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It is said by the court in Martin v. Robson, 65 III. 129, 16 Am. Rep. 578: "A liability which has for its consideration rights conferred should no longer exist when the consideration has failed. If the relations of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time, every principle of right would be violated to hold him still responsible for her conduct. If she is emancipated, he should no longer be enslaved. So long as the husband was entitled to the property of the wife and to her industry, so long as he had power to direct and control her, and thus prevent her from the commission of torts, there was some reason for his liability. The reason has ceased. The ancient landmarks are gone. The maxims and authorities and adjudications of the past have faded away. The foundations hitherto deemed so essential for the preservation of the nuptial contract and the maintenance of the marriage relation are crumbling. The unity of husband and wife has been severed. They are now distinct persons, and may have separate legal estates, contracts, debts, and injuries. * * So diverse are the rights and interests, the duties, obligations, and disabilities of husband and wife now, that it would be most unreasonable to hold him still liable for the torts committed without his presence and without his consent or approbation. * They are not one as heretofore. They are one in name, and are bound by solemn contract, sanctioned by both divine and human law, to mutual respect; should be of the same household, and one in love and affection. But a line has been drawn between them, distinct and ineffaceable, except by legislative power. His legal supremacy is gone, and the scepter has departed from him." Martin v. Robson, 65 Ill. 129, 16 Am. Rep. 578. These words truly state the legal relationship of husband and wife as it exists in Colorado. Since they were written the statutes of this state have been broadened, until now there is scarcely a semblance of the common-law reciprocal liabilites and duties remaining. The decision in the case of Martin v. Robson has been followed by the cases of Norris v. Corkill, 32 Kan. 409, 4 Pac. 862, 42 Am. Rep. 489; Harris v. Webster, 58 N. H. 481; Lane and Wife v. Bryant, 100 Ky. 138, 37 S. W. 584, 36 L. R. A. 709; Culmer v. Wilson, 13 Utah, 129, 44 Pac. 833, 57 Am. St. Rep. 713; Goken v. Dallugge, 72 Neb. 16, 99 N. W. 818, 101 N. W. 244, 103 N. W. 287. These decisions are based upon the principle that where the reason, which is the spirit and soul of the law, fails, the law fails. We regard them as logical, forceful, and just, and we desire to be in line with them.

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The other assignments of error we regard as being without merit, and we shall not discuss them.

The judgment will be reversed as to the appellants L. Schuler, G. C. Collins, and Joe

Gontier, and affirmed as to the other appellants.

GABBERT and MAXWELL, JJ., dissent. HELM, J., did not participate.

By

MAXWELL, J. (dissenting). Mr. Justice GABBERT and myself dissent from the foregoing opinion, and on account of some expressions found in the opinion of the Chief Justice deem it due to ourselves to state the reasons for our dissent. It is conceded that the common law which makes the husband liable for the torts of his wife has not been expressly repealed, and that, if such repeal has taken place, it is by implication. section 4184, Mills' Ann. St., the common law of England, so far as the same is applicable and of a general nature, with certain exceptions, was adopted by the territorial Legislature of 1861, and it is provided that it "shall be the rule of decision, and shall be considered of full force until repealed by legislative authority." It has been repeatedly held by this court that statutes in derogation of the common law shall be strictly construed, and in considering repeals of the common law by implication the same rules should be applied as are applied to statutes, for the reason that the common law is made a part of our jurisprudence by statutory enactment. We believe that many if not all of the arguments of the learned Chief Justice are subject to the criticism contained in the following excerpt from the dissenting opinion of Mr. Justice Campbell in Insurance Co. v. Ross-Lewin, 24 Colo. 43, 56, 51 Pac. 488, 493, 65 Am. St. Rep. 215: "But these and similar arguments are more properly addressed to the legislative department as reasons for changing a long recognized commonlaw rule, and should not be potential with courts as a reason why they should encroach upon legislative functions."

To determine the question presented, an examination of statutory enactments from the days of territorial legislation is necessary, keeping in mind the well-settled rules of construction that the common law will not be held to be abrogated unless the language used in the statute requires it; that an intent to change the common law will not be presumed from doubtful statutory provisions; that statutes must be construed as a whole, and where it is possible effect must be given every section and every word; and that statutes must be so construed as to carry out the intent of the legislators. The sections of the statutes relied upon for an affirmative answer to this question are 2 Mills' Ann. St. §§ 3007, 3009, 3012, 3020, and 3021. By section 3007 a married woman retains as her separate estate all property, real and personal, which she may own at the time of her marriage, together with the rents, issues, and profits thereof, and all property which she may acquire in any manner during the marital relation, and the same shall not be subject to the disposal of her husband, or liable

