I respectfully dissent from the majority opinion in this case. The lower court refused to permit appellant to prove, as a defense to appellee's suit for divorce, that, after appellee deserted her he openly lived in adultery with another woman. The majority, in approving this holding of the lower court, is striking down the defense of recrimination in a divorce case *Page 46 brought under what is ordinarily called the "three-year separation law."
Since the passage of Act No. 167 of the General Assembly of the State of Arkansas of 1937, approved March 1, 1937, and the amendatory Act No. 20 of the General Assembly of the State of Arkansas of 1939, approved January 27, 1939, separation for three years as a ground for divorce has been considered and passed upon by this court in the following cases: Parrish v. Parrish, 195 Ark. 766, 114 S.W.2d 29; White v. White,196 Ark. 29, 116 S.W.2d 616; Carlson v. Carlson,198 Ark. 231, 128 S.W.2d 242; Jones v. Jones, 199 Ark. 1000,137 S.W.2d 238; Brooks v. Brooks, 201 Ark. 14,143 S.W.2d 1098; Jones v. Jones, 201 Ark. 546, 145 S.W.2d 748; Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225; Bockman v. Bockman, 202 Ark. 585, 151 S.W.2d 99; Bockman v. Bockman, 204 Ark. 891, 165 S.W.2d 256; Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845.
An examination of the opinions in those cases will disclose that in none of them was the exact question here involved decided.
By 4380 of Pope's Digest of the laws of Arkansas it is provided that all actions for divorce shall be prosecuted by equitable proceedings. This section has not been repealed or amended.
When the Legislature declared that all actions for divorce should be prosecuted by equitable proceedings this was a legislative mandate that in divorce cases the recognized doctrines of equity should be enforced. A maxim of equity recognized by this court throughout its history is that a suitor must come into a court of chancery with clean hands, and that, regardless of any grounds for relief that he may show, if it appear that, in respect of the matter involved in the suit, he has been guilty of inequitable conduct, he will be denied relief. Mr. Pomeroy, in his work on Equity Jurisprudence, 3rd Ed., vol. 1., p. 657, thus states the rule: "Whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience or good *Page 47 faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy."
Mr. Justice WOOD, in the case of O'Connor v. Patton,171 Ark. 626, 286 S.W. 822, said: "`He who comes into equity must come with clean hands; or, as it is sometimes expressed, "He that hath committed iniquity shall not have equity."'
Out of this doctrine requiring clean hands on the part of a suitor in equity was evolved the defense of recrimination in divorce cases. It has been universally held that, although the plaintiff in a divorce case proves some ground for divorce, yet, if it appears that the plaintiff has been guilty of conduct such as would entitle the defendant to a divorce, the plaintiff in such a case is denied that relief.
Mr. Justice HART announced this rule in the case of Wilson v. Wilson, 128 Ark. 110, 193 S.W. 504: "It is well settled that one who has been guilty of misconduct, which is in itself a ground for divorce, has no standing to demand a divorce upon another statutory ground. In such cases the parties will be denied relief because they are equally in fault. Malone v. Malone, 76 Ark. 28,88 S.W. 840; Healy v. Healy, 77 Ark. 94, 90 S.W. 845."
"As a general rule, sometimes declared by statute, divorce is a remedy for the innocent against the guilty. . . ." 27 C.J.S., 67, p. 623.
In Nelson on Divorce and Separation, vol. 1, 429, it is said: "It is a general rule almost without exception that one who has committed adultery does not come into court with clean hands; and is not entitled to divorce for any matrimonial offense."
Stewart, in his work on Marriage and Divorce, 314, concisely states the rule to be: "Divorce is a remedy provided for an innocent party." Similar declarations *Page 48 are found in 2 Bishop on Marriage, Divorce and Separation, 350, and in Brown on Divorce, p. 84.
"A suitor for divorce cannot prevail, if open to a valid charge . . . of any matrimonial offense whatever, of equal grade. . . ." Cumming v. Cumming, 135 Mass. 386, 46 Am. Rep. 476.
"Adultery is generally available as a recriminatory charge in all cases. 9 R.C.L. 390. It may be set up as a recriminatory defense by the deserting spouse. The rule is founded upon the equitable theory that whoever appeals to a court for relief must do so with clean hands and with an apparently clear conscience, and one who has committed adultery, though deserted by her lawful spouse, has not a clear conscience and may not seek the favor of the court." Chaviz v. Chaviz, 59 N.M. 480,50 P.2d 264, 101, A.L.R. 635.
The Supreme Court of Maryland, in the case of Green v. Green, 125 Md. 141, 93 A. 400, L.R.A. 1915E, 972, Ann. Cas. 1916E, 972, Ann. Cas. 1919A, 175 (Headnote), said: "A man guilty of adultery is not entitled to a divorce from his wife for desertion, although the statutory period of desertion had elapsed before his act was committed, and the abandonment was the inciting cause of his act."
