The late Chief Justice Hart would frequently say, in consultation, when the others were about to invade the province of the legislature: "Boys, if you are going to make a statute, make a darn good one." In my opinion the majority in this case have amended the statute so as to make it meaningless, and, instead of making a good one, have emasculated and destroyed whatever good there was in it. And this, too, because of the misconception that the statute was unwise or against some supposed public policy. I have always been of the opinion that the public policy of the state is declared by the Legislature, and that whether a given act of the legislature is wise or otherwise is a matter of no concern to the courts. And as said in McClure v. Topf Wright, 112 Ark. 342,166 S.W. 174, "it is not to be doubted that the legislature has the power to make the written laws of the state, unless it is expressly, or by necessary implication, prohibited from so doing by the Constitution." If the legislature has the power to make the written laws of the state, then the courts, under the guise of construction ought not to amend or change the meaning of all unambiguous statute.
The act of 1937, 4381, Pope's Digest, provides an additional ground of divorce. It provides: "Seventh. Divorce from the bonds of matrimony may be obtained, in addition to the causes now provided by law, and subject to the same procedure and requirements, for the following cause: When the husband and wife have lived apart for three consecutive years without cohabitation the court shall grant an absolute decree of divorce at the suit of either party." While the act of 1937 re-enacted the whole of 3500, Crawford Moses' Digest, including the six grounds of divorce enumerated therein, the legislature evidently intended to enact a new and additional ground, else it would not have said, "in addition to the causes now provided by law." The above-quoted language of the statute is too plain for construction. It is clear and unambiguous. It simply *Page 44 means what it says, that is, that either party may get a divorce from the other on allegation and proof that they have lived apart for three consecutive years without cohabitation. It is difficult to perceive how the legislature could have used simpler or plainer language. Yet the majority profess to have found it ambiguous and have amended it to read: "When they have lived apart for three consecutive years," and that "this contemplates an agreement or understanding between the parties that they will act in concert of purpose, voluntarily living apart for three years. At the end of such period either may obtain a divorce from the other by alleging and establishing mutuality of such separation." Just what the word "they" adds to this construction is difficult to understand, as it must refer to "husband and wife." And how the language of the act as changed "contemplates an agreement or understanding between the parties that they will act in concert of purpose, voluntarily living apart for three years" is not explained. It is just not in the act. The act does not say when the husband and wife (or "they") have lived apart for three consecutive years by consent, agreement or understanding between them. It does not say they must "act in concert of purpose" or "voluntarily." It simply says when they have done so no matter how. So it appears to me that the majority have amended the act so as to make it meaningless, and too in the very teeth of 4389 of Pope's Digest which provides: "If it shall appear to the court that the adultery, or other offense complained of, shall have been occasioned by the collusion of the parties, or done with the intent to procure a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of the adultery, or such other offense or injury complained of in the bill, then no divorce shall be granted or decreed." This section was 8 of chapter 51 of the Revised Statutes, and has been the law in this state since 1838, exactly 100 years, during all of which time it has been sustained and upheld in many cases. But it now appears to be no longer the law, but in effect has been (abrogated by the majority opinion which holds that under the act of 1937 *Page 45 a divorce may be obtained by collusion, consent, agreement or understanding, although the act itself says that the new ground of divorce shall be "subject to the same procedure and requirements" as now provided by law. One of the requirements then provided by law was that there should be no collusion, as provided in 4389.
Another matter on which I disagree with the majority is the construction given the word "shall" in the clause of the act that "the court shall grant an absolute decree," etc. I think this word was used in the sense of "may", and that it was not the legislative intent to take away the discretion of the court. I do not think so, because, from a reading of the whole act, it is not borne out. Reading the whole of 4381 of Pope's Digest, it will be seen that it begins by saying, "the chancery court shall have power to dissolve and set aside a marriage contract . . . for the following causes." It then enumerates seven grounds for divorce, and the seventh ground provides: "Divorce from the bonds may be obtained," etc. So it will be seen that it was not the legislative intent, in the use of the word "shall", to take away the discretion of the court in the matter of granting or refusing to grant a decree of divorce. The word "shall" is frequently construed to be used in its permissive sense, just as the word "may" is frequently used in a mandatory sense. Washington Co. v. Davis,162 Ark. 335, 258 S.W. 324; Root v. O'Brien, 164 Ark. 156,261 S.W. 291; Little River Co. v. Buron, 165 Ark. 535,265 S.W. 61; Bush v. Martineau, 174 Ark. 214,295 S.W. 9; Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729; Stranahan, Harris Otis v. Van Buren Co., 175 Ark. 678,300 S.W. 382.
