J., dissenting.—Appeal from the judgment declaring a marriage, and for a divorce.
I dissent. Let it be admitted that marriage at common law might be consummated by words of present contract, or per verba in futuro cum copula, still the validity of á marriage in this state since the codes went into effect must be determined by the provisions of the Civil Code. This code has ample provisions on the subject of marriage; and it is declared in section 4 that it “ establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed, with a view to effect its objects and to promote justice.” It is further declared in the same section that “the rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code.” The clause last quoted immediately precedes the one first quoted.
“ Derogation ” is defined by Webster to be “the act of annulling or breaking a law, or some part of it. More generally, the act of taking away or destroying the value *57or effect of anything, or of limiting its extent, or of restraining its operation; as, an act of Parliament is passed in derogation .of the king’s prerogative; we cannot do anything in derogation of the moral law.”
Whatever meaning we may attribute to the word “derogation” in the first clause of the section referred to, so far as the code annuls or changes the common law, its provisions must be not strictly but liberally construed, to effect its objects and to promote justice.
The object of a law is the end or purpose for which it was enacted. Such end or purpose must be deduced from the words employed in the statute; and when such end or purpose can be deduced from the law, its provisions are to be liberally construed to effect such end or purpose. We do not understand by this language that words are to be construed so as to give them a strained meaning,—a meaning which the words on a reasonable interpretation cannot bear; in fact, the language of the fourth section is controlled by the thirteenth section of the code, which declares that “ words and phrases are construed according to the context and the approved usage of the language; and in the case of technical words and phrases, or such others as may have acquired a peculiar and appropriate meaning in law, or the meaning'defined by statute, they are to be construed according to such peculiar and appropriate meaning or definition.”
The fifty-fifth section of the Civil Code defines marriage and what shall constitute it.
In the first clause of the section, marriage is defined thus: “Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary.” As to what shall constitute the relation of marriage, these words are used: “Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.” The words “mari*58tal rights, duties, or obligations ” have some meaning. We cannot presume that such words were idly used by the law-making power, or that they used unmeaning words. We must first find that they are meaningless before we can reject them as entitled to no weight in arriving at the meaning of the statute. Whatever the meaning of these words, it is something additional to the consent spoken of in the first clause of the section. If anything is added, the rule óf the common law is changed, and a new rule is established.
At the common law there could be no valid marriage without consent. In the case where the nuptial contract is made by present words, the consent was manifested by express words; in the case of a union where there was not this express consent, the consent to marry was deduced from circumstances, either from cohabitation, or from cohabitation and the various acts accompanying the marriage state, which may be designated as its res gestse or indicia.
We think that the above rule can be positively declared to exist as a part of the common law, viz.: that there can be no valid marriage at common law without consent to marry. The consent between the contracting parties constituted the marriage. Whether there was such consent when the marriage is denied, and becomes a subject of judicial investigation, between the parties to a cause, must be established by proof. In the one case it is shown by express declaration or unequivocal acts; in the other, it has to be implied or deduced from circumstances. When such consent was found to exist, the marriage was held to have been constituted.
Now, if anything is added by the section referred to, to consent, the common law is changed. How far changed we do not say here. It may not be necessary to say how far these words change the rule of the common law,—to define, point out, and limit the extent of the change made.
It is the better course to leave each case as it arises, to *59be determined on the peculiar facts or circumstances presented by it.
“Consummating marriage” and “consummation of marriage” are mentioned in the sections immediately following the section first quoted; the first form of words is employed in the fifty-sixth and the latter form in the fifty-seventh section.
Conceding that at common law a marriage was consummated by sexual intercourse, we cannot understand these words as having that meaning in the fifty-sixth and fifty-seventh sections. The consummation referred to in them is, we think, the assumption by each of the contracting parties following consent, of the marital rights, duties, or obligations. The declaration in the fifty-fifth section that consent alone will not constitute marriage, but it must be followed where there is no solemnization by a mutual assumption of the marital rights, duties, or obligations, is, in effect, declaring the consummation referred to must be the mutual assumption of the marital rights, duties, or obligations. Sexual intercourse may be an element in such assumption, but it is not all of it. In our judgment, in a case of consent to marry, followed by sexual intercourse merely, without living together, the mutual assumption required by law is not indicated. If consent and sexual intercourse alone constituted marriage, then a single act of such intercourse, immediately after which the parties separated, each party going his own way and never meeting the other again, would be such an assumption as the law required. We cannot think that such is or can be the meaning of the law in this state, as declared in the fifty-fifth section of the Civil Code.
