Former opinion adhered to April 24, 1928. ON REHEARING. (266 P. 875.) This case comes again before the Supreme Court on rehearing. It was formerly held by this court in the original opinion following the verdict of the jury in the lower court that Mercedes Wadsworth was the daughter of John R. Brigham and that her mother and father had lived together as provided by Chapter 269, General Laws of 1925, which reads as follows:
"In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage."
At that time the entire record received the full consideration of the Supreme Court including that of the late lamented Chief Justice BURNETT, and the court found no difficulty in arriving at the conclusion that the plaintiff was entitled to the judgment of this court, and that she had amply proved all the facts required.
In the petition for rehearing reliance was mainly placed on the proposition that the statute was not retrospective in its nature, and that the parents of the plaintiff did not live together as husband and wife in the manner provided for.
At the outset we wish to lay down the following general rule for the construction of remedial statutes:
"In accordance with the general rule that remedial statutes should be given a liberal construction, they will be freely construed to have a retrospective operation *Page 460 whenever such seems to have been the intention of the legislature, unless such construction would impair the validity of contracts, disturb vested rights, or create new obligations. This principle has been applied to statutes for the prevention of fraud, legitimating the issue of void marriages." 36 Cyc. 1209.
The general construction of such statutes is retrospective. In 7 C.J. 948, it is said:
"Statutes intended to legitimate the issue of a marriage otherwise void are remedial in their nature and may properly be applied retrospectively."
A very leading case is Goshen v. Stonington, 4 Conn. 209,221 (10 Am. Dec. 121). State v. Adams, 65 N.C. 537; Andrews v. Page, 50 Tenn. (3 Heisk.) 653.
In Goshen v. Stonington, supra, the court said:
"Lastly, the defendants have insisted (and on this objection the principal stress has been laid), that the law of May, 1820, being retrospective, and in violation of vested rights, it is the duty of the court to pronounce it void. The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in so doing this, there has been injustice, will be an inquiry in a subsequent part of my opinion. It is universally admitted and unsusceptible of dispute, that there may be retrospective laws impairing vested rights, which are unjust, neither according with sound legislation, nor the fundamental principles `of the social compact.' If, for example, the legislature should enact a law, without any assignable reason, taking from A his estate, and giving it to B the injustice would be flagrant, and the act would produce a sensation of universal insecurity. On the other hand, laws of a retrospective nature, affecting the rights of individuals, not adverse to equitable principles, and highly promotive of the general good, have often been passed, and as often approved. In the case before us, *Page 461 the defendants have expressly conceded, that the law in question is valid, so far as respects the persons de facto married, and their issue. But, in that event, would it not have been a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in celibacy, or contract matrimony with any person at pleasure. It is a strong exercise of power to compel two persons to marry without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just."
This language is also quoted in Cooley's Constitutional Limitations (7 ed.), page 533.
Such statutes have been construed to apply to children whose parents were dead at the time of the passage of the act:Gregley v. Jackson, 38 Ark. 487; Wallace v. Godfrey, 42 Fed. 812; Jackson v. Lervey, 5 Cow. (N.Y.) 403.
In Jackson v. Lervey, 5 Cow. (N.Y.) 397, 403, the court said:
"The act declares, that all marriages contracted, or which may thereafter be contracted, wherein one of the parties was, or might be slaves, shall be considered equally valid as though the parties thereunto were free, and the child or children of such marriages shall be deemed legitimate. The words are general, and extend to all marriages. Why should it be restricted to cases where the parties were then living? One object was to render the children legitimate. What superior claims had the children of parents then living to the interference of the legislature, to those whose parents were dead when the statute was enacted? I perceive none. The words of the act are sufficiently broad to include both; and ought so to be construed to effectuate the intent. If I am right in *Page 462 this construction, then the child of the soldier was legitimate, and became the heir of the father."
In Andrews v. Page, 50 Tenn. (3 Heisk.) 668, the court said:
"The act of May 26, 1866, § 5, declares, `that all free persons of color, who were living together as husband and wife, in this state, while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance in any property heretofore acquired, or that may be hereafter acquired, by said parents, to as full an extent as white children are entitled under existing laws of the state. An act similar in principle to this, had been passed some years before, to validate marriages between white persons who had been married under license carelessly issued in blank by the clerks, and containing nothing beyond their own signatures. See Acts 1849-50, p. 397."
