Appeal from Circuit Court, Cook county; J. W. Mack, Judge.

Petition by the people, on the relation of Henry Buenger and another, for writ of mandamus commanding Peter B. Olsen, as county clerk, to issue a marriage license to relators. From a judgment awarding the writ, defendant appeals. Reversed.

Harry A. Lewis, William F. Struckmann, and Frank L. Shepard, for appellant. Elmer E. Ledbetter, for appellees.

BOGGS, J. On the 21st day of August, 1905, the relator appellees, Henry Buenger and Eliza Grimes, applied to the appellant, the county clerk of the county of Cook, for a license to be joined in marriage. Eliza Grimes had been lawfully married to one Herman Mischler, and on the 28th day of June, 1905, a decree was entered in the circuit court of Cook county dissolving such marriage relation at the application of said Eliza, on the ground that her said husband had been guilty of extreme and repeated cruelty to her and had deserted and abandoned her. The county clerk refused to issue the marriage license, for the reason that the act of the General Assembly approved May 15, 1905, in force July 1, 1905 (Laws 1905, p. 194), declared that a person who had been formerly married and had been granted a divorce on the ground that his or her spouse had been guilty of extreme and repeated cruelty or desertion and abandonment should not marry again within one year from the time the decree for divorce was granted, and because sections 6 and 13 of the act "to revise the law in relation to marriages," approved February 27, 1874 (Hurd's Rev. St. 1903, c. 89), as amended by the act of the Legislature approved May 13, 1905, in force July 1, 1905 (Laws 1905, p. 317), prohibited the county clerk, under penalties and punishments therein specified, from issuing a license for the marriage of a person who was legally incapable of contracting a marriage. The relators thereupon filed their petition in the circuit court of Cook county for a writ of mandamus commanding the said county clerk to issue such marriage license to them. A demurrer was interposed and overruled, and, the appellant having elected to abide his demurrer, the prayer of the petition was granted and judgment entered awarding the writ. The record is before us for review.

It is conceded that in terms the legislation of 1905 declared a person incapable of contracting marriage within one year after such person had been divorced, by decree of a court, from a former husband or wife on the ground of extreme and repeated cruelty or desertion and abandonment, for the statutory period. Appellees, however, contend that the decree divorcing the relator Eliza from her former husband was entered June 28th and prior to the time when such legislation came into force, and that therefore the enactments had no application to her right

to a license to be remarried. We have carefully considered all that is urged in the brief of counsel in support of this contention. The prohibition of remarriage within the specified time after the rendition of a decree of divorce is to be found in an additional section, added to and as an amendment to the act entitled "an act to revise the law in relation to divorces." in force July 1, 1874, and it is argued that the title to that act is not broad enough to include legislation changing the statute providing for and with reference to the issuance of licenses to marry, and therefore cannot, within the constitutional intent, be held to apply to applications for the issuance of such licenses. This contention overlooks the fact that at the same session of 1905 of the General Assembly an act was adopted amending the act to revise the law in relation to marriage, approved February 27, 1874, under which licenses to marry were authorized to be issued. Section 6 of the amendment of 1905

to the marriage law, among other things, made it the duty of the county clerk to obtain an affidavit from at least one of the parties contemplating the marriage, "for the purpose of ascertaining the age of the parties and the legality of the contemplated marriage." Section 13 of the said marriage act, prior to the amendment of 1905, made the clerk liable to the payment of a fine in the event he issued a license for the marriage of persons under legal age without the consent of the parent or guardian of such minor. By the amendment of 1905 to said section 13 the county clerk is declared to be guilty of a misdemeanor and made subject to a fine of not less than $100 nor more than $500 if he shall "knowingly issue a license for the marriage of persons who are legally incapable of contracting a marriage." It will thus be seen that the amendment of 1905 to the divorce act is not an amendment to the marriage statutes, and therefore it was not necessary to state in the title to the divorce amendment anything with reference to marriages. The statute relating to marriages, as amended, does not, nor did it originally, purport to state all grounds which render persons incompetent to enter into the marriage relation. When application is made to the county clerk to issue a license to persons to marry by virtue of the provisions of the amendment to section 3, it becomes his duty to inquire into everything affecting the competency of the persons applying for the license to enter into such relation. His duty under this section, prior to the amendment, only required him to inquire as to the age of the parties. By the amendment it became his duty, in order to avoid liability to pay a fine, etc., to refer to the divorce act, and determine whether such persons so applying, who had been divorced, were competent persons to marry.

