In re Crane

Ostrander, J.

(after stating the facts). It is apparent that the power of the court to impose the restriction upon petitioner is derived from, and is in execution of, the statute. The force and effect of the statute cannot be extended by the decree. Therefore, if for any reason the action of petitioner was not in violation of the statute, neither was it in disregard of the decree. I conceive that the case would be different if the court had the power, independent of statute, to impose the restriction. Courts of equity not infrequently make decrees controlling the conduct of parties in any jurisdiction into which they may go. In the instant case the decree is effective as the statute is effective and not otherwise. I am of the opinion, therefore, that the conviction of petitioner cannot be sustained if his marriage is considered to be valid.

It is impossible, I think, to consider the disregard of the decree separate from the disobedience of the statute. Petitioner has not disregarded the decree if he has not also disobeyed the statute. The court by virtue of the statute commanded the petitioner not to remarry. The consequences of a remarriage are stated in the statute and are:

“ In case any person shall marry contrary to the time set out in such decree said party shall be deemed to have committed the crime of bigamy and shall be subject to the pains and penalties therefor.”

I conclude that, whether the Canadian marriage was valid or was invalid, the court had no jurisdiction to punish petitioner as for a criminal contempt. An order will be entered discharging petitioner from custody.

While I have found it unnecessary to determine the scope of the statute, it is not improper to direct attention to the fact that it seems to be penal in character; a fact which must be considered in any case in determining its effect. Statutes imposing restrictions upon the remarriage of divorced persons are not uncommon and in some jurisdictions are operative without the aid of an express restriction in the decree of divorce. Manifestly, if a statute is so drawn that prohibitions must be considered as applying only to marriages solemnized within the State, divorced persons may with impunity remarry in a foreign jurisdiction and return to and live in the State. On the other hand, if a statute is so drawn as to clearly disclose a State policy which regards as void all marriages in disregard of the statute restriction, wherever the marriages are celebrated, the courts must determine the rights of parties accordingly.

It was held in New York in Van Voorhis v. Brintnall, 86 N. Y. 18 (40 Am. Rep. 505), approved in Thorp v. Thorp, 90 N. Y. 602 (43 Am. Rep. 189), that a provision of the Revised Statutes prohibiting the second marriage of a person divorced on the ground of his or her adultery during the life of the former husband or wife, and declaring such marriage void, had no application, as they are in the nature of a penalty, and have no effect outside of the State in the absence of the express terms of the statute showing legislative intent to give them that effect. And in the case last referred to, in which a divorced person who was within the terms of the statute had remarried in another State and was applying for a divorce from the person he had so married, it was held that the fact that in remarrying he had disregarded the terms of the former decree of divorce was not ground for refusing him relief. The answer to the contention that he was in contempt was that neither the decree nor the statute which authorized it had any effect outside the jurisdiction of the State.

In Wisconsin the statute considered was:

“It shall not be lawful for any person divorced from the bonds of matrimony by any court of this State to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void.” Laws 1901, chap. 271, amended by Laws 1905, chap. 456.

In Lanham v. Lanham, 136 Wis. 360 (117 N. W. 787, 17 L. R. A. [N. S.] 804, 128 Am. St. Rep. 1085), the court considered the application of a widow to have support out of the estate of her alleged deceased husband. It appeared that she had been divorced in Wisconsin from a former husband and had within a month remarried in Michigan with the purpose of evading the Wisconsin law. It was held that the Michigan marriage was void, and in reaching this conclusion the court declared the statute was not a penal law and that the law was a declaration of the policy of the State to regard such marriages, wherever celebrated, as invalid in Wisconsin. Other cases to which reference may be made are Pennegar v. State, 87 Tenn. 244 (10 S. W. 305, 2 L. R. A. 703, 10 Am. St. Rep. 648); McLennan v. McLennan, 31 Or. 480 (50 Pac. 802, 38 L. R. A. 863, 65 Am. St. Rep. 835); Estate of Stull, 183 Pa. 625 (39 Atl. 16, 39 L. R. A. 539, 63 Am. St. Rep. 776); Smith v. Fife, 4 Wash. 702 (30 Pac. 1059, 17 L. R. A. 573); State v. Shattuck, 69 Vt. 403 (38 Atl. 81, 40 L. R. A. 428, 60 Am. St. Rep. 936). Also, see 14 Cyc. p. 729; 26 Cyc. p. 829.

Steere and Bird, JJ., concurred with Ostrander, J.