I cannot agree with the construction placed on the statute by the majority. The court holds, in effect, that no matter what the husband does, whip his wife, compel her to leave home, refuse to *Page 18 permit her to come back for three years, he may get a divorce.
The statute itself provides in the seventh paragraph of the act, that the court shall grant an absolute decree of divorce at the suit of either party whether such separation was the voluntary act or by mutual consent of the parties.
It is true, as held by the majority, that the parties have lived separate and apart and without cohabitation for a period of more than three years; but the evidence also shows that they lived apart because the husband would not permit the wife to return to the home; and while she lived with him he whipped her. He called it "spanking," but whatever it might be called, it was physical punishment inflicted upon the wife.
I agree that the legislature had the right to pass this statute, but I do not think the intention was to grant a divorce where the separation was continued for three years because the husband would not permit the wife to return home.
It is the duty of the court, in construing statutes, to arrive at the intention of the legislature and to give effect to that intention. This is done by ascertaining the meaning of the words used by the legislature; but not only the entire statute on the subject must be considered, but all laws on the subject, and effect must be given to every word and sentence of the statute. This statute was an amendment to 4381 of Pope's Digest, and not only was the cause of divorce involved in this suit mentioned, but the legislature in the same act provided for six other grounds of divorce. One of them is: "Where either party willfully deserts and absents himself or herself from the other for a space of one year without reasonable cause."
The effect of the court's decision is to repeal this part of the statute. We have always held that a party is guilty of desertion that compels the other party to stay separate from them for the space of a year without reasonable cause. But if instead of preventing his wife from returning home, he had himself willfully deserted *Page 19 her and absented himself from her for the space of a year without reasonable cause, their according to the court's holding he could get a divorce, notwithstanding the same act provides that under such circumstances the wife shall have a divorce.
The legislature certainly intended that the whole act should become effective.
Another provision of the same act is: "Where either party shall be convicted of a felony or other infamous crime." Suppose the husband in this case had been convicted of a felony and his punishment had been fixed at three years in the penitentiary; then, under the holding of the court in this case, he could sue for and obtain a divorce under the seventh paragraph of the act, thereby repealing and annulling the fourth paragraph of the same act.
I think the legislature did not mean this, but that when they used the words "whether such separation was the voluntary act or by mutual consent of the parties" it necessarily meant that it had to be one or the other and it did not mean to make ineffective all the other parts of the same act.
I cannot understand how anyone could believe that the legislature meant what the court has said it meant in this case, and if it did not, then the decision is necessarily wrong.
"In construing a statute, the intention of the legislature is to be ascertained not merely from the language of the act taken as a whole, but, where the language is not free from ambiguity, from the application of the act to existing circumstances and necessities. When the words of a statute are not explicit, the intention of the legislature is to be collected from the context, by considering the subject-matter, by looking to the occasion and necessity for the law and the circumstances under which it was enacted, to the mischief to be remedied, the object to be obtained and the remedy in view, by comparing one part with the other, and giving effect to the whole, by looking to the old law upon the subject, if any, and other statutes upon the same or similar subjects, by considering *Page 20 the effects and consequences of a particular construction, and by looking to contemporaneous legislative history and contemporaneous construction of the statute." Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W.2d 452; 25 R.C.L. 1012, 1013. See, also, the case of Serio v. Serio, ante p. 11, 143 S.W.2d 1097. It was there stated: where one of the parties was unable to commit a voluntary act or to consent to the separation, the separation would not be a ground for divorce. Our construction of the statute is that it assumes that the period of living apart without cohabitation for three years must have been the conscious act of both parties in order to entitle one of the parties to a divorce.
The opinion by the court in this case states that the case of Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238, is conclusive here. I do not think so. In the first place, the question involved in this case was not in the Jones case.
In addition to what I have said, it may be said that the state is a party in interest. "The state or sovereign is deeply concerned in maintaining the integrity and permanence of the marriage relation. It has been said by the court and eminent writers on the subject that such an action is really a triangular proceeding, to which the husband and wife and the state are parties. When an attempt is made through the courts to undo a marriage, the state becomes in a sense a party to the proceedings, not necessarily to oppose, but to make sure that the attempt will not prevail without sufficient and lawful cause shown by the real facts of the case, or unless those conditions are found to exist at the time the decree is made on which the state permits a divorce to be granted." 17 Am.Jur. 155.
I think the construction put upon the statute by the court is wrong, and I respectfully dissent. *Page 21