Thayer, 0. J.
Two questions are presented for con- , ¿deration on this appeal. First, whether the decision of circuit courts, in matters arising under the Act approved. Feb. 25, 1889, which confers authority upon certain benevolent or charitable corporations incorporated under the laws of this State, to receive, control and dispose of minor children in certain cases, are reviewable on appeal to this court. Second, whether the decision rendered by the circuit court herein, under the facts and circumstances of the case, was a proper disposition of the two Chinese children m question.
The respondent’s counsel contends that the jurisdiction conferred by said Act is purely statutory, and as it does not provide for an appeal from decisions rendered in administering its provisions, no appeal will lie therefrom, and he cites some authorities which would seem to sustain his view. The constitution of the State, however, provides that. The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts. ” § 6, Art 7. Const. This provision we considered in Mitchell v Powers, 16 Or. 492, and in the same case in 17 Or. 492, as conferring jurisdiction upon said court to revise al final decisions of the circuit courts. The provision does [345] not so declare in terms, but it seems to me that such must necessarily be the inference to be drawn therefrom, diving the supreme court jurisdiction only to revise the final decisions of the circuit courts clearly implies that it has jurisdiction to revise such decisions whenever they are final in those courts. The test, therefore, of the jurisdiction of the supreme court is whether the decision sought to be revised is the final decision of the circuit court. But the appellant’s counsel denies that the jurisdiction conferred by said Act is only statutory, and claims that the custody and disposal of infants is an ancient branch of chancery jurisdiction. He maintains that the act is only declaratory of a right which courts of equity exercised long prior to its adoption; and cites Schoaler on Domestic Relations, §§ 245, 249; 141 Mass. 203; 55 Am. Rep 452; 3 Eq Juris. § 1307; 13 N. E. Rep. 435, and 3 Or. 472, in support of his position. Under that view, the right of appeal in such cases exists independently of the constitutional provision referred to, as the exercise of the power is only the enforcement of an equitable right: and the change in the mode of procedure in order to accomplish the purpose would not affect the right of appeal any more in that class of cases than it would if the change in the mode of procedure applied to all cases of equitable cognizance. That the subject matter of the Act. for a number of centuries past, has been recognized as a part of the. general jurisdiction of courts of chancery, there can be no doubt. Judge Storey says: “Notwithstanding the objections thus urged against the legitimacy of the origin of the jurisdiction, it is highly probable that it has a just and rightful foundation in the prerogative of the crown; flowing from its general power and duty as a parens patrias. to protect those who have no other lawful protector. It has been well said that it will scarcely be controverted that in every civilized State such a superintendence and protective power does somewhere exist. If it is not found to exist elsewhere, it seems to be a just inference, from the known prerogatives of the crown, as parens patrias, in [346] analogous cases, to presume that it vests in the crown. P is no slight confirmation of this inference that it has been constantly referred to such an origin in all the judicial investigations of the matter as well as in the discussions oí very learned elementary writers.
‘ ‘ Assuming, then, that the general care and superintendence of infants did originally vest in the crown when they had no other guardian, the question, by whom and in what manner the prerogative should be exercised, would not seem open to much controversy. Partaking, as it does, more of the nature of a judicial administration of rights and duties in foro eonscientice than of a strict executive authority, it would naturally follow, eo ratione, that it should be exercised in the court of chancery, as a branch of the general jurisdiction originally confided to it. Accordingly, the doctrine now commonly maintained is that the general superintendence and protective jurisdiction of the court of chancery over the persons and property of infants is a delegation of the rights and duty of the crown; that it belonged to the court and was exercised by it from its first establishment; and that this general jurisdiction was not even .suspended by the statute of Henry VIII. erecting the court of wards and liveries. ” Storey’s Eq. Juris. §§ 1333, 1334. The doctrinéis fully and ably discussed in chapter 2 of a work by Hockheimer, entitled “Custody of Infants,” commencing at page 45 of the book, and the conclusions fully sustain the view of the appellant’s counsel herein. I am of the opinion, therefore, that an appeal to this court in such cases will lie, that decisions of the character of the one in question are in the nature of decrees and are reviewable in the same manner.
Under this view, the case is here to be tried anew upon the transcript and evidence accompanying it, which will involve the consideration of the second question, before suggested.
Free access — add to your briefcase to read the full text and ask questions with AI
Thayer, 0. J.
Two questions are presented for con- , ¿deration on this appeal. First, whether the decision of circuit courts, in matters arising under the Act approved. Feb. 25, 1889, which confers authority upon certain benevolent or charitable corporations incorporated under the laws of this State, to receive, control and dispose of minor children in certain cases, are reviewable on appeal to this court. Second, whether the decision rendered by the circuit court herein, under the facts and circumstances of the case, was a proper disposition of the two Chinese children m question.
The respondent’s counsel contends that the jurisdiction conferred by said Act is purely statutory, and as it does not provide for an appeal from decisions rendered in administering its provisions, no appeal will lie therefrom, and he cites some authorities which would seem to sustain his view. The constitution of the State, however, provides that. The supreme court shall have jurisdiction only to revise the final decisions of the circuit courts. ” § 6, Art 7. Const. This provision we considered in Mitchell v Powers, 16 Or. 492, and in the same case in 17 Or. 492, as conferring jurisdiction upon said court to revise al final decisions of the circuit courts. The provision does [345] not so declare in terms, but it seems to me that such must necessarily be the inference to be drawn therefrom, diving the supreme court jurisdiction only to revise the final decisions of the circuit courts clearly implies that it has jurisdiction to revise such decisions whenever they are final in those courts. The test, therefore, of the jurisdiction of the supreme court is whether the decision sought to be revised is the final decision of the circuit court. But the appellant’s counsel denies that the jurisdiction conferred by said Act is only statutory, and claims that the custody and disposal of infants is an ancient branch of chancery jurisdiction. He maintains that the act is only declaratory of a right which courts of equity exercised long prior to its adoption; and cites Schoaler on Domestic Relations, §§ 245, 249; 141 Mass. 203; 55 Am. Rep 452; 3 Eq Juris. § 1307; 13 N. E. Rep. 435, and 3 Or. 472, in support of his position. Under that view, the right of appeal in such cases exists independently of the constitutional provision referred to, as the exercise of the power is only the enforcement of an equitable right: and the change in the mode of procedure in order to accomplish the purpose would not affect the right of appeal any more in that class of cases than it would if the change in the mode of procedure applied to all cases of equitable cognizance. That the subject matter of the Act. for a number of centuries past, has been recognized as a part of the. general jurisdiction of courts of chancery, there can be no doubt. Judge Storey says: “Notwithstanding the objections thus urged against the legitimacy of the origin of the jurisdiction, it is highly probable that it has a just and rightful foundation in the prerogative of the crown; flowing from its general power and duty as a parens patrias. to protect those who have no other lawful protector. It has been well said that it will scarcely be controverted that in every civilized State such a superintendence and protective power does somewhere exist. If it is not found to exist elsewhere, it seems to be a just inference, from the known prerogatives of the crown, as parens patrias, in [346] analogous cases, to presume that it vests in the crown. P is no slight confirmation of this inference that it has been constantly referred to such an origin in all the judicial investigations of the matter as well as in the discussions oí very learned elementary writers.
‘ ‘ Assuming, then, that the general care and superintendence of infants did originally vest in the crown when they had no other guardian, the question, by whom and in what manner the prerogative should be exercised, would not seem open to much controversy. Partaking, as it does, more of the nature of a judicial administration of rights and duties in foro eonscientice than of a strict executive authority, it would naturally follow, eo ratione, that it should be exercised in the court of chancery, as a branch of the general jurisdiction originally confided to it. Accordingly, the doctrine now commonly maintained is that the general superintendence and protective jurisdiction of the court of chancery over the persons and property of infants is a delegation of the rights and duty of the crown; that it belonged to the court and was exercised by it from its first establishment; and that this general jurisdiction was not even .suspended by the statute of Henry VIII. erecting the court of wards and liveries. ” Storey’s Eq. Juris. §§ 1333, 1334. The doctrinéis fully and ably discussed in chapter 2 of a work by Hockheimer, entitled “Custody of Infants,” commencing at page 45 of the book, and the conclusions fully sustain the view of the appellant’s counsel herein. I am of the opinion, therefore, that an appeal to this court in such cases will lie, that decisions of the character of the one in question are in the nature of decrees and are reviewable in the same manner.
Under this view, the case is here to be tried anew upon the transcript and evidence accompanying it, which will involve the consideration of the second question, before suggested.
The contention of the parties at this time is not whether the two Chinese children shall be taken from Fung Que and Yum Chung,'their reputed stepmother and uncle, and [347] awarded to the care and custody of the Boys’ and Girls’ Aid Society; that question has already been determined by the decision of the circuit court, made June 25, 1889. Nor is it as to whether said children shall be taken from said society and delivered to Wong Chin Way, their appointed guardian, to be' sent to their grandmother at Chow Bow, in China, as that question was also determined by the said court, adversely to the petition of said Wong Chin Way, by its decision made on the sixth day of July, 1889; but it is whether the children should have been taken from said society and delivered to Captain Cyrus Noyes, in accordance with the decision made by said court on the fifteenth day of October, 1889. The important matter to be considered in administering the provisions of the Act requiring the compulsory surrender of minor children, as therein provided, is as to the best interests of the child; and its determination should not be influenced by fanatical zeal on the one side or by morbid sentimentality on the other. The -purpose of the Act is to secure to homeless, neglected or abused children nurture and support during their tender years, and such an education and training as will give them a fair start upon the journey of life. Its aim is to develop whatever good qualities they may possess and thereby restrain the bad ones, in order that they may ultimately become useful to society, instead of being a pest. The establishment of the Boys’ and Girls’ Aid Society was intended, I have no doubt, for a humane and practical object, designed to alleviate misery and suffering and to promote the welfare of the community. The circuit court must have viewed it in that light, else it would not have ordered the care and custody of these children surrendered to it. The society accepted the trust, and, so far as appears, was in the faithful discharge of it at the time the decision appealed from was rendered. The high standing and reputation in the community of those having charge of the institution insures confidence in its successful management, and, I think, we may properly assume that if these children are allowed to remain under its control and [348] influence, their mental, moral and physical condition wi II be greatly improved. The respondent, however, and his other Chinese coadjutors, seem to have been seized with a strong desire that the children should be sent to their grandmother in China; and the circuit court, actuated by a kind and generous sentiment of apparent right and justice, concluded that such a course would be the proper one to pursue whenever a favorable opportunity was presented. Whether the court was right or not in that conclusion, no one would question, if fully assured that the children had a grandmother at Chow Bow, or elsewhere, able and willing to provide for them, and that the Chinamen who have interested themselves in the affair were honestly endeavoring to send them to her.
The difficulty in such cases is to ascertain the truth. Chinamen such as we have among us can rarely be trusted in such matters, however bland and plausible they may appear. Those of the race who have come to this coast have generally exhibited a total disregard of virtue, candor and integrity, and have shown such a propensity to cunning, deception and perfidy, that if they were to engage in an effort to accomplish an apparently meritorious object a strong suspicion would arise that there was some covert, sinister scheme at the bottom of it. In this case their purpose may be to send these children to their grandmother for the sole benefit of the children; but we have no means of ascertaining whether or not such is their real motive, nor had the circuit court any assurance that if the children had been sent in the care of Captain Cyrus Noyes to Hong Kong they would ever have reached Chow Bow, or have found a grandmother or anyone else to care and provide for them. Captain Noyes did not know their grandmother, and could give no assurance that they would be taken beyond Hong Kong, consequently the principal part of the affair would have had to be trusted to the Chinaman if the children had gone with him.
The respondent urged in his petitions, filed in the said proceeding, the sending of the two children to their grand[349] mother in China, in order that they might be raised in accordance with the customs of their father, and suggested that their surroundings and teachings at the Boys’ and Girls’ Aid Society were not such as were desired by their relatives and friends, and were contrary to that of their parents. This was a kind of intimation that the society would attempt to proselyte the children if thay were allowed to remain in its custody. In a former age, under similar circumstances, such an intimation might have been deemed worthy of consideration; but that was when the highest aim and ambition of Christian nations were to extend and enforce the dogmas of the church, and individuality was wholly suboi’dinated. A new regime has since been inaugurated, which has in view the advancement of the human race by the culture and improvement of its individual members. Something more is now required of mankind than a blind adherence to bigotry. Modern civilization has developed broader views, has awakened a humane sentiment of kindness and benevolence, and imposed upon society more extensive duties. Experience has proved that the body politic cannot be maintained and upheld, nor the progress of the world influenced, unless learning is propagated, morality inculcated, and a knowledge of the practical affairs of life extended to the constituent parts which make up the great whole. Our societies of to-day, whether in the church or out of it, are seldom engaged in any narrow sectarian schemes, but are endeavoring to elevate and improve the moral and physical condition of the lower strata of humanity, in order to enable that class to secure more substantial happiness. Men and women who engage in such a work,—who search in the dregs and scum of society, and find suffering and abused children, and relieve their wants and necessities, and train them in the path of rectitude, with a view to rendering them useful in the world, instead of being a burden and a nuisance, are fit and proper to be the guardians of any child, ■whether of Christian or pagan extraction.
It cannot be supposed for a moment that those who [350] opposed the sending of these children to China in care of Captain Noyes were actuated by any such desire as might be inferred from the language of the said petitions, or that they would have objected to the disposition which the circuit court attempted to make of them, if they had believed that the parties who were urging that course intended, in good faith, to place the children under the care and protection of their grandmother. And they have good grounds for believing that such was not the intent, but that the design was to devote them to an immoral and vicious use. They found the children in a Chinese brothel, where , they were allowed to remain by their ardent and disinterested friends until the Woman’s North Pacific Presbyterian Board of Missions took action to rescue them and put them in charge of one of the benevolent corporations ] .rovided for in said Act, and then it seems to have occurred to Wong Chin Way that “their surroundings and teachings were not in accordance with that of the father,” and that it was eminently proper that they should be sent to their grandmother at Chow Bow.
As I view the proofs herein, the children were very properly disposed of by the first decisions made by the said circuit court, and, in my opinion, it would be very risky and uncertain to take them from the Boys’ and Girls’ Aid Society and put them in the custody of the respondent for any purpose, as the court could have no assurance that it would be for the interest of the children to do so.
In considering the legal aspect of this case, I have assumed that the decision appealed from was a final decision. I think I am warranted in that assumption by the decision of this court in Pittman v. Pittman, 3 Or. 472, which was cited by appellant’s counsel. The principle of that decision I regard as decisive upon the point.
The decision appealed from will be reversed and a decree entered awarding the care and custody of the said Chinese children to the Boys’ and Girls’ Aid Society, appellant herein.
Strahan, J., expressed no opinion in this case.