State Ex Rel. Progress v. Court , 53 Nev. 386 ( 1931 )

With all due respect for the judgment of my associates, I think that their conclusion that the statute enacted by the last legislature creating an additional cause for divorce was intended to be retroactive in its operation is not warranted by the language of the statute. The statute in part (Stats. 1931, c. 111) reads:

"SECTION 1. Divorce from the bonds of matrimony may be obtained * * * 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."

It may be conceded that the language "have lived apart" is broad enough to admit of retroactive operation, but, as said in regard to the same language in Barrington v. Barrington, 200 Ala. 315,76 So. 81, it does not necessarily or clearly include such a case.

In Nelson on Divorce and Separation, vol. 1, in section 12, the author says: "A divorce law will not be given a retrospective operation even though the terms might admit of it."

Whether the statute was designed to reach into the past and make an innocent act a ground for divorce is, of course. the business of the legislature; ours is to determine whether, under well-settled rules of construction, the legislature intended a throw-back of this character, for there is no constitutional inhibition as to retroactive legislation.

But in face of the strong presumption to be indulged in favor of the prospective operation of a statute, something more than the broad scope of general language ought to be required to make clear and unmistakable the intent to give a law a retroactive effect.

In the absence of a specific designation or language from which the implication is absolute that retroactive operation was intended, prospective construction should be the rule. This rule has been almost universally recognized and has been recognized and declared by this court for over half a century. Milliken v. Sloat, 1 Nev. 573; Wildes v. State, 43 Nev. 388,187 P. 1002, 1003; Virden v. Smith, 46 Nev. 208, 210 P. 129. In Milliken v. Sloat, supra, the court said: "The settled and approved doctrine at this day is, that such power exists [power to enact retrospective legislation] outside of an express and positive constitutional inhibition in certain enumerated cases (as for instance, laws of a criminal nature, or laws impairing the obligation of contracts, which are positively inhibited), and that the only check upon this power seems to be that the courts will not give a retrospective interpretation to statutes unless the intention of the law-makers is so plain, either by express words, or by unavoidable implication, as not to fairly admit of the opposite construction. To state the proposition with all the clearness we can command, and to avoid misapprehension, our understanding of the law on this subject as now settled is, that the primary rule of construction is to give a statute a prospective effect, but that the rule must yield if the retroactive intention is so plainly expressed or manifest as to leave no doubt upon the mind."

Does this presumption yield to the words "have lived apart?" Do they remove all doubt from the mind that retroactive effect was intended? I am doubtful. My associates say: "We are at a loss to see how the legislature could more clearly, strongly, and imperatively have expressed its intention that the act should be given a retroactive effect." It is not difficult for me to see how language more certain could have been employed to express the intent to give the new ground for divorce retroactive operation. If the legislature had said, "this statute shall be retroactive as well as prospective in its operation," or had said, "a husband and wife who heretofore have lived apart," or, "who hereafter shall live apart," the intent would have been clear. Had such terms been employed, the awakening of the female spouse in this case, who is presumed to know the legal effects of her acts as affecting her marital status, and who therefore knew that her living apart from her husband was innocent so far as furnishing any cause for divorce, to a realization that her innocent act is now a ground for divorce, for which she is held accountable, would not have been so rude.

This court in Wildes v. State, supra, quoted approvingly the words of Paterson, J., in United States v. Heth, 3 Cranch, 399,2 L. Ed. 479, as follows: "This rule ought especially to be adhered to, when such a construction (retrospective operation) willalter the pre-existing situation of parties, or will affect orinterfere with their antecedent rights, services, and remuneration, which is so obviously improper that nothing ought to uphold and vindicate the interpretation but the unequivocal and inflexible import of the terms and the manifest intention of the Legislature." I have supplied the italics.

