Barrington v. Barrington, 3 Div. 241

CourtSupreme Court of Alabama
Citation76 So. 81,200 Ala. 315
Docket Number3 Div. 241
Decision Date15 February 1917

76 So. 81

200 Ala. 315


3 Div. 241

Supreme Court of Alabama

February 15, 1917

Rehearing Denied May 31, 1917

Appeal from Chancery Court, Montgomery County; O.S. Lewis, Chancellor.

Suit for divorce by Mary W. Barrington against R.L. Barrington. Decree for plaintiff, and defendant appeals. Reversed, rendered, and remanded.

McClellan, J., dissenting.

Beckwith & Davison, of Montgomery, and C.W. Collins, of Washington, D.C., for appellant.

Hill, Hill, Whiting & Stern, Tilley & Elmore, and Steiner, Crum & Weil, all of Montgomery, for appellee.


By section 3795 of the Code the chancery court is authorized to grant divorces from the bonds of matrimony "in favor of the wife when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence." By the act approved September 10, 1915 (Sess.Acts 1915, p. 370), the quoted section was amended by the addition of the following:

"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."

The complainant filed her bill of complaint on January 25, 1916, praying for a divorce from the respondent, and alleging that complainant "without support from him has lived separate and apart from the bed and board of the said R.L. Barrington since, to wit, January 12, 1911, same being for five years next preceding the filing of this bill, and she has bona fide resided in this state during all of said period."

Numerous grounds of demurrer are assigned to the bill of complaint, which, however, [76 So. 82] present but two essential objections to its maintenance: (1) The statute is not retrospective in its operation, but requires a separation by the wife from the husband for five years from and after the date of its enactment; and (2) the statute is unconstitutional because it denies to the husband due process of law, and also the equal protection of the law.

Remedial statutes--those which do not create, enlarge, diminish, or destroy vested rights--are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.

But a statute which gives a new legal effect to conduct or conditions occurring or existing prior to its enactment, thereby imposing upon any person unanticipated disabilities or alterations of legal status, is retrospective in a sense which is odious to the law, and, as to such operation, is strongly disfavored by the courts, even though it does not offend the Constitution by impairing the obligation of a contract or by creating a crime or punishment ex post facto. This disfavor has everywhere found expression in a rigorous rule of construction which denies retroactive effect to such a statute unless by its express terms, or by unmistakable implication, the Legislature must have so intended. Our own court has spoken many times upon this subject:

"The future is the appropriate field of legislation; and a statute is never allowed to have a retrospective operation unless clearly so expressed, or unless such implication must be made to give effect to the manifest intent of the Legislature." Philips v. Gray, 1 Ala. 226
"It is a rule of construction, founded on the principles of general jurisprudence, that a statute is not to have a retrospective effect beyond the time of its enactment. *** 'The very essence of a new law is a rule for future cases.' " Boyce v. Holmes, 2 Ala. 54, 56.
"A construction which gives to a statute a retrospective effect has always been esteemed odious, and will never be indulged unless the language employed requires it. Such statutes are justly considered as violative of every sound principle. Dwar. on Stat. 681." Kidd v. Montague, 19 Ala. 619, 625.
"Courts, on the plainest considerations of justice, are averse to the retroactive operation of statutes, and confine them to cases arising after their passage, unless the words of the statute, or a clear legislative intent deducible from them, compels an application to the past as well as the future." Eskridge v. Ditmars, 51 Ala. 245, 250.
"Such statutes are offensive to the principles of sound and just legislation, and it is of these the authorities to which we have been referred, use the term 'odious,' and other epithets expressive of judicial opprobrium." Ex parte Buckley, 53 Ala. 42, 55.
"Inasmuch as legislation of this character is very liable to abuse, and frequently oppressive in its effects, the courts have uniformly adopted the rule that statutes should generally be construed to operate in the future only, unless the legislative intent appears clear from their terms that they are to have a retrospective operation. *** The rule is often stated to be that such a construction, when it operates to take away vested rights, whether legal or equitable, is not to be admitted, unless the implication is so clear as to be equivalent to an explicit declaration.' Osborn v. Nicholson, 13 Wall. 654, 662, 20 L.Ed. 689." Warten v. Matthews, 80 Ala. 429, 430.
"The question is, not the legislative power, but whether it was the intent, that the act shall be retrospective. On principles of general jurisprudence, a statute is not to have effect beyond the time of its enactment; and to give it retroactive operation, there must be found therein clear and indisputable expressions of such legislative design. When the words of a statute can be construed as intended to be prospective only, they will not be so construed as to give retroactive effect. The courts will 'always construe statutes as prospective and not retrospective, unless constrained to the contrary course by the rigor of the phraseology.' " New Eng.Mort.Sec. Co. v. Bd. Rev., 81 Ala. 110, 111, 1 So. 30, 31.

These expressions are, indeed, but legal platitudes, and we quote them, not to further establish a rule of elementary law, but to illustrate its perennial persistence in undiminished vigor and favor.

The legislative act here involved is not remedial in character, but gives legal effect to marital conduct and relations, by converting any complete separation between husband and wife for five years next before the filing of the bill of complaint, into an authorized ground of divorce in favor of the wife, if she has so lived without support from him. It falls fairly within the class of acts whose retrospective operation is so strongly disfavored by the law, and so consistently reprobated by the courts. To it we must therefore apply in its fullest vigor the canon of construction we are discussing, and our inquiry must be, Does the rigor of its language require that it be given retrospective operation? that is, in this case, that it shall give a new legal effect to past marital conduct, so that a pre-existent period of separation, four years and eight months, shall so supplement a subsequent period of four months as to complete the required five-year period within four months after the approval of the act. The amended statute authorizes a divorce "in favor of the wife when *** the wife without support from him has lived separate and apart from." It is certainly true that this language is broad enough, prima facie, to embrace any suit for divorce that might be thereafter filed, and does not exclude from operation to that end a statutory term of years begun howsoever long before the enactment of the law. But we cannot say that it necessarily or clearly includes such a case. The use of the verb in the present perfect tense is appropriate, and perhaps necessary to express the idea of completion merely--the perfection of the designated term in the abstract, rather than the mere lapse of time already passed in particular cases. Such a use of the perfect tense of verbs is not only appropriate but common.

It may be that courts should indulge the presumption that the draftsmen of legislative acts have used language with the nicest perception of its shadings of grammatical meaning, but such a presumption is, at best, [76 So. 83] but weak and inconclusive; "and so (as remarked by Mr. Endlich), as it has been seen that the strict grammatical sense of the language used by the Legislature may give way to a construction required by other rules of interpretation, words apparently importing a retroactive effect will yet, in the absence of other reasons supporting such literal construction, be so construed as to produce a prospective operation." Endlich on Tit. of Stat. § 272.

We cannot escape the conclusion that a just application of the rule of construction to this act must deny any legislative intendment of a retrospective operation. Counsel for complainant rely very strongly on the case of Cole v. Cole, 27 Wis. 531. There an existing divorce statute was amended by adding:

"Whenever the husband and wife shall have voluntarily lived entirely separate for the space of five years next preceding application for divorce, the same may be granted on the petition of either party."

Said the court:

"This law establishes a new ground of divorce, and is based upon the principle that where husband and wife have voluntarily lived entirely separate for a period of five years, the interest of society and public morality, as well as the good of the parties themselves, will be best promoted by a dissolution of the marriage relation. 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."

That decision supports the contention of complainant in this case, but its value as an...

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