68
The Green Bag
§246; Ruloff f. People, 45 N. Y. 213; People v. Van Wormer, 175 N. Y. 188, 67 North eastern Reporter 299.
DIVORCE. (SPECIAL LAW—CONSTITUTIONAL IN HIBITION—POSTPONING ENTRY OF FINAL JUDG MENT.) CALIFORNIA SUPREME COURT.
In Deyoe v