The enactments are neither ex post facto laws nor does the construction we give them

Decrees

make them operate retrospectively. granting divorces which were entered before July 1, 1905, the date at which the acts, respectively, became effective, remain in full force and virtue and wholly unaffected by the enactments. That which is forbidden and made the subject of the imposition of penalties and of criminal punishment are acts of the parties after the 1st day of July, 1905. Prior to that date a person who had, within a period of less than one year, been divorced might have lawfully applied for and received license to remarry, and the clerk might lawfully have issued such license within that period. But under the amendatory acts the remarriage of such divorced person within the prescribed period was prohibited, and that which is declared illegal and rendered punishable is the act subsequent to July 1, 1905, and is not any impairment of the decree of divorce. The right to remarry does not accrue from a decree of divorce, but from the existing law regulating the issuance of licenses to marry. Prior to July 1, 1905, under the statute then in force, male persons over the age of 17 years and females over the age of 14 years were competent to enter the marriage relation. After the amendment of 1905 the age of competency to contract was raised and persons of those ages became no longer competent to be joined in marriage. The amendment, therefore, operated to render incompetent to marry after July 1, 1905, on the ground of nonage, persons who prior to that date could lawfully contract matrimony. As to persons who had been divorced after the passage of the amendatory act and before the 1st day of July, the amendatory legislation had the same effect, in that it so changed the existing law as to the right of persons to contract matrimony until the expiration of a specified time after the rendition of a decree of divorce.

No one will contend that it is not within the power of the Legislature to raise the age of competency to contract and be joined in marriage, though such enactment deprived persons of a privilege or right which they enjoyed under previous legislation; and it is equally clear that the fact that a party had been divorced from a previous marriage may be legally declared to constitute a disqualification to the right to receive license and contract a second marriage within a reasonable time specifically stated in the statute. We think the statutes under consideration became operative and effective after July 1, 1905, infringed no constitutional right of the relators or either of them, and their provisions became obligatory upon the county clerk, and that he properly refused to issue a license to the relators to intermarry.

The judgment of the circuit court must therefore be reversed, and the cause will be remanded.

Reversed and remanded.

(73 Ohio St. 16)

BALTIMORE & O. R. CO. v. CHAMBERS. (Supreme Court of Ohio. Oct. 31, 1905.) DEATH-WRONGFUL ACT-RIGHT OF ACTION.

No action can be maintained in the courts of this state upon a cause of action for wrongful death occurring in another state. except where the person wrongfully killed was a citizen of the state of Ohio. (Syllabus by the Court.)

Error to Circuit Court, Mahoning County. Action by Elizabeth M. Chambers against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

She

Suit was brought by Elizabeth M. Chambers in the court of common pleas of Mahoning county, Ohio, against the Baltimore & Ohio Railroad Company, to recover damages from said company for negligently causing the death of her husband, Harry E. Chambers, who, she alleged, was killed on the 19th day of September, 1902, on the line of defendant's railroad in the state of Pennsylvania. Plaintiff in her petition pleads certain statutes of the state of Pennsylvania, and avers that under and by virtue of such statutes there accrued to her, because of the matters complained of in her petition, the right to maintain an action and recover damages in respect thereof against the defendant company in the state of Pennsylvania. therefore claims the right to maintain such action in Ohio. At the trial of this cause in the court of common pleas of Mahoning county, at the May term, 1904, it was admitted by the plaintiff that at the time of the grievances complained of in her petition, and for a long time prior thereto, she and her said husband, Harry E. Chambers, were and had been citizens and residents of the state of Pennsylvania. On the trial of said cause the plaintiff, Elizabeth M. Chambers, to maintain the issues on her part, offered in evidence the deposition of J. J. Green. Thereupon, and before said deposition was read, the defendant objected to the introduction of any testimony in the case, assigning as reason therefor "that the averments of the petition do not constitute a cause of action against the defendant, and that, as the plaintiff and her husband were at the time of the occurrence of the grievances complained of citizens and residents of the state of Pennsylvania, and the negligence complained of and the injury inflicted occurred in the state of Pennsylvania, therefore no right of action accrued in this state." The court overruled the objection, and the testimony offered by the plaintiff was introduced, to which the defendant at the time excepted. Further testimony was offered and received over the objection of the defendant company, and after the arguments of counsel and charge of the court the case was submitted to the jury, who returned a verdict in favor of the plaintiff, Elizabeth M. Chambers. The defendant, the railroad company, within three

days made and filed its motion for new trial, which motion was overruled by the court and judgment was entered on the verdict. Thereupon the railroad company prosecuted error to the circuit court of Mahoning county, which court affirmed the judgment of the court of common pleas. The company now brings error in this court.

