ON APPLICATION NOR REHEARING.
FRICK, J.Counsel for appellants have filed a petition for rehearing which is supplemented by a very lengthy argument. There is nothing contained in either the petition or the argument, however, which was not presented on the first hearing except, perhaps, that Mr. Harrison cannot sustain the action, and even that was anticipated by the Chief Justice in his dissenting opinion. Some of the questions originally argued are now greatly enlarged upon. It is not necessary to outline counsel’s contentions, except to say that, with perhaps one or two exceptions, they are fairly reflected by the Chief Justice in his ojiinion upon the petition for rehearing to which my attention has just been directed. While counsel in their argument in support of the petition for rehearing broadly charge that in my former opinion I departed from the record, yet the only instance in which the charge has any foundation in fact is that in the original opinion I quoted a statement made by Mr. Harker as having been made at a particular conversation, when the truth is that the statement was in fact made in another conversation, and at another time. What I said respecting the statement, while correct so far a.s the facts are concerned, was incorrect only with respect to the time when it occurred. The inaccuracy, as counsel well knew, was merely inadvertent and thoroughly *627harmless. This one instance must suffice as .a. sample of many other so-called inaccuracies that I am charged with. The judgment of this court must, however, rest upon the whole evidence', including admissions and denials of all of the witnesses, and the presumptions arising from the cor■rectness of the judgment of the trial court, and not upon the ■detached declarations by either one or the other of the parties, or by merely resting a conclusion upon the statements ■of one side regardless of the denials of the other.
I wrote the original opinion early.in December, 1913, ■and immediately thereafter passed it to the Chief Justice, and since then I have had ample time and opportunity to «consider what I there said. Moreover, since then I have ■again gone over the record carefully, and, notwithstanding the very vigorous and, in parts, somewhat heated arguments of counsel, I see no cause, either subjective or objective, for ■changing my views. ‘Nor do I perceive wherein I have transgressed against judicial rectitude. 1 am sustained in this view for the reason that entirely independently from my examination, my Associate, Mr. Justice Straup', has since then also again carefully read the record, and has reached the same conclusion he reached before.
In view of many things that are said by counsel and approved by the Chief Justice in his la.ter opinion, I might be justified in attempting a reply. I refrain from doing so, not because a complete answer to all that is now claimed is not at hand, but I do so because it must be apparent to all that any answer I might make could in no way convince counsel, and to all others my opinion, as supplemented by the concurring opinion of Mr. Justice Straup, speaks for itself.
It may, however, not be improper for me to suggest what •seems to have escaped counsel, that most men are prone to become „partisan in precisely the same degree that they be•come the champions of either persons oir causes, and that'under such circumstances they soon develop that condition of mind spoken of by the apostle in which, figuratively speaking, they “strain at gnats, and swallow camels.” Any an*628swer, therefore, that I might make would be impotent and would engender heat rather than diffuse light. I shall thei’e-fore, refrain from any further comment upon the facts, except incidentally.
It is also again strenuously insisted that the majority has not only departed from the rule laid down by this court in the cases of Stanford v. Gray and Hummel v. Parrish, but that those cases by the present decision are overruled, and that for that reason the appellants have been deprived of some supposed constitutional rights. In making this contention, counsel and the Chief Justice entirely overlook the potent fact that others may not be and are not bound to place the same construction on those cases that they do. "While I freely grant them the right to follow their own construction, yet I cannot be influenced in what my judgment and conscience approves simply because some one may disagree with my construction of those cases. The reasons that impelled me to concur in both of the cases referred to are plainly stated in my concurring opinions. The reasons that constrain me now to refuse to rule this case by what is said in those cases I have also stated in my former opinion. I do not say that he who cannot perceive a distinction between this case and the two cases referred to is either judicially blind or unfair; but I do say that to. my mind the distinction is as clear as it well can be. In both of those cases we were asked to send the child to a home without a father. Not so here. In this case the child has become legitimated, and now comes into her own. Moreover, had the mother in the Stanford Case merely, by oral arxangment, relinquished the custody of her child for the short space of three weeks and three days, at which time she had recalled and revoked the so-called gift, that case would have been decided differently. The same may be said of the Hummel Case. In the latter case, through a long series of years, the environment of the child was such that it would have been detrimental to its welfare to have changed such environment by surrendering it to its mother. There are other features that distin*629guish this case from the two referred to; but it is needless to dwell upon them now.
13 The fact that Mrs. Harrison revoked the so-calléd gift and demanded the custody of her child from appellants is not, and cannot be, disputed. The effect of that demand is, however, sought to be minimized by the claim that Mr., and not Mrs., Harrison is the plaintiff in this action, and that he made no demand until a long time thereafter. This, to say the least, is a novel method of overcoming a demand by the mother of the child. But this contention is quite as devoid of merit as are the others. At the very outset of my former opinion I directed attention to the fact that Mrs. Harrison joined with her husband in claiming the child, and approved all that he had done in bringing the action. She, although not named as a party to the action, was nevertheless a claimant, and as such, under every rule of res adjudicaba, Avould be and is bound by the judgment. This is elementary, and it is so whether we regard this as an equitable proceeding, or whether we regard it as merely an application for a writ of habeas corpus. Mrs. Harrison having joined her husband in claiming the child ' in this action, she stands before the courts precisely the same as though she were claiming as a party thereto.
