I think the court has erred in its interpretation of article2334 of the Civil Code, as finally re-enacted by Act No. 186 of 1920. It is so clear to me that under the present law, a wife's "earnings when carrying on a business, trade, occupation or industry separate from her husband," and the property purchased with the funds thus derived, are her separate property, that I must dissent from the majority holding to the contrary.
In the prevailing opinion as well as the concurring opinion written by the Chief Justice, the view is expressed that the act is ambiguous. It is also said that it is not probable that the Legislature intended to make so radical a change in the community law of the state and that if it had intended to do so, it would have amended articles 131 and 2402 also.
The community property law of the state is contained in two articles of the Code, 2334 and 2402. Under article 2334 of the Code of 1870, the property of married persons was divided into "separate property" and "common property," defined as follows:
"Separate property is that which either party brings into the marriage, or acquires during the marriage [with separate funds, or] by inheritance or by donation made to him or her particularly.
"Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared."
There was no change in this article of the Code until 1912, when it was re-enacted by Act No. 170, and finally re-enacted by Act *Page 268 186 of 1920. Each of these acts contains the identical provisions with reference to the separate and common property of the spouses as did the original article, but went further by adding a series of situations or conditions, under which the wife may acquire and possess separate property. Under this article prior to its amendment the wife could have no separate property except that which she brought into the marriage, or acquired during marriage with separate funds or that she acquired by inheritance or donation made to her particularly. But this article of the Code as amended provides:
"The earnings of the wife when living apart from her husband, although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses, and the property purchased with all funds thus derived, are her separate property."
Nothing in this law should lead to confusion. Its language is clear and free from all ambiguity. This, in fact, is virtually conceded by the court in its opinion, for it is said:
"If we were to look into the paragraph no deeper than its grammatical construction there would be force in the position, taken by those entertaining the contrary view."
In construing a law, courts should not look beyond its letter if it contains no ambiguity. "When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit." Civ. Code, art. 13. *Page 269
The language used in this amendment clearly speaks the legislative intent. There are three separate and distinct clauses, all separated and set off by commas, in the paragraph added to article 2334 by the amending acts. Each of these clauses was intentionally inserted and each has its meaning. Neither is tied to or is explanatory of the others. What the amending acts mean is this:
First, "The earnings of the wife when living apart from her husband, although not separated by judgment of court, * * * and the property purchased with all funds thus derived, are her separate property."
Second, "Her earnings when carrying on a business, trade, occupation or industry separate from her husband * * * and the property purchased with all funds thus derived, are her separate property."
And, third, "Actions for damages resulting from offenses and quasi offenses, and the property purchased with all funds thus derived, are her separate property."
The entire paragraph, divided into three separate clauses separated by commas, means just that and nothing else, when, as said by the court, we "look no deeper than its grammatical construction." But why "look deeper" than its language and its grammatical construction for its meaning? The Legislature used the English language as a vehicle for expressing its thought, its meaning, and according to grammar rules, has done so clearly. My associates have "looked deeper" into the act than its language and its grammatical construction for its meaning.
I cannot consent to a construction of the *Page 270 act which gives it a meaning other than that which its language clearly imports, especially as there seems to be no reason to assume that the Legislature intended that the act have a meaning not expressed.
I think the underlying thought which dominated the holding in this case is that the members of the court do not think it probable that the Legislature intended to make so radical a change in the community laws of the state. That view is expressed in both the prevailing opinion and the concurring opinion written by the Chief Justice.
Article 2334 of the Code as amended does make a radical change in the community laws of the state. But radical though the change is, it is no more so than other changes made by recent legislation concerning the status, rights, powers, and privileges of married women. Under the old régime, women could neither vote nor hold any office, civil or political. Now the right of suffrage is universal and they have the same right to hold office as men have. There is a woman in the United States Senate, one on the President's Cabinet, one in the diplomatic corps, several in the lower house of Congress, and in our own state, two hold state offices.
Formerly married women in this state could make no contract, even with reference to their own separate property, without the authorization of their husbands, and could not appear in court without their authorization or that of the judge. They were completely under the authority of their husbands. Today, they are "emancipated" from all former disabilities. The latest legislative act on the subject declares that married women, *Page 271
"Shall be and are hereby fully emancipated from all the disabilities and relieved from all the incapacities to which, as such, they are now subject, and they are hereby empowered to make contracts of all kinds, or to assume or stipulate for obligations of all kinds, in any form or manner now permitted, or which may hereafter be permitted, by law for any person, married or unmarried, of either sex, and in no case shall any act, contract or obligation of a married woman require for the validity or effectiveness thereof, the authority of her husband or of the Judge." Act No. 283 of 1928, § 1.
These changes in the law are in strict accord with the drift of modern thought. They are the result, the fruit of an evolution which has recently taken place in the minds of thinking people. The changes were made necessary by changes in social and economic conditions. Until a few years ago, women engaged in no activities outside the four walls of their homes. Even unmarried women did not enter the professions or engage in business of any kind. Today the married as well as unmarried are found in all the professions and in the marts of trade. They are producers, builders, executives. They do a large part of the outside work of the world. By their own choosing they are no longer "sheltered sisters" as they were in the old days. Whether this is better for them or for the race is beside the question. The lawmakers have dealt with a condition and have not acted upon a theory.
