Sam BobiNsoN, Associate Justice.
The appellees, Harold Graves and Mr. and Mrs. J. B. Spearman, were charged in the municipal court of Hot Springs with the offense of contributing to the delinquency of a minor. They were each fined $50.00 and costs, and appealed to the circuit court. There, the cases were tried before the court without a jury, and from judgments of not guilty as to all of the defendants the State has taken an appeal to this Court.
The facts are undisputed. Sandra Spearman, a girl 13 years of age, and Harold Graves, a hoy 17 years of age, accompanied by Mr. and Mrs. J. B. Spearman, the parents of Sandra, and also by Mr. D. H. Graves, the father of Harold, went to Greenville, Mississippi, where, with the consent of Mr. and Mrs. Spearman and Mr. Graves, Harold and Sandra obtained a marriage license and were married. They returned to Arkansas, where Harold and Sandra lived together as man and wife for about four days, when Mrs. Murphy, attendance officer at the school in Hot Springs attended by Sandra, obtained a warrant in the municipal court of Hot Springs charging Harold and Mr. and Mrs. Spearman with contributory delinquency. There is no explanation of why D. H. Graves, who also made the trip to Mississippi and gave his consent to the marriage, was not charged in a like manner.
It appears that a few days before the trip to Mississippi for the wedding Mrs. Murphy had talked about the matter with Mrs. Spearman. Mrs. Murphy testified:
“A. Through the advice of Dr. Bruce and others I took Sandra to the place of business where the mother was — at the Park Place Baptist Church — and talked to the mother, presenting it to her — the ruling of a child under 16 years of age marrying would not be legally married in tbe State of Arkansas. Mrs. Spearman was very nice, very considerate about tbe whole thing. She said that her prayers bad been — -that she had consented to the marriage and she prayed that the Lord would take care of it and she felt this was the answer to her prayers. And Mrs. Spearman and the girl both consented that was the thing, and the girl wanted to know if I would talk with the boy and I said I would be happy to. But the boy was between his school and going to work, at the time, and the girl spoke up and said, ‘Mother, do you think it would be better if we talk with him tonight. ’ The mother agreed that she thought it would be better if they talked with the boy that night and see if it wouldn’t be better to let everything be settled that way. I left Mrs. Spearman and took Sandra back to school. Mrs. Spearman was very nice, very appreciative of my coming to the church with her at the time. Then I went back to school and placed the child back in school, and that was my talk with Mrs. Spearman. That was my conversation with her. ’ ’
Mrs. Murphy further testified that Sandra is not a delinquent child. She was asked:
“Q. Do you know whether or not Sandra Spear-man Graves is a delinquent child?
A. No, she has nothing against her whatsoever as a delinquent child. No, sir, I have never heard of anything against her.”
There is nothing in the record to indicate that the Graves or the Spearmans are other than good, upright people.
The charge of contributory delinquency against the defendants is not specific in any manner. It cannot be ascertained from any papers filed in court just whose delinquency the defendants are charged with contributing to, or the manner of such alleged offense. But it appears that the defendants were tried on the theory that the Mississippi marriage is void; that Harold and Sandra have lived together as husband and wife, and, therefore, Sandra has become delinquent; and that the defendants have contributed to such delinquency — Harold hy being a party to what is claimed to be a void marriage, and the Spearmans by consenting to such marriage. "With this view of the situation in mind, the case turns on the point of whether the Mississippi marriage is void. The trial court based the judgment of not guilty on the theory that the Mississippi marriage is valid, not only in the State of Mississippi, but everywhere. We agree.
It is conceded that if Sandra and Harold were residents of Mississippi the marriage would be valid in that State and elsewhere, Sandra being 13 years of age and Harold 17 years of age, the parents of both parties agreeing to the marriage. And undoubtedly such marriage would be valid. Hunt v. Hunt, 172 Miss. 732, 161 So. 119. But appellants contend that the marriage is void in Arkansas because both parties to the marriage were domiciled in Arkansas. Ark. Stat. § 55-102 provides :
“Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall be absolutely void. # * *”
This brings us to the consideration of whether Arkansas will recognize the Mississippi marriage as valid in Arkansas. The general rule is, of course, that a marriage valid where it is celebrated is recognized as being valid everywhere. Restatement, Conflict of Laws, p. 185. But there are certain exceptions to the rule:
(1) Polygamous marriage.
(2) Incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicile.
(3) Marriage between persons of different races where such marriages are at the domicile regarded as odious.
(4) Marriage of a domiciliary which, the statute at the domicile makes void even though, celebrated in another state. Restatement, Conflict of Laws, p. 197.
