23 Colo. App. 365 | Colo. Ct. App. | 1913
delivered the opinion of the court.
At all times hereinafter mentioned the plaintiff and the defendant were residents of Prowers county, Colorado. On the 20th of August, 1908, at Eaton, New Mexico, a contract of marriage was made and entered into by and between plaintiff and defendant, and duly sol
For a special and affirmative defense, defendant alleged that on the 20th day of August, 1908, in said Prowers county, plaintiff herein was granted a decree of divorce by the county court of said county from one Warren W. Young, theretofore her lawful husband, and that “the said plaintiff and the said Warren W. Young were thereby freed and absolutely released from said bonds of matrimony and from all rights and claims accruing to either of said parties by reason of their marriage to each other;” that subsequently and on the same day, plaintiff and defendant, for the purpose of evading the provisions of the laws of Colorado prohibiting the marriage of a party to a divorce within one year from the date of said decree, went to the town of Eaton in the territory of New Mexico and had the ceremony of -marriage performed, and immediately returned to said Prowers county, where they have since resided. These allegations were not denied. The decree offered in evidence is absolute in form and contains no prohibition against remarriage of the parties thereto. It does not appear that the decree was appealed "from, or in any manner assailed.
The sole question presented, and necessary for determination on this appeal, is the validity of the mar: riage contract entered into in New Mexico within one year from the date of the decree of divorce dissolving
“All marriages contracted without this state, which shall be valid by the laws of the country in which the same were contracted, shall be valid in all courts within this state; Provided, nothing in this section shall be construed so as to allow bigamy or polygamy in this state.”
Section 2122 is a part of “An Act to Provide for a System of Practice and Procedure in Relation to Divorce and Alimony, and to Repeal Certain Acts in Conflict Therewith,” approved April 3rd, 1893, and is as follows:
“In case no appeal or’writ of error shall be taken from a decree of the court granting a divorce, the court shall have power to set aside such decree and re-open such case at any time within one year from the date of entering such decree, upon application of the defeated party under oath showing good reason therefor; but if no such application be made within such time, or the same be denied, then such decree shall never be re-opened for any cause; and during said period of one year from the granting of a decree of divorce, neither party thereto shall he permitted to remarry to any other person.”
In Mock v. Chaney, 36 Colo., 60, the supreme court, speaking by Mr. Justice Steele, said that “very many intricate questions of law and public policy are involved in a consideration of-the question presented concerning
The provision of section 2122, prohibiting remarriage within one year, is general in its terms, contains no exceptions as to the place where such contract may be entered into, and therefore prima facie applies to and includes such marriages everywhere — out of this state
The following rules of construction are in point:
“Generally words are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be put upon them consistent with the intention of preserving the existing policy untouched.”
“After a statutory policy has long been established and is well defined, it will not be presumed to be departed from or abandoned. ’ ’ — Lewis ’ Sutherland on Statutory Construction, 2nd ed., vol. 2, sec. 581.
Statutes in derogation of common law are to be strictly construed.
“In the absence of words express and conclusive, admitting of no other interpretation, a court will not presume that the legislature intended to command the judicial tribunals to violate the established principles of law and even the law of nations; so that a statute in general terms yet susceptible of a reasonable application without being carried so far, will be restricted by construction to a narrower sense consistent with the law of nations.”
—Bishop on Marriage, Divorce and Separation, vol. 1, sec. 835.
“Where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” — Chief Justice Marshall in U. S. v. Fisher, 2 Cranch, 389; Van Voorhis v. Brintnall, 86 N. Y., 18, 37.