In view of all the changes which have taken place within recent years and especially in view of the radical changes made in other laws having to do with the status not only *Page 272 of unmarried but of married women, I see no reason why the court should hesitate to hold that the Legislature of this state intended to make a radical change in our community law. On the contrary, it is reasonable to assume that it was intended that the old orthodox laws relating to the property rights of married women should be modified.
It is suggested in the prevailing opinion and said by the Chief Justice in his concurring opinion, that if the "Legislature had intended to make such a radical change in the community property system of Louisiana" the change would have been made by amending articles 131 and 2402, as well as article 2334 of the Civil Code. Article 131 of the Code has no reference to community property. It is not part of the community property law of the state. But article 2402 is part of the law relative to community property and as that article is written, its provisions on the subject are unquestionably directly in conflict with article 2334, as amended. Article 2402 of the Code provides that the partnership or community consists, partly, "of the produce of the reciprocal industry and labor of both husband and wife," whereas under article 2334, of the Code as amended, the "produce" of the wife's labor under certain conditions is her separate property.
That part of article 2402 of the Code which provides that the produce of the reciprocal industry and labor of both the husband and the wife fall into the community is no longer a part of the community property law of the state. It was repealed by the acts which reenacted article 2334. Act No. 170 of 1912 contains the following repealing clause: *Page 273
"Section 2. Be it further enacted, etc., That all laws or parts of laws in conflict herewith, be and the same are hereby repealed."
Act No. 186 of 1920, adopted eight years later, and eighteen years after article 2402 was amended and re-enacted, contains the following repealing clause:
"Section 2. Be it further enacted, etc., That all laws or parts of laws in conflict herewith be and the same are hereby repealed, particularly Act 170 of the General Assembly of Louisiana for the year 1912."
It was therefore unnecessary to amend article 2402 of the Code because in so far as that article makes the produce of the reciprocal labors of both husband and wife, under all conditions and circumstances community property, it was repealed.
It must be borne in mind that the Legislature did not, by re-enacting article 2334 of the Code, pretend to wipe out the community property law of the state in so far as the produce of the reciprocal labor and industry of the husband and wife is concerned. It only modified the general law so as to make the wife's earnings her separate property under certain conditions. Under article 2334, as amended, when the husband and wife are living together and working together, the fruits of their reciprocal labors belong to the community. The Code, as amended, specifically provides that "common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared."
The court in this case holds in effect that the Legislature by re-enacting article 2334 of the Code did make a radical change in the *Page 274 community property system of the state. Under this article before its amendment as well as under article 2402, the produce of the reciprocal industry and labor of both husband and wife belonged to the community. But it is held that under the amendment the produce of the wife's industry and labor while living apart from her husband, although she be not separated from him by judgment of court, and the property purchased with funds thus derived, are her separate property. A married woman does not cease to be the wife of her husband merely because she lives apart from him. Even though living apart, they are still husband and wife and they remain so until the bonds of matrimony are dissolved by judgment of court. And if they were married under the community régime, the partnership or community of acquêts and gains exists until it is dissolved by judgment. So that unless the Legislature did make a radical change in the law by re-enacting article 2334 of the Code, and if article 2402 of the Code in so far as it relates to the earnings of the husband and wife, is yet in effect, then the earnings of the wife when living apart from her husband and not separated from him by judgment, still fall into the community. But it is held that such is not true. On the contrary, it is held that the earnings of the wife when living apart from her husband though not separated by judgment, are her separate property by virtue of the amendment to article 2334. The effect of this holding is that the amendment to article 2334 wipes out that part of article 2402 which provides that "this partnership or community consists of * * * the produce of the reciprocal industry and labor of both husband and wife." *Page 275
Under the court's holding it is no longer true that the wife's earnings under all conditions fall into the community. They become community only in case she is living with him, whereas under the old law such earnings fell into the community under all conditions.
Having held that the Legislature not only intended to but did change the community property system of the state to the extent of making the wife's earnings when living apart from her husband her separate property, I see no reason why the court should refuse to follow the plain language of the statute and hold further that the wife's "earnings when carrying on a business, trade, occupation or industry separate from her husband" are also her separate property. The act so says and I see no reason why it should not be held that it was so intended.
In holding as it has the court has very clearly crossed the middle of the stream but is unwilling to go all the way to the other side.
It is said in the prevailing opinion and also in the concurring opinion of the Chief Justice that the second clause of the paragraph under consideration modifies or is explanatory of the first and the court has interpolated the words "that is" between the clauses. I do not concur in this view for the reason that the first clause needs no explanation. It is too plain to be misunderstood. The act says in plain terms that "the earnings of the wife when living apart from her husband, although not separated by judgment" are her separate property. To say that the second clause "her earnings when carrying on a business, trade, occupation or industry separate from her husband" is explanatory of the clause which immediately *Page 276 precedes it, is to convict the lawmaker of doing the vain and idle thing of trying to explain the obvious.
Besides, the court says in the majority opinion that,
"When we look into the substance of what the Legislature has said, we find that the earnings of the wife, mentioned in the first paragraph, which constitute her separate property, arelimited by nothing, save the fact that she must be living apartfrom her husband, when the earnings come into existence." (Italics are mine.)
I dissent.