for his debts. By section 3009 a married woman may sue or be sued in all matters relating to her property, person, or reputation as if she were sole. By section 3012 a married woman may carry on any trade or business, and perform any labor or services, on her sole and separate account, may sue or be sued as if sole in relation thereto, and the proceeds of such property may be taken on execution against her. Sections 3007, 3009, and 3012 are found in "An act to protect the rights of married women," enacted at the first session of the Legislature of the territory November 7, 1861. Territorial Laws 1861, p. 152. This act embodied 18 sections. Section 13 of the act of 1861, p. 153 (2 Mills' Ann. St. 3014), is: "In all marriages hereafter contracted, the husband shall be liable for the debts and the liabilities of the wife contracted before marriage, to the extent of the real and personal property he may receive with or through her, or derive from the sale or rent of her lands and no further." The use of the words "debts" and "liabilities" in this section is significant. A "debt" is a sum of money due by certain and express agreement. 3 Blackstone Com. 154. A "liability" is responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. This liability may arise from contracts either express or implied, or in consequence of torts committed. Bouvier's Law Dict. We must conclude that the Legislature recognized this distinction in the use of the two words, and the statute cannot be fairly construed without giving to them their full force and effect.

The Supreme Court of Missouri in Nichols v. Nichols, 147 Mo. 387, 48 S. W. 947, in construing a section of the Missouri statute, in effect the same as the one last above quoted, at page 408 of 147 Mo., at page 953 of 48 S. W., said: "While the first three sections of the statute are devoted to this subject-the rights and liabilities of the wife-they bear upon their face evidence that the Legislature was not unmindful of the liabilities of the husband at common law, and the effect that this legislation would have upon those liabilities, and in the last section limited and defined that effect in the following language: 'Section 6870, Rev. St. 1889. The husband's property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted or incurred by his wife before their marriage.' Here upon the familiar principle of 'Expressio unius, exclusio alterius,' is a positive expression of the legislative intent as to the extent to which this legislation should go in exempting the husband from the liabilities of the wife. Before this enactment he was liable for her torts committed before marriage as well as during coverture. Thereafter he was to be liable for her torts committed before marriage only to the extent of the property acquired from the wife. If we keep within the legislative intent discovered by the usual

rules of interpretation, as is our duty to do, how can we hold that the husband, by virtue of this statute, is not liable for the torts of the wife committed during coverture, as he was before its enactment? In order to do so we would have to entirely ignore this section of the statute, as counsel do in their argument, disregard the legislative intent so far as it can be discovered from the terms of the statutes, and base our ruling on the assumption that the reasons for the existence of this liability at common law were wiped out by the enactment, therefore the liability must go with it; this assumption being at the same time unwarranted."

Under the above authority, and upon principle, it seems to us clear that the Legislature understood that the common-law liability of the husband was existent as to the debts and liabilities of the wife contracted before and after marriage, and that it was the intention only of the lawmakers by this section to limit the liability of the husband for debts and liabilities contracted before marriage as therein indicated, without in anywise affecting his liability for her debts (except debts relating to her separate property, business, or earnings) and liabilities contracted after marriage. This conclusion is fortified by section 16 of the act of 1861, which is: "That when any judgment is rendered against any husband and wife for the tort of the wife, execution on such judgment shall first be levied on the land of such wife, if she have any." Here is a clear recognition by the Legislature that the common-law rule prevailed, and that it would prevail notwithstanding the enactment of the preceding sections of the statute showing conclusively, as we think, that it was not the intention of the Legislature to abrogate the common law by the enactment of the sections upon which counsel for appellants relied (sections 30073012, Mills' Ann. St.), on the other hand expressly recognizing the existence of the common-law rule. The last above-quoted section was repealed by "An act concerning married women," Sess. Laws 1874, p. 185. The only effect of this repeal was to permit a party in whose favor a judgment had been rendered against husband and wife for the tort of the wife to proceed immediately by execution against the property of the husband without first levying upon the land of the wife. Thus it seems beyond question that it was not only not the intention of the legislators who enacted the sections of the statute now known as sections 3007, 3009, and 3012, 2 Mills' Ann. St., to abrogate the common-law rule, but they in express terms recognized it.

