Hall v. Baylous , 109 W. Va. 1 ( 1930 )

When this case was decided all of the members of the court concurred in the decision and in JUDGE WOODS' very able opinion, although JUDGE LITZ and I were not very well satisfied with the result. After having given the matter still further consideration and study on petition for rehearing, we desire to withdraw our concurrence in the decision and to note our dissent.

I am constrained to dissent because in my opinion the construction which the court has given to section 14 of chapter 64 of the Code creates an incongruous situation when considered in the light of the provisions of section 1 of the same chapter of the Code. The incongruity is this: The appellant, under the court's construction of said section 14, is placed in a worse situation by reason of having remarried within six months after having obtained a divorce from the bonds of matrimony from her first husband than if she had married a second husband while the bonds of matrimony still existed between her and her first husband. If she had married a second husband without divorce from the first one, the second marriage would have been "void from the time * * * so declared by a decree of divorce or nullity." Not having committed that grievous impropriety, but having committed the less reprehensible offense of remarrying within the inhibited period fixed by the court in her divorce decree, her second marriage, according to the majority construction of the statute, is void ab initio. She is worse penalized for the lesser indiscretion than she would be for the greater one.

Of course if the word "void" as used in the said section 14 must be construed in its literal and strict and absolute sense without regard to any other provisions of the statute and without regard to the legislative history of Virginia and West Virginia with reference to inhibited marriages, then the conclusion which the court has reached in the foregoing opinion is unanswerable; but if section 14, when considered in connection with other statutory provisions and in the light of former enactments, can be interpreted in accordance with recognized tenets of construction so as to relieve what I consider to be the glaring incongruity above pointed out, it is my opinion that such interpretation should be adopted.

We took section 1 of chapter 64 of the Code from the Code of Virginia, but we changed the section in an important particular. That section as found in the Virginia Code of 1860, chapter 109, section 1, declares marriages between white persons and negroes and marriages which are prohibited by law on account of either of the parties having a former wife or husband then living to be "absolutely void, without any decree of divorce, or other legal process." The Virginia statute then declares the other inhibited marriages to be "void from the time they shall be so declared by a decree of divorce or nullity, or from the time of the conviction of the parties" for such offense. When we adopted that section the provision which declared the first two classes of inhibited marriages to be void ab initio, was changed, and those two classes of marriages were included with the other inhibited marriages, and all were made void from the time they were so declared by a decree of divorce or nullity. Thus there was plainly evinced the policy of the new commonwealth to place solely in the courts the right to declare inhibited marriages void, and that such marriages should not be deemed void until so declared. No other statute bearing on the subject was enacted until 1915. Now, the policy of the state having been thus clearly manifested, and having remained unimpaired for nearly half a century, should not that policy be looked to in considering the later section? The books so indicate. "Prior legislation on the subject, the entire legislation at the time, and the reasonableness or otherwise of one construction or the other, are matters competent for consideration." 25 Ruling Case Law, p. 1029; Coal Coke R. Co. v. Conley, 67 W. Va. 129, 179, 67 S.E. 613. And there is no rule of statutory construction more firmly established than the one which requires that current statutes in pari materia, should be considered together. "Statutes relating to the same subject, whether passed at the same or different times, must be read and construed together." State v. Reed, 107 W. Va. 563, pt. 2, syl., 149 S.E. 669.

In the case of State v. Snyder, 89 W. Va. 96, 108 S.E. 588, this court held that the remarriage of a divorced person contrary to the prohibition in the divorce decree against remarriage within a specified time renders the offending party "criminally liable the same as if no divorce had been granted." Thus, in so far as criminal liability is concerned, the two classes of cases are on the same plane; that is to say, a divorced person who remarries within the prohibited period, and a married person who contracts a second marriage while the first spouse is living and undivorced are alike dealt with as bigamists. So much for the criminal side. There we find consistency. I would maintain consistency on the civil side as well, by the simple process of construing the two statutes together, in the light of the legislative history of this commonwealth and of the Old Dominion. I would read into the later statute the words "from the time it is so declared by a decree of divorce or nullity." In so doing I would rely upon another basic principle of statutory construction, namely, that when a statute is susceptible of two constructions, one of which involves inconsistency and the other does not, the latter should be adopted. "But when the design of the legislature is not clearly apparent, it is always to be presumed that a statute was intended to have the most reasonable and beneficial operation that its language permits. And when a statute is ambiguous in terms or fairly susceptible of two constructions, the injustice, unreasonableness, absurdity, hardship, or even the inconvenience which may follow one construction may properly be considered and a construction of which the statute is fairly susceptible may be placed on it that will avoid all such objectionable consequences and advance what must be presumed to be its true object and purpose." 25 Ruling Case Law, p. 1017. See also, Lewis' Sutherland, Statutory Construction (2d Ed.) vol. II, § 490.

For these reasons I would reverse the decree of the trial chancellor.

I am authorized to state that JUDGE LITZ concurs in this position.