Elliott v. Elliott

Bartol, O. J.,

delivered the opinion of the Court.

The only question presented by this appeal is whether the Act of 1872, ch. 272, applies to the case. That Act provides that c‘in all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the Court may, in its discretion, decree that the guilty party shall not contract marriage with any other person during the life-time of the other party ; in which case the bonds of matrimony shall be deemed not to be dissolved, as to any future marriage of such guilty party, contracted in violation of such decree, or in any prosecution on account thereof.” The Act was passed on the 1st day of April, and went into operation on the 1st day of June, 1872. The decree was passed on the 21st day of June of the same year.

The bill was filed in February, 1872, the acts of adultery charged against the appellant, were proved to have begun in July, 1871, and to have continued till the time of taking the evidence, the 8th of March, 1872.

The appellant does not complain of the divorce; but contends that the Circuit Court erred in decreeing that he “ shall not contract marriage with any other woman during the life-time of the appellee.”

We are all of opinion that the discretion conferred by the Act of 1872, was properly exercised, and entirely justified by the proof in the record; provided the case was within the operation of the Act. On this question a majority of the Court agree in opinion with our brother Miller, who decided the case in the Circuit Court, and think the decree ought to be affirmed.

The Act provides in terms, that the discretion may be exercised in all cases, where a divorce a vinculo is decreed for the causes mentioned.

The words of the law are full and comprehensive, embracing all cases, as well such as may have been instituted before the passage of the Act, as those which *362 may thereafter be brought; there ■ is no exception of pending cases. It refers to the time of passing the decree, and being then in operation, it limits and defines the powers of the Court in passing the decree: and consequently applies to all cases, in which a decree may be passed after the Act comes in force.

This we take to be the plain meaning of the words of the Act, and consider it clear that this case falls within its operation. It only remains to consider the objections urged by the appellant’s counsel to the law itself.

They have argued that the statute so construed, is invalid for the want of constitutional power in the Legislature to enact it.

Since the decision in Baugher vs. Nelson, 9 Gill, 299 , it is settled in Maryland that an Act of Assembly is not invalid, merely because it is retrospective in its terms, or is made applicable to pre-existing or pending cases. Such laws are valid and operative, unless they are obnoxious to the objection, that they impair the obligation of a contract; or are ex post facto laws, within the meaning of the Constitution of the United States, and the provisions of our Declaration of Rights, which impose restrictions upon the Legislative power. The meaning and construction of these provisions have been well defined in Calder vs. Bull, 3 Dallas, 386 ; U. States vs. Hall, 2 Wash. C. C. R., 366 ; Ex parte Garland, 4 Wal., 333; and Baugher vs. Nelson, 9 Gill, 299 .

It is upon this latter ground that the validity of the Act of 1872, has been assailed. It is said that it is ex post facto, because it operates to impose a new penalty, or punishment for acts committed before it was passed. That the restraint it authorizes the Court to impose upon the offending party, is in the nature of a penalty or punishment. But we think this argument is based upon an erroneous view of the nature of the law, and of the subject-matter to which it relates. It was passed as an *363 amendment to the 25th and 26th sections of Article 16 of the Code; and after repealing those sections, re-enacts them with amendments. Those sections are not penal in their nature ; they simply prescribe a remedy by civil suit against a party who has violated his marital obligations. _ Before the Act of 1872 was passed, in a case like this, where the adultery was proved, the Court was empowered to pass a decree of divorce a vinculo.

The effect of such decree was completely to dissolve the marriage tie, and to place both parties in the same condition as if the marriage had never taken place. The decree was granted as a relief to the party injured; and though its effect was to free both parties from their marital obligations; that was merely the incidental consequence or effect of the decree, and by no means a vested right or remedy to which the offending party was entitled.

When the Legislature by the Act of 1872, authorized the Court in its discretion, to modify the decree in the manner therein prescribed, it did not impose any new punishment or penalty upon the adulterer, but simply withheld from him relief which he was never entitled to claim, and left him where he was before the decree was passed; under the disabilities of his marriage contract which before existed, and which are imposed, not by the Act of Assembly; but grow out of the marriage contract itself, into which he had voluntarily entered.

If the Act of 1872 had amended the pre-existing law, so as to declare that thereafter the Courts should not decree a divorce a vinculo for adultery; but a divorce a mensa et thoro only : it could hardly be successfully contended by the appellant, that he would be entitled to nsist upon a divorce a vinculo; because such was the law at the time the adultery was committed by him, or when the suit was instituted.

*364 (Decided 2nd July, 1873.)

It seems to us that the power of the Legislature to change or modify the remedies of parties in such cases is unquestionable,, and that this appeal ought not to be sustained., Decree affirmed.

Bobinson, J., dissented.