Similar statutes have been passed in a number of other states, and the courts of those states have construed them in accordance with the plain, unambiguous meaning of the statute. The state of Nevada has a statute almost identical with ours. It reads as follows: "Section 1. Divorce from the bonds of matrimony may be obtained, in addition to the causes now provided by law, and subject to the same procedure and requirements, for the following cause: *Page 46
"When the husband and wife have lived apart for five consecutive years without cohabitation, the court may at its discretion grant an absolute decree of divorce at the suit of either party." The only difference in our statute and the Nevada statute is in the words italicized in the Nevada statute. Our statute requires three years separation, whereas that requires five. Our statute uses the word "shall", whereas the Nevada statute uses the words "may at its discretion." If the word "shall" as used in our statute, should be construed as I think it should for the word "may", then there would be no difference between our statute and the Nevada statute, except the time required. Construing this statute, the Nevada court in Herrick v. Herrick, 55 Nev. 59,25 P.2d 378, used this language: "The legislative concept embodied in the statute is that when the conduct of parties in living apart over a long lapse of time without cohabitation has made it probable that they cannot live together in happiness, the best interest of the parties and of the state will be promoted by a divorce. The policy and purpose of such statutes are succinctly stated by the compiler of the note in 51 A.L.R. at p. 763, as follows: `The public policy of these separation statutes is based upon the proposition that where a husband and wife have lived apart for a long period of time, without any intention ever to resume conjugal relations, the best interests of society and the parties themselves will be promoted by a dissolution of the marital bond. This is a comparatively new idea in the law of domestic relations and divorce.'"
Rhode Island has a statute requiring ten years separation and in Guillot v. Guillot, 42 R.I. 230,106 A. 801, the court held that the granting of a divorce under that statute does not depend upon the previous conduct of the petitioning party, and that while testimony of a recriminating character may be admitted, it should not be binding upon or control the action of the court, but may be considered by way of aiding the court in the exercise of its discretion.
The state of Louisiana has a similar statute and in Goudeau v. Goudeau, 146 La. 742, 84 So. 339, the court *Page 47 said: "One defense is that the plaintiff wife cannot avail herself of this law because the separation is wholly attributable to her, she having refused to live with defendant, although he was anxious that she should do so. This defense is without merit. Said statute does not require that the plaintiff spouse should be without fault." See, also, Hava v. Chavigny, 143 La. 365, 78 So. (La.) 594.
Kentucky has a similar statute which provides as a cause for divorce the "living apart without any cohabitation for five consecutive years next before the application." In the case of Best v. Best, 218 Ky. 648,291 S.W. 1032, the wife answered that the separation for which the husband brought his suit for divorce was caused by his cruel and inhuman treatment. In answer to that contention the court said: "But, if that were true, it would not defeat the particular statutory ground, since it is available regardless of the fault of the parties or either of them causing the separation."
The state of Washington has a similar statute which provides that the injured party may obtain the divorce and the court construed its statute to apply only to the obtaining of the divorce by the injured party, in Pierce v. Pierce, 120 Wash. 411, 208 P. 49. See, also, Cook v. Cook, 164 N.C. 272, 80 S.E. 178, 49 L.R.A., N.S., 1034.
Since our statute appears to have been adopted from the Nevada statute, the construction placed upon the Nevada statute by the Nevada court is presumed to have been adopted with it, and should be followed by this court. White v. Taylor, 187 Ark. 1, 58 S.W.2d 210; Beaty v. Humphrey, State Auditor, 195 Ark. 1008,115 S.W.2d 559.
The only decision that appears to be in any way out of line with all of the other states having similar statutes is the case of Pierce v. Pierce, supra, but the decision in that case was based upon the peculiar language used in the statute of that state. All of the other decisions on related statutes are to the effect as said in North v. North, 113 So. (La.) 852: "The act under *Page 48 which this suit is brought introduced a new and independent cause for divorce in this state, and that act does not take into consideration the question of what cause produced the separation or on whose fault the separation was brought about. The only requirement of the statute as a condition precedent to granting the divorce is that the parties have actually and in fact lived separate and apart and in different domiciles for a period of seven years complete . . ."
The second ground of our divorce statute provides that a divorce may be obtained "where either party willfully absents himself or herself from the other for a space of one year without a reasonable cause." Under this provision, the injured party may get a divorce on the ground of willful desertion for one year only. Certainly the Legislature, by adding the seventh ground of divorce, the ground now under consideration, intended to add a new ground of divorce without taking into consideration who was at fault in the original separation. Under that second ground, this court held in Reed v. Reed, 62 Ark. 611, 37 S.W. 230, that a separation by consent is not a willful desertion. In the case at bar, it is undisputed that the parties had lived apart for more than three years before this suit was brought, without cohabitation. On this ground the court granted a decree of divorce and I am of the opinion that his act in doing so should be affirmed.
I, therefore, respectfully dissent from the opinion of the majority and I am authorized to say that Mr. Justice BAKER and Mr. Justice DONHAM concur in this dissent.