In re Petition of Van Huss

Me. Justice TomliusoN

delivered the opinion of the Court.

The petition of Walter Leon Yan Huss prayed that David Keith Yan Huss be decreed the adopted son of the petitioner. It was found by the Court that petitioner had complied with every prerequisite to the granting of the decree, except that this petitioner had not been physically present in Tennessee or on federal territory within the boundaries of Tennessee for one (1) year next preceding the filing of the petition as required by Title 36-105 T.C.A. 1959 Supplement.

*170Van Huss lias appealed on the theory that the Court erred in so construing this code section, it being an amendment to the adoption statute by Chapter 223 of the Public Acts of 1959. His insistence is that the amendment was not intended to include the situation with which he is confronted in the instant case. He says that the adoption statute extends to a citizen in the armed service who is maintaining his wife and family in his home in the Tennessee county of his “only legal residence”, and that the Court should have so held.

The child sought to be adopted was born on May 4, 1957, the issue of the marriage of Peggy Ruth Young and her then husband, William Clark Young. Young deserted this wife and child and contributed nothing to their support. Thereafter, the mother, Peggy Ruth Young, was married on May 31,1958 to the petitioner in Roane County, Tennessee, where they, Mr. and Mrs. Van Huss, have continuously since maintained their residence, and the said infant son of Mrs. Van Huss has lived in the home with his mother and the mother’s husband, the petitioner, at all times since. The petitioner husband has been a resident of that county all of his life.

Petitioner is a man of good character. He is financially able to rear and educate this child. The Department of Public Welfare has recommended this adoption as being for the best interest and welfare of the child.

However, at the time of the marriage of Peggy Ruth and the petitioner in 1958 he, the petitioner, was a member of the United States Navy. During his entire tenure in the Navy, including and up to the filing of this petition and the hearing thereon, he has been aboard ship away from Tennessee, except for short periods of time during *171the past year, while on temporary leave or furlough, and has not been physically present in Tennessee for one (1) year next preceding the filing of the petition.

As amended by the 1959 Act, in so far as material to this case, the statute reads as follows:

“Any citizen of the United States over twenty-one (21) years of age may petition the chancery or circuit court to adopt a minor child and may pray for a change of the name of such child * * *; provided further, that the petitioner or petitioners shall have lived, maintained a home and been physically present in Tennessee, or on federal territory within the boundaries of Tennessee for one (1) year next preceding the filing of the petition without regard to petitioner’s legal residence.” 36-105 T.C.A. 1959 Supplement.

The footnote to this code section correctly states the following:

“The 1959 amendment substituted the words ‘citizen of the United States’ for the word ‘person’ at the beginning of the first sentence of the section, further substituted the words ‘lived, maintained a home, and been physically present’ for the word ‘resided’ following the words ‘or petitioners shall have’ and added the words ‘without regard to petitioner’s legal residence’ at the end of the section.”

Though the reason is not apparent to this Court, it must be presumed that the Legislature had some reason in mind in making the change which the 1959 amendment brought about. The fact that the Court does not perceive the reason is no justification for disregarding the amendment.

*172The language of the amendment makes it clear that, for reasons satisfactory to it, the Legislature, without regard to where the petitioner resided, be it Tennessee, or elsewhere, required that he shall have “been physically present * * * within the boundaries of Tennessee for one (1) year next preceding the filing of the petition” as a condition precedent to a right to maintain the adoption proceedings. No contrary meaning is reasonably attributable to the language employed by the amendment.

Therefore, for this Court to say the privilege of adoption may be extended to a resident of the State, notwithstanding the fact that such resident has not “been physically present” in the State for the required twelve (12) months, is for the Court, as the majority views it, to ignore the 1959 amendment.

The law does not permit the Court to construe the adoption statute as the petitioner insists. This is because

“* * * if the actual language and provisions of the statute are plain and clear, and are devoid of contradiction or any affirmative ambiguity, so that the statute, as the result of the express provisions, is not reasonably susceptible of a twofold meaning, then there is no room for applying any other rules or canon of construction to the act.” Hickman v. Wright, 141 Tenn. 412, 418, 210 S.W. 447, 448. Gilmore v. Continental Casualty Co., 188 Tenn. 588, 591, 221 S.W.2d 814.

Another rule conclusive of this case against the petitioner is reiterated in Clements v. Morgan, 201 Tenn. 94, 97, 296 S.W.2d 874, 875 as follows:

“We are of the opinion that this statute must be complied with in all things.
*173“ (1) The right of adoption is not a natural one and was unknown to the common law. * * *
“ (2) The adoption of a child is governed by statute and to effect a legal adoption it must be strictly complied with.” (Emphasis added.)

Since there is no common law right of adoption, as observed in Clements v. Morgan, supra, no right of adoption exists in Tennessee, except such as is given by statute. As the law now stands that right is given only by the 1959 statute carried at 36-105 1959 T.C.A. Supplement. If the Court is to ignore the provisions of that statute, then the right of adoption will not exist in Tennessee. If the 1959 statute is not to be ignored, then its requirements “must be strictly complied with”.

The argument that a compliance with the 1959 statute will result in the withholding of the right of adoption from Judges, Congressmen and others who are physically away from the State of Tennessee for periods of time each year is an argument directed not at the meaning of this statute, but is an argument directed at its supposed inadvisability. Its advisability or inadvisability is none of the Court’s business. The decision of that question is solely a legislative prerogative. The Court cannot repeal it because it does not agree with it.

For the reasons stated, the majority of the Court, with Mr. Chief Justice PREWITT and Mr. Justice FELTS dissenting, feels compelled to affirm the judgment and tax the costs against plaintiff-in-error and his surety.