Chapman v. Handley

7 Utah 49

• Court: Utah Supreme Court
• Decided: June 15, 1890
• Status: Published

Opinions

HendeRSON, J.:

The appellants, Ruth A. Hewson, Benjamin T. Hand-ley, Harry L. Handley, and Sarah A. Chapman, peti-lioned the probate court for a distributive share of the-estate of George Handley, deceased, as his heirs at law. Their petition was denied in the probate court, and they appealed to the district court, where the judgment of the probate court was affirmed, and they appeal to this court. The facts are that George Handley died intestate on the ’25th day of May, 1874, leaving an estate valued at $25,-■000. He left surviving him Elizabeth Handley, his ■widow, and eight children, named, respectively, John Handley, William Handley, Charles J. Handley, Emma H. Handley, Mary E. Handley, Ruth A. Hewson, Benjamin T. Handley, and Harry E. Handley; the last three •of whom are petitioners and appellants herein. The first four children above named were all children of the •deceased and Elizabeth Handley, his lawful wife, and the last four were children of the said deceased and Sarah •Chapman, his plural wife, married to him according to the tenets and rites of the Mormon church, and were the fruit of that polygamous relation. All these children are •still living except Mary, one of the polygamous wife’s •children, who died sole and intestate September 28, 1879, and her mother, Sarah A. Chapman, has succeeded to her interests. The petitioners and appellants, therefore, .are the polygamous children and the polygamous wife (the latter claiming as heir of her deceased daughter) of the •deceased, and the only question presented by the record is whether the surving polygamous, or illegitimate, children .are heirs at law of the deceased, and entitled to share in .his, estate the same as the children born in lawful wedlock. The appellants base their claim upon the provision of an act of the Territorial Legislature approved March 3, 1852 (Comp. Laws, 1876, pp. 268, 269, § 677), -which reads as follows:

“Illegitimate children and their mothers inherit in like manner from the father, whether acknowledged by him or not, provided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children.”

This statute, so far as Territorial enactments are concerned, was the one in force at the time of decedent’s death. On the part of the respondents it is contended: jFirst, that this statute was annulled by the anti-polygamy act of Congress, approved July 1, 1862; second, that the-act is against public policy, and therefore void. The-anti-polygamy act above referred to is as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every person having a husband or wife living who shall marry any other person, whether married or single, in a territory of the United States, or other place over which the United States have exclusive jurisdiction, shall, except in the cases specified in the proviso of this section, be adjudged guilty of bigamy, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, and by imprisonment for a term not exceeding five years: Provided, nevertheless, that this section shall not extend' to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive-years without being known to such person within that time to be living; nor to any person by reason of any former marriage which shall have been dissolved by the-decree of a competent court; nor to any person by reason of any former marriage which shall have been annulled or pronounced void by the sentence or decree of a competent court on the ground of the nullity of the marriage contract.

“Seo. 2. And be it further enacted that the following-ordinance of the provisional government of the State of Deseret, so called, namely, 'An ordinance incorporating-•the Church of Jesus Christ of Latter Day Saints/ passed February 8, in the year eighteen hundred and fifty-one, and adopted, re-enacted, and made valid by the Governor and Legislative Assembly of the Territory of Utah by an act passed January 19, in the year eighteen hundred and fifty-five, entitled ‘An act in relation to the compilation .and revision of the laws and resolutions in force in Utah Territory, their publication and distribution/ and all other acts and parts of acts heretofore passed by the .said Legislative Assembly of the Territory of Utah which ^establish, support, maintain, shield, or countenance polygamy, be, and the same are hereby, disapproved and .annulled: Provided, that this act shall be so limited and ■construed as not to affect or interfere with the right of property legally acquired under the ordinance heretofore mentioned, nor with the right ‘to worship God according to the dictates of conscience/ but to only annul all acts and laws which establish, maintain, protect, or ■countenance the practice of polygamy, evasively called ‘spiritual marriage/ however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecration, or other contrivances.”

By the organic act approved September 9, 1850, relating specially to Utah, Congress conferred upon the Territorial Legislature the right to legislate upon “all rightful subjects of legislation,” but reserved to itself the right to disapprove, and thereby annul. Congress being the supreme legislative authority over the Territories, it would have this right of disapproval, and to annul any Territorial law, whether it was reserved or not. Bank v. County of Yankton, 101 U. S. 129. If, therefore, the Territorial statute above quoted, or that part of it which provides that illegitimate children inherit from their father, was disapproved and annulled by the anti-polyg.amy act, above quoted, then the petitioner’s claim is properly denied, and this question is solved by determining the character of the Territorial act. Is it an act, or “part of an act,” which establishes, supports, maintains, shields, or countenances polygamy? In determining the character and meaning of a legislative act, the surrounding circumstances existing at the time of its passage, as shown by contemporaneous history, should be-considered. Endlich, in his work on the Interpretation of Statutes (section 29), thus states the rule:

“The interpreter, in order to understand the subject-matter and the scope and object of the enactment, must, in Coke’s words, ascertain what was the mischief or defects for which the law had not provided; that is, he must-call to his aid all those external or historical facts which-are necessary for that purpose, and which led to the-enactment. He must refer to the history of the times to ascertain the reason for and the meaning of the provisions of the statute, and to the general state of opinion, public, judicial, and legislative, at the time of the enactment. * * * For this purpose, the court, inr interpreting the statute, will take judicial notice of contemporaneous history, or it may consult contemporary or other authentic works or writings.”

In determining the meaning and effect of this statute, therefore, we are to consider that at the time the statute-was passed the Territory had but recently been settled' and organized; that it was inhabited almost exclusively by people who believed in polygamy and plurality of' wives and families as a part of their religious faith, and' that its practice was common among them; that the legislative bodies elected by these people sought to support, shield, maintain, and countenance it. The result of' polygamy as a practice would be what would be known to the law as “illegitimate children;” indeed, that would be its fruiti There was no provision of law by whicln these illegitimate children or their mothers could inherit irom the father. This was the unquestioned condition in this Territory when this statute was enacted, and in view of it I have no doubt that it was intended to, and did tend to, support, maintain, and countenance polygamy. Imagine a woman approached with a proposition of polygamy, under such circumstances; no public sentiment against it to deter or hinder. The anxious inquiry would be as to the legal status and rights of herself and children. By this statute they were provided for. But it is contended that it would tend to deter men from entering into polygamy, and would tend to create a sentiment against it on the part of legal wives; but this would not be so as to people who believe in it. It cannot be doubted that if polygamy was right this would be a proper provision, and its advocates must so regard it.

It is further contended that the provisions of the Territorial statute in favor of illegitimate children is a proper measure for the protection of an unfortunate and innocent class of persons, and that the act of Congress should not be construed to prevent it; that it was not the intention of Congress to go beyond the guilty parties in imposing penalties or inflicting punishments. This view has been urged most eloquently, and with great ability, by the learned counsel for the appellants. It must be understood that Congress was legislating against polygamy as an institution; that it intended to disapprove of all that tended to establish, support, countenance, or maintain it; sought to lessen and prevent injustice to illegitimate children by breaking up and destroying the system that applied to and produced them. In monogamous communities, as is well understood, the universal moral" sentiment makes a plain distinction between the “ill begotten” and the “lawful born,” and, however much we may pity and sympathize with the innocent sufferers from this sentiment, it must be acknowledged that its existence is one of the potent factors in preventing social and sexual irregularities. Congress has recognized the potency of denying to illegitimate children the rights of legitimacy and inheritance as a means of breaking up and discouraging polygamy in the acts of 1882 and 188?. By 22 St. at Large, 31, and 24 St. at Large, 637, it is provided that' illegitimate children begotten thereafter shall not inherit; and so emphatic is the language of the latter act that it may well be doubted whether testamentary provision can be made for them.

On the argument it was contended that the law of 1882, supra, provided that illegitimate children begotten thereafter should not inherit; that this would have been unnecessary if Congress had, as contended, in 1862, annulled the Territorial act, and this is claimed as evidence that Congress did not so construe the law of 1862. But it will be seen that the act of 1882 legitimates polygamous children begotten before its passage. If under the Territorial law they already inherited “in like manner” as legitimate children, this would have been unnecessary. To my mind, all this is only evidence that Congress intended to legislate upon all these subjects for itself primarily, and without reference to the Territorial enactments, except to disapprove and annul all acts or parts of acts thereof which tend to encourage or countenance polygamy. It is contended, Congress did not intend to annul this Territorial provision, and did not regard it as one of the acts that countenanced and protected polygamy, because it has at least twice made similar provisions, but the acts referred to only legitimate children born before and within a short period after the passage of the act. The object of extending the provisions to children born within a few months after the act, placing them on an equality with those bora before, is too obvious to require mention. Substantially, these acts ■only legitimate children begotten prior to their passage and publication. It is a concession in favor of illegiti-mates then begotten, and, as before stated, this is coupled 'with a provision denying the right of inheritance to those begotten thereafter. The Territorial act, on the contrary, establishes a continuing rule that runs with the future. In this respect there is the same difference between the Territorial and Federal acts that there would be between a pardon granted for a past offense and a ■ commission to go forth and commit an offense in the future with impunity. I am of the opinion that the Territorial act was disapproved and annulled by the anti-polygamy act above referred to, and that the judgment .appealed from should be affirmed.

Zane, C. J., concurred.