Opinion
No. 42812.
November 25, 1963.
1. Bastards — Paternity Act applies to children born before and after its effective date.
Paternity Act of 1962 applies to children born before and after its effective date. Secs. 383-01 — 383-27, Code 1942.
2. Bastards — bastardy or filiation proceeding is civil not criminal action.
Bastardy or filiation proceeding is civil and not criminal action, except that issue of warrant and arrest of recalcitrant defendant is in nature of criminal proceeding.
3. Bastards — filiation proceedings governed by rules of procedure applicable to civil actions.
Generally, filiation proceedings are governed by rules of procedure applicable to civil actions.
4. Constitutional law — ex post facto laws — prohibition against, does not apply in filiation proceedings.
Constitutional prohibition against enactment of ex post facto laws does not apply in filiation proceedings. Art. I, Sec. 9, Cl. 3, United States Constitution; Sec. 16, Constitution 1890.
5. Constitutional law — ex post facto laws — prohibition against, relates exclusively to criminal or penal statutes.
Constitutional prohibition against enactment of ex post facto laws relates exclusively to criminal or penal statutes. Art. I, Sec. 9, Cl. 3, United States Constitution; Sec. 16, Constitution 1890.
6. Bastards — Paternity Act — imposes upon father duty to support illegitimate child — gives public authority right to enforce this duty.
Paternity Act of 1962 imposes upon father duty to support and maintain his illegitimate child, and gives any public authority right to enforce this duty. Secs. 383-01 — 383-27, Code 1942.
7. Bastards — Paternity Act — legislative intent.
Paternity Act of 1962 manifests legislative intent to create and provide for duty of father to support his illegitimate child, whenever born. Secs. 383-01 — 383-27, Code 1942.
8. Bastards — Paternity Act — purpose of Act.
Paternity Act of 1962 does not attempt to punish father for begetting or neglecting to support his child before Act took effect, but simply requires him to contribute to his child's support and maintenance, thus relieving mother and others, including State Welfare Department, upon whom burden may chance to fall. Secs. 383-01 — 383-27, Code 1942.
9. Bastards — paternity — purpose of Act.
Purpose of Paternity Act of 1962 was to make provision for child's support if and when it becomes dependent child under Act. Secs. 383-01 — 383-27, Code 1942.
10. Constitutional law — Paternity Act — statute not invalidly retroactive.
Statute is not invalidly retroactive merely because it draws upon antecedent facts for its operation.
11. Constitutional law — Paternity Act — statute not invalidly retroactive.
There is nothing of retroactive nature in Paternity Act of 1962, in view of purpose of statute not to punish putative father for fornication or adultery, but to require him to provide support for his child. Secs. 383-01 — 383-27, Code 1942.
12. Bastards — obligation of putative father.
Obligation of putative father to support his bastard child is continuing duty.
13. Bastards — retrospective effect of legitimating statutes.
Statutory provisions declaring legitimate children otherwise illegitimate may have retrospective operation "to give effect to intention of Legislature, in view of fact that such provisions are remedial".
14. Bastards — Legislature has proper interest in support of illegitimates by their fathers.
Legislature has proper interest in support and maintenance of illegitimates by their fathers.
15. Bastards — legitimation statutes within police power of state.
Legislation to effectuate public policy regarding support and maintenance of illegitimates by their fathers is within police power of state.
16. Constitutional Law — Paternity Act constitutionally valid.
Paternity Act of 1962 does not violate constitutional prohibition against enactment of ex post facto laws even though it is retroactive in operation. Art. I, Sec. 9, Cl. 3, United States Constitution; Sec. 16, Constitution 1890; Secs. 383-01 — 383-27, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the County Court of Hinds County; RUSSELL D. MOORE, J.
Delos H. Burks, Asst. Atty. Gen., Jackson, for appellant.
