Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1910-02-18
THE TlLLMAN CHILDREN.
[Continued from First Pase.l


IContinued from First Page.l
often held that the legislature may by
statute empower a guardian to sell the
property of his ward without legal pro-
cess but this can be done only for a
purpose connected with the conve-
nience or necessity Of the child as the
owner. A legislative enactment could
not be made that guardian or a pa
rent should determine the right OF
property when they had set up claim
adverse to the minor.
Legislative Limits.
So, likewise, the legislature cannot
provide that the father shall take fna
disposition Of the child's custody and
thus settle an issue contested with him
in his own favor. When such arbitrary
power is asserted under a legislative
act, or otherwise, the person so ag-
zrieyed is entitled to judicial inquiry
into the cause Of the detention.
After setting out the rights Of pa
rents as to the custody and restraint
of children and the restraints incident
to some other legal relative, Judge Coo
These then are the legal restraints
upon personal liberty, for any other
restraint or for any abuse Of the le-
gal rights which have been speciieo
to immediate process from the courts
and to a speedy relief" Cooley Con
Linn 422.
without pausing to apply the COM
prehensive definition Of due process
of law laid down in Turpin VS.. Lemon
1877 u. S. 81: AZ L. Ed. 70, it Is sufficient
to say here that 1t Is universally un-
derstood that on the issue Of custody
deprivation Of liberty or legal restraint
Of children, due process Of law re-
Quires judicial investigation and de-
termination Of the rights Of parent;
and children under writ OF habeas
corpus or by an appropriate proceeding
in q court of equity. Prather VS.. Pra-
tner 4 Des. 80; Elk Parte Shumper
Rich. 436; Elk Parte Hewitt II Rich
326; Elk Parte Williams IL Rich. 452;
Elk Parte Reid 19 s. c. 604; Anderson
VS.. Young As s. c. 3SS; Elk Parte Da-
vidge 72 S. c. 16; Elk Parte Reynoldi
73 S. C. 2s6; Brown VS.. Robertson 7t
S. c. 151; Elk Parte Rembert 50 S. c
1886.
Fatal to Statute.
There Is another provision of the
constitution equally fatal to the stat.
ute regarded as an attempt to confer
upon the father arbitrary power tc
grant the custody of his children tc
any person he may select. The consti-
tuition requires that the legislative, ex-
ecutive and judicial departments shall
be forever separate and distinct from
each other Article l, section 4. The
same provision in the constitution
was passed. The question of the GUS
tody of minors or their illegal restraint
has always been recognized as judi
cial question to be determined by
the courts, Pomeroy's Equity, section
1904. That it is the function of the
court to decide issues Of this kind has
been held in this state by unbroker
authority from the case Of Cottman
Hill, 1853 to Elk Parte Rembert, 80 S. G
336.
The legislative branch Of the gov
ernment Is denied the power to exer-
else judicial function or to confer on
father or any other person the right tC
exercise 1t. In accordance with this
view, II was held in the Ware Shoals
Manufacturing Company VS.. Jones, 7z
s. c. 211, that the general assembly
could not take away the power of the
court to enjoin threatened irrepara-
BILE injury to private property, unless
II provided some other adequate judi
cial remedy.
From these considerations it follows
that If the act under consideration be
construed as an attempt to give the
father the absolute right to dispose OF
the custody Of his children by deed OF
will, II must be held unconstitutional
but II there is a different construction
of the statute which can be reasonably
given, not inconsistent with the con-
stitution, it is the duty Of the court to
adopt 1t, although 1t may be the less
natural construction. For it Is always
presumed that the legislature intends
a statute to have meaning and effects
consistent with constitution, Elk Parte
Graham, 13 Rich. 277; Hayes VS.. Clink-
scales, 8 S. c. A; Cooley Con. Linn
223; 26 Am. and English 694. We
think such construction may be given
in this instance. While the father
cannot be empowered to convey away
the rights Of the children or the rights
Of the mother with respect to their GUS
tody, there Is no reason why the gen
eral assembly may not provide his deed
should be binding on him. The result
Of this construction Of the act would be
to give effect as against the father HIM
self to any deed made by him in ac-
cordance with the statute, so that, af-
ter he had made such a deed, he could
not, as against the grantee, demand
back the custody which he had volun-
tarily relinquished. Accordingly the
validity Of the statute, to this extent
as recognized in Elk Parte Davidge, "
S. C. %; and Elk Parte Reynolds 72, S,
c. 296.