Kent, in his Commentaries, 2nd volume, 14th edition, pp. *92 and *93, says:
, “As the law of marriage is a part of the jus gentium, the general rule undoubtedly is, that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere. An exception to this rule is stated by Huberus, who. maintains that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friesland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound, by the law of nations, to hold the marriage valid, because it would be as act ad eversionem juris nostri. In opposition to this opinion, we have the decision of the court of delegates in England in 1768, in Compton v. Bearcroft, where the parties, being English subjects, and one of them a minor, ran away, without the consent of the guardian, to avoid the English law, and married in Scotland. In a suit in the spiritual court, to annul the marriage, it was decided that the marriage was valid. This decision of the spir*372 itual court has been since frequently and gravely questioned. Lord Mansfield, a few years before that decision of the delegates, intimated pretty strongly his opinion in favor of the doctrine in Huberus, though he admitted the ease remained undecided in England. The settled law is now understood to be that which was decided in the spiritual court. It'was assumed and declared by Sir George Hay in 1776, in Hartford v. Morris (Mass.) to be the established law. This principle is that, in respect to marriage, the lex loci contractus prevails over the lex domicilii as being the safer rule, and one dictated by just and enlightened views of international jurisprudence. This rule was shown by the foreign authorities referred to by Sir Edward Simpson in 1752 in the case of Scrimshire v. Scrimshire to be the law.and practice in all civilized countries, by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession and other rights, if the validity of the marriage contract was not to be tested by the laws of the country where it is made. This doctrine of the English ecclesiastical courts was recognized by the supreme court of Massachusetts in Medway v. Needham (16 Mass., 157, 8 Pratt, 433); and though the parties in that case left the state on purpose to evade its statuté law, and to marry in opposition to it, and, being married, returned again, it was held that the marriage must be deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admittéd that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of public policy, with a view to prevent the public mischief and the disastrous conse*373 qnences wliicli would result from holding such marriages void. It was hinted, however, that this comity, giving effect to the lex loci, might not be applied to gross cases, such as incestuous marriages which were repugnant to the morals and policy of all civilized nations. This comity has been carried so far as to admit the legitimacy of the issue of a person who had been 'divorced a vinculo, for adultery, and who was declared incompetent to remarry, and who had gone to a neighboring state, where it was lawful for him to remarry, and there married.”
Bishop, in his work on Marriag;e and Divorce, lays down the rule that all such marriages are valid unless the statute contains some express words of nullity.
“Consequently, the doctrine has been established, that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express ivords of mdlity. This rule applies not only to the statute as a whole, but to the several parts of it; so that, if it declares the marriage void for non-compliance with a particular provision, it is good notwithstanding a failure to comply with any other provision.” — Sec. 283.
And distinguishing the marriage contract from other contracts, the author says:
“The rule of interpretation we are considering was admitted by Dr. Lushington not to bé in accordance with the constructions which some other acts, relating to other subjects, have received; but, ‘it must always be remembered,’ he said, ‘that marriage is essentially distinguishable from every other species of contract, whether of legislative or judicial determination; that this distinction has been universally admitted; that not only is all legal presumption in favor of the validity and against*374 the nullity of marriage, but it is so on this principle,— that a legislative enactment to annul a marriage de facto is a penal enactment, not only penal to the parties, but highly penal to the innocent offspring, and therefore to be construed, according to the acknowledged rule, most strictly. ’ Thus, as already mentioned, negative and prohibitive words in a statute are often held to render what is done under them void, but in a marriage act they do not have this effect.” — Sec. 286.
Upon the question of a prohibitory statute, such as ours, and its effect upon a remarriage in the state as well as out»of it, it is said:
“If we are to look at this question as one of principle, we must doubtless be governed in some measure by the particular language of the statute. We have already seen that where, in England, the divorce act forbade a remarriage until the period for appeal had elapsed, a marriage after sentence pronounced, and before the expiration of this time, was held: — and it is believed by the author properly so — to be void. In the principal case in which this was so adjudged, a doubt was expressed whéther, in the absence of any statutory provision on the point, a divorce dissolving a valid marriage operates in law to authorize the divorced parties to remarry. Whatever foundation, or whether any, there may be for such a doubt in England, there is none in this country; for, with us, it was never questioned, that, in the absence of all provision on the point, -a divorced person, whether plaintiff or defendant in the divorce suit, is entitled to remarry the same as though the first marriage had never existed. Now, if, after a system of divorce laws has been established, and parties have sought and obtained divorces, a statute should be passed forbidding any divorced person to contract a new marriage, this statute would subject the person violating it to indictment, even*375 though, it was silent as to the penalty. Then, after the statute had thus expended itself, it could not on principle he carried further and render the marriage null, unless it also contained an express clause of nullity. There could be no doubt about this proposition as applied to divorces which had already occurred, and one cannot see why it should not apply equally to future divorces. On the other hand, if the same statute which authorized the divorce expressly provided that it should not operate to authorize the divorced party to remarry, the case would seem pretty plainly to fall within a principle already considered, and a new marriage contracted in the same •state would be void; although it would be good if contracted in another state or country. It cannot be doubted that these two points, standing at the extremes, are correct as thus stated; but, between these points, there are various shades and kinds of statutory provisions, the effect of which may be more or less open to question.”— Sec. 306a.
