The appellee (complainant below) states in her bill a good ground for her divorce from the appellant under the act to be quoted: Provided, first, the prescribed period of five years (next preceding the filing of the bill) may consist of time expiring before the law was enacted and of time expiring after its enactment; and, second, the act is not constitutionally invalid. The act reads:
"That section 3795 of the Code of Alabama of 1907 be and the same is hereby amended so as to read as follows: 3795 (1487) (2324) (2687) (3353) (1963). To wife in case of cruelty or nonsupport by husband. 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, or when the wifewithout support from him has lived separate and apart from thebed and board of the husband for five years next preceding thefiling of the bill, and she has bona fide resided in this stateduring all of said period." [Italics supplied.]
All other provisions of this act than that italicized are reproductions of the provisions of Code, § 3795, enacted more than 30 years ago. Cooley on Constitutional Limitations, pp. 154, 155, says:
"The Legislature has the same full control over the status of husband and wife which it possesses over the other domestic relations, and may permit or prohibit it, according to its own views of what is for the interest of the parties or the good of the public. * * * Marriage is not a contract, but a status; the parties cannot have vested rights of property in a domestic relation; therefore the legislative act does not come under condemnation as depriving parties of rights contrary to the law of the land, but, as in other cases within the scope of the legislative authority, the legislative will must be regarded as sufficient reason for the rule which it promulgates."
"The power of the Legislature over the subject of marriage as a civil status and its dissolution is unlimited and supreme except as restricted by the Constitution." 9 R. C. L. pp. 245, 246, § 5, and notes thereto; also pages 270, 271, and notes; Maynard v. Hill, 125 U.S. 190, 8 Sup. Ct. 723, 31 L.Ed. 654; Green v. State, 58 Ala. 190, 29 Am. Rep. 7, 14 Cyc. pp. 574, 575; Cooley, p. 403. In the formation of the Union the states did not surrender their inherent rights to control the status of marriage, the relation of marriage. Green v. State, 58 Ala. 190, 29 Am. Rep. 739. The limitation on legislative power and authority touching the marriage relation in the Constitution of this state is that a divorce may not be granted by special, private, or local law. Const. 1901, § 104, subd. 1; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95. There is no restriction in our Constitution upon the legislative power and authority to construct and to define the grounds upon which divorces may be granted by the *Page 319 courts of this state. That the act under consideration is not violative of any restrictive provision of the Constitution is clear beyond cavil, since, as Cooley and all authorities affirm, the parties to the marriage relation have no vested right in it in qualification of, or superior to, the will of the Legislature in defining the grounds upon which a dissolution of the relation may be effected by the courts. The policy, wisdom, or expediency of enactments perfected by the lawmakers are not matters for consideration, review, or revision in this court. The other question — the first stated above — involves only a construction of the act; the Legislature having the power and authority to prescribe causes for divorce without reference to when, in respect of time, they occur or during what period they prevailed.
Prior to the passage of the act in question our statutes prescribed this ground, among others, for the dissolution of the marriage relation at the instance of the "aggrieved party": "For voluntary abandonment from bed and board for two years next preceding the filing of the bill." The act under judgment introduces into our divorce laws a character of separation that effects to clothe the wife abandoning the husband with the right to divorce under the conditions prescribed in the act. The abandonment thus made a ground of divorce in favor of the wife is not predicated of any wrongful or other cause, afforded by the husband, inducing her to abandon the husband. It implies or imputes no wrong to him as a condition to the creation of this cause of divorce. Hence the existence of this ground for divorce, in favor of the wife, does not invoke considerations that are present in those causes of or for divorce which are based upon fault, delictum, on the part of him or her from whom the complainant, the actor in the proceeding, would be divorced, such as adultery, incurable physical incapacity to enter the marriage state, imprisonment for two years under sentence for seven years, the commission of crime against nature, habitual drunkenness, cruelty by the husband, and in favor of the husband when the wife was pregnant at the time of marriage without his knowledge or agency. This fact, this reason and effect of the act, alone suffices, it seems to me, to remove any possible reason for judicial hesitancy or reluctance that is supposed to arise or be inspired in the judicial judgment in respect of the interpretation of laws that are thought to be retrospective (not retroactive) in their contemplation, since invariably such judicial disfavor (where it has just application or recourse) is predicated of the view that the person adversely affected would have thereby visited upon his conduct or his right a condemnatory effect in consequence of the backward looking law. By the pertinent provision of this act, no reflection even, much less affirmation of wrongful act or omission, is cast upon the husband away from whom the wife, a bona fide resident of Alabama, has lived, unsupported, for five continuous years next preceding the filing of her bill.
