(193 P.)

and that such action was taken by the board be made upon its minutes and shall certify to at a board meeting.

The statute upon this matter seems clear. the proceedings had in the premises, and Paragraph 2737, R. S. A. 1913, is:

Howard v. Luke, 18 Ariz. 563, 164 Pac. 439., which the money was intended to be used [6, 7] The plaintiff further alleges that the constitutes the whole purpose of the call. proposition submitted at the election con- They were not separate purposes. The statsisted of several questions and subjects, and ute does not require the notice of election therefore did not substantially conform to to specify the separate amount of the money the statute, to wit subdivision 4 of paragraph raised from a sale of the bonds for each 2736, R. S. A. 1913. The notice of the call item of the proposed improvements. In Howof the election states that the election is ard v. Independent School District, 17 Idaho, called "for the purpose of deciding whether 537, 106 Pac. 692, the notice of the election the negotiable coupon bonds of said school specified that the money received from the district shall be issued and sold by said dis- sale of the bonds was to be used in the trict for the purpose of raising money, viz., purchase of three school sites and for the $60,000 for building schoolhouses, viz., a ward erection of three separate school buildings school in South Prescott, an addition to the in different sections of the school district. Manual Arts Building, and additional school The taxpayers contended that there were rooms on the grounds of the Washington submitted necessarily three separate propschool or elsewhere, all in said district, and ositions, and that the voter was entitled to supplying the same with furniture and ap- an opportunity to vote for any one and paratus, improving grounds and purchasing against the others, or against any one and necessary sites, and to liquidate any indebt- for the other propositions. The court denied edness already incurred for such purposes." this contention and held that the objects are The appellant contends that subdivision 4 all parts of one purpose, viz., the equipment of paragraph 2736, R. S. A. 1913, authorizes for maintaining public schools within the the issuance of the bonds of the school dis- district. The following cases are cited as trict for the purpose of building schoolhouses upholding that contention: Hubbard v. complete, to wit, "the construction of a com- Woodsum, 87 Me. 88, 32 Atl. 802; Hamilton plete schoolhouse as a unit whole, and not v. Village of Detroit, 83 Minn. 119, 85 N. W. that of parts," is the language of appellant's 933; Rock v. Rinehart, 88 Iowa, 37, 55 N. brief. The appellant concedes that the ex- W. 21; Gifford v. Transportation Co., 10 N. pression, "a ward school in South Prescott" J. Eq. 177. To these cases I add Miely v. may be construed to mean a complete school- Metzger, 97 Kan. 804, 156 Pac. 753, and Peohouse, but the "additional school rooms are ple v. Caruthers School Dist., 102 Cal. 184, 36 not complete schoolhouses and as a conse- Pac. 396. quence they are not within the statute; that the building of additions to schoolhouses falls within the scope of repairs and the expense of which must be met and paid for as are re pairs and other like expenses out of money raised from sources other than from district

bonds."

Schoolhouses, as used in chapter 9, title 11, R. S. A. 1913, means the buildings owned or controlled by the school district, in which the public schools are assembled and conducted for the school district. These schoolhouses may consist of one or more rooms, of one or more separate buildings. Portions of the schoolhouse may be erected and occupied for years and another part added thereto. The part added is as truly a schoolhouse as the older part was a schoolhouse before the addition was made. Clearly, it is the principal purpose for which the house, addition, or rooms are intended to be used by the district that ought to determine whether or not it is a schoolhouse. The mere name used by the board of trustees in describing the kind of school house which it is proposed to build is not controlling. The general purpose of the election, expressed in the notice, was to build schoolhouses and furnish needed equipment for holding the public schools. The notice was not calculated to deceive the voters, but to give spe

[8] Other objections to the issuance of the bonds are that the notice of the call of the bond election was not published six times in each of the three weeks of publication before the election. The statute, paragraph 2737, requires that the notice shall be published, "if there is a newspaper published in the county, by publishing such notice not less than once a week for three successive weeks." It is conceded by the complaint that the notice was published once a week for four weeks prior to the election. In Hicks V. Krigbaum, 13 Ariz. 237, 108 Pac. 482, the court quotes with approval from 15 Cyc. 324,

to wit:

"The sole purpose of this being to warn the electors that an election is to be held, it is generally held that a substantial compliance with the statute is all that is required."

The complaint in this case shows, upon its face, that the conditions of the statute requiring the publication of the notice were literally complied with.