I. The Court erred in sustaining defendant's plea in bar to the statute of limitations, of not having been commenced within one (1) year from the birth of the illegitimate child; and the Court further erred in holding that House Bill No. 230 (Chapter 312), Laws of 1962, in regard to proceedings to compel a father to support his illegitimate child was an ex post facto law, and, as such, violates both the United States and Mississippi Constitutions. Bailey v. State, 214 Ga. 409, 105 S.E.2d 320; Beck v. Finnefrock, 72 Pa. Supp. 544; Commonwealth v. Calleghan, 223 Mass. 150, 111 N.E. 773; Cummings v. Church, 50 R.I. 71, 145 A. 102; Dicks v. United States, 72 A.2d 34; Hull v. Jackson, 238 Miss. 870, 121 So.2d 4; McLain v. Meadows, 44 Cal.App. 402, 186 P. 411; Neild v. District of Columbia, 71 App. D.C. 306, 110 F.2d 246; Ortega v. Portales, 134 Colo. 537, 307 P.2d 193; Rooney v. Teske (Fla.), 61 So.2d 376; State v. Parker, 209 N.C. 32, 182 S.E. 723; Thomas v. Cook, 229 Miss. 458, 91 So.2d 275; Transcontinental Western Air Line v. Civil Aeronautics Board, 83 U.S. App. D.C. 358, 169 F.2d 893, affirmed 366 U.S. 601, 93 L.Ed. 911, 69 S.Ct. 756; Chap. 312, Laws 1962; 10 Am.Jur.2d, Bastards, Sec. 75; 16A C.J.S., Constitutional Law, Sec. 435.
Harmon W. Broom, Jackson, for appellee.
I. The bastardy proceedings in this case were retrospective without any retrospective provisions therein, was ex post facto and was in fact a bill of attainder in attempting to prosecute anyone under the law for actions prior to the enactment of the act, where there was a provision in the old statute, Section 383, Mississippi Code of 1942, providing a provision of one year in which the action was to have been brought. Bailey v. Richardson, 182 Fed. 46; Calver v. Bull, 3 Dallas 386, 1 L.Ed. 648; Calvin v. Press, 347 U.S. 522; Carson v. Carson, 40 Miss. 349; Conner v. Los Angeles Board of Public Works, 41 U.S. 716; Cummins v. Missouri, 4 Wall. 227; Johannessen v. United States, 225 U.S. 227; Morgan v. Thompson, 242 Miss. 357, 135 So.2d 854; Parker v. New York, 170 U.S. 189; Rowoldt v. Cersetto, 355 U.S. 522; Thompson v. Murrer, 171 U.S. 380; Thompson v. Utah, 170 U.S. 343; United States v. Lovett, 228 U.S. 303, 90 L.Ed. 1252, 66 S.Ct. Rep. 1073; Chap. 312, Laws 1962.
(Hn 1) This case involves the use of antecedent facts in a petition for filiation and support of an illegitimate child under the Mississippi Uniform Act on Paternity. Miss. Laws 1962, Chap. 312 (effective July 1, 1962); Miss. Code 1942, Rec., §§ 383-01 to 383-27. The trial court held that, since the child was born before the act took effect, the petition was barred by the one-year statute of limitations operative at that time, but now repealed; and the new act applied only to illegitimate children born after its effective date. We do not agree, and hold the act applies by its terms to children born both before and after its effective date. See 1960 Hanbook of National Conference of Commrs. on Uniform State Laws, pp. 178-182.
On October 9, 1962, Nathalie Dunn, Hinds County Welfare Agent, State of Mississippi, filed in the County Court of the First Judicial District of Hinds County a petition against Richard T. Grisham, to determine paternity of and child support for Ronnie Avery Warren, a male minor child born on September 16, 1960. The petition alleged that Ida Belle Warren is the mother of the child, and Grisham is his father; that Ida as the mother is receiving welfare assistance from the State of Mississippi, and the child has become a ward of the state to the extent that it is receiving support from the Hinds County Welfare Department. The petition averred that Grisham owed a duty to provide for support of the child, and asked the court to determine his paternity and to require Grisham to provide a reasonable sum for his support. The child was born approximately 22 months before the Paternity Act went into effect. The mother and putative father are both Negroes. In response to interrogatories propounded by defendant, the mother stated she was 22 years of age, had never been married, and had one other child by another man. This other child receives as support from the Welfare Department $25 per month.
