and it will not matter that the custodian is the father, mother, next of kin, stranger or legal guardian. The physical person of the child must be respected. Reasonable chastisement for the correction and development of the child is, to be sure, permitted; Lut nothing beyond this is legally tolerable. So much is clear.

But it is not so clear that the social and spiritual existence of the child will be protected by removal of the child from the custody of the one who interferes with or fails to meet the social and spiritual demands which the child may make. Two factors. make such protection impossible. The first is that the demands are psychological. They are too intangible, vague, and at times seemingly too trivial for so practical a thing as the legal order to consider. Even when the trained psychologist has made his experiments and formulated his theories and laws of social and spiritual existence, the judge is unable, because of time, temperament and training, to apply this data to the concrete case before him. The other factor is that it is inexpedient to allow the interests of the child to outweigh the other interests, of the parent or the state, with which the child's interests come in conflict. The child is only a part of society, and there are times when it must be sacrificed for the sake of the whole, or even other parts, of society.

Practical considerations prevent the humanitarian motives of the legal order from functioning. Yet, too often, it must be confessed, it appears that the second factor is given as a basis for action when in reality it is the first factor which is the determining thing. And this ought not to be. For example:

F, the father of C, a fourteen-year-old boy, believes in the old method of education and control through inflexible discipline and the repression of physical instincts. him time spent in play is wasted; it should be devoted to the study of the Bible or the


reading of Pilgrim's Progress. Games, like football and baseball are wicked in that they make you associate with rough playmates. Poetry is taboo because it is too full of pagan allusions. Music is a temptation from the devil, unless indeed it is the singing of psalms; and dancing is the first step on the road to hell. These ideas are consistently carried out by F in his control and education of C. The result is that C does one of two things. He becomes too repressed, unhealthy-minded, self-centered, unsocial and too individualistic. That is, he becomes socially unfit and thus a detriment to society, for he is unable to carry out his functions as a member of the State in a proper healthy way. Or else, the gregarious instinct proves too strong, and the "gang" is too great an attraction, so that he breaks parental bounds, flouts paternal discipline and becomes a "problem" and a juvenile delinquent. And once more the State suffers, as well as the boy, because a potentially good citizen has been perverted.

But, the law will not remove C from the custody of his father, so long as the father feeds, clothes and shelters C according to the best of his means. F is looked upon as a proper person, and blameless in the eyes of the law. The fact that the method of parental control is positive torture to the child, and that it defeats the purpose which underlies the legal right of the father to the custody of the child, carries no weight. in the mind of the court. The spiritual demands of the child, for freedom from continual restraints, for association with his fellows and equals, for the expression of the natural and harmless emotions and instincts which surge within him, are too intangible for the average, busy court to grasp and weigh. And if, by chance, such things are used as a basis for a request that the custodian should be changed, the court replies that it is impracticable, that the father cannot be deprived of the association of his child, that the sanctity of the family is too great to be violated in the requested manner,

and so the child stays where he is, while the father is fortified in his course of conduct by judicial decision in his favor. In this way the natural, vital interests of the child are left unsecured.

Then, again, the failure to secure the child's psychical interests is exemplified by the power of the father to direct the religious education of the child, no matter what his religious beliefs may be, so long as he is not technically an atheist. Furthermore, not only can he direct the child's religious education but his wishes will be obeyed even after he himself is dead, for the child, as we shall see later, will be educated in the religion of the father unless it is to the best interests of the child that the then guardian have the say as to his religious education. This means that the child may have its mind tortured with fear of goblins, devils, voodoos, personal depravity, a vengeful Deity, and a consciousness of eternal damnation to be spent in torment and pain, yet, in spite of the exquisite pain the child undergoes and the physical inhibitions that result therefrom, the law will not take the child away from the custody of its father if he is otherwise fit to have control of it.

