’s order. G. S. 1913, § 3223. The 1917 amendment limited the right of the mother to recovery of expenses of confinement and suitable maintenance for not more than eight weeks prior to and eight weeks after confinement. L. 1917, c. 210, § 3219. This was further limited by L. 1921, c. 489, § 3219, to such expenses of confinement and maintenance as were not included in the order of the cóurt, and our statute has so remained since that amendment. M. S. A. 257.24. Since the 1917 amendment, the mother may not sue the father except for the limited purpose authorized by statute. Lawson v. McLeod, supra.

¶22Payment for support of the child must now be made to the county welfare board or the director of social welfare. M. S. A. 257.23. “Payment to the mother is neither required nor permitted.” (Italics supplied.) Lawson v. McLeod, 189 Minn. 97, 248 N. W. 659.

¶23It is significant to note also that the rights of the mother to sue in her individual capacity for the limited purposes provided by the statute are preserved in the section authorizing a settlement by the director of social welfare. M. S. A. 257.28 contains this provision:

¶24“… Such settlement shall discharge the father of all further liability, civil and criminal, on account of such child, provided that such settlement shall not affect any liability of the father under section 257.24.”16

¶25*26The only conclusion I can come to from this expression of legislative intent is that the only right the mother has to control any phase of the proceeding in her individual capacity is limited to the right to sue the father for such expenses as are covered by § 257.24. To now hold that she may appear individually and appeal from the decision of the district court approving a settlement by the director of social welfare, which settlement she can neither make nor prevent, not only nullifies Lawson v. McLeod, supra, without overruling it, but reads something into our statutes which the legislature has obviously intentionally eliminated by the amendments referred to. Intention to change a statute may as clearly appear by the omission of something which was contained in a former statute as by adding new language. In re Estate of Cravens, 177 Minn. 437, 225 N. W. 398; State ex rel. Bergin v. Washburn, 224 Minn. 269, 28 N. W. (2d) 652. Here, the legislature has not only omitted rights which the mother formerly had, but has expressly provided what rights she shall now have.

¶26Cases from other states are of little help to us. In the first place, the rights of the mother are derived entirely from statute. The statutes in the different states vary considerably. The concept of a proceeding of this kind likewise varies. In some states they are considered to be criminal in nature, in others quasi criminal, and in still others civil. Without reference to the statutes of the state involved, it is difficult to apply decisions of foreign courts in the construction of our own statutes. Furthermore, it is almost entirely a matter of determining what the intention of our legislature was in enacting the statutes which we now have. Very few cases are to be found in which the precise question now before us has been considered. When it has been considered, it seems that the cases hold, in the absence of a statute granting the mother the right to appeal, that she has no such right.

¶27The general rule is stated in 10 C. J. S., Bastards, § 129, as follows:

“Ordinarily, only a party or person aggrieved who has been accorded such right by statute is entitled to obtain appellate review *27of bastardy proceedings. Usually, however, defendant is permitted to obtain review of a judgment or order against him, while a judgment in his favor is reviewable at the instance of the state, the mother, or some public officer or agency, according to which one has been authorized by statute to institute and prosecute the proceedings.”

¶28The only two cases cited under the statement in the above text which hold that an appeal may be taken by the mother are Crabtree v. Commonwealth, 213 Ky. 415, 281 S. W. 162, and State v. Fleming, 204 N. C. 40, 167 S. E. 483.

¶29The procedure in North Carolina under the statute is different from that which we have in our state. The trial in the first instance is before the justice of the peace or magistrate, as he is often referred to in the decisions. Under the North Carolina statute, an appeal may be taken from the decision of the magistrate to the superior court. The North Carolina statute (Code of 1927, § 267) provides for the accusation, trial, judgment, and appeal, and contains this provision:

… From this judgment and finding the affiant, the woman or the defendant may appeal to the next term of the superior court' of the county, where the trial is to be had de novo.”

¶30The Fleming case simply holds that under this statute the woman or the defendant may appeal to the superior court. Of course, that right is expressly provided by the statute.

