I concur in the conclusion, and in nearly all of the opinion of Mr. Justice SOMERVILLE. I am not yet willing to subscribe to the doctrine that the Legislature could have made the statute in question retrospective, and have given it retroactive operation and effect. The doctrine is so dangerous, and would be so far-reaching in its effect, that I am not now willing to commit myself to it, even by dicta.
It is the province of the Legislature to say what the law shall be in the future, but not what it is at present, nor what it was in the past. This is a judicial function, under the law of this state. The day before the Legislature passed the bill in question, the complainant had no cause of action against this respondent, for a divorce, on the ground alleged in her bill. Prior to that date, it is conceded by all, the facts averred in her bill would have stated no cause of action against this respondent, and would have constituted no legal grounds for dissolving and annulling the valid and binding contract of marriage existing between them. Can the Legislature, without any fault on the part of respondent, dissolve and annul that contract in so far as the complainant is concerned, and yet hold respondent bound thereby? It is conceded by all that the Legislature could not have done so, if the effect of the bill or statute had been limited to this complainant and respondent *Page 324 because section 104 of the Constitution clearly prohibits the passage of such bills. This court also held, in the case of Jones v. Jones, 95 Ala. 443, 11 So. 11, s. c. 18 L.R.A. 95, that the Legislature had no such power, even when based on the fault of one of the parties to the contract, and this was before section 104 of our present Constitution appeared, to expressly prohibit the passage of local laws as to divorces. It is true that that decision was based on section 23 of article 4 of the Constitution of 1875. It does not conclusively follow, however, that the divorce granted in Jones' Case would have been valid if it had ex proprio vigore divorced every husband in the state, as it attempted to divorce Dr. Jones. I am not willing now to subscribe to the doctrine that the Legislature of this state could, if it would, divorce every wife in this state from her husband, or vice versa. If the Legislature could not, by a statute, so divorce all married persons, could it authorize the courts of the state to do so, with or without cause? Maybe it can. I am not sure that it cannot, but I am not willing to say that it can, until compelled so to do; and I do not think the courts will ever be called upon to decide the question, because there is no possibility that the Legislature will ever pass such a bill or bills as I have above indicated. I mention such conditions because it is a question solely of the power of the Legislature and the extent thereof, and not one of propriety or policy, of which I am writing; and hence only extreme cases can illustrate the extent of the power.
The history of our constitutional provisions, prior to the present Constitution (1901), on the subject of divorce, was reviewed in the case of Jones v. Jones, supra, and while the act was in that case stricken down, because local, special, or private in character, it was not held even as dicta that it would have been valid if it had been general. In a note to the report of that case in 18 L.R.A. 95, there will be found many authorities on the subject, which are in much conflict, if not in a state of anarchy, on the question whether or not a state Legislature possesses such powers.
This court in the case of Downey v. Downey, 98 Ala. 373,13 So. 412, s. c. 21 L.R.A. 677, adverting to the decision in Jones v. Jones, supra, reiterated the fact that it was not decided in that case that the Legislature could grant a divorce. I take it that if the Legislature cannot grant a divorce, it cannot authorize a court so to do, without a cause, or except for some litigable cause; that is, there must be some issuable fact for the court to determine, else it would not be a judicial proceeding, or due process of law. Why have a lawsuit, or how can you have one, when there is nothing to litigate? Why have a defendant to a suit, or give him notice thereof, if he cannot defend, because neither the law nor the facts are controvertible or disputable? That is, that the complainant, to be entitled to relief against him, need not allege or prove any fault, neglect, or failure on his part. Is it due process of law to dissolve and annul a contract at the suit of one party thereto, without alleging or proving some fault on the part of the respondent? If one party has lived up to his contract, both in letter and in spirit, can the Legislature authorize a court to annul and dissolve it at the suit of the other? Is this due process of law?
Granting divorces is the exercise of powers and functions either legislative or judicial. If legislative, under our Constitution, then only the Legislature can exercise them, the courts cannot; if judicial, then only the courts or the judicial department of the state can exercise the powers. Assuredly, the power or function to decree divorces does not belong to both these branches of government. I take it that there never would have been a doubt on this subject but for the fact that in England Parliament has for centuries granted divorces; but this does not prove that it is the exercise of legislative powers, because Parliament — different in this from all American Legislatures, state or federal — exercises both legislative and judicial powers and functions of the English government. Our Constitution, like most all other written American Constitutions, expressly prohibits the Legislature from exercising judicial powers, and also prohibits the judicial department from exercising legislative powers. So it results that granting divorces, under the law of this state, is the exercise of powers and functions of the state government, either legislative or judicial, and that it cannot be the exercise of both classes of powers. If it be a judicial power and function, the Legislature cannot usurp it by saying that the courts shall grant divorces without cause, and without any issuable fact being alleged or proven.