But the equities of appellants are again and again insisted upon as constituting a controlling factor in this case. C pointed out in my former opinion that, had appellants yielded up the child when it was demanded by its mother when but three weeks and three days had elapsed, their equities would be of small proportions. Having refused to surrender the child then, their claims rest upon “self-made ground,” and therefore ought not to prevail.
14 But it is again insisted that Mr. Harrison told the appellants at the hospital a short time after Mrs. Harrison had made the demand that they could keep the child. Mr. Harrison denied appellants’ statements in that regard. Not only is this denial ignored, but the contention is seriously made that although‘Mr. Harrison cannot sustain an action, not even with the consent' of the mother *630■of the child, yet he could create equities in favor of appellants by some statements that he made in her absence. Could ■inconsistency go further than this % There is, however, another factor which, in a measure, corroborates Mr. Harri- . son’s claimed denial. I have already referred to it in my former opinion. It is this: Immediately after appellants saw Mr. Harrison a.t the hospital, when they claimed he told them they might have the child, they went to see an attorney for the purpose of legally adopting the child. Under our statute, if the child be legitimate, and the parents are living, ■the consent of both parents is necessary to a legal adoption, and, if the child be illegitimate, the consent of its mother, if living, is necessary. Assuming, therefore that some oral understanding is entered into between parties concerning the custody of a child yet such an arrangement could be avoided by either one or both of the parties in any case at any time before the statutory consent is in. fact given, and the court has entered a judgment of adoption, as required by the statute. The statute therefore clearly, impliedly at least, authorizes a revocation of merely oral arrangements at any time before its provisions are complied with. But we are •charged with holding that a parent may reclaim his child from those into whose custody he has given it at any time. All we decide and can decide is that a revocation which is made within three weeks and three days under the circumstances of this case is proper, and that, when a revocation is thus timely made, parties with whom such an arrangement is made cannot prevail as against the parent upon the ground that their equitable rights to the possession of the child are superior to those of the parent. But in this connection Mrs. Harrison’s conduct in authorizing Mrs. Phillips to give the ■child away is held up against her in every possible light, except in that light which, in my judgment, a proper regard for human frailties requires. I do not concede it to be my •duty to assume the role of a moral censor, and as such pass judgment upon the shortcomings and frailties of humanity at large, or of any individual in particular. I conceive it to 'be my duty to administer the law to all alike, and to protect *631tbe civil rights of the unjust, as well as the just. I am not here either to punish or reward any one. Counsel forget that, while Mrs. Harrison may not be entitled to all the claims of ideal motherhood, she nevertheless is not an outcast, and the immortal lines of - Coleridge still apply to her:
“A mother is a mother still, The holiest thing alive.”
While I am a total stranger to all of the parties to this action, and therefore can have no bias either for or against either of them, I nevertheless assert, and I trust I do so with becoming meekness, that in my judgment there is absolutely nothing in this record which justifies either the fervid eulogy of'appellants or the severe criticism of the Harrisons. If the Chief Justice’s conclusion that because of their conduct, the Harrisons are unfit persons to have the custody of their child is sound, then it must logically follow that they are unfit to have the custody of any child that may hereafter be born to them. Moreover, if a hard and fast rule is to control, it follows that if the Harrisons, because of their moral delinquencies, are both legally and morally unfit to have the custody of their offspring then any other couple who fall into the same predicament are unfit, and all such must yield up the custody of their children when demanded by some more virtuous citizen. This conclusion is manifestly unsound. Both men and women, when young, may go wrong sometimes, and yet in after years develop into good and moral members of society. I am therefore not at all impressed with nor affected by the contention that because the Harrisons are the father and mother of a child born to them out of lawful wedlock, and because she for a time permitted her pride to overcome her motherly instincts, that she for all time must be deemed an outcast, if not an outlaw. Neither do I agree with the Chief Justice in his conclusion that this decision will foster, if not encourage, immorality, nor do I share his solicitude that good people will be discouraged from reclaiming unfortunate children. While I, knowingly, shall do nothing to discourage any good people from taking and holding any unfortunate child, yet if, in *632order to encourage sucb people to do so, I must consent to •sacrifice the rights of both the natural mother and the child, the encouragement will not be given. If the Chief Justice labors under the impression that this decision will be followed by any number of people, however small, as a moral guide, he had better be undeceived. In view of the great length of our opinions in this case, but few, not excluding lawyers, will ever read them, and, if we shall keep on adding installments, none will ever have the time to do so. The -only real effect of this decision will be upon the appellants and the Harrisons, and they won’t care to read it.