"The power to legitimate children has been frequently exercised by the legislature, at the instance of the father, and was delegated to the circuit and county courts by the act of 1805, c. 2 Car. Nic. 499. It may be still exercised under the code 3640, 3643. These statutes, when not interfering with vested rights, have always been permitted to have a retrospective operation. See Cooley on Lim. 372, 373, 360, 361."
"The act of 1866, having been passed to ratify marriages, good during the institution of slavery, by the prevailing usage of this state, and to create a right of inheritance conformable to such usage, and the changed condition of the slave, was in furtherance of good morals, and of the best interests of the state; and where no other rights have intervened, was eminently constitutional and proper."
That retrospective legislation is not strange in Oregon is evidenced by the many statutes found in the index of the Oregon Code making valid many defects in prior proceedings, such as divorce, defects in conveyances *Page 463 of land, marriages and such other matters. In McCalla v.Bane, 45 Fed. 828, the Oregon act, Section 10128, making illegitimates of the mother legitimate, was construed retrospectively and held valid. See Section 723 and Section 2563, Or. L., and Wallace v. McDaniel, 59 Or. 378, 385 (117 P. 314, L.R.A. 1916C, 744).
It was found after the decision of the Supreme Court in Huard v. McTeigh, 113 Or. 279 (232 P. 658, 39 A.L.R. 528), declaring common-law marriages invalid, that there were many children born in the State of Oregon who without some curative legislation would be considered as bastards both in fact and in law, and so to meet this exigency the aforesaid statute was enacted.
The primary purpose of the act was to legitimatize ill-begotten children, and the provision that the parents should be considered married if the children were living as a result of the relations mentioned in the statute was merely incidental to this great purpose. The purpose of the act was not to restore common-law marriages in Oregon, but to legitimatize the children begotten of illicit relations, provided the parents lived together for a sufficient length of time to avoid any presumption that the claim of the child might not be well founded.
The evil to be overcome by the police power of the state was the fact that there were illegitimate children born who would not inherit from the father and who had no name. It was this evil that gave rise to the legislation and not any defects in the marriage system of Oregon. Therefore, in construing this statute we must look at the evil which the legislature sought to correct and not go out of our way to defeat its purpose by any fancied or strained ideas *Page 464 that the ill-gotten children must prove all the elements of a common-law marriage as a condition precedent to establish legitimacy. The legislature did not so provide in the statute and it is our function to follow what the legislature declared to be the law rather than fritter it away with imagined technicalities and thus destroy its beneficial purpose.
And as the validity of Chapter 269, Laws of 1925, has been challenged under the state laws, we will first take up the question of its validity.
It is always a delicate matter to declare a statute duly enacted by the legislature unconstitutional and unless the conflict between the Constitution and the statute is clear the court will not declare it void. This statute was passed under the police power of the state. Such power is exclusively vested in the legislature and covers all laws relating to the public health, morals and welfare. It is only when fundamental rights which are beyond the scope of the police power are interfered with that the court under the Constitution protects such rights from the excess of power. But no such case arises here, for it is too plain for argument that the statute is within the scope of the police power being merely a curative statute enacted for the humane and laudable purpose of legitimatizing the offspring of parents whose relations were irregular and not sanctioned by law. Such statutes are favored in law and are liberally construed to effectuate the purpose of their enactment. And it is a well-known rule of statutory construction that if a statute is capable of two meanings, one which would uphold it and the other deny it, the court will uphold its validity: Texas v. Eastern Texas R.Co., 258 U.S. 204 (66 L. Ed. 566, 42 Sup. Ct. Rep. 281); United *Page 465 States v. Delaware, etc., 213 U.S. 367 (53 L. Ed. 836,29 Sup. Ct. Rep. 527.) A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts on that score: PanamaRy. Co. v. Johnson, 264 U.S. 375 (68 L. Ed. 748, 44 Sup. Ct. Rep. 391).
In construing a state statute the Supreme Court of a state cannot usurp the power of legislation. Under our system of laws no department of the government can transcend the law of its creation. It is for the legislature to amend and make laws and for the courts to construe them. The court cannot usurp the functions of the legislature any more than the legislature can usurp the functions of the court.
And courts are bound to follow the plain words of a statute as to which there is no room for construction regardless of the consequences: Commissioner of Immigration v. Gottleib,265 U.S. 310 (68 L. Ed. 1031, 44 Sup. Ct. Rep. 528).