Directly in point is the case of State v. Shattuck, supra, in which the supreme court of Vermont, upon a statute similar to ours, but containing a clause making the remarriage a felony, and applied to persons who left the state of Vermont, went to the state of New Hampshire and there had the marriage performed, for the sole purpose of evading the laws of their domicile, said:
“It is undoubtedly true that states may control this matter by statute, as Massachusetts does, where it is enacted that when persons resident in that state, in order to evade its marriage laws, and with an intention of returning to reside there, go into another state or country and are married, and afterwards return and reside in Massachusetts, the marriage shall be deemed void. We have no such express provision. The language of our statute is general, and it is a fundamental rule that no*376 statute, whether relating to marriag’e or otherwise, if ii the ordinary general form of words, will be given effect outside of the state or country enacting it. To bind even citizens abroad, it must include them, either in express terms or by necessary implication. Hence, if a statute, silent as to marriages abroad, as ours is, prohibits classes of persons from marrying generally, or from intermarrying, or declares void all marriages nof celebrated according to prescribed .forms, it has no effect upon marriages, even of domiciled inhabitants, entered into out of the state. Those marriages are to be judged of by the courts of. such state, just as though the statute did not exist. If they are valid by the international law of marriage and the local law of the place where celebrated, they are valid by the law of such state, and the statute has nothing to do with the question if such international law is a part of the law of the state, as it is here, for a written law not construed to be extra-territorial does not change the unwritten law as to extra-territorial marriages; and therefore, parties who are under no disability by international law, may choose their place of marriage, and if the marriage is valid there, it will be valid everywhere, though they were purposely away from home, and the same transaction in the state of their domicile would not have made them married. There is, therefore, no foundation for an argument based simply on the idea of an evasion of the law of domicile. ’ ’
Under the statutes of New Mexico (Compiled laws of 1897 and amendments thereto), marriage is a civil contract, for which the consent of the contracting parties capable in law of contracting is essential. And before persons can be lawfully joined in marriage, it is made the duty of the official or other person solemnizing the marriage to ascertain from the contracting parties that they are not, on any account, incapable of contracting
The provision of our statute invoked for the purpose of nullifying the New Mexico marriage, while it forbids the parties to a divorce suit to remarry any other person within one year, does not in terms suspend the operation of the decree, does not denounce a remarriage within the prohibited time as void, or a nullity, nor make such act criminal, nor attach any penalty to a violation of such statute. (In this respect it contrasts with, and may be tested by, section 4163, prohibiting certain marriages and in terms declaring them absolutely void.) Nor does it in terms apply to such marriage elsewhere than in the
Applying the rules of construction heretofore mentioned and adopted, we are constrained to hold that the prohibitory provisions of the statute do not apply to nor affect marriages contracted in any other state or country. It will be presumed that the law-making body, in enacting that provision, knew the law as declared by the courts of the-several states with substantial uniformity for more than a century; that in the absence of express terms making the inhibition apply to foreign marriages, the effect thereof is restricted to those contracted within the state, and that the legislature so intended, and did not contemplate a repeal or modification of section 4165. The rule established by the preponderance of authorities, and we think the better rule, and therefore the one which we adopt, is that, if a statute, silent as to marriages abroad, prohibits classes of persons from marrying generally, or from intermarrying, it has no effect upon marriages, even of domiciled inhabitants, entered into out of the state. Those marriages are to be judged of by the courts just as though the statute did not exist, and this would be true even if the parties went into another state with the intention of avoiding the laws of their own. This rule is held to be the law by the authorities hereinbefore cited, as well as the following: In re Woods’ Estate, supra; Dumaresly v. Fishly, 10 Ky., *369; Clark v. Clark, 52 N. J. Eq., 650; Minor v. Jones, 2 Redf. Sur. (N. Y.), 289;
In Conn v. Conn, supra, under a .statute prohibiting remarriage within six months after the decree, and providing “it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy,” it was held that such inhibition applied only to marriages within the state, and did not declare an incapacity to contract marriage. In that case, and also in State v. Walker, 36 Kan., 297, the distinction was made between a statutory prohibition and a declaration of incapacity to contract.
