Gallemore v. Gallemore

91 S.W. 406, 115 Mo. App. 179, 1905 Mo. App. LEXIS 399

• Court: Missouri Court of Appeals
• Decided: November 28, 1905
• Status: Published

Opinion

NORTONI, J.

(after stating the facts). — Our present statute authorizing divorce and enumerating the canses therefor, among other things, provides that the wife may be divorced “when the husband shall be guilty of such conduct as to constitute him a vagrant within the meaning of the law respecting vagrants. [Sec. 2921, R. S. 1899.] The present phraseology of the statute as above quoted, first appeared in the revision of 1865, chapter 14, section 1, page 460. The idea, however, rendering the vagrancy of the husband a cause for divorce in this State did not originate in the statutes of 1865. It first appeared in the divorce laws of Missouri of 1845, section 1, of “An act concerning Divorce and Alimony.” [R. S. 1845, p. 424.] The language of the statute there to be found on the subject is: “Or when the husband shall be guilty of such conduct as to constitute him a vagrant within the meaning of the first section of an act respecting vagrants.” The original act respecting vagrants therein referred to was approved March 19, 1835, and is to be found in the Revised Statutes of 1837, page 613; also, substantially, in Revised Statutes 1845, page 1070; Revised Statutes 1865, section 1, chapter 77, page 380; Revised Statutes 1879, section 7655, and Revised Statutes 1889, section 8846. The first section of that act to which the divorce laws of 1845 refer as furnishing a definition of vagrancy and the conduct authorizing a divorce in the contemplation of the divorce section on the ground of vagrancy, is as follows:

“Every able-bodied person who shall be found loitering or rambling about, not having wherewithal to maintain himself by some visible property, and who doth not betake himself to labor or some honest calling to procure a livelihood; and able-bodied persons who are found begging, and who quit their houses, and leave their wives and children without the means of subsistence, shall be deemed and treated as vagrants.” [R. S. 1845, sec. 1, chap. 181, p. 1070.]

It is apparent then, that the vagrancy in the mind of the Legislature, when such was first made a cause for divorce in this State, was that defined in the section above quoted and none other, for the divorce law specifically referred to this, the first section of the act concerning vagrants, and as said before, this section remained in the law of this State, substantially the same, running through all of the various revisions up to 1889, where it appeared as section 8846. In 1893, however, the Supreme Court, in the case of In re Thomas, 117 Mo. 83, 22 S.W. 863,declared a succeeding section of that act, the section providing for the advertisement and hiring out of such vagrants, unconstitutional, and in 1897 the Legislature saw fit to and did repeal so much of the act on the subject, then chapter 169 of the ^Statutes of 1889, as remained. [See Laws 1897, p. 239.] And thus, this enactment to which our divorce law on the subject originally referred for further enlightenment, passed from our code and no longer exists. In 1865, however, as hereinbefore stated, the phraseology of the divorce statute was changed so as to read: “Or when the husband shall be guilty of such conduct as shall constitute him a vagrant within the meaning of the law respecting vagrants.” [R. S. 1865, chap. 114, sec. 1, p. 460.] The divorce law has remained in this language ever since the amendment of 1865, and this is its present phraseology, as first above stated. Thus we see from the amendment of 1865 that the particular reference to section 1 of the .vagrancy act was omitted, and the language employed manifested the intention of the Legislature to authorize a divorce on the ground of vagrancy when the conduct of the husband was such as to bring him within the meaning of any law of the State then prevalent on that subject. At the time the change was made in the phraseology of the divorce law, however, there was no1 other law on the subject of vagrancy in this State than that substantially above quoted. In 1879, the Legislature furnished us an additional section upon that subject (sec. 1528, R. S. 1879; sec.' 8841, R. S. 1889; sec. 2228, R. S. 1899), which section occupies a place in the criminal code of that revision, and it is provided by it that a person falling withing its provisions shall be deemed a vagrant, and upon conviction thereof, shall be punished by imprisonment in the county jail, or by fine, etc. This section has remained in our law ever since and is section 2228, Revised Statutes 1899, and parcel of our present criminal code. It therefore appears that from 1879 until 1897, when the original act of vagrancy (that of 1835) was repealed, there were two statutes defining vagrants, and that our divorce law referred to either or both.

From this historical review of the subject, it is obvious that when the idea of the vagrancy of the husband was first incorporated into the divorce law, it had reference only to the vagrancy defined in the first section of the act above quoted. But in 1865, the divorce statute having been so modified as to admit of any definition of vagrancy which the Legislature might then or thereafter provide, and in 1879, the Legislature having provided an additional section, that is, the criminal section of the present statute, section 2228, supra, on the subject, while both of these vagrancy statutes were parcel of our law, this court held, in Dwyer v. Dwyer, 26 Mo. App. 647, Judges Thompson and Lewis concurring, that the language of the divorce statute, “within the meaning of the law respecting vagrants,” had reference to any or all of the then provisions of the Revised Statutes respecting vagrants, not only to the provisions of the Act of 1845, supra, but it referred as well to the section, supra, enacted in 1879, found in our present criminal code. In that case, there seemed to be much diversity of opinion between the members of this court on the various questions there in decision, and three separate opinions were delivered, one by each member; but we find in the opinion of the court by Judge Thompson (1. c. 652) that Judge Rombauer concurred to' the extent and it was the opinion of the court, “that the criminal statute is leveled against vagabond husbands, who', having the ability to do so, neglect and refuse to support their families generally.” From investigation, we therefore find the present state of the law to be that there is but one statute in the books defining vagrancy and that this statute, the criminal section, has been held to apply only, in a case of this nature, to vagabond husbands having the ability to do so, yet neglect or refuse to support their families.