It remains to determine whether legislation subsequent to that above referred to abrogates the rule. Section 3020 is: "A married woman may sue and be sued in all matters the same as if she were sole." This section seems to be simply an attempt to enlarge the rights and liabilities of married women conferred by section 3009 supra. Upon

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a close analysis, however, it will be apparent that this section in no wise enlarged the rights or liabilities of married women, as the expression "all matters" does not include any matters which are not included in "all matters having relation to her property, person, or reputation." What rights or liabilities can any person have which do not relate to person, property, or reputation? Certainly none of which earthly courts have jurisdiction. In discussing the subject "Actions against husband and wife," Mr. Pomeroy says: "It is the settled rule in all the states which have adopted the reformed system of procedurè that in actions to recover damages for all torts done by the wife personally, and not done merely by or by the use of her separate property, the common-law principle is unaltered, and the husband and wife must be joined as codefendants. The principle thus stated assumes that the wife acted voluntarily. * * * If, however, the tort is not committed by the wife personally, but is done by means of her separate property, or in the use thereof, or under color or claim of ownership of her separate property, the action should be brought against her individually, without joining the husband as a codefendant, in all those states whose statutes permit a married woman to be sued alone in respect of all matters which concern her separate estate." Pomeroy's Remedies and Remedial Rights, §§ 320, 321. Section 3021, Mills' Ann. St., is: "Any woman, while married, may contract debts in her own name and upon her own credit, and may execute promissory notes, bonds, bills of exchange and other instruments in writing, and may enter into any contract the same as if she were sole; and in all cases where any suit or suits, or other legal proceedings shall be instituted against her, and any judgment decree or order therein shall be rendered or pronounced against her the same may be enforced by execution or other process against her the same as if she were sole." There is nothing whatever in this section which by any possibility can be construed as relieving the husband from the common-law liability for torts of his wife committed during coverture. It simply extends the powers and responsibilities of the wife. In discussing "An act concerning married women" (Laws 1874, p. 185), and referring particularly to the two foregoing sections, Chief Justice Thatcher, City of Denver v. Clements, 3 Colo. 484, on page 493, said: "This is essentially an enabling statute, and as such must be liberally construed to effectuate the purpose of its enactment. It confers, in terms, enlarged rights and powers upon married women. In contemplation of this statute, whatever may be the actual fact, a feme covert is no longer sub potestate viri in respect to the acquisition, enjoyment, and disposition of real and personal property. This statute asserts her individuality, and eman

cipates her in the respects within its purview from the condition of thraldom in which she was placed by the common law. The legal theoretical unity of husband and wife is severed so far as is necessary to carry out the declared will of the lawmaking power. With her own property she, as any other individual who is sui juris, can do what she will, without reference to any restraints or disabilities of coverture. Whatever incidents, privileges, and profits attach to the dominion of property, when exercised by others, attach to it in her hands." In Loveland v. Kearney, 14 Colo. App. 463, 466, 60 Pac. 584, 585, it is said: "In this state in respect to matters of business a married woman is upon the same footing with a feme sole. She may engage in business, acquire property and dispose of it, independently of her husband, and unbound by any of the restraints or disabilities of coverture. Wells v. Caywood, 3 Colo. 487; Scott v. Mills, 7 Colo. App. 155, 42 Pac. 1021." We believe that the most which can be claimed for the legislation of this state under discussion is fully expressed by what was said by Chief Justice Thatcher, above quoted, and except as qualified by section 3014, Mills' Ann. St., such legislation does not in any manner emancipate the husband from his common-law liability to respond in damages for the torts of his wife.

The authorities followed in the majority opinion are: Martin v. Robson, 65 Ill. 129, 16 Am. Rep. 578; Norris v. Corkill, 32 Kan. 409, 4 Pac. 862, 49 Am. Rep. 489; Lane v. Bryant, 100 Ky. 138, 37 S. W. 584, 36 L. R. A. 709; Culmer v. Wilson, 13 Utah, 147, 44 Pac. 833, 57 Am. St. Rep. 713. Martin v. Robson, supra, is the leading case in support of the proposition that the common law has been abrogated by legislation which "gives to the wife during coverture the sole control of her separate estate and property acquired in good faith from any person other than her husband, and her own earnings for labor performed for any person other than her husband or minor children, with the right to use and possess the property and earnings free from the control or interference of her husband." This decision was rendered by the Supreme Court of Illinois upon the statutes of 1861 (Laws 1861, p. 143) and 1869 (Laws 1869, p. 255), each of which statutes contained one section only, and did not contain provisions along the line of the provisions contained in section 13 and 16 of the act of 1861, or anything similar thereto, which we have shown were a clear legislative recognition of the common-law rule. The majority opinion of the court in Martin v. Robson, supra, which is relied upon by counsel for appellants in the case at bar, was dissented from by Justices Sheldon, Scott, and Breese. At the session of the Legislature of Illinois immediately following the announcement of the opinion the following was enacted: "For all civil injuries committed by a

