
    No. 24,138.
    Rodney Doughty, a Minor, by Edyth M. Woods, his Next Friend, Appellant, v. Ray Engler, Appellee.
    
    SYLLABUS BY THE COURT.
    Illegitimate Child — Father Under Obligation to Support It. The father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support itj which may be enforced in an action brought by it through its next friend.
    Appeal from Clay district court; Fred R. Smith, judge.
    Opinion filed January 6, 1923.
    Reversed.
    
      R. C. Miller, and C. Vincent Jones, both of Clay Center, for the appellant.
    
      William M. Beall, and W. ■T. Roche, both of Clay Center, for the appellee.
   The opinion of the court was delivered by .

'Mason, J.:

A four-year-old boy, bom out of wedlock, brought this action through his mother as his next friend, against one alleged to be his father, to require the defendant to make provision for his support. This appeal is taken from the sustaining of a demurrer to the petition.

At common law the father of an illegitimate child was under no legal duty to support it. In behalf of the plaintiff it is urged that this rule is not sound in reason and not in keeping with modern ideas of.natural right, and should not be regarded as remaining in force in aid of our statutes by virtue of the act giving that effect to the common law as modified by “the conditions and wants of the people.” (Gen. Stat. 1915, § 11829.) The courts of this country apparently in every case in which the question has been raised have held, that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. (7 C. J. 955.) In most of these cases, however, the matter has been treated as settled by the mere fact that the common law recognized no such duty on his part, and the question whether the rule is so repugnant to present-day conceptions, of social obligations that courts should refuse to .follow it has not been extensively discussed.

The common law with ■ almost uniform consistency treated an offspring of parents not married to each other as nullius filius — the son of no one — of no father and no mother. That is to say, it closed ' its eyes to the fact of that relation and in legal aspect ignored its existence. It absolved the mother equally with the father from liability for the support of the child (Ruttinger v. Temple, 4 B. & S. 491), although this has been doubted (Humphrys v. Polak, 1901, 2 K. B. D. 385, 389). It also denied to both parents the legal right to its custody.' The question asked in an earlier case, “How does the' mother of an illegitimate child differ from a stranger? has been interpreted as “stating bluntly this legal doctrine.” (Barnado v. McHugh, Appeal Cases, [1891] 388, 398.) In equity, however, recognition was made of “a sort of blood relationship” (The Queen v. Nash, 10 Q. B. D. 454) that entitled the parents to some consideration in the- matter. -But the common law in failing to require the parent of an illegitimate child to support it did not rest wholly upon the nullius ftlius idea, fos as interpreted in England and in some of the American states it imposed no legal obligation in that respect even upon the parents of legitimate children. ( (20 R. C. L. 622; Tiffany’s Persons and Domestic Relations, 2d. ed., § 116.) By the great weight of judicial opinion in this country parents are ■under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R. C. L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted, as’ a matter of course without the assignment of any reason.]^Chancellor Kent says: “The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law.” (2 Kent’s Commentaries '"'189.) Blackstone begins his discussion of the duties of parents to legitimate children thus:

“The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they.'only gave their children life that they might afterwards see them perish, jy-By begetting them therefore, they have entered into a voluntary obligation, to- endeavor, as far as in them lies, that the life which they have bestowed-shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.” (1 Blackstone’s Commentaries, 447.)

The full language of Puffendorf, from which Blackstone made the foregoing condensation, is as follows:

“As to that Maintenance, which Parents owe their Children, it hath been doubted by Authors, whether the Obligation to pay it were perfect or imperfect, or whether it belong’d to expletive or to attributive Justice. .’Tis the Opinion of some, That Parents do indeed owe their Children Maintenance, but then ’tis by the latter kind of Justice only, and not by the forpidr; so that Parents would act very inhumanly, should they deny them this Assistance; yet Children have no Bight to challenge it from thém against thbiryWills, this being the proper effect of expletive Justice: though civil Statutes may. invest Children with a full and perfect Bight in this Matter. Rut’.we are rather inclined to think, That Parents lie under a Perfect Obligation- to maintain their Children, so long as they are unable to maintain themselves; and this Duty seems to be laid upon them', not only by .Nature itself, but by their own proper Act, in bringing them into the World:,] For they would be in the highest manner injurious to their Issue, should they have given the Children Life, for no other Reason, but that they might'afterwards see them perish. By the Act of Generation therefore they seem" to have voluntarily bound themselves, to endeavour as far as in them lies, that the Life which they have bestowed shall be supported and preserved. And thus the Children will have a perfect.Bight of receiving Maintenance from their Parents. Yet this right is hinder’d from producing all its effects by the natural Weakness of Children under that Age, in which they cannot provide for their own Support. And consequently they do not so much want Right as Power and Strength to execute that Right; only in some Points the civil Ordinances help them out, and compel' their Parents to keep and feed them, upon refusal.’-7 (Puffendorf’s Law of Nature and Nations, Book IV, Chapter XI, § 4.)

