Shine v. Brown

By the Court.

delivering the opinion.

[1.] The only question submitted for our decision in this, case is, whether the Act of the last Legislature, (1855-’6, Pamphlet, pp. 496, ’7,) conferring on the Ordinary of Twiggs County, authority to appoint Daniel W. Shine guardian of his grand-child is constitutional?

The Act recites, that “ Whereas Daniel Shine died in the County of Dooly in the year 1853, leaving a widow and one child, and Daniel W. Shine of Twiggs County, the father of said Daniel Shine of Dooly, administered on the estate of said Daniel Shine, and now has the property of said estate in his possession in the County of Twiggs, and desires to become the guardian of his grand-child, Daniel W. Shine — the property having been derived originally by gift from said' Daniel W. Shine to said Daniel Shine of Dooly.”

*378It therefore enacts, “ That the Ordinary of Twiggs County • be, and he is heihby, authorized to grant letters of guardianship to the person and property of Danieline Wi Shine to her • grand-father, Daniel W. Shine of Twiggs County, upon his •• giving bond and security, as now required by law, and-by complying with the Statutes in such case made and provided.” ' ' -

' Why is this law not constitutional ? It is neither a judicial nor a retrospective Statute, divesting vested rights as = contended for by the learned Counsel for the defendant in error. It does not purport to interpret any existing law, nor - to adjudicate any private controversy. -By the existing law,. jurisdiction over the subject matter was restricted to Dooly County, where the minor resides. By this Act it is given to ■ the Ordinary of Twiggs. It is only a repeal of the old law, pro tanto; and who doubts the power of the Legislature to • do this ? Had not the Legislature the right to confer this jurisdiction upon any county in the State ? And if so, why ■ not on any one county ?

But it is argued that this Act divests vested rights. We-do not so understand it. What right, vested or even inchoate, had Brown, the step-father of this child, to the guardianship? ' Had not the Ordinary discretionary power to delegate this ■ trust to him or any one else ? Such we understand tobe the ■ law. And then it should be borne in mind that guardian- ■ ships are granted for the benefit of the infant and not of the ■ guardian.

We are very much inclined to the opinion, that the State, as farens fatriae, could direct the Ordinary to confer this trust upon any particular individual. Why not ?

Whatever may be said against the impolicy of this Statute- and of this species of legislation, nothing, we apprehend, can be alleged against its constitutionality; and in a contest be- - tween grand-father and step-father, we should lean strongly - in favor of the former. The grand-parent may spoil the ■ ward by over indulgence, and that is the worst to be feared. There is no danger of peculation in the mangement of the - *379'estate. Fortunately, in this case, the child is a female. -Boys may be spoilt by laxity of discipline — girls, rarely. '•The best wives and the best women are those who are cradled •and nourished in the daily enjoyment of the kindest and holiest feelings of man’s nature.