married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor, except in cases where he would be jointly responsible with her, if the marriage did not exist." Rev. St. Ill. 1874, p. 576, c. 68, § 4. This act would seem to indicate that the lawmaking power of Illinois was not entirely satisfied with the soundness of the conclusion arrived at by a bare majority of the court, and deemed it expedient to put the question at rest by legislative enactment. Culmer v. Wilson, supra, cited by counsel, decided that the husband was not liable for the torts of his wife committed before he married her, and while she was the wife of another man, and is manifestly not in point. All of the authorities cited are cases in jurisdictions where the common law has not been repealed by direct legislation, the repeal by implication being declared by the courts. The argument adopted in Martin v. Robson, supra, has been substantially adopted by the courts so ruling, and is the argument adduced here in support of appellant's contention. It is thus stated in Martin v. Robson, 65 Ill. at page 133 (16 Am. Rep. 578): "A liability which has for its consideration rights conferred should no longer exist which the consideration has failed. If the relations of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time, every principle of right would be violated to hold him still responsible for her conduct. If she is emancipated, he should no longer be enslaved." And again at page 137 of 65 Ill. (16 Am. Rep. 578): "So long as the husband was entitled to the property of the wife and to her industry, so long as he has power to direct and control her, and thus prevent her from the commission of torts, there was some reason for his liability. The reason has ceased. The ancient landmarks are gone. The maxims and authorities and adjudications of the past have faded away. The foundations hitherto deemed so essential for the preservation of the nuptial contract and the maintenance of the marriage relation are crumbling. The unity of husband and wife has been severed. They are now distinct persons, and may have separate legal estates, contracts, debts, and injuries." In other words, the maxim "Cessante ratione legis, cessat et ipsa lex," is invoked and relied upon. This argument is based upon the erroneous assumption that there was one reason only for the rule at common law. It is beyond dispute that other reasons than the one stated and relied on for the rule at common law existed and now exist. In the dissenting opinion of Mr. Justice Sheldon (Martin v. Robson, 65 Ill., at page 140 [16 Am. Rep. 578]) it is said: "The assumed foundation of the rule is not all removed yet. A part of it, to wit, that whatever accrues to the wife by her labor belongs to the husband, for the most part, yet remains. Of this description chiefly

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are the services of married women. Any other are exceptional. As to the husband's right to the services of his wife being one of the assigned reasons of his liability for her acts and obligations, see 2 Bac. Abr. 33, tit. 'Baron & Femme,' F; Tyler on Infancy and Coverture, 333. * Because the Legislature has seen fit to interfere with this unity of person so far as to allow the wife the enjoyment of her separate property and to have her earnings to a limited extent, it does not follow that the courts should annul it in any other particulars. * * As the acquisitions of the joint industry of husband and wife belong to the former, we may expect it to be the exception, rather than the rule, where there will be found separate estate belonging to the wife to be reached by execution. This will make the remedy by recovery of damages by suit against the wife alone of little worth. Thus the abrogation of the law in question leaves the party who may receive injuries at the hands of a married woman practically remediless. It will so be that she, in most instances, may commit private wrongs with legal impunity, and wives will be made, as it were, licensed wrongdoers. A weakening effect will be produced in the respect of family government, which is a powerful aid to that of the state in the maintenance of civil order."

In D. & R. G. R. Co. v. Young, 30 Colo. 349, 351, 70 Pac. 688, it is said: "While these provisions (sections 3009, 3012, 3020, 2 Mills' Ann. St.) have relieved a married woman from many of the disabilities imposed under the common law, they have not abrogated all the common-law relations of husband and wife. She is still required to perform the usual and ordinary household duties. For services of this character she is not entitled to any monetary compensation from her husband. Her services on this account belong to him."

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In Henley v. Wilson, 137 Cal. 273, at page 274, 70 Pac. 21, 58 L. R. A. 941, 92 Am. St. Rep. 160, it is said: "But what all the reasons for the rule were originally is not now so easy to determine, and accordingly it was said by Mr. Justice Field, in Van Maren v. Johnson, 15 Cal. 312: 'It matters not what was the origin of the common-law doctrine, its rule is settled and exists independently of the grounds on which it originally rested.' ** It was said by the Supreme Court of Texas in Zeliff v. Jennings, 61 Tex. 458, that the doctrine 'rests perhaps mainly upon the supposition that her acts are the result of the superior will and influence of the husband. Owing to the intimate relation of husband and wife and to the nature of the control given him by law and social usage over her conduct and actions, it would be difficult, if not impossible, for the courts to determine when she had acted at her own instance, and when she was guided by his dictation.' And it may be added in a case where the wife has no separate estate, if the hus

band cannot be held, the aggrieved person will have no redress, and upon the wife there will be no restraint of pecuniary responsibility. If so disposed, she could with impunity blast the lives of her neighbors by most grievous slanders. Nor is it true, in the absolute sense, that she has no interest in the estate of her husband. She is entitled to a support out of it, and to be maintained in a degree of comfort proportionate to his wealth. To make this fortune liable for her torts may directly affect her. It may diminish her comfort and style of living."

