Bates v. Stokes

40 Miss. 56 | Miss. | 1866

Ellett, J.

delivered the opinion of the court.

This is a qwi tam action brought by Stokes against Bates, who was clerk of the Probate Court of Amite county, to recover the penalty imposed by statute (Rev. Code 332, art. 6), for unlawfully issuing a license for the marriage of the daughter of the plaintiff, without his consent, she being under age. It appeared in evidence that the father and daughter both resided, at the time of issuing the license, in the State of Louisiana. The writ at the instance of the plaintiff charged the jury that, if they believed from the evidence “ that the clerk of the Probate Court, or his deputy, issued a license to celebrate the rites of matrimony between F. A. May and Ann Jane Stokes, without the consent of her father, the plaintiff, either in writing or verbally, and that said Ann Jane at the time resided in the State of Lousiana, and was within the age of eighteen years, then they may find for the plaintiff, although there be no evidence that the marriage was solemnized.”

The statute is mainly designed to regulate marriages between citizens of the State, to protect the rights of parents, and to provide record evidence of their solemnization. Accordingly, the sixth article enacts that marriage licenses shall be granted and issued by tbe clerk of tbe Probate Court of tbe county in wbicb tbe female usually resides. There is no pro■vision of law expressly authorizing tbe issuance of a license in any ease in wbicb tbe female does not reside in tbe State. We do not deny the propriety of issuing licenses in such cases, and of preserving tbe record of such marriages. But tbe regulations and restrictions prescribed in tbe said article are provided for eases coming within its purview, in wbicb licenses are thereby authorized to be granted, and tbe severe penalties imposed for issuing a license without tbe requisites therein prescribed, or in any other manner than therein mentioned, can only be applicable to cases in wbicb tbe clerk might lawfully issue tbe license, on compliance with tbe conditions. The clerk, in granting a license, acts at bis peril, and if either of the parties turns out to have been under age, and the consent of tbe parent was not given, be is liable to the penalty. JDeUerh/ v. Yeamcms — not reported. When the female resides in bis county, it is not unreasonable to require tbe clerk to ascertain tbe ages of tbe parties ; but it would be unreasonable to bold him to this responsibility where tbe parties are domiciled in another State. Penal statutes are be to construed strictly, and are not to be extended by implication to cases not clearly within tbe scope of their provisions. Tbe court below, therefore, erred in tbe instruction to tbe jury, that they might find for the plaintiff, notwithstanding tbe residence of tbe parties in tbe State of Louisiana.

Tbe judgment will be reversed, and tbe cause remanded.