Elliott v. Elliott

• Decision Date: 02 July 1873
• Parties: JOSIAH ELLIOTT v. ELLEN ELLIOTT.
• Court: Maryland Court of Appeals

38 Md. 357

JOSIAH ELLIOTT v. ELLEN ELLIOTT.

Court of Appeals of Maryland

July 2, 1873

APPEAL from the Circuit Court for Anne Arundel County, in Equity.

The bill of complaint in this case was filed on the 24th of February, 1872, by the appellee, and prayed for a divorce a vinculo matrimonii, from her husband, the appellant. The parties, who were colored persons, were married in February 1871; and the bill charges that in August of that year, the appellant deserted and abandoned the appellee, and cohabited with another woman, with whom he committed frequent acts of adultery. The husband answered admitting the allegations of the bill; and they were fully sustained by the proof in the cause. The woman herself, with whom the husband cohabited, was made a witness in the case and proved that he then lived with her as if he were her husband. On the 21st of June, 1872, the Court, (MILLER, J.,) passed a decree divorcing the complainant and the defendant a vinculo matrimonii, for and on account of the adultery of the latter; and being of opinion that it was a proper case for the exercise of the discretion vested in the Court by the Act of 1872, ch. 272, further decreed that the guilty party should not contract marriage with any other woman during the life-time of the complainant, and the bond of matrimony should not be deemed to be dissolved as to any future marriage of the said defendant, contracted in violation of the decree and of said Act of Assembly, or in any prosecution on account of such marriage.

From this decree the defendant appealed.

The cause was argued by Ferdinand Mullan and James H. Hodges, for the appellant.

And was decided by BARTOL, C.J., BOWIE, BRENT, GRASON, ALVEY and ROBINSON, J.

The Act of 1872, ch. 272, was not intended to be retrospective, and it is not to be doubted, as a rule of universal application that " no statute will be construed to be retrospective, unless such a purpose be plainly expressed;" and when the interpretation " is doubtful in respect to pre-existing contracts," it will be construed as operating prospectively. Baugher vs. Nelson, 9 Gill, 303; State, &c. vs. Norwood, et al., 12 Md., 206; Clark vs. Mayor and C. C. of Balto., 29 Md., 283; Medford vs Learned, 16 Mass., 216; Cooley's Constitutional Limitations, 370; Perkins vs Perkins, 7 Conn., 558.

It is true that the Legislature has the power in certain cases to pass retrospective laws, but then the intent must be too clear and plain to be mistaken. Is the language of the Act of 1872 too plain to be mistaken? The Act was passed on the 1st of April, but did not go into effect until the 1st of June following. If it was intended to be retrospective, why not have given it force from the date of its passage? Does it not seem as if the Legislature intended to give warning before it put into operation the new rule?

By reference to the facts of the case, it appears that the testimony was closed nearly two months before the Act became operative, and the offence for which this Act is invoked was committed prior to the 8th of March 1872--more than three months before the law was in force. Had the cause been submitted to the Court on the 11th of April, the day the commission was returned, no such decree at that time could have been passed. It is thus made manifest that the cause was governed and controlled by a law which did not exist when the cause was begun. When an action, either at Law or in Equity, has once begun, laws made subsequent to the beginning of the proceedings cannot control that action, no matter to what stage the cause has progressed; the same principle must with stronger force apply when the testimony in the cause has been closed and the commission returned. Broom's Legal Maxims, 35, 36.

If this law is intended to be retrospective, and was for the purpose of punishing the adulterer for acts, committed before its passage, it violates both the Constitution of the State and the United States. Art. 17 of the Declaration of Rights; Art. 2, sec. 10, clause 1, of the Constitution of the U. S. The Act in question is an ex post facto law. What was the object of the Legislature in passing the law? Was it not intended as a punishment to deter parties from forgetting their marriage vows? And when it operates upon what has already been done, it becomes an ex post facto law.

The Court, by its decree, possessed no authority to prevent any future marriage between the appellant and another party, because, the law in operation at the time the alleged offence was committed, did not prohibit the appellant from entering into a matrimonial contract. The Act in giving the Courts the power of absolving one party from his matrimonial obligations, and prohibiting the other from contracting any future marriage, is, so far as this particular case is concerned, ex post facto, because it aggravates and makes greater the offence than it was when committed. It also changes the punishment and inflicts greater punishment than the law annexed to the crime when committed; and it alters the situation of the appellant, to his disadvantage, in relation to the alleged offence or its consequences. Calder and Wife vs. Bull and Wife, 3 Dallas, 390; United States vs. Hall, 2 Wash. C. C. Rep., 366; Locke vs. New Orleans, 4 Wall., 177; Cummings vs. State of Missouri, 4 Wall., 277, 325; Watson, et al. vs. Mercer, 8 Peters, 88; Carpenter et al. vs. Comm. of Penn., 17 Howard, 456; Story on the Constitution, 266.

No appearance for the appellee.

BARTOL C.J., delivered the opinion of the Court.

The only question presented by this appeal is whether the Act of 1872, ch. 272, applies to the case. That Act provides that "in all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the Court may, in its discretion, decree that the guilty party shall not contract marriage with any other person during the life-time of the other party; in which case the bonds of matrimony shall be deemed not to be dissolved, as to any future marriage of such guilty party, contracted in violation of such decree, or in any prosecution on account thereof." The Act was passed on the 1st day of April, and went into operation on the 1st day of June, 1872. The decree was passed on the 21st day of June of the same year.

The bill was filed in February, 1872, the acts of adultery charged against the appellant, were proved to have begun in July, 1871, and to have continued till the time...