In the construction and interpretation of statutes it is always important, often vitally so, to ascertain and to determine to what class of statutes, whether remedial, penal, or otherwise, the statute belongs, and this for the reason that rules of construction applicable to one class of statutes are not applicable to another. When it is considered that the dissolution of the marriage relation invades or violates no vested right of the parties thereto, and when it is considered that divorce laws are alone referable to, and justifiable by, the legislative authority to enact toward what the lawmakers conceive to be the public welfare, it is quite clear that such laws belong to the class called remedial. "A remedial statute has for its object, * * * the redress of some existing grievance or the introduction of some regulation or proceeding conducive to public good. * * *" Van Hook v. Whitlock, 2 Edw. Ch. (N.Y.) 304, 310, affirmed in 7 Paige (N.Y.) 373; 26 Wend. (N.Y.) 43, 37 Am. Dec. 246. Those are remedial statutes which are directed to the remedy of public evils. 36 Cyc. pp. 1173, 1174. At section 102 of 1 Bish. on Divorce, the learned author affirms in the strongest terms the view — premised upon the fact that the primary object of the divorce suit is to regulate and to purify society and the fountains of morality — that the proceeding is in the highest degree remedial. This court, in Green v. State, 58 Ala. 190, 193, 194, 29 Am. Rep. 739, through approving quotation taken from Maguire v. Maguire, 7 Dana (Ky.) 181, accepted the conclusion that the power exercised by a state over the marriage relation and its dissolution was "remedial and conservative." Nelson, at section 12 of his work on Divorce, says:
"Statutes relating to divorce should receive a liberal and equitable construction. The legislative intent should be ascertained and carried out in a manner calculated to afford the intended remedy. Such statutes are not penal and should not be given a strict construction. They are to be construed with reference to the apparent policy of the Legislature as gathered from the entire act. To execute this policy, the meaning of the statute may be contracted or expended from the ordinary or literal meaning of the terms. The more extensive of the two meanings may be adopted even where a statute must receive a strict construction."
But the value and weight of these manifestly sound statements of this author are neutralized, so far as his work is concerned, by this contradictory observation later in the same section (12):
"But aside from the sections of the statute relating to the * * * causes for divorce, the divorce statutes are remedial and should receive a liberal construction."
This inconsistency — and there are other manifestations of it in section 12 — may arise from the author's confusion of interpretation, construction of such statutes with the administration *Page 320 thereof in concrete cases. On this theory on]y, so far as I am given to see, can that author's statements be reconciled. If, as he says latterly, the parts of such statutes "relating to the jurisdiction of the court and the causes for divorce" are to be strictly construed, one may well inquire what is left of such statutes to which to apply the rule of liberal construction — to advance the remedy of the evil — so well stated by the author in the opening sentences of section 12. It will not do to visit upon such acts the personal notions of judges as to the wisdom of allowing divorces. The courts can only administer, never make, the law. If the lawmakers, through whom alone the policy of the state on the subject of divorce can be expressed, intended to "discourage divorce," as indeed they may do without constitutional restraint, they certainly would not set forth that purpose by providing numerous grounds of divorce as they have done in Alabama. Since such statutes (aside from the matter of jurisdiction of a particular case) are, in fact, remedial, not at all penal, they, at the very least, deserve a fair construction that is not affected with disfavor, suspicion, or distrust; a construction that looks to the ascertainment of the legislative intent and the faithful execution of it, when ascertained, to accomplish the intended remedy of the evil. 14 Cyc. 578. No harsher rule of construction of such statutes can, in my judgment, be soundly justified.
The lawmakers being free in this state, constitutionally and otherwise, to construct a ground for divorce to be granted upon a fact, act, or condition occurring or existing, in whole or in part, before the law's enactment (9 R. C. L. § 30, and notes, and authorities, supra; see Leahart v. Deedmeyer, 158 Ala. 295,298, 48 So. 371), it remains to consider whether the Legislature intended that the five-year period of separation defined in the act should commence to run after the passage of the act, or that the period provided might be constituted of time elapsing before its passage; the period prescribed being continuous and next preceding the filing of the bill for divorce on that ground.
