Cushman v. Cushman

• Court: Washington Supreme Court
• Writing for the Court: MORRIS, J.
• Citation: Cushman v. Cushman, 80 Wash. 615, 142 P. 26 (Wash. 1914)
• Decision Date: 27 July 1914
• Docket Number: 11846.
• Parties: CUSHMAN v. CUSHMAN.

142 P. 26

80 Wash. 615

CUSHMAN v. CUSHMAN.

No. 11846.

Supreme Court of Washington

July 27, 1914

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Thomas J. Cushman against Merrill Cushman. Judgment for plaintiff, and defendant appeals. Reversed.

Longfellow & Fitzpatrick, of Seattle, for appellant.

Revelle Revelle & Revelle, of Seattle, for respondent.

MORRIS J.

The parties to this action were married July 3, 1913, the respondent being then 18 and appellant 17 years of age. Both parties at the time of this marriage were apparently of full age, respondent being a strong, robust-appearing young man six feet tall, and weighing 170 pounds. The marriage was without the knowledge or consent of the parents of either of the parties. Respondent, at the time of the issuance of the license, produced a witness who made the required affidavit that both of the parties were of full age. It was agreed that the marriage should be kept a secret from the respective parents, and this agreement was kept until July 28th, when respondent's parents were informed of the marriage, appellant's parents having learned of it a few days previous. The marriage was fully consummated, and as a result thereof the appellant became pregnant, but suffered a miscarriage before the case came on for trial below. On August 1st respondent commenced this action, seeking an annulment of the marriage upon the ground that he was under legal age at the time of the marriage and had not the written consent of his parents. The lower court made findings from which we quote:

'That said marriage is void for the reason that the plaintiff at the time of the issuance of the marriage license and on the date on which he and the defendant were united in marriage was not of legal age, he being then of the age of eighteen years, and for the further reason that said marriage license was issued and said marriage contract entered into between the plaintiff and defendant without the consent of plaintiff's parents or either of them.'

Upon this finding, a decree of annulment was based. The soundness of this decree is to be determined from the proper construction to be given some of our statutes relating to marriage, particularly sections 7150, 7162, and 7164, Rem. &amp Bal. Code. These statutes are as follows:

Sec. 7150. Marriage is a civil contract which may be entered into by males of the age of twenty-one years, and females of the age of eighteen years, who are otherwise capable.'

'Sec. 7162. When either party to a marriage shall be incapable of consenting thereto, for want of legal age or a sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage is voidable, but only at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed.'

'Sec. 7164. The county auditor, before a marriage license is issued, upon the payment of a license fee of two dollars, shall require each applicant therefor to make and file in his office upon blanks to be provided by the county for that purpose, an affidavit showing that such applicant is not feeble-minded, an imbecile, epileptic, insane, a common drunkard, or afflicted with pulmonary tuberculosis in its advanced stages: Provided, that in addition, the affidavit of the male applicant for such marriage license shall show that such male is not afflicted with any contagious venereal disease. He shall also require an affidavit of some disinterested credible person showing that neither of said persons is an habitual criminal, and that the female is over the age of eighteen years and the male is over the age of twenty-one years: Provided, that if the consent in writing is obtained of the father, mother, or legal guardian of the person for whom the license is required, the license may be granted in cases where the female is under the age of eighteen years or the male is under the age of twenty-one years: Provided, that no consent shall be given, nor license issued, unless such female be over the age of fifteen years. Such affidavit may be subscribed and sworn to before any person authorized to administer oaths. Any one knowingly swearing falsely to any of the statements contained in the affidavits mentioned in this act shall be deemed guilty of perjury and punished as provided by the laws of the state of Washington.' To support the decree it must be held that, within the meaning of section 7162, incapacity of consent for want of legal age means males under 21 and females under 18, and that by section 7150 the common-law age of consent has been raised to 21 years in males and 18 in females. In our opinion such is not the proper construction of these statutes. It is difficult to discover how section 7150 in any wise changed the rule of the common law, or made the law otherwise than it would have been had no such statute been enacted. To declare that marriage is a civil contract adds nothing new to the law as it existed prior to the enactment of this statute, nor is any new privilege extended in permitting males of 21 and females of 18 to enter the marriage relation, since under our law, section 8743, Rem. & Bal. Code, males become of full age at 21 and females at 18 for all contractual purposes, and require no permissive statute to render them competent to enter the marriage state when they reach the ages of 21 and 18, respectively, and such had been the law in this territory for 12 years prior to the enactment of section 7150. This statute was originally sections 1 and 5 of the act of 1854 (Laws 1854, p. 404) regulating marriages, and as then enacted read as follows:

'Sec. 1. That marriage is declared to be a civil contract.'

'Sec. 5. Males under the age of twenty-one and females under the age of eighteen shall not be joined in marriage without the consent of parents, guardian or other person under whose government such minor may be.'

The act of 1854 was amended in 1866 (Laws 1865-66, p. 80), section 1 of that act being section 7150 as we now have it, while section 5 was left out of the amendatory act, which provided for the issuance of a marriage license in all cases and prohibited the issuance of such license if the female was under the age of 16 and the male under the age of 21, without the consent of parents or guardian. This last section contained this proviso:

'But if either of the parties being of an age capable of contracting marriage have no parents or guardian resident within the territory, and the female has resided within this territory for a period of three months next preceding such application, the license may issue if otherwise proper without the consent mentioned in this section'

--the difference between these two acts being that the act of 1854 prohibited the marriage of males under 21 and females under 18 without the consent of parents or guardian, while the act of 1866 prohibited the issuance of a license to males under 21 or females under the age of 18 without the consent of parents or guardian. The proviso of the latter act was a plain recognition that infants were capable of contracting marriage, and, there being no limitation as to the age of such capacity, we must find such limitation in the common-law rule of 12 and 14 years. This section was amended in 1867 by raising the age of the female to 18 years and leaving out the proviso. This continued to be the law until the act of 1909, when these sections were again amended, appearing as they now read. Section 8743, fixing the age of majority of both males and females as it now exists, was enacted in 1854. So that, when in 1866 the Legislature declared that males of 21 and females of 18 years of age were eligible to matrimony, it made no new provision in the law of the then territory, for it had been the law since 1854 that males of 21 and females of 18 were of age for all contractual purposes, including matrimony. None of these sections prohibits the marriage of minors; nor do they attempt to fix the agewhen minors shall become capable of marriage; nor do they in any way change the common-law rule of consent from 14 in males and 12 in females. In this respect our law is analogous to the Iowa statute, which provides that males of 18 years and females of 14 years may be joined in marriage, which statute was held to be merely cumulative and not to abrogate the common-law rule fixing the age of marriage consent at 14 for males and 12 for females. In so holding it was said, in Goodwin v. Thompson, 2 G. Greene (Iowa) 329:

'Statutes will not be construed to have an effect beyond that which is to be gathered from the plain and direct import of the terms used in declaring them. Effect by implication will not be given to them, so as to change the well-established principle of common law. The act regulating marriages within this state merely declares what description of persons 'may be joined in marriage.' * * * There is no prohibition of the marriage of a minor, who may be under 14 years of age, expressed. The statute is merely cumulative in its operation, and cannot have the effect of repealing the common law, so as to render the contract void. Such has been the decision of this court, as well as the courts of last resort, in nearly all the states of the Union, in declaring the effect of statutes similar to ours.'

So in our statute there is no prohibition against the marriage of males under the age of 21, nor of females under the age of 18. For it cannot be said that, because a statute permits persons of full age to contract marriage, persons of less than full age may not. There is neither a direct inhibition nor, as was said in the Iowa case, will such effect be given by...