15 Finally, it is charged that the majority of this court has •denied appellants the equal protection of the law. That is, that we have sinned against the fourteenth amendment to the federal Constitution, which in the minds -of many, like charity, covers a multitude of sins. This claim, at least, possesses the distinction of novelty, if nothing else. But the claim is not more novel than is the method by which it is thrust upon us. The question was not ■even mooted in the court below nor in this court on the first hearing, nor is it even mentioned in the petition or argument for a rehearing, and yet the Chief Justice is of the ■opinion that we have as grossly erred in that direction as we have in all other directions. For the reasons just stated, however, we are not only relieved from giving the matter any consideration, but we could not properly do so if we would.
I am firmly convinced that it is not only for the best interests of the child in question that this litigation end here, but I am also convinced that it is also for the best interests of all concerned, not excluding the public generally, that it now end.
The petition for a rehearing is therefore denied.
STBAUP, J.I, too, think the petition should be denied. Everything presented by it was heretofore presented, considered, and •determined. I have, however, re-examined the record, and *633witb my Associates further considered the case. I am still satisfied the findings of the court below are supported by sufficient evidence, and that the judgment is right and should stand.
HcCABTY, C. J.I am convinced that a rehearing should be granted. The prevailing opinion not only necessarily repudiates the doctrine upon which the Gray and Hummel Oases were ruled and decided, but it establishes a precedent, the inevitable-effect of which will be to deter, if it does not wholly dissuade, kind, sympathetic, and benevolent people of this state from receiving into their homes for adoption infant children who have been cast away, deserted, and abandoned by their-parents, as the child in question was cast away and abandoned, because, manifestly, no one would be willing to take one of these unfortunate children to rear and bring it up as his own if, as declared in the prevailing opinion, the natural parents may at their pleasure “revoke” or “recall” their act by which they intentionally and voluntarily relinquished the custody of the child to another, and recover possession of it “at any time,” regardless of the effect such recall or revocation may have on the interest and welfare of the child. In view of the far-reaching, disastrous, and baneful effect that the prevailing opinion must necessarily have-on the lives and destinies of many of these waifs, and particularly on the life of the child in question, I am impelled to make a few observations regarding certain propositions discussed in the prevailing opinion that were either not referred to or but briefly discussed in the foregoing dissenting opinion, and to contend, as vigorously as I can, on moral, legal, equitable, and constitutional grounds, against the result arrived at in the prevailing opinion.
A perusal of the prevailing opinion in connection with the record ináde in the lower court will show that my Bi’ethren have misconceived the case as to who is the party plaintiff, and have also misconceived the facts, and hence have made a misapplication of legal rules and principles to the facts. *634It will also be observed that they bave inadvertently overlooked certain findings of fact made by tbe court, and bave assumed tbe existence of findings of fact tbat were not made by tbe trial court.
It will be seen by examining tbe pleadings tbat J. B. Harrison is tbe party plaintiff in tbe case, and tbat David Ilarker and Lucy Harker are tbe only defendants. Mrs. Harrison was neither a party plaintiff nor defendant, and -ber rights in tbe premises were not, in a legal sense, involved. Nor was there any adjudication of ber rights by the trial court. Tbe decree, so far as material here, recites:
“That tbe said J. B. Harrison, petitioner, is entitled to the custody and control of said Gladys Harrison, and tbat be is hereby awarded tbe immediate custody and control of tbe child.”
While it was proper to introduce evidence showing tbe circumstances and conditions under which Mrs. Harrison gave birth to tbe child, and tbe disposition she made of it immediately after it was born, and ber attitude towards it for ten months thereafter, for tbe purpose of enabling tbe court to determine whether it would be for tbe present interest and future welfare of tbe child to leave it with tbe Harkers or to award its custody to Harrison, such evidence, however, could not, under any recognized rule of law or practice, be considered for tbe purpose of determining or adjudicating any claim of right Mrs. Harrison might make to tbe custody of tbe child, because, as stated, she is, in a legal sense, a stranger to tbe action. It seems, however tbat tbe judgment is affirmed, on tbe theory tbat she is tbe real party plaintiff, and tbat it was some claim of right asserted by her to the custody of the child tbat the trial court adjudicated.
In tbe prevailing opinion it is said:
“I think Mrs. Harrison fully atoned for her weakness and wrong, and it lies neither in the mouths of the courts nor in the mouths of appellants to say that she shall he deprived of the right of parentage because of what she did under the circumstances.”
*635Tbe trial court neither considered, granted, nor denied ber right in that regard. She is not before the court seeking vindication for her conduct, or asking that her rights in the premises be adjudicated. The rule is elementary that “the decree must be confined to the interests of the parties before the court.” 16 Cyc. 4-Y9, and notes. Mrs. Harrison not being a party to the action,, the trial court could not adjudicate any claim of right she might make to the custody of the child. 5 Ency. PI. & Pr. 955.
As I have stated, it seems that the case is considered and discussed in the prevailing opinion on the theory that Mrs. Harrison, who is not a party but a stranger to the action, is the party plaintiff. In fact, she is in effect substituted and treated by this court as the party plaintiff, instead of Harrison. 'It is said in the prevailing opinion:
“But have appellants a right to the child’s custody for the reason that it is for the best interest and welfare that it remain with them? Upon that question we have the findings and judgment of the trial court against them.”