Vice Chancellor Grey, in the case of Tracey v. Tracey (N.J. Eq.), 43 A. 713, said: "All the cases, however, declare that if the complainant, in proving his case, discloses his own guilt, the court will refuse him relief, even if his misconduct be not pleaded against him. . . . He comes into court with unclean hands, and cannot rightfully ask its aid."
In providing that suits for divorce should be by equitable proceedings, the Legislature put into force in Arkansas the maxims of equity as a part of the divorce law. The acts authorizing the granting of a divorce where parties have been separated for a period of three years do not impair the force of these equitable rules. An examination of the last act (Act No. 20 of 1939, *Page 49 approved January 27, 1939) reveals that it is not an act relating only to the three-year separation as a ground for divorce, but by this act the entire section (4381 of Pope's Digest) enumerating all the grounds of divorce, is re-enacted. This section which is thus re-enacted begins with this language: "The chancery court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:" (Then are recited the seven grounds for divorce as fixed by the statute, including separation for three years.) Nowhere in this act is it expressly provided that the right to assert recriminatory defense in a divorce suit is abolished, and the provision that "the question of who is the injured party (in the separation) shall be considered only in the settlement of property rights of the parties and the question of alimony" is not sufficient, in my opinion, to show a legislative intent to abolish the defense of recrimination.
Under the construction now being placed upon our divorce law by the majority a woman may desert a good husband and live the life of a public prostitute for three years, and, at the end of that time, with the odor of the brothel still on her, go into a court of equity and demand and receive a divorce from an unoffending husband. Under the rule being laid down by the majority, a man may desert a faithful and loving wife, who has borne and reared children for him, and aided him in accumulating a fortune, take unto himself a paramour, live with her in open adultery for a period of three years, and then, at the expiration of that time, go, with the filth of his illicit amour still on him, into a court of equity which, as we have many times said, moves only when activated by conscience, and obtain a divorce from his innocent wife. Until the Legislature says so in express language, I am not willing to ascribe to it the intention of creating any such obnoxious situation.
Furthermore, the construction now being given to our divorce law by the majority, which takes away from *Page 50 the chancery court power to make any inquiry as to the guilty conduct of the party seeking the divorce, and deprives the chancery court of its ancient right to deny relief to a suitor whose conduct, as to the matter involved, disentitles him to equitable relief, would, in my judgment, render the act unconstitutional as an attempt by the Legislature to impair the constitutional powers of the judiciary.
"It is not within the legislative power to require or forbid the rendition of a particular judgment, or to prescribe to the courts a rule of decision." 16 C.J.S., Constitutional Law, 128, p. 312.
A situation somewhat similar to the one we have here was involved in the case of Walton v. Walton,86 Colo. 1, 278 P. 780. It appeared in that case that a suit for divorce had been instituted by the husband against his wife. The wife filed answer and cross-complaint charging her husband with adultery. Findings of fact and conclusions of law in favor of the defendant were made by the court. Under the laws of Colorado it is provided that "if the findings of fact and conclusions of law had not been set aside within six months from the date on which they were filed and no motion to set them aside remains unheard and undecided the court shall grant a divorce to the party entitled thereto, upon the application or motion of either party to said action, according to said findings of fact and conclusions of law." The wife filed no motion for decree, but after the expiration of the six months from the filing of the findings of fact by the court the husband filed a motion asking that decree of divorce in favor of his wife be entered. It was urged that the statute made the entry of the decree of divorce under the circumstances mandatory. The Supreme Court of Colorado, however, denied this contention saying: "The Legislature has, by its statute, virtually determined that the equities of the case shall be disregarded, and that the guilty shall stand on an equality with the innocent. It will be conceded that the Legislature may abolish all divorces, and thus deprive the courts of jurisdiction in these cases; but, when the *Page 51 Legislature has enacted its statute prescribing the grounds for divorce and the steps necessary to be taken to give the court jurisdiction, it has fully discharged its duty and completely exhausted its powers. When the court has once acquired jurisdiction, it must be left to determine the case and issue its decree in accordance with the well-established rules prevailing in that jurisdiction. The Legislature may, in its wisdom, provide that no decree shall issue within a certain period; but when it undertakes to determine that, after the expiration of that period, the guilty have been completely absolved from the consequences of their guilt, and can then demand the court's decree, either with or without the express opposition of the innocent, it has overstepped. . . . We further hold that in so far as the amendatory Act of 1925 attempts to empower and direct the court to issue its decree upon application of the guilty party to a divorce action, and only so far, it is not only against public policy, but is unconstitutional."
To hold that the statute under consideration here means that in any event, and regardless of any countervailing equities, the chancery court must grant a divorce whenever a separation for three years is shown, would, it seems to me, make of the chancery court merely a sort of administrative bureau, instead of a tribunal invested with the dignity and power that a court of superior jurisdiction should and does — under our constitution — possess. The preservation of our republican form of government depends in a large measure upon the maintenance in full vigor of each of the three- co-ordinate magistracies. When one of these departments of government trespasses upon the domain of another department, the symmetry and balance of the whole system is thereby destroyed. By construing this statute in such a way as to permit the court to continue to exercise its judicial functions in divorce cases we would avoid any conflict between the statute and the constitution. *Page 52