Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1889-04-20
IDA CHAMBERS.
JUDGE ARMs"RoNG's DECISION IN
THE CASE.
The Child to Remain in the Custody
OF the Bnckiins-The Circum-
stances Reviewed-Etc

between the Managers of the Protests,
orphan Asylum aud Walter NJ. Buckli
and wife, came up for final decision oefol
Juoge Armstrong yesterday. The fac
have been previously presented and th
points at issue argued. The Court decide
that the child must remain with her pre-.
ent custodians, the Bucklins, and the rec
sons therefor are forth in the following
DECISION OF THE COURT:
IN the matter Of the adoption of Clara
ChamneTs, q minor-The motion is made h
=. MIS-; M. a. Iwitchen, one CT the Managers {
the Protestant Orphan Asylum of the city of Sal
ramento, through her counsel, to vacate and s.
aside an order of Judge of this CourI. made O
the 18Th day OF Marcn, 1889, by which Waite
1Ias sae l1a q. rucklln were permitted to ador
Ciaia a; chambers, minor. The Managers {
the asylum are ladies' The motion is made +
behalf OF the other Managers as eli as in he
U Wsl oenaH Notice OF the motion was given +
water NJ. ana Ida b. Bueklin They appeare
ana opposed the motion Oral testimony wa
introduced at the hearing both for ana agains
IL. Inc facts of the case are substantially q
tSolio s The parents of the child have beer
9ea1 ior more than TWO years. Soon after tn
ueath OF the mother the child was received int,
tne asylum. II Is about three years and 81,
months old The Bucklins are aud have beef
Tor several years husband and wife Having N,
Children, they desired TO adopt a child as thei
own. -
;, On or about the 18th day of January, 1889, Mrs
Bucklln went TO the asylum to see If she coul,
bod u child she would like She was favorohl,
Impressed with the child Clara. and was per
United 10 take the child from the asylum TO he,
nome, with view TO adopt it. Thereafter the
chllo remained IN the custody of the Bucklins
by the consent of the Managers. They were
anxious 10 obtain home for il as well as TO,
other children in the institution A few DAYS
before the meeting of the Managers. which wa
n Mar ~,
nOtihed Mrs Bueklin TO come before them with
the child to determine if she wished to sdopt it
Sne went with II pursuant to the notice, and in
formed them that she wished to adopt the chi d
IL was then determined that the President al
the Board of Managers should attend 10 the
adoption, and she told Mrs Bucklin thst she
would attend to it, and would let her know
what day. but she failed TO do so.
Inc secretary of the Managers was then
deputed py the President to attend to it in her
s s15 me Secretary saw Mrs. Bucklin and
eoiu thet she would go with her and attend TO
IL IN few days, but she failed to do it, She
states that the reason of her delay was that She
wanted to make some inquiry rs 10 the charac-
ter ana condition OF the bucklins but that she
mad made no inquiry.
All these facts were shown by proof before
the Judge upon the hearing Of the application
Ior the order now sought to be vacated. And in
addition thereto il was then shown thai the
Bucklins were tit and proper persons, both f.
nanclally ana morally, TO have the care CUSTODY
ana education of the child ana that the in
teIest oil the child would be promoted by per
mlttlhg them 10 adopt II as their own. At That
tlme the Bucklins called the attention of the
Judge TO the fact that the Managers of the asy-
lum had not been notified of the application for
ieaFe " auoPl the enid but the Judge was of
the opinion that no notice to them was neces-
sary.