I' am unable to agree with my Brethren that the trial court made any such findings of fact, or that any such inference or deduction is permissible or can be drawn from the findings that were made. The only finding of fact made by the lower court as to the fitness of Harrison to have the control and custody of the child is as follows:
“That petitioner (Harrison) is a man who owns considerable land in his own right, and at the time of said hearing was farming other land, and pa’id rent therefor, and was, at the time of said hearing, building a house for himself and wife; that he is an able-bodied man, and is in as good financial circumstances as the said David Harker, and is equally as well able to care for, protect, and educate the said infant child as the said David Harker.”
It is plain that these findings refer only to Harrison’,-! ability in a financial sense to care for, support, educate, and furnish the child a home, and are based solely on the evidence tending to show the amount and kind of property *636owned and possessed by him. The trial court, neither ex pressly, impliedly, nor otherwise, held in the findings of fact, conclusions of law, or decree that it is for the best interest and welfare of the child to be taken out of the custody of the Iiarkers and delivered into the custody of the Harri-sons. As pointed out in the former dissenting opinion filed in the case, the admitted facts absolutely precluded the court from making any such finding or decision. Again, it is said in the prevailing opinion:
“Conceding that she grievously erred and had wronged the child, is that sufficient to shut the door of mercy against her for all time?”
As I have pointed out, Mrs. Harrison is not before the court seeking a vindication for what she did, nor is she before the court asking that it be merciful to her. This controversy involves only certain legal and equitable rights of I. B. Harrison, the Harkers, and the child in question. In determining these legal and equitable rights of the respective parties, including those of the child, this court is committed to the following doctrine as announced in the Gray Case:
'‘Where a parent in writing voluntarily relinquishes and surrenders the custody of his infant child to the custody of another, he cannot recover the custody of the child in his own right; and, where the parent in such case comes before the court seeking to recover the custody of the child, the burden is on him to show not on his own behalf, Hot on behalf of the child, that it is not receiving the proper care, or that its physical, moral, and intellectual training is not what it should be." (Italics mine.)
The prevailing opinion necessarily repudiates this doctrine and overrules the Gray Case, because Harrison did not show, nor was he required to show, “on behalf of the child that it is not receiving the proper care, or that its physical, moral, and intellectual training is not what it should be.” But, on the contrary, the undisputed evidence conclusively shows that the child has received, and will continue to receive so long as it is permitted to remain with the Harkers. better treatment and will be surrounded with more whole*637some influence, and that its moral and intellectual training will be far superior than will be accorded to it in the home •of the Harrisons. The interest of the child should not, and in fact cannot without offending against law, equity, and justice, be prejudiced because of the sympathy the members of this court may personally feel for Mrs. Harrison, who, in •a legal sense, is not even a party to the proceedings. Mr. Justice Frick, in the prevailing opinion (referring to the ■Gray and Hummel Oases), says:
“We have not the slightest disposition either to modify or depart in any degree from the rule laid down in those cases. The rule, in my judgment, is not only the correct one, hut it is the one that is supported hy the great weight of authority.”
If the rule announced in the Gray Case, to which I have referred, is not repudiated but merely suspended as to this case, then it necessarily follows that the child is denied “the equal protection of the laws.”
It is said in the opinion overruling the petition for a rehearing that Mrs. Harrison, “though not named as a party to the action, was nevertheless a claimant, and as such, under the rule of res ad judicata, would be and is bound by the judgment.” In other words, we are told that a person who is not a party to an action, but who approves of the bringing of the suit, and has an interest in the subject-matter in litigation, is bound by the judgment rendered in the cause. The unsoundness of such a proposition is so manifest that there is no room for serious discussion. For example, sup^pose the judgment in this case had been in favor of the Harkers and against J. 33. Harrison, would it be seriously contended that Mrs. Harrison would be bound thereby, she not having been made a party to the action? I think not, and I venture the statement that no authority can be found that so holds.
In the prevailing opinion it is said:
“While the mother’s conduct clearly manifested an intention to give the child to some one, it nevertheless . . . does not necessarily evince an intention to permanently abandon the child to any fate that thereafter might befall it.”
*638It is respondent, not Mrs. Harrison, who is before the-court seeking to obtain tbe custody of tbe child. He knew' before the child was bom that it would, immediately after-its birth, be given away and sent out into the world an unknown and nameless waif. His admissions under oath and his conduct, as shown by the undisputed evidence, are conclusive that he intended to, and in fact did, abandon the-child for ten months thereafter, and was wholly indifferent as to its fate. And the evidence, much of which is set forth in the foregoing dissenting opinion, is just as convincing that Mrs. Harrison, when she gave the child away, also' intended to forever abandon it to whatever fate might thereafter befall it. She not only requested Mrs. Phillips to give the child away, but refused to permit her to inform the parties to whom it was given that she was its mother. The. Harkers, therefore, received the child and took it into their home without knowing who its parents were.
It is further said in the prevailing opinion:
“The evidence is undisputed that she was induced to part with the child for the reason that she wished to conceal her shame from her folks, especially from her father. Is it a crime for a. young, inexperienced girl to seek to hide her shame from her own parents? If so, since when?”