Obviously the first three exceptions do not apply here, and it is equally clear that the fourth exception does not apply because we have no statute which forbids the creation, in another state, of the marriage status between persons such as the ones involved here.
In 35 Am. Jur. 289, it is said:
“Furthermore, a statute relating to the validity of marriages or capacity to marry will, according to one view, be held to apply to citizens or subjects outside the country or state in which it is enacted, even by courts of such country or state, only where it includes such persons by express terms or necessary implication. Indeed, the view has been taken that if a statute, silent as to marriage outside the state, prohibits classes of persons from marrying generally or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into or out of the state.” (Italics ours)
In In re Perez’ Estate, 98 Cal. App. 2d 121, 219 P. 2d 35 (1950), the California court said:
“Was the Arizona marriage of respondent and decedent void because it was contracted between the parties for the specific purpose and with the specific intent of evading the laws of California?
“This question must be answered in the negative.
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Sam BobiNsoN, Associate Justice.
The appellees, Harold Graves and Mr. and Mrs. J. B. Spearman, were charged in the municipal court of Hot Springs with the offense of contributing to the delinquency of a minor. They were each fined $50.00 and costs, and appealed to the circuit court. There, the cases were tried before the court without a jury, and from judgments of not guilty as to all of the defendants the State has taken an appeal to this Court.
The facts are undisputed. Sandra Spearman, a girl 13 years of age, and Harold Graves, a hoy 17 years of age, accompanied by Mr. and Mrs. J. B. Spearman, the parents of Sandra, and also by Mr. D. H. Graves, the father of Harold, went to Greenville, Mississippi, where, with the consent of Mr. and Mrs. Spearman and Mr. Graves, Harold and Sandra obtained a marriage license and were married. They returned to Arkansas, where Harold and Sandra lived together as man and wife for about four days, when Mrs. Murphy, attendance officer at the school in Hot Springs attended by Sandra, obtained a warrant in the municipal court of Hot Springs charging Harold and Mr. and Mrs. Spearman with contributory delinquency. There is no explanation of why D. H. Graves, who also made the trip to Mississippi and gave his consent to the marriage, was not charged in a like manner.
It appears that a few days before the trip to Mississippi for the wedding Mrs. Murphy had talked about the matter with Mrs. Spearman. Mrs. Murphy testified:
“A. Through the advice of Dr. Bruce and others I took Sandra to the place of business where the mother was — at the Park Place Baptist Church — and talked to the mother, presenting it to her — the ruling of a child under 16 years of age marrying would not be legally married in tbe State of Arkansas. Mrs. Spearman was very nice, very considerate about tbe whole thing. She said that her prayers bad been — -that she had consented to the marriage and she prayed that the Lord would take care of it and she felt this was the answer to her prayers. And Mrs. Spearman and the girl both consented that was the thing, and the girl wanted to know if I would talk with the boy and I said I would be happy to. But the boy was between his school and going to work, at the time, and the girl spoke up and said, ‘Mother, do you think it would be better if we talk with him tonight. ’ The mother agreed that she thought it would be better if they talked with the boy that night and see if it wouldn’t be better to let everything be settled that way. I left Mrs. Spearman and took Sandra back to school. Mrs. Spearman was very nice, very appreciative of my coming to the church with her at the time. Then I went back to school and placed the child back in school, and that was my talk with Mrs. Spearman. That was my conversation with her. ’ ’
Mrs. Murphy further testified that Sandra is not a delinquent child. She was asked:
“Q. Do you know whether or not Sandra Spear-man Graves is a delinquent child?
A. No, she has nothing against her whatsoever as a delinquent child. No, sir, I have never heard of anything against her.”
There is nothing in the record to indicate that the Graves or the Spearmans are other than good, upright people.
The charge of contributory delinquency against the defendants is not specific in any manner. It cannot be ascertained from any papers filed in court just whose delinquency the defendants are charged with contributing to, or the manner of such alleged offense. But it appears that the defendants were tried on the theory that the Mississippi marriage is void; that Harold and Sandra have lived together as husband and wife, and, therefore, Sandra has become delinquent; and that the defendants have contributed to such delinquency — Harold hy being a party to what is claimed to be a void marriage, and the Spearmans by consenting to such marriage. "With this view of the situation in mind, the case turns on the point of whether the Mississippi marriage is void. The trial court based the judgment of not guilty on the theory that the Mississippi marriage is valid, not only in the State of Mississippi, but everywhere. We agree.