Or, to take examples from another angle of family life, a young girl may feel normally and naturally sensitive to the fact that she has to wear old and ragged clothes,

so that she cannot attend church, or go to parties, or meet with other girls in their merry-making, and these feelings will cause her a great deal of misery and even anguish; or she may be bitterly resentful that she is neglected by other members of the family, or that there is greater favoritism shown to another child, in the way of trinkets, jewelry and outings; yet the law takes no cognizance of those things when the question of awarding custody comes before the court. At least the writer has been unable to find any case where such matters ave been considered.

On the other hand, the courts do consider the love, affection, and friendship of

the child for a person, and the ability of that person to give the child the companionship which the child desires, as we shall see later.

That is, when the courts say, as they all do, that they will award the custody of the child as the welfare of the child dictates, they have in mind the securing of the physical interests of the child and its more obvious and patent social and spiritual needs. The irreducible minimum of physical, social and spiritual interests (without which the personality of the child will be destroyed), the law will in every case secure. than that it cannot do.


The individual interests of the parents which are connected with the law of custody are the interests pertaining to their social and spiritual existence. It is, of course,

true, that separating a mother from her young child may so violently affect her emotions that they in turn may impair the physical existence of the mother. But it is really the spiritual existence which is fundamentally injured and the physical derangement is secondary. In the same way it is possible that the economic interest of the parent may be destroyed in that taking. a child away from its father, may lead the neighbors to think of him as a person unworthy of support by trading with him and so his business may be destroyed. But what really occurs here is a social taboo and not a direct interference with an interest of substance.

The social existence of the parent is wrapped up with the custody of his child, not so much because of his association with the child, which is really a part of his spiritual existence, but with the associations with others which having a child brings about. Interest in, and relations with, teachers' associations, child welfare boards, parents' associations, educational institutions, and social centres, grow out of the parental relation. Acquaintances are made, friendships are established and duties are as

sumed because of the activities of the child. In these things the mother is usually more active than the father. But the father is drawn into these associations as well and they are his interests as well as they are the interests of the mother. Taking away the custody of the child disrupts these interests by taking away the dynamic connecting link between the parent and these parental associations. The social existence of the parent is impaired by removing the custody of the child from him.


The spiritual existence of the parent is, of course, to some extent connected with his social existence of which we have just spoken. The activities of the child outside of the home reflect on the home. father takes pride in the achievements of his son or daughter. and their failures or evil ways result harmfully upon him. A mother feels her son's disgrace more keenly than he does, and a father is more ashamed by the waywardness of his daughter than she is. It is interesting to note, in passing, that the psychological significance of this last mentioned fact, and its importance, is often forgotten or ignored. by the courts. The matter arises when the sex of the child is a determining factor in the award of its custody. Usually, after the child passes the period called vaguely "tender years," the son is given to the father and the daughter to the mother, all other things between the parents being equal. Yet it is a commonplace of human observation that mothers are usually closer to their sons than to their daughters, and that fathers are more tender and regardful of their daughters than they are of their sons. Mothers have greater control over, and capacities for training, their sons than their daughters; and the father's admonitions carry greater weight with the daugh

ter than with the son. If the welfare of the child is the determining factor when custody is awarded, then the rule should be that sons are to be given to the mother and daughters to the father. But, primarily for historical reasons, growing, I believe,

out of the remains of ancestor worship, Spartan political ideas, and the rule of primogeniture, the psychological aspects of the matter have been ignored and the general rule that sons go to the father and daughters to the mother is followed.

Though, as has been said, the spiritual existence of the parent is connected to some extent with the activities of the child outside of its home, yet primarily the psychical interests of the parent grow out of his association with the child itself. The parent relives his own life in the life of the child. All he "hoped to be and was not" is to become actual in the life of the child. His larger self, as Prof. James describes it,26 finds expression in the development of the child. The creative instinct also finds an outlet. I do not mean the procreative instinct which is biological, but the psychological impulse to fashion and mould an existent thing into something "nearer the heart's desire;" to plant ideas and see them grow, to train habits and watch them become automatic, to inculcate ideals and have them become determiners of conduct. This instinct to train, direct, and manipulate something living, finds expression in the attention which the parent gives his child; and this desire for such expression is a vital interest of the parents. Furthermore, there is a sheer joy of personal service which accompanies association with one's child. Every mother knows the indescrib

able thrill she feels when she feeds her

baby, or bathes it, or dresses it, teaches it to walk, and talk, and take care of itself. The labors of the father are given aim and point in the same way. His economic efforts are directed to providing for the child's welfare, so that its physical wants can be met, that it have a proper start in life, and that it might be in position to achieve more than he himself has. The father has a great deal of pleasure in doing

