finding proxy marriages consistent with Oregon marriage laws where one party was in jail because the difficulty in appointing a proxy eliminates a likelihood of mischief, and modern methods of communication eliminate the fear that one party would not be able to revoke authority before the ceremony
How later courts described this case
- finding proxy marriages consistent with Oregon marriage laws where one party was in jail because the difficulty in appointing a proxy eliminates a likelihood of mischief, and modern methods of communication eliminate the fear that one party would not be able to revoke authority before the ceremony
- noting that timing of marriage did not affect defendant's statutory right to assert the spousal privilege and prevent his wife from testifying against him
Written by the judges who cited it.
The opinion
ROSSMAN, J.,
dissenting.
OBS 106.150 (1), which defines the manner in which marriage shall be solemnized, says:
“In the solemnization of a marriage no particular form is required except that the parties thereto shall assent or declare in the presence of the minister or judicial officer solemnizing the marriage and in the presence of at least two witnesses, that they take each other to be husband and wife.”
The words just quoted, in stating that “the parties thereto shall assent or declare in the presence of the minister or judicial officer * * * and in the presence of at least two witnesses” that they take each other to be husband and wife plainly requires that the parties, that is, both of them, must be in the presence of the minister or judicial officer and that of the witnesses when the marriage is solemnized. To place upon those words any other meaning would not be a construction *211 of them but a dispensation with their plain and unambiguous meaning. If one can be absent from his wedding, both can be absent.
Our present statute which prescribes the manner of solemnizing marriages has remained unchanged in Oregon for more than a century of time. Proxy marriages have been viewed as novelties and as foreigners to our practice and customs. Noav the majority gives them the status of natives. Lord Francis Bacon, former Lord Chancellor of England, said:
“Judges ought to remember that their office is ‘jus dicere,’ and not ‘jus dareto interpret law, and not to make law, or give law * * *. ‘Cursed (with the law) is he that removeth the landmark.’ The mislayer of a mere stone is to blame; but it is the unjust judge that is the capital remover of landmarks, when he defineth amiss of lands and property. One foul sentence doth more hurt than many foul examples; for these do but corrupt the stream, the other corrupteth the fountain * *
The new conception of the solemnization of marriages today introduced by the majority lessens the beauty and solemnity of one of civilization’s most honored institutions. That institution is the very foundation of the state and of all culture.
There is a very practical reason for requiring the bride and groom to be present when the service is performed — it assures the minister or judicial officer of their identity and of their understanding of the service.
I dissent.