And from this judicial declaration of our highest court it is clear that there should be no relaxation of the rule in divorce cases. Authority in support of its application generally in such cases, or particularly to a case of this character, is ample and satisfactory. 19 C.J. p. 20, 26, 38; Barrington v. Barrington,200 Ala. 315, 76 So. 81, 84; Pierce v. Pierce, 107 Wash. 125,181 P. 24, 25; Carson v. Carson, 40 Miss. 349; Jarvis v. Jarvis, 3 Edw. Ch. (N.Y.) 462; Scott v. Scott, 6 Ohio, 535; Buckholts v. Buckholts, 24 Ga. 238; Sherburne v. Sherburne, 6 Me. (6 Greenl.) 210; Given v. Marr, 27 Me. 212; Tufts v. Tufts, 8 Utah, 142,30 P. 309, 16 L.R.A. 482; Burt v. Burt, 168 Mass. 204, 46 N.E. 622; Giles v. Giles, 22 Minn. 348.

In 19 C.J. p. 38, it is said: "A statute declaring the causes for which divorce may be granted is ordinarily to be given a prospective operation only and does not authorize a divorce for a specified cause which occurred before the statute was enacted."

The cases of Barrington v. Barrington and Pierce v. Pierce are strong cases and are both directly in point with the case at bar. Each was a divorce case and in each divorce was denied. In the Barrington Case the statute construed read: "Or when the wife without support from him has lived separate and apart from the bed and board of the husband for five years next preceding the filing of the bill, and she has bona fide resided in this state during all of said period." In the Pierce Case the statute read: "Divorces may be granted by the superior court on application of the party injured, for the following causes: * * * 8. Where the parties are estranged and have lived separate and apart for eight years or more and the court shall be satisfied that the parties can no longer live together." In each of these cases the court applied the rule that has been stated and held that retroactive effect could not be given to the statute.

In the majority opinion in the instant case stress is placed upon the fact that there was a dissenting opinion in each of the foregoing cases. It appears, however, that in the Pierce Case four of the five justices participating concurred in the prevailing opinion, and in the Barrington Case three of the four justices participating concurred.

The majority opinion in the instant case cites the cases of Hurry v. Hurry, 141 La. 954, 76 So. 160, 161; Long v. Long,135 Minn. 259, 160 N.W. 687, L.R.A. 1917c, 159; and Cole v. Cole,27 Wis. 531. In the Wisconsin case the statute involved was different from ours in that it read, "shall have voluntarily lived entirely apart," instead of "have lived apart" as ours is phrased. But be that as it may, it appears from the opinion in Cole v. Cole that there was applied a different rule than that which has been recognized and applied in this jurisdiction for more than fifty years. The court reversed the presumption. The court said: "There is nothing in the language of this statute which would seem to require that the five years' separation must have occurred after the law took effect, and we must presume that it was intended to apply to present separations as well as future ones."

As stated in Barrington v. Barrington, supra, the value of the case of Cole v. Cole "as an authority is destroyed by reason of the fact that the Wisconsin court applied a rule of construction which is the exact antithesis of ours, viz, retrospective operation is there presumed because it is not forbidden by the language of the act itself." In the case of Long v. Long the statute involved was not one dealing with the separation of husband and wife. In the case of Hurry v. Hurry the statute construed reads: "That when married persons have been living separate and apart for a period of seven years or more. * * *"

I am not satisfied with the reasoning upon this statute. The court said it is impossible to say that the legislature in act No. 269 intended to refer only to married persons who shall hereafter live separate and apart for a period of seven years or more. This seems to be viewing the statute in the same way as in Cole v. Cole. The rule is, not that prospective operation will be presumed when it cannot be said that it was not intended, but that retroactive operation will not be presumed unless the intent to give a statute such effect is manifest.

There is nothing on the face of the statute before us to relate back beyond the date of its enactment except the words "have lived apart." They do not meet the requirement of the rule. The provision that the act should take effect and be in force from and after its passage and approval, as stated by counsel, merely makes the effective date of the statute in question March 23, 1931, instead of July 1, 1931.

For the reasons given I have been impelled to dissent from the majority opinion of the court.