¶31The Kentucky case (Crabtree v. Commonwealth, supra) was also decided under a statute in which it appears that the mother may institute and prosecute the action for her own benefit in her own name. Although the statute does not so expressly provide, that inference seems to follow from the cases. Kentucky Kev. St. 1948 § 406.120, provides that if the action is prosecuted by the county attorney the court shall allow him a fee, to be taxed as part of the costs. The duty to prosecute is not placed exclusively upon the county attorney as it is in our statute.

¶32*28On the other hand, the North Carolina statute makes no provision for an appeal by the state. Consequently, it was held in Myers V. Stafford, 114 N. C. 234, 241, 19 S. E. 764, that the state may not appeal from a judgment of not guilty. The question of whether the state may appeal depends upon the construction placed upon these proceedings in the various states. Where it is held that the proceeding is criminal in nature, it usually follows as a matter of course that the state may not appeal unless the right is expressly provided by the statute.

¶33The other cases all seem to hold that the mother may not appeal. The New Jersey statute provides that an appeal may be taken by the reputed father or by any municipality aggrieved. In Thatcher v. Hackett, 16 N. J. Misc. 459, 461, 1 A. (2d) 438, 439, the court held that a mother may not appeal individually, saying: ‘

“The court is without jurisdiction to entertain the individual appeal of the mother. It has been clearly pointed out by our Court of Errors and Appeals in an opinion by Judge (now Vice-Chancellor) Kays that the only proper parties to a bastardy proceeding are the municipality and the putative father. Kaufman v. Smathers, 111 N. J. L. 52; 166 Atl. Rep. 453. On behalf of the mother it is contended that under section 3 of Rev. Stat. 9:16-1, &c., she has equal authority with the director of welfare to take an appeal. That argument is without substance, if for no other reason than that the original proceedings were not maintained under that act.”

¶34In State v. Schwartz, 67 Ohio App. 69, 70, 35 N. E. (2d) 860, 861, the mother of an illegitimate child demanded of the prosecuting attorney that he appeal from a sentence imposed upon the father of such child ordering him to support the child. The prosecuting attorney refused, and the mother in her own behalf and as next friend of the child appealed. In dismissing the appeal the Ohio court said:

“This was a criminal action in which the state of Ohio was the prosecuting party. Section 2916, General Code, imposes upon the *29prosecuting attorney the duty to represent the state in such actions. Nowhere is a person interested in the results of such action, as was this child or its mother, given authority to intervene and take over any part of such prosecution. If this can be done in this case, where will the end be?”

¶35In State ex rel. Borland v. Yates, 104 Or. 667, 670, 209 P. 231, 232, where the Oregon court held that the state had no right of appeal under the Oregon statute which provides that “the defendant shall be entitled to the right of trial by jury and appeal as provided in civil actions,” the court said: “The right of appeal given by the statute is, by express terms, restricted to the defendant.”

¶36In State v. Wright, 39 Del. 552, 557, 3 A. (2d) 74, 77, the Delaware court, in holding that the state has no right of appeal under the Delaware statute, said:

“… The whole proceeding is of statutory origin — it had no existence at the common law, and the first statute in Delaware relating to the subject matter was passed in 1796. Being created by statute it is entirely regulated by that statute and if no right of appeal is there given such right is non-existent. The statute shows the only right of appeal in favor of ‘any person, against whom an order of filiation shall be made.’ Rev. Code 1935, § 3566. That of course is not the State.”

¶37In Nutt v. Arbitelli, 3 N. J. Misc. 1194, 131 A. 64, the court held that the overseer of the poor had the right to appeal under the New Jersey statute.

¶38In Waterloo v. People, 170 Ill. 488, 492, 48 N. E. 1054, 1055, the court said:

“No provision is made in the Bastardy act for an appeal by the prosecuting witness from the judgment of a justice of the peace discharging a defendant, and however the rule might have been before the passage of the amendatory act of 1889,17 since the *30passage of that act the State controls the canse of action to a certain extent.”