But it is said that the legislature has no power to marry persons against their will. That is true. But this statute does not do that. It gives effect to the will of the parties. If a man and woman voluntarily live together as husband and wife, either in appearance or reality, for the statutory period of one year, and children are born as a result of such relation and other rights have not intervened, the legislature in the exercise of its police power has only placed on the conduct of the parties what they themselves consented to and invited; and the police power in the exercise of a wise and humane policy will not allow such parents to bastardize their innocent offspring out of any refined regard for their supposed rights which they *Page 466 had forfeited by their illicit relations, and this law is well settled, and by the highest authority. See Cooley's Constitutional Limitations (8 ed.), p. 777.
But even if this were not true and it was the law that the state in the exercise of its police power could not in any event declare parties married who had by their illicit relations brought innocent children into the world under the cloud of bastardy in order to give such children a name, nevertheless we would hold that the plaintiff was still entitled to recover in this case under the well-established rule that when the different parts of a statute are separable, one part may stand without affecting the validity of the other part. This rule has been recognized in Oregon even in a criminal statute in the late case of State v. Ring, 122 Or. 644 (259 P. 780), recently decided, where it was held by this court, speaking through Mr. Justice COSHOW, that the conviction of the defendant in that case could be upheld although it was admitted that Section 2189, Or. L., was in conflict with the federal law, and if inseparable was void, but, in upholding the conviction, Mr. Justice COSHOW said with the approval of the court:
"It would not be helpful to the profession to restate the reasons assigned, both by this court and the United States Supreme Court, for sustaining the validity of such legislation as said section 2189 Or. L. * * The statute is not uncertain. A pilot of ordinary intelligence can readily determine from section 2189 Or. L., and section 4444 U.S. Revised Statutes, when he will require a state license and when a government license. * * So much of said section 2189 as conflicts with title 52 c. 1 Rev. Stat. (46 U.S.C.A., sec. 361 et seq.), (U.S. Comp. St., sec. 8151 et seq.) is dormant and unenforceable, but is not unconstitutional." *Page 467
Further, in Pollock v. Farmers' Loan Trust Co.,158 U.S. 601, at page 635 (39 L. Ed. 1108, 15 Sup. Ct. Rep. 912), Mr. Chief Justice FULLER said:
"It is elementary that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected."
So that even if the legislative marriage of the parties, voluntarily engaging in illicit intercourse, and begetting children as a result thereof, was a matter beyond the police power of the state to create, such lack of power would not prevent the other valid part of the statute from standing on its own ground, for it is a proposition too plain for argument that the legislature can declare the children of illegitimate relations legitimate without marrying the parents as a condition precedent. See McCalla v. Bane, 45 Fed. 828. One thing does not depend upon the other. Therefore the marriage of the parents and the legitimatizing of the children are two totally independent things. We advance this consideration for the purpose of showing that the statute is valid in any event as to its main object. Both the father and mother of this plaintiff are dead and whether they became married by the statute or not under these circumstances would not be decisive, or make any difference. But we do not choose to put our decision on this ground, as we have no desire to attempt to fritter away any of the legitimate powers of the legislature of this state by any forced or strained construction of statutes passed in the exercise of the police power. We hold, therefore, the statute as a whole is valid.
And so we will take up the proposition advanced by the defendants that the plaintiff did not prove that *Page 468 her parents cohabited in the State of Oregon as husband and wife for over one year. This seems to be the backbone of the defendants' case. It is not contended that Mercedes Wadsworth is not the daughter of John R. Brigham, nor is it denied that she was born in 1879; nor is it denied that her mother was a widow at the time of her birth; neither is it denied that her mother had been a widow for a period of approximately over eleven months immediately preceding the birth of this plaintiff, and during her relations with John R. Brigham she remained a widow for several years so far as a formal marriage ceremony was concerned up until 1883. That there were intimate relations between John R. Brigham and the plaintiff's mother is not denied. As a matter of fact, practically every witness called by both the plaintiff and defendants admitted that these relations continued and existed during the period of time preceding the plaintiff's birth and for several years thereafter. So that every fact connected with the birth of this plaintiff and her early infancy and the relations of her parents is proved beyond question, except the proposition is disputed that the parties in the execution of these relations "cohabited as husband and wife."
In determining the meaning of the words in the statute "cohabiting as husband and wife," we find in looking at the authorities that these words are capable of different meanings. In some cases the words "cohabiting as husband and wife" are held to mean that, if the parties live together in such a manner as to appear to be living as husband and wife, the requirements of the statute are satisfied. In other cases, and generally where common-law marriages are only involved, *Page 469 the meaning attributed to the words is that the parties must be matrimonially inclined.
