The common law afforded no remedy to compel the putative father to contribute, to the mother of the bastard child, any sum necessary for her support, maintenance and necessary expenses caused by pregnancy and childbirth.
The present Bastardy Act is designed to remedy this defect in the common law. 5 Ohio Jurisprudence, 541, 542, Section 4. As the Bastardy Act modifies the common law, the right of action under it and the form of it are wholly dependent upon the statute. 5 Ohio Jurisprudence, 548, 549, Section 7.
The provisions of the Bastardy Act applicable to the case at bar are contained in Section 12123, General Code (as amended, 117 Ohio Laws, 808, effective May 17, 1938), reading as follows:
"If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive, and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, *Page 275 caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age. In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused to pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses caused by pregnancy, including therein a reasonable amount for maintenance of said child until its death, and its funeral expenses. The court shall require the reputed father to give security for the payment of the support, maintenance and necessary expenses of the complainant caused by the pregnancy and childbirth together with the cost of prosecution. If he neglects or refuses to give it, and pay the costs of prosecution, he shall be committed to the jail of the county, there to remain, except as provided in the next following section, until he complies with the order of the court. On the judgment of the Juvenile Court, execution may issue to the sheriff as in cases of judgments for money in the Court of Common Pleas. Provided, however, that nothing in this section shall be construed as a bar to the prosecution of the accused for failure to support his illegitimate child or children under the provisions of any statute providing for prosecution and punishment for non-support of legitimate or illegitimate children."
Before this amendment the section read as follows:
"If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the bastard child and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution. The *Page 276 court shall require the reputed father to give security to perform such order. If he neglects or refuses to give it, and pay the cost of prosecution, he shall be committed to the jail of the county, there to remain, except as provided in the next following section, until he complies with the order of the court. On the judgment of the Juvenile Court, execution may issue to the sheriff as in cases of judgments for money in the Court of Common Pleas. Provided, however, that nothing in this section shall be construed as a bar to the prosecution of the accused for failure to support his illegitimate child or children under the provisions of any statute providing for prosecution and punishment for nonsupport of legitimate or illegitimate children." (110 Ohio Laws, 296, effective July 30, 1923.)
In the case of State, ex rel. Beebe, v. Cowley, supra, decided April 12, 1927, the Supreme Court had before it the question as to whether this section, in its then form, being the form last above set forth, authorized the recovery by the complainant for the expenses and time employed by her in the maintenance and care of the bastard child from the date of its birth to the date of the hearing. The court held that it did not.
Consequently whatever authority there may be for such a recovery must be found in the provisions added to that section by the amendment which became effective in 1938, subsequent to that decision.
A comparison of the provisions of the section before and after the amendment mentioned, discloses: (1) That the section in the form it was passed upon in the Cowley case, supra, authorized the court to make an order providing for the payment of the same items irrespective of whether the child was alive or dead at the time of the adjudication, while the amended form of the section authorizes the court to make orders providing for the payment of two different sets of items, some of which are common to both sets, dependent upon whether the child is alive or dead at the time of *Page 277 the adjudication; and (2) that provisions are added by the amendment authorizing the court, upon the confession of the accused in open court or upon the jury finding him guilty, if the said child is alive, to adjudge the accused the reputed father of the illegitimate child and to thereupon adjudge that he pay the complainant, in addition to the items prescribed by the section before the amendment, "a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age." The added provisions further prescribe that: "In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused to pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses caused by pregnancy, including therein a reasonable amount for the maintenance of said child until its death, and its funeral expenses."
It will be noted that the Legislature, in the enactment of the amended section, adopted apt words to prescribe that the order of the court should provide for the payment by the accused to the complainant of a reasonable amount for the maintenance of said child until its death "In the event said child is not born alive, or is not living at the time of said plea or finding of guilty." No such similar apt words are used to prescribe that the order shall provide any payment by the accused to the complainant for the support or maintenance of the child from the time of its birth until adjudication, in case the child is alive at the time of the adjudication, the only provision relating to the support of the child, if it be alive at the time of the adjudication, being that the court shall adjudge "a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age." This phrase, considered in connection with the other provisions of the section, and the absence of any words or phrases indicating a contrary intention *Page 278 clearly establishes the intention on the part of the Legislature that such adjudication, as to payment for support and maintenance, shall operate prospectively from its date for support furnished subsequent to the date of such adjudication.
The statute therefore does not authorize the court to order the accused to pay the complainant any sum or amount by way of reimbursement, or otherwise, for the support of the child from the date of its birth until the adjudication, if the child is alive at that time. The authority of the court to order any payments being wholly dependent upon the statute, the court did not err either in rejecting evidence tending to prove the expense of the maintenance of the illegitimate child from the date of its birth to the date of the adjudication, or in holding as a matter of law that the accused was not liable therefor — as these are the only assigned errors, the judgment should be affirmed.