Pierce v. Pierce

Chadwick, C. J.

(dissenting)—The court holds that the act of 1917, Laws 1917, p. 353, § 1, subd. 8, amend*133ing § 982, Rem. Code, and adding thereto as a ground for divorce,

“Where the parties are estranged and have lived separate and apart for eight years or more and the court shall he satisfied that the parties can no longer live together,”

is not retroactive, and for that reason respondent cannot predicate an action upon an estrangement occurring before the passage of the act, albeit the parties have been estranged and have lived separate and apart for more than eight years prior to the beginning of the action.

That the amendment is not a bill of attainder or an ex post facto law, goes without saying. The power of the legislature to enact retroactive—or, more aptly to the case at bar—retrospective laws, provided they do not impair the obligation of existing contracts, is not denied; it is admitted by counsel, and may be passed without extended discussion.

The question is not, then, whether the legislature had power to pass the law, but whether the legislature intended that the remedy should operate as well upon preexisting, existing and future causes. It has been held in Graves v. Dunlap, 87 Wash. 648, 152 Pac. 532, Ann. Cas. 1917B 944, L. R. A. 19160 338:

“It is a rule of construction that a law will not be given a retroactive effect unless by its terms it is shown clearly that that was the legislative intent;”

and so, in Jarvis v. Jarvis, Barrington v. Barrington, Carson v. Carson, supra, and the texts cited iii the majority opinion.

The best statement of the rule I have found is in Carson v. Carson, 40 Miss. 349, where the court, finding itself drawn up to the snubbing post of the law, condemned the policy of passing retrospective laws, *134but held that the court was not, 1 at liberty to hold an act of the legislature to be void merely because of its retrospective character, when no constitutional provision has been violated.” The act in that case was held to be obnoxious, not because it was retrospective in the sense that it gave a remedy for preexisting cause's, but because the act purported “to operate alone upon acts that have already passed, and has no prospective operation whatever.”

In the Carson case we have the rule and its limitation, which is, the legislature having power, an act will not be rejected as retrospective unless it purports to operate “alone” upon past events.

After the very proper holding that a law will not be given retroactive effect unless by its terms it is clearly shown that that was the legislative intent, the writer of the opinion finds boldly that the rejection of an amendment seeking to fix the operation of the law to causes arising after 1917 indicates the legislative intent that the act should only operate in the future. He says further:

“The reason the amendment was lost was plainly because the legislature concluded that the amendment was not necessary, for the reason that the act would not take effect retroactively even if that amendment were not made.”

This is no- more than judicial dogmatism. It is unsound. It violates the natural inferences arising from the conduct of the legislature and convicts it of rejecting a declaration of record of its true intent and a deliberate purpose to encourage, if not to create, a doubt that arises in all cases where acts are remedial of concurrent and continuing wrongs or conditions.

As I read the record, a rejection of the amendment indicates a legislative intent to make the act appli*135cable to existing and continuing conditions. If we are to credit tbe legislature with sufficient technical learning to know that the amendment was not necessary because it knew tbe act was prospective only, is it not more natural to infer that, with such knowledge, it would have removed all questions and saved tbe issue now presented and which has arisen in hundreds, if not thousands, of like cases? Tbe effect of the court’s bolding is that, whereas some member of tbe legislature said, “Let us agree that this act is prospective only,” and tbe legislature by vote of its members rejected bis proposal; therefore tbe act is not retrospective. Tbe fact that tbe legislature, by its solemn and formal vote, said that tbe act should not be prospective only, is a legislative declaration that it intended that it should be retrospective. To meet tbe demands of this court, tbe legislature must hereafter treat every subject-matter by both an affirmative and a negative vote; must first vote that “it shall be,” and then vote that “it shall not be.”

Admitting then that retrospective laws are not favored by tbe courts, it does not follow that tbe act in question is either retrospective or retroactive in a legal sense. Tbe character of an act is tbe most important guide in determining whether it is retrospective. Remedial statutes, although retrospective, are not regarded as obnoxious per se. Tbe statute in question involves no vested rights; its purpose is to cure an evil offensive to society—that is, tbe living apart, under a tie of matrimony, of persons who are permanently estranged. Tbe authorities sustain me in tbe assertion that a remedial statute is not retrospective or retroactive because a part of tbe requisites of its actions are drawn from a time antecedent to its passage, or as said by Lord Denman, in R. v. St. *136Mary, 12 Q. B. 127: “Because a part of the requisites for its action is drawn from time antecedent to its passing.” Endlich, Interpretation of Statutes, § 280.

The rule quoted by the majority is not the only rule of statutory construction; there are others, one of which is as well grounded as the one relied on and more consists with the duty of courts to declare, and give effect to the legislative will; it is, where a statute is remedial, either of past or future events or conditions, every reason exists for a liberal interpretation.

