95 Ala. 443 | Ala. | 1891
This is a suit by the Avife against her husband for a divorce from the bonds of matrimony, and for alimony. It is contended for the appellant that all claim to such relief was barred by the act of the General Assembly of Alabama releasing him from the bonds of matrimony theretofore existing betAveen him and the appellee. — Acts of Ala. 1888 89, p. 361. If that act was valid, no divorce could be decreed in this ease, as the bonds of matrimony had already been dissolved Avhen the bill was filed. The proviso in the act only covered a contingency which the enactment itself rendered impossible; for, if the act operated to divorce the parties, the wife could not thereafter maintain any proceedings for a divorce from her former husband, and the proviso does not purport to save her rights to alimony, except in proceedings by her for a divorce. If the act had “the same effect as a divorce granted by a court of chancery,” an end Avas thereby put to the relation of marriage, and, as a consequence, so far as the husband was concerned, the divorce having been granted in his favor, all duties and obligations necessarily dependent upon the continuance of that relation immediately ceased. — Harrison v. Harrison, 20 Ala. 449; Boykin v. Rains, 28 Ala. 343.
Before the poAver of granting divorces from the bonds of matrimony Avas confided to the courts in England, Parliament assumed and exercised the right of passing special acts dissolving the bonds of marriage. Many of the State legislatures in this country have passed special acts of divorce, the validity of Avhicli has been sustained when not rendered invalid by the operation of constitutional prohibitions.' The courts have generally recognized the right of the State legislatures, when not restrained by the constitutional limitations, to exercise the same poAver over the subject as was possessed by the English Parliament. And the enactment of general laws conferring upon the courts also authority to grant divorces in certain enumerated cases has not usually been, regarded as having the effect of abridging the plenary poAver of the legislature to dissolve the bonds of matrimony by special acts, either in the same, or in other classes of cases. — 1 Bishop on Marriage and Divorce, 6th ed., §§ 660 to 695; Cooley on Constitutional Limitations, 6th ed.,
The power to grant divorces by special acts is somewhat anomalous as a legislative function. It has been conceded, rather because it had been too long assumed and acted on to be denied, than because on principle it could be regarded as properly within the legitimate sphere of legislative action. Kent says : “The question of divorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under limitations to be prescribed by law.” — 2 Kent’s Con. 106. Cooley says : “But it is safe to say, that the general sentiment in the legal profession is against the rightfulness of special legislative divorces ; and it is believed that, if the question couid originally have been considered by the courts, unembarrassed by any considerations of long acquiescence, and of the serioxis consequences which must result from affirming their unlawfulness, after so many had been granted and new relations formed, it is highly probable that these enactments would have been held to be usurpations of judicial authority, and we should have been spared the necessity for the special constitutional provisions which have since been introduced.” — Cooley on Con. Lim., 6th ed., 132.
In each of the former Constitutions of this State there was a provision prohibiting the granting of divorces except in cases provided for by law, by suit in chancery. The Constitution of 1819 further provided, that “no decree for such divorce shall have effect, until the same shall be sanctioned by two thirds of both houses of the General Assembly.” Constitution of 1819, Art. YI, § 13. The corresponding section of the Constitution of 1861 was in these words : “Divorces from the bonds of matrimony shall not be granted, but in cases provided for by law, by suit in chancery. But decrees for divorce shall be final, unless appealed from within three- months from the date of the enrollment thereof.” Constitution of 1861, Art. YI, § 13. The substance of this provision was carried forward into the Constitutions of 1865 and 1868 respectively. - Constitution of 1865, Art. IY, § 30 ; Constitution of 1868, Art. IY, § 30. The existence of these éxpress constitutional restraints may be regarded as implying a recognition of the power of the legislature to grant divorces in special cases, unless the exercise of such power is prohibited by the Constitution.
The present Constitution of the State contains no express
More than two years before the bill was filed, the appel
"When a divorce is granted in favor of tbe wife, if she bas no separate estate, or if it is insufficient for ber maintenance, she is entitled to an allowance out of tbe estate of ber bus-band ; and, in such case, “tbe allowance must be as liberal as tbe estate of tbe busband will permit, regard being bad to tbe condition of bis family, ana to all tbe circumstances of tbe case.” — Code, §§ 2332 and 2333. Tbe conduct of tbe wife before ber husband’s abandonment of ber is a circum
The evidence indicates that the husband owns property, including his interest in a stock of goods, worth about six thousand dollars in excess of his liabilities. He is engaged in business as a country merchant, and is also a practicing physician, though he has been trying to give up his practice, and gets but little income from that source. Three of his children by a former marriage,' two daughters and one son, are living with him and are dependent upon him for their support. They are all minors. His home is in a small hamlet in Fayette county. The habits of life are simple and inexpensive. The price of board in respectable families in that neighborhood is from five*to seven and one half dollars per month, with everything furnished. Boarders have been received in the defendant’s family at such prices. The complainant has no property which yields her any income. She is entitled to have provision made for her maintenance in the condition in life of her husband. The amount is not to be swelled because she chooses to reside in one of the suburbs of the city of Birmingham, where the cost of living is greater. In view of the course pursued by the wife before the separation, and of all the circumstances of the case, our conclusion is that she should receive fifteen dollars per month as a provision for her maintenance after the divorce. If she had been wholly without fault, a more liberal allowance would have been proper. This is less than was allowed by the chancellor. In this respect his decree will be here modified. The appellant has nothing to complain of in the amounts he was required to pay for compensation to the solicitors for the appellee and for temporary alimonv. With, the modification above ordered the decree will be affirmed.
Modified and affirmed.