it was clearly intended to operate. But to hold that the legislature, while taking the pains to declare that the abuse of parental authority is the subject of a civil action, and to limit the number of those who may prosecute the action, has at the same time given full liberty to any stranger or volunteer to ignore at his pleasure the prescribed method of procedure, is to convict the law-makers of the merest folly. I do not think such folly should be imputed. On the contrary, I think the provisions of section 203 of the Civil Code should be strictly upheld and enforced, not only because it is the law, but because it is a law which, while it conserves rights which certainly are as sacred as any rights of property, is capable of strict enforcement without incurring any of the dangers to children which counsel has supposed would ensue. The statute, as we have seen, introduces nothing new. The jurisdiction of the chancellor in England and the courts of equity in this country to try actions involving questions of parental abuse, and to dispose of the custody of children subjected to such abuse, has long been thoroughly established. And there is no reason why, independent of section 203 of the Civil Code, such actions should not be maintained in this state, except that all matters of procedure being here regulated by statute, it might be held, in the absence of any provisions similar to those of said section 203, that the provisions relating to the appointment of guardians were intended to be exclusive. As it is, however, it is plain to my mind that they were not intended to be exclusive, but that they must be administered in conjunction and in harmony with section 203.

The argument against this view is altogether based upon the supposed hardships, inconveniences, and dangers that it involves, but these, I think, may be easily shown to be purely imaginary, and, even if they were more real than imaginary, the argument from inconvenience could not be regarded if the law is plain as it seems to me. The inconveniences resulting from the operation of a law are for the consideration of the leg

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islature, and the courts must assume that they have been duly weighed and deliberately encountered as being of less concern than those which the law was designed to remedy. But I repeat these supposed inconveniences are purely imaginary.

The substance of the argument under this head is that it is necessary, in view of the welfare of children, which is the paramount consideration, that the court should have the power to proceed summarily in order to prevent the irreparable ruin which might ensue if in the cases supposed the children were not removed without delay from the control and influence of their wicked and depraved parents. But, conceding that such cases as counsel suppose have occurred and will hereafter occur, I cannot see why the remedy by action is not just as efficacious as the remedy pursued in this instance.

The action is an equitable action; the judge is armed with all the powers of the chancellor. Whatever provisional orders it is necessary to make pending the litigation to protect the interests or insure the safety of the child, he has as much and more authority to make than he has when sitting in probate or in a guardianship proceeding. The code provisions relating to guardianship confer no power upon the judge to provide for the temporary custody of the child. If he has authority to make any such order he must derive it from the equitable jurisdiction conferred upon the superior court, and if it is derived from that source he can exercise it as well and as amply in an action as he possibly can in a special proceeding. So far, therefore, as the exigencies of the case may demand immediate action on the part of the judge, the child is certainly as well protected if not much more amply protected in an action than in the special proceeding.

If it is contended that provisional orders for the temporary custody of the child made after the commencement of an action will not be sufficient to meet the exigencies of some cases, the answer is that an action may be commenced as easily and expeditiously as a

special proceeding, and what will answer in one case will answer equally well in the other. But counsel seem to claim that there may be delays in commencing an action owing to the absence or unwillingness of relatives or inattention on the part of the board of supervisors. We do not think it ought to be assumed that the board of supervisors, being advised of their duty and power in the premises, would neglect to interpose in a proper case, but allowing that they would, and that there were no relatives willing to act, there would be nothing to prevent the society for the prevention of cruelty to children, or any other charitable organization or private person, from applying to the proper court to be appointed guardian ad litem, so as to commence the action in the name of the child. And, if the case was of such pressing exigency as to justify the extreme course resorted to in this and other instances of taking the child from its parents without any legal warrant, but with a view to legal proceedings, such a course would be as appropriately followed by an action as by a special proceeding.

There is no reason, therefore, for ignoring the statute in these matters. Indeed, the minor would enjoy a much more ample measure of protection in the civil action provided for in section 203 of the Civil Code than under a mere petition for guardianship; for in that proceeding the superior court acts under a statute which confers no power to issue an injunction against the offending parent pendente lite, as may be done by the chancellor. (See cases cited by Pomeroy, supra, and Schuler's Domestic Relations, sec. 249.)

To take this case as an illustration: What would have become of the infant child during the nine days intervening the filing of the petition and the day appointed for the hearing if her protection had depended upon the statutory provisions relating to the appointment of guardians, and her parents had been wicked and depraved enough to subject her to the contamination and outrage that counsel have instanced as occurring in

other cases? She must have been left during that interval of time in the power of her parents, and that would have sufficed for her ruin if the courts and the law are as impotent as the argument supposes. But, in truth, they are not. To protect a child from immediate danger the law will justify the same measures as were taken in this case, and if the parent seeks to regain her custody by habeas corpus a court will not put her back in his power when it appears that her welfare would be imperiled by so doing, especially when proceedings have been commenced or are about to be commenced, to determine the parental right; and upon commencement of the action the court, as has been shown, could see that she was protected pendente lite.

It remains to be noted that section 203 of the Civil Code does not in itself provide for the appointment of a guardian, or even infer the necessity of such appointment in all cases covered by it. It provides a method of establishing parental unfitness arising out of parental misconduct, and for a judgment freeing the child from the parental dominion, as well as a judgment enforcing the duty of support and education. When in such an action the abuse of authority is established, and a judgment has been given freeing the child from parental authority, a case is then presented in which it may be necessary or convenient to appoint a guardian of the child's person. But, when a child has living parents (or a living parent), in whose custody he is, and who are otherwise fit, the superior court has no authority, in a summary proceeding, to take him away from his natural guardians upon the ground that they have forfeited their rights by their misconduct, unless such forfeiture has been established by a judgment in the action provided for in section 203 of the Civil Code.

Counsel have cited many provisions of the Civil Code and Code of Civil Procedure which they contend are inconsistent with the construction here given to section 203. There is nothing in any of these objections, and I shall not review them in detail, but I will notice the one

upon which counsel seem to rely with the greatest confidence. Subdivision 3 of section 246 of the Civil Code reads as follows: "Of two persons equally entitled to the custody in other respects preference is to be given as follows: 1. To a parent; 2. To one who was indicated by the wishes of a deceased parent; 3. To one who already stands in the position of the trustee of a fund to be applied to the child's support; 4. To a relative."

It is contended that on the construction here given to section 203 no room is left for the operation of a provision which assumes that there may be two persons equally entitled to the custody of a minor in other respects, and one of them a parent. It is not difficult to suppose a great variety of cases to which this section would apply without trenching upon the operation of section 203. Suppose a guardian of the person of a minor child to have been appointed because its only living parent was insane, or had been convicted of a felony, or was a fugitive from the state, or was an habitual drunkard, or was living in adultery, and suppose that the parent had recovered his reason, had been pardoned, had returned to the state, had been cured of his drunkenness, or abandoned his scandalous mode of life. In the first case he would become entitled to the custody of his child on recovering his reason, if, in other respects, he was equally entitled with the guardian. In the other cases, although adjudged guilty of parental misconduct, and his natural right gone, he might still claim the guardianship by appointment in preference to a stranger no better qualified in other respects.

In all these cases, and in many others that might be supposed, there would be room for the operation of section 246, which, after all, amounts to little more than the statement of a general principle, to be applied in any possible case that might arise in which two persons equally entitled in other respects, but one of them the parent, were contending for the custody of a minor child.

It is next urged by counsel that it has become the set