State v. Zichfeld

• Decision Date: 19 November 1896
• Docket Number: 1,479.
• Citation: 46 P. 802,23 Nev. 304
• Parties: STATE v. ZICHFELD.
• Court: Nevada Supreme Court

46 P. 802

23 Nev. 304

STATE v. ZICHFELD.

No. 1,479.

Supreme Court of Nevada

November 19, 1896

Appeal from district court, Washoe county; A. E. Cheney, Judge.

C. H Zichfeld was convicted of bigamy, and appeals. Affirmed.

Curler & Curler, for appellant.

F. H Norcross, Dist. Atty., and Robt. M. Beatty, Atty Gen., for the State.

BONNIFIELD J.

The appellant was convicted in the district court of the Second judicial district in and for Washoe county of the crime of bigamy, and appeals from the judgment of the court and an order denying his motion for new trial. The following facts are not disputed: In the year 1893, in said county, the appellant was married to Sophia Koser, by written contract without the services of any of the persons authorized by the statute to join persons in marriage, or to solemnize marriages. Subsequently, and in 1895, the parties separated by mutual consent, and the appellant, while he was so married to Sophia Koser, and knowing that said Sophia was still alive, was formally married to Lauretta Bosford, by J. J Linn, a justice of the peace of Washoe county.

There is no contention as to the sufficiency of said first marriage to constitute a valid marriage at the common law; but counsel for appellant contend that our statute concerning marriages has superseded the common law, and that all marriages not entered into in conformity to the provisions of the statute are null and void. It is well settled that under the common law the marriage relation may be formed by words of present assent (per verbal praesenti), and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage. The first act passed by our territorial legislature was an act entitled "An act adopting the common law." At the same session of the legislature, it passed the act relating to marriages, of which the following is section 1: "That marriage so far as its validity in law is concerned, is a civil contract to which the consent of the parties capable in law of contracting, is essential." ^[1] Although this act contains provisions requiring a license, directing how and by whom marriages may be celebrated, or by whom persons may be joined in marriage, and prescribing other regulations in reference thereto, the statute contains no express clause of nullity, making void marriages contracted by mutual consent per verba de præesenti, except a prior license is obtained, or solemnization had, in accordance with its provisions.

Authorities: The supreme court of the United States in Meister v. Moore, 96 U.S. 76 (opinion by Justice Strong), in construing the Michigan statute, which is substantially the same as ours, said: "It [the instruction] certainly withdrew from the consideration of the jury all evidence, if any there was, of informal marriage by contract per verba de preæsenti. That such a contract constitutes a valid marriage at common law there can be no doubt, in view of the adjudications made in this country from the earliest settlement to the present day. Marriage is everywhere regarded as a civil contract. Statutes in many states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that where a statute creates a right, and provides a remedy for its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner, but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by license, or publication of bans, or attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity *** In many of the states, enactments exist very similar to the Michigan statute, but their object has manifestly been, not to declare what shall be requisite to the validity of a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its right, rather than of its validity, and they address themselves principally to the functionaries they authorize to perform the ceremony. In most cases the leading purpose is to secure a registration of marriage, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by exemplification of the registry. In a small number of the states, it must be admitted, such statutes have been construed as denying validity to marriages not formed according to the statutory directions. *** As before stated, the statutes are held merely directory, because marriage is a thing of common-law right, because it is the policy of the state to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law. The Michigan statute differs in no essential particular from those of other states which have generally been so construed. It does not declare marriages void which have not been entered into in the presence of a minister or magistrate. It does not deny validity to marriages which are good at common law. The most that can be said of it is that it contains implications of an intention that all marriages, except some particularly mentioned, should be celebrated in the manner prescribed. *** The sixth section declares how they may be solemnized. The seventh describes what shall be required of justices of the peace and ministers of the gospel before they shall solemnize any marriage. The eighth section declares that in every case (that is, whenever any marriage shall be solemnized in the manner described in the act) there shall be at least two witnesses present besides the minister or magistrate. The ninth, tenth, eleventh, sixteenth, and seventeenth sections provide for certificates, registers, and exemplifications of records of marriage solemnized by magistrates and ministers. The twelfth and thirteenth impose penalties upon justices and ministers joining persons in marriage contrary to the provisions of the act, and upon persons joining others in marriage, knowing that they are not lawfully authorized so to do. The fourteenth and fifteenth sections are those upon which most reliance is placed in support of the charge of the circuit court. The former declares that no marriage solemnized before any person professing to be a justice of the peace or minister of the gospel shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in such minister or justice, provided the marriage be consummated with full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in the presence of a minister or justice, or one professing to be such, were intended to be void. But the implication is not necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the legislature. The fifteenth section exempts people called 'Quakers' or 'Friends' from the operation of the act. *** As to them the act gives no directions. From this, also, an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed [by the statute.] We think the inference is not a necessary one. Both these sections (the fourteenth and the fifteenth) are to be found in the acts of other states, in which it has been decided that the statutes do not make invalid common-law marriages." We think that in the above opinion by Justice Strong a clear and proper construction of the statute is given.

Bishop says: "It was well observed by Lord Stowell that in a state of nature no forms need be added to an agreement of present marriage, to render it complete. In the opinion of the Scotch people, and of the people of a part of our states marriage, emphatically a thing of nature, is properly regulated by the law of nature. But in England, in other of our states, and largely in Continental Europe, civilization has undertaken to refine and improve nature's law, by denying marriage except under specified forms and ceremonies. The consequence of which is that shrewd rakes entrap single girls into nature's marriage; then, at their whim or exalted pleasure, cast them off, and leave a family of children under the disabilities and disgrace of bastardy." 1 Bish. Mar., Div. & Sep. §§ 385, 386. Bishop, after an extended review of the authorities on the subject which he cites, restates the doctrine recognized by the courts of nearly all the states having statutes similar to ours, as follows: "Any required, formal solemnization of marriage is an impediment to entering into it. Therefore, since marriage is favored in law, statutory provisions establishing forms are to be strictly interpreted, not being encouraged by the courts. In the absence of any statute or local usage controlling the question, only the consent treated of in our last two chapters is indispensable to the constitution of marriage; and legislation commanding formalities, even punishing those who celebrate...