# Barrington v. Barrington

> Supreme Court of Alabama · February 15, 1917 · 200 Ala. 315

URL: https://www.frixlaw.com/law-library/cases/3237411

## Case

- **Full name:** Barrington v. Barrington.
- **Court:** Supreme Court of Alabama
- **Decided:** February 15, 1917
- **Citations:** 200 Ala. 315; 76 So. 81; 1917 Ala. LEXIS 434
- **Precedential status:** Published
- **Opinion:** Concurrence by Somerville
- **Judges:** Somerville, Mayfield, Thomas, McOlellan
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3237411

## How later opinions describe it (automated extraction)

- holding that although a statute did not violate the Constitution by impairing a contract or imposing an ex post facto punishment, it would not be applied retroactively because it affected a vested right

## Opinion text

SOMERVILLE, J.
(concurring). Speaking for myself alone, I fully agree with the views expressed by Justice McCLELLAN as to the nature of the marriage relation, and its subjection to legislative control, whether as to its creation or dissolution. I agree also that if the statute here under consideration can be justly regarded as a remedial provision for the redress of an injury to individuals, or for the suppression of a public evil, its retrospective operation would not be odious, and the opposing canon of construction would not be applied in the ascertainment of legislative intent.
In the strict sense of the word, a remedial statute is one which merely provides a remedy for the enforcement of an existing right. In its broader sense, any statute is remedial which aims at the suppression of that which is evil, and the conservation of that which is good. “Such statutes,” said Chief Justice Brickell, in the leading case of Ex parte Buckley, 53 Ala. 42, 55 , “are intended to remedy a mischief, promote public justice, correct innocent mistakes into which parties may have fallen, cure irregularities, or give effect to the acts and contracts of individuals fairly done and made.” In the same connection he says:
“The statutes excluded from judicial favor, and subjected to this strictness of judicial construction, statutes which may be properly denominated retrospective, are such as take away or impair vested rights, acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability, in respect to transactions or considerations already past.” 53 ' Ala. 54.
In the light of this distinction it was held in that case that a change in the existing law by an “act to secure good and sufficient sureties on the bonds of county officials” was strictly remedial in its nature, promotive of public justice and individual right, and was properly applicable to existing officers who bad already filed their bonds under the former statute. On the same principle, it was held in Washington v. State, 75 Ala. 582 , 51 Am. Rep. 479 , that a constitutional provision (section 3, art. 8, Const. 1875) excluding from registration, voting, or officeholding “those who shall have been convicted of” a felonious crime, applied to crimes committed before as well as after its adoption. Said the court:
“The manifest purpose is to preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as against that of ignorance, incapacity, or tyranny.”
And in conclusion:
“These reasons induce us to the conclusion that the framers of the Constitution intended^ to disqualify from participation in the elective franchise all persons previously convicted of larceny, and other crimes specified, as well as those convicted subsequently to the date of the adoption of that instrument. They both alike come within the letter, as well as the spirit, of its provisions touching the subject of suffrage and elections. The mischief to be remedied is not of greater magnitude in the one case than in the other. And, as all the provisions of a Constitution must go into effect as a whole, and at the time of its final adoption, unless otherwise declared, no reason appears to us why the operation of the one under consideration should be postponed by judicial construction.”
So in Hawker v. New York, 170 U. S. 189 , 18 Sup. Ct. 573, 42 L. Ed. 1002 , it was held that an act providing that “any person who, after conviction of a felony, shall attempt to practice medicine, etc., shall be guilty of a misdemeanor,” was, though applicable to previous convictions, not unconstitutional as an ex post facto law. In neither of the last-cited cases was any question raised as to the retrospective application of the inhibitory language, which was perfectly clear. But, unless expressly limited to future convictions, its remedial policy would manifestly have justified such retrospection. In State ex rel. Brassell v. Teasley, 194 Ala. 574 , 69 South. 723 , it was held by a divided court that the act of February 5, 1915 (Sess. Acts 1915, p. 52), providing that “no person shall be eligible to the office of president or member of the board of commissioners * * * who shall, either by election or appointment, have held the office of president or member of the board of commissioners of any such city,' three consecutive years, within the four years immediately preceding the date of the election,” etc., was a mere prescription of qualification for election to office thereafter, did not interfere with vested rights as applied to the future disqualification of the then incumbents, and, by an express provision of the act itself, operated immediately to that effect.
