concurring. It is with much reluctance that I join in the majority’s conclusion that this marriage must be upheld. It was valid by the law of the place where it was performed, and, in the absence of a statute expressly prohibiting our underage domiciliaries from going elsewhere to be married, I think we are compelled to hold that this marriage is valid everywhere. Best., Conflict of Laws, § 132. Even without a statute the common law recognizes a strong local policy against polygamous, incestuous, and miscegenetic marriages and does not permit one to evade that policy of his own domicile by going to another state to be married'. But, in the absence of statute, that principle has never been extended to underage marriages, and, in view of the strong policy m favor of the validity of all marriages, I am unable to join with Chief Justice Harris in reading into our statute, which of course is intended to govern ceremonies performed in Arkansas, an implied prohibition that would apply to this case.
It wms at first my inclination to take a middle course, by saying that although the validity of this marriage would be recognized in this state our policy against underage marriages should prevent the couple from living together until attaining the age at which they might have been married in Arkansas with parental consent. That principle is of course applied in the three instances involving a strong common law policy against a particular marriage. Thus if the law of a foreign country permits a man to have two wives we would recognize the marriages for some purposes, as for the allowance of dower and other property rights, but we would not permit the husband to cohabit with two wives in this state. Best., Conflict of Laws, § 134. It would in some ways be desirable to apply that principle to this case, but on further study I am bound to concede that such a view cannot be logically supported. If our statute, declaring underage marriages in this state to be absolutely void, is not explicit enough to establish a policy against marriages entered into by our minors elsewhere, wo cannot say with consistency that the statute is nevertheless sufficiently strong to declare a policy against those minors living together when they come back home.
On one point, however, I cannot join in the majority opinion. In the second opinion in Ragan v. Cox, we pointed out that the earlier cases had construed the statutory word “void,” with reference to underage marriages, to mean voidable only, and that the legislature evidently meant to change that rule by declaring in 1941 that such marriages should be “absolutely void.” Ark. Stats. 1947, § 55-102. We therefore concluded in the Ragan case that “absolutely void” did not mean voidable and that tbe marriage considered there was ‘ ‘ a complete nullity. ’ ’ That decision was delivered by a unanimous court and in my opinion is wholly sound.
In the case at bar the majority, without actually overruling the second Ragan case, unsettle the law by criticizing that decision and by implying that it may not be followed in the future. I think the Ragan decision was correct, and I do not find much to support the majority’s apparent change of position in the matter.
It is said that in two cases decided after the adoption of the 1941 act the court held underage marriages to be voidable and not void. This is true, but in neither case did the court discuss the fact that the statute had been changed by substituting “absolutely void” for the earlier “void.” Indeed, in one of these two cases — the first appeal in Ragan v. Cox—the record then indicated that the marriage was also incestuous. On this point we observed that the statute declared incestuous marriages to be “ absolutely void, ’ ’ and went on to say: ‘ ‘ Such marriages are not merely voidable, but void ab initio.” If the phrase “absolutely void” makes an incestuous marriage void ab initio, it is hard for me to see why the phrase has a different effect when it is applied to an underage marriage.
The difference between the old statute and the new one was apparently not considered either in Hood v. Hood or in the first Ragan appeal. But that difference was carefully considered in the second Ragan opinion and was the sole basis for the court’s holding that an underage marriage was, despite the earlier cases to the contrary, a complete nullity. I fully agree with that view, and I must protest against the present opinion, which creates uncertainty in the law where none seemed to exist.