wife of the plaintiff in error to answer this may be in destitute and necessitous circumquestion, put to her at the trial: "Are you willing to take your child to your husband and live with him in a home provided for by him?" Whether the question be answered in the affirmative or negative does not tend to prove or disprove the charge made on the information in the Municipal Court that the plaintiff in error had failed to support his minor child. The only bearing it would have would be on the future support of the child, which was not the issue. Any order for the support of the child was by the act made subject to change by the court, and was based on the circumstances, the financial ability or earning capacity of the plaintiff in error. A reconciliation of the parents and their cohabitation might be a reason to change the order, but would not necessarily absolve him of guilt for his completed offense stated in the act. There was, therefore, no error in the refusal of the court to admit the evidence referred to in the seventeenth assignment of error. stances though its wants be amply supplied by relatives or friends; the other holding that actual destitution or necessitous circumstances must exist. The statutes construed in the cases vary much, and we still find, as stated in the opinion first filed in the cause, and for the reasons there stated, that the view there expressed is the correct as well as the salutary one. Our conclusions are necessarily based on the Delaware statute, and upon our conviction as to the purpose and scope thereof, and the meaning of the language used is based on such purpose and scope. But a writ of error instead of a writ of certio rari. This course was pursued by the Court of Errors and Appeals in Jeans v. Jeans, 3 Har. 136, where there was a writ of error when there should have been a writ of certiorari. In my opinion, therefore, the judgment of the court below should be affirmed without any modification. [20] The case has been considered in this court as though the evidence produced in the court below was properly made a part of the record and, therefore, reviewable. on a certiorari questions of law and not of fact are reviewable. Bailey v. Luff, 2 Har. 292. Evidence is gotten into the record of the court below by a bill of exceptions, which is not appropriate to a writ of certiorari, but to a writ of error. Inasmuch, however, [18, 19] The procedure in the Court of as the record, including the testimony taken General Sessions on the appeal from the by the court below, as well as the parties, Municipal Court in entering there a new are before this court, this court has power judgment based on the evidence produced at to, and should, determine the questions raisthe hearing of the appeal, was entirely cor-ed by the assignments as if there had been rect. On the appeal the case was heard de novo, not on the testimony taken in the Municipal Court, for there was not, and could not be, a record of it for transmission to the appellate tribunal, but on the testimony produced before the appellate court. Therefore, the judgment on the appeal was a new one, viz. the judgment of the Court of General Sessions, and that court was not limited to an affirmance or reversal of the judgment of the Municipal Court. It had a right to enter a different judgment from that of the lower court, including changes in the sentence and the provision for enforcing sup port for the child, and could rightly require the father to provide such support from a period anterior to the entry of its judgment, viz. from the time of the judgment in the Municipal Court. On this writ of certiorari this court finds whether the record does or does not contain error; and if it does contain error, grants a new trial, or orders a correction of the judgment; and if it does not find error, simply affirms the judgment and by a mandate remits the case to the Court of General Sessions for such further proceeding therein as would have been proper if there has been no writ of error in this court. There is no error in the record based on the manner of the entry of the judgment in the Court of General Sessions. After consideration of the cases cited on the subject, we adhere to our interpretation of the phrase "in destitute or necessitous circumstances," contained in the act. As stated by counsel for the plaintiff in error, there are two lines of cases as to the liabilities of a parent towards the maintenance PENNEWILL, C. J. On one point I do not entirely agree with the Chancellor's opinion. It is agreed that the case was triable de novo in the Court of General Sessions. For that reason I think the support of the child ordered by said court should have commenced at the time the order was made and not at a time anterior thereto. The judgment was a new judgment and in my opinion should not in effect have related back. In all the trials had under the former Non-Support Act, the support began at the time of the judgment, and in no case did the court ever make its order retroactive. I think therefore the court below should reform its judgment to the extent that the support ordered shall begin at the time of the rendition of the judgment. Except as herein indicated, I agree with the opinion of the Chancellor. BOYCE, J. (dissenting). In order to determine whether the Municipal Court for the City of Wilmington had jurisdiction of the offense charged against the plaintiff in error, it is necessary to make a close examination of the several provisions of the Constitution, view to ascertaining the true intention of the law crimes, as well as the statutory crimes, framers in the