171 Wis. 381 | Wis. | 1920
Sec. 2330m, Stats., reads as follows:
“Marriage abroad to circumvent the laws. Section 2330m. 1. If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting*388 marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.
“2. No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction, if such marriage would bfe void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.”
The effect to be given to sub. 1 of that statute will determine two important questions presented on this appeal as to whether it is within the jurisdiction of and a proper exercise of the power of a circuit court of this state to annul and declare as void ab initio a marriage by residents of this state who intend to continue to be such residents, when solemnized without this state under the following situations:
First. Where there was a failure to observe the provisions of the marriage license law of this state embodied in sec. 2339m — 1 to sec. 2339m — 27, Stats., inclusive, and that because
(a) No license, prior to the ceremony, was obtained under sec. 2339m — 1, supra; or because _ '
(b) The consent of parent or guardian, required for a license here, was not first obtained under sec. 2339m — 5, supra. ^
Second. Where the male failed to have the ante-nuptial physical examination for the determining of the existence or nonexistence of venereal disease as provided in the so-called eugenic marriage law, sec. 2339m, supra.
These two questions may be stated in another form as requiring us to determine whether either or both the eugenic marriage law, sec. 2339m, supra, and the marriage license law, sec. 2339m — 1 to sec. 2339m — 27, inclusive, is or are extraterritorial in effect.
The proper mating of the male and female of the human race as the foundation of the family, and thereby of the general well-being of the community at large, has been deemed of such paramount importance that the state has constantly assumed a wide control over the relationship of husband, and wife of those residing within its borders.
From the beginning of our state government it has been declared as part of its public policy that marriage, so far as its validity in law is concerned,, is a civil contract to which the'consent of parties capable in law of contracting is essential. Sec. 2328. The age at which the male and female respectively must arrive before they were considered at common law to be of sufficient capacity to enter into such a contract was fourteen and twelve years respectively, but that has been, during the entire history of this state, raised to the years of eighteen and fifteen respectively. Sec. 2329; Eliot v. Eliot, 77 Wis. 634, 640, 46 N. W. 806.
The same public policy has consistently and continuously recognized substantially three different classes as to those who claim to have, or of whom it is claimed they have, entered into the relationship of husband and wife:
First. Those who, competent to so contract, have complied with the statutory requirements and thereby made á valid marriage- . .
Second. Those who, by reason of some positive inhibition of the law, are absolutely disabled and prohibited from sustaining to each other the lawful relationship of husband and wife and whose attempt so to sustain to each other such legal relationship is denominated, from want perhaps of a more logical description, a void marriage.
Third. Parties to a marriage denominated voidable,,, which, although improper, illegal, or irregular in its inception, may by the removal of the impediments then existing
In the void marriage the relationship of the parties, so far as its being legal is concerned, is an absolute nullity from its very beginning and cannot be ratified. It may be questioned at any time during the life of both, and, with some statutory exceptions (vide sub. (2), sec. 2351, Stats.), after the death of either or both, and generally whether the question arises directly or collaterally. As between the two individuals concerned no rights spring therefrom, and, generally speaking, except as modified by positive legislation, it neecls no adjudication by a court that it is void. That such is the law of this state has been repeatedly held. Williams v. Williams, 63 Wis. 58, 68, 23 N. W. 110; St. Sure v. Lindsfelt, 82 Wis. 346, 352, 52 N. W. 308; Zahorka v. Geith, 129 Wis. 498, 505, 109 N. W. 552; Lanham v. Lanham, 136 Wis. 360, 368, 117 N. W. 787.
It is so regarded elsewhere. 18 Ruling Case Law, 440; Bishop, Mar., Div. & Sep. p. 107, § 258; Schouler, Dorn. Rel. p. 25, § 14; Stewart, Mar. & Div. § 50; Nelson, Div. & Sep. p. 533, § 568; L. R. A. 1916C, note p. 691; Wiley v. Wiley (Ind.) 123 N. E. 252, and cases cited.
The void marriage, strictly speaking, is one where the relationship between the parties is necessarily incestuous, as between parent and child and brother and sister, and invariably, where monogamy is the law of the land, when either has a spouse living from whom he or she is not then legally divorced. The latter class includes those as between whom a judgment of divorce has already been entered, but by the public policy of the jurisdiction in which the divorce is granted are prohibited from another marriage within a statutory period after such judgment, and as to whom, in effect, the matrimonial knot is not yet completely severed by the sword of divorce. This covers the situation of those in this state under sub. 1, sec. 2374, Stats., and has been so construed by this court. Lanham v. Lanham, 136 Wis. 360,
. As to parties to a void marriage, the question of compliance or noncompliance with any statutory provisions such as for ante-nuptial physical examination or the prerequisite of marriage license, are entirely irrelevant. As to them, the obtaining of a marriage license, the consent of their parents if they be minors, or subsequent cohabitation as though lawfully married, are all of no avail and neither help nor change their situation in that regard.