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these things, of which he would be deprived were the child taken away from him. And it is almost needless to add that the parent has a vital interest in the love and affection he gives to, and receives from, his child. Indeed that is the prime factor which determines whether the parent may retain or recover the custody of his child. For if this affection is present the welfare of the child is assured so far as the parent by his efforts can secure it, and if it is absent, then even magnificent economic advantages will not control the decision of the court.

Not only parents but next of kin and even strangers may have their interests connected with the custody of a particular child, but these interests are similar in kind, though perhaps not with the same degree of intensity, as the interests of the parents, and need not be especially considered.

It is quite obvious, too, that the analysis given above is not an exhaustive one. That must be left to child and social psychologists. My purpose is simply to orient the problem with which the courts are dealing, and to call attention again to that which is so often forgotten, namely, that the court is not dealing simply with the isolated facts presented to it, but that it is concerned with factors growing out of human experience, and connected with individual and social relationships, the conservation of which it is the function of the legal order, so far as it can, to secure.

With this in mind we can now turn to the decided cases and see how many of these interests have been presented to the courts for action, and how the balancing of them has resulted. And in so doing we shall also indicate what the public and social interests that are connected with the law of custody are and how they are balanced against the individual interests of the parents and the child.

Washington, D. C.




JOSEPH TRINER CO. v. SHANKS, State Sheriff, et al.

Supreme Court of South Dakota. Jan. 15, 1921.

180 N. W. 955.

A proprietary medicine containing alcohol may be "unsuitable" for use as a beverage so as to be excepted from the prohibition against intoxicating liquors by Rev. Code 1919, § 10328, though it was capable of being used as a beverage so as to be within the definition of intoxicating liquors in section 10237, since by the common use of terms a thing may be unsuitable for the particular use and still be capable of such use.

POLLEY, J. This is an appeal from the circuit court in Beadle county. Plaintiff is a private corporation with its principal place of business in the state of Illinois. The defendant Shanks is the state sheriff, and is charged, among other duties, with the enforcement of the prohibition law. The action was brought to secure an injunction, restraining and enjoining said defendant from instituting criminal prosecutions against persons who may sell a certain proprietary medicine manufactured by plaintiff; it being claimed by the defendant that said medicine is an intoxicating liquor as the same is defined by our statute. The gist of plaintiff's cause of action is stated in his complaint as follows:

"That the plaintiff is and for many years has been the owner of a certain registered proprietary medicine known as "Triner's American Elixir of Bitter Wine'; that it is and for many years has been engaged in the business of manufacturing and selling such medicine, at wholesale, throughout the United States and in foreign countries; that there is a large demand for such medicine in the state of South Dakota; that it has large sums of money invested in its said business and will derive large profits from the sale of such medicine in the state of South Dakota if permitted to sell therein; and that it desires and intends, if permitted so to do, to continue the sale of such medicine in said state.

"That said medicine is a bona fide medicinal preparation or compound containing no more alcohol than is necessary for the extraction and preservation of the medicinal ingredients contained therein, and that such preparation or compound is unsuitable for use as a beverage.

"That said preparation or compound contains valuable medicinal properties, and it is the desire and purpose of the plaintiff to sell the same in South Dakota for use as a medicine and not otherwise.

