STATE Ex Rel. PROGRESS v. FIRST JUDICIAL DISTRICT COURT, in and for Storey County, Et Al.
State ex rel. Progress v. First Judicial District Court
(Ducker, J., dissenting.)
STATE Ex Rel. PROGRESS v. FIRST JUDICIAL DISTRICT COURT, in and for Storey County, Et Al.
STATE Ex Rel. PROGRESS v. FIRST JUDICIAL DISTRICT COURT, in and for Storey County, Et Al.
No. 2948
September 1, 1931.
2 P. (2d) 129.
(Ducker, J., dissenting.)
Harlan L. Heward, for Petitioner:
William S. Boyle, for Respondent:
Albert D. Ayres, Amicus Curiae:
A. E. Painter, Amicus Curise:
OPINION
By the Court,
Coleman, C. J.:
This is an original proceeding in prohibition.
On November 6, 1930, Joseph Progress instituted a suit for divorce in the respondent court. On April 20, 1931, he sought to amend his complaint by adding thereto a third cause of action, alleging that the plaintiff and defendant, since they were intermarried and for more than five consecutive years last past, have lived apart without cohabitation.
The last legislature enacted a bill creating an additional cause for divorce, which provides that a divorce may be granted when a husband and wife "have lived apart" for five consecutive years without cohabitation. The act provides that it should take effect and be in force from and after its passage and approval. It was approved March 23, 1931. Stats. 1931, p. 180, c. 111.
The only question for our determination is whether the act is retrospective in its operation. If it is, the writ must be denied.
It is the general rule, recognized by this court, that statutes are prospective only unless it clearly, strongly, and imperatively appears from the act itself that the legislature intended that it should be retrospective in its operation. Milliken v. Sloat, 1 Nev. 573; Wildes v. State, 43 Nev. 388, 187 P. 1002; Virden v. Smith, 46 Nev. 208, 210 P. 129.
Counsel for the petitioner, in support of his contention that the act in question is prospective only, cites the following cases arising out of statutes authorizing the granting of divorces, namely: Scott v. Scott, 6 Ohio, 535; Buckholts v. Buckholts, 24 Ga. 238; Sherburne v. Sherburne, 6 Me. (6 Greenl.) 210; Tufts v. Tufts, 8 Utah, 142, 30 P. 309, 16 L. R. A. 482; Burt v. Burt, 168 Mass. 204, 46 N. E. 622; Pierce v. Pierce, 107 Wash. 125, 181 P. 24; Barrington v. Barrington, 200 Ala. 315, 76 So. 81; Giles v. Giles, 22 Minn. 348.
We are unable to see that the first three cases can be of any aid to this court in deciding the question before us, since neither of them state the terms of the statute under consideration. The statute construed in Giles v. Giles is so clearly prospective that it is no aid in reaching a conclusion in this matter. The opinions in Tufts v. Tufts and Burt v. Burt throw no light upon the question before us. The other two cases cited by counsel support his contention, but there is a strong dissenting opinion in each of them.
There are many cases growing out of divorce statutes in which it was held that, the statute being prospective, the divorce could not be awarded, but they are not cases in which there could be a doubt as to the application of the general rule which we acknowledge as being controlling in determining if a statute is retrospective.
While it is the general rule that statutes are to be given a prospective, rather than a retrospective, operation, like all other rules of interpretation it is indulged to give effect to the presumed and reasonably probable intention of the legislature, when the terms of the statute do not of themselves make the intention clear and certain, and cannot be invoked to change or defeat the intention when it is made obvious or manifest by the terms of the statute. Lamb v. Powder River Live Stock Co. (C. C. A.) 132 F. 434, 67 L. R. A. 558.
We think the statute in question is clearly retrospective, as well as prospective. By its terms it went into effect on the day it was approved and it refers to married couples who "have lived apart for five consecutive years without cohabitation." We are at a loss to see how the legislature could more clearly, strongly, and imperatively have expressed its intention that the act should be given a retrospective effect. The words "who have lived apart" must be given their plain ordinary meaning. It is not our duty to seek to give to the words in question a cryptic meaning simply because the marriage state is one which is looked upon as sacred. In fact, while no authority seems to have offered the suggestion, historically, it occurs to us that much may be said in opposition to any such idea. In England, at common law an absolute divorce could be granted only by Parliament, which power is still exercised by that body. In the early history of our states an absolute divorce was granted by the legislature. Virginia did not adopt a general divorce law conferring jurisdiction upon a court until March, 1841, and it is fair to presume that the hearing of such matters became so burdensome that the legislatures were driven to this step, the amazing thing being that it was so long deferred. In the very nature of things such legislative divorces were for past offenses.
The supreme court of Louisiana, in Hurry v. Hurry, 141 La. 954, 76 So. 160, 161, had under consideration a statute which authorized the granting of a divorce "when married persons have been living separate and apart for a period of seven years or more." In an unanimous opinion the court held that it was impossible to say that the legislature intended to refer only to married persons who shall hereafter live separate and apart.
Other decisions supporting the conclusion we have reached are Long v. Long, 135 Minn. 259, 160 N. W. 687, L. R. A. 1917C, 159; Cole v. Cole, 27 Wis. 531.
For the reasons given, it is ordered that this proceeding be, and the same is hereby, dismissed.
Sanders, J.: I concur.