The supreme court of California In re Woods’ Estate, supra, under a statute in effect the same as ours, forbidding marriage within one. year after divorce, and providing that such remarriage within the time named should be void, held that such statute had no extra-territorial effect, did not apply to a marriage contract entered into in the state of Nevada in evasion of that statute, and further, that said statute did not enter into and become a paid of said decree so as to suspend the operation of the same during the year, but was a prohibition pure and simple against the marriage of either party within one year, the penalty for violation thereof being nullity of the marriage.
A number of well-considered cases take, or seem to take, a view exactly contrary to some of the decisions hereinbefore cited. The principal ones are: Lanham v. Lanham, 17 L. R. A., N. S. (Wis.), 804, 117 N. W., 787;
In McLennan v. McLennan, supra, it is shown that the statute of Oregon declares that “no party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such decree had not been given until the suit has been heard and determined on appeal”; under which the court held that the declaration of incapacity to remarry within a fixed time, suspended the operation of the decree as
In Pennegar v. State, supra, the statute involved was, “When the marriage is absolutely annulled, the parties shall, severally, be at liberty to marry again; but a defendant who has been guilty of adultery, shall not marry the person with whom the crime was committed, during the life of the former husband or wife.” After stating that the marriage, being prohibited by statute, would be void if solemnized in that state, the court classified the exceptions in substantially the same manner as stated by Chief Justice Winslow in McLennan v. McLennan, supra, except that the second was stated as follows: “Marriages which the local law-making power has declared shall not be allowed any validity, either in express terms or by necessary implication”; and after recognizing the extreme difficulty of solution of the question, and the conflicting decisions thereon, finally concluded that under the public policy of Tennessee the statutory inhi-, bition was intended to be imperative, and sustained the prohibitory terms as against the jus gentium. It may be noted in passing that in no one of these decisions was there shown to exist a statute such as our section 4165, expressly declaring the jus gentium to be the public policy of the state.
In the Estate of Stull, supra, the marriage was with a former paramour, which marriage was specially pro
But, as we have said, the great preponderance of authority, and we think the better reason, favors the position we have adopted. In Colorado we have two statutes of equal dignity, force and effect; one declaring that thp courts shall give validity to marriages which are valid in other states where made, and the other prohibiting, generally, marriage of divorced persons for a specified time. Both declare the public policy of the state. The construction which we make, and which is clearly authorized by reason and authority, gives effect to both statutes and invalidates neither, in whole or in part. It is urged that if a marriage within the year is upheld, and thereafter the former divorce should be vacated, there would be two valid marriages, thus permitting bigamy or polygamy in contravention of law and the exceptions of the general provisions of said section 4165. Such cannot be the result. If the decree of divorce should be vacated, and the former marriage status reinstated, the second marriage becomes.-ipso facto void in this state, not because of anything existing in the statute under consideration, but because the former marriage relation has been duly declared not dissolved. The same condition would have existed before the statutory provision was enacted, and still is possible as to marriages after expiration of the prohibited time, in case of a reversal of said decree
If the law as herein declared need be changed, or modified, the remedy is with the legislature. As was said by the supreme court of Massachusetts in 1829, in Putnam v. Putnam, 8 Pick., 433, speaking through Parker, chief justice, upon a similar declaration of the law: “If it shall be found inconvenient, or repugnant to sound principle, it may be expected that the legislature will explicitly enact, that marriages contracted within another state, which if entered into here would be void, shall have no force within this commonwealth. But it is a subject which, whenever taken into consideration, will be found to require the exercise of the highest wisdom.” And it is worthy of note that the legislatures of Massachusetts, Kansas and other states, have provided remedies by explicit declarations of nullity, incapacity to contract, or suspending the operation of the decree for the prohibitive period, and making the prohibition expressly applicable to contracts of marriage without the state as well as within.
For the reasons given the judgment is affirmed.
