Barrington v. Barrington ( 1917 )

By section 3795 of the Code the chancery court is authorized to grant divorces from the bonds of matrimony "in favor of the wife when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence." By the act approved September 10, 1915 (Sess. Acts 1915, p. 370), the quoted section was amended by the addition of the following:

"Or when the wife without support from him has lived separate and apart from the bed and board of the husband for five years next preceding the filing of the bill, and she has bona fide resided in this state during all of said period."

The complainant filed her bill of complaint on January 25, 1916, praying for a divorce from the respondent, and alleging that complainant "without support from him has lived separate and apart from the bed and board of the said R. L. Barrington since, to wit, January 12, 1911, same being for five years next preceding the filing of this bill, and she has bona fide resided in this state during all of said period."

Numerous grounds of demurrer are assigned to the bill of complaint, which, however, present but two essential objections to its maintenance: (1) The statute is not retrospective in its operation, but requires a separation by the wife from the husband for five years from and after the date of its enactment; and (2) the statute is unconstitutional because it denies to the husband due process of law, and also the equal protection of the law.

Remedial statutes — those which do not create, enlarge, diminish, or destroy vested rights — are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.

But a statute which gives a new legal effect to conduct or conditions occurring or existing prior to its enactment, thereby imposing upon any person unanticipated disabilities or alterations of legal status, is retrospective in a sense which is odious to the law, and, as to such operation, is strongly disfavored by the courts, even though it does not offend the Constitution by impairing the obligation of a contract or by creating a crime or punishment ex post facto. This disfavor has everywhere found expression in a rigorous rule of construction which denies retroactive effect to such a statute unless by its express terms, or by unmistakable implication, the Legislature must have so intended. Our own court has spoken many times upon this subject:

"The future is the appropriate field of legislation; and a statute is never allowed to have a retrospective operation, unless clearly so expressed, or unless such implication must be made to give effect to the manifest intent of the Legislature." Philips v. Gray, 1 Ala. 226.

"It is a rule of construction, founded on the principles of general jurisprudence, that a statute is not to have a retrospective effect beyond the time of its enactment. * * * 'The very essence of a new law is a rule for future cases.' " Boyce v. Holmes, 2 Ala. 54, 56.

"A construction which gives to a statute a retrospective effect has always been esteemed odious, and will never be indulged unless the language employed requires it. Such statutes are justly considered as violative of every sound principle. Dwar. on Stat. 681." Kidd v. Montague, 19 Ala. 619,625.

"Courts, on the plainest considerations of justice, are averse to the retroactive operation of statutes, and confine them to cases arising after their passage, unless the words of the statute, or a clear legislative intent deducible from them, compels an application to the past as well as the future." Eskridge v. Ditmars, 51 Ala. 245, 250.

"Such statutes are offensive to the principles of sound and just legislation, and it is of these the authorities to which we have been referred, use the term 'odious,' and other epithets expressive of judicial opprobrium." Ex parte Buckley,53 Ala. 42, 55.

"Inasmuch as legislation of this character is very liable to abuse, and frequently oppressive in its effects, the courts have uniformly adopted the rule that statutes should generally be construed to operate in the future only, unless the legislative intent appears clear from their terms that they are to have a retrospective operation. * * * The rule is often stated to be that such a construction, when it operates to take away vested rights, whether legal or equitable, is not to be admitted, 'unless the implication is so clear as to be equivalent to an explicit declaration.' Osborn v. Nicholson, 13 Wall. 654, 662, 20 L.Ed. 689." Warten v. Matthews, 80 Ala. 429,430.

"The question is, not the legislative power, but whether it was the intent, that the act shall be retrospective. On principles of general jurisprudence, a statute is not to have effect beyond the time of its enactment; and to give it retroactive operation, there must be found therein clear and indisputable expressions of such legislative design. When the words of a statute can be construed as intended to be prospective only, they will not be so construed as to give retroactive effect. The courts will 'always construe statutes as prospective and not retrospective, unless constrained to the contrary course by the rigor of the phraseology.' " New Eng. Mort. Sec. Co. v. Bd. Rev., 81 Ala. 110, 111, 1 So. 30, 31.

These expressions are, indeed, but legal platitudes, and we quote them, not to further establish a rule of elementary law, but to illustrate its perennial persistence in undiminished vigor and favor.

