(dissenting in part). I concur in everything *373said in the foregoing opinion, excepting upon the proposition that a license is not an essential to a valid' marriage in this state. I most fully agree with the language of the opinion that the lawmaking power of this; state is vested in our Legislature, and that when the Legislature has spoken it is. for the courts to construe and give effect to, rather- than annul, such legislative enactments. The courts have no power to annul or disregard the plain, pro1visions of a legislative act ¡by resort to' any sort of judicial sophistry or legerdemain; that the only ground upon which a lawfully enacted1 statute may be annulled by the court is that it is in contravention of either the federal or state Constitution. It is apparent from the reading of our statute upon the subject of marriage that no form' of ceremonial solemnization is essential to a valid marriage, and while noncompliance with the law as to solemnization, authentication, 'and recording will not invalidate a marriage otherwise lawful, still, I am of the view that there can be no otherwise lawful marriage within this state without a license. Parties desiring to enter into, the marriage relation may do so without going before a clergyman or a public officer and publicly acknowledging that they enter into such contractual marriage relation; but they may enter into- such relation privately by mutual agreement -providing they previously obtain a marriage license. Prior to 1890 there is no doubt but that there existed in this state a sort of qualified common-law marriage such as is by this opinion said to now exist. By chapter 109, Laws 1890, there were brought into the marriage laws of this state, along with other sections, what are now sections 46 and 51, Rev. Civ. Code of 1903. Section 46 provides:
“Previous to any marriage within this state, a license for that purpose must 'be obtained from the clerk of the circuit court of the county wherein the marriage is to be solemnized, agreeable to -the provisions of this chapter.”
And section 51 provides:
“If the clerk of the circuit court grants a license contrary to the provisions of the preceding sections, he is' guilty of a misdemeanor, and if a marriage is solemnized without such license being procured, the parties so married, and all [the parties]-aiding in such marriage, are likewise guilty of a misdemeanor.”
These sections 46 and 51 came into our marriage law as an *374addition and amendment thereto- and had the effect of qualifying and limiting the effect of all previously existing laws upon the subject of m-arriage. The express' language of these sections 46 and 51 is that 'previous to- any marriage within this state a license f-o-r that purpose m-ust be obtained, and if a marriage is solemnized without such a license the parties- so married, and all persons aiding in such marriage, are guilty of a misdemeanor. This language, under the usual and -ordinary rules of statutory construction, is just about as mandatory and prohibitory as plain English language could made it. The use -of the word “must” indicates and implies mandatory intent. Penalizing the -parties entering into such contract implies and imports mandatory prohibition just as strongly as the use o-f express prohibitory words. Norbeck & Nicholson Co. v. State, 32 S. D. 189, 142 N. W. 847, Ann. Cas. 1916A, 229. The imposition of a penalty, however, does not always necessarily render the statute mandatory or the penalized act void; the test seems to depend upon the purpose of the penalization, and- the purpose for which the act was- passed; thus, if an act relates strictly to a revenue measure, the only purpose being to increase the revenues, the statute, -although containing a penalty, is generally held not to- be mandatory, although in some jurisdictions- -a strictly revenue measure, -containing -a penalty, is held' mandatory. Bu-t, -on- the other hand, wherever the object -of the statute involves a matter o-f public policy and is passed for the purpose of protecting the -public and regulating society, the performance of the act thus penalized by statute is almost uniformly held to be -absolutely void-. Elliott -on Contracts, §§ 666 to 670; 9 Cyc. 476. The general purpose of a marriage license law is held .by all courts to- -be of a public nature to- correct evils resulting from illicit relations, to prevent litigation in relation to spurio-us claims-- based on loo-se common-law marriages, and to prevent marriages -of -persons whose ages and whose physical -and mental conditions are such that for the good of society they should not be permitted to- enter into the marriage relation; and by -penalizing -the parties- entering into- the -marriage without a license, under all the usual and -ordinary rules of statutory -construction-, the Legislature -of this state prohibited and made absolutely void- all marriages entered into -in this state without, a license. The penalization of the parties has the same *375force and effect as express prohibition. Every object and every benefit sought to be 'secured by the marriage license law may be defeated by the common-la-w marriage route promulgated by the opinion in this case, if such common-law marriages are construed lawful without the previous procurement of a license. I cannot concur in the provisions and purposes of said sections zj.6 and 51 being so disregarded and nullified. I am not unmindful of the fact that where parties may have entered into a common-law .marriage without a license, that there might be circumstances that might estop, one or 'both from denying the existence of the marriage relation between them; but there is nothing of that character in the circumstances iof this case.
POLLEY, P. J., I concur in the above.