Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1910-02-18

Il
according to law, dispose Of the GUS
tody and tuition of such child or chill
dren for and during such time as ne,
she or they, respectively, remain under
the age Of 81 years, to any person or
persons, in possession or remainder.
Section 1880. Such disposition Of
the custody Of such child or children
shall be good and effective against all
and every person or persons claiming
the custody Of such child or children,
as guardian In socage or otherwise"
On behalf Of the petitioner II Is con
| tended that the statute should be con-
strued to confer on the father the right
to dispose Of the custody Of his chill
dren only after his own death. This
position Is untenable. II is true that
the statute Of IL Charles 1924, adopted
in this state without change, In 1848,
| e Stat. 707), clearly limited such pow
er to the disposal Of the custody OF his
minor children, to take effect only at
statute was entirely repealed by the
revised statute Of 1872 and a statute
containing the sections above quoted
| Except the amendment Of 1887, provid-
ing for the disposition by deed or will
by the mother, the father being dead)
was enacted, not as an amendment but
as q separate statute. When so en-
acted It was placed under the general
head. Guardian and Ward" and un-
der the subhead, Minors"
The words limiting the application
Of the law to the custody of the chill
dren after the death Of the father were
omitted from the new statute, and the
omission clearly signifies the intention
not to limit the power Of disposition
which II conferred on the father to the
custody after his death.
| The fact that the statute was placed
in the revised codes Of 1882 1898 and
1902 under the head "Testamentary
Guardians" might be regarded as sig
nificant Of the intention, II the case
were one Of doubtful construction, but,
the place assigned to statute In the
civil code cannot control the plain
self.
It is therefore manifest that what
ever power Of disposition was confer
red by the act on the father extended
to the custody Of children during his
The next position taken on behalf Of
the petitioner Is that the deed to the
respondents could have no effect be-
cause there was prior outstanding
agreement between B. r. Tillman, Jr.,
and his wife, acquiesced In by the res
pOuOcuto, WuiCu pEOfiuCu lLat uuLlu8
the year 1909 the husband and wife
should alternately have the custody Of
the children. The argument is that
the first agreement was binding on the
husband and the respondents until II
had been revoked by consent Of the
wife or had expired by its own limita-
ton.
The argument fails because the first
agreement was made In view Of the
then existing separation Of the hus-.
band and wife. and there was after
ward a reconciliation.
Any agreement made In contempla-
tion Of broken family ties and provid-
ing for the continuation Of the breach
was annulled by the reconciliation and
the renewal Of united family life.
This brings US to the inquiry; what
is the extent Of the power Of DISPOSE
ton conferred on the father? Did the
general assembly intend to confer ar
bitrary power, regardless Of the rights
and welfare Of the children, and Of the
family rights Of the mother? Or, did
1t intend It to confer, upon him the
power to transfer such rights as he
himself had at the date Of the deed,
without infringing upon the rights Of
the children to be placed In the custo-
dy Of their mother and Of the rights
Of the mother to have their custody, In
case the father had forfeited his right
by his conduct?
We think the proposition capable OF
demonstration that II the act Is to be
construed as comforting arbitrary pow
er on the father IL is violative of CON-
stitutional rights. The constitution Of
this state provides: "The privileges
and immunities Of citizens Of this state
and of the United States under this
40 noft tt,tff ho ha al
shall any person be deprived Of life,
liberty or property without due pro.
cess Of law, nor shall any person be
deprived Of the equal protection Of the
laws" Article /, Section 5.
The liberty guaranteed In this Sec
tion, and in the like r-ovision Of the
14th amendment Of the constitution Of
the United States Is thus defined by
the supreme court Of the United States
in Allgeyer vs. Louisiana, 165 U. g.,
SIS; Al L. Ed. 1872: "The liberty men,
toned in that amendment means not
only the right Of the citizens to be free
his person, as by Incarceration, but the
term Is deemed to embrace the right Of
the citizen to be free In the enjoyment
Of all his faculties; to be free to use
them in all lawful ways, to live and
work where he wills; to earn his live
lihood by any lawful callinzs, to pur-
sue any livelihood or avocation and for
that purpose to enter into all contracts
which may be proper.
Right of Freedom.
In the right of freedom from unlaw-
full restraint Is embraced the right to
the enjoyment Of all those privileges
and immunities which belong to the
citizen Of a free country. These priv
ileges and immunities are from their
nature incapable Of limitation by ex-
act definition. For the purposes of this
discussion II Is sufficient to say that
they clearly embrace family rights,
that Is, the right Of parents to the care
and custody Of their children end the
right Of children to receive from their
parents maintenance and care. but be-
yond this there is a liberty Of children
above the control Of their parents
which the courts Of England and this
country have always enforced.
When the parent In asserting his
claim to the custody Of the child, disre-
CARDS the correlative right Of the child
to care and maintenance at his hands,
1t is universally held that the right OF
the parents is at an end and the child
for itself or another on its behalf may
assert the custody and control OF the
parent 10 De an lleSdi reStrdinl upvn
its liberty. This liberty Of the child
thought to be free from such illegal res
traint Of the parent and constitution
forbids to be taken away except by due
process Of law.
Parent Va. Parent.
Within the protection Of this provi-
sion Of the constitution fall also certain
rights Of the parents against each 9TH
er with respect to the custody OF their
children. The father being charged
with the support Of his children, ordi-
narily his right to their custody Is su-
perior to that Of the mother, but when
the father relinquishes his right to the
custody or forfeits 1t by his conduct,
there can be no doubt that the mother.
under her family right, is entitled to
the custody and care Of her child. In
other words as soon as the fathers
right falls away, the mothers right
Immediately takes its place and must
be recognized by the court unless 1t
be relinquished or forfeited. The rights
of the father and mother are both sub
ject to the still higher rights Of the
child to have its welfare safeguarded.
Not Constitutional.
1t seems perfectly clear that the gen.
aroI osaapblv can NOT emn0wer the