(dissenting). — I dissent. It seems to me that the decision in' this case is another instance (too common in the history of the-courts of the United States) of the judicial repeal of a statute. It is not only a fundamental principle of our government, well understood and universally recognized, that the legislative and judicial departments of the government must be kept distinct and separate, but the first warning note sounded by all writers on statutory interpretation is that when the language of a statute is plain and unambiguous, the duty of interpretation by the court does not arise. Sec. 2396 provides that “every married person shall hereafter have the same right and liberty to acquire, hold, enjoy and dispose of every species of property, and to sue and be sued, as if he or she were unmarried.” There seems to be nothing ambiguous or doubtful in the language or provisions of this statute, and, applying any and every known rule of interpretation to it, we must conclude that there is no room for construction and that the only duty of the court is to declare it the *281law, and to decree its enforcement. The real intention of the lawmakers must be gathered from what they say, and where the language is not technical it must be given its ordinary and popular meaning. The statute provides that “every married person can enjoy and dispose of every species of property as if he or she were unmarriedis there anything doubtful or ambiguous aboutthat language ? Could language be more plain, pointed or incisive? Could the idea of unrestricted enjoyment of one’s property be expressed more tersely, plainly and emphatically? There are no provisos, and no exceptions expressed. What right, then, has the court to step in and under the guise of construction, inject a limitation which the legislature did not provide for, and which in effect renders nugatory the law passed by that body? It is an easy but a dangerous thing for courts to wander off in hazy theories and speculations concerning what the legislature meant, and to base their conclusions on the policy or impolicy of the law. This should only be done when the patent ambiguity of the law compels it. And here, in support of what I have said, I desire to quote from Endlich on the Interpretation of Statutes, § 4, which is the embodiment of the authorities upon this subject:
“When, indeed, the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise, and ‘those incidental rules which are mere aids, to be invoked when the meaning is clouded, are not to be regarded.’ It is not allowable, says Yattel, to interpret what has no need of interpretation. Absoluta sententia expositore non eget. Such language best declares, without more, the intention of the lawgiver, and is decisive of it. The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It is, therefore, only in the construction of statutes whose terms give rise to some ambiguity, or whose grammatical construction is doubtful, that courts can exercise the power of controlling the *282language in order to give effect to what they suppose to have been the real intention of the lawmakers. Where the words of a statute are plainly expressive of an intent, not rendered dubious by the context, the interpretation must conform to and carry out that intent. It matters not in such a case what the consequences may be. ‘It has, therefore, been distinctly stated from early times down to the present day, that judges are not to mould the language of statutes in order to meet an alleged convenience or an alleged equity; are not to be influenced by any notions of hardship, or of what in their view is right and reasonable or is prejudicial to society; are not to alter clear words, though the legislature may not have contemplated the consequences of using them; are not to tamper with words for the purpose of giving them a construction which is “supposed to be more consonant with j ustice” than their ordinary meaning.’ Where, by the use of clear and unequivocal language, capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it be absurd or mischievous. If the words go beyond what was probably the intention, effect must nevertheless be given to them. Th ey cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the intention conveyed may be, it must receive its full effect. Indeed, it is said that it is only when all other means of ascertaining the legislative intent fail, that courts may look to the effects of a law in order to influence their construction of it. But, whilst it may be conceded that, where its provisions are ambiguous and the legislative intent is doubtful, the effect of several possible constructions may be looked at, in order to determine the choice, it is very certain, that when once the intention is plain, it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands according to the real sense of the words.”
And yet the majority, by an argument based on the supposed hardships which would be imposed upon married women, have come to the conclusion that the legislature *283did not mean what it plainly said. And if the language of § 2396 could possibly be tortured into anything doubtful, § 2406 plainly shows that the legislative intent was to remove all civil disabilities so far as property rights are concerned, when it provides that “contracts may be made by a wife and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried.” The legislature evidently understood the full scope of the law it was enacting and its far-reaching effects, and where in its opinion the limitation was necessary it provided for it, as in the proviso to § 2398 that “nothing in this chapter shall be construed to confer upon the wife any right to vote or hold office, except as otherwise provided by law.” Had it intended the law to operate as claimed by the majority it would evidently have incorporated a proviso in § 2406 substantially as follows: “Provided, No married woman shall enter into a contract of partnership with her husband.” But it is left for the court to enact this proviso by judicial construction, something very near approaching, in my opinion, a judicial enactment.
As showing the danger of leaving the plain provisions of the statutory law, I note the fact that the majority recite at length the provisions of the common law, and draw deductions from its analogies, when the act in question, to avoid the very thing which the court now insists on doing, provides especially in § 2417 that the “rule of common law that statutes in derogation thereof are to be strictly construed has no application to this chapter. This chapter establishes the law of this territory respecting the subject to which it relates, and its provisions and all proceedings under it shall be liberally construed with a view to effect its object.” The legislature evidently attempted to emancipate this law from the rule of construction now insisted upon by the court; and the plain rule of construction pro*284vided by the legislature is waved aside by the remark that “it is not to be supposed that the legislature intended or proposed to extend the scope of the act beyond the language used further than the implications naturally flowing therefrom.” I think that it is to be presumed that the legislature realized the fact that it was enacting a statute in derogation of the common law, and that it did not want the law hampered by the rule of construction mentioned. It seems to me that the language of § 2417 is also so plain’ that there is no room for construction. In fact, it seems that if the plain provisions of this law can be argued out of existence, all the laws of the state are at the mercy of judicial construction.
I am unable to see in what way the enactments of § 2397 and § 2416 sustain the theory of the majority. It is perfectly competent for the law to provide who shall be subject to the burden of proof in any given transaction, nor is it by any means a new provision of the -law. It is especially a wise provision in this instance and can in no way, that I can perceive, throw any light on the subject discussed.
So far as § 2416 is. concerned, there is the very best of reasons why transactions concerning community property should be attended with solemnity and certainty; both parties have an interest in such property, and delicate relations exist which do not exist at all concerning the separate property of either of the spouses. The separate' property is more independent, and the fact that the law imposes these solemn protections upon community property and not upon separate property would rather strengthen the idea that the use of separate property was entirely unrestricted. The fact is that for many years the law, in obedience to popular demand, growing out of feudal education, stood in loco parentis to woman; she was regarded as not being able to transact business, and had to act .under a trustee or guardian. Advancing thought has *285demanded other legislation, and woman’s independence and capability have been recognized by the legislation of different states in different degrees. In this state I think the legislature has seen fit to grant to a married woman an untrammeled control of her separate property. The law presumes that she is capable of protecting her own property, and it is not in my opinion the duty of the court now to assume to stand in loco parentis or to sally forth in Quixotic zeal to relieve women from conjugal oppressors, or from burdens real or imaginary. It is argued by the majority that the case at bar is an instance of the evil effect of the construction contended for by respondents, because the wife was held to he a partner by “ holding out,” when the testimony did not justify such a conclusion. This argument, in my opinion, is entirely without force, and will apply equally to nearly every law on the statute books. Juries are continually rendering verdicts, and courts entering judgments, based on inadequate testimony; it is simply a question of fact to be tried as any other question of fact is to be tried.