The legislative act here involved is not remedial in character, but gives legal effect to marital conduct and relations, by converting any complete separation between husband and wife for five years next before the filing of the bill of complaint, into an authorized ground of divorce in favor of the wife, if she has so lived without support from him. It falls fairly within the class of acts whose retrospective operation is so strongly disfavored by the law, and so consistently reprobated by the courts. To it we must therefore apply in its fullest vigor the canon of construction we are discussing, and our inquiry must be, Does the rigor of its language require that it be given retrospective operation? that is, in this case, that it shall give a new legal effect to past marital conduct, so that a pre-existent period of separation, four years and eight months, shall so supplement a subsequent period of four months as to complete the required five-year period within four months after the approval of the act. The amended statute authorizes a divorce "in favor of the wife when * * * the wife without support front him has lived separate and apart from." It is certainly true-that this language is broad enough, prima facie, to embrace any suit for divorce that might be thereafter filed, and does not exclude from operation to that end a statutory term of years begun howsoever long before the enactment of the law. But we cannot say that it necessarily or clearly includes such a case. The use of the verb in the present perfect tense is appropriate, and perhaps necessary to express the idea of completion merely — the perfection of the designated term in the abstract, rather than the mere lapse of time already passed in particular cases. Such a use of the perfect tense of verbs is not only appropriate but common.

It may be that courts should indulge the presumption that the draftsmen of legislative acts have used language with the nicest perception of its shadings of grammatical meaning, but such a presumption is, at best, but weak and inconclusive; "and so [as remarked by Mr. Endlich), as it has been seen that the strict grammatical sense of the language used by the Legislature may give way to a construction required by other rules of interpretation, words apparently importing a retroactive effect will yet, in the absence of other reasons supporting such literal construction, be so construed as to produce a prospective operation." Endlich on Tit. of Stat. § 272.

We cannot escape the conclusion that a just application of the rule of construction to this act must deny any legislative intendment of a retrospective operation. Counsel for complainant rely very strongly on the case of Cole v. Cole,27 Wis. 531. There an existing divorce statute was amended by adding:

"Whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding application for divorce, the same may be granted on the petition of either party."

Said the court:

"This law establishes a new ground of divorce, and is based upon the principle that where husband and wife have voluntarily lived entirely separate for a period of five years, the interest of society and public morality, as well as the good of the parties themselves, will be best promoted by a dissolution of the marriage relation. There is nothing in the language of this statute which would seem to require that the five years' separation must have occurred after the law took effect, and we must presume that it was intended to apply to present separations as well as future ones."

That decision supports the contention of complainant in this case, but its value as an authority is destroyed by reason of the fact that the Wisconsin court applied a rule of construction which is the exact antithesis of ours, viz. retrospective operation is there presumed because it is not forbidden by the language of the act itself. In Jones v. Jones, 2 Overt. (Tenn.) 2, 5 Am. Dec. 645, following a statement of marital offenses, the act authorized a divorce "if any personhath been or shall be injured in any of the ways above mentioned" (italics supplied), and it was held that this showed a clear legislative intention to include, as grounds for divorce, conduct that occurred before the passage of the act. But if the double and sharply contrasted form of expression had not been used, that decision could not be justified on principle.

We are referred also to texts and cases which state and apply what seems at first sight to be a material qualification of the general rule against the retrospective operation of statutes, viz. that "a statute is not retrospective, in the sense under consideration, because a part of the requisites for its action is drawn from a time antecedent to its passing." Endlich on Int. of Stat. § 280; Johnston v. U.S., 17 Ct. Cl. 157; In Re Scott (D.C.) 126 Fed. 984; Queen v. St. Mary, 12 Q. B. 127. But our examination of these cases, and those cited by Mr. Endlich, does not indicate any application of the qualification quoted to other than a pro-existent status, out of which, or in relation to which, the conduct dealt with by the statute prospectively grew or was practiced; or than to statutes manifestly remedial in their character and purpose. Our discussion of this branch of the subject would be incomplete without some notice of two other texts, which seem to give some support to the opposing view:

"Where statutory relief is prescribed for a cause which is continuous in its nature, as a statute of limitations, or desertion for a certain time as ground for divorce, if the cause continues after the statute goes into effect, the future continuance of the cause may be supplemented by the time it was continuous immediately before the act was passed, to constitute the statutory period." 2 Lewis' Suth. Stat. Const. (2d Ed.) § 674.