The voidable marriage, on the other hand, may subsequently ripen into an absolute marriage, and is considered valid and subsisting until annulled by judgment of a court of competent jurisdiction. Eliot v. Eliot, 77 Wis. 634, 641, 46 N. W. 806; State v. Cone, 86 Wis. 498, 57 N. W. 50; Kitzman v. Werner, 167 Wis. 308, 314, 166 N. W. 789; Estate of Jansa, 169 Wis. 220, 171 N. W. 947; State v. Yoder, 113 Minn. 503, 103 N. W. 10, L. R. A. 1916C, 686, and note at p. 69.1; Behsman v. Behsman (Minn.) 174 N. W. 611.
Between the absolutely void marriages and the voidable marriages, the distinction is often shadowy and the line hard to place. Both forms are intermingled in the provisions of sec. 2330, supra, providing who shall not marry. Also in the provisions of sec. 2351, supra, which gives the causes for which marriages may be annulled. Becker v. Becker, 153 Wis. 226, 228, 140 N. W. 1082.
Prior to ch. 323, Laws 1909, which repealed certain statutes between secs. 2349 to 2360 inclusive as then found, and wdiich chapter enacted and amended certain sections which are now found in ch. 109 on the subject of divorce, certain of such void marriages, namely, those on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, were by the then sec. 2349 (as found in the revision of
Although the question perhaps is not squarely presented on this appeal, yet as it is inferentially at least before us in determining the extent of the power and jurisdiction of the circuit court to grant relief to plaintiff in any phase of the situation that may be disclosed by the complaint, we deem it proper to say that we can see no valid reason for holding Otherwise than that the jurisdiction and power to annul is exactly the same as to divorce and that both are exclusively of statutory creation and neither rest upon nor can be extended by resort to the general equitable powers inherent in the circuit court as a court of equity.
It has been so held as to divorce. Barker v. Dayton, 28 Wis. 367, 379, and in the recent case of Towns v. Towns, ante, p. 32, 176 N. W. 216, and the long line of intermediate cases.
The ruling now made is but a recognition- of evident legislative intent from the statutory grouping of the two subjects of divorce and annulment.
It is so held elsewhere (Walter v. Walter, 217 N. Y. 439, 111 N. E. 108), although there are authorities to the contrary, such as Christlieb v. Christlieb (Ind.) 125 N. E. 486; Wimbrough v. Wimbrough, 125 Md. 619, 94 Atl. 168; Davis v. Davis (N. J.) 106 Atl. 644; Wiley v. Wiley (Ind.) 123 N. E. 252; Bolmer v. Edsall (N. J.) 106 Atl. 646; Hunt v. Hunt, 23 Okla. 490, 100 Pac. 541, 22 L. R. A. n. s. 1202; 26 Cyc. 908; 9 Ruling Case Law, 267.
In determining the question whether the circuit court has
It appears from the complaint that defendant failed to do that which, under the marriage license law of this state, sec. 2339m — 1 to sec. 2339m — 27, Stats., he would be required to before solemnizing his marriage in this state, viz. (1) the procuring of a license pursuant to sec. 2339m — 1, which says: “Marriage may be validly contracted in this state only •after a license has been issued therefor;” . . . (2) there was of course no five days’ interval between an application for such license and the issuing thereof (sec. 2339m- — 3) ; (3) he did not obtain the consent of his parents, he being between the age of eighteen and twenty-one years (sec. 2339m — 5) ; (4) he obtained no certificate as to an ante-nuptial physical examination (sec. 2339m). (But this question is discussed later.)
It is argued in substance that, failing the foregoing, his marriage could not be valid, and ñot being valid it must necessarily be invalid, and that particularly by'reason of the language of sec. 2339m — 21, as follows: •'
“All marriages hereafter contracted in violation of any*394 of the requirements of section 2339m — 1 shall be null and void (except as provided in sections 2339m — 22 and 2339m — 23) ; provided, that the parties to any such void marriage may, at any time, validate such marriage by complying with the requirements of sections 2339m — 1 to 2339m — 27, inclusive.”
That the Michigan ceremony as though likewise performed here was necessarily “null and void,” and therefore he was thereby “disabled or prohibited”' from making a legal marriage here or elsewhere. That he was therefore squarely within the terms and the letter of the marriage evasion law (sec. 2330m), quoted at the beginning of this opinion.
The language of many of these provisions, and particularly the first appearing in the marriage license law as sec. 2339m — 1, expressly refers to a marriage which may be validly contracted “in this state.”
Violations of the terms and conditions of many of these marriage license laws subject the parties thereto to penalties or " 'forfeitures'; particularly secs. 2339m — 1, 2339m — 8, 2339m — 15, 2339m — 16, 2339m — 17, 2339m — 18, 2339m — 19, Stats. Such fines or forfeitures, by sec. 2339m — 20, are recoverable in an action of debt and therefore presumably are under the provisions of ch. 142 (secs. 3294 to 3313, inclusive) , and in which the state becomes an interested party. Manifestly the state could not create or even acquire an interest'of such nature as is involved in the right to recover fines or forfeitures for a transaction without its boundaries.
Further, under this very sec. 2339m — 21, supra, and just above quoted, though declaring that marriages in violation of the provisions of the law shall be “null and void,” yet nevertheless it also provides that such “null and void” marriage may be subsequently validated by a subsequent compliance with the very statutes thus violated.
By secs. 2339m — 22 and 2339m — 23, supra, it is declared that good-faith marriages shall not be void in the event of
It further appears that these particular provisions were enacted as the result of a report to the legislature by the commissioners on uniform state laws heretofore appointed under secs. 13.31 and 13.32, Stats. _ Their duties were to act in conventions with like commissioners of other states for the purpose of advising and recommending to the legislature measures tending to secure uniform legislation in the different states. Sec. 2339m — 26 declares that the general purpose of this marriage license law is to make uniform the laws of those states which enact them, and it should therefore be construed as being in harmony and uniformity with similar provisions in other states which have or hereafter shall adopt the same. The substance of such recommended marriage license law appears to have been adopted by the following states besides our own, viz.: Vermont in 1912, Massachusetts in 1913, and Illinois in 1915.
We therefore hold that this marriage license law as contained in secs. 2339n — 1 to 2339m — 27 cannot be considered •as having any extraterritorial effect and therefore as not affecting the marriage here before us or as bringing it within the purview of sec. 2330m, supra.
The question of the construction that should be given to this marriage license .law, and particularly as to sec. 2339m — 21, supra, in case of a violation of the provisions of such license law by parties to a marriage celebrated or consummated within this state, is not before us and we express no opinion thereon.
° In disposing of the question still remaining, as to whether or not the failure by defendant to comply with the eugenic
The1 requirement of such ante-nuptial physical examination of applicants for license for marriage ceremonies to be solemnized in this state is declared to be within the proper field of legislative action, and the evident purposes of the act fully discussed, in the case of Peterson v. Widule, 157 Wis. 641, 147 N. W. 966. The question of its constitutionality, so far at least as it affects marriage ceremonies within this state, is there settled and is now at rest.
As originally enacted by ch. 738, Laws 1913, it contained provisions subjecting a county clerk unlawfully issuing a license without such certificate to imprisonment from one to five years, and a physician wilfully making false statements therein subject to conviction for perjury and the revocation of his license.
By ch. 525, Laws 1915, evidently recognizing the suggestion made by this court in the Peterson v. Widule Case, supra, in that regard, these penalties were reduced to a fine, of not more than $100 or not more than six months’ imprisonment for such violation by the county .clerk and physician respectively.
Sub. 5, sec. 1, ch. 738, Laws 1913, provided for the punishment by imprisonment not more than one year of any person a resident of this state who, intending to evade the provisions of the act in question, should go into another state and have a marriage there solemnized and fail within one year from such marriage, on returning to this state, to file with the county clerk of the county in which he shall then
At the same session of the legislature, ch. 270, Laws 1915 (sec. 2330m, Stats.), was enacted, and which has been cited at the head of this opinion.
It .is urged that the. omission of the penal provision found in said sub. 5, sec. 1, and then-the re-enactment, by said sec. 2330m, of what it was urged was the main purpose of ch. 738, Laws 1913, indicates a legislative intent to make a marriage solemnized without such prerequisite ante-nuptial physical examination a prohibited . one, rather than one which subjects the participant to punishment only, and a male party to a marriage without such prerequisite is therefore “disabled and prohibited” from entering into such ceremony, and under the other provisions of the law his marriage is necessarily null and void whether within or without the state.