Grisham pleaded that the petition was barred by the one-year statute of limitations under the former bastardy act (Miss. Code 1942, § 393) which provided:
"Proceedings under this statute shall not be instituted by the mother after the child is twelve months old, unless the defendant be absent from the state so that process can not be served on him." This section was repealed by the new Paternity Act. Miss. Code 1942, Rec., § 383-25.
The county court heard the cause on defendant's plea of the statute of limitations, sustained it, and dismissed the petition. It held that the 1962 act had no application to this case, since the child was born before it went into effect; that the 1962 Paternity Act was not retroactive, and if it were, it would be in violation of the prohibitions against ex post facto laws in the federal and state constitutions. U.S. Const., art. 1, § 9, par. 3; Miss. Const. 1890, § 16. The county court thought the 1962 law could be applied only to the natural parents of those illegitimate children born after its passage. From that judgment the state took a direct appeal to this Court, as authorized by Code § 383-18. In this state of the pleadings, we assume the truth of allegations in the petition.
(Hn 2) A bastardy or filiation proceeding is a civil and not criminal action, except that the issuance of a warrant and the arrest of a recalcitrant defendant is in the nature of a criminal proceeding. (Hn 3) But generally in this state and elsewhere filiation proceedings are civil in nature, and are governed by the rules of procedure applicable to civil actions. Welford v. Havard, 127 Miss. 88, 89 So. 812 (1921); Thomas v. Cook, 229 Miss. 458, 91 So.2d 275 (1956); 10 C.J.S., Bastards, § 32 (b); 10 Am.Jur.2d, Bastards, § 75. (Hn 4) Accordingly, the constitutional prohibition of ex post facto laws does not apply here. (Hn 5) The phrase is one which relates exclusively to criminal or penal statutes. 11 Am. Jur., Constitutional Law, § 351; 16A C.J.S., Constitutional Law, § 435. In this case we are dealing with the civil duty of a father to support his illegitimate child.
The main question is this: Does the Paternity Act of 1962 apply by its own terms to children born out of wedlock prior to the effective date of the act? We think it does.
(Hn 6) The act provides that the father of a child born out of wedlock "is liable to the same extent as the father of a child born in lawful matrimony," for the reasonable expense of the mother's pregnancy, "and for the education, necessary support and maintenance, and medical . . . expenses of the child." § 383-01. Paternity may be determined upon petition of the mother, the child, "or any public authority chargeable by law with the support of the child." However, proceedings can not be instituted by the mother after the child has reached the age of one year, unless the defendant is absent from the state, or has acknowledged in writing that he is the father. § 383-02. These sections impose upon a father the duty to support and maintain his illegitimate child, and gives any public authority, such as the petitioner here, the right to enforce this duty. However, the father's liability "for past education and necessary support and maintenance and other expenses" is limited to a period of one year next preceding commencement of an action under the act. § 383-03. If the finding of the court be against defendant, the court shall make an order of filiation, "declaring paternity and for the support and education of the child." And if the child is or is likely to become a public charge on the county or the state, "the public welfare agent of that county shall be made the trustee" for payments by the father. § 383-12. Where the complainant is a state or county welfare official, the county or district attorney shall prosecute the petition. § 383-19.
Section 383-25 makes even clearer the legislative intent, indicated in the preceding sections, that the act would apply to all fathers of illegitimate children, irrespective of the date of birth. It provides: "This act applies to all cases of birth out of lawful matrimony as defined in this act . . ."