establishment of our judicial are defined by statutes; likewise some of the t system. It is to be presumed that these sev- smaller common law offenses, but not all of eral provisions are of the same general poll-them; as for instance, "assaults, batteries, cy, and they should be construed in the light nuisances, and all other offenses indictable of each other. One of the objects in the judi- at common law, and not specially provided cial system provided for is expressed in the for by statute" (Rev. Code 1915, § 4720), all provision for the establishment of inferior of the latter, though not all specifically mencourts of special, limited, criminal jurisdic- tioned, being misdemeanors embraced within tion,-jurisdiction of the criminal matters, the lesser common law offenses, "punishable specifically enumerated, and of others of by fine and imprisonment, or either, accordlike or inferior grade. While the General ing to the discretion of the court." The ofAssembly is given power to transfer the pres- fenses specifically named in the Constitution ent jurisdiction of the Court of General Ses- are commonly recognized as a lower grade of sions in any matter to other courts, as pro- misdemeanors, and are such as may be, and vided by the Constitution, it cannot transfer | frequently are, dealt with by summary projurisdiction of criminal matters of a higher ceedings before justices of the peace and ingrade than the offenses specifically enumer- ferior courts. In this connection, attention ated in section 30, art. 4, of the Constitution, may very well be directed to the fact that to any inferior court established or to be section 30, art. 4, of the present Constitution established under said section. does not contain all of the offenses enumeratThe doctrine of ejusdem generis is a rule ed in the corresponding section of the Conof construction. By this rule, it is recogniz-stitution of 1831; as for instance, "horse ed that where general words follow an enumeration of persons or things of a particular and specific meaning, such general words are not to be construed in their widest extent, but are usually to be restricted to persons or things of the same class or kind with those enumerated. The rule does not require the rejection of the general words, but it does require the ascertainment of legislative intention to be gathered, as in this case, from said section 30, and the other provisions of the Constitution dealing with judicial powers; and the office of the rule is to aid in ascertaining such intention. racing," "cock fighting," "shooting matches," and others, and very likely for the reason in part, at least, that they were deemed too minor to be mentioned in the fundamental law. It may also be noted that the general words in the present Constitution were not contained in the old Constitution, and doubtless they were incorporated in the new to overcome the decision in the case of Gray v. State, 2 Har. 77. The Legislature had previously undertaken to give to the Mayor's Court in the City of Wilmington (corresponding to the present Municipal Court of the City) jurisdiction of "all larcenies, assaults and batteries, riots, routs, and unlawful assemblies, nuisances, and other offenses, committed within the city, and other grant of powers not necessary to mention. Judge Harrington, in his opinion, filed in the Gray Case, supra, finding that the offenses, italicised above, were not included within the class of offenses specified in the then Constitution, authorizing the establishment of inferior courts, and that therefore the grants of power were unconstitutional and void. said: If the term 'other offenses' men Generally speaking, the rule only applies where the specific words are all of the same nature, and is inapplicable where they are of different genera. There are many instances, however, where the general words are unaffected by connection with the specific words, and this is so in cases where the general words are to be understood in their primary and wide meaning, and as including anything which could in any manner facilitate the plain and evident legislative purpose. But this qualification of the rule is not extended so as to class, as in this case, misdemeanors tioned in the act is not to be restrained to ofof superior grade with those of inferior fenses inferior in grade [note the words "inferior grade, if there are, in fact, misdemeanors of in grade"] to those already enumerated, there is a lower grade than those enumerated to no limit to the jurisdiction of the Mayor's which the general words can apply. So that court over offenses committed within the city. the general words, "and such other misde- fenses"] is not embraced within the letter of the It [the grant intended by "other ofmeanors," relied on by the state, are not to Constitution; it is not contemplated by its spirbe extended to misdemeanors commonly rec-it or intent; it is not necessary or useful in ognized, and well understood by the framers of the Constitution, to be superior to those enumerated, but only to misdemeanors of the same general kind or inferior in grade. And this is so where the enumeration is, like as in this case, of several distinct, specific of fenses, differing in specie but of the same general inferior grade. Black on Inter. of Laws 141; 2 Lewis' Suth. on Stat. Con. It was held by a divided court in State v. 437 (2d Ed.). Churchman, 3 Pennewill, 361, 51 Atl. 49, that reference to the objects for which the door was an stitution did not intend to leave the jurisdietion of misdemeanors, regardless of their character, so much to the discretion of the General Assembly