The Black Hills union. [volume] (Rapid City, Pennington County, Dakota [S.D.]) 1889-1904, 1896-07-24
MANY D vOECEs INVALID
Kansas Cases Acted on Under ! statute

II W. 80 vSIS ~ A1SEV FAAIA
Kansas Cases Acted on Under q Statute
Held Illegal.
FORT SCOTT, KAN, July lb.-kt is es-
timated that from 49, 900 to SO, 600
couples have secured divorce under an
act OF the legislature of 1871, which
was last night declared unconstitu-
tional by the Southern department OF
the court of appeals, and the status OF
nearly all of these divorces is affected
seriously.
The case which brought out the de.
cision was entitled.E. p. Shepherd VS..
Arabella Shepherd, in error from Ford
county, and the only question at issue
was whether or net husband and wife
could be permitted to testify against
one another in divorce OF alimony
actions.
1t was argued by counsel and is
maintained by legal author
lt.y that this opinion would disturb
the adjudication of all property rights
afected in the thousands of preceding
cases and would throw out OF court
hundreds OF cases o pending on the
support OF the plaintiffs personal
testimony.
Ihe court, after dwelling on the
common law and statute provisions in
regard to testimony of husband or
wife against one another, says: The
legislature in 1o7i passed a law at.
tempting to make an exception in &C.
tions for divorce which would pruba.
bly, apply also in actions for allnony.
The law which they passed for this
purpose is section E of chapter llo of
the laws Of 1871, being paragraph
e,765 of the general statutes OF 1859,
which reads as follows: In an action
for a divorce hereafter tried the par
ties thereto or either of them shall
be permitted to testify in like
manner and respecting any fact
necessary or proper to be proven
as parties to other civil actions
gre allowed to testify The validity
OF this section is questioned by the
defendant in error, as being in con-
fict with section Is Of article . of the
constitution of Kansas, which reads
as follows: No bill shall contain
more than n subject which shall be
clearly expressed in its title, and no
law shall be revised or amended I'M
ASoo ~ y" dCL contains LQC cnllro
act revised or the section or sections
amended and the section or sections
SO amended shall be repealed
THE title to charter 1i6 OF the ses-
sion laws of 1871 reads as follows: An
act to amend certain sections of chap.
ter 50 OF the general statutes of 1885,
By reference to the session laws of
1871 the following words will be found
IN brackets, relating to civil actions
and to trials and to evidence and
Ihe secretary of State in his certificate
0t authorization certifeS that these
acts are true and correct copies OF the
enrolled laws for that veal with the
exception of the clerical. errors ap-
pearing enclosed in brackets. We
must therefore conclude that the
words enclosed IN brackets were omit
ted from the title of the enrolled bill.
The secretary of State certifes that
they were omitted. and that 1T wa q
clerical error. This is the evidence
upon which we must act in deciding
this question in the action.
The court, however, in order to
satisfy itself upon the subject, has
made an examination of the enrolled
bill, which is on file in the office Of the
secretary of State, and it finds that
eAC, CAulC w Vic dCI FcaQS. AN aCL TO
amend certain sections of chapter 80
Of the general statutes of 1865 and
.nterlined after the word act written
in lead pencil in an ordinary hand,
not at all similar to the enrolled hand,
are the words making it clearly APP
parent hat the secretary of State had
been INDUCING in the pastime of cre-
ating such a title as he thought would
be a good title to the act in question.
"'We are reluctantly compelled to
hold that the title to the act is not
broad enough to owe the subject at
tempted to be enacted by said section
5. The title only covers the mend
ment of certain sections of chapter
80, already in existence, but it does
not attempt to cover any new enact
ment. We think the law should be
that a husband or wife should be per-
mitted to testify in all actions for di-
vorce or alimony or for both, but it
is the province OF the legislature and
not of this court to create the law"