Wadsworth v. Brigham

• Decision Date: 24 April 1928
• Parties: WADSWORTH v. BRIGHAM ET AL. [*]
• Court: Oregon Supreme Court

266 P. 875

125 Or. 428

WADSWORTH v. BRIGHAM ET AL. ^[*]

Supreme Court of Oregon

April 24, 1928

In Bank.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

On rehearing. Original opinion adhered to.

For original opinion, see 259 P. 299.

Coshow Belt, and Rossman, JJ., dissenting.

L. A. Liljeqvist and Thomas Mannix, both of Portland (Hoy & Childers and Dan E. Powers, all of Portland, on the brief), for appellant.

John F Reilly, of Portland (V. V. Pendergrass and Charles R Spackman, Jr., both of Portland, on the brief), for respondents.

McBRIDE, J.

This case comes again before the Supreme Court on rehearing. It was formerly held by this court in the original opinion (259 P. 299) following the verdict of the jury in the lower court that Mercedes Wadsworth was the daughter of John R. Brigham and that her mother and father had lived together as provided by chapter 269, General Laws of 1925, which reads as follows:

"In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage."

At that time the entire record received the full consideration of the Supreme Court, including that of the late lamented Chief Justice Burnett, and the court found no difficulty in arriving at the conclusion that the plaintiff was entitled to the judgment of this court and that she had amply proved all the facts required.

In the petition for rehearing reliance was mainly placed on the proposition that the statute was not retrospective in its nature, and that the parents of the plaintiff did not live together as husband and wife in the manner provided for.

At the outset, we wish to lay down the following general rule for the construction of remedial statutes:

"In accordance with the general rule that remedial statutes should be given a liberal construction, they will be freely construed to have a retrospective operation whenever such seems to have been the intention of the Legislature, unless such construction would impair the validity of contracts, disturb vested rights, or create new obligations. This principle has been applied to statutes for the prevention of fraud, legitimating the issue of void marriages." 36 Cyc. 1209.

The general construction of such statutes is retrospective. In 7 C.J. 948, it is said:

"Statutes intended to legitimate the issue of a marriage otherwise void are remedial in their nature and may properly be applied retrospectively."

A very leading case is Goshen v. Stonington, 4 Conn. 209 221, 10 Am. Dec. 121. State v. Adams, 65 N.C. 537; Andrews v. Page, 50 Tenn. (3 Heisk.) 653. In Goshen v. Stonington, supra, the court said:

"Lastly, the defendants have insisted (and on this objection the principal stress has been laid), that the law of May, 1820, being retrospective, and in violation of vested rights, it is the duty of the court to pronounce it void. The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in doing this there has been injustice, will be an inquiry in a subsequent part of my opinion. It is universally admitted, and unsusceptible of dispute, that there may be retrospective laws impairing vested rights, which are unjust, neither according with sound legislation, nor the fundamental principles 'of the social compact.' If, for example, the legislature should enact a law, without any assignable reason, taking from A his estate, and giving it to B, the injustice would be flagrant, and the act would produce a sensation of universal insecurity. On the other hand, laws of a retrospective nature, affecting the rights of individuals, not adverse to equitable principle, and highly promotive of the general good, have often been passed, and as often approved. In the case before us, the defendants have expressly conceded, that the law in question is valid, so far as respects the persons de facto married, and their issue. But, in that event, would it not have a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in celibacy, or contract matrimony with any person, at pleasure. It is a strong exercise of power, to compel two persons to marry, without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just."

This language is also quoted in Cooley's Constitutional Limitations (7th Ed.) p. 533.

Such statutes have been construed to apply to children whose parents were dead at the time of the passage of the act. Gregley v. Jackson, 38 Ark. 487; Wallace v. Godfrey (C. C.) 42 F. 812, and Jackson v. Lervey, 5 Cow. (N. Y.) 403.

In Jackson v. Lervey, 5 Cow. (N. Y.) 397, 403, the court said:

"The act declares, that all marriages contracted, or which may thereafter be contracted, wherein one of the parties was, or might be slaves, shall be considered equally valid as though the parties thereunto were free, and the child or children of such marriages shall be deemed legitimate. The words are general, and extend to all marriages. Why should it be restricted to cases where the parties were then living? One object was, to render the children legitimate. What superior claims had the children of parents then living to the interference of the legislature, to those whose parents were dead when the statute was enacted? I perceive none. The words of the act are sufficiently broad to include both; and ought so to be construed, to effectuate the intent. If I am right in this construction, then the child of the soldier was legitimate, and became the heir of the father."

In Andrews v. Page, 50 Tenn. (3 Heisk.) 668, the court said:

"The act of May 26, 1866, s. 5, declares, 'that all free persons of color, who were living together as husband and wife, in this state, while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance in any property heretofore acquired, or that may be hereafter acquired, by said parents, to as full an extent as white children are entitled under existing laws of the state.' An act similar in principle to this, had been passed some years before, to validate marriages between white persons who had been married under license carelessly issued in blank by the clerks, and containing nothing beyond their own signatures. See Acts 1849-50, p. 397.

"The power to legitimate children has been frequently exercised by the Legislature, at the instance of the father, and was delegated to the circuit and county courts by the Act of 1805, c. 2, Car. & Nic. 499. It may be still exercised under the Code, §§ 3640, 3643. These statutes, when not interfering with vested rights, have always been permitted to have a retrospective operation. See Cooley on Lim. 372, 373, 360, 361.

"The act of 1866, having been passed to ratify marriages, good, during the institution of slavery, by the prevailing usage of this state, and to create a right of inheritance conformable to such usage, and the changed condition of the slave, was in furtherance of good morals, and of the best interests of the state; and where no other rights have intervened, was eminently constitutional and proper."

That retrospective legislation is not strange in Oregon is evidenced by the many statutes found in the index of the Oregon Code making valid many defects in prior proceedings, such as divorce, defects in conveyances of land, marriages, and such other matters. In McCalla v. Bane (C. C.) 45 F. 828, the Oregon Act, section 10128, making illegitimates of the mother legitimate, was construed retrospectively and held valid. See section 723 and section 2563, Or. L., and Wallace v. McDaniel, 59 Or. 378, 385, 117 P. 314, L. R. A. 1916C, 744.

It was found after the decision of the Supreme Court in Huard v. McTeigh, 113 Or. 279, 232 P. 658, 39 A. L. R. 528, declaring common-law marriages invalid, that there were many children born in the state of Oregon who without some curative legislation would be considered as bastards both in fact and in law, and so to meet this exigency the aforesaid statute was enacted.

The primary purpose of the act was to legitimatize ill-begotten children, and the provision that the parents should be considered married if the children were living as a result of the relations mentioned in the statute was merely incidental to this great purpose. The purpose of the act was not to restore common-law marriages in Oregon, but to legitimatize the children begotten of illicit relations, provided the parents lived together for a sufficient length of time to avoid any presumption that the claim of the child might not be well founded.

The evil to be overcome by the police power of the state was the fact that there were illegitimate children born who would not inherit from the father and who had no name. It was this evil that gave rise to the legislation and not any defects in the marriage system of Oregon. Therefore, in construing this statute, we must look at the evil which the Legislature sought to correct and not go out of our way to defeat its purpose by any fancied or strained ideas that the illbegotten children must prove all the elements of a common-law marriage as a condition precedent to establish legitimacy. The Legislature did...