The cases cited by the author do not support the text, but rather refute it, so far as divorce statutes are concerned. The single cited case which may seem to support the general proposition of completing a required statutory period by the use of "the time for which the cause was continuous immediately before the act was passed," is Skillman v. Chicago, etc., Ry. Co., 78 Iowa, 404, 43 N.W. 275, 16 Am. St. Rep. 452. There an Iowa statute (Code, § 1260, as amended by Acts 18th Gen. Assem. c. 15) provided that:

"In any case where the construction of a railway has been commenced by any corporation or person, and work on the same has ceased, and has not been, in good faith, resumed by any corporation or person for a period of eight years, the land and the title thereto, shall revert to the owner," etc.

The respondent railroad company, or rather its predecessor, had begun the construction of its road and abandoned the right of way nine years before the passage of the statute, and the work was resumed three years thereafter. The court said:

"The language of the statute plainly applies to the case of railroads which had been commenced and abandoned before the enactment of the statute, and whereon work was resumed within a period of less than eight years thereafter. The interpretation that the period of eight years must have run after the enactment of the statute is in conflict with the construction demanded by the grammatical rules of our language."

No account is taken of the general considerations which govern courts in such cases, and the conclusion is not in accord with the accepted canon of construction. No doubt, however, the court adopted the liberal construction it did because it regarded the statute as remedial and merely declaratory of the legal result of a forfeiture already completed by the mere act of abandonment, as indicated by the latter part of the opinion. Mr. Bishop, after reviewing some of the older cases, including Cole v. Cole, supra, concludes:

"It being the primary object of the divorce suit to regulate the order of society, and purify the fountains of morality, while still as between the parties it is a private controversy — and the proceeding being in the highest remedial, so that the spirit and reason of the divorce statutes should be pre-eminently the guides to their interpretation — we should, in all cases where the legislative intent is not plain in the words, prefer the construction which makes the statute applicable to past offenses, the same as to future." 1 Bish. on Mar. and Div. § 102.

But this view, as shown by the context (section 101), is founded solely on the theory of a delictum by the spouse against whom the divorce is authorized — i. e., a guilty breach of marital duty. Hence, conceding the merit of the author's opinion, it would not embrace a statute like that one now under consideration, for the reason that the divorce it authorizes in favor of the wife is not predicated on any delictum or marital breach by the husband. We find no case in which past conduct has been given future legal effect in cases like the present, in derogation of the general rule of construction to which we adhere, except Cole v. Cole,27 Wis. 531.

On the other hand, as remarked by the Supreme Court of Massachusetts in Burr v. Burt, 168 Mass. 207, 46 N.E. 624: "Divorce statutes generally have been held not to be retrospective" — citing Sherburne v. Sherburne, 6 Greenl. (Me.) 210; Giles v. Giles, 22 Minn. 348; McCraney v. McCraney,5 Iowa, 232, 68 Am. Dec. 702; Buckholts v. Buckholts,24 Ga. 243; Carson v. Carson, 40 Miss. 349. See, also, to the same effect, Tufts v. Tufts, 8 Utah, 142, 30 P. 309, 16 L.R.A. 482.

In Carson v. Carson, supra, an act of the Legislature (Acts 1860, p. 202) authorized a divorce "in all cases where parties have, prior to the passage of this act, lived separate and apart for the period of four years" (with certain qualifications). The court reluctantly accorded to it the retrospective operation expressly declared by its terms, but pertinently observed:

"Such legislation cannot be too strongly condemned as unwise, impolitic, and unjust. * * * It is only obnoxious to the objection that it is wholly retrospective in its operation. * * * Courts of justice always express the strongest disapprobation of such legislation, and will never be persuaded that the Legislature intends to give a retroactive effect to its enactments, without the clearest and most positive expression of such a purpose. But where an act is, like the present, retrospective only, and purports to operate alone upon acts that have already passed, and has no prospective operation whatever, there is no room left for construction, and courts are obliged, however reluctantly, to give effect to the intention of the framers."

We are, upon these considerations, constrained to hold that the statute in question authorizes the divorce here sought only upon the lapse of five years from and after the date of its enactment — September 10, 1915.

It follows that the demurrer to the bill of complaint on this ground should have been sustained, and the chancellor erred in overruling it. In accordance with our practice in such cases, we pretermit, as unnecessary, any decision upon the constitutionality of the act. Let the decree of the chancery court be reversed, and a decree here entered sustaining the demurrer on the ground stated above.

Reversed, rendered, and remanded. All the Justices concur, except McCLELLAN, J., who dissents.