dissenting.
In my opinion the provisions of ORS 106.150 (1)① that the parties to a marriage “shall assent or declare in the presence of the minister or judical officer solemnizing the marriage and in the presence of at least two witnesses, that they take each other to be husband and wife” are mandatory and require the parties to the marriage to attend and participate in the ceremony in person. ORS 106.150 was enacted in 1862 and compiled as section 5, ch 31, of the Deady Code. As far as I am aware the statute has been construed since its enactment to require parties to a marriage to personally attend and participate in the ceremony. In an opinion written by Judge Deady in 1870 he said: *209See also, State v. Wakefield, 111 Or 615, 631, 632, 228 P 115 (1924) and 1942-44 AG 319.
*208“The consent to become husband and wife— the contract out of which arises the relation — must be given as herein prescribed — before a person authorized to solemnize marriage, and in the presence of two witnesses. Without the observance of these formalities, the marriage relation, it seems to me, cannot be created within the States of Oregon and California, particularly the former. Neither ought it to be. * * *” Holmes v. Holmes, 1 Sawy. 99, 116, 1 Abb (US) 525, 12 Fed Cas 405 (No. 6,638).
*209The majority concedes that in case of a direct attack by one of the parties ORS 106.150 (1) must be construed to prohibit proxy marriages. The opinion of the majority is based on the premise that the failure of one or both of the parties to “assent or declare” in the presence of the officer solemnizing the marriage is merely a defect which does not necessarily render the entire proceeding void. In this I think the court errs. In my opinion the failure of both parties to appear in person and to “assent or declare” in the presence of the officer solemnizing the marriage and in the presence of at least two witnesses results in a non-marriage. As said by Judge Deady, a marriage cannot be “created” in Oregon “-without the observance of these formalities.”
The statutes ORS 106.020 and 106.030, on which the majority relies, are not relevant in this case. They provide that certain marriages between parties under disability, or where consent is obtained by force or fraud, are either void or voidable. Both statutes, however, contemplate that a marriage ceremony in compliance with ORS 106.150 has been solemnized. Neither statute indicates the consequences of a failure to solemnize a marriage as required by ORS 106.150. Here, as the majority recognizes, no marriage has been solemnized in compliance with ORS 106.150. The majority opinion merely adds to the voidable marriages listed in ORS 106.030 a further class, namely: marriages in which either one or both of the parties are not personally present as required by law.
It should be pointed out that the only ground upon which one of the parties to a proxy marriage could attack its validity is that the statute does not authorize *210a proxy marriage. If, as the majority tacitly concedes, the statute should be so construed, it is difficult to understand how the court can elevate, even to a “voidable” statute a ceremony failing completely to comply with ORS 106.150. This is not a case of a defective marriage, it is a case of no marriage at all.
If there is to be any relaxation of the formalities required to consummate a valid marriage, the change should be made by the legislature and not by this court. We have no right to indulge in judicial legislation merely because some of the court feel that “there is no great danger of mischief resulting from” proxy marriages, and that a proxy marriage does not appear to be “contrary to public policy.”
Perry, J., joins in this dissent.ORS 106.150. “(1) In the solemnization of a marriage no particular form is required except that the parties thereto shall assent or declare in the presence of the minister or judicial officer solemnizing the marriage and in the presence of at least two witnesses, that they take each other to be husband and wife.”