The Legislature may prescribe rules under which judicial power shall be exercised, but it cannot authorize courts to proceed to judgment against, or to adjudicate upon, the rights of parties without giving them notice of the proceeding and an opportunity to defend; nor can it deprive the litigant of his rights, by retrospective legislation which makes void that which was theretofore valid, or vice versa. There are some things Legislatures cannot do. What they do must be within legislative competency. They cannot recall the past. As the greatest court said: Omnipotence itself cannot do this. In Fletcher v. Peck, 6 Cranch, 135, 3 L.Ed. 162, Marshall, C. J., said: "The past cannot be recalled by the most absolute power." Johnson, J., said in the same case: "A state does not possess the power of revoking its own grants;" and he added, that he so held, upon "a general principle, on the reason and nature *Page 325 of things; a principle which will impose laws even on the Deity." 6 Cranch, 143, 3 L.Ed. 162.
The Legislature can say what the law thereafter shall be, but not what it was theretofore; what it shall be to-morrow, but not what it was yesterday; that is not its province or its function. If an act is done to-day, according to law, the Legislature cannot say to-morrow that the act was unlawful. If a contract is made to-day according to law, and is therefore valid, the Legislature will have no power to-morrow to say that it was not made according to law, and is therefore void, and annul it. It can say that a contract made hereafter, as a former one was made, shall be void, but it cannot make void a contract heretofore made and executed, if valid when made, nor make valid a contract executed in the past, if it was void when made. This is not within legislative competency, and therefore needs no express constitutional inhibition. The Legislature can no more recall the past than it can make black white, or white black, or change the laws of physics or other natural laws. A state Legislature can, of course, do anything within legislative competency which is not inhibited by the state and federal Constitutions; but it needs no inhibition to prevent its doing what, in the very nature of things, according to natural or Divine law, it cannot do. The Constitution itself could not empower the Legislature to recall the past, or to change a law of physics. Why expressly inhibit the doing of a thing which cannot be done by any human power or agency, much less authorized?
I know there is abundant authority for the proposition that, while marriage is a contract, it has no obligations which cannot be impaired, and that it is therefore not within the protection of the state and federal constitutional provisions against the impairing of the obligation of contracts; that marriage is a mere status, which can be changed at the will of the lawmaking power. There are, however, abundant authorities to the contrary. See some of them cited in the case, In re Christiansen, 17 Utah, 412, 53 P. 1003, 41 L.R.A. 504; s. c. 70 Am. St. Rep. 794.
One of the best and most fully considered cases in all the books on the subject is that of State to Use, etc., v. Fry et al., 4 Mo. 120. The following are some of the approved and often quoted definitions of the marriage contract, some often approved and quoted by this court, and I adopt as expressing my views on the subject what was said by the Missouri court in the above-cited case:
"Blackstone says, 'Our law considers marriage in no other light than as a civil contract. * * * And taking it in this civil light the law treats it as it does all other contracts, allowing it to be good and valid in all cases where the parties at the time of making it were in the first place willing to contract, secondly, able to contract, and lastly, actually, did contract in the proper forms and solemnities required by law.'
"Bacon says, 'Marriage is a compact between a man and a woman for the procreation and education of children.' He also borrows Swinburn's definition of the manner in which it must be solemnized.
"Chancellor Kent defines it to be a contract jure gentium, and consent is all that is necessary.
"Reeves, in his Domestic Relations, says, 'It is a mere civil transaction to be solemnized in such manner as the Legislature may direct.'
"Hoffman, in his Legal Outline, adopts the definition of Rutherford, who defines marriage to be 'a contract between a man and a woman, in which, by their mutual consent, each acquires a right in the person of the other for the purpose of their mutual happiness, and for the production and education of children.' "
Many other authorities might be cited, but these I presume will suffice to prove that marriage has always by the commentators on civil law and also by the courts been held and considered in the light of a civil contract. If then the conclusion be true that it has heretofore been at all times by all commentators and by the courts regarded as a civil contract, on what ground can the argument rest that it was not so regarded by the framers of the Constitution? It, at the time of framing that instrument, and for centuries before, had been treated as a contract, possessing all the attributes of other civil contracts, in its formation, conferring rights in themselves valuable and capable of being enforced in a court of justice, and with this understanding of the manner in which it was regarded by jurists, the Constitution was framed by individuals fully apprised of the fact; and can it now be supposed that it was not so understood, or that they intended to exclude it from the protection of the Constitution?
Marriage has always been held in law a valuable consideration, on which to predicate a contract either between the husband and wife or third persons; it is founded upon the consent of the contracting parties; it gives vested rights to both the person and property of each of the contracting parties, and why, then, when it possesses all these ingredients of the definition of the term "contract" before given, shall it be said not to be embraced within its provisions or spirit?
