I dissent.
I agree that the question of the validity of the marriage was a proper one to be decided in this action and that the decision is binding on the parties hereto; that a common-law marriage cannot be consummated within this state, but that a marriage entered into within this state must, to be valid, be solemnized as required by our statutes; that if the marriage here in question is contrary to the public policy of this state as declared by our legislature then even though it is valid where entered into it is still invalid here. I am not averse to the public policy announced in the prevailing opinion if it were declared by the legislature, but it is the legislature and not the courts which has the responsibility of establishing the public policy and in the absence of a *Page 198 legislative enactment or a well established usage the courts should not be concerned with the establishment of a public policy, and when it does it is judicial legislation. I do not agree that the legislature of this state or this court has ever previously declared the public policy of this state to be as announced in the prevailing opinion.
As stated in the prevailing opinion, Section 40-1-2, U.C.A. 1943, prohibits and declares void marriages:
"(3) When not solemnized by an authorized person * * *."
There is an exception to the above quoted provision of paragraph (3) but this marriage does not come within such exception, so if the legislature intended to prohibit and declare void not only marriages consummated within this state but also marriages wherever entered into, when not solemnized by an authorized person, then this marriage is void. I cannot agree that such was the legislative intent. I believe that in enacting the above section the legislature intended it to apply only to marriages entered into within this state and had no intention to prohibit or declare void such marriages if consummated in any other country, state or territory.
This section not only declares void but expressly prohibits all marriages therein enumerated. Certainly our legislature did not presume to prohibit such marriages in states and territories and foreign countries outside of its boundaries. This section is a part of the chapter which deals with "Marriage." It limits the persons who may solemnize a marriage; it forbids a marriage without a license issued therefor by the county clerk; it requires the person solemnizing the marriage to return the license to the county clerk whence it was issued and the clerk to keep a record thereof; it makes it a criminal offense for an unauthorized person to solemnize a marriage, for any person to solemnize a marriage without a license, for any person to knowingly solemnize a prohibited marriage or for a county clerk to issue a license for a prohibited marriage; and forbids the issuance of a license therefor until *Page 199 each applicant shall file with the county clerk a health certificate required by the statute. While there is no express provision that any of these provisions shall apply only to marriages performed within this state, it is clear from the context that they were so intended.
The prevailing opinion expressly limits its rule to cases where citizens of this state go into another state for the sole purpose of being married and then returning to this state to live. But there is nothing in the statute which indicates an intention to make any such distinction. There is nothing in the express terms of the statute which indicates that a common-law marriage entered into in a state where such marriage is valid by citizens of such state will be recognized as valid in this state any more than will such a marriage entered into in such state between citizens of this state who go into such other state for the purpose of marriage only. Any such distinction if made must be read into the statute by the court without any aid from the wording of the statute. It would be a shocking situation for this state to attempt to declare all common-law marriages between people who come into this state to be void. And yet if we make a distinction between such marriages and the marriage here in question, we must read something into the statute which just is not there.
Further, Section 40-1-4, U.C.A. 1943, provides that:
"Marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here."
This to my mind is an express recognition by the legislature that the other sections of the chapter on "Marriage" are dealing only with marriages performed within this state, and that this section deals with marriages entered into outside of this state. The prevailing opinion assumes
"for the purposes of this decision, that in the enactments now under examination it was not the purpose to legislate with respect to the marriage in another jurisdiction of persons there domiciled." *Page 200
This seems to assume without argument, contrary to the express provisions of Section 40-1-4, the main question here involved. That section uses the language:
"Marriages solemnized in any other country, state or territory * * *."
There is nothing in that language which remotely suggests that it did not propose to deal with all marriages entered into outside of this state.
Section 40-1-4 does not expressly declare any marriage invalid. It merely provides that certain marriages are valid. If it has the effect of making any marriage invalid it does so by implication only. If by implication that section makes invalid a marriage between persons domiciled here, where entered into outside of this state without a ceremony, it would seem to have the same effect, as far as this state is concerned, on such a marriage between persons domiciled outside of this state. On the other hand, if this marriage is held invalid under Section40-1-2, subdivision (3), because not solemnized by an authorized person, it would seem to require not only a ceremony but also that the person officiating therein be authorized to do so in accordance with the chapter in our statute on marriages of which that section is a part, and not such as is authorized to so officiate by the laws of another state. In either event, there is not a word in our laws which indicates a policy of this state to invalidate a common law marriage between persons domiciled within and which is entered into outside of this state, and not have the same effect on such a marriage between persons not domiciled within this state.
