The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-12-09
HE GIVES HIS REASONS
Divorced Folk May Remarry as
Soon as They Desire.
OLD LAW WAS REPEALED
County Attorney Lyters Opinion in the
q Matter-He Has Made an Examina-
ton of the Law and De-
$ clines to Prosecute.

:. Great Falls, Dec s.-Some two
months ago this city punished two di-
syorced persons, both defendants. who
We're united in marriage, one the day
following the granting of a decree TO
his wife and the other month follow
sing the date of the decree to his wife.
Both DEGREES were granted in the dis
strict court at Missoula and the speedy
marriages created much talk through
.sout the state. Some attorneys held
that the marriages were contrary TO
law. while others that the law was re-
pealed
IS To-day in an opinion rendered to
Clerk of the Court Athey, County At
atorney Lyter holds that the law regard
ing remarriage was repealed and that
persons divorced may marry at any
time they please thereafter The opin-
ion in full is as follows:
Because of the fact that certain
newspapers and individuals of this
community have seen fit to indulge in
SO much adverse criticism concerning
my failure to prosecute certain persons
who have married a second time with
in a few weeks after being divorced in
this state, and because some doubt ex-
lists as to your right to issue marriage
licenses to persons recently divorced,
/ take the liberty of giving you an
opinion upon the questions involved
and trust that those newspapers which
have so industriousiy aired their views
upon this subject will be fair enough
to give some publicity to my views
of what the law is that governs in this
matter.
This subject may be considered as
involving two questions:
T. Is there any law in Montana for
bidding persons who have been or shall
be divorced in this state to Immediately
marry another person than the one
from whom they have been or shall be
divorced.
y. If there be any such law what
is the penalty or punishment prescribed
and how may same be enforced?
Il shall discuss the two questions in
their order To make myself clearly
understood. | shall quote all the pro-
visions of the codes which ] think have
any bearing upon and which must
necessarily determine these points. The
civil code adopted by the fourth legis-
i lative assembly Of Montana contains
a these provisions:
Section 130-Marriage is dissolved, ta)
@ by the death of one of the parties: or
N (b) by judgment of a court of COM
petent jurisdiction.
Section 131-The effect of judg
ment Of divorce is to restore the par
IA ties to the state of unmarried persons.
u Section 132-Divorces may be grant
nd ed for any of the following causes: ta)
sd adultery, OBJ extreme cruelty, tc) Will
81 ful desertion. Id wilful neglect, te) ha
n bitual fntemperance, eD conviction of
felony.
Section 146-When a divorce Is
granted for any of the causes men
tioned in Section 1872. the innocent party
cannot marry until after the expira-
ton of two years. and, the guilty party
cannot marry until after the expiration
of three years from the entry of the
Judgment of divorce; but this section
shall not prevent the parties to the ac-
ton for a divorce from remarrying
each other at any time.
The penal code provides:
Section 495-Every person who mar
ries another contrary to the provisions
of section 146 of the civil code, is pun
ishable by Imprisonment in the state
prison not exceeding one year.
If the foregoing sections of the codes
are in force, then il would seem plain
that any person who has been divorced
in Montana within two years last past
and then married in this state some
other than the one from whom they
were divorced has incurred the above
specified penalty and we should then
have to determine how that penalty
Should be enforced
But here we are confronted with
what is known as house bill No. AZ
passed by the fourth legislative assem-
bly, and approved March &. 1885.
THAT act contains a section express
" repeating section lac. supra, but this
repeating clause is not found in the
published codes, the compiler having
omitted it for the reason that the title
of the act made no reference to section
JAG as required by the constitution and
was deemed by him imperative.
" Il have visited the office of the sec
rotary of state and made a per-
sonal examination of house bill No. l42
and while it is true that section 49,
supra, is not mentioned in the title OF
the act. the subject matter OF section
l46 is germane to the title and the
clause repeating section 146 should be
upheld. This is manifestly SO when we
consider the clearly expressed intent
of the legislative assembly the nature
and effect of the law sought to be re-
pealed and the fact that this act was
revisonary legislation.
I'm constituting statutes, the evident
intent of the law making body, the pub
lie policy of the state and the general
welfare of society are always kept IN
view of the courts and the constltu-
tional provision requiring the body OF
an act to be expressed in the title
thereof is, for obvious reasons, never
so strictly applied by the courts where
the act before them is reyisional legis-
1ation.
Our supreme court has already con-
sidered and upheld an act, revising for
mer legislation. where the subject mat
ter of the act was not clearly ex-
pressed in the title and | am of the
opinion that it would. for the reasons
expressed in that decision and because
of the other suggestions heretofore
made uphold the whole of house bill
No. 142 should that question ever come
before il
s.Basing their decisions upon grounds
of public policy the courts of all civil
lied countries show a strong tendency
to uphold marriages and To not lnfilct
n penalty therefor unless required to
do SO by the plainest provisions of a
statute and If there be any doubt as To
the existence of a law such as section
Us the courts always resolve the doubt
~ Tf4Ea mn =TKad IA
1T will be observed that section lac
does not declare that such second mar
4iage shall be unlawful or void. but
simply imposes a penalty upon those
persons coming within its provisions.
Marriage being natural right and ex-
4-...r--- a..aaa..ar.aart Of Sra-llra- al