It is conceded that if Sandra and Harold were residents of Mississippi the marriage would be valid in that State and elsewhere, Sandra being 13 years of age and Harold 17 years of age, the parents of both parties agreeing to the marriage. And undoubtedly such marriage would be valid. Hunt v. Hunt, 172 Miss. 732, 161 So. 119. But appellants contend that the marriage is void in Arkansas because both parties to the marriage were domiciled in Arkansas. Ark. Stat. § 55-102 provides :
“Every male who shall have arrived at the full age of 18 years, and every female who shall have arrived at the full age of 16 years, shall be capable in law of contracting marriage; if under those ages, their marriages shall be absolutely void. # * *”
This brings us to the consideration of whether Arkansas will recognize the Mississippi marriage as valid in Arkansas. The general rule is, of course, that a marriage valid where it is celebrated is recognized as being valid everywhere. Restatement, Conflict of Laws, p. 185. But there are certain exceptions to the rule:
(1) Polygamous marriage.
(2) Incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicile.
(3) Marriage between persons of different races where such marriages are at the domicile regarded as odious.
(4) Marriage of a domiciliary which, the statute at the domicile makes void even though, celebrated in another state. Restatement, Conflict of Laws, p. 197.
Obviously the first three exceptions do not apply here, and it is equally clear that the fourth exception does not apply because we have no statute which forbids the creation, in another state, of the marriage status between persons such as the ones involved here.
In 35 Am. Jur. 289, it is said:
“Furthermore, a statute relating to the validity of marriages or capacity to marry will, according to one view, be held to apply to citizens or subjects outside the country or state in which it is enacted, even by courts of such country or state, only where it includes such persons by express terms or necessary implication. Indeed, the view has been taken that if a statute, silent as to marriage outside the state, prohibits classes of persons from marrying generally or from intermarrying, or declares void all marriages not celebrated according to prescribed forms, it has no effect upon marriages, even of domiciled inhabitants, entered into or out of the state.” (Italics ours)
In In re Perez’ Estate, 98 Cal. App. 2d 121, 219 P. 2d 35 (1950), the California court said:
“Was the Arizona marriage of respondent and decedent void because it was contracted between the parties for the specific purpose and with the specific intent of evading the laws of California?
“This question must be answered in the negative. If parties who are residents of and domiciled in California, where their marriage would have been invalid, are married in another state in conformity with the laws of such state, even though they have entered such state with the avowed purpose of evading the laws of the state of California, such motive does not invalidate the marriage. ’ ’
In onr own case of Feigenbaum v. Feigenbaum,, 210 Ark. 186, 194 S. W. 2d 1012, Mr. Justice FbaNk Smith said:
“* * * Upon one branch, of the case there is no difference of opinion, and that is, that wherever the question of the validity of a marriage may arise, the question must be determined in accordance with the laws of the state where the marriage was contracted.”
In the case of State of Nebraska v. James Hand, 87 Neb. 189, 126 N. W. 1002, the court, beginning with a quotation from Van Voorhis v. Brintnall, 86 N. Y. 18, said:
“ ‘The validity of a marriage contract is to be determined by the law of the state where it was entered into. If valid there, it is to be recognized as such in the courts of this state, unless contrary to the prohibitions of natural law, or the express prohibitions of a statute. While every state can regulate the status of its own citizens, in the absence of express words a legislative intent to contravene the jus gentium, under which the question of the validity of a marriage contract is referred to the lex loci contractus, cannot be inferred. The intent must find clear and unmistakable expression.’ The court cites Medway v. Needham, supra (16 Mass. 157, 8 Am. Dec. 131), and also quotes from Putnam v. Putnam, 8 Pick. 433 the following: ‘If it shall be found inconvenient or repugnant to sound principle, it may be expected that the legislature will explicitly enact that marriages contracted within another state which if entered into here would be void shall have no force within this commonwealth. ’ Acting on that idea, Massachusetts subsequently enacted a law as follows: ‘Where persons resident in this state, in order to evade the preceding provisions and with an intention of returning to reside in this state, go into another state or country, and there have their marriage solemnized, and afterward return and reside here, the marriage shall be deemed void in this state. ’ After the passage of that law, the supreme court of Massachusetts in Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509, in an opinion by Mr. Chief Justice Gray, on page 464 of 113 Mass, say: ‘A marriage which, is prohibited here by statute because contrary to the policy of our laws is yet valid if celebrated elsewhere according to the law of the place, even if the parties are citizens and residents of this commonwealth, and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the state shall have no validity here. This has been repeatedly affirmed by well-considered decisions.’ And this seems to be the overwhelming weight of the better reasoned cases on the subject. 1 Bishop, Marr. Div. § 880; Courtright v. Courtright, 11 Ohio Dec. Reprint, 413; State v. Shattuck, 69 Vt. 403, 40 L. R. A. 428, 60 Am. St. Rep. 936, 38 Atl. 81; Norman v. Norman, 121 Cal. 620, 42 L. R. A. 343, 66 Am. St. Rep. 74, 54 Pac. 143, quoting from Com. v. Lane, supra; Sturgis v. Sturgis, 51 Or. 10, 15 L. R. A. (N. S.) 1034, 131 Am. St. Rep. 724, 93 Pac. 696.
