#### Smith, Plaintiff in error, vs. The State, Defendant in error.

*March 17*—

April *5, 1911.*

*Bastardy: Prosecution by private attorney: Statute construed.*

*A*bastardy proceeding under our statutes, being designed primarily for the benefit of the mother and being essentially civil in the remedy sought and the liability enforced, may be prosecuted by private counsel. Sec. 1533m., Stats. (Laws of 1907, ch. 648), making it the duty of the district attorney to appear and prosecute, does not by implication exclude private attorneys from prosecuting.

EeROe to review a judgment of tlie circuit court for Brown county: S. D. Hastiet&s, Circuit Judge.

*Affirmed.*

For tlie plaintiff in error tlie cause was submitted on the brief of *M. E. Davis.*

Eor the defendant in error there was a brief by the *Attorney General*and Sheridan, *Evans & Merrill,*and oral argument by P. *H. Sheridan.*

Vihje, J.

The sole question presented by this appeal is, Can private counsel lawfully prosecute in a bastardy proceeding? It is conceded by counsel for plaintiff in error that previous to the enactment of sec. 1533m, Stats. (Laws of 1907, ch. 648), they could do so, but it is claimed that since its enactment only the district attorney has such right. The section reads: “It shall be the duty of the district attorney to appear and prosecute in all bastardy proceedings in the trial court, . . and it is argued that this law, placing the duty upon the district attorney to prosecute, by implication excludes a private attorney from performing the duty; and that either the complaining witness or the defendant may insist upon the statute being complied with. It is further urged that while a bastardy proceeding is not a criminal action, yet it subjects the defendant to great humiliation and disgrace, and sound public policy dictates that the prosecution should *112be placed in tbe bands of a disinterested prosecutor and not in tbe bands of private counsel wbo may be, indirectly, pe-cuniarily interested in tbe result, and that tbe statute was passed to accomplish sucb a purpose.

Tbe answer to tbe question presented for determination will depend upon tbe nature and object of a bastardy proceeding and wbo is primarily interested in tbe result of tbe action. If tbe proceeding be one in wbicb tbe defendant is sought to-be punished for a wrong done to society or tbe state, then there is great force in tbe argument that tbe state alone should prosecute. *Biemel v.*State, 71 Wis. 444, 37 N. W. 244; *State ex rel. Durner v.*Huegin, 110 Wis. 189, 221, 85 N. W. 1046. A bastardy proceeding has been held to be neither a civil nor a criminal action, but one depending wholly upon tbe terms of tbe statute authorizing it for the-relief that may be afforded thereby. *State v.*Mushied, 12 Wis. 561; *State v. Jager,*19 Wis. 235; *Baker v.*State, 56 Wis. 568, 14 N. W. 718; *Meyer v.*Meyer, 123 Wis. 538, 102 N. W. 52. Tbe latter case held it was designed primarily to-enable tbe injured female to recover compensation from tbe person wbo has, in tbe eye of tbe law, inflicted an injury upon her with consequent damages. It has also been held that when instituted by tbe mother it is a proceeding for her benefit and protection to enforce tbe father’s natural obligation to support bis child. *Baker v. State, supra; Barry v. Niessen,*114 Wis. 256, 90 N. W. 166. So we see that whether tbe defendant’s liability is founded upon a tort or upon a natural obligation, irrespective of blame, it is a liability primarily to tbe mother and tbe remedy is given for her benefit. True, tbe state is remotely interested, for if tbe father does not furnish support it may be called upon to-do so.- But its contingent claim upon defendant is purely a pecuniary one and has naught to do with tbe violation of any criminal statute. A defendant may be adjudged guilty in a bastardy proceeding and also in a prosecution for fornica*113tion, or whatever statutory offense he may have been guilty of when the child, was begotten, but they are two separate and distinct actions founded upon distinct grounds of liability. In the one the mother is primarily interested, the state only remotely, and both interests are wholly pecuniary. In the other the state alone is interested, but not in a pecuniary sense. It is enforcing its criminal laws on the ground of public policy. In view of the considerations as to the nature and object of a bastardy proceeding, we reach the conclusion that sec. 1533m was designed to provide counsel at the expense of the state for every mother who desired to avail herself of its provisions; but she is not limited to the services of the district attorney. If she prefers to engage counsel at her own expense she may do so, as the action is primarily for her benefit and essentially civil in the liability enforced and remedy sought. *State ex rel. Durner v.*Huegin, 110 Wis. 189, 221, 85 N. W. 1046. The object of the statute was not to place the prosecution of such actions in the hands of a disinterested counsel for the benefit of defendant or on grounds of public policy. There is no more reason why the prosecution of such an action, seeking merely a money judgment, should be solely in the hands of the district attorney than that of many other civil actions, such as assault and battery, libel, slander, seduction, and criminal conversation. In such actions an adverse judgment would in most instances subject the defendant to great disgrace and humiliation — at least it ought to do so; and the pecuniary interest of plaintiff’s attorney in such actions may well be co-extensive with his interest in a bastardy proceeding. It follows that the trial court did not err in permitting private counsel to prosecute the case. .

*By the Gourt.*— Judgment affirmed.