(dissenting). I am compelled to dissent from the ■opinion and judgment of the majority. I am not willing to concede that it is yet the law in this country that a person can openly violate a public statute and then obtain the aid of the court to help him profit thereby. Here, the statute absolutely forbade the marriage of a ■divorced person within three months of the time the decree was granted. Here, the plaintiff who was a resident of the state, married the deceased within three months. After having defied the statute, she seeks the .aid of. the very courts she has defied, and to profit from the benefactions of inheritance laws which the bounty of the state has provided. Such a thing cannot, and should not, be done. I am fully aware of the general rule stated by Mr. Justice Christianson, that marriage is regarded with favor by the law, and statutes should not be construed so as to render a marriage void, unless the legislative intention is clear and unequivocal. This rule, however, was only made and has only been applicable for the protection of the innocent children of a-marriage such as that before us. Surely it was not the intention of our legislature that the general rule, that marriages are favored, should be allowed to overcome its express statement, that a marriage within three months after a divorce should not be consummated, and to allow the guilty persons to reap rewards from their unlawful act.
The only cases, indeed, where I find the rule to have been adopted, *49are cases in which the legitimacy or right of inheritance of innocent children was concerned, or the violation of the statute was not on the part of those who contracted the ceremony, but on the part of those who performed it, as, for instance, cases where minors were free to contract marriage, but the statute provided that ministers of the gospel should not solemnize such marriages without the consent of the parents. See Parton v. Hervey, 1 Gray, 119; 1 Bishop, Marr. & Div. §§ 431, 432.
Although, indeed, the majority opinion cites Mr. Bishop as authority for the proposition announced in it, Mr. Bishop takes entirely the other position. He, it is true, says, and cites authorities on the proposition, that a lack of qualification or right on the part of the minister or other official will not invalidate the marriage, but he expressly adds: “On the other hand, if the same statute which authorized the divorce provided that it should not operate to enable the divorced party to remarry, the case would seem to be that stated in the last section, and a new marriage in the same state would be void; though it would be good if contracted in another state or country, — the inhibition not being extraterritorial.” See‘vol. 1, § 708. See also Dickson v. Dickson, 1 Yerg. 110-114, 24 Am. Dec. 444; Ponsford v. Johnson, 2 Blatchf. 51, Fed. Cas. No. 11,266; Re Webb, Tucker, 372; Thompson v. Thompson, 114 Mass. 566.
Even in § 707, referred to, he says: “But a statute conferring a capacity to marry, where it did not before exist, is to be rendered differently from one directing how an already existing right to marry shall be exercised; the terms of the capacitating provision furnish the measure of the right. Thus, a divorce statute having declared that ‘where a marriage is absolutely annulled, the parties shall severally be at liberty to marry again, but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed during the life of the former husband or wife,’ a marriage violative of the inhibiting clause was adjudged void; for all the parts of a law must be interpreted together.”
The language used in the case cited by Mr. Bishop, indeed (Owen v. Bracket, 7 Lea, 448), is very suggestive; and answers well the argument of the majority opinion that there is a public policy superior to the public policy announced by the statute which forbids such marriages, *50and wbicb. alleged rule of public policy, tbe majority bold, seeks to' favor practically all marriages. “Tbe statute,” tbe Tennessee court says, “is plain and bas been tbe law of this state since 1835. We are unable to appreciate tbe argument that Tbe statute is opposed to public policy, is utterly void and in violation of common sense and tbe propagation of tbe human race.’ We are of opinion it accords wib public policy, is predicated of common sense, and tends to assure a decent propagation of tbe human race.”
Tbe case was one very similar to that before us, and was one in wbicb tbe alleged husband and wife claimed a homestead interest in a tract of land wbicb bad been levied upon in payment of a debt. Tbe statute prohibited a defendant who bad been guilty of adultery from marrying tbe person with whom tbe crime bad been committed during tbe life of tbe former husband or wife, and tbe alleged marriage bad taken place after a divorce between tbe first parties.
