State v. Walker , 36 Kan. 297 ( 1887 )

The opinion of the court was delivered by

Johnston, J.:

The questions to be determined upon this appeal arise upon an instruction given to the jury upon the trial, in which it was said that —

“If the defendants, at the time alleged in the information, and in this state, agreed to live together as husband and wife without having a license to be married, and without having a marriage solemnized by a judge, justice of the peace, or licensed minister of the gospel, and in pursuance of such agreement lived together in this county, they would be guilty of the offense charged in the information.”

The instruction is founded upon the marriage act, and the manifest theory of the court is that the law of Kansas has provided rules regulating the marriage contract, and has prescribed a penalty or punishment for those who live together as man and wife without observing its requirements. In behalf of the appellants it is urged that what was said and done by them was sufficient to constitute marriage at common law. It is claimed that the formalities prescribed by statute are not essential to the validity of the marriage, and that as the contract of marriage between the defendants was not void, they are not punishable for failing to observe the statutory requirements in entering into the marriage contract, and that therefore the instruction given is erroneous. The correctness of the instruction depends upon the proper interpretation of the marriage act. The first section of the act provides that a marriage contract shall be considered in law as a civil contract, to which the consent of the parties is essential, and that the ceremony may be regarded either as a civil ceremony, or as a religious sacrament; but it provides that “the marriage relation shall only be entered into, maintained, or abrogated as provided by law.” The second section provides that certain degrees of consanguinity shall be an impediment to marriage, and all marriages within the forbidden degrees of consanguinity are declared .to be incestuous and void. The third section declares that all persons who contract, license, or solemnize an incestuous marriage shall be guilty of a misdemeanor and subject to fine and imprisonment. The fourth section declares a penalty against any person who shall join others in marriage before a license has been issued by the probate judge. The fifth section provides that the probate judge shall issue a license to all persons legally eutitled to the same upon application, and prescribes the form of the license. In the sixth section the probate judge is required to make a record of the licenses issued by him, as well as of the return indorsed upon the license by the person performing the marriage ceremony, and .states the fee to which he is entitled. The seventh section visits a penalty upon the probate judge who refuses or neglects to issue a license to a person legally entitled thereto when application is made, or who neglects to make a record of the license issued, or the return indorsed thereon. The eighth section empowers the probate judge to administer oaths and examine witnesses with reference to the right of persons who apply to him for license to assume the marriage relation, and also prescribes a penalty for issuing a license to persons not legally entitled thereto. The ninth section provides that marriages contracted outside of this state, and which are valid where contracted, shall be deemed valid in this state. The tenth section provides that every judge, justice of the peace, or licensed preacher of the gospel, may perform the marriage ceremony in this state, and shall certify on the back of the. license the fact of the marriage and the date thereof, and cause the license to be returned to the probate judge within thirty days. To that section is added a proviso that marriages solemnized among the Society of Friends or Quakers in accordance with their forms and usage shall be good and valid, and shall not be affected by the provisions of the marriage act. The eleventh section provides that the books of record of marriage licenses, and the entries therein certified to by the probate judge, under his official seal, shall be evidence in all courts. The twelfth section, and the one under which this prosecution is brought, provides that “any persons living together as man and wife within this state, without being married, shall be deemed guilty of a misdemeanor,” etc. And the thirteenth section provides that all records heretofore kept relating to marriages shall be delivered to the probate judge in the county within thirty days after the taking effect of the act.

1. Common-law marriage; when sustained. It is palpable that the leading idea and purpose of this act is to compel publicity, and to require a record to be made of the marriages contracted in Kansas.- By the terms of the act, marriage is declared to be a civil contract, the essential feature of which is the consent of the parties. No particular ceremony or form of solemnization is prescribed or required. The settled doctrine of the law to be applied in a case where the' validity of a marriage is drawn in question, is, that in the absence of all civil or statutory regulations, the . 1 . , , , . , mutual present assent to immediate marriage by L t #° J persons capable of assuming that relation, is sufficient without any formal solemnization. Such a contract constitutes a marriage at common law, and its validity will be sustained, unless some statute expressly declares it to be void. (Meister v. Moore, 96 U. S. 76; 1 Bish. Mar. & Div., §§ 279, 280, 283, et seq., and numerous cases there cited.) It may also be conceded to be well established that marriage, being a natural right and existing before the statutes, is favored by the law, and that all statutory regulations, if the language will permit, are to be construed as merely directory. “ The doctrine has become established in authority, that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.” (1 Bish. Mar. & Div., § 283.) It is also true that according to the terms of the marriage act, the only marriage contracts declared to be void are those entered into between persons closely allied in blood, which are everywhere prohibited. No such relationship existed between the defendants; nor is it shown that there was any impediment to their marriage. The penalties inflicted by other provisions of the statute upon officers and those who fail to observe the required formalities, do not necessarily render a consensual marriage void; but this does not meet the charge against the defendants, nor render erroneous the instruction of the court. If the question involved in the case was, whether the marriage was void or voidable, or if the legitimacy of children were in question, the argument of the defendants would be more applicable; and yet we are not prepared to say that the contract between the defendants is -a common-law marriage. The question actually presented is, whether the legislature intended to inflict punishment on those who entered the marriage relation without observing the statutory regulations.

s' fatofmayilgThe legislature has full power, not to prohibit, but to prescribe reasonable regulations relating to marriage, and a provision making it an offense and punishing those who solemnize or contract marriage contrary to statutory command, is within the legislative authority.

