People ex rel. Balch v. Strickland

Ellis, Ch. J.

This is a proceeding under section 899 of the Criminal Code to compel the defendant to support his daughter. The counsel for the defendant claims: 1. That the Society for the Prevention of Cruelty to Children cannot prosecute as complainant; 2. That if the society could, the-president could not.

Chapter 130, Laws 1875, being an act in relation to these societies, provides that they may- prefer a complaint before any court or magistrate having jurisdiction for the violation of any law relating to or affecting children, and may aid in bringing the facts before such court or magistrate, in- any proceeding.

Section 899 of the Criminal Code provides, that any persons who shall “neglect to provide for their children according to their means,” are disorderly persons, and if found upon examination to be a disorderly person, the magistrate may require a written undertaking to support the child, and indemnify the city against its becoming a charge upon the public. This most certainly is a law “ relating to or affecting children.!’

It would be difficult to conceive of a law which" more vitally affects a child. It relates to and affects the subject of subsistence, which prevents starvation and secures the continuance of life. There is a natural as well as legal obligation on the part of the parent to support the child, and if parents so far forget or neglect this obligation, the State very properly steps in and enforces the performance of such duty. The very object, purpose and spirit of this society is to care for. such cases, and to see that the laws are rigidly and in good faith administered. It is a most beneficenj; pur-: pose, and should receive the encouragement of courts and judges. My experience' as a criminal magistrate has convinced me of the great want of such an organization. As Judge Westbrook has said, “it is a most "wise, salutary and beneficent statute, born of Christian civilization, and founded upon the teachings of Him to whom children" were objects of tender love and care.”

I am, therefore, of the opinion that the society can prosecute these cases under section 899 of the Criminal • Code.

But it is claimed that the president is not the society, and that there must be a formal action taken by the society before power exists to prosecute on the part of the president. I do not think such action of the society necessary. It is a power which is vested in the president by virtue of his office. It is well settled that the power and authority of a president of a corporate body, may as incidental to his office and the execution of the trust reposed in him, virtuie officii perform all the duties usually incumbent upon such officers, or such as is imposed by the general course of business of the corporation. The president is the head of the corporate body, through whom the corporate affairs of the corporation are constantly performed, and such acts as complaining of offenders are incident to the execution of the trust reposed in the president of this society, and this without statutory authority or regulation of the society {Field on Corp. p. 208, § 191). I therefore hold that the president of the society could make the complaint.

This brings me to the merits of the case. It is claimed that, the child having voluntarily left its home, the father is absolved from the obligation to support and maintain it. From the evidence I am impressed with the feeling and belief that the child did not receive the treatment it should have received, and that this harsh treatment had much to do with the child’s leaving. In the case of wives abandoning their husbands, it becomes the duty of the wife to offer to return and live with the husband, and a rejection of such offer would be deemed an abandonment. This class of cases cannot, in the nature of the relation, apply to children. Children are weak, capricious, lack judgment, and are not to be held responsible for their acts, the same as adults, which distinguish them materially from the case of the wife.

The defendant’s counsel suggests that I am a member of the society, and therefore without jurisdiction. I expressly declined to become a member, for this very reason.

I therefore hold that the defendant is guilty of being a disorderly person under section 899 of the Criminal Code, and require that he give a written undertaking as required by section 901 of the Criminal Code.