It is asserted that to accord the act, in this respect, an effect to allow the separation period elapsing before the act's passage to afford a partial basis for the application of the act's stipulation in that regard is to read it to a retrospective effect; an effect that contradicts the usual intent that laws should be, are intended to be, prospective only in their operation. That is the prima facie intendment; that is the presumption in the absence of a manifestation of a legislative intent to the contrary; when the proposed construction of the act is to make it retrospective or retroactive. In my opinion, conforming to the principle underlying the thoroughly considered ruling of this court in State ex rel. v. Teasley, Judge, 194 Ala. 574, 69 So. 728, it is a mistake to relegate this act to the category of retrospective or retroactive laws, even if a period of separation elapsing before its passage is held to be properly a part of the five-year continuous period prescribed by the act as a ground for divorce. The principle recognized and actually applied in State v. Teasley, supra, was this: That a law, to enact which the Legislature is competent, was not retroactive; retrospective; was not ex post facto; where it establishes a rule for future observance upon a fact, act, or condition which occurred, transpired, or existed before the law was enacted. The principle there applied was the principle upon which this court proceeded in Washington v. State, 75 Ala. 582, 51 Am.Rep. 479, and on which the Supreme Court of the United States proceeded in Hawker v. New York, 170 U.S. 189,18 Sup. Ct. 573, 42 L.Ed. 1002, where our decision in Washington's Case is approvingly cited. The like doctrine is thus stated in Endlich on the Int. of Stat. § 280, p. 377:
"But a statute is not retrospective, in the sense under consideration [i. e, offensive to constitutional provisions against retroactive laws], because a part of the requisites for its action is drawn from a time antecedent to its passing."
The section quoted contains illuminating illustrations of the doctrine. In Johnston Case, 17 Ct. Cl. 157, 171, the Court of Claims of the United States had the same doctrine in mind when it said:
"A statute does not operate retrospectively when it is made to apply to future transactions, merely because those transactions have relation to and are founded upon antecedent events; or, as was said by Denman, Ch. J., in Reg. v. Whitechapel, 12 Q. B., 127, 'because a part of the requisites for its action is drawn from time antecedent to its passing.' "
Judge Bradford, writing in Re Scott (D.C.) 126 Fed. 981, 984, in addition to quoting from Endlich, said:
"A statute is not necessarily retroactive or retrospective because its operation in a given case may be dependent upon an occurrence anterior to its passage."
The opinion of Lord Denman, to which reference has been made, was rendered in Regina v. St. Mary Parish, 64 Eng. Com. Law Rep. 118, 125, 126. It confirms the text in Endlich and aptly illustrates the principle's application to a statute of the type under consideration. The case of Locke v. New Orleans, 4 Wall. 172, 18 L.Ed. 334, is another illustration of the doctrine, even in a case where the levy of taxes on property assessed previous to the enactment was made the subject of the rule established by the subsequent enactment. Giving attention to a tax statute of a similar nature to that considered in Locke's Case, supra, the Louisiana court, in City of N. O. v. Railroad Co., 35 La. Ann. 679, said this in the headnote, in further illustration of this doctrine:
"The sections assailed are not retroactive, though retrospective. They refer to the past, but provide for a future remedy." *Page 321
Other applications of the doctrine of the cases and the text noted before may be found in Miller v. Moore, 1 E. D. Smith (N.Y.) 739; Hart v. Leete, 104 Mo. 315, 15 S.W. 976; Litson v. Smith, 68 Mo. App. 397, 402, 403.
Now what, in the particular here involved, does the statute effect? In the first place, whatever its construction, it does not violate any vested right, since, as is universally accepted, neither a husband nor a wife can have any vested right in the status of marriage. In the next place, it is not penal in any sense. Not being penal and not affecting any vested right, it is, necessarily, remedial. The object sought to be effected is well stated in Cole v. Cole, 27 Wis. 531. It was therein said:
"It is further objected that the evidence shows that the parties had lived separate only a little more than three years after chapter 37, Laws 1866, took effect; and it is said the separation must continue for five years after the passage of that act. Our construction of the law of 1866 has been, that it applied to separations which began before its passage, and which continued until the application for divorce was made. Phillips v. Phillips, 22 Wis. 256. 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."