[9] The complaint fails to state facts showing that chapter 9 of title 11, R. S. A. 1913, has been substantially deviated from by the defendants. On the other hand, the complaint on its face shows that the require ments of the statute have been substantially observed in every essential particular, and therefore the complaint fails to state a cause

(193 P.)

[10, 11] I do not overlook an indirect ref- the state of Wyoming. "That on the 17th day erence in the complaint to the point that of March, A. D. 1915, at the town of Kimball, some secret combination of the school dis- in the state of Nebraska, the said plaintiff and trict officers is supposed to have been formed the defendant went through an alleged cerefor the purpose of selling the bonds when mony, which was in form the marriage cereready for sale, at a private sale and without braska." "That at the time the plaintiff and mony provided by the laws of the state of Necompetitive bidding, for private gain. This, defendant pretended to be married at Kimball, if true, would not invalidate the bonds; but Neb., the defendant had been divorced from a sale of the bonds in such circumstances her former husband for a period of only about would be questionable. This question was six months. That said defendant had obtained not seriously pressed by the appellant, and her divorce from her former husband in the we presume the officers will not violate the district court of the Sixth judicial district of Wyoming within the period of six months prior law. to the date of said alleged marriage in the state of Nebraska.

There being no reversible error on the record, the judgment is affirmed.

ROSS and BAKER, JJ., concur.

(27 Wyo. 178)

HOAGLAND v. HOAGLAND. (Supreme Court of Wyoming. Dec. 13, 1920.) Divorce

320-Remarriage in another state to evade prohibition of remarriage is valid. Under Comp. St. 1910, § 3907, making all marriage contracts without the state which are valid by the laws of the state in which they were contracted valid within the state, a remarriage by a woman within one year after securing a divorce within the state, contracted outside the state and with a resident of the state, who had gone out of the state to evade the prohibition of section 3951 against such remarriage, is valid within the state, since the latter section does not make such marriage invalid, but merely imposes a punishment on the parties contracting it.

"That said plaintiff and defendant went to the state of Nebraska to be married in order to avoid the laws of the state of Wyoming, which prohibit divorced persons from remarrying to any one other than the former husband or wife within the period of one year after the date of divorce.

"That the defendant did, in the year 1915, willfully desert the plaintiff for a period of one year, to wit, from and since the year 1915 up to and including the present time, and that said desertion was without cause or justification.

"That the petition in said case is not founded in or exhibited by collusion between plaintiff and defendant, nor has the plaintiff at any time been guilty of the misconduct charged by him against the said defendant."

The court thereupon rendered judgment as follows:

"It is therefore ordered, adjudged, and decreed that the said petition for divorce be de

nied."

Dated February 16, 1920.

The court having found all of the facts necError to District Court, Laramie County; defendant if the marriage in Nebraska was essary to entitle plaintiff to a divorce from William C. Mentzer, Judge.

Action for divorce by John L. Hoagland against Mary Hoagland. From a judgment denying the petition for divorce, plaintiff brings error. Reversed and remanded, with directions to enter a decree of divorce for plaintiff.

a valid marriage and is to be so regarded in this state, the question of the validity of that marriage is the only one in the case. The provisions of the statutes of this state on the subject are contained in sections 3907 and 3951, Comp. St. 1910, as follows:

Section 3907: "All marriage contracts withWilliam B. Ross, of Cheyenne, for plain- out this state, which would be valid by the tiff in error. laws of the country in which the same was contracted, shall be valid in all courts and plac

Section 3951: "During the period of one year from the granting of a decree of divorce, neither party thereto shall be permitted to remarry to any other person. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and shall be fined in any sum not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned in the county jail not exceeding three months, in the discretion of the court."

BEARD, C. J. From a judgment of the dis-es in this state." trict court of Laramie county denying the petition of plaintiff in error in an action for divorce, on the ground of desertion, brought by him against the defendant in error, he brings the case here by proceedings in error. The defendant below filed her answer, and the trial was had to the court resulting as above stated. The evidence in the case has not been brought up, and the only question here is, Do the findings of facts as made by the court support the judgment? The court found:

That both parties were and for at least six years last past had been actual residents of

Section 3907 is simply declaratory of the rule of the common law; the general rule being that a marriage valid in the state or country where contracted is valid everywhere. To that rule there are certain rec

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of his or her adultery, during the life of the former husband or wife, and declaring such second marriage void, had no application, as they are in the nature of a penalty, and have no effect outside of the state, in the absence of express terms showing a legislative intent to give them that effect."

