Barrington v. Barrington , 200 Ala. 315 ( 1917 )

It will be conceded that marriage creates the most important relation in life, and has more to do with the morals and the civilization of a people than any other institution. It has been held to be the subject of control by Parliament in England, and by the state Legislatures in the United States. Such Legislatures have prescribed the reasonable conditions under which parties may contract marriage, the procedure, form, or acts, essential to consummate it, the duties and obligations assumed thereby, and its present and prospective effect upon the property rights of the contracting parties; and have specified the failures of duty which shall constitute grounds for the dissolution of the union.

At the time of the adoption of the federal Constitution the states possessed full power over the subjects of marriage and divorce, and that Constitution delegated no power to the general government on this subject. This important institution of society, marriage, regulated and controlled by the public authority of the state, has been declared not to be within the provisions of the federal Constitution inhibiting the impairment of contracts, etc. Maynard v. Hill, 125 U.S. 190,214, 8 Sup. Ct. 723, 31 L.Ed. 654; Andrews v. Andrews,188 U.S. 14, 23 Sup. Ct. 237, 47 L.Ed. 366; Haddock v. Haddock,201 U.S. 562, 26 Sup. Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1; Arnett v. Reade, 220 U.S. 311, 31 Sup. Ct. 425, 55 L.Ed. 477, 36 L.R.A. (N.S.) 1040; Green v. State, 58 Ala. 190, 29 Am. Rep. 739; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95.

The authority of the state to regulate the institution of marriage, however, must be referred to the police power of government; and this power may not be capriciously, unreasonably, or arbitrarily exercised. Had the Legislature prescribed, as a ground for divorce at the will of the wife, that any rich married woman, or any married woman under, or over a designated age, etc., should have a divorce, without regard to a delictum on the husband's part, upon giving a prescribed notice to him, this court would not hesitate to declare such a classification unreasonable, capricious, and arbitrary. Would not such a statute deny to these husbands a fundamental right of citizenship — a right or privilege enjoyed by other citizens, to wit, the right accorded to their wives by this capricious enactment?

The Declaration of Rights is the controlling part of the Constitution; and all the general powers of the Constitution "must be expounded," and their operation "extended or restrained," with reference thereto. In re Dorsey, 7 Port. 293. Would not such a statute deny to husbands the equal right of liberty and "the pursuit of happiness," in the enjoyment of marriage contracted under proper regulations of law? Const. § 1. The liberty thus guaranteed by the Constitution is "liberty regulated by law and the social compact." Mr. Justice SOMERVILLE observed, of this constitutional guaranty of equality, that "in order that all men may enjoy liberty it is but the tritest truism to say that every man must renounce unbridled license," which, "if exercised without restraint [would] deprive other citizens of rights which are also and equally natural." Hardie-Tynes Mfg. Co. v. Cruise et al.,189 Ala. 66, 66 So. 657. The natural right of marriage of man and woman must be subject to the same reasonable regulation of municipal law. What becomes of that natural right, protected under the equality clause of the Constitution, and the "pursuit of happiness" thereunder, if both parties thereto are not equally subject to the municipal law?

The contractual relation or status of marriage is one of the most important and sacred, provided for and protected by the "social compact." If the operation of a "lawful business" is included among the inalienable rights of life, liberty, and the pursuit of happiness, is not the natural right of marriage to be so included? If so, it is secure against the capricious and unreasonable interference of municipal law, that would bind one of the contracting parties and, without just cause or delictum on his part, free the other. So it cannot with reason be said that the liberty and equality guaranteed by the Constitution to all men — "liberty regulated by law and the social compact" — is accorded under the statute here in question to the class of individuals composed of the husbands of the favored wives, to say nothing of other husbands and wives who are not so favored. The practical effect of this statute is to grant, under the social compact, an unreasonable and capricious extension of liberty or privilege to those individuals coming within the classification of wives who may at will repudiate existing and binding marriage obligations (perhaps to contract marriage with others), and to deny such liberty to another class of individuals, their husbands, as well as to any husband who desires to be freed from the status of marriage without fault on the part of the wife.

It will not be held, under the Constitution, that there can exist a statutory ground for divorce available only to the wife, the legal effect of which is, that any married woman, a bona fide resident of the state, may be divorced at will by living apart from her husband — away from his bed and board — for five years next preceding the filing of her bill for separation, and refusing to accept or receive from him support within that period, notwithstanding he may be able and willing to discharge his every lawful and moral obligation to the wife. The Constitution will not permit such an arbitrary and capricious exercise of municipal power by the Legislature.

It is true that at an earlier period of this state the Legislature exercised the right to dissolve the relation of marriage by either special or general enactment, and under circumstances which provided scant opportunity for a hearing upon the relative rights, and failures of duty, of the parties. In this way "hard cases" of insanity, incompatibility, etc., were dealt with by the Legislature under former Constitutions. However, the tendency has been to limit and, later, to deny this legislative power over questions without the sphere of legitimate legislation, and properly belonging within the province of judicial determination. In Jones v. Jones, 95 Ala. 443, 448, 11 So. 11, 12 (18 L.R.A. 95) Mr. Justice Walker observed, of the Constitution of 1875, that:

"It contains no express provision on the subject of divorce. It, however, prescribed general restraints upon the power of the Legislature which were not found in the former Constitutions. The question to be considered is whether the omission of a special provision against granting divorces except in judicial proceedings left the Legislature free to exercise an original plenary power over the subject, and to grant divorces by enactments for special cases. It is clear that such special legislation for individual cases is not in harmony with the policy of preserving an equality of all persons before the law, without favors to some and discriminations against others under similar circumstances."

In the Constitution of 1901 (section 104), the right to grant divorce by legislative enactment is denied. Subsection 1, and the other provisions guaranteeing equality before the law, long prevailing in our organic law, are retained.

I concur in the view announced by Mr. Justice SOMERVILLE, that the act of September 10, 1915 (No. 413, Gen. Acts, 370), was not remedial, and that there was an essential difference between it and the act construed in State ex rel. Brassell v. Teasley, Judge supra, as pointed out by the learned justice.