¶39In People ex rel. Board of Police v. Shulman, 8 App. Div. 514, 40 N. Y. S. 779, the mother attempted to appeal from an order denying her motion that the magistrate be required to return to the county court the proceedings had by them in the prosecution. In holding that the mother had no right to appeal, the court said (8 App. Div. 517, 40 N. Y. S. 781):

“… The father has no pecuniary claim on the mother nor the mother on the father in respect to a child born or likely to be born a bastard. Neither is a party to a proceeding instituted against the other, and neither has any right to conduct, control or prosecute a proceeding instituted against the other. In case a proceeding is instituted against the father and an adjudication is made against him, or if a proceeding is instituted against the mother and an adjudication is made against her, he or she may appeal from the adjudication made against him or her, as the case may be. (Code Crim. Proc. § 851 et sec.) But the mother can not appeal from any order or adjudication made in a proceeding against the father, nor can the father appeal from any adjudication or order made in a proceeding instituted against the mother.”

¶40It is true that under our statutes (§ 257.19) the proceeding may be commenced by the mother. It may also be true that she will benefit indirectly from the order of the court requiring the father to support the child, in that it will relieve her of the necessity of doing so. It is also true that under our statute (§ 257.18, subd. 1) the proceeding for determination of paternity may be commenced by the county board, or any member thereof, or the division of social welfare, or others designated by our statute. If it is so commenced, may the mother still appeal ? If she may, from what determination? May the county board likewise appeal? Obviously, these questions must be answered in the negative. Kirchoff v. Board of Co. Commrs. 189 Minn. 226, 248 N. W. 817. If the *31trial of the action against the father results in a verdict of not guilty, may the mother, as an individual, likewise appeal from that decision? It seems to me that the statute gives her no such right. How, then, can it he said that she has a right to appeal from the court’s approval of a lump-sum settlement made by the director of social welfare under express authority granted to the director alone by our statute when she can néither make nor prevent such settlement in her individual capacity?

¶41However sympathetic we may feel toward the mother of an illegitimate child, it seems to me that the whole question before us lies within the legislative field. The legislature could have given the mother the right to prosecute the action in her own name, to settle the liability of the father, or to appeal, or could have given her all such rights. The plain fact is that the legislature did not do so, but, on the contrary, carefully defined what rights the mother has, and it does not seem to me that we have any power to enlarge those rights.

¶42Beigler v. Chamberlin, 138 Minn. 377, 165 N. W. 128, L. R. A. 1918B, 215, cited in a footnote in the opinion to which I dissent, did not involve the obligation to support illegitimate children. On the contrary, it involved the right of a mother to recover from a divorced husband support which she had paid for minor children. Of course, even under the common law, a father was obliged to support minor children who were born of lawful wedlock. The same is true under our statute. This is not true of illegitimate children. Under the common law, the father was under no obligation to support such, and we must find the obligation and the rights of the parties in the statutes themselves. Furthermore, the above case was decided November 23, 1917. L. 1917, c. 210, became effective January 1, 1918. Prior to that act, the mother could sue the father individually under the then existing statute. Subsequent to the effective date of the act, she had no such right. That alone would destroy the case as authority for the proposition that the mother has the right individually to sue the father. The same is true of many of our old cases. In applying them to our present *32statutes, we must first determine what changes have been made in the statute since the decision was rendered.

¶43If we refer to the Report of the Minnesota Child Welfare Commission of 1917, it is apparent that the very basis of its recommendations was that the responsibility for safeguarding the rights of the infant was to be placed somewhere else than with the mother, and that is more particularly true when we come to consider the question of determining or settling the liability of the father than anywhere else. In its report to the governor (p. 13), the commission explained its position thus:

“… Bill No. 1, … gives the Board of Control a duty toward the child, and the commencement of proceedings to establish paternity will no longer be contingent, as at present, upon considerations other thorn, the primary one of the child’s welVbevng.” (Italics supplied.)

¶44This is also evident from the purpose of the act as expressed by the legislature (L. 1917, c. 210, § 3225 [d]), set forth supra. It is significant that in none of these expressions of intent or purpose is the interest of the mother taken into account. It is my opinion that the mere fact that she has an indirect pecuniary interest is not enough to permit us to say that she may take over the prosecution, which has been vested in the state, and appeal or prosecute the action in her individual capacity. I think that the appeal should be dismissed.