"That the defendant, J. C. Shanks, as state sheriff, in excess of his authority as such offi

cer and in direct violation of the laws of the state of South Dakota, has heretofore sent a notice to the state's attorneys, sheriffs and police officers of said state that the sale of plaintiff's said proprietary medicine within the state of South Dakota is strictly prohibited, will be prosecuted, and asking the co-operation of the officers to whom such notice is addressed to the effect that the law may be strictly enforced; that said defendant, in excess of his authority as state sheriff and in direct viola. tion of the laws of South Dakota, has refused and continues to refuse to withdraw said notice, though repeatedly requested so to do; that he threatens to and, unless restrained by the process of this court, will carry out his said unauthorized and unlawful purpose of prohibiting the sale of plaintiff's said preparation or compound for use as a medicine within the state of South Dakota; and that, unless restrained by the process of this court, the other defendants will co-operate with the said state sheriff in unlawfully prosecuting persons who sell plaintiff's said preparation within the state of South Dakota for use as a medicine, notwithstanding the sale of said preparations for such purpose is expressly permitted and authorized by the laws of said state.

"That said unauthorized and unlawful threatened prosecutions, if not prevented by the process of this court, will cause a multiplicity of judicial proceedings; will cause great injury and loss to the plaintiff for which it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; and that the plaintiff has no adequate remedy by any action or proceeding at law to protect its rights in the premises."

To this complaint, the Attorney General interposed a demurrer on the grounds: First, that the court was without jurisdiction of the subject-matter of the action; and, second, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The circuit court overruled the demurrer, and the defendant appeals to this court.

It is the contention of the defendant that the said proprietary medicine known as "Triner's American Elixir of Bitter Wine" is an intoxicating liquor as the same is defined by section 10237, Rev. Code 1919, and by their

sheriff has directed the various subordinate peace officers throughout the state to arrest and prosecute any persons who may be found selling the said medicine. Section 10237, Rev. Code 1919, reads as follows:

"Intoxicating Liquors Defined. The term intoxicating liquors' wherever used in this arti cle shall be construed to include whisky, alcohol, brandy, gin, rum, wine, ale, beer, absinthe, cordials, hard or fermented cider, tincture or essence of ginger and all distilled, spirituous, vinous, malt, brewed and fermented liquors, and every other liquid, liquid mixture or compound containing alcohol, which mixture or

compound is capable of being used as a beverage, whether or not the same is proprietary, medicated or patented."

It is conceded that said medicine contains alcohol, and it is not alleged that it is incapable of being used as beverage; therefore, so far as this section of the statute is concerned the said proprietary medicine is within the definition of intoxicating liquor. But under the admissions by the demurrer of the allegations in the complaint, said medicine, plaintiff contends, comes within the provisions of sec. 10328, Rev. Code, and is absolutely excepted out of the statutes forbidding the manufacture and sale of intoxicating liquors. We are there fore, in this case, confronted with an admission by the defendants that the acts sought to be prevented do not constitute a crime under any statute of this state, and that the threatened prosecution will result in damage that can be computed only with great difficulty, if at all.

Section 10328 reads as follows:

"Nothing in this article shall be construed or shall operate to prohibit or regulate the manufacture, importation, sale or keeping for sale for other than beverage purposes, by any person, partnership or corporation, of any bona fide medicines, toilet articles, extracts, tinctures, preparations or similar compounds containing alcohol; provided, that such medicines, toilet articles, extracts, tinctures, preparations or similar compounds are unsuitable for use as a beverage."


The validity of the law and the provisions thereof, under which the state sheriff is threatening to proceed, is not questioned. Do the facts alleged in the complaint and admitted by the demurrer entitle the plaintiff to injunc tional relief? The demurrer admits that the "said medicine is a bona fide medicinal prepa ration or compound containing no more alcohol than is necessary for the extraction and preservation of the medicinal properties contained therein, and that such preparation or compound is unsuitable for use as a beverage. That plaintiff manufactures and sells the same for use as a medicine and not otherwise." There is no question but that, under the allegations of the complaint, Triner's Elixir is an intoxicating liquor. It comes within the clause "proprietary, manufactured or patented," and is a liquid mixture containing alcohol, and is capable of being used as a beverage. But while Triner's Elixir is an intoxicating liquor, section 10328 excepts it from the operation of the prohibition statute when the sale is for nonbeverage purposes, unless the Legislature intended the clause "unsuitable for use as a beverage" to mean the same as the negative

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