Bishop, at section 102 of volume 1, concludes to a like effect. The granting of a dissolution of the marriage relation, on bill filed by the wife, is the purpose the lawmakers undertook to effect. This dissolution of the relation could only be accomplished, under this act, after the law's enactment. Its operation, to the end it was intended to subserve, was prospective only, just as was the case in State ex rel. v. Teasley, supra. It did not and does not purport, in any event, to dissolve the relation antecedent to the law's enactment. Only "the requisites," to quote Lord Denman, "for its action is drawn from time antecedent to its passing." It provides that under defined circumstances a result, an effect only possible of existence after its enactment shall entitle the wife to a dissolution of the relation. It is, hence, not a retrospective or retroactive law. To affirm otherwise, even when pretermitting the plain terms of the act, would be to ignore the rule thus finely stated by this court in Hoffman v. Hoffman, 26 Ala. 535, 545:
"Whenever a statute is levelled against an abuse, * * * every reason exists for its most liberal application; and in such cases, it may fairly be presumed that it was the intention of the Legislature that the boon of the statute should be extended to every case which its words could properly include."
This pronouncement was recently reaffirmed by this court in Reynolds v. Love, 191 Ala. 218, 223, 224, 68 So. 27. The laws involved in the Hoffman and Love-Reynolds Cases presented, as is apparent, an appeal for the application of the rule quoted far less strong than does the statute here under judgment. There the law concerned property rights, while here the law's controlling motive and object could only have been to promote and conserve the public welfare; a motive and a purpose the courts have no power or authority to censor or to revise. When this act is considered in its true class, viz. as a remedial enactment, the soundness of the apt authority afforded by Cole v. Cole, 27 Wis. 531, is demonstrated. Following the language before quoted from the Cole Case, it was appropriately said:
"There is nothing in the language of this statute [i. e., similar to the one under consideration] 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."
Reference to decisions delivered by the Wisconsin court, both before and after it decided the Cole Case, supra, discloses that the various rules obtaining in Wisconsin for the construction of statutes are the same as those recognized and applied (on proper occasion) in Alabama. So the influence to be accorded the decision in Cole's Case cannot be even modified on the notion that that court observes rules of construction opposed to those recognized in this jurisdiction.
But the application of this act to separations existing when it was enacted was not left to implication or to doubt by the lawmakers. The act expressly provides that a dissolution of the marriage in favor of the wife may be effected when the wife"has lived separate and apart" from the husband, without support from him, "for five years next preceding the filing of the bill and who has bona fide resided in this state during all of said period." (Italics supplied.) Grammatically considered, the verbs "has lived" and "has resided" are used in the present perfect tense. Unless its effect or operation is postponed either by the Constitution or the enactment itself, a law speaks as of the time, the date it becomes law. The employment of that tense "expresses what has taken place, within some period of time not fully past, as 'I have seen him to-day.' " Brown's Grammar, etc., 340. Certainly it cannot be assumed or presumed that the Legislature was ignorant of the fact that the verbs used in this act had the meaning and effect, as vehicles of expression, so commonly accorded to them. In New Eng. Mort. Co. v. Board of Revenue, etc., 81 Ala. 110, 112, 1 So. 30, where the question was one of construction of a tax statute, this court said, in effect, that, if the enactment had used the words "or have been" instead of the verb "are" (is), the case would have presented a very different means for the expression of the legislative intent. Indeed, it is clearly inferable from the opinion that a different conclusion would have there prevailed. The lawmakers have employed clear terms, through the use of verbs that denote reference to past conditions, to expressly *Page 322 import into the act a purpose to predicate a rule for future action upon conditions taking place, at least in part, before the law was passed. Again, the definition with respect to the period of separation has manifest qualifying reference to the filing of the bill and there is no expression otherwise restricting the right to file the bill. Again, to read the act as being inapplicable to separations pending when the law was enacted, is to introduce into the act, without warrant, as I see it, the word "hereafter," or some similar term, in qualification of the meaning plainly imported by the verbs employed, and thereby to postpone for five years, from the date of enactment, the actual operation of the law. It is wholly unreasonable to think that the lawmakers so intended. In my opinion, the act means what it clearly says; and so I would accord it the effect of vindicating the complainant's (appellee's) bill.
I therefore dissent from the judgment of reversal.