34 W. Va. 524 | W. Va. | 1890
On May 4, 1848, Asbury Vandervort and Rebecca Jane McClastey wore married in Monongalia county, and in 1856 removed to the then far west, to Iowa, there living together until 1860, when one morning before daybreak he arose from his bed, and abandoning his wife and only child, a daughter then about eight years of age, without intimation
It clearly appears that Stewart believed the first husband, Vandervort, dead when he married Mrs. Vandervort. lie says that he stated to her before the marriage that he had heard some doubts expressed whether Vandervort was dead, and she replied that ho was dead, and that he had taken quinine and lost his reason, had wandered away and was found dead on the prairie thirty or thirty five miles away; that the body was badly decayed; that she did not go to see him, but the evidence from the hair and clothing proved that the body was that of her husband; and that this statement allayed his fear. She says that she
It may be said that she might have had more definite information by tracing her husband up, or at least going to the place where the dead man spoken of by hearsay was. .But he had been long gone without a syllable from him, and she living close to his kindred, and hearing nothing, it is probable that she believed him dead, and acting on the legal presumption of death, from seven years’ absence without information of his continued life, she married the second time under honest conviction of his death. When she married Stewart he had seven children aged from two months to thirteen years. She says she took charge of his household affairs and children, and discharged her duties faithfully as a wife for Stewart. She says: “I worked, I washed, churned, milked, and cooked through the day. At night I would sit and sew, patch and darn till twelve, one and two o’clock.” Having doubt about his legal status, especially in view of the change in the law below spoken of, Stewart brought this suit to have a judicial sentence of the nullity of the second marriage, and a decree was rendered declaring its nullity, but requiring him to pay her five hundred dollars alimony; and to get relief from this alimony he appeals to this Court.
To constitute a valid marriage, the parties must not only be willing to marry, but they must not labor under any legal disability. Prior marriage was not, at common law, a canonical disability rendering the contract merely voidable, but it was a civil or legal disability, rendering the sec-
The question arises whether in granting a decree of the nullity of such a marriage, alimony could be given the woman. Here it is very clear that, without authority of statute, alimony can not be decreed, for it never was a marriage — the woman never was a wife. 2 Bish. Mar. & Div. § 376; Schouler, Husb. & Wife, § 553. Then is there any statute conferring power on a court to give alimony in such case? Suppose the suit brought before our Code of 1868. Code, (1860) c. 109, s. 12, provides that upon decreeing the dissolution of a marriage and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court shall make such further decree as it shall deem expedient concerning the estate and maintenance of the parties or either of them. Now this is not a suit for divorce from the bond of matrimony or from bed and board under secs. 6 and 7, for causes therein specified; but it is a suit to declare the nullity of the marriage under sec. 4; and therefore this case can not fall under the words of sec. 12, “and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board and, if it falls under that section at all, it must be tinder the words, “upon decreeing the dissolution of marriage.”
Here we must recall the fact that this is no marriage. Literally, the expression, “ upon decreeing the dissolution of marriage,” would call for a marriage, not a nullity; for
“All marriages between a white person and a negro, and all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living, shall be absolutely void, without any decree of divorce or other legal process. All marriages which are prohibited by law on account of consanguinity or affinity between the parties, all marriages solemnized when either of the parties was insane, or incapable from physical causes of entering into the marriage state, shall, if solemnized within this State, be void from the time they shall he so declared by a decree of divorce or nullity, or from the time of the conviction of the parties under the third section of the one hundred and ninety sixth chapter,” (that is, for marrying relatives.)
Now, as this covers two classes of defective marriages, that is, those void and those voidable only by judicial sentence, I would apply the words, “ upon decreeing the dissolution of a marriage * * * the court may make such further decree as shall seem expedient concerning the estate and maintenance of the parties,” not to the marriages declared by the first section absolutely void without decree, which never for a moment -were marriages, but to those de-
But some complication is infused into the case by the change of the statute made by the West Virginia Code of 1868; for c. 64, s. 1 of that Code, makes none of these marriages absolutely void without decree, but makes all void only from decree. It reads as follows : “All marriages between a white person and a negro ; all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living; all marriages which are prohibited by law on account of consanguinity or affinity between the parties; all marriages solemnized when either of the parties was insane, or incapable from physical causes of entering into the marriage state, or under the age of consent — shall, if solemnized in this state, be void from the time they are so declared by a decree of divorce or nullity.”