In this case we held in the former opinion that, if a man and a woman lived together during the statutory period and children were born to such illicit relation and were living, and that such parents had cohabited in the manner of husband and wife regardless of their formal intent, the requirements of the statute were satisfied and the children were made legitimate. We think that this was the intention of the legislature, considering that the purpose of the statute was to legitimatize the children of such illicit relations, and that the marriage of the parents in such cases was only incidental and could only come into being in the event that children were living and in no other case. It would seem that loading this statute with unnecessary refinements is subversive of the intention of the legislature, and that, if a child is born as a result of illicit relations continued during the statutory period, the court will not be required to pry into the secret psychological processes existing in the minds of the parents at the time; but that the statute is satisfied if its actual requirements were proved. We are not prepared to recede from the position that we took in our former decision regarding the meaning of the words "living together as husband and wife."
We might say in this case, however, that the evidence did prove that the parties lived together as husband and wife even in the most formal sense, and that they fully intended to live together as husband and wife in the common-law sense is so declared by evidence which is uncontradicted. John R. Brigham, the father of the plaintiff, as the record in this case conclusively shows and as the jury found, admitted both to the plaintiff and Mrs. Britten and to his *Page 470 friend and fellow townsman, John Doud, that he was a married man and this plaintiff was his daughter. Now it is too plain for argument that when a man himself admits the nature of his illicit relations, there is no room for speculating or guessing that these relations were of some other nature than as described by him. So far as putting the stamp of a common-law marriage on his relations with the plaintiff's mother in this case, John R. Brigham condemned himself out of his own mouth, if we are to give any credence to the evidence which is uncontradicted and to the findings of the jury.
But it is claimed that the plaintiff does not remember the events occurring at her birth or for some time thereafter. That is true, and we are unable to state any particular age at which a child remembers events, but when this plaintiff became older, and for several years, she was at all times in constant communication with John R. Brigham and he admitted, as the evidence shows, to everyone, with hardly an exception, that the plaintiff herein was his daughter, and he always treated her and recognized her as such. His admissions, the family album, and the signature of John R. Brigham in his own handwriting acknowledging his parenthood is not open to impeachment. It is natural for people to be interested in their family history, and in matters of this kind it is a general rule that everyone knows his family history better than anyone else, and, therefore, the statement advanced by defendants, that the plaintiff could not remember things immediately connected with her birth, is beside the question, for the subsequent admissions of John R. Brigham, the family album and the evidence of the other witnesses fully corroborated the plaintiff in every respect and overwhelmingly proved that she *Page 471 was the daughter of John R. Brigham, which is unquestioned, and that her parents had complied with all the requirements of the statute in every respect and to the minutest degree, and with a preponderance of the evidence which would satisfy the requirements of a criminal statute.
And as against this mass of evidence the defendants only introduced the opinions and the reputation of John R. Brigham in the early days of Portland. This is negative testimony of the flimsiest kind and can have but little, if any, weight against the positive testimony of the plaintiff and her witnesses. This brings us to the question as to the weight to be given to the jury verdict in this case.
The policy of this state has been declared by constitutional amendment that in actions at law the findings of a jury on a question of fact are conclusive. While this constitutional amendment does not apply to suits in equity, it nevertheless shows the policy of the people of the State of Oregon acting in their sovereign capacity. In equity suits the law was early laid down as follows:
"That while the verdict was `not conclusive upon the courts it should not be set aside unless clearly against the evidence.'"Swegle v. Wells, 7 Or. 222, 226.
In De Lashmutt v. Everson, 7 Or. 212, 219, the rule was stated as follows:
"This court further held that where a verdict has been taken in such cases in the court below it comes up with the transcript on appeal and may be read in evidence, and while not conclusive upon the court it should not be disregarded unless clearly against the evidence." *Page 472
The jury in this case were called upon to decide the issues of fact. The trial continued for many days and was bitterly contested. The jury had an opportunity to see the witnesses and hear them and they were in the atmosphere of the trial. We have nothing to guide us here but the cold record. We cannot see or hear the witnesses or judge of their veracity except from the printed record. Under such circumstances, we feel that we would be assuming a heavy responsibility in setting aside the verdict of this jury and declare this woman a bastard, after the jury by satisfactory and competent evidence had rendered a verdict establishing her legitimacy.
Under these circumstances, we do not believe that we have any right to usurp the functions of the jury and say that they were wrong in favor of the evidence presented by this record.