The criminal statute referred to, so far as it is pertinent to this case, reads: “Every person, . . . and every able-bodied married man, who shall neglect or refuse to provide for the support of his family . . . shall be deemed a vagrant.” [Sec. 2228, R. S. 1899.] It seems clear to us that the above quoted provisions of this statute, when read in the light of common knowledge and experience, are leveled, as held in the case above cited, against the able-bodied married man, who, having the ability to do so, either neglects or refuses to furnish the support mentioned. That is the vagabond husband. For it cannot be that the Legislature intended to denounce as criminal the failure of one to support his family who was prevented from doing so for no other reason than his inability to obtain employment, no more than it intended to denounce as criminal such failure on the part of one whose inability to support his family arises from his misfortune in not being able-bodied. Indeed, the result is the same in either case. If he be not able-bodied, he is excused by the wording of the statute itself, on the theory, of course, that he cannot be required to perform, under penalty, that which nature, or misfortune, has rendered him incapable of performing. The same charitable notion which is manifest in the plain statutory exception, must be given life and vigor in construing the remaining provisions of the section. The manifest intention of the law-makers must be sought out and followed. From the very wording of the act, it is obvious that the Legislature intended to except the invalid or decrepit husband from the penalties thereof, upon the hypothesis that it would be both unreasonable and unjust to inflict punishment upon him for not doing that which, by reason of his misfortune, he could not do. With this thought in mind, we are persuaded that the legislative intent clearly evinced was to except from the penalty also the able-bodied husband who was ready and willing to support his family, yet was unable to do so by reason of his unfortunate inability to obtain employment and thus render to himself and to his family a livelihood. To place any other construction on the statute would be tantamount to holding that the Legislature had enacted that every able-bodied husband, who was unable to support his family, would be a criminal and render him a vagrant and a disgrace; whereas it is neither criminal nor disgraceful to be poor. Under such a construction, every man, however anxious and willing to labor and provide for his family, would be liable to be declared a vagrant at the suit of his wife for divorce, for no other reason than that he was able-bodied and failed to support his family. Indeed, such a construction in times of commercial depression and paralyzed industry, might prove ruinous to the peace and repose of society. Men theretofore honest, seeking employment, would be in many instances, driven to pillage and plunder to render the support required, rather than render themselves liable to prosecution and subject to divorce proceedings npon their failure to provide such support. No such unjust and unreasonable construction of the statute should be had or even contemplated for a moment. It therefore mnst necessarily follow that the Legislature intended, when it provided that an able-bodied man should be deemed a vagrant when he either neglects or refuses to support his family, that it was leveling the penalty of the law only at the vagabond husband who had the means or ability to render such support and neglected or refused, and that it was not intended to level such penalty at the husband who was willing to do so and whose neglect or failure in that respect arose solely from his inability to find employment. It seems quite clear that such a case was not contemplated as being within the spirit of the act. Indeed, the employment of the words “neglect” or “refuse” by the Legislature is demonstrative of the intent. “Neglect” arises from an inattentive state of mind, want of care for and an utter disregard of, in this connection, the obligation resting upon the husband to support his family; whereas, the word “refuse” imports a willful disavowal of or disregard for such obligation. It is therefore obvious that the husband who is denounced as a vagrant, is one who neglects or refuses the support from his want of proper regard for the social duties and obligations of life, his total or partial disregard of the ties of filial affection, and his insensibility to and want of respect for the faanily relation upon which the whole superstructure of civilized society rests. When for this cause, he refuses to render that support which every consideration of good conscience and correct conduct requires of him, he is indeed a vagabond husband, and should be declared a vagrant. Not so, however, in a case where the evidence shows that the husband, although able-bodied, is a professional man, seeking employment as such, giving to his profession his undivided attention and rendering his entire remuneration in that behalf to the support enjoined, for in such case, he is demonstrating his willingness to perform, and his respect and esteem for the obligation enjoined, and is performing to the very best of his ability to the end required. When it appears, as in this case, that the husband was a physician, a man of good habits, endeavoring to establish a practice, maintained an office, remained there awaiting patients, and attended to such calls as he had, contributed the entire income from his practice to the support of his wife and himself, this certainly will preclude him from being placed by the law in the category of the vagabond husband who willfuly and with a disregard of social obligations, neglects or refuses to maintain his family. Indeed, the law will not be so harsh and severe as to require a professional man to abandon his profession for no other reason than that business comes slowly, and betake himself to some other calling, under penalty of being declared a vagrant for failing to make a living, when he is doing the best that he can, and all that he can, in that behalf. It is indeed deplorable that his remuneration was insufficient to support his, family, and that his wife was called upon to contribute the greater portion to the support of both, but non-support of the wife is not necessarily vagrancy on the husband’s part. There must be present in addition thereto, the essential elements of the vagabond husband. Nor is non-support, of itself, a cause for divorce in this State. [Freeman v. Freeman, 94 Mo. App. 504, 68 S. W. 389.]

After careful consideration, we wholly fail to discover any evidence in the record before us supporting the finding that the appellant is a vagrant; therefore, the judgment so declaring him to be, and divorcing the wife upon that ground, is reversed. The judgment dismissing his bill for divorce and in all other matters will be affirmed; the costs to be taxed against appellant.

Bland, P. J., and Goode, J., concur.