The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1904-01-17
DIVORCE. ON PLEA
OF DRUNKENNESS
Court of Appeals Defines
Meaning of Code.
TERM LEGAL SEPARATION
Justice Alvey Shows Section Is Expli-
cable Under Provisions of
Revised Statutes.

AA@N 0OCNAEAon Va Ant AOuTl OF Appeals
In the cause OF Maschauer VS.. Maschauer
for limited divorce, settles the mode of
procedure in this class of cases in the
District. The opinion of the court
stated below, is practically the first
construction of section 9s6 of the code
made by the higher court since its
adoption January !. 1901 and SO opens
up the way for the final adjudication OF
hundred or two of similar proceedings
pending before the District Supreme
Court
In October. 1902 Amelia Maschauer
commenced proceedings for divorce
mensa ct thoro from George w. Mas
chauer on the ground of cruelty endan-
gering her health and life. When issue
was joined by her husband she asked the
court TO. appoint an examiner to take
testimony relative to the allegations
she made against her husband
Courts Jurisdiction.
The matter came on for hearing be-
fore. Justice Hagner. then a member of
the District Supreme Court bench. Coun-
sci for Maschauer objected TO the APP
pointrnent OF an. examiner to take tes-
timony on the ground that the court
was without jurisdiction in the premises.
This contention was upheld by the court
and Mrs. Maschauer took a special az
peal TO the Court of Appeals.
The principal question involved was
the construction of the words legal
separation from bed and board may be
granted for drunkenness. cruelty or de-
sertion.'
Justice Hagner's Views.
In discussing this term Mr. Justice
HaKner said:
The expression legal separation was
unknown 10 our law before 1t found its
place In the code: and in the absence
or some definition in the statute. is Of
very uncertain significance, for separ-
alton by decree a mensa eft thoro, or
by voluntary separation of the parties.
executed in legal form may be equally
comprehended by the phrase legal
separation. as should be the result of
divorce a vinculo matrimonii."
Mr.. Justice Hagner. further discussing
this section in Dabney VS.. Dabney. also
taken up on appeal. said:
Divorce for Drunkenness.
The Congress that enacted our Re
vised Statutes showed it's evident I'M
willingness TO authorize a divorce for
drunkenness. unless its was proved to b,
hebitual and that it had existed for
three years. or for cruelty. unless il
endangered life or health or for de-
sertion, unless the willful desertion and
abandonment had continued for the full
and uninterrupted space OF two years
These offenses. thus clearly defined. are
very different from the unexplained kind
Of drunkenness named in the code.
which may be only occasional or inter
mittent. and may not continue more
than one year or less; from the cruelty
which may be limited TO what the courts
dennr,fnafa a.
OF temper. or which may be confined G
insulting language which is sometime.
denounced as mental cruelty; or from
'cesertion which may have continued
only for few weeks and may not have
been continuous or evincive OF an inten-
tion to abandon the marriage relation
And yet. under the unrestricted terms Of
section se6. the court might be called
on to decree the legal separation on
proof OF either OF these general charges
Legislation Is Needed.
MY opinion. upon the various ques-
.tions / have been considering Is. that
in cases which have been brought since
the code went into operation. claiming
only a divorce a mensa ct thoro for
drunkenness and its kindred offenses.
there can be no decree for divorce IN
the absence OF an amendment Of the
INV WHICH Stall state QlSIllCIiN laCCOrd-
Ing to what may be the wish OF Con
gress) whether the courts are to be en-
powered TO decide on these cases at all.
and II so. whether they are to grant
the divorce according TO the provisions
OF the old law or according to those OF
the code
CounsePs Contention.
In opposition to this construction of
section 966 of the code, counsel for
MRS. Maschauer argued that taking the
old law as an index 10 the meaning ard
Intention OF Congress I'm enacting the
new-law.-w fnd that drunkenness as
used in section 96s Of the code. means
'habitual drunkenness that cruelty
means cruelty endangering life or
health and that 'desertion' means
'willful desertion. The court can have
no trouble. therefore. in determining
just what Is necessary to entitIe party
20 judicial relief"
Opinion Of the Court.
After citing several sections Of the
cole relative TO the subject OF divorce,
Chief Justice Alvey. OF the Court OF APP
peals. who announced the opinion OF the
court. said:
There are two kinds of divorce
clearly contemplated by the code, and
although the provision OF the section
on this subject is not happily expressed
IL IS not dif1cult 10 arrive al the inten-
tion Of the legislature from the language
employed
III cannot be supposed" says the
court. that the term legal separation
from bed and board as employed in
the code, can have any application 10
voluntary deeds OF separation or to
divorce a vinculo matrimonii, as the
latter IL nnal decree. but expresses
substantially the same meaning as the
term divorce mensa ct thoro. as USED
ia the code"
Douglass & Douglass and Baker &
Sheriff. appeared counsel for Mrs
Naschauer. both in the Court OF APP
peals and the court below.