Regarding the salient facts in this case and without attempting to review the transcript of the evidence, which covers 660 pages together with a group of exhibits, we will call attention to the following excerpts from the testimony.
The plaintiff gave the following testimony:
"Q. Now, have you ever heard your father or mother talk about the time of your birth? A. Well, I heard them say that they were married in California.
"Q. Do you know how long before your birth they were married? A. I think it was in 1878.
"Q. And how long did they live together at that time if you know or have you ever heard them. A. (Interrupting.) Well, they were very happy until about * * when I was four years old, when there was some little disturbance.
"Q. How do you know that? A. Well, from what father said and mother said. *Page 473
"Q. To what extent did you correspond with him during his lifetime. A. Up to the time of his death practically.
"Q. How frequently did you hear from him. A. I generally got a letter about once or twice a week.
"Q. Now you have said that you were born in Portland; that your folks told you that you were born in Portland. Do you know where in Portland they said you were born. A. I don't know whether it was in the Reed residence or Reed Block, there was something about a Reed place."
She testified that she was always known and went under the name of Mercedes Brigham.
Then follows this testimony:
"Q. Have you heard your father and mother say how long they lived together after they were first married, before you were born? A. No, not particularly, 'til this trouble came up, when I was about five.
"Q. That would be about how many years? A. About five years.
"Q. Did you have any conversation, or ever have any conversation with him about that particular incident, when he went back to New York, and if so, just tell the jury what he said to you about it. A. He said he was awfully sorry, because he had made a mistake, that he hadn't treated mother different.
"Q. How many times did he talk to you about that. A. Well, you see it seemed to kind of prey on his mind, in regard to that one incident.
"Q. Did he talk to you about it quite frequently then? A. Different times, he would, and he would cry about it.
"Q. What was his temperament as to being nervous or otherwise? A. He was of a very nervous disposition, and he shook quite a bit, just like I do sometimes.
"Q. Now, in these conversations with your father and your mother, and particularly your father, about their living together prior to your birth, how long *Page 474 did they say they had lived together before you were born. A. Well, he told me they were married in 1878.
"Q. Yes; well, how long did they — did they go to living together when they were married? A. 1878, and I was born in 1879.
"Q. And did he say that they lived together during that time? A. Yes, sir.
"A. And in months or years, how long did he say they had lived together prior to your birth? A. Up to the time they had that little difficulty when I was about five years old.
"Q. That is after your birth, Mrs. Wadsworth? A. Yes.
"Q. But prior to your birth, for how many months did they live together — for more than a year? A. Yes, for more than a year.
"Q. For more than a year, and after your birth, then as I understand you, they lived together happily, so they said. A. (Interrupting.) Yes, so they said.
"Q. (Continuing.) — up until this New York trip."
Then as illustrating the relation of the parties we find in the record the following letter dated September 26, 1923, from John R. Brigham in his own handwriting, reading as follows:
"Portland, September 26th — 3 P.M. 1923.
"Dear Sadie: I was surprised to get the nice fruit from you. It is awful kind in you to remember me so kindly and how can I ever pay you for it. I looked over all of my mail to see how you want me to address your mail. The fruit was fine and to think from poor mothers farm at the Dalles and she so long worked. Oh I wish she of put it all in shape as she left it had it on record. No one knows what I did for her. God help her. Beloved love to all. Sadie I expect to go to San Diego the last of this week. you can drop me a few lines direct here at Perkins Hotel Portland and your name so I can address proper, yours
"J.R. BRIGHAM." *Page 475
Then the following questions and answers occur:
"Q. Now, during this time that your mother and father and you were living together, how did they speak to each other? That is to say, how did they address each other, when they talked to one another? A. Well, they had little nicknames for one another, like all families do.
"Q. How did they refer to one another? How did they refer to one another when speaking to you. What for instance, would your mother call John R. Brigham, how would she refer to him? A. She always said `Papa' or `Pop.'