This case would be closely analogous to the Teasley Case, if we had here a statute which prescribed as a disqualifying obstacle to future marriages the fact that either party had ever been married before. Such an act, it will be observed, would not interfere with the continuation of an existing relation
*323
ship, recognized by law as both exclusive and valuable. It is just this interference with existing rights which have not been morally forfeited iby any marital dereliction or disability, which courts do not impute to the legislative intention, unless that purpose is made conclusively clear. It is difficult to find in any of the foregoing cases a basis even for piresent comparison, much less for adverse authority. A reading of the several opinions will disclose their fundamental difference.
I further agree with Justice McCLELLAN in the judicial principle that the power of the Legislature over marriage and divorce is as to its origin and basis “remedial and conservative.” Green v. State, 58 Ala. 190, 198 , 29 Am. Rep. 789 . I think, however, it must be conceded that the exercise of the power may be, and in some cases has been, injurious and destructive. Whether legislative action in providing for the dissolution of marriage at the suit of either party is remedial and conservative in the sense defined by Chief Justice Brickell, and therefore favored in its interpretation and construction by the court, must depend in each case upon the character and purpose of the act, and this is to be considered and determined by the court. If, for example, the Legislature should revive for modern use the old Mosaic law that a man-could put away his wife at his pleasure by simply giving her his declaration of divorcement (L»eut. 24:1), I apprehend that no court would regard such an act as remedial in the favored sense, and that its application to existing wives would be abhorrent to the judicial mind, so much so that that construction would ¡be afforded only if the language of the act made retrospection compulsory.
I further agree with Justice McCLELLAN in the proposition that matrimonial rights are not vested rights in any technical or constitutional sense. But I think, nevertheless, that they are legal and moral rights in the highest sense of the word; perhaps, indeed, the most sacred and important of any that are recognized by law and by society. For their acquisition and enjoyment the parties must make mutual sacrifice and surrender. For any injury to the rights of consortium and service the law prescribes a liberal remedy, against the offender. I think it must logically follow that no law which, by dissolution of the marriage, destroys matrimonial rights already acquired, in favor of one party, without any fault or disability on the part of the other, can be accorded favor as a remedial law, however happily it may operate in some individual cases; and none of the authorities so hold. And so far as the basis of its operation against either spouse may be innocent conduct already past, the canon of construction everywhere applied is that such operation is not intended unless the rigor' of Fs language so requires.
In the original opinion it was conceded that, so far as the language of the opinion went, the Wisconsin case of Cole v. Cole supported appellant’s contention. That concession, however, was too broad, or at least it might be misleading. For it is obvious that the Wisconsin court was in fact dealing with a statute vitally different from ours, in that the divorce there authorized was ibased upon a separation that was voluntary as to both parties, that is, each party had voluntarily renounced the marital association, and thereby morally forfeited all rights thereunder. The real question, therefore, might well have been regarded as one involving in’imarily the interests only of society and the state. If that was the conclusion, and it was further supposed that those interests would be beneficially served by dissolving a dead union,then the retroactive construction of the statute might be justified, without in any wise impugning the conclusion reached in the present case.
For the purposes of this discussion, we are manifestly compelled to deal with this act according to its general scope, and not upon the assumption, however true it might be, of its possibly just and wholesome operation in the present case. Olear judicial reasoning requires a clear understanding of judicial terminology; and where, as here, important terms have variant meanings, the undiscriminating use of precedents is apt to lead to confusion, if not to error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3237411. Public record. Not legal advice.