The answer is that it depends upon what she does in seeking to cover up her shame as to whether her conduct in that regard amounts to a crime. Mrs. Harrison’s own testimony shows that she permitted Harrison to have illicit relations with her without exacting from him a promise of marriage,, and to “conceal” what she had done, and “to keep it quiet,” permitted the child, without protest to Harrison, to be born out of wedlock, and in pursuance of a prearranged plan of her own, known to and acquiesced in by Harrison, gave it away and abandoned it, without any intention of ever reclaiming it. In this country such conduct on the part of a mother, who is in full possession of her faculties, toward her-child is, and always has been, a great moral wrong — a wrong that is unjustifiable and .inexcusable from any viewpoint-*639Moreover, it is an offense against good morals and a breach -of parental duty that no mother possessing the natural instincts of her sex could, under the circumstances disclosed by the record, be induced to commit. Counsel for appellant, in the discussion of this phase of the case, in their printed brief, state their position as follows:
“It is not contended that Mrs.' Harrison committed a crime in trying to hide her shame. But we contend that the fundamental laws upon which the institution of our ■society rests, the laws of our state and nation, and the Divine law of the Great Master, all unite in declaring that in concealing her disgrace she cannot justify'herself in shirking the sacred obligations she owes to her infant child.”
In this I agree with counsel. And for a court to hold that Mrs. Harrison’s course of conduct with Harrison, and her treatment of her child were justifiable or excusable is, in ■effect, judicial approval of loose morals, criminal in character, and an indorsement of the most inexcusable of all delinquencies — -breaches of parental duty: — that it is possible for a mother- to b‘e gnilty of toward her children. And if such holding by the court is to reflect the public policy of this state in dealing with controversies and questions of this kind, then it necessarily follows that it is but a short step further in the same direction to hold that a mother may, under the same or similar- circumstances, and for the same reasons, destroy her offspring. A father who-, for the purpose of shirking and avoiding the duties, cares, and responsibilities of the marriage relation, permits his child to be born out of wedlock with the stigma of illegitimacy when, as in the case at bar, “there is no reason in the world why he should not” marry the child’s mother, and thereby insure it an honorable birth, and then casts it away and abandons it, as was done by Harrison in this case, is guilty of dishonor bordering on to criminality, that cannot, upon any principle of either law, equity, justice, good conscience, be justified or upheld. Under no circumstances should such perfidy receive -judicial recognition. The effect of the prevailing opinion, however, is that Harrison, in order to cover up his *640criminal relations with the child’s mother, was justified in. permitting the child to be born out of wedlock, and then given away and abandoned. In other words, that he, in order to conceal his crime, was justified in pursuing a course-of conduct which, in the opinion of the writer, was much more dishonorable and reprehensible than the crime itself..
It is said in the prevailing opinion that:
“It is very clear tliat Mrs. Harrison’s heart before and immediately after the birth of the child was torn by conflicting emotions-of pride and fear on the one side and duty to her child upon the-other.”
It is also suggested that the fear and dread of her father-in particular, and what she might expect from him in case-her relations with Harrison should become known, induced her to- give away and abandon her child. It is conceded-la the prevailing opinion that it may fairly be presumed-that Mrs. Harrison, when she got into this trouble, was-about twenty-four years of age. And the evidence without conflict shows that she was not living at the home of her father, but was residing with her aunt. [Regarding the-state of Mrs. Harrison’s mind “before and immediately after the birth of the child,” we have the evidence of Mrs. Phillips, which is not denied, but which in the main is corroborated by the testimony of Mrs. Harrison, who, it is admitted, was at the hospital eighteen days after the child was born. Mrs. Phillips testified, “Mrs. Harrison during this time mentioned the subject of the baby once that I remember of.” And the evidence is undisputed that for nine months after she became advised that the child’s eyes were sorely and dangerously afflicted, and that it -was in great danger of losing its eyesight, and that later it was stricken with measles and other complaints and disorders common to-infants^ she never went near the child or offered to assist the Harkers in caring for and nursing it. It requires no-argument to show that a true mother could never be guilty of such cold and indifferent conduct toward her infant child and its sufferings as Mrs. Harrison exhibited.
*641Again Referring to the suggestion that it was fear of ber father that prompted and induced her to part with the child, I am unable to find a scintilla of evidence in the record that justifies any such conclusion. The only testimony Mrs. Harrison gave regarding her father is the following (quoting from the bill of exceptions) :
“Q. Why did you let the child go ? A. Because I was — ■ I didn’t like my father to hear about it. My folies didn’t hear anything about it, and I was going to try and keep it quiet.”
As I have pointed out in the foregoing dissenting opinion, the record is all but conclusive that she was not influenced at all in her conduct towards the child and the disposition she made of it because of her father, and that the only recognition she and Harrison ever gave him in these transactions was to use his name in fornrulating excuses for their unnatural treatment of the child.