Tbe rule, indeed, wbicb makes tbe courts hesitant in setting aside and ignoring marriages bas only, as a general rule, been recognized where tbe rights of innocent children have been involved, and I find no case where a party who bas himself defied a statute bas been allowed to go into tbe courts of tbe state where tbe act of defiance was committed and seek through it to profit thereby.
I am not even willing to concede that a marriage, even though solemnized in another state, but wbicb was solemnized in defiance of tbe statute of North Dakota, would furnish a basis for tbe right to inherit in this state. I agree with tbe supreme court of Wisconsin, “that tbe statute under consideration is in no sense a penal law. It imposes a restriction upon tbe remarriage of both parties, whether innocent or guilty. Upon no reasonable ground can this general restriction be explained, except upon tbe ground that tbe legislature deemed that it was against public policy and good morals that divorced persons should be at liberty to immediately contract new marriages. The inference is unmistakable that tbe legislature recognized tbe fact that tbe sacredness of marriage and tbe stability of tbe marriage tie lie at tbe very foundation of Christian civilization and social order; that divorce, while at times necessary, should not be made easy, nor should inducement be held out to procure it; that one of tbe frequent causes of marital disagreement and divorce actions is tbe desire on tbe part *51of one of the parties to marry another; that if there be liberty to immediately remarry, an inducement is thus offered to those who have become tired of one union, not only to become faithless to their marriage vows, but to collusively procure the severance of that union, under the forms of law, for the purpose of experimenting with another partner, and perhaps yet another, thus accomplishing what may be called progressive polygamy; and, finally, that this means destruction of the home and debasement of public morals. In a word, the intent of the law plainly is to remove one of the most frequent inducing causes for the bringing of divorce actions. This means a declaration of public policy or it means nothing. It means that the legislature regarded frequent and easy divorce as against good morals; and that it proposed not to punish the guilty party, but to remove an inducement to frequent divorce.” See Lanham v. Lanham, 136 Wis. 360, 17 L.R.A.(N.S.) 804, 128 Am. St. Rep. 1085, 117 N. W. 787. See also opinion of Chief Justice Dunn in Wilson v. Cook, 256 Ill. 460, 43 L.R.A.(N.S.) 365, 100 N. E. 222.
I see nothing in the contention of respondent and in the contention of the majority opinion that there is no express provision of the statute which declares such marriages to be void. There is much, too, in the view taken by the supreme court of Washington in the case of Re Smith, 4 Wash. 702, 17 L.R.A. 573, 30 Pac. 1059, and that is, that “if the provision is to have any force, it seems to us it must limit the preceding-part of the section, and the divorce cannot be held to be full and complete until the time mentioned in the provision has expired. It is full and complete for all purposes, excepting neither party shall enter into a marriage with any other person during the time specified, and it must be a limitation upon it in that respect. During this time, for this purpose, the decree of divorce is suspended and inoperative to that extent.” Nor does the fact that after the three months’ period the parties live and cohabit with one another make any difference, as common-law marriages are not recognized in North Dakota. See Schumacher v. Great Northern R. Co. 23 N. D. 231, 136 N. W. 85.
This fact serves to differentiate many of the cases cited by respondent, if differentiation is necessary. See also opinion of Chief Justice Dunn in Wilson v. Cook, supra.
Even if an expression of invalidity were necessary, which I do not *52believe it to be, the North Dakota statute expressly declares illegal and void from tbe beginning, any marriage contracted by a person having a former husband or wife living, where the former marriage has not been annulled or dissolved. See § 4360 of the Compiled Laws of 1913. In my opinion and in the opinion of the Washington court, the decree as to a dissolution of the marriage bonds, as far as remarriage was concerned, was not operative until the expiration of the three months’ period.
I am firmly of the opinion that the judgment of the district court should be reversed. It is also needless to say that I strenuously dissent from the theory of marriage and the public policy in relation thereto which is announced by Mr. Justice Eobinson. It is to be remembered that this is not a case where the innocent children of the second marriage are seeking protection, but where the guilty parties themselves are alone involved.