“To hold otherwise would be to render void numberless marriages and to make illegitimate thousands of children the country over. In 1 Bishop on Marriage & Divorce, 882, this thought seems to have been in the mind of the author. He says: ‘It was formerly common for English parties wishing to intermarry without a compliance with their own marriage acts to go into Scotland, and there interchange the matrimonial consent simply in the presence of witnesses. Gretna Green was the most convenient point for the required hasty visit; and thus Gretna Green marriages became famous, and there was no question of their validity. But Parliament, in 1856, by Stat. 19 & 20 Yict. chap. 96, § 1, put an end to this by declaring that thereafter “no irregular marriage contracted in Scotland by declaration, acknowledgment, or ceremony shall be valid unless one of the parties had, at the date thereof, his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage.” ’ We do not question the power of a state to pass a law similar to that passed by Massachusetts, as hereinbefore set out, but our legislature has not seen fit to do so.”
Likewise, the General Assembly of the State of Arkansas has not seen fit to declare void a marriage such as the one involved here, celebrated in a sister state where it is valid. And there is no strong public policy in this State requiring the courts to declare that marriages such as the one involved here are void ab initio. Appellant bases the contention that the marriage is void without a court decree to that effect solely on the word “absolutely” which appears in Act 32 of the Acts of the General Assembly for the year 1941 (Ark. Stat. § 55-102, heretofore quoted). That Act amends the Revised Statutes, c. 94, § 2, § 9017 of Pope’s Digest, adopted in 1837. Chapter 94, § 2, § 9017 Pope’s Digest, provides:
“Every male who shall have arrived at the full age of seventeen years, and every female who shall have arrived at the (full) age of fourteen years, shall be capable in law of contracting marriage; if under those ages, their marriages are void.”
It will be noticed that under-age marriages are declared void; but Chapter 94, § 5 of the Revised Statutes (Ark. Stat. $ 55-106) provides:
“When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting (consenting) to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void, from the time its nullity shall be declared by a court of competent jurisdiction.”
The 1941 Act does not mention Ark. Stats. § 55-106, which declares that such marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction. Prior to the adoption of the 1941 Act, which uses the term “absolutely void,” our Court had declared that marriages between persons of prohibited ages were void only if declared void in a judicial proceeding. Kibler v. Kibler, 180 Ark. 1152, 24 S. W. 2d 867.
Moreover, in two cases decided subsequent to the adoption of the 1941 Act, the Court held that such marriages were voidable and not void. Hood v. Hood, 206 Ark. 1057, 178 S. W. 2d 674; Ragan v. Cox, 208 Ark. 809, 187 S. W. 2d 874.
The only authority among our cases to the effect that the term “absolutely void” means that the marriage is void db initio without a court proceeding in which it is nullified is the second Ragan v. Cox case, 210 Ark. 152, 194 S. W. 2d 681, but even that case appears to imply that certain marital rights may exist by reason of the marriage. If so, then of course some degree of validity must have attached to the marriage. The Court said:
“In the circumstances of this case the pretended marriage between W. A. and Louise Ragan was — certainly as to the appellee (through whose fraudulent agency the status was sought to be created) — a complete nullity. What effect the ceremony might have had upon any marriage status claimed by Louise does not enter into the discussion, because at her instance the records were purged.”
For a period of more than a century the established law, as well as the public policy of the State, was that underage marriages were valid until they were nullified by a court of competent jurisdiction. And now, the only authority for saying that the public policy of this State is otherwise is the decision in one case, which is contrary to the holding in two other cases (all decided since the adoption of the 1941 Act). In the circumstances, it can hardly be said that the public policy of this State against under-age marriages is so strong that such a marriage, valid in the state where it was contracted, is void in this State.
The celebration of a marriage gives rise to many ramifications, including questions of legitimacy, inheritance, property rights, dower and homestead, and causes of action growing out of the marital status. We have no statute which provides that marriages such as the one involved here, celebrated in another state, are void in the State of Arkansas.
Affirmed.
Harris, 0. J., dissents; George Rose Smith and Ward, JJ., concur.