I also invite attention to the dissenting opinion where reference is made to certain matters (not here reviewed) that are given much weight in the prevailing opinion in the discussion of which my Brethren have, as I view the record, misconceived the evidence, and have assumed the existence of facts that are at variance with the-record as made in the court below. Mr. Justice Frick seems to take the position that- by permitting the child to remain in the home of the Hankers would’ deprive Mrs. Harrison of “her right of parentage” and make of her for “all time an outcast and outlaw.” These conclusions are so far-fetched and manifestly unsound and groundless that I deem it unnecessary to consider them.
While this is a habeas corpus proceeding, equity and good conscience control and direct, or should control and direct, the discretion of the court. Heretofore I have, in discussing this case, confined my observations to the equities and inherent rights of the child, and have but casually referred to the rights and equities of the Harkers. But few, if any, eases can be found in which the equities of the foster parents *642are as pronounced and as well established as they are in the case at bar. And, on the other hand, I do not believe a case of this kind can be found where the claims of the natural jiarent, who has either by word or act voluntarily relinquished his right to the custody of his infant child to others, and, after a de facto relation of parent and child has been established between the foster parents and the child, seeks to regain the custody of it, are as devoid of equity and as repugnant to good conscience and every principle of right and justice as they are in the case at bar:
“Equity aids the vigilant, not those who slumber on their rights.” “He who comes into equity must come with clean hands.” “He who seeks equity must do equity.” (Italics mine.) 1 Pomeroy’s Eq. Jur. 363.
The undisputed facts in this case show that Harrison not only “slumbered on his rights,” but that he came into court with his hands smirched with fraud. The evidence is all but conclusive that when he met the Harkers at the hospital about five weeks after the child was bom, and a few days after he and Mrs. Harrison were married, and there observed that the child’s eyes were afflicted with some kind of malignant disease or ailment, and that it was in danger of losing its eyesight, he stated to the Harkers that:
“He didn’t want the baby; neither did his wife want it; . . . that they (the Harkers) should keep it.”
And the evidence without conflict shows that for nine months thereafter he neither called to see the child nor made any inquiry of the Harkers concerning it. To permit him, after assuring the Harkers that they would be permitted to keep the child, to recover possession of it, and at the same time to successfully resist their claim for compensation for the trouble they have been to and the expense they have incurred in caring for and rearing the child and saving its eyesight, is to allow him in a court of equity to take advantage of his own fraud practiced on the benefactors of his child. He therefore has come into a court of equity with unclean hands, and is seeking equity without doing, equity.
*643Tbe oft-repeated claim is again made that Mrs. Harrison having modified ber intention, or rather changed her mind with respect to abandoning the child, and having “recalled the gift” by which she intentionally and voluntarily relinquished and transferred the custody of it to the Harkers, three weeks after it was made, neither the child nor the Harkers acquired any equities or right under and by virtue of the gift, relinquishment, transfer, and change of custody. I again invite attention to the condition of the child’s health at the time, and the circumstances under which the undisputed evidence and the admitted facts show that Mrs. Harrison demanded the return of the child. A few hours after the Harkers received the child they discovered that it was afflicted with a malignant eye trouble or disease — the only thing with which it was endowed by its parents when it was taken to the home of the Harkers — and was in danger of losing its eyesight for the “first eight or ten weeks.” The Harkers procured the services of a doctor who, at the time, was giving the child medical treatment for its eyes. They also employed a trained nurse to assist in taking care of it. Mrs. Harrison was an invalid, and without any means, ready or prospective, and was unable to support either herself or the-child. And for aught that appears in the record, if her aunt had not furnished her a home and taken care of her, she would have been an outcast and a vagrant. According to her own testimony, which is not disputed, Harrison was not, and had never been, under any legal obligation to marry her, and it is conceded by his counsel that he, at the time, was under no moral obligation to do so. Harrison, speaking-through his counsel in their printed brief filed on rehearing, says, “The girl had absolved him, as the record shows, from any obligation to marry her.” On that occasion Mrs. Harrison, speaking through her aunt, Mrs. Siloocks, represented to the Harkers that she was an orphan.' These facts, which are material and of controlling importance, are not even referred to, much less discussed, in the prevailing opinion. The opinion, therefore, contains errors of omission as weli as commission. Under the facts and circumstances just re*644cited, the truth of which is not even questioned, the presumption may well be indulged that, if the Harkers had delivered the child to Mrs. Harrison, it would probably have lost its eyesight, and its life would possibly have been jeopardized. Therefore, as stated in my former dissenting opinion:
“It would have been the worst of recreancy on the part of the Harkers, and in violation of the high moral and sacred duty they owed to the child and to society to properly care for and protect it, for them to have surrendered it to Mrs. Harrison, who was ill and had no means of support (and no property of any kind), and was unable to properly care for either herself or child.”
Under the obsolete and antiquated rule of law adhered to by Mr. Justice Straup which regarded the interest and welfare of the child in controversies of this kind of secondary consideration only, Mrs. Harrison could not, under the circumstances, have predicated and successfully maintained an action for the custody of the child on the demand. Of course, if she could not, Harrison cannot legally do so.
