It must be conceded that the paragraph which was inserted in article 2334 of the Civil Code by Act No. 170 of 1912 is ambiguous, viz.:
"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, * * * are her separate property."
By Act No. 186 of 1920, the words "separate and" were inserted; but that does not seem to have changed the meaning at all, viz.:
"The earnings of the wife when living separate and 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, * * * are her separate property."
I say that the language is ambiguous, not only because of the dissent of a member of the court in this case, but also because, ever since Hellberg v. Hyland was decided (in May, 1929), some of the ablest professors in our law schools have been teaching the young idea that Hellberg v. Hyland cannot be reconciled with article 2334 of the Civil Code, as amended by the act of 1912. Read the excellent work on The Community Property System of Louisiana, with Comparative Studies, by Dr. Harriet Spiller Daggett, Associate *Page 262 Professor of Law, Louisiana State University, pp. 8, 9, 10, 11, 201, 205, and 206; and read the comment in Tulane Law Review, vol. IV, No. 2, p. 281; and the criticism in Loyola Law Journal, vol. XI, No. 1, p. 28.
I concur in the prevailing opinion in this case that the most plausible reason why Act No. 170 of 1912 was not cited or referred to — and perhaps not thought of — in the presentation of Hellberg v. Hyland was that the statute was not deemed applicable to the case, because Mrs. Pearl Benito Hellberg was living with her husband, under the régime of the community of acquêts and gains. My idea is that the statute is applicable only to the earnings of a wife who is living separate and apart from her husband, and not to a wife who is living with her husband, sharing his earnings, and being supported by him.
Those who have construed the statute as being applicable to the earnings of a wife who is living with her husband, in the criticisms which I have referred to, undertake to divide "the earnings of the wife" into two distinct classes, viz:
(1) The earnings of the wife when living separate and apart from her husband are her separate property; and
(2) Her earnings when carrying on a business, trade, occupation, or industry separate from her husband are her separate property.
That interpretation is not first-class grammatical construction, because it undertakes to make the adjective phrase "separate from her husband" qualify the nouns business, trade,occupation, and industry. If the Legislature had meant that, the language would have been something like this: "Her earnings *Page 263 when carrying on a business, trade, occupation or industry separate from that of her husband," or "her earnings when carrying on a business, trade, occupation or industry separate from her husband's," or, to be plainer yet, "her earnings when carrying on a business, trade, occupation or industry separate from her husband's business, trade, occupation or industry." My understanding is that the Legislature meant that the wife should be "separate from her husband" in order that her earnings from any business, trade, occupation, or industry carried on by her should be her separate property. It is quite right to refer to a woman as being separate from her husband, if in fact she is living apart from him, or to refer to her business, trade, occupation, or industry as being separate from that of her husband; but it sounds wrong to refer to a woman's business as being separate from her husband.
Conceding, however, to avoid unnecessary argument, that the expression "her earnings when carrying on a business, trade, occupation or industry separate from her husband" is merely a faulty way of saying "her earnings when carrying on a business, trade, occupation or industry separate from that of her husband," my opinion is that the expression is merely explanatory of the language which goes before; that is, "the earnings of the wife when living separate and apart from her husband." I say that, because I cannot imagine how a wife can have earnings when living separate and apart from her husband unless they are "her earnings when carrying on a business, trade, occupation or industry separate from her husband." How can a wife earn anything, when living separate and *Page 264 apart from her husband, except by means of some business, trade, occupation, or industry? And, if she is earning money by means of some business, trade, occupation, or industry, while living separate and apart from her husband, the business, trade, occupation, or industry itself must be separate and apart from that of the husband.
If the expression "her earnings when carrying on a business, trade, occupation or industry separate from her husband" includes the wife's earnings when living with her husband, as well as when living apart from him, then the first expression, "the earnings of the wife when living separate and apart from her husband," has no meaning whatever, because it is impossible to imagine a wife having earnings from any other source than from some business, trade, occupation, or industry. Why should the Legislature say "the earnings of the wife when living separate and apart from her husband are her separate property," and then stultify itself by adding "her earnings when carrying on a business, trade, occupation or industry separate from that of her husband" are her separate property, whether she be living with him or separate and apart from him?
It was suggested in the argument of this case, and in the criticisms of Hellberg v. Hyland, that a married woman might be living separate and apart from her husband and yet be carrying on a business, trade, occupation, or industry in conjunction with him. Hence it was argued that the expression "the earnings of the wife when living separate and apart from her husband" would include her earnings when carrying on a business, trade, occupation, or industry in *Page 265 conjunction with her husband, even though she is living separate and apart from him, and that the expression "her earnings when carrying on a business, trade, occupation or industry separate from her husband" would include all that she earns from her business, trade, occupation, or industry, whether she is living with or apart from her husband. But I submit that the instances where a wife, living separate and apart from her husband, carries on a business, trade, occupation, or industry in partnership with him, or conjointly with him, are so rare and far apart, if not quite unheard of, that the Legislature would never think of providing for such a case.
It is conceded by those who criticize Hellberg v. Hyland that their interpretation of Act No. 170 of 1912 would throw The Community Property System of Louisiana out of balance. Worse than that, if a wife who is living with her husband, under the régime of the community of acquêts and gains, and who is being supported by him, is entitled to all of her earnings and half of his, then the provision in article 2402 of the Civil Code, that "the produce of the reciprocal industry and labor of both husband and wife" belongs to the community, has lost its meaning. And, worse yet, if that is true, article 131 of the Civil Code, which holds the husband liable in solido with his wife for debts contracted by her in carrying on a separate business or trade, as a public merchant, is the most arbitrary and unfair law that could be imagined. In a decision rendered today, in Charles Lob's Sons v. Mrs. Louis Karnofsky et al., 177 La. 229, 148 So. 34, we are holding Louis Karnofsky liable for debts contracted by Mrs. Karnofsky in carrying on the business or *Page 266 trade of a tailor, as a public merchant. It may be contended that that part of article 131 of the Civil Code which says that a wife who is a public merchant may obligate herself in anything relating to her trade, without being authorized so to do by her husband, has been superseded by the emancipating laws — Act No. 94 of 1916; Act No. 244 of 1918; Act No. 219 of 1920; Act No. 34 of 1921 (Ex. Sess.); Act No. 132 of 1926; and Act No. 283 of 1928. These acts, however, have not done away with the independence of a wife who is a public merchant, but have merely extended the state of independence to all wives. But that is a matter of no importance, because the first of the emancipation acts was not enacted until 1916; that is, four years after article 2334 of the Civil Code was amended by the act of 1912; at which time article 131 of the Code was surely in full force.
I believe that all that the Legislature intended to do by the act of 1912 was to allow a wife who is living separate and apart from her husband to retain her earnings as her separate property. Whenever the husband tires of such a situation, he may put an end to it by service of the necessary summons upon his wife to return to the matrimonial domicile, or suffer the consequence.
I believe that, if the Legislature had intended to make such a radical change in the community property system of Louisiana as those who criticize Hellberg v. Hyland contend for, the change would have been made by amending articles 131 and 2402, as well as article 2334, of the Civil Code, and in a way too plain to admit of doubt.