It appearing to me that the intent of the legislature is made certain by reference to the terms and provisions of the act, i. e., “. . . where the parties are estranged and have lived separate and apart &c,” and such intent having been asserted by an affirmative act of the legislature, its attention being riveted upon the very point at issue, the amendment should be held to apply to a condition existing prior to and at the time the act was passed.

The other ground upon which the court rests its decision is that, although the act be upheld as applying to past events, a divorce can only be granted to the injured party, and it having been twice judicially determined that respondent had no ground for divorce, he is therefore not injured and may not' recover.

Under the law as it was at the time the amendment was passed, divorces could be granted only (with one exception to be hereafter noted) where there had been a positive injury, a wrong visited by one spouse upon the other. But it is the duty of the courts to give effect to a statute, if it is possible to do1 so without violating settled rules; and the words “the party in*137jured” should either he rejected as inconsistent with the eighth subdivision of the act as amended, which is the part relied on by respondent, or we should say that, society in general having an interest in all matters of marriage and divorce, where the parties to a marriage are estranged and have lived separate and apart for eight years or more and the court shall he satisfied that the parties can no longer live together, either party may be in law the injured party and apply for a divorce. In other words, both parties are innocent and both parties are injured if the fact of estrangement be established, and either or both may apply for a divorce upon that ground. “Injured,” “to he injured,” “injured party,” does not necessarily imply a physical or a moral wrong. It may mean any deliction, wrong, or condition that would bring a party asserting it within the bound of a statute which recognizes it as a cause of action. It is not a question of such injuries as might he involved in the adultery of one or the other of the spouses, abandonment, cruel treatment, drunkenness, etc.

“Statutes relating to divorce should receive a liberal and equitable construction. The legislative intent should be ascertained and carried out in a manner calculated to afford the intended remedy. Such statutes are not penal and should not he given a strict construction. They are to he construed with reference to the apparent policy of the legislature as gathered from the entire act. To execute this policy, the meaning of the statute may he contracted or expanded from the ordinary or literal meaning of the terms.” Nelson, Divorce, § 12.

This must he so, if the amendment of 1917 is to he sustained at all; for, if a party may not he an injured party in the sense in which I have outlined, no divorce could ever he granted upon the ground of estrange*138ment contiauing for any period of years, and the act of the legislature was abortive. For before a divorce could be granted upon the ground of estrangement, the complaining party would.have to make a showing of injury; that is to say, make a showing of some of the causes set out in the other subdivisions of the act, and the divorce (if one were granted) would be because of these positive injuries and not because of the estrangement; in other words, the law will be exactly as it was before the amendment of 1917 was passed.

My thought may be further illustrated and, as I believe, may be sustained by a reference to subdivision 8 of the original act (section 9 of the act as amended). In 1886, the legislature amended the divorce statute so as to provide for a divorce, “In case of incurable chronic mania or dementia of either party, having existed for ten years or more, the court may, in its discretion, grant a divorce.” The effect of the court’s opinion is to write this subdivision out of the books; for how can it be said that any spouse may be “injured,” in the sense relied upon by the majority, when the other spouse has become the involuntary victim of incurable chronic mania or dementia? Yet, in a broad legal sense, this may be so, for there may be, as I have undertaken to make plain, an injury in a sense other than a positive wrong.

I apprehend that all of the judges of this court who have sat as superior court judges have granted divorces under the eighth subdivision of the act—the ninth subdivision of the amendment—being the insanity clause, and felt that they were obeying the will of the legislature as it is to be gathered from the act, and that an injury, in the sense of positive wrong, was not essential to the granting of a decree.

*139That the parties in this case are estranged is certain. No one can read the record and come to any other conclusion than that the appellant is not sincere and is not truthful in asserting her desire for a reconciliation. The court below, after a careful trial, held:

“It is manifest to the court that the defendant is not sincere nor truthful in stating that she desires a reconcilation between the plaintiff and herself; and that the defendant is estranged from the plaintiff, and that the plaintiff is estranged from the defendant. ’ ’

Appellant has no intention, and has had no intention, of resuming marital relations with respondent. She is standing upon technical right and insisting that a marriage that has long since ceased to be real shall remain as a burden to the parties and as an offense to society.

My conclusion would eliminate all questions of res adjudicata, for, if it is the law in cases of estrangement that either or both parties may be the party injured because of the continuation of an intolerable relation, it being established that the estrangement is permanent and that the parties will no longer live together, the present action rests in a new cause of action that was not in any way passed upon or determined by the court in the previous suits, and respondent should be given his remedy.