Appellants have not only invoked the principles of equity and justice in support of their claim, but, in justification of the position they have taken on the moral phases of the case, have also referred to the 'Divine as well as the civil law, which under the peculiar facts and circumstances of the case, was apropos and proper. Counsel for respondent in reply, or rather in their evasion of the moral aspects of the controversy, say that they are reminded of the saying that the “Devil can cite scripture for his purpose,” and with much satire and ridicule seek to belittle the Harkers. They also refer to maternity hospitals as a “clearing house for nameless children,” and say that they “are not quite sure but that hospitals such as the Willowsmere (the hospital maintained by Mrs. Phillips) are-, to some degree, a menace to the morals of the community.” They concede that Harrison used “bad judgment” in pursuing the course he did to conceal his relations with Mrs. Harrison before they were married; but they contend, if I understand their position, that otherwise his conduct was honorable and praiseworthy. That *645is, counsel have the temerity to come into a court of equity and contend that there was nothing wrong, either legally or morally, in Harrison’s clandestine relations with Mrs. Harrison before they were married, ánd that his conduct in permitting the child to be born out of wedlock and sent into the world an outcast, nameless and - unknown, was not, under the circumstances, a breach of parental duty, and that the real 'wrongdoers in these transactions were Mrs. Phillips and the Harkers. Speaking of the former, they say: “Mrs. Phillips, like the gravedigger in Hamlet, sings, no doubt, while she plies her vocation.” Referring to the Harkers and their connection with the transaction here involved, they say: “The narrow morality of such cold Puritanism is a crime, paradoxical as it may seem.” In other words, counsel seem to take the position that there is nothing wrong, or even improper, for a man situated as Harrison was to defile a young girl and thereby bring into the world an illegitimate child to be east away and abandoned, and that the real offenders against good morals and decency in such cases are, first, the party who furnishes a refuge for the erring girl, nurses and takes care of her during confinement, and where, as in this case, the young mother refuses to keep her child, .finds a good home in which the child may be adopted, properly cared for, reared, and educated, and, second, the good people who receive the little outcast into their homes. The foregoing are samples of the arguments made and the reasons advanced as.to why the judgment of the trial court should be affirmed, the child given to Harrison, and the Harkers denied compensation for the expense they have been to in rescuing it from the oblivion to which its parents had consigned it, and in saving its eyesight and probably its life. .If counsels argument — if it can be called such, made up, as it is, of satire, ridicule, and abuse of the ehilds benefactors — ■ reflects the moral status of respondent and his sentiments and attitude toward the people mentioned, it necessarily follows that he is a selfish, heartless ingrate of the coarsest type, and that the observations made by counsel in effect characterize him as a degbnerate, and remove and dissipate *646every possible doubt that might otherwise exist respecting the superior fitness of the Harters to have the control and custody of the child.
The result reached in the prevailing opinion, as I view the record, is not only unjust to the ITarkers, but is a cruel injustice to the child who is made a victim in, rather than a party to, the proceedings. Reference is made in the prevailing opinion to the “hundreds of thousands of lives” and the “thousands of millions of treasure” sacrificed by the people of this country to destroy the institution of African slavery. It is apparent that what is said in that regard is not germane to any issue in the case, or to any question presented by this appeal. But since it is ushered into the case, I remark that I do not know of any feature of African slavery, eliminating bloodhounds and the whipping post, more unjust, cruel, and inhuman, as I view this case, than will be the tearing away of this little girl, now three years of age, from the loving and tender care of the Harkers and giving her to the Harrisons, who, so far as this record discloses, have never shown that they possess a particle of affection for her. Nor do I think there was anything in that institution, with the exception referred to, that was more painful and heart-rending than will be the sorrow and mental anguish of the child at the time the separation takes place, and for weeks and possibly months thereafter. And while this cannot be avoided under the law as declared in the prevailing opinion, these parties, including the child, nevertheless are entitled, under section 9 of article 8 of the Constitution of this state, to have the case considered and decided on “the record made in the court below.” And this court cannot, without violating this provision of the Constitution, deny them that right. As I have pointed out, this case is not ruled and decided on “the record made in the court below,” but on facts assumed which are in some respects wholly at variance with the record. This innovation of the right of these parties to have the case ruled and decided “upon the record made in the court below” is a denial to them, especially the child, of “the equal protection of the laws,” and *647is in derogation of the spirit, if it does not violate the very letter of the fourteenth amendment to the Constitution of the United States.
Last, but not least, the affirmanee of the judgment makes good character and good citizenship¡ a liability rather than an asset in this class of eases, and is a standing rebuke to those who dispense the most ideal and praiseworthy of charities and places the most indefensible and inexcusable breaches of parental duties as well as loose morals at á premium.
The foregoing observations directing attention to wherein the prevailing opinion offends against the Constitution are attempted to be met, or, more correctly speaking, evaded, by Mr. Justice Frick in the following language:
“This claim at least possesses the distinction of novelty if nothing else. But the claim is not more novel than the method by which it is thrust upon us. The question was not even mooted in the court helow nor in this court on the first hearing. For the reasons just stated, however, we are relieved from giving the matter any consideration; hut we could not properly do so if we would.”