In Nichols v. Nichols, 147 Mo. 387, at page 409, 48 S. W. 947, at page 953, it is said: "For although the absorption of the wife's property by the husband, permitted by the common law, may have been the reason, and a sufficient one, for holding him liable for her torts committed before marriage, his liability for her torts committed during coverture, while supported by that reason also, had another, a broader, and more enduring foundation in the absolute unity of husband and wife in the marital relation. As contemplated by that law, they were two persons, made one by marriage, one entity-the family-whose head was the husband, with power to control and direct the conduct and action of its members, and with a corresponding liability to society for such conduct and action. This basis, this reason, for the liability of the husband for the torts of the wife committed during coverture, remains intact of legislative interference thus far in this state, and so long as it does remain there is reason for the liability. Whether sufficient or not it is for the Legislature and not for the courts to say, and we cannot assume that this liability for the protection of society has ceased because a reason therefor no longer exists. When by legislative enactment marriage in this state becomes a mere civil contract-a mere community of interest based on property-then the reason for the rule may cease to exist; but so long as it remains the sacred relation contemplated in the common as in the divine law a reason therefor must remain."

In Taylor v. Pullen, 152 Mo. 434, at page 438, 53 S. W. 1086, it is said: "While it is true that one of the supposed reasons for the rule which required a husband to be joined with his wife in an action for her torts has ceased because he no longer acquires her property by virtue of the marriage in this state, all lawyers must admit that so far no writer or court has as yet furnished satisfactorily all the reasons which may have influenced the adoption of the rule at common law, and until they are produced certainly the courts cannot declare that all the reasons have ceased, and thus abolish the rule by judicial decision."

- Upon examination is found that in Illinois, Kansas, Kentucky, and Utah no statutes similar to sections 13 and 16 of the act of 1861 were ever in force in those states, and it

might be well said that decisions of the courts of those states should not be controlling or even persuasive in deciding the question here presented. The majority opinion not only follows the lead of those states, but completely ignores the force and effect of those sections of the statute as indicative of the intention of the Legislature in the enactment of the other sections of the statute here relied on, thus violating the well-established rule that statutes must be construed as a whole, and that force and effect must be given to every section of a statute where that is possible to be done.

Under the statutory enactments discussed we do not believe there has been such a change in the relation between husband and wife, except as to the separate property of the wife, as would justify this court in declaring, in the absence of express, positive legislation upon the subject, that the rule of common law has been abrogated. To so de- ` cide would be judicial legislation, against which there is at the present time much wellfounded complaint. The argument of the learned Chief Justice to establish the fact that the husband in Colorado has no control over the wife, and that this reason for the existence of the common law has ceased, is plausible, but specious to the extreme. The power of disposition of property by will by husband and wife referred to in the majority opinion was established by the first territorial Legislature in 1861 substantially as it exists to-day, and is a part of the same act of which sections 3007, 3009 and 3012, Mills' Ann. St., are a part. We do not appreciate the bearing of such provisions of the law upon the question here presented, nor do we appreciate in this connection the relevancy of the act of 1891 (Sess. Laws 1891, p. 238) making family expenses chargeable upon the property of both husband and wife. No one of common information and ordinary intelligence disputes the proposition that "the right of the husband to beat his wife or to imprison her to enforce obedience to his will is no longer recognized as a right by our race." We go further and say that such rights, if they ever existed, were never practiced or enforced by civilized man, but only by those of "brutish instincts." But it does not follow that the husband in Colorado or elsewhere has no control over the actions of the wife. His control, implanted by the laws of nature and the divine law, exercised through love and affection, recognized, respected, and revered by both parties to the marital relation, is more potent, and it is to be hoped will ever be more potent than any right recognized by any law, common or statutory, to enforce obedience by force or fear. One unfamiliar with the conditions existing in Colorado might be led by the majority opinion to believe that nothing remained to the husband but the name. In this state as elsewhere the domicile of the husband is the domicile of the wife. The domestic services of the wife