It is conceded that the public policy does not necessarily have to be declared in this statute but could have to be declared by other statutes or by other means. For instance, a polygamous marriage is not only made invalid by Section 40-1-2, subdivision (2), but there is a constitutional provision forbidding not only such marriages but also cohabitation with more than one person of the opposite sex, and a statute making it a criminal offense to enter into *Page 201 such marriage or to so cohabit. There is also a statute making incestuous marriage or incestuous cohabitation a crime. Such marriages are probably invalid in this state regardless of whether they were valid at the time and place where entered into, and notwithstanding the provisions of section 40-1-4 to the contrary. But I find nothing in our statutes or elsewhere that indicates the public policy announced in the prevailing opinion. The arguments to that effect therein merely indicate reasons why the legislature might have so provided by statute and not that it did so provide. I cannot believe that the legislature used the word "solemnize" advisedly, intending thereby to make all common-law marriages entered into outside of this state invalid as far as this state is concerned. Nor can I believe that it intended thereby to make a distinction between common-law marriages entered into outside of this state between persons domiciled here and where such marriages are entered into outside of this state between persons not domiciled here. Surely, if it had such a situation in mind and intended the result reached in the prevailing opinion, it would have expressed such intention more clearly.
By its general use the word "solemnized" is not so restricted in its meaning so as to include only ceremonial marriages and the way it is here used to my mind indicates that it was intended to cover all marriages entered into or which were consummated outside of this state, whether celebrated by a ceremony or not. 39 Words and phrases, Perm. Ed., 453; Dyer v. Brannock,66 Mo. 391, 27 Am. Rep. 359; Bowman v. Bowman, 24 Ill. App. 165;Pearson v. Howey, 11 N.J.L. 12, 6 Halst. 12. Under this interpretation of that term the statute has expressly provided that a common-law marriage if valid where entered into is valid in this state.
The cases cited in the prevailing opinion do not hold that we have any such public policy as is therein announced. InSchurler v. Industrial Commission, 86 Utah 284, 43 P.2d 696,697, 100 A.L.R. 1085, a man and woman had lived together in this state as husband and wife for approximately *Page 202 21 years. No marriage ceremony was claimed either here or elsewhere. We said:
"In this state a common-law marriage cannot be consummated. By this we do not mean to say that a common-law marriage consummated in a state where it is recognized [as valid] would not be valid here. In this state marriage must be consummated by a ceremony as provided by the statutes."
That case does not announce a public policy of this state not to recognize a common-law marriage consummated in a state where it is recognized as valid even though such marriage is between citizens of this state who went into the other state for the purpose of marriage only. In Sanders v. IndustrialCommission, 64 Utah 372, 230 P. 1026, 1027, Ruby Clark Sanders claimed to be the surviving widow of R.O. Sanders, who was killed in a mine explosion. Sam Saris, her former husband, obtained a divorce on April 25, 1923, which did not become absolute until six months thereafter. Ruby married R.O. Sanders in Evanston, Wyoming, on June 16, 1923, before the decree had become absolute. We held that:
"Ruby Clark Sanders had an undivorced husband living at the time of the pretended marriage ceremony."
And therefore under our statutes, although the ceremony was performed outside of the state, such marriage was void, citing what is now Sections 40-1-2, subdivisions (2), (3) and (7),40-3-6, 7 and 8. There was no claim that such a marriage would be valid in Wyoming and no common-law marriage was involved.
As I read the statutes of Idaho, Sections 31-201, 203 and 301, Idaho Code Annotated, and the construction placed thereon by the courts, Huff v. Huff, 20 Idaho 450, 118 P. 1080; Dawson v.United States, 9 Cir., 10 F.2d 106, a common-law marriage entered into in that state is valid and the facts found by the court in this case clearly show a common-law marriage. I therefore think the case should be reversed.
PRATT, J., not participating. *Page 203