In 1866 a law was passed reading as follows: "All children born out of wedlock are hereby declared legitimate on the marriage of the parents with each other and are entitled to the same rights as those born in wedlock." L. 1866, Act 1; Comp. L. 1884, p. 427; C.L. 1897, Sec. 1876; R.L. 1905, Sec. 2288. In 1880 in the case entitled Kekula v. Pioeiwa, 4 Haw. 292, the supreme court of Hawaii held that the statute just quoted did not apply to the offspring of an adulterous intercourse and the ruling was reaffirmed in Kealoha v. Castle, 17 Haw. 45, decided in 1905. In 1907 the legislature, doubtless having in mind the decisions in the Kekula and Kealoha cases, amended the Act of 1866 so as to have it read as follows: "All children born out of wedlock, irrespective of the marriage of either parent to another, become legitimate on the marriage of the parents with each other and are entitled to the same rights as those born in wedlock." The statute as so amended is still in force.
The claim of the complainant is that she was legitimated by the Act of 1907 and is therefore the "lawful issue" of the grantor within the meaning of the deed of trust and is the taker of the remainder created by the deed to take effect upon the grantor's death. Evidence was adduced of recognition of Helen by the grantor in his lifetime as his daughter; but there is nothing in the statute giving to such recognition any legal significance. The legitimacy, if any, arises purely out of the marriage *Page 269 of the parents to each other and not out of any recognition.
So, also, of the claim that there is parol evidence before the court that the grantor not only recognized Helen as his daughter but also treated her as a father should and actually intended her as the taker of the remainder. There is no doubt that it is the intent of the creator of a trust that is to be sought in the construction of the instrument by which the trust was created; but it is the expressed intention, and not any unexpressed intention, that prevails. Nowhere in the instrument under consideration was any mention made of Helen by name. The only description of the donee or donees of the remainder is that they are to be "the lawful issue" of the grantor. The ultimate question is, was Helen the "lawful issue" of the grantor? She was not such when she was born. Was she made such by the Act of 1907?
If the Act of 1907 is construed as applying to marriages occurring before its passage and to have the effect of legitimating children born of parents so marrying it will be given a retrospective operation. So, also, in the case of children who were born illegitimate and who continued illegitimate, in spite of such marriages, at least up to 1907, it will have the effect of altering the rights of such children and the obligations at least of their fathers towards them. This is not a mere statute of inheritance. It involves other rights and duties, as between parents and children.
There can be no doubt at this day that it is an ordinary rule of construction that a statute is not to be given a retrospective operation unless its language clearly shows that that was the intention of the legislators. "It is a rule of statutory construction that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the legislature to give *Page 270 them a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt the doubt must be solved against the retrospective effect." 36 Cyc. 1205-1208. "It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated look forwards, not backwards; and are never to be construed retrospectively, unless the language of the Act shall render such construction indispensable." Marshall, C.J., inReynolds v. McArthur, 2 Pet. 417, 434. "It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively." Cooley, Const. Lim., 7th ed., p. 529. "It is the proclamation of both" (principle and authority) "that a statute should not be given a retrospective operation unless its words make that imperative." Shwab v.Doyle, 258 U.S. 529, 537. "While, in the absence of a constitutional inhibition, the legislature may give retrospective operation to a statute, the presumption is that prospective operation only is intended and it is a rule of construction that a statute is not to be construed to act retrospectively or to affect rights vested prior to its passage, unless no other meaning can be given it, or unless the express or necessarily implied intention of the legislature cannot be otherwise satisfied." 11 Ency. U.S. Rep. 126, 127. "Words in a statute ought not to have a retrospective operation, unless they are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature cannot be otherwise satisfied. This rule ought especially to be adhered to, when such a construction will alter the pre-existing situation of parties, or will affect or interfere with their antecedent rights, services and remuneration; which is so obviously improper, that nothing ought to uphold and *Page 271 vindicate the interpretation, but the unequivocal and inflexible import of the terms, and the manifest intention of the legislature." United States v. Heth, 3 Cranch 398, 413. "In construing statutes in regard to whether their action is to be prospective or retrospective, all the adjudicated cases and all the text-writers with unbroken uniformity unite in declaring `that they are to operate prospectively and not otherwise unless the intent that they are to operate in such an unusual way, to-wit, retrospectively, is manifested on the face of the statute in a manner altogether free from ambiguity.'" Leete v.Bank, 115 Mo. 184, 195. See also Lewellyn v. Frick,268 U.S. 238, 251, 252; 26 A. E. Ency. L. 692, 693; Twenty perCent Cases, 87 U.S. 179, 187. This is as true of an amendatory act as it is of any other statute. "An amendatory statute has no retroactive effect unless such appears to have been the legislative intent." Dodin v. Dodin, 44 N.Y.S. 800, 802. "An amendatory act, like other legislative enactments, takes effect only from the time of its passage and has no application to prior transactions unless an intent to the contrary is expressed in the Act or clearly implied from its provisions." 26 A. E. Ency. L. 712.