3' SaSePpunPunishment may be inflicted on those who enter the marriage relation in disregard of the prescribed statutory conditions, without rendering the marriage itself void. In Teter v. Teter, 101 Ind. 129, the supreme court of Indiana, while holding that ceremonial rites are not indispensable, and that the intention to assume the relation of husband and wife, attended by pure and just motives, and accompanied by an open acknowledgment of that relation, is sufficient to constitute marriage, stated that —

“Persons may be punished for not obtaining licenses to marry, or for not taking steps to secure a proper record- of the marriage, but there may nevertheless be a valid marriage.”

Mr. Bishop says that—

“This rule seems not to be peculiar to the common law. It exists also in Sicily; so in Scotland, where marriages contrary to the forms established by law are very frequent, and no question remains as to their validity, the law imposes severe penalties upon the parties, the celebrator and the witnesses.” (1 Bish. Mar. & Div., § 287.)

This, in our opinion, is the legislative purpose and expression in enacting §12 of the marriage act. The provision imposing a penalty upon those who live together as man and wife without being married is a part of the marriage act, wherein it is provided how marriage contracts may be entered into and solemnized. In the first section of the act it is provided that the marriage relation shall only be entered into in the manner provided by law. It proceeds to state what the manner is, and then prescribes penalties that are to be visited on all who disregard the rules laid down.

It is to be observed that the law relating to marriage was changed in 1867, at which time the words were added to the first section that “ The marriage relation shall only be entered into, maintained, or abrogated, as provided by law.” At the same time, the twelfth section was added, providing the punishment which the defendants are now seeking to escape. These changes were not idly made, but were manifestly intended to compel compliance with the formalities and conditions prescribed. It is evident from the penalties imposed, that the legislature deemed the enforcement of the statutory regulations as important and beneficial, not only to the parties contracting marriage, but to society at large as well. The probate judge is to be punished if he issues a license to those not entitled to one. Magistrates and ministers of the gospel are forbidden under heavy penalties to marry persons before a license has been obtained; and the probate judge is declared guilty of an offense if he fails to properly record the license and the return thereon. By these and other penalties, the legislature undertook to prevent the officers and ministers from authorizing or solemnizing marriages where the conditions and formalities of the statute have not been observed. The same idea is further carried out in the twelfth section, by visiting a punishment upon the parties themselves for failing to conform to the rules prescribed. The legislature directs how parties may be married, and then declares a punishment against them for living together as man and wife without being married, as the law provides. It is true that the penalty is directed against those who live together as man and wife “ without being married.” These words, we think, refer to those who assume the marriage relation without being married in the manner and upon the conditions in accordance with which the legislature has declared marriage should be contracted. When persons who are permitted to marry “live together as man and wife,” it may be taken as an expression of consent, and consent under these circumstances is sufficient, as we have seen, to constitute a marriage at common law. It was certainly not intended that persons guilty of bigamy or adultery, nor persons who intermarry or cohabit with each other that are within the forbidden degrees of consanguinity, nor yet that a man or woman (one or both of whom are married) who shall abide or cohabit with each other, should be prosecuted and punished under this provision, as those offenses are defined and the punishment declared in the crimes act. (Gen. Stat., ch. 31, art. 7.) Under that act severe punishment is measured out to those who many or live together as man and wife where there is a legal impediment to their marriage. ' For these offenses there is a maximum punishment prescribed of from five to seven years’ imprisonment, while a conviction under the provision of the marriage act which we are considering, subjects the parties to a mere fine, or to imprisonment in the county jail not more than three months.

The exception made by the statute in regard to marriages solemnized among the Society of Friends or Quakers lends support to the view which we have taken. Marriage with them is based on consent publicly declared in one of their meetings, and has all the elements necessary to make it good at common law. According to the defendants’ theory, they would not be liable to the penalty written in §12, because marriage celebrated in accordance with their usage is valid at common law. Rut to relieve them from complying with the formalities of the statute, and to exempt them from the penalty provided, the legislature deemed it necessary to except their informal marriages from the operation of the act.

of statute^ misdemeanor. The argument made, that to require an observance of the statutory regulations trenches upon the liberty of conscience guaranteed by the constitution, is not sound. Although marriage is generally solemnized with some religious ceremony, it is not under the control of ecclesiastical or religious authority. No religious rite or ceremony is prescribed. The intervention ■of a preacher or priest is not essential, and no religious qualification is required. So careful was the legislature to guard against any such invasion, that no particular form of ceremony is prescribed; and in the first section of the act it is declared that the ceremony may be regarded either as a civil ceremony or as a religious sacrament. The regulations prescribed are neither burdensome nor unreasonable. These parties may go before a probate judge and obtain a license for a nominal fee, and there, in his presence, and without further rite or ceremony, perfect the marriage by declaring that they take each other for man and wife. The so-called “mummeries of the church,” against which the defendants so strenuously object and protest, may be wholly omitted, and they may be married in as plain and matter-of-fact manner and with as short and simple a ceremony as can be desired, by a justice of the peace or other magistrate. It cannot be doubted that the purpose of the statutory regulations is wise and salutary. They give publicity to a contract which is of deep concern to the public, discourage deception and seduction, prevent illicit intercourse under the guise of matrimony, relieve from doubt the status of parties who live together as man and wife, and the record required to be made furnishes evidence of the status and legitimacy of their offspring. In the accomplishment of this purpose it was just as necessary to provide a penalty against parties who contract marriage in disregard of the rules prescribed, as against officers and ministers, who only perform a minor part in the proceedings; and we have no # x ' doubt that this was the legislative intention in the enactment of §12 of the marriage act. We see no reason to declare the act invalid; and finding no error in the record, we must affirm the judgment of the district court.