And to show how this daughter addressed her father, the following is taken from the record:
"My dear darling papa: Trust you arrived safe. Its sure a long tiresome long trip. Do hope you are feeling better by now. Am enclosing you a picture of dear mother's grave. It was taken on her dear birthday, Jan. 1. Oh how I do miss her dear more than words can tell or express to you. It's so lonely without her. As I am all alone in this world it's sure sad. My heart so heavy. Today I went up the creek and bought a nice male duck, so as to raise some little ones. When I was down to Portland I got some of those old fashion peach plums like dear grandpa had, two dozen; mother didn't have any. I always liked them. Also got forty prune trees to fill out where some that died. And fifty apricot trees. And six cases of dynamite to blow out some stumps and clear the good land; plant potatoes this spring and then in the fall, trees. As it not good a long to be idle. Mother dear only had a few old hens and they were about eight years old, so I got some new strain as to get eggs next winter. When the market is good I must close dear. And trust these few lines will be of cheer to you dear, as I am sure lonely without "you." My dear mother the boys join in sending their regards,
"Your lonely little girl." *Page 476
Then regarding her mother's death, we find the following letter from John R. Brigham in his handwriting:
"Dear Sadie: I have been trying to drop you a few lines. Oh, that must of been awful shock to you. Oh, how I wish I could have seen her to have a talk with her and now we don't know what will be done with all of her income that she got for the forty years she worked for. I will try and come up to Portland next week and if I do I will come and see you, but will let you know. Now Sadie, be good and you will have lots of cash, so you don't worry. Oh, if we could talk; and I am all on a tremble; have had so many and so busy, I have come from San Diego; went to get away from the people; and I am in it worse than ever, but you tell them I will come and you and I can see how the disposition of the whole thing is. Now Sadie, don't work too hard nor worry. God bless you. It will be about two weeks before I go to Portland. Goodby, lots of love, Excuse all.
"J.R. BRIGHAM."
It also appeared in the evidence, and was uncontradicted, that John R. Brigham frequently took trips with the plaintiff's mother to The Dalles; that, during the period of plaintiff's infancy and while they were living in Portland, they also took a trip to San Francisco, and that plaintiff's mother was known as Mrs. Brigham in The Dalles and in San Francisco.
The following also occurs in the evidence:
"Q. Then as a matter of fact, you don't personally remember this alleged living together of your mother and father during the first eight years of your life, do you? A. Oh yes, I do.
"Q. How old do you consider a little girl? A. How old do you consider a little girl; I always knew him as daddy from three years; I always called him daddy, when I began to talk." *Page 477
It further appears in the testimony that John R. Brigham told his daughter that they were married in 1878.
This witness also testified to living at the different hotels with her father and mother during her infancy. She also testified that they lived together as husband and wife.
Referring to the plaintiff's mother, the following occurred:
"Q. Well I am asking you now was she called Mrs. Brigham before she went to California? A. Yes.
"Q. Where was she known as Mrs. Brigham? A. At The Dalles and here and San Francisco.
"Q. In other words you didn't live with your mother and Mr. Brigham from the time you were born until the time when you were six years old did you? A. Oh yes, oh yes.
"Q. As I get it then, from 1880 to 1886, Mr. Brigham and Mrs. Liddy and yourself occupied quarters together in the St. Charles Hotel, is that right? A. Yes, sir."
Mrs. Mary K. Britten corroborated the plaintiff as follows: She testified that she had lived at The Dalles for forty-six years and was acquainted with John R. Brigham during his lifetime as well as Mrs. Wadsworth. She further testified that she first knew the plaintiff when she was possibly a year old or more, and that she saw them at The Dalles, Oregon.
"Q. Now, just tell the jury Mrs. Britten, what took place at that time, at that meeting. How you met him and what happened. Who was there and all about it. A. Well I just came from the boat from New York state and we stopped at the Umatilla House and my sister was with me, and we went in and sat down. They were expecting the news about Garfield's election and we all went in there and sat down and we happened to sit in a seat next to Mrs. Wadsworth's *Page 478 mother, and my sister introduced me to Mrs. Liddy, and she says, her name was Liddy at one time, but she said, `Excuse me,' she said, `It is Mrs. Brigham.'
"Q. Was John R. Brigham there at that time? A. He was sitting next to her.
"Q. What did he say or do, if anything? A. And my sister asked him, `Are you married?' and he said, `We are,' and she said, when my sister introduced me, she said, `if you please I am not Mrs. Liddy I am Mrs. Brigham. This is my husband, and we asked him if he was married and he said `We are,' and he picked up the little girl and held her up and he said, `Look at our marriage certificate.'"
She further testified that she visited the Brighams in Portland and also testified as to the horsewhipping that Mrs. Brigham gave Mr. Brigham, and then told of the most affectionate meeting of father and daughter in the hospital.
"Q. Did you ever hear anybody at The Dalles call her Mrs. Brigham? A. Yes, sir.
"Q. Who? A. Well, when she was introduced there.
"Q. Was that the only time? A. I have heard people down here in Portland too. * *
"Q. Who all were in there at the time? A. Mr. Brigham and Sadie and Liddy.