To this Puffendorf added these words:

“Farther, Maintenance is due not to legitimate Children alone; but to natural, and even to incestuous Issue. For what Reason is there that the poor innocent Infant should be suffer!d to famish for another’s Sin?” (§ 6.)

A sufficient reason for holding parents to be under a legal obligation,' apart from any statute, to support their legitimate child while it is too young to care for itself, is that the liability ought to attach as a part of their responsibility for having brought" it into being. If that reason is not found convincing, it would be useless to seek others. And it does not in the least depend for its .force upon the fact that the parents were married to each other, but is equally persuasive where that is not the case. It was true when Puffendorf elaborated it and applied it to illegitimate children in 1672, and it is true now.

.The courts of some states, in the absence of a statute on the subject, hold the mother of an illegitimate child liable for its support, usually upon the ground that such liability is an incident to her right of custody (7'C. J. 956), which is sometimes assumed to exist at common law — a sort of inversion of the process by which a statutory duty- of support has been said to carry with it the right of custody. (Humphrys v. Polak, 1901, 2 K. B. D. 385, 389.) This court does not regard the duty of support as dependent upon the ■right to custody. (Riggs v. Riggs, 91 Kan. 593, 603, 138 Pac. 628.)

.In a commissioner’s opinion in a statutory action to charge the father of an illegitimate child with its support it was said: “Under the law, the -mother ,of an illegitimate child is all the while known, and. is at all times, at least during its infancy, liable for its support, while the father of such child is unknown until ascertained by judicial proceedings, unless he acknowledges its pafernitjr; and therefore, he is liable only when the paternity of the child is acknowledged by him, or it is established by judicial inquiry.” (The State, ex rel., v. Reed. 46 Kan. 500, 502, 26 Pac. 955.) This was sufficiently accuate for the purposes of the case, the paternity of the child being the matter to be determined. No attempt was there made to state'the ground of the mother’s liability. As already indicated we place it upon the fact of parentage, and upon that basis it must extend to the father as well. The circumstance of the father’s being unknown could not relieve him from the nonstatutory inherent obligation if it exists at all, although the difficulty of ascertaining the paternity might as á matter of policy influence legislation on the subject. ■

We do not think the legislature should be regarded as intending to relieve the father from this obligation to the child by the enactment of the statute above referred to,1 which authorizes the mother of an illegitimate child, if she sees fit, to maintain an action for her benefit in the name of the state against the putative father, and provides for the enforcement of a judgment by imprisonment. (Gen. Stat. 1915, ch. 50.) It would obviously be inadequate to cover the entire field of paternal liability, since the mother might not care to institute such a proceeding, or might die without instituting it. The measure is one providing machinery for the enforcement of a duty already existing rather than one creating a new obligation. Parental liability for the support of legitimate children did not originate with the statute of 1911 (Gen. Stat. 1915, §§ 3410-16) imposing punishment for a default in that respect. Wagering contracts valid at common law are held nonenforceable even where they do not fall within the prohibition of statutes condemning gambling. (Cleveland v. Wolff, 7 Kan. 184, 12 R. C. L. 747, 748) A rule of the common law may be unadapted to the conditions ancl unsuitable to the needs of the people of this state, although the -change that has taken place is rather in the manner of looking' at things — in the standards of obligation and conduct — rather than in more objective matters. 1 instances in which this court has refused to follow a rule of the common law, for reasons based in a greater or less degree upon its essential unsouiidness, are collected in Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, where the grounds of such departure are fully discussed.

The right of a child of tender years to look to its father for support being determined, the matter of procedure presents-no great difficulty. See Craig v. Shea, 102 Neb. 575, and Sanders v. Sanders, 167 N. C. 317. A court of equity in its historical capacity as guardian of infants can readily devise means for its enforcement.

The judgment is reversed and the cause is remanded with directions to overrule the demurrer to the petition. j)  