What I suggested was that the case be ruled and decided by this court on “the record made in the court below.” This the mandatory provision of. the Constitution referred to requires. The members of this court have taken an oath that they will “support, obey, and defend the Constitution of the United States and the Constitution of this state,” etc. (Italics mine.) Is it possible that Mr. Justice Frick regards his oath of office and the provision of the Constitution metioned as possessing “the distinction of novelty if nothing else;” and for that reason he is relieved from observing the one and from obeying the other ? This is, in effect, what he says. It will be noticed that it is this court, not the lower court, that has offended against the Constitution. It is in this court, not in the lower court, that facts material and, as I view the case, of controlling importance are not considered or even referred to, and this record, in a metaphorical sense, distorted and padded. Therefore the question, “novel” as *648it may appear to my Brother, could not have been presented “in the court below” nor “in this court on the first hearing.” It is not a sufficient nor a satisfactory answer to say that, if this opinion should be changed and modified so as to substantially reflect the record as made in the court below, the judgment nevertheless would be affirmed. The decisions of this court on questions presented by appeals, to be of any value as precedents in future litigation and as guides in business matters and other transactions similar to those here adjudicated, must of necessity reflect, substantially at least, the record made in the trial court. In the course of his opinion Mr. Justice Frick says:
“I am a total stranger to all tlie parties to this action, and therefore can have no bias either for or against either of them.”
Nothing having been said, either oral or written, from which it can be inferred that any one has the slightest suspicion that Mr. Justice Frick is either consciously or unconsciously biased for or against any party connected with or affected by the action, I fail to grasp the purpose or to comprehend the materiality of this somewhat unusual declaration by a judicial officer whose integrity, fair-mindedness, and impartiality in deciding cases has never been, and I do not think ever will be, questioned, regardless of whether he may or may not have a personal acquaintance with one or more persons who may be a party or parties to an action litigated in this court. It cannot be that the statement is intended to convey the impression that because he is a stranger to the parties, and hence free from bias, Mr. Justice Frielc is therefore less likely to err in his consideration of the case than his associates, because, as he is aware, it developed during the oral discussions of the case in the consultation room that the members of this court, one and all, are total strangers to all of the parties to the action, and that they knew nothing of the case, except what the record discloses. A judicial officer coming forward in defense of his own integrity and fair-mindedness, which is not questioned by any one, may not the members of the legal profession, and the *649laymen as well, wbo may cbance to read the opinion containing such matter conclude that thfere is a bare possibility that it was impelled by the same state of mind that causes a certain class of people mentioned'in Holy Writ “to flee when no man pursuéth,” namely, a troubled rather than a tranquil and undisturbed conscience ?
In concluding the somewhat protracted discussion of this case, I invite attention to the following statement in Mr. Justice Frick’s opinion, and what, as I view the case, the statement portends:
“While I, knowingly, shall do nothing to discourage any good people from taking and holding any unfortunate child, yet if, in order to encourage such people to do so, I must consent to sacrifice the rights of hoth the natural mother and the child, the encouragement will not be given.”
The significance of this statement is fully appreciated when considered in connection with the facts — not as they are represented to be in the prevailing’ opinion, but as they are shown to be by the record as made in the lower court. It is that where, as in the case at bar, an unmarried woman gives birth to a child afflicted with a malignant eye trouble that may, and probably will, prove fatal to its eyesight, unless it receives proper nursing and medical treatment, and the mother refuses to keep the child, and, with the acquiescence and approval of its father, sends it into the world a few hours after it is born, a nameless waif, without any intention of ever reclaiming it, to permit good people to receive the little outcast into their homes, give it the proper nursing and medical treatment, save its eyesight and possibly its life, with the assurance that they will be-permitted to keep' and adopt it as their own, is to “sacrifice the rights of both the natural mother and the child.” And that, too, even though the mother is in poor health, depending on the charity of relatives for maintenance, has no home of her own and no prospects of any; she having obsolved the father of the child “from any obligation to marry her.” Whereas, to permit the child, under such circumstances, to lose its eyesight or *650die from neglect is to protect the rights of “both the natural mother and the child.” Such is the logic of the statement when considered in connection with the facts and the result reached in the prevailing opinion.
Keeping in mind the record of this case, it would be difficult, in the face of the prevailing opinion, to conceive of a state of facts under which people, however worthy they may be, could take into their home an infant child who is sent adrift into the world by its natural parents with any degree of assurance that they would be permitted to keep it. Mr. Justice Frick says: “If the Chief Justice labors under the impression that his decision will be followed by any number of people, however small, as a moral guide, he had better be undeceived. . . . But few, not excluding the lawyers, will ever read” the opinion. Are we to understand from thri that because the opinions of this court are not read by the public generally, the law governing this class of cases is a “delusion and a snare,” and that therefore the pernicious and harmful effect of the decisions will not be as far reaching as I claim for it, and that therefore good people, like the Harkers, will be inveigled to take into their homes infant children who are outcasts with the assurance that they will be permitted to keep and adopt them as their own notwithstanding the children may at any time within one, six or ten months, be taken from them ? It would seem so. Otherwise I fail to grasp’ the purpose or import of the statement.
For the reasons here stated and others set forth in my former dissenting opinion, I dissent from the order overruling the petition for a rehearing.