In tracing the history of the doctrine that the marriage contract is not within the protection of state and federal Constitutions, I find that the doctrine was first announced after we had written Constitutions protecting the obligation of contracts from impairment, by Marshall, C. J., as a dictum, in the famous Dartmouth College Case, 4 Wheat. 518, 4 L.Ed. 629; but the doctrine was then and there denied by other justices taking part in that decision, although it was dictum, because it was certainly new to them, and one of the justices to deny it was a no less eminent jurist than Justice Story, who has probably done more than any other judge or text-writer in shaping and defining the *Page 326 common law of the American states. Of this contract he says:
"As to the case of the contract of marriage, which the argument supposes not to be within the reach of the prohibitory clause, because it is a matter of civil institution, I profess not to feel the weight of the reason. * * * In a legal sense all contracts recognized as valid in any country may be properly said to be matters of civil institution, since they obtain their obligation and construction jure loci contractus."
This doctrine has again been taken up and acceded to by Chancellor Kent in his Commentaries, and has been generally received as settling the question.
Judge Story says that it is perfectly clear that:
"Any law which enlarges, abridges, or in any manner changes the intention of the parties resulting from the contract necessarily impairs it. The manner or degree in which this change is effected can in no respect influence the conclusion, for whether the law affect the validity, the construction, the duration, the discharge or the evidence of the contract, it impairs its obligation, though it may not do so to the same extent in all the supposed cases. * * * A fortiori, a law which makes the contract wholly invalid or extinguishes it is a law impairing it. * * * If there are certain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by new laws, so that there remains no means of enforcing its obligation and no redress, such an abolition of all remedies operating in præsenti is also an impairing of the obligation of such contract."
The majority opinion also concedes that if the statute in question were a strictly remedial law, as Justice McCLELLAN, in his dissent, holds it to be, it would then be construed to operate upon past as well as future acts and transactions. I am not willing to go so far. This would have been true under our Constitution of 1875, but it is not so under that of 1901. The present Constitution contains an express provision (section 95) against such retrospective legislation even as to matters which relate to the remedy only, and not to the right. While I concede, of course, that the case in hand does not fall within the letter of that provision, yet it does fall within the spirit, and the amendment shows the intent to further prevent the passage of retrospective laws, even if they do go to the remedy only, and not to the rights of the parties. Suppose the bill for divorce had been filed before the passage of the statute in question, and was then pending; then the case would be within the letter of the prohibition, and no relief could be granted, because it would both confer a right of action when none theretofore existed, and take away a defense the respondent had. The complainant would then inevitably fail, and her bill be dismissed, and the decree would be res judicata. Is it possible that she is in a better position than she would have been had she filed her bill at the earliest possible moment? So far as the letter of the Constitution is concerned, she is; but I do not believe that she is, so far as the spirit of the Constitution is concerned. If so, then the provision can be evaded by all plaintiffs to pending actions, by dismissing the suit and at once instituting another, based on the same state of facts as in the action dismissed. In other words, the facts stated no cause of action when they were fully executed, and when the first suit was brought; but since the acts were committed, and since suit brought, the Legislature has said that those facts do constitute a cause of action. I cannot proceed with this suit because the Constitution has said in terms that the Legislature should not thus give a cause of action, or take away a defense if suit was brought; so I will just avoid the effect of it by dismissing my first suit and bringing another just like it.
If the statute in question could be made to apply to past facts and transactions, in order to divorce the wife, it could be extended to the husband as well. If it should be so extended to the husband, it would seem to more surely impair the obligation of the marriage contract, as well as to give a cause of action and take away an existing defense. It would seem, then, to go to destroy a right as well as a remedy or defense. This court has uniformly held that marriage is a civil contract as between the parties thereto, though as to society it may be a mere status. This court in a recent case, per Sayre, J., said:
"As between the immediate parties, marriage is in law a civil contract, and is everywhere held to be a valuable consideration. But it is valuable in ways differentiated from that valuable consideration which will support a contract in that ordinarily the word 'valuable' signifies that the consideration so described is pecuniary, or convertible into money. To this marriage is an exception. 1 Parsons' Contr. 468." Nelson v. Brown, etc., 164 Ala. 397, 405, 51 So. 360,363 (137 Am. St. Rep. 61).
The right to alimony has always been held a matter of absolute right on the part of the wife, and not a matter of mere grace; yet alimony cannot be awarded after an absolute divorce is once granted. If a husband should be divorced from his wife by the Legislature, or by a court authorized to divorce him, without allegation or proof of fault on his part, then she would certainly be deprived by the Legislature of her rights acquired by the marriage contract.
I am not yet willing to hold that either the Legislature or a court can annul a marriage contract, without any breach thereof and without fault by one of the parties thereto.