Cotten v. Rutledge , 33 Ala. 110 ( 1858 )

RICE, C. J.

—This action was brought to recover the penalty of five hundred dollars, which is imposed by section 1953 of the Code upon a judge of probate, for issuing a license to marry contrary to the provisions of the article in which that section is embraced.

The only objection to the complaint, stated in the demurrer thereto, is, that it does not aver “ that, at the time the license issued, David Hale, the male intending to marry, was under twenty-one years of age.” No other objection can be taken, (Code, § 2253 ;) and we first proceed to consider the single objection stated.

[2.] There is awkwardness and confusion in the structure of the first - sentence of section 1950 of the Code. The intention of the lawmaker is not therein expressed with anything like clearness. But we think it sufficiently appears frem the words employed in it, that it was designed to secure to parents and guardians some power of restraint over the marriage of male minors, as well as over the marriage of females under the age of eighteen years of age. The construction contended for by the defendant, would destroy such power in almost every case. It would allow the judge of probate, with impunity, and without the consent of parent or guardian, to issue a license to marry a male of three-score years and ten to a female of fifteen, or a female of sixty to a male of eighteen. We cannot persuade ourselves that the legislature intended licenses to issue in such cases, without the consent of the parent or guardian of the minor. We think the provisions of the first sentence of section 1950 must be taken distributively, and as making it the duty of the judge of probate to require the consent of the parent or guardian of the minor to the marriage, to be given in two distinct classes of cases, to-wit, 1st, where the male intending to marry was under twenty-one, and had not had a former wife; and, 2d, where the female intending to marry was under eighteen, and had not had a former husband. This construction serves, in some sort, to account for the use of the word “ and,” where it first occurs in the sentence, and makes the sentence mean what it would clearly express if it read as follows: “ If the male intending to marry he under twenty-one, and have not had a former wife, the judge of probate must require the consent of his parent or guardian to the marriage, to be given either personally, or in writing; and if in writing, the execution thereof must be proved;—and if the female intending to marry be under eighteen years of age, and have not had a former husband, the judge of probate must require the consent of her parent or guardian to the marriage, to be given either personally, or in writing; and if in writing, the execution thereof must be proved.” That reading, in our opinion, shows the true meaning of the first sentence of section 1950 of the Code; and it accords with the principle, that upon the revision of statutes, the construction will not be changed by such alterations as are designed to render the provisions more concise.—Mooers v. Burker, 9 Foster, 420; Clay’s Digest, 873, § 5.

[8.] In issuing a license to marry, the judge of probate does not exercise judicial power. He acts ministerially, and at his peril. His duty in that behalf is defined by the Code. If, before issuing a license to marry any minor, he obtains the consent of the parents or guardians of such minor, he is safe. If, without the consent of the parents or guardian of a female under eighteen years of age, who has not had a former husband, he issues a license to marry her to a male, he violates his duty as prescribed by section 1950 of the Code, and thereby incurs the penalty of five hundred dollars mentioned in section 1953; and neither her affidavit, made before him, that she was eighteen years old, nor his honest belief that she was of that age, can relieve him from the penalty, nor properly be considered in a suit brought to recover it. Good faith is no protection against the consequences of the violation of the duty prescribed by the statute.—Sedgwick on Stat. and Cons. Law, 99, 100, and authorities there cited.

[4.] Any person may sue for the penalty, when it has been incurred. The person who may sue for it, may properly be styled the plaintiff in the action, although he sues as well for the State as for himself. And the fact that he is stated as the plaintiff, in the interrogatories, commission and return of the commissioners, is no valid objection to a deposition offered as evidence in the suit. In other words, it is not essential that the person suing for the penalty should show, in his interrogatories and commission, that he is suing as well for the State as for himself.—Jordan v. Hazard, 10 Ala. 221; Lloyd v. Williams, 3 Wilson, 141; The Weavers’ Company v. Forrest, 2 Strange, 1232; Rogers v. Jenkins, 1 Bos. & Pul. 384; Agee v. Williams, at January term, 1858.

[5.] When, as here, such suit is for a sum of money fixed by law as the penalty for the act of the defendant alleged in the complaint, and the case is tried on an issue joined on the complaint, if the plaintiff recovers at all, he must recover the specific sum fixed as the penalty; he cannot recover more or less; and the verdict of the jury, “ we, the jury, find for the plaintiff”—is sufficient to authorize a judgment for the sum fixed by law as the penalty, and for the costs of the action.

[6.] Counsel may waive the right to argue a case before the jury. Declining to argue it before them, after the evidence is closed on both sides, is a waiver of that right. And when the right is thus waived, it is not revived by allowing either party to read from a record book a piece of evidence which had in the course of the trial been properly read to the jury, although such second reading of that piece of evidence was permitted after the jury had been charged and had retired, and on their return into court to inform the court that they could not agree on a verdict.—Prosser v. Henderson, 11 Ala. 484.

The application of the foregoing views to the several Questions presented for revision in this case, brings us to the conclusion, that there is no error in any of the rulings of the court below complained of by the appellant.

Judgment affirmed.