as that inferior courts can be vested with jurisdiction of the misdemeanors created by the statute in question, the latter clearly not being within the genus of the misdemeanors specifically mentioned, and not within the meaning of the general words following. Where the specific misdemeanors do not exhaust the whole genus of inferior misdemeanors, it is against the weight of authority in the application of the rule to apply it to a superior class. Inferior courts established under section 30, art. 4, of the Constitution, are so affected by the spe words following therein, construed in the light of other provisions of the Constitution vesting judicial power, that the jurisdiction of such inferior courts must be limited to the offenses specifically mentioned and to misdemeanors of the same general class or inferior grade. officer of the Municipal Corporation. The, tion of specific offenses, if the general words conclusion reached by Judge Harrington ap- have the meaning accorded to them by the plies with equal force to the present case. majority opinions? If "other offenses" would have the effect to I am of the opinion that the court is not carry "powers and jurisdiction equal to driven to say that the specific misdemeanors courts deriving authority immediately from enumerated exhaust the genus, and that there the Constitution itself," what is there to pre- is nothing ejusdem generis left for the genvent the phrase "and such other misdemean-eral words to operate upon; and I am also ors," construed in its widest extent, from of the opinion that the framers of the Conhaving the same effect? It is inconceivable that the framers of the Constitution intended that the general words should have such effect, it being so plainly inconsistent with the idea of an inferior court, such as is authorized by section 30, art. 4, of the Constitution. There is a genus common to all the enumerated offenses in, at least, two characteristics. Tested by their character, they are misdemeanors of inferior grade as already shown; and they are each punishable by fine and imprisonment, or either, according to the discretion of the court; and none of them embraces the element for the enforcement of a pecuniary liability. There is, indeed, a want of similarity between the offenses provided for by the statute in ques-cific offenses enumerated and the general tion, and those enumerated in the Constitution. The latter are ejusdem generis in punishment, but not so with those created by the statute; for the double purpose of the statute takes the offenses created thereby out of the genus of the misdemeanors specified. Again, among the offenses enumerated in the provision of the Constitution of 1831, corresponding with said section 30 of the present Constitution, were "retailing or selling with-lation, and justices of the peace are vested out license, wine, rum, brandy," etc., "contrary to law," as in the present Constitution, in which after the words, "without license," is incorporated "or on Sunday, or to minors." And after the words, "contrary to law," as above, there is also incorporated "carrying concealed a deadly weapon." At the time of the adoption of the present Constitution, selling liquor on Sunday, or to minors, and carrying concealed a deadly weapon, were misdemeanors. If by the general words, "and such other misdemeanors," plenary power was intended to be reposed in the General Assembly to give to any inferior courts by it established or to be established, or to one or more justices of the peace, jurisdiction not only of the criminal matters enumerated, but of any other misdemeanors, whether ejusdem generis or not, why did the framers of the present Constitution incorporate with the offenses enumerated in the old Constitution, and retained in the new, the offenses of selling liquor on Sunday, or to minors, and of carrying concealed a deadly weapon? It does seem pertinent to inquire, why did the framers of the Constitution go to the pains of making the enumeration of specific offenses, and particularly of making the revision of the corresponding provision contained in the old Constitution? Indeed, why was the revi A bastardy proceeding is generally considered to be in the nature of a police regu with jurisdiction thereof under the police power of the state, and not by virtue of constitutional authority, as are the powers and jurisdiction of the Municipal Court. By great weight of authority, such proceedings are adjudged to be civil and not criminal in their nature. In some jurisdictions they are regarded as criminal; in others as quasi civil or quasi criminal. In this state, the proceeding is considered to be of the latter nature. Smith v. State, 1 Houst. Cr. Cas. 108; Vail v. State, 1 Pennewill, 8, 39 Atl. 451; and yet the proceeding is deemed to partake so much of a civil nature, that the Superior Court allowed certiorari to a justice of the peace on an order of filiation. Cloud v. State, 2 Har. 361. The Non-Support Act expressly defines a crime. The bastardy act defines no crime and provides no punishment for any offense, but only for failure to comply with the order of filiation. Clearly inferior courts cannot be given jurisdiction of criminal matters, that is of misdemeanors, the grade of which is not determined by the specific offenses enumerated. Such courts cannot be clothed with jurisdiction of civil matters or of criminal statutes primarily aimed at the enforcement of civil liabilities. So that the emphasis laid upon the similarity of the Non-Support Act to that of the bas ing the question before this court. The as-ble with your husband there?" The