ognized exceptions, namely, marriages which [§ 5; Id. 146, § 49), prohibiting the second are deemed contrary to the law of nature as marriage of a person divorced on the ground generally recognized in Christian countries, such as polygamous and incestuous marriages, and those which the Legislature of the state has declared shall not be allowed any validity, because contrary to the policy of its laws. It is to be observed that our statute does not declare marriages in violation thereof to be invalid, as do the statutes of several of the states, but simply prescribes a penalty which may be inflicted upon those who violate it. It is also to be observed that the statute applies to both parties, and prescribes the same penalty for the innocent as well as for the guilty party. The rule as stated in 5 R. C. L. 1004, and which is supported by the weight of authority, and with a few exceptions which will be referred to later, is:

"It is almost universally conceded that statutes prohibiting the guilty party to a judgment of divorce from marrying again, either for a certain period, or while the other party to the former marriage lives, are without effect outside the territorial limits of the prohibiting state. Since such a prohibition is in the nature of a penalty it does not apply to divorces granted outside of the state, nor does it carry any disability beyond the borders of the

state where in force."

In commonwealth v. Lane, 113 Mass. 458, 18 Am. Rep. 509, it was held that a marriage which was prohibited by the statutes of that state, because contrary to the policy of its laws, was valid if celebrated elsewhere according to the laws of the place, even if the parties were citizens and residents of Massachusetts, and had gone abroad for the purpose of evading the laws of Massachusetts, unless the Legislature had already enacted that such marriages out of the state should have no validity in Massachusetts; the court saying:

That rule was approved and followed in Thorp v. Thorp, 90 N. Y. 602, 43 Am. Rep. 189, which was an action for divorce wherein the facts were almost identical with the facts in the case at bar. The trial court there, as here, denied a divorce, and it was urged that plaintiff was in contempt of court in so marrying, but that contention was not sustained by the Court of Appeals, and the judgment was reversed. It would unduly lengthen this opinion to quote from numerous other cases sustaining the principles announced in the authorities above referred to, and we shall content ourselves by citing only some of them. Griswold v. Griswold, 23 Colo. App. 365, 129 Pac. 560; Loth v. Loth's Estate, 54 Colo. 200, 129 Pac. 827; Crouse et al. v. Wheeler, 62 Colo. 51, 158 Pac. 1100, Ann. Cas. 1918E, 1074; Phillips v. Madrid, 83 Me. 205, 22 Atl. 114, 12 L. R. A. 862, 23 Am. St. Rep. 770; State v. Shattuck, 69 Vt. 403, 38 Atl. 81, 40 L. R. A. 428, 60 Am. St. Rep. 936, and notes; Hills v. State, 61 Neb. 589, 85 N. W. S36, 57 L. R. A. 155, and note d, p. 169; Hilton v. Stewart, 15 Idaho, 150, 96 Pac. 579, 21 L. R. A. (N. S.) 48; Conn v. Conn, 2 Kan. App. 419, 42 Pac. 1006; Chace, Petitioner, 26 R. I. 351, 58 Atl. 978, 69 L. R. A. 493, 3 Ann. Cas. 1050; Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 785, 32 L. R. A. (N. S.) 1170.

There is, however, a conflict of authority, as stated in 5 R. C. L. 1004"upon the question whether the courts of the state which has enacted such a statute merely in general terms prohibiting such marriage will

"This has been repeatedly affirmed by well-recognize as valid the marriage of such person

considered decisions."

And in Van Voorhis v. Brintnall et al., 86 N. Y. 18, 40 Am. Rep. 505, a well-considered case, often cited, and where many cases are reviewed, we quote from the syllabus:

"Where * * * by a judgment of the Supreme Court of this state the marriage between E. and B. was dissolved on the ground of the adultery of the latter, the decree of divorce adjudging it to be unlawful for him to remarry during the life of E., and, thereafter, during her life, he went to Connecticut and there married I., both being residents of this state, having gone out of it for the purpose of evading its laws, returning to it on the day of the marriage, and thereafter, residing here, which marriage was valid under the laws of Connecticut, held, that a child of the second marriage, born in this state, was legitimate and entitled to share with the children of the first marriage in a devise to the issue of B.; also that the provision of the Revised Statutes (2 R. S. 139,

occurring out of the state while he is still domiciled within the state. The weight of au

thority is that if the marriage is valid according to the lex loci, it will be upheld even by the courts of the state which enacted the statute, and in which the parties to the remarriage are domiciled, even though the parties went out of the state to solemnize the second marriage for the express purpose of evading the law of the domicile and of the forum."

