State v. Langford

176 P. 197, 90 Or. 251, 1918 Ore. LEXIS 203
CourtOregon Supreme Court
DecidedDecember 3, 1918
StatusPublished
Cited by29 cases

This text of 176 P. 197 (State v. Langford) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Langford, 176 P. 197, 90 Or. 251, 1918 Ore. LEXIS 203 (Or. 1918).

Opinion

HARRIS, J.

In 1907, the legislature enacted a statute entitled

“An act to punish a person for failing or refusing without just or sufficient cause, to support his wife or children, or to provide for their support”: Chapter 78, Laws 1907.

Section 1, afterwards carried into Lord’s Oregon Laws as Section 2166, reads thus:

“Any man who, without just or sufficient cause, shall fail to support his wife or child shall be deemed guilty of a misdemeanor, and shall be punished therefor by imprisonment in the county jail for not less than thirty days, nor more than one year.”

In 1913, the legislature repealed Chapter 78, Laws of 1907, and enacted a new statute, Section 1 of which made it a crime punishable by imprisonment in the penitentiary or in the county jail for any person to fail or neglect, without just or sufficient cause, to support his wife or children: Chapter 244, Laws 1913.

In 1915, Section 1 of the act of 1913 was amended to read as follows:

“Any person who, without just or sufficient cause, shall fail or neglect to support his wife or children shall be deemed guilty of a felony and shall be punished therefor by confinement in the State prison for not less than one year nor more than three years, or by imprisonment in the county jail for not less than 30 days nor more than one year; provided, however, that when a decree of divorce between husband and wife has [258]*258been heretofore or shall be hereafter granted by any competent court, and the custody of the child or children, the issue of said marriage relations, has been or may be given by the court to either party to the suit, then the provisions of this Act shall not apply as to the other party to said suit ’ ’: Chapter 249, Laws 1915.

In 1917, the legislature amended Section 1 of the act of 1915 so as. to make it read thus:

“Any person who, without just or sufficient cause, shall fail or neglect to support his wife, or female children under the age of eighteen years, or male children under the age of .sixteen years, shall be deemed guilty of a felony and shall be punished therefor by confinement in the State prison for not more than one year, or by imprisonment in the county jail for not less than thirty days nor more than one year”: Chapter .136, Laws 1917.

The act of 1917 did not become effective until May 20, 1917: Cooper v. Fox, 87 Or. 657, 661 (171 Pac. 408).

1. Many of the states have statutes making it a punishable offense for a father to fail to support his child or for a husband to fail to support his wife. The wording of most of the enactments coming under our observation is, in some particulars, different from the language of our statute; and, yet, nearly all the legislative acts passed in the different states are quite alike in substance. Different motives have been assigned for the adoption of legislation which penalizes a father for failing to support his wife or child. It is said by some courts and text-writers that the primary object is to redress a public grievance by relieving the public from the burden of caring for a helpless child or an indigent wife; while others take the view that these statutes, though criminal rather than civil in kind, are in the final analysis really designed as a remedy for the benefit of the wife or the child, in addition to the [259]*259remedies afforded by civil proceedings: People v. Malsch, 119 Mich. 112 (77 N. W. 638, 75 Am. St. Rep. 381); State v. Waller, 90 Kan. 829 (136 Pac. 215, 49 L. R. A. (N. S.) 588); 8 R. C. L. 306; 13 R. C. L. 1191. Notwithstanding some jurists may say that the theoretical ultimate purpose of nonsupport statutes is for the benefit of the public, and others may take the view that this sort of legislation is for the benefit of the wife or child, yet all can probably concur in the statement that the practical result sought to be accomplished is to compel the husband and the father, when able, to do his full duty. In State v. Gillmore, 88 Kan. 835 (129 Pac. 1123, 47 L. R. A. (N. S.) 226), the court pithily says:

“The object of the statute was to compel the husband, if he were able to do so, to support his wife and children.”

Our nonsupport statute does not create a new duty; nor does it enlarge any previous obligation. When it enacted the statute, the legislature did not attempt to define the duty of the father or husband, but it assumed that the law had already imposed a duty upon him and, acting on such assumption, the lawmakers wrote and adopted a statute penalizing the father and the husband for any failure to perform such existent duty: People v. Pierson, 176 N. Y. 201 (68 N. E. 243, 98 Am. St. Rep. 666, 63 L. R. A. 187). We must, therefore, look beyond Chapter 136, Laws of 1917, to ascertain the legal duty imposed upon fatherhood.

2. It is the legal duty of a father to support his child. Some early American cases, like Kelly v. Davis, 49 N. H. 176 (6 Am. Rep. 499, 501), hold that “there is no legal obligation on a parent to maintain his child, independent of the statutes”; but this narrow and unnatural doctrine is repudiated by the great majority of American courts: Ward v. Goodrich, 34 Colo. 369 [260]*260(82 Pac. 701, 114 Am. St. Rep. 167, 2 L. R. A. (N. S.) 201); Rounds Brothers v. McDaniel, 133 Ky. 669, (118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326); Alvey v. Hartwig, 106 Md. 254 (67 Atl. 132, 14 Ann. Cas. 250, 11 L. R. A. (N. S.) 678); Spencer v. Spencer, 97 Minn. 56 (105 N. W. 483, 114 Am. St. Rep. 695, 7 Ann. Cas. 901, 2 L. R. A. (N. S.) 851); 29 Cyc. 1606; 20 R. C. L. 622). In this jurisdiction we have a statute which affirmatively declares that

“Parents shall be bound to maintain their children when poor and unable to work for themselves; * * Section 7054, L. O. L.

When we say that it is the legal duty of a parent to support his child, we are dealing with a duty in the abstract; but when called upon to determine whether the duty has been performed in a given case we must remember that what would be a complete performance in one case might be only a partial performance of the parental duty in another case. In other words, the obligation of the father must be measured with reference to his ability, honestly exercised, and with regard to his financial resources. If the child is able to earn its own support, in whole or in part, the father is not obliged to support his offspring in idleness, but he is bound to furnish such portion as the child cannot, all things being considered, earn by reasonable effort: Graham v. Graham, 38 Colo. 453 (88 Pac. 852, 12 Ann. Cas. 137, 8 L. R. A. (N. S.) 1270); Matter of Ryder, 11 Paige (N. Y.) 185 (42 Am. Dec. 109). The parent performs his duty when he provides for his child whatever is necessary for its suitable clothing and maintenance according to their situation and condition in life: De Brauwere v. De Brauwere, 203 N. Y. 460 (96 N. E. 722; 38 L. R. A. (N. S.) 508; State v. Bess, 44 Utah, 39 (137 Pac. 829.); Hedin v. Suburban Ry. Co., 26 [261]*261Or. 155, 160 (37 Pac. 540). An excellent statement of the rule in its broad outlines is found in State v. Waller, 90 Kan.

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Bluebook (online)
176 P. 197, 90 Or. 251, 1918 Ore. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-langford-or-1918.