After a careful consideration of the findings in this case, we discern that the following facts are found:—
That the parties had the residence in the city and county of San Francisco required by law, prior to the action herein; that on the 25th of August, 1880, they *60consented in writing, actually signed by them, to intermarry; that afterwards, some time in September, 1880, they commenced living and cohabiting together in the way usual with married people, although their cohabitation was kept secret, and so continued for the space of more than one year, and down to the twenty-fifth day of November, 1881, and that during all of said time the parties mutually assumed toward each other marital rights, duties, and obligations; that during all of the same time plaintiff and defendant so lived together, defendant visited her relations with her, escorted her to places of amusement, and introduced her to respectable families and members of his own family, and wrote to her several letters, while absent from her, in which he addressed her as “My dear wife”; that the marriage was never solemnized, and the consent in writing to intermarry was not a declaration made in compliance with section 75 of the Civil Code of this state; that defendant, on or about December 6, 1881, drove plaintiff from her apartments in his hotel, in which she had resided by his directions since September, 1880, and which was the residence selected for her by defendant, refused to longer live with or provide for her support, and has not since then lived with or sought to live with, or requested the plaintiff to return or live with him, or provided in any manner for her support; that plaintiff’s real name is Sarah Althea Sharon, and that she has not falsely or fraudulently assumed it; that defendant never introduced plaintiff as his wife or spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to him or of him to other persons in his presence as her husband; that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual, open recognition of such relationship by the parties; nor any public assumption by the parties of the relation of husband and wife. The written consent *61to marry, above referred to, contains an agreement by plaintiff not to make known the contents of such writing or its existence for two years, unless the defendant himself shall see fit to make it known.
It will be observed that the veil of secrecy covers all the acts of the parties which pertained to the alleged marriage. Their entire intercourse is hidden and- concealed, except when they visited together or attended places of amusement. They lived together secretly. Such we understand to be the meaning of the finding that their cohabitation was kept secret, inasmuch as living together and cohabitation mean the same thing. By no act of;the parties were marital relations indicated to other persons, not even to their mutual friends and associates. They never addressed each other as husband or wife in the presence of any person; never spoke of each other as husband or wife to any person, nor was this relation known or indicated by any act to any person whatever. The lives of the parties were, during every moment of the period referred to in the findings, an assertion that the relation of husband and wife did not exist between them.
It is not even found, and therefore does not appear, that defendant supported plaintiff. The finding on this point is that defendant, some time in 1881, drove plaintiff from her apartments in his hotel, in which she had resided by his directions since September, 1880, and which was the residence selected for her by the defendant, and refused to longer live with her or provide for her support. The finding that he supported her prior to this time can only be implied from the words “refused to longer live with her or provide for her support.” Such a finding as this is not sufficient. The fact of support prior to the time when he drove her from her apartments in his hotel must not be left to implication. The fact of previous support must be distinctly found, or it cannot be held and acted upon here as a fact which existed. (See Birckhead *62v. Brown, 5 Hill, 634, and Broome’s Legal Maxims, on the rule, De non apparentibus et de non existentibus eadem est ratis.) It is not even found that the parties had a common home. The statement in the finding is that defendant drove plaintiff, not from the common apartments of both parties, but from her apartments.
It does not appear that plaintiff ever at any time addressed defendant as her husband, or assumed his name during the period of such cohabitation mentioned in the findings. Under the rule for construing findings of fact, we must hold that facts not found never existed. If she had a right to be called by the name of the plaintiff, she never assumed or claimed that right during the period commencing with the 25th of August, 1880, and ending with the 6th of December, 1881. In fact, it does not appear when she assumed the name of plaintiff, or claimed a right to be called by his name. She not only did not assume or claim this right, but her conduct was such as to amount to a non-claim of any such right. She was never known or called by the name of plaintiff during the period of time to which the findings refer; and though it is found that defendant, during the time that he and plaintiff “ so lived together,” wrote her several letters in which he addressed her as “My dear wife,” it does not appear that she ever addressed defendant as her husband, either orally or in writing.
We cannot understand that a mutual assumption of marital rights, duties, and obligations can be otherwise than open to view,—at least, open to the view of the mutual friends and associates of the parties. We do not mean by this that such assumption must be carefully and studiously made public, but persons must manifest such assumption by that open, visible, and undisguised living together, such as is usually practiced by persons holding toward each other the relation of husband and wife. When the statute enacts that the subsequent consummation of marriage may be manifested in any form *63(Civ. Code, sec. 67), its meaning is that it must be done in a form which manifests or shows such consummation, —that is, manifests the assumptions of marital rights, duties, and obligations; that the conduct of the parties and their intercourse with each other must be of a character which shows that they have mutually assumed the rights and duties of husband and wife.
The general finding that during all of said time the plaintiff and defendant mutually assumed toward each other marital rights, duties, and obligations amounts to nothing when it is also found that plaintiff never was known as or called by the name of her husband; that defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to him nor of him as her husband in the presence of other persons, or in his presence; that the parties never were reputed among their mutual friends to be husband and wife; nor was there at any time any mutual, open recognition of the relation of husband and wife by the parties; that their whole intercourse with each other was kept hidden from the view of every one; that defendant never supported plaintiff, nor contributed any further to her support than to furnish her apartments in his hotel in which she resided; that she never assumed or claimed the right to assume his name. Of such circumstances, though defendant did write plaintiff letters during the period mentioned above, in which he addressed her as “My dear wife,” it cannot be held as matter of law that there was ever a mutual assumption by the parties of marital rights, duties, or obligations.
It follows from the above that marriage was never consummated by the parties in this cause, and that plaintiff and defendant were never, according to the laws of this state, married, or sustained toward each other the relation of husband and wife.
We are of opinion that the judgment in favor of plain*64tiff,, adjudging a marriage and for divorce, should be reversed, and judgment ordered for defendant.
As in our opinion there was no marriage, there can be no order for alimony and counsel fees. The judgment or order for alimony and counsel fees should therefore be reversed.