Arrel, McVey & Tayler, for plaintiff in error. Murray & Koonce and W. S. Anderson & Son, for defendant in error.

CREW, J. (after stating the facts). The record in this case presents the question whether the widow of a decedent, who at the time

of his death was neither a citizen of nor resident in the state of Ohio, can maintain an action in the courts of this state to recover damages for his wrongful death occurring in another state, where the statutes of the state in which he was killed gives her the right to maintain such action in that state. Or, differently stated, the question here to be determined is, will the courts of this state take and entertain jurisdiction of actions to recover damages for wrongful death under the statutes of a sister state, where, as in this case, the decedent and his next of kin were, at the time of the injury and death for which a recovery is sought, all citizens of, and residents in, such sister state. As appears of record in this case, the cause of action relied upon and pleaded by plaintiff in her second amended petition is not one arising in, or founded upon any statute of, the state of Ohio; but said cause of action is one that accrued to her in the state of Pennsylvania, and is founded upon certain statutes of that state set forth and pleaded by her in said amended petition as follows:

"That by reason of the premises a right of action accrued to plaintiff upon the death of her husband, the said Harry E. Chambers, in the manner aforesaid, by the means aforesaid, under and by virtue of the act of the General Assembly of the state of Pennsylvania approved April 15, 1851 (P. L. 669) and the act of the General Assembly of said state, approved April 26, 1855 (P. L. 309). "Sections 18 and 19 (page 674), of the act of April 15, 1851, are as follows:

"Sec. 18. No action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.

"Sec. 19. Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured, during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.' "Sections 1 and 2 of the act of April 26, 1855, are as follows:

"Sec. 1. The persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered shall go to them in the proportion they take his or her personal estate in case of intestacy, and that without liability to creditors.

"Sec. 2. That the declaration shall state who are the parties entitled to such action; the action shall be brought within one year after the death and not thereafter.'

"Plaintiff further says that by section 21, art. 3, of the Constitution of the state of Pennsylvania, of 1874, it is provided as follows, to wit:

"'Sec. 21. No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and in case of death from said injuries, the right of action shall survive and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.'"

A comparison of the foregoing statutes with the wrongful death statutes of our own state, independent of section 6134a (Bates' Ann. St.), which is hereinafter specially considered, will disclose the fact that, although they belong to the same general class of legislation, they are nevertheless in many of their provisions wholly unlike the Ohio statutes. And, while in the present case we entertain the opinion that this dissimilarity in provision is not such as of itself to defeat jurisdiction, yet the fact that such dissimilarity exists is at least, we think, worthy of note. The following are some of the points of difference: Under the Pennsylvania statute the action for causing wrongful death must be brought by the widow, if there be one. Under the Ohio statute (section 6135, Rev. St. 1892) such action can only be brought by the personal representative of the deceased person. In Pennsylvania the action must be brought within one year from decedent's death, and there is no limit to the amount of the recovery. In Ohio (section 6135, Rev. St. 1892) the action must be brought within two years from the death of the decedent, and the amount that may be recovered is expressly limited to a sum not exceeding $10,000. Plaintiff's action in the present case being in its nature special and, one founded exclusively upon the statutes of the state of Pennsylvania, and being for a cause of action arising wholly within that state for wrongfully causing the death of a citizen of that state, even though such cause of action be held to be transitory in its nature, the only principle upon which plaintiff may invoke the jurisdiction of, or may maintain such action in, the courts of this state, in the absence of express legislative permission so to do, is that of comity, and, if her action be not sustainable upon that ground, she must be held to be without right to bring

or maintain the same in the courts of Ohio, for it must be conceded that the statutes of Pennsylvania cannot operate to confer upon her any such right; they being without authority or binding force beyond the territorial limits of that state.