"Q. You called her Liddy then, did you? A. Well, she is Liddy since; I called her Mrs. Brigham then."
Thomas A. Doud testified as follows: That he was born in Binghampton, New York, in the same town that Mr. Brigham was born and knew Brigham and his people. He testified that John R. Brigham told him "that he had some nieces and brothers and also a daughter at The Dalles, Oregon."
"Q. And did he say anything about leaving any money to the daughter? A. He did. *Page 479
"Q. What did he say about that? A. He said that he wanted to leave her something and he was going to make arrangements under the will to leave her something. * *
"Q. That was the first time you ever heard he had a daughter? A. Oh no, not the first time.
"Q. When was the first time you ever heard of it. A. I couldn't state that; I always heard that the general rumor was here that he had a wife and daughter.
"Q. Do you recall definitely that he said that his wife was dead? A. I do.
"Q. You do. A. He called the girl his daughter and he said that her mother was dead.
"Q. Well, that isn't his wife? A. That's what he said, his wife.
"Q. He said, `Her mother is dead,' now, didn't he? Now just recall this conversation. A. Well, I am positive he said `his wife.'
"Q. You said the first time `her mother.' I just want you to get it straight. A. Well, I would say it was his wife.
"Q. You recall that? A. Yes."
John F. O'Connor testified, speaking of John R. Brigham:
"Q. Do you know whether he had any family or not? A. Well, all that I know is what I heard, that he had a family yes, and had a daughter.
"Q. What was his reputation at that time as to his marital status, that is was he known as a bachelor or a married man. A. Well, I supposed that he was married. I had heard that he had a daughter. * * Well I heard it around from people talking you know together. I would hear a remark that he was married and he had a daughter. * * I can't recall it exactly, but it was brought out that old John had a wife and daughter here."
R.R. Morrill testified as follows:
"Q. What was the reputation in that respect? What was the understanding in the community? *Page 480 A. The general understanding about the store where I worked was that she was his girl, and he was her fellow; that was about the way we understood it.
"Q. When you say she was his girl and he was her fellow, what do you mean with reference to that; that they were simply keeping company in an orderly or in the ordinary way? A. Oh no, I mean more than that.
"Q. Well — A. (Interrupting.) Well, he was a bachelor, and that she was his lady, or his woman, while they were not married, as a matter of fact, they should be; now, that's about what it means.
"Q. Mr. Morrill, when you say that her reputation was bad, do you mean to state that she had the reputation of being promiscuous with men herself, or did she — or whether her reputation was bad for the character of the business that she was engaged in. A. I never thought that she had promiscuous intercourse herself with men."
John A. McQuinn testified as follows:
"Q. Now do you know what the reputation of Mrs. Liddy was as to having any other man intimate with her except Mr. Brigham? A. None. I am not familiar with the lady at all, I don't know anything about that part of it; although my general impression would be that they were about as near man and wife as that class of people would ever be."
Without attempting to quote from the mass of testimony given in this case, the foregoing is sufficient to illustrate the relation of the parties, and as all the evidence in this record has all the earmarks of truth, we are satisfied to let the verdict of the jury stand.
But the defendants finally say that in order to come within the scope of Chapter 269, Laws of 1925, there must be an actual agreement between the parties engaged in the illicit intercourse that they are living together in the relation of husband and wife before *Page 481 the statute can operate to legitimatize the offspring of this irregular union, and that they must believe that they are married people, and that they must hold themselves out generally to the world as being married in order to satisfy the terms of the said statute. But this harsh construction of this curative statute would nullify it by what would amount to judicial legislation for the simple reason that the statute itself contains no such requirement. We cannot write words into the statute which are not there, and we cannot make this class of common-law relations any holier than they are, nor are we interested in their moral aspects beyond the fact that we are required by the legislative power of this state to legitimatize children born of irregular unions if the parents cohabited together as husband and wife for the statutory period, and this cohabitation does not require any of the formalities of the common-law marriage except those mentioned in the statute. It must be remembered that the legislature could legitimatize bastard children without any marriage of their parents whatsoever, and it would seem an absurd, unjust and uncalled for construction to put on this statute that the parents must make an actual agreement as to their relations, and that if they failed to do so the legislative act does not work and the children are still bastards.