court sumption that the framers of the present suggested: "We can't tell whether it is releConstitution had in mind bastardy proceedings as an illustration of the kind of summary proceedings which experience of many years had shown could be safely committed to inferior courts, does not seem well founded. The office of the common law writ of certiorari, is to bring before the court for inspection the record of the inferior tribunal, for the purpose of reviewing questions of law and not of fact. The supervisory powers of the court on certiorari should not be confounded with its appellate jurisdiction. The writ has never been used to inquire into the merits of the case on the facts. In Bailey v. Luff, 2 Har. 292, it was said: "But on a certiorari the court may reverse for want of jurisdiction, for not proceeding in the manner the law directs, and perhaps for admitting and deciding on illegal evidence alone, if this appears." The exceptions in this case are specifically addressed to errors of law,-jurisdiction, procedure, pleadings, and the judgment, including exceptions made to the admission and rejection of certain testimony. Though the record sent up includes the evidence adduced in the trial below, yet it is not a matter properly for review, and should not be reviewed, by this court on certiorari. But since the majority of the court have gone be yond the exceptions to the record and have considered the evidence on its merits, as they find it, I may be warranted in making the following comments. vant until we hear it." The question and others following, similar in character, led the witness to detail some domestic difficulties; the occasion of her separating from her husband; her return to the home of her parents with her child, where she continues to live; and the support of the child by its grandfather. The remark of the court respecting the question above, reasonably applied to the questions following, and it carried with it the reservation of the right of the plaintiff in error to renew his motion to strike out the testimony after its admission, and particularly so on learning that he would not be permitted to cross examine the wife on the matters testified to by her, except for the purpose of attacking her credibility. The motion to strike out was properly made, and should have been allowed. If it was competent for the wife in her direct examination to give testimony relating to the marital relations between her and her husband, including other matters testified to by her, it was equally competent to examine her concerning the same on cross examination. It is manifest from the record that if the examination in chief was relevant, then the rejected questions on cross examination were also relevant. The exception of the plaintiff in error in this connection is to the effect that because of the several rulings made by the court below, during the cross examination of the wife as well as during the progress of the trial, to which exceptions I cannot agree that there was evidence to were taken, full opportunity was not afwarrant the court below in finding (and cer- forded the plaintiff in error to show that he tainly there is nothing in the record to show was not "without lawful excuse" for not that they did find) that fear of personal vio- supporting his child; and that the child was lence deterred the wife of the plaintiff in er- not "in destitute or necessitous circumror from accepting his offer to make a home stances" within the meaning of the statute; for her after the separation. There is and the plaintiff in error is sustained in his enough in the record to warrant the conclu- position in that the phrases "without lawful sion, however, that other causes keep the excuse" and "in destitute or necessitous cirplaintiff in error and his wife apart. Be cumstances" are words in the statute of legthat as it may, the subsequent friendly con-islative intent and meaning. I cannot, thereversations and friendly letters between the husband and wife, and their going to Philadelphia, and being there together, at least once after separation, clearly negative any idea of real fear on the part of the wife of her husband. fore, accept the interpretation of the phrase "in destitute or necessitous circumstances," contained in the majority opinion, as correct or salutary; and it has not the support of the better considered cases. It is manifest from the record that the Without intending any reflection on the court below (1) did not consider the separawife, it is pertinent to say, in this connection between the husband and wife, whattion, that there is nothing in the record, or ever the cause, to be a lawful excuse for the in any rule of law, which does not entitle neglect or refusal of the father to support the testimony of the husband to the same de- his child; and (2) found that as the father gree of weight and credibility as that to be was not supporting the child, it was in destigiven to the testimony of the wife. The hus-tute or necessitous circumstances within the band denied the act of violence testified to meaning of the act, though it had been and by his wife, and her testimony, like his, is is properly supported by its grandparents. uncorroborated, though the wife testified Whether the wife was, or was not, justified that her mother was present when the alleg-in leaving her husband and in returning to ed act of violence was committed. her parents, taking the child with her, did Counsel for the plaintiff in error objected not impress the court as important, for the to the question asked the wife in her direct reason that the child could not help