New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-11-25

laid down by counsel these authorities are
very conclusive, and my opinion folly coin
cides with the views expressed by him.
But it is Observable that this court has not
ventured to bold that the judgment of
the Second District Court is errODe-
Gus. 1t has not held that the father is
not the tutor of the natural child, as he
was decreed to be. 1t is conceded by this
court that the Second District Court did
not err, so far a. it has any power to revise
it's Judgment. l am fully aware chat it has
no snch power whenever the question OF
jurisdiction is settled. The question now
before me is, admitting that the Second
District Court had the jurisdiction over the
case, that it properly exercised 1t in decree
ing the respondent to be the tutor, has he
the right to the custody of the natural
child of the relatri1l Had that court any
power under any law to confer such right
upon him under any circumstencess Ii it
had it is not competent for this court, I'M
t+ntion by him is illegal. Counsel tor re-
latrix cites article 253 of our code to show
that "the mother who refuses the tutorship
of her children retail ns the superintendent
of them and the care of their education.
The tutor in such a case is merely intrusted
with what concerns the administration of
the property" l am impressed with the
belief that he has miscOnceived the appli-
caliOn Of this article. 1t relates to the
rights of q surviving legitimate mother,
who is entitled to the tutOrehip by nature.
The tutorship being given to another, who
may be in no way related to the minor,
would not be, under this article. entitled to
the superintendence OF it, but only intrust
ed with what concerns the administration
of its property. In other words, while it
leaves the mother at liberty to quality
as the tutrix of her legitimate children,
it does not compel her to give them up
to dative tutor, q tutor by will, or q tutor
by the appointment of the judge. After
article has 30 application to this case. 1t
applies s0lely to the widowed mothers Of
legitimate minors; while the object of
article 2o6 Ut the code was to ameliorate
the unfortunate condition of natural chill
dren by providing for them q protection
under the sgis Of law, as nearly assimilated
to Legitimacy as u jealous and proper regard
for the estate of mstrimOny would permit.
Under the code OF 1903 they were outcsst,
human waits, having no family, no relation,
blessed by no sympathies, cheered by no
hopes of social recognition and by universal
sanction condemned to travel on lives
common way,"a d breathe existence OF I'M
mitigated humiliation. The jurists appoint
ed to propose amendn ents Of the code. hu.
namely introduced article 256. which en-.
sbled the father to place himself in such q
position as to materially extricate the ma
tural child from his unfortunate condition.
When, therefore, he becomes the tutor I'M
der its sanction, may it not have been the
purpose Of those great jurists that he should
be regarded as the natural tutor1 He is
not dstive tutor, for no family meeting
was convened to authorize his appointment.
He ia not q tutor by will, nor is he tutor
by the appointment of the Judge, and
know of no other kind of tutorship. If
must classify the father in such case, as
the natural tutor, his authority over the
child becomes superior to all others. am
referred to section 236O Revised Statutes,
but do not thiuk it applies. The law contem-
plates NO useless thing, and if this law has
been dieregsrded and made 90 to appear this
court would not correct the error either
of law of fact. Much of the argument on
this point went beyond the scope of IKE
jurisdiction OF this court, and would be
potent in another tribunal. am forced to
conclude that 1t is my duty. under the law,
to reconsider the conclusion formerly
reached as to the custody of the child. 1t
am right in considering it to be the object
of the law, article 25o, Civil Code, to place
permit, in the relation of q legitimate father
to his chfld, it follows that his rights quo ad
the child stand in the same relation tU those
of the mother, as they would were they
united as husband and wife. The law does
not encourage the maternity any more than
it does the paternity of such child, but on
account Of the necessity therefor, it does
recognize the mothers prima face right in
the absence of any concurrent acknOwl-
edgement. When the father emerges from
his Obscurity, enters the courts. and in q
lawful manner reveals his paternity from
motives of humanity and civilization, he is
recognized and clothed with such authority
as, under such circumstances, public morals
can safely confer. He becomes the equal
of the mother in the natural relation to the
child. and under the last clause of article
2256 of the Civil Code. is entitled first to the
tutorship. reach this conclusion in this
case reluctantly, because am Of opinion
that the Judgment Of the Second District
Court is erroneous. With this have NJ
power to deal; and I1ust leave it to the de
oision of the Supreme Court.