(Hn 7) In brief, the legislative intent, to create and provide for the duty of a father to support his illegitimate child, whenever born, is manifest from the Paternity Act. It was to be retrospective as well as prospective in effect. (Hn 8) The statute does not attempt to punish a father for begetting or neglecting to support his child before the statute took effect. It simply requires him to contribute to his child's support and maintenance, thus relieving the mother and others, including the state welfare department, upon whom the burden may chance to fall. The gravamen of the petition, the basis of the liability is not the fathering of the illegitimate child, which in this instance occurred before the effective date of the act. (Hn 9) Its purpose is to make provision for the child's support if and when it becomes a dependent child under the statute. Ortega v. Portales, 134 Colo. 537, 307 P.2d 193 (1957). The Florida court properly observed in Rooney v. Teske, 61 So.2d 376 (Fla. 1952), that "the act conforms with every impulse of right, justice and decency . . . There is no better settled principle of public policy than that it is the duty of every man to provide food and raiment for his own, and the purpose of the statute was to spell out this principle and apply it to all of his own even though they be bastards. It imposed no responsibility that was not already in good conscience incumbent on the father . . ."
(Hn 10) Moreover, a statute is not invalidly retroactive merely because it draws upon antecedent facts for its operation. Neild v. Dist. of Columbia, 71 App. D.C. 306, 110 F.2d 246, 255 (1940). The only antecedent facts involved in this case are the conception and birth of the child. (Hn 11) The purpose of the statute was not to punish the putative father, appellee, for fornication or adultery, but to require him to provide support for his child. In this sense there is nothing of a retroactive nature in the Paternity Act. Dicks v. U.S., 72 A.2d 34 (D.C. Mun. Ct. App. 1950); Bailey v. State, 214 Ga. 409, 105 S.E.2d 320 (1958).
(Hn 12) The new statute provides a new and more effective method and remedy for a filiation order and for requiring a putative father to support his own child. See Cummings v. Church, 50 R.I. 71, 145 A. 102 (1929). The obligation of a putative father to support his bastard child is a continuing duty. 10 Am.Jur.2d, Bastards, § 78. The same text, § 47, states that "a legitimating statute, being considered remedial in its nature, is generally construed to be retrospective in its operation in that it will operate upon antecedent facts . . ." Anno., 140 A.L.R. 1323 (1942). (Hn 13) Hence statutory provisions declaring legitimate children otherwise illegitimate may have retrospective operation "to give effect to the intention of the legislature, in view of the fact that such provisions are remedial." 10 C.J.S., Bastards, § 10.
(Hn 14) The legislature has a proper interest in the support and maintenance of illegitimates by their fathers. (Hn 15) Legislation to effectuate that purpose and public policy is within the police power of the state. The 1962 act places certain limitations upon the rights of a claimant under it. For example, the father's liability for past support and maintenance is limited to one year next preceding commencement of an action. § 383-03. The mother may not institute proceedings after the child has reached the age of one year, unless defendant is absent or has acknowledged the child. § 383-02. However, the new act is more consistent with current practice than was the former statute, which provided that the board of supervisors could proceed to enforce a putative father's duty to support an illegitimate child, at any time within one year after the child has become a charge upon the county. Code § 394. Today child support is usually furnished by the State Department of Public Welfare. That agency now has the right, where it provides such support, to petition the court for an adjudication of paternity and an order requiring the father to care for a child brought into the world by his own misdeed. Code § 383-01.
(Hn 16) In summary, the Paternity Act of 1962 is not affected by provisions concerning ex post facto laws. The legislature intended it to require of a father support of his illegitimate children, even though antecedent facts before the act's effective date might be considered in determining the basis of the support. The mere fact that antecedent facts are used does not make a law invalidly retrospective. The statute affects the procedure and remedy only, and is a legitimate exercise of the police power of the state. Accordingly, the county court erred in sustaining defendant's plea of the statute of limitations. That order is reversed, and the cause remanded for further proceedings under the act.
Reversed and remanded.
McGehee, C.J., and McElroy, Jones and Brady, JJ., concur.