the dif did the fact that the child was supplied with necessary food, clothing and shelter by its grandparents, weigh with the court. es, the record clearly shows that the state did not sustain by proofs the necessary and essential elements contained in the information filed, and a conviction of the plaintiff in error was not warranted. order for support from a period anterior to the entry of the verdict. Since the majority of the court affirms the judgment of conviction, I concur with the Chief Justice in his opinion to the effect that the order made in this case should have commenced from the date thereof, and that the court below should reform its order accordingly. The case of State v. Tierney, 1 Pennewill, 116, 39 Atl. 774, has generally, but not uniformly, been followed and particularly so in cases where the husband is willing and desirous of having his wife return to and live with him; but she, apparently without just cause, refuses to do so. I am able to concur with the majority opinion in that, in non-support cases, "it has never been conceded that the words 'without lawful excuse' are meaningless"; and the illustrations of cases in which they might be given effect are apt, but they are not exclusive of the facts of this case. I am for the reversal of the conviction for the reasons assigned. The court regarding the father legally liable for the support and maintenance of its child, regardless of the fact of the separa- The order for support, after the verdict of tion existing between its parents, or the guilty can have effect only from the date of cause thereof, considered that the father the verdict, and the court cannot enter an was criminally liable under the statute. True it is, the child has no separate property or income, neither has the mother, so far as appears from the record. The grandfather's ability to support the child is not denied. Nor is there any suggestion in the record of his inability or unwillingness to do so. It is clearly shown that the child is not in need of any necessary food, clothing or lodging, and it does not appear that it will be so long as it shall remain with its grandparents. As between the grandfather and the father of the child, there may be a legal liability on the part of the father to the grandfather for reasonable necessaries supplied the child. But is the father criminally liable? The statute creating the offense charged against the father contains certain clear, specific elements of the offense. Shall these descriptive words of the offense, necessary to be alleged, and proved, be disregarded on the proofs to the extent that it is not necessary to show every ́essential ingredient of the offense? If the Legislature meant that the words "without lawful excuse" and "in destitute or necesThe judgment entered in this court was sitous circumstances" were not intended to that there was no error in the record of the be matters of description of the offense, it court below, other than in the order requiris fair to assume that they would have omit- ing the plaintiff in error to pay for the supted them, and simply made "neglect or report and maintenance of his child from a fusal of the father or mother to support his or her child or children" a criminal offense. The offense charged is not expressed in such barren terms, but it includes words of description which cannot and should not in a criminal prosecution be ignored. There should be no conviction in a prosecution under the statute, if it should be shown that a wife unreasonably and without legal justification (Court of Appeals of Maryland. refuses to live with her husband, and goes home to her parents, taking her child with her, with their consent and approbation; Where Acts 1904, c. 225, creating a state and if, in addition thereto, it should be aided road fund, directed annual appropriation, shown that the grandparents are not only "or so much thereof as may be necessary" to able, but are willing and desirous, of keep-carry out statutory provisions, and Acts 1910, c. 217, transferred powers and duties of geoing and supporting the child. Under such logical and economic survey to the state roads circumstances the father would not be with- commission and transferred the "unexpended out lawful excuse and the child would not balance," and provided for the expenditure of be in destitute or necessitous circumstances of as may be necessary," the Legislature clearly the increased appropriation, "or so much therewithin the meaning of the act. In ruling as intended expenditure of entire appropriation if the court below did, on the cross examina- necessary, and this right will not be defeated by tion of the wife, there was disclosed an in- obligations at close of the fiscal year, no law recommission's failure to file statement showing terpretation of the statute which had the quiring such statement, and expenditure being effect to deny the plaintiff in error of any shown necessary; and the amount remaining at defense within the purpose and meaning of the end of the year should not have been rethe words, "without lawful excuse," or "inverted to the general treasury, and will be restored to the commission's credit. destitute or necessitous circumstances." And [Ed. Note.-For other cases, see States, Cent. within the legislative purpose of these phras- Dig. § 130.] time anterior to the entry of the order, and the cause was remanded to the court below to reform the order in accordance with the judgment of this court. (130 Md. 541) MCMULLEN, State Comptroller, v. ZOUCK et al., State Roads Commission. (No. 43.) 1917.) March 13, STATES 132-STATE AIDED ROAD FUND- |