During the time which interviewed betwes n
the Attn day of January and the 10Th day Of
asfeh me child was in the care and custody of
the Bucklins, and supported at their expense
ana not at the expense of the asylum. There is
no evidence that the Managers are q corpora
tlon or represent corporation. TWAS objected
at inc nearing that neither Mrs. Twitchel nor
the Managers of the institution has or have such
rlght 10 the custody of the child as will enable
them TO maintain this proceeding to yacate the
oruer IN questlon. II there Is any statute which
confers the right upon the Managers or officers
OF any orphan asylum TO the care, custody and
education OF any orphan child it has ESCAPED
my researches; and il is certain no such right
Is conferred by the common law BuL if The
order in question was improvdently made. or
IS VOID Tor any reason, the Managers or any of
them may be permitted dRlicus cttrid to call the
attention OF the Court to it. Is the order void
because the Managers die not give their con-
sent TO 1t? The answer to this question involves
review of the law which authorizes the adop-
ton OF minors Division l., Part Ill, Title H.,
chapter ii. of the Civil Code provides for the
adoption of minor children The chapter con-
sists OF Sections 22l to and including section DO
SECTION 22l reads thus
q ANY minor child may be adopted by any
prescribed in this chapter"
ms section authorizes the adoption of " any
minor child in eases prescribed in that
chapter. The only limitation upon the mower
OF the Court or Judge TO order an adoption is
contained IN Section 22i which is as follows:
legitimate child cannot be adopted with
out me consent OF the parents if living; nor an
llegltimate child without the consent of its
mother, II living; except that consent is not
necessary from father or mother deprived OF
civil rights, or adjudged guilty of adultery or
cruelty and for either cause divorced or
adIudged to be an habitual drunkard or who
has been iudicialiy deprived of the custody Of
the child on account OF cruelty or neglect"
In the Interpretation aud construction of the
statutes 1t IS the duty of the Co ut to look at
the source whence they were taken. The law
providing for the adoption of minor children
was unknown 10 the common law, but it was q
familiar principle in the civil law. The law of
adoption Is OF the Oldest antiquity it was
known among the Hebrews the Asyrians and
the Egyptians, the Greeks and the Romans the
aiiclent Germans and the French, AID il was
introduced INFO Louisiana by Spain In all the
CIVILIZED nations in the world where the civil
law prevails, the law of adoption has a place in
their jurisprudence. Vidal vs. Conwagere. 10
La An, 5l6, Ellen W Upton VS.. w. N. " ison, i6
La An, us; HUMPHREYS VS.. Davis 80 Am hep,
IoS-) Adoption WAS made in one OF two. ways
either by imperial rescript. or authority OF the
magistrate fCOoper's Justiniau Lib / Tit
XII, Section H. The consent of the father
but not the consent of the mother or other per
son, was usually To be given to the adoption oil
MS enid by another, though 1t was not uni.
iotmly necessary. II toe power of the father
over the child had been dissolved by loss OF
liberty or citizenship or the elevation of the
son TO certain dignities, his consent was not
necessary 10 the adoption. The mode OF adop
ton was By a kind of a fictitious suit or feigned
recovery, in which the adopter was supposed tC
claim the child, and the father made no defense
IL ne consented, or If 1t was case in which h;
consent was not nece ssary he was precluded
from making defense, and The ma istrate de
elared the child that of the adopter Where
there was no father this proceeding was dis
pensed with. tCunnin's Institute of Justinian
56-5960) such being the civil law from which
our code on the subject of adoption was taken
1t viii not be presumed that the Legislature IN
tended 10 impose restriction or limitation
upon the power granted in Section 22l further
than IS expressly declared in Section ga snC
the case now before the Court is not within the
restriction or limitation imposed by that sec
ton. And IL seems clear that Section 226 mus
be read in the light of those sections. and wher
II provides that 1.-THE persons adopting a chil(
and the child adopted and the other persons, !
within or T sidents of this State, whose consen
is necessary, must appear before the Judge Q
the Superior Court OF the county where the per
Soa adopting resides and the necessary consen
must thereupon be signed the words "lh
other persons, IL within or residents OF thi
State, whose consent is necessary" must b,
construed and interpreted to refer to the parent
OF legitimate chi'd, il living, OF the mother O
an illegitimate child, If living, mentioned ii
Section "a, and no other persons otherwise
the adoption is not 10 be made in he cases an
subject 10 the rules prescribed in that chapter
as provided in Section 22I
And this view is an answer TO the argumer
founded upon the Act of the Legislature eniitle
An Act 10 authorize the Managers of orpha
asylums 70 give their consent TO the adoption {
certain children under their care" approve
April /, 1878, which is as follows: THE Mar
ayers of the several orphan asylnms in this Stat
are hereby authorized and empowered 10 COZ
sent to the adoption of any orphan child
child abandoned by its parents in the sam
manner that parents are by law authorized
consent TO the adoption OF their children Or,
yiced. however. that such orphan child or chill
abandoned by its parents shall have been in til
charge and under the management of the Mai
ayers of such orphan asylum for the period
one year prior TO such adoption AID durir
that period supported wholly st the expense
said asylum
This Act is no part of that chapter Of Il
Civil Code. nor does it purport TO be an amen
ment thereof; nor does it assume to declare TIL
the consent of the Managers is necessary TO u
adoption of an orphan child; it only empowe
them 10 give consent, but is not restrictive
the jurisdiction of the Court. II the consent
the Managers of al orphan asylum is necessa
10 the jurisdiction OF the Court when the chi
had been in the asylum for one year. TO ord
its adoption by another person, then they mig
prevent the child from being adopted till il .