As long ago as 1859 our legislature recognized this general principle of construction. At that time a law was passed (C.C. 1859, Sec. 5) reading as follows: "No law shall have any retrospective operation." That law has ever since continued in existence. It is now R.L. 1925, Sec. 5. It is true that this is not a constitutional provision and may, therefore, in the enactment of any law, be disregarded by the legislature; but unless the language of a subsequent Act clearly discloses an intention to disregard it its principle applies. That is why it is retained in the statute books.
Measured by these standards, it cannot properly be held, in my opinion, that the Act of 1907 applies to *Page 272 marriages solemnized before its enactment, — in other words, that under that statute marriages which occurred prior to its enactment had the effect of legitimating children theretofore illegitimate. While the language used in the statute might have been, in point of clearness, improved upon, it seems clear that the intent of the legislature was to give the Act a prospective operation only and to cause thereby only those children to be legitimated whose parents should be married to each other after the passage of the Act. The language used is more in conformity with that purpose than it would be with the purpose of making it applicable to past marriages as well as future marriages. The expression is that children "become" legitimate on the marriage of the parents, not that they have become and will hereafter become legitimate. The expression is that they "are entitled" to the same rights as those born in wedlock, not that they have been entitled since the date of the marriage of their parents and will be hereafter so entitled. It would have been a very simple matter, if that had been the intent of the legislature, for the declaration to have been made that all children born out of wedlock become legitimate on the marriage of the parents with each other irrespective of the date of such marriage and that the children have been and will be entitled to the same rights as those born in wedlock irrespective of the date of the marriage; or the statement could have been added that "this Act shall be given a retrospective operation." In section 2 of the Act of 1907 the legislature expressly declared that "this Act shall take effect upon its approval," which was the equivalent of saying that prior to its approval it had not been and would not be in effect; but if the retrospective operation now asked by the complainant is given to the statute children who under the law in force prior to the approval of the Act of 1907 had been deemed to be *Page 273 and in law were illegitimate in spite of the marriage of their parents with each other became legitimate and such legitimation would exist from the date of the marriage of their parents and not from any later date. Even Kekula and Kealoha, who in the Hawaiian cases above cited were judicially declared not to have been legitimated by the marriage of their parents, would be legitimated by the same marriage if this construction of the law of 1907 were adopted. Until the end of 1906, six years after the marriage of her parents, the complainant was indubitably illegitimate. All attorneys would have so advised and every court would have so held. The rights and obligations as between her and her natural parents were those accruing from that status. But under the prevailing construction of the Act of 1907 the legal significance of the marriage and the child's consequent status were materially changed dating from 1900.
I feel unable to join in the view that the use of the present tense in the two verbs appearing in the statute under consideration is a clear indication that the legislature intended that the law should apply to marriages which were solemnized before its enactment as well as to marriages solemnized after its enactment or that the use of the present tense is the method peculiarly adapted as a matter of correct English to express the thought that a retrospective as well as a prospective operation is intended. To my mind the use of the present tense in this short enactment indicates no more than that the legislature is thereby stating a rule of action. Rules of action are often stated in the present but they are not ordinarily understood for that reason to be rules of action intended for the past but are ordinarily understood to be rules of action for guidance in the future only. Many illustrations might be given. A few will suffice. If a statute, altering the rule of the past, were to be enacted providing *Page 274 that "all husbands upon their divorce become obligated to pay to their wives one-third of their income" no court would hold that the rule applied to divorces already had. Descending for a moment to less important matters, if a new rule in baseball should be adopted providing that "the batter is out upon the fourth strike" or "the batter goes to first upon getting five balls" no one would suppose for a moment that any retrospective operation was intended for the rule. If a new statute should say that "every governor of this Territory becomes entitled, upon completing five years of service as such, to a pension for life in the amount of one-third of his yearly salary," the provision would be clearly prospective only and would not apply to governors who had completed five years of service prior to its enactment. A provision that "all persons become trespassers upon entering unoccupied government lands without the permission of the superintendent of public lands and are liable in damages for such entry" would be prospective only. If an earlier statute should provide that "all persons become of the age of legal majority upon attaining the twentieth year" and an amendatory statute should provide that "all persons become of the age of legal majority upon attaining the eighteenth year," liability for the acts or omissions of a minor eighteen years of age prior to the passage of the amendatory law would not be in any wise altered or affected by the adoption of the amendment. In each of these instances the present tense is used but no intent, as it seems to me, is thereby disclosed, clear or otherwise, to have the law applied to past transactions. Another illustration may be helpful. If hereafter a law should be passed providing that "all children born in lawful wedlock become illegitimate upon the divorce of their parents and are entitled to none of the rights of legitimate children" all would doubtless agree that the new *Page 275 law would not injuriously affect the rights of children whose parents were divorced before the adoption of the amendment. The odious nature of such a law might, perhaps, have some effect upon courts in construing it but that would be a consideration additional to that of determining what the language means as a matter of correct English. Solely from the grammarian's point of view, the effect of the present tense of the verb "become" in the wise law and in the unwise law would be the same.