See cases cited in note to above.

An examination of the decisions in those cases holding otherwise generally will show that they were based upon statutes expressly declaring such marriages void, or declaring incapacity to contract, or which by express terms or by necessary implication suspend the operation of the decree, or where the statute was held to be declaratory of the public policy of the state, such marriage being regarded as either immoral or against natural laws, such as marriages between one

v. Conn, supra.

(193 P.)

ance.

Rem. Code 1915, § 7507, subd. 33, author

for any lawful purpose, and to provide for their revocation, is constitutional, meaning nothing more than that the city may in a lawful and constitutional manner provide for the granting and revoking of licenses.

Department 1.

Petition for writ of certiorari by the State, on the relation of Tom Makris, against the Superior Court of Pierce County. Judgment of the superior court denying relator relief reversed, and cause remanded, with directions to render judgment for relator.

divorced for adultery and the particeps crim- | yond the power of the city under Rem. Code inis, during the life of the innocent party, or 1915, § 7507, subd. 33, and beyond any posbetween a white person and one of the col- sible authorization of the Legislature, in its ored races. Griswold v. Griswold, and Conn authorization of the commissioner of public The statute in this state safety to revoke license for the conduct of a soft drink and candy business without a spedoes not in terms or by necessary implication cifically prescribed rule of action for his guiddeclare such marriages void, but simply prescribes a penalty for its violation. The decree of divorce becomes absolute when ren- 2. Licenses 7(1)-Act authorizing cities to grant and revoke licenses constitutional. dered, and leaves the parties free to remarry, save and except, if they do so within the prescribed period thereafter, they are sub-izing cities of the first class to grant licenses ject to punishment. In the present case the woman was the innocent party in the former divorce action, and the man (the plaintiff in this case) was, so far as the record shows, a single man, without any impediments to his contracting a lawful marriage either here or elsewhere. The inefficiency of statutes like ours and their tendency to create confusion and conflict between the laws of the several states have resulted in the adoption of statutes in some of the states providing, in effect, that in the trial of actions for divorce, if the court finds the facts proven to entitle a party to a divorce, it shall make and file such findings, but no decree shall be rendered thereon until the expiration of a prescribed period, thus leaving the bonds of matrimony in full force until the decree is entered. We have not been favored with a brief on behalf of the defendant in error, but from an examination of the authorities cited by counsel for plaintiff in error, and many others, we have arrived at the conclusion that upon the facts as found by the court it was in error in refusing to grant to plain-Broadway in that city. The trial of that actiff a decree of divorce; and for that reason the judgment of the district court is reversed, and the cause remanded to the district court, with directions to set aside and vacate the judgment heretofore entered, and to enter a decree of divorce in favor of plaintiff.

Reversed and remanded, with directions.

Frank H. Kelley, of Tacoma, for relator.

PARKER, J. The relator, Makris, commenced an action in the superior court for Pierce county against F. Shoemaker, commissioner of public safety of the city of Tacoma, seeking an injunction restraining him and all persons acting under him from interfering with him (Makris) in the conduct of his store and place of business kept for the sale of soft drinks and candy, at 13131⁄2

tion upon the merits resulted in judgment of the superior court denying Makris the relief prayed for. He now seeks in this court a reversal of that judgment by this review proceeding.

Shoemaker, as commissioner of public safety of the city of Tacoma, has assumed to revoke the license issued by the city to Makris

POTTER and BLYDENBURGH, JJ., con- for the conducting of his soft drink and

Ordinance of the City of Tacoma No. 6749,

candy business, and also threatens to force Makris to close his place of business. Shoemaker claims that his revoking of the license issued to Makris by the city, and his threatened forcing of Makris to close his place of business are legally justified by the manner of conducting the business by Makris, and the authority vested in him (Shoemaker) by the license ordinance of the city, providing for the licensing and regulating of such business. In February, 1918, the city passed its Ordinance No. 6749 creating a license department in the department of publicensing and regulating of various named oclic safety of the city, and providing for the cupations and businesses.

creating a license department in the department This ordinance of public safety, and providing for the licensing and regulating of various occupations and busi- provides for penalties by fine and imprisonnesses, as amended, in section 47, by Ordinance ment for its violation, applicable both to carNo. 7301, relative to the licensing and regulat-rying on of the named occupations and busiing of soft drink and candy stores, held be- nesses without a license therefor, and to the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes