
    Amanda Musser v. George M. D. Stewart.
    The provision in the bastardy act directing the putative father to be committed to jail in default of giving security to perform the order of the court charging him with the maintenance of his illegitimate child, is not in conflict with sec. 15, art. 1, of the constitution, which declares that “ STo person shall he imprisoned for debt in a civil action. . . unless in cases of fraud.” The sum in which the defendant is charged with the maintenance of the child, is not a debt -within the meaning of this provision of the constitution.
    Error to the court of common pleas of Seneca county - Reserved in tbe district court.
    Amanda Musser made complaint, under the statute providing for the maintenance of illegitimate children, in which, she accused George M. D. Stewart of being the father of her illegitimate child. Upon this complaint a warrant issued, under which Stewart was arrested and brought before' the magistrate. This officer heard the complaint, and, upon his order, Stewart entered into a recognizance for his appearance at the next term of the court of common picas.
    Upon a trial of the case to a jury, at the November term,. 1869, of the court, Stewart was found guilty. Upon this-verdict the court adjudged Stewart to be the father of the child, and also that he stand charged with its maintenance in the sum of $1,000, which he was ordered to pay in certain specified installments, and on default of payment of any part thereof, execution was directed to issue therefor.
    The complainant then moved the court to require Stewart, to give security to perform this judgment and order, and, upon his neglect or refusal so to do, that he be committed to the jail of the county, and there remain until he shall comply with the order.
    This motion the court overruled, and refused to require such security, and also refused to commit Stewart to the county jail. To all of which the complainant then excepted.
    The case was taken on error to the district court, where it was reserved for decision by this court.
    
      
      Q. JE. Seney for plaintiff in error :
    The court below erred (1) in overruling the complainant’s motion (2) in refusing to require Stewart to perform its order, and (3) in refusing to order that Stewart stand committed until he gave such security. S. & C. St. 178, sec. 6.
    There is no question as to the construction of this statute. It is conceded that the statute requires security from the father for the performance of the court’s order, and authorizes, in default of security, his imprisonment. But it is claimed that, in these particulars, the statute is repugnant to section 15, of article 1, of the constitution of Ohio.
    This constitutional provision is in these words : “ Sec. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.”
    In support of this claim, it is argued : 1. That a proceeding in bastardy is a civil action. 2. That the sum of money awarded for the maintenance of the child is a debt.
    
    Neither of those propositions can be maintained.
    1. A proceeding in bastardy is not a civil action within the meaning of the constitutional provision referred to. Carter v. Krise, 9 Ohio St. 402; Barger. v. Cochran, 15 Ohio St. 460. And not being a civil action, the imprisonment for which this statute provides does not contravene this provision of the constitution.
    2. The sum of money awarded by the court for the support of an illegitimate child is not a debt, but only a mere charge of maintenance. Hawes v. Cooksey, 13 Ohio, 242 ; Perkins v. Mobley, 4 Ohio St. 668.
    It follows, therefore, that in compelling the father to provide such maintenance, by imprisoning him until he pays or secures to be paid, the sum of money adjudged by the court to be necessary for this purpose, no violence is done to his constitutional rights.
    There is no feature of this statute so essential as the one under consideration. Indeed, it is indispensable, in attaining the object for which the statute was enacted.
    If the father of an illegitimate child cannot be imprisoned upon his failure to provide for its maintenance, it follows that he cannot be placed under arrest, upon the warrant of the magistrate, nor required to enter into a recognizance for his appearance at court. Certainly no argument is necessary to demonstrate that without these provisions the statute will fall far short of accomplishing its real object.
    
      W. P. Noble for defendant in error:
    The sole question is, was the court bound to make an order of commitment in the first instance; and on the motion of the plaintiff; and before execution was issued or any attempt made to collect the amount of the judgment rendered.
    I refer to the statute under which the claim is made. S. & C. 178, sec. 6; and to the decision in Hootman v. Skiner, 15 Ohio St. 43.
    The constitution of Ohio provides that “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” Art. 1, sec. 15.
    This proceeding is similar to a civil action. The defendant can be admitted as a witness. Carter v. Krise, 9 Ohio St. 402.
    See act of April 3, 1868 (S. & S. 38),, where an attachment is allowed and execution may issue, in case the attached property is insufficient. All as in civil cases.
    This, then, is a debt, and is treated by the statutes as such.
   White, J.

The final order made in the case, by the court below, had the effect to discharge the defendant from arrest without requiring him to give security, as provided by the statute, for the performance of the order of maintenance.

The section of the statute prescribing the course to be pursued, in case the defendant is chargeable with the maintenance of the child, is as follows:

“ That in case the jury find the defendant guilty, or such accused person, before the trial, shall confess in court that the accusation is true, he shall be judged the reputed father of such child, and shall stand charged with the maintenance thereof, in such a sum or sums as the court may order and direct, with payment of costs of -prosecution; and the court shall require the reputed father to give security to perform the aforesaid order; and incase the said reputed father shall neglect or refuse to give security as aforesaid, and pay the costs of prosecution, he shall be committed to the jail of the county, there to remain till he shall comply with the order of the court: provided that such putative father confined in prison for not complying with the sentence and order of the court, as in this section provided, shall be entitled to the benefit of the prison rules, and of the act for the relief of insolvent debtors, in the same manner and upon the-same principles as persons imprisoned for debt.” S. & C. 178, sec. 6.

No question arises as to the construction of this statute. It plainly required the defendant to be committed to the jail of the county, in default of his giving security for the performance of the order oí the court as to the maintenance.

The only grounds on which the action of the court is sought to be justified is, that the statute is in conflict with see. 15, art. 1 of the constitution, which provides that, “ No-person shall be imprisoned for debt in any civil action, onmesne or final process, unless in cases of fraud.”

This provision of the constitution, in our opinion, does not apply to cases like the present.

This is not a suit to recover a sum of money owing from the defendant to the complaining party. The liability sought to be enforced is not founded upon contract express or implied, but originates in the wrongful act of the defendant, against the consequences of which the statute is designed to protect the public. .

Proceedings under the statute are only authorized in cases where the mother of the child is a resident of this State, and the child is thus subject to become a public charge. If she neglects to prosecute, the public authorities of the locality liable to be charged with its support, may do so, unless security is given to save them from such liability.

The statute is in the nature of a police regulation. Its main object is to furnish maintenance for the child, and in•demnity to the public against liability for its support. The act of the putative father is regarded as an offence against the peace and good order of society; and the penalty which-■the law imposes for his transgression, is to enforce upon him the duty of making provision for the maintenance of his illegitimate offspring.

The sum in which the defendant is ordered to stand charged for the support of the child, is not imposed as an unconditional liability. It is a provision made by way of security If the child dies, the order of maintenance, as to the future, •becomes inoperative.

The order overruling the complainant’s motion is reversed, on the ground that the motion ought to have been granted; and the cause is remanded to the court of common pleas for further proceedings.

Welch, C. J., and Day, McIlvaine, and West, JJ., concurred.  