Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-04-20

Weed vs.. Maynard, 50 Cal 45e; estste of Beach
oS Cal. 45o; Cole VS.. Fisher, &c Cal. AL People
vs. Pratt, 81 Cal 81 Sacramento vs.. Bird. Is Cal
"a, ireadwell VS.. Supervisors, 60 Cal. 563 The
ACT Goes not contain any express repeal OF for
' mer ACTS, whether consistent or inconsistent
And there is no repeal by necessary implication
OF any part OF the chapter of the Civil Code
which provides for the adoption of children
Wnen the parents of a child die there is no
principle OF either the common law or of the
civil law which confers parental authority upon
7 any person, aggregation of persons or corpora
ton over the child; and nothing less than an
express statute in direct terms can confer such
authority.
Under every system of jurisprudence in every
clvlhzed state, the Court of Equity or other Su-
pefior Court as pdrens patricia is clothed with
paternal jurisdiction to superintend and DO
, tect orphan children, and other infants as wen
as dlots and lunatics. e Sory's guilty Jurispr,l-
dence lSSS. 1884, 1885, 1861 In the exercise of
TINS jurisdiction, the Court may appoint per-
son known as guardian in the common law or
person known as tutor in the civil law, with
power over the person snd estate of the minor,
or might decree an adoption under the civil
law; and in the exercise of The Jurisdiction in
either case. the interest and the welfare of the
minor are the controlling considerations and
with TINS OBJECT III view, in a case where the
| interest and welfare of the child will be pro-
NOTED, the Court will deprive the parents of
| their parental authority &c. C. 246; Smith VS.
| smith, 20 Am. Dec. 324 Huri on hatess cornils
| 46l; butler VS.. Freeman Amber Rem $50,
theretol
| "a
Case OF Orphans ard Abandoned Children. >
approved March :, 1874 gives to the officers or
| Managers OF Orphan Asylums having under
!nelr care such abandoned child as is described
IN the Act the preferred right to the guard
| lanshIp of such child" but they must receive
| thelr appointment from the proper Court: but
even tlat ACT does not confer upon them the
| rlght OF guardianship of orphan nor anv
| other right or authority over orphan children
! IL cannot be inferred from auy statute we
| nave been able to ind that II was the intention
m
| GERS or members Of any orphan asylum 10 pre-
| vent the adoption of orphan chi ,dren The ey
lstenee OF such power would be dangerous to
| the interest and welfare OF such children An
adopted child by its adoption acquires inaportsut
| rights, OF which it might be deprived by an OH
stnate and perEerse exercise of such power
ana SO 90 the ADOPTED parents acquire import
ant rights. The legal status or relation created
by adoption is that of natural parents aud child
with all The mutual rights, duties and obliga-
tons moving theIeffom II is provided in the
chapter on adoption in the Civil Code that g a
| child, when adopted, may take the family name
OF the person adopting After adopting the two
snail sustain toward each other the legal rela-
tons of parent and child, and be subject to all
the duties of that relation" &C. C. 32sl This
confers the right of succession or inheritance,
not only from the adopted parents 10 the
adopted child, but to the grand children and
vice versa, tom the adopted enid or grand
chiI 6! to the adopted parents. (Humphries
1877 - i''-n'
Ii is matter of history that Augustus desir- !
ing to have Tiberius as his son and GeSmanicus !
as his grandson, declined to adopt Tiberius |
until he had adopted Germenictls and then An I
gustus adopted TIberius who became his son /
ana Germanlcus the grandson, " at the same in I
slant by adoption, as stated by Justinian |
lCooper's Justinian, Lib. T., Tit XII, sec II1 !
Thus the right of succession or inheritance was /
created between them, and as our law of adop- /
are created by adoption
But there is another Circumstance which may
be considered By Section 226 the persons, if !
within or residents of this Stare whose consent
IS necessary, must appear before the Judge of |
the superior Court, and then necessary consent /
theIeupon be signed and by Section 227 " the I
Judge must examine all persons appearing be-
lore him, pursuant 10 the last section each per
son separately, and if satisfied that the interests
Of the child will be promoted by the adoption
ne must make al order declaring that the child
snail theneeiorh be regarded end treated in all
respects as the child OF the person adopting
II tue managers are corporation how can The /
corporation appear before the Judge or how can
The Judge examine the coIporation2 or if the
Man ayers are not corporation. must each ind;-
vldral appear before the Judge TO sign consent
ana be examined? or what number of them2
Must all appear or only majority2 II is clear
tney cannot appear or be examined by proxy
II their consent is necessary they must all
OF at least a majority of them, appear and
sign the consent IN the presence OF the
Judge, and be examined by him. But if a mi
norlty should object, what right has the ma
lority or the Court TO disregard the objection
4u!s law Goes not recognize the act of the Board
OF Managers because the Board as a Board can
not be examined. The solution of the difficulty
IS this: the act relied on by the counsel for the
Managers of the Asylum does not expressly de-
clare that the consent of the Managers is re-
quired or shall be necessary TO the adoption of
an orphan under their care, and to hold that By
necessary implication that act makes the CON
sent OF the Managers necessary is to create an
lTreconcllable conflict between il and the chap
ter OF the Civil Code concerning adoptions
winch would operate as a repeal of the chapter;
but as we have seen, this result cannot be toler-
ated.
1t results from all we have seen that the con
sent OF the Managers TO the adoption was not
necessary to confer jurisdiction on the Court or
Judge to make the order sought to be vacated
and 1t follows that the Judge hsd jurisdiction
10 make the ORDER and it is conclusive as to the
relation between the adopted parents and the
child. &C.. c. p l90s) And as important rights
have been created by the order. the Court has
no power 10 set il aside or vacate it; but if the
Court had any discretion in the case il should
be controlled by the best interest and welfare of
the child, and upon the facts and circumstances
oil TINS case its interest and welfare would he
promoted by permitting the order to stand and |
the rights created thereby to rest as now vested
ne motion TO vacate the order is therefore !
oenleo. J. w. ARMSTRONG, Judge.