It is the exclusive function of the legislature to make laws, that is, to declare what the law shall be, and, accordingly, acts passed by the legislature may not be enlarged in scope, added to, abridged, amended or otherwise changed by the judiciary. "* * A construction contrary to the obvious meaning of the language used is an encroachment on the legislative power." 12 C.J. 883-885; Chicago, M. St. P.R. *Page 482 Co. v. Westby, 178 Fed. 619 (47 L.R.A. (N.S.) 97); State v.Smith, 56 Or. 21 (107 P. 980); Libby v. Olcott, 66 Or. 124 (134 P. 13).
In State v. Smith, 56 Or. 21, 29 (107 P. 980, Mr. Justice KING said:
"It is not the function of courts to make laws, but to interpret them. As summarized by Mr. Justice BEAN in State v.Simon, 20 Or. 365, 373 (26 P. 170, 172): `Courts must not even, in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.' Smith's Stat. Const., sec. 714."
Mr. Justice WOOD said in Hobbs v. McLean, 117 U.S. 579 (29 L. Ed. 94, 6 Sup. Ct. Rep. 876, see, also, Rose's U.S. Notes):
"We cannot insert the exception. When a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate and not to construe."
But it is said that during this period of cohabitation John R. Brigham had rooms elsewhere. That would not prevent his cohabitation with the plaintiff's mother, as cohabitation does not mean that the parties must live together in the same room continually or occupy one room, as the essence of cohabitation is the living together and the sexual relations, and there may be some degree of living apart and an occasional trip away without destroying the relation, so that it was not a part of the plaintiff's case to prove that the three of them were huddled in one room all the time and never departed therefrom.
The claim that the plaintiff must have proved an agreement between her mother and John R. Brigham *Page 483 in order for her to come within Chapter 269, if assented to, would be judicial legislation. It would take away from the plaintiff her vested rights under this statute.
There is much criticism of the plaintiff's testimony because of some discrepancy in dates and incidents, but it is to be remembered that the plaintiff was forty-eight years of age when she testified and as to many of these dates and incidents she was testifying as to matters that happened when she was a very young child. We have examined her testimony over and over and, while it is true that such discrepancy exists, and that her recollection may be unconsciously colored by her interest in the case, the warp and woof of her narrative is true.
As stated in the original opinion, we hold that the negative testimony for the defense is of small value. It is no doubt the case that five hundred witnesses, who knew Brigham in his lifetime, could be called to testify that they knew Brigham and never heard of him being a married man. As a rule they were not of his class in life. The doings or relations of a landlord of an assignation house were a matter of profound indifference to them. They knew him in a business way, knew that he conducted a hardware store and greeted him when they met him, but that was presumably about all.
The writer is probably acquainted with nearly a thousand lawyers in Oregon, but if he were called upon to say whether a particular attorney was a married man or a bachelor, he would be able to answer perhaps as to one in ten, and as to the others, he would have to say, "I never heard of him being a married man," although he might in fact be married and have a large family of children. *Page 484
The statute in question has been treated by the defendants as though the most important matter was to legitimate an irregular union of man and woman; but this is merely secondary to the great object, that of removing the stain of bastardy from innocent offspring. These are the real sufferers which the statute wisely seeks to aid, and as to them it should be liberally construed not only in their behalf, but as a warning to the lustful that they cannot live and cohabit with a weak woman, beget children by her and hold her out as a wife so long as her charms last, and when these have faded, to repudiate these relations and leave her and the innocent offspring helpless to bear the opprobrium of bastardy.
There are many incidents alluded to in the original opinion which tend to support the theory that Brigham and plaintiff's mother lived together as man and wife, but it is needless to again recount them here. They satisfied the jury which found its verdict accordingly, and which verdict should not be lightly set aside.
Under the old English equity practice the right of an heir at law to demand a jury on the question of legitimacy was a matter of right: Adams' Doctrine of Equity (8 ed.), p. 377; Daniell's Chancery (6 ed.), vol. 2, p. 1075. This court practically held otherwise in Stevens v. Myers, 62 Or. 372 (121 P. 434, 126 P. 29); but, while the right to such a jury is now discretionary and its verdict only advisory, it should not be disregarded except when clearly against the weight of evidence. See authorities quoted in the original opinion.
While it would be going too far to say that the rule in equity cases should be analogous to that applied by the Constitution to actions at law, namely, where *Page 485 there is any evidence to support the verdict, it should not be disregarded. Yet, that provision indicates the trend of modern thought and justifies the statement that only where a verdict is clearly against the weight of evidence should it be disregarded. As abundantly shown, such is not the case here.
The original opinion is adhered to.
RAND, C.J., and BEAN and BROWN, JJ., concur.