It has often been said that the remedial nature of a law tends towards a liberal construction but that can only be, as it seems to me, in cases of close questions of construction. No such close question exists here. There is nothing in the language used, as I read it, to take the statute out of the ordinary rule of construction, that rules of action — for that is what laws are — are intended to look to the future and not to the past, — to operate prospectively and not retrospectively.
Adjudicated cases in point are rare. Those in which statutes declaring that adopted children shall have the same rights of inheritance as natural children have been construed as referring to adopted children irrespective of whether the adoption was before or after the enactment of the Act, are not helpful because in those instances the grant is of the right of inheritance and does not purport to be otherwise than prospective only. Such statutes have not been held to apply to the estates of persons dying before the enactment of the Act. In Stevenson v.Sullivant, 5 Wheat. 207, 258, a statute of Virginia of January 1, 1787, declared that "where a man, having by a woman one or more children, shall afterwards intermarry with such woman such child or children, if recognized by him, shall be thereby legitimated." Children whose parents intermarried prior to the passage of the statute and were recognized by their father prior to the enactment *Page 276 were held not to have been legitimated by the marriage and recognition. The court said: "To render the past recognition of the father effectual to give inheritable blood to his children, who were then illegitimate, and incapable of taking the estate by descent, either from him or from those to whom it should descend, would in some respects, at least, partake of the character of a retrospective law. It would seem to be most reasonable, so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it."
In Brown v. Belmarde, 3 Kans. 35, 46, a case involving illegitimacy, the court said: "No recognition prior to the death of Lavonture, however general or notorious, nay, although it were in writing, could legitimate the child if born out of lawful wedlock or impart to it a heritable quality. At the time the recognition must have taken place there was no law in force giving to that act such an effect. To give it any legal effect whatever there must have been some law in existence prescribing what that effect should be. The act of 1859 cannot reach back and attach to an action, which at the time of performance was entirely indifferent, such grave, legal consequences."
With reference to a statute of Iowa which provided that illegitimate children "shall inherit from the father, whenever the paternity is proven during the life of the father, or they have been recognized by him as his children," the court said inHartinger v. Ferring, 24 Fed. 15, 17: "If, however, it be held that the statute is intended to give force to acts of recognition performed before the adoption of the code, then we give an effect to an act which it did not legally have when performed. The statute would thus be given a retroactive effect, and an act which, when done, had no legal significance and was not intended nor understood by the parties to it to *Page 277 affect any right of inheritance, would be held to confer such a right. Whatever may be said of the power of the legislature to thus attach to an act done a legal significance which it did not possess when done it is clear that it will not be presumed that it was the intent of the legislature to make the statute retroactive in this particular, unless such intent is clearly established by the language of the statute. The ordinary presumption is that statutes are intended to be prospective alone in their operation." See also Morgan v. Perry, 51 N.H. 559. To hold the present Act applicable to the marriage which occurred in September, 1900, would be to attach to the marriage a legal significance and operation which it did not possess when it was solemnized and would result in denying to the grantor the ability to perceive all the consequences of his act in joining in the marriage.
Other cases there are which perhaps tend in some degree to the opposite view. The foregoing, however, is the reasoning that appeals to me as sound.
In my opinion, the Act of 1907 was a rule of action expressed in an ordinary way, intended for the future only and not applicable to past marriages, and the complainant was not legitimated by the marriage of her parents, was not the "lawful issue" of her father and did not take the remainder under the deed of trust. *Page 278