Judge Story, in his treatise on the Conflict of Laws, lays down, as the basis upon which all reasonings on the law of comity must necessarily rest, the following maxims: First, "that every nation possesses an exclusive sovereignty and jurisdiction within its own territory"; secondly, "that no state or nation can by its laws directly affect or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects or others." The learned judge then adds: "From these two maxims or propositions there follows a third, and that is that whatever force and obligation the laws of one country have in another depend solely upon the laws and municipal regulation of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent." Story on Conflict of Laws, § 23. And Minor, in his very recent work (Conflict of Laws, p. 10, § 6), in discussing the exceptions to the enforcement of a foreign law in the state of the forum, says: "Few general principles of private international law are so well settled as the rule that no foreign law (even though, under ordinary circumstances, it be the "proper law") will be enforced in a sovereign state, if to enforce it will be to contravene the express statute law or an established policy of the forum, or is injurious to its interests." The doctrine of the foregoing authorities-and many more might be cited to the same effectleads to the conclusion that an action may only be brought and maintained in a jurisdiction other than that in which the cause of action arose, when the cause of action is itself transitory, and its enforcement not inconsistent with, or obnoxious to, the laws or public policy of the jurisdiction in which the suit is brought. In other words, the law of comity, so called, is not a law of absolute obligation, and its principles can never properly be invoked in aid of the enforcement of a foreign statute, where the effect of the enforcement of such foreign statute would be, or is, to set at naught the positive law or public policy of the particular forum to which resort is had.

Logically, then, the inquiry suggests itself in the present case, is it in harmony and accord with the laws and public policy of the state of Ohio to permit the enforcement in the courts of this state of a cause of action arising under the wrongful death statutes of the state of Pennsylvania in favor of the next of kin of one who at the time of his death was neither a citizen of nor resident in the state of Ohio. Primarily the Legislature must be held to be the judge of questions of public policy, and, if it has spoken plainly, either for

or against the enforcement of a statute of a sister state in a given case, the courts must obey its mandate. It is well understood that at common law, in pursuance of the maxim "Actio personalis moritur cum persona," no right of action existed in favor of the heirs, distributees, or personal representative of a deceased person for damages for his wrongful death. The right of action which the injured person had abated with his death. This unsatisfactory state of the common law, with respect to the right to recover for death due to negligence or wrongful act, led to the passage of statutes giving a right of recovery in such cases. The earliest of these statutes was the English act of 1846 (St. 9 & 10 Vict. c. 93), commonly known as "Lord Campbell's Act," and this enactment has served as the model for much of the subsequent legislation on this subject, now to be found in most, if not in all, of the states of the Union. 8 Am. & Eng. Ency. Law, 854, 858. By an act of the General Assembly of the state of Ohio, passed March 25, 1851 (Swan & C. Rev. St. p. 1139), Lord Campbell's act was adopted into, and became a part of the legislation of this state, and the right was thereby given for the first time in Ohio to recover for a death caused by wrongful act, neglect, or default. This statute, in the form in which it was originally enacted, was several times before this court for review, and it was uniformly held that the act gave no right of recovery in those cases where the wrongful act which caused the death occurred outside of the state of Ohio. This court so held in Woodard v. Railroad Co., 10 Ohio St. 121; Hover, Adm'r, v. Pennsylvania Co., 25 Ohio St. 667; Brooks, Adm'r, v. Railway Co., 53 Ohio St. 655, 44 N. E. 1131, and Railroad Co. v. Fox, Adm'r, 64 Ohio St. 133, 59 N. E. 888; In Hover, Adm'r, v. Pennsylvania Co., supra, the court says: "The act of March 25, 1851 (Swan & C. Rev. St. p. 1139), allowing an action by the representatives of a party whose death was caused by the wrongful act of another, does not extend to cases where the wrongful act which caused the death was committed outside the state of Ohio." In Railroad Co. v. Fox, Adm'r, supra, Spear, J., at page 141 of 64 Ohio St., at page 889 of 59 N. E., referring to section 6134, Rev. St. 1892, which section differs in no essential particular from the original act of March 25, 1851, says: "It is established law in Ohio, however, that section 6134 does not extend to wrongful acts causing death outside of this state, and that prior to the passage of section 6134a, Bates' Ann. St., no action by an administrator for such cause could be maintained in our courts." This, then, was the status of the law of Ohio up to and until the enactment of original section 6134a, which was passed May 21, 1894 (91 Ohio Laws, p. 408), and is as follows: "Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in