The interpretation given to Section 12123, General Code, by the majority, is in my opinion clearly wrong. The statute clearly says that when there is a finding of guilty, if the child be then alive, the judgment shall include "a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age" — not partial or limited support and maintenance. There being no language to indicate anything other than continuous support and maintenance from birth to eighteen years of age, the majority is obviously in error unless the words "weekly sum" have the effect of making the period begin at the date of judgment, when guilt has been established.
Do the words "weekly sum" fix the time when the support of a living child shall begin, or do they prescribe the method of payment for such support? That ambiguous feature of the statute presents the only question in this case. *Page 279
The case of State, ex rel. Beebe, v. Cowley, 116 Ohio St. 377,156 N.E. 214, cited in the majority opinion, holds no point of relevancy to the controversy here present. The statute under consideration there, contained nothing which justified any allowance to be paid to the mother by the father of an illegitimate child for its support. The trial court included in the judgment, following the establishment of guilt, an amount for the maintenance and care of the child from the date of its birth to the date of the judgment, a period of about twelve and a half months. The trial court considered such allowance, as well as attorney fees for prosecuting the bastardy proceeding, to be within "necessary expenses caused by pregnancy, and childbirth."
The Supreme Court and the Court of Appeals decided that the statute there under consideration, imposed no obligation on the father to support in any degree the illegitimate child, he being chargeable only with the mother's support, maintenance and necessary expenses caused by her pregnancy and childbirth, none of which items comprehended support of the child.
In the Supreme Court's opinion not one word was said regarding a period to be covered by allowance for support and maintenance of the child, for the logical reason that there could not be any such allowance.
The trial court's anomalousness in limiting the period for the child's support by the father only to the time of judgment and not also until its maturity, can be fittingly compared to its erroneousness in deciding that the statute then existing provided for any allowance.
Construing the words "weekly sum" in connection with the related language, it must be borne in mind that payment in installments has actually become a very large, highly important, and apparently permanent part of American economics.
The contract for such method of payment may properly *Page 280 cover any form of indebtedness or other liability arising prior to, as well as concurrently with, its making; indeed it is a very generally used plan for funding past liabilities or obligations whose payment is impossible, impractical or inexpedient.
By now, the courts should take notice of the facts just mentioned, which facts were doubtless in the legislative mind as well as was the additional fact that gross payments if required, could not be made in many of the cases.
Judicial instances of payment in installments abound in cases for alimony pending the suit, wherein the judgment may and generally does properly embrace an allowance, in addition to current requirements and reasonably probable future items, for such past matters as attorney fees, expenses incident to preparation of trial, and support of the spouse from the commencement of the suit. And, it is well to note, that judgments in cases for permanent alimony may be and often are appropriately payable in installments rather than a lump sum.
It is of extreme importance in interpreting the part of the statute in controversy, providing for weekly payments, to observe the provisions made to cover the instance where a child is born alive but is not living at the time of establishment of guilt. That judgment shall then embrace a reasonable amount for maintenance of the child until its death. Since support of the child by the father until it is eighteen years old, is now of the essence of a bastardy proceeding, why should there be a statutory provision for its support from birth to death, where death occurs before judgment, and nothing providing for a proper sum for maintenance of the child during the period from birth to the pronouncement of the judgment in cases where the child is living at the latter event? Is it reasonable to hold that such a situation was in the mind of the Legislature when the statute was passed? In the *Page 281 Cowley case, supra, more than a year had elapsed between the time of the child's birth and the date judgment was entered in the trial court.
The judgment of the majority in the instant case constitutes judicial legislation, namely the injection into the statute of words plainly not there in actuality or by implication, as fixing the beginning of the weekly sum as of the date of the judgment on the establishment of guilt.
Such a construction as the majority has made clearly leads to both injustice and absurdity by reason of delay attending procedure in bastardy cases, an impressive example of which existed in the case just cited.
Construction of doubtful provisions of a statute must always be with the intent of avoiding, if possible, injustice, hardship, unfairness, unreasonableness or absurdity (37 Ohio Jurisprudence, 642 to 649, Sections 351 to 353), which rule I hold requires reversal of the judgment and the remanding of the cause for a new trial and further proceedings including ascertainment and adjudication of a reasonable amount for the support and maintenance of the child prior to judgment as well as the reasonably probable value thereafter, until the child becomes eighteen years old. *Page 282