Wadsworth v. Brigham

RAND, C. J.,

Specially Concurring. — I concur with Mr. Justice McBride because I believe that the construction which should be given to Chapter 269, Laws of 1925, is the direct opposite of the construction attempted to be placed upon the act by Mr. Justice Coshow in his dissenting opinion. The title of the act is “To legitimatize certain marriages and children the issue thereof.” The act provides:

“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. ’ ’

There is nothing in the title to show that lawful marriages were intended to be the subject matter of the act, In fact, it is clear that lawful marriages and the issue of such lawful marriages were already and always had been legitimate. Nor is there anything in the title or in the enacting clause showing an intent to legitimatize only that class of marriages — not recognized as lawful in this state — which is commonly

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referred to as common-law marriages. Nor has the act the effect of legitimatizing common-law marriages except in case there are living children the issue of such marriage. The object and purpose of the act, as indicated by its title and its enacting clause, is to legitimatize the relations existing between an unmarried man and an unmarried woman who have cohabited together as husband and wife for over one year and, as a result of such relations, children have been bom and are at the time living. The language of the act is sufficiently broad and comprehensive to include that relationship whether the elements of a common-law marriage existed or not.

The phrase “cohabited in the State of Oregon as husband and wife” does not necessarily alone mean that the man and woman must have contracted to become husband and wife, or had declared themselves to be husband and wife, or were holding themselves out as husband and wife, but was also intended to include the case where a man and a woman had been living together and sustaining such relations with each other as they would have sustained if they had been husband and wife and children had been born of such union and were living at the time the act went into effect. In the latter case as well as in the former, the statute intended to create a marriage relation between them in order to make the children born as the issue of their union legitimate. The primary purpose was to protect the children, if there were any such living, by creating a marriage relation upon the part of the parents of such children. The title is sufficiently broad to accomplish that purpose. If there was a lawful marriage, there was no necessity of legitimatizing it. It was only in case there was no marriage and children had been bom and were then living that

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the act was to operate, in which event the statute intended to make a valid marriage of such relationship and to legitimatize the children born from the relationship. Before the passage of the act, the children were illegitimate. Upon its passage, the children were legitimatized, and I think the construction attempted to be placed upon the act by Mr. Justice Coshow is too narrow and restricts the operation of the act far beyond that intended by the legislature.