The Code of 1868, c. 64, s. 4 gives a suit for annulling a marriage, sections 5 and 6 suits for the two kinds of divorce, and section 11 is just the same as section 12 in the Code of 1860 relative to decreeing maintenance; so that, though the-first section of this chapter in the Code of 1868 makes all marriages void only from decree, it leaves the provision as to decreeing maintenance the same. It may thus be, though we are not called on to say, that on decreeing the nullity of such a marriage as this,- solemnized since the 1st day of April, 1869, when the Code of 1868 took effect, ali-
In the first place, one of the cardinal rules by which courts are governed in interpreting statutes is that they must be construed as prospective in every instance, except ■where the intent that they shall act retrospectively is expressed in clear and unambiguous terms, or such intent is necessarily implied from the language of the act, which would be inoperative otherwise than retrospectively. It is not enough that the language is general enough to cover past transactions to justify a retroactive construction. Every reasonable doubt is resolved against a retroactive operation of the statute. Wade, Retro. Laws, §§ 34, 35; Duval v. Malone, 14 Gratt. 24; 1 Bish. Mar. & Div. §§ 98-103; Bish. St. Crimes, § 82; 1 Tuck. Comm. 2, 4, 16; 2 II. & M. 181; 3 Call. 268; 4 Munf. 109; 5 Band. 5, 11; MeCance v. Taylor, 10 Gratt. 585. “Words in a statute ought not to have a retrospective operation unless, they arc so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature can not be otherwise satisfied; and such is the settled doctrine of the court”- — -is the language used twice, at least, by the United States Supreme Court as its rule in this matter. U. S. v. Heth, 3 Cranch, 413; Chew Heong v. U. 8., 112 U. S. 559 (5 Sup. Ct. Rep. 255.)
This is a fundamental and salutary principle in the construction of statutes, and dates back to an ancient date in the English law, expressed in the rule and law of parliament that nova constitutio futuris formam debet imponere non
This principle was taken from the civil law. See case of Dash v. Van Kleeck, 7 Johns. 477, and note, where full discussion of this doctrine will he found. In In Re Tuller, 79 Ill. 99, it is held that “generally all laws are tobe construed as prospective, and not to prejudice or affect past transactions of the citizen.” A statute declared that a marriage shall be deemed a revocation of a prior will, and it was argued that as the will did not take effect, and no rights vested under it, until testatrix's death, its validity depended on the statute as it was at her death; but the court said not.
In City of Richmond, v. Supervisors, 83 Va. 204 (2 S. E. Rep. 26) it is held that this rule applies to remedial statutes; and the quotation is made from Potter’s Dwar. St. 164, note, that “even remedial statutes are to be deemed prospective in operation, and not to he applied to proceedings pending at the time of their enactment, unless a contrary intent appears.”
In addition to this rule forbidding a retroactive operation to statutes by mere construction, it is to be noted' that the Code of 1868 itself, which changed the law as above stated, in chapter 166, ss. 1, 2, provides that its adoption shall re
Hard as may be the fate of the defendant, after living
Affirmed in Part. Reversed in Part.
Note — I did not think it necessary, when writing the above opinion, to advert to the presumption of death arising from seven years’ absence, thinking it plain that it could not prevent a second marriage from being void. It may be of some use to add this note: The Code of 1860 and our Code contain provisos that the crime of polygamy does not exist where, at the time of a second marriage, the former wife or husband shall have been.continually absent seven years and shall not have been known to be alive within that time; but the Virginia statute touching the validity of marriages declare the second marriage void without any such previso. 1 Bishop’s Mar. and Divorce, g 299, says: “We should understand, that, if a first marriage subsists undissolved by divorce, the second marriage is void, even though, by reason of some exception in the statute against polygamy, or by force of some principle of the common law of crimes, the person entering into the marriage should be exempt from the statutory penalty.” He cites an array of authorities. In Glass v. Glass, 114 Mass. 566 Gray, C. J , speaking of the statute which declared all marriages prohibiten by law on account of either party having a former wife or husband then living, “shall be void without any decree of divorce or other legal process,” said that such absence would not prevent the second marriage from being void, and it was held to be void notwithstanding seven years absence. See 14 Amer. and Eng. Ency. Law, 499, n. 3.
Henry Brannon.