We are however forced to the conclusion that the same line of reasoning that has led us to the determination above reached as to the marriage license law having no extraterritorial effect, applies equally to this eugenic marriage law’s requirement of an ante-nuptial physical examination. We are not unmindful in reaching this-conclusion of the fact that under the original act in 1913 and until amended by ch. 212, Laws 1917, such ante-nuptial physical examination was required to be by a physician of this state, and that by such amendment in 1917 provision was made for the issuing of such a certificate by a physician in the state in which the male person shall reside. We cannot regard such amendment, however, as doing' more than to afford a nonresident male desiring a solemnization of his marriage within this state a more convenient method of complying with our law, rather than as indicating that the statute was intended to be of extraterritorial effect so far as affecting marriages by residents of this state without this state.
The eugenic marriage law, therefore, or sec. 2339m, Stats., and undoubtedly its companion statute, sec. 2339n, which provides ■ for the obtaining by any male applicant for a license who had ever been afflicted with a venereal disease of a proper certificate as to a complete cure, does not make null or void the outside marriage and does riot “disable or prohibit,” within the meaning of the term as used in sec. 2330m, persons otherwise competent and capable of contracting a valid marriage who do so contract without the state.
The last point urged by plaintiff in support of her complaint, and- sustained by the trial court, is on the ground that sufficient appears therefrom to show such a fraud as to make it ground for annulment of the marriage ceremony under the provisions of sub. (4), sec. 2351, supra. -But two possible grounds can be found in the allegations of the complaint upon which such relief Could be predicated: (1) that the plaintiff was deceived by the false representations of the defendant in that regard into taking unto herself a husband who was two years younger than he represented himself to be; and (2) that the inducing her to enter into a futile marriage ceremony in Michigan, an evasion of the Wisconsin law, was of such a humiliating nature as amounted to a fraud. The trial court in his opinion based his conclusion that the complaint was good on this branch of the case upon the second ground only.
In our judgment neither of these grounds or both is or are of such substance as to meet the requirements of the substantial nature of the fraúd that must be shown as to this particular form of contract before it can be declared null and void.
The very substantial nature of the alleged fraud, which it has been uniformly held must be shown before a marriage ceremony may be annulled for the fraud specified in sub. (4), sec. 2351, needs no extended discussion. Concealment by the female of prior unchastity is not. Varney v. Varney, 52 Wis. 120, 123, 8 N. W. 739; Browning v. Browning, 89 Kan. 98, 130 Pac. 852. Concealment of the fact of the existence of a venereal disease is such. C- v. C-, 158 Wis. 301, 304, 148 N. W. 865. See, also, Winner v. Winner, decided herewith (post, p. 413, 177 N. W. 680). See, also, Davis v. Davis (N. J.) 106 Atl. 644; 26 Cyc. 905; 9 Ruling Case Law, 295.
There is a further reason why relief on the ground of fraud could not properly be granted the plaintiff in this case. Although the marriage took place on June 14th the further allegation is to the effect that she left her husband on the following day, June 15th, and “has never since cohabited with him.” Although this is a negation of cohabitation after June 15th, it is nevertheless in effect an admission that there was cohabitation prior to her leaving the defendant, and therefore a consummation of the marriage within the provisions of said sub. (4), sec. 2351, and the well récog-nized authorities.
W.e summarize the results thus arrived at on the questions involved as follows:
(1) That actions for the annulment of an alleged marriage under sec. 2351, Stats., are of exclusive statutory jurisdiction. •
(3) That sec. 2339m, providing for ante-nuptial physical examination, also has no extraterritorial effect and is applicable only to those who are applicants for a license to marry within the state of Wisconsin.
(4) That sec. 2330m, so far as it relates to marriages solemnized without the state of Wisconsin, renders null and void such pretended -marriages only so far as the parties thereto are disabled or prohibited from entering into marriage under any circumstances under the laws of Wisconsin and to such form of marriages as can receive no validity by reason of the consent of parents if the parties áre minors, the issuing of a license, or the ante-nuptial physical examination or other statutory requirements. In other words, that such section makes null and void in this state only such foreign marriages as are prohibited by sec. 2330.
(5) That sufficient grounds are not alleged to support an action for annulment on the ground of fraud.
It follows therefrom that the demurrer to the complaint should have been sustained.
By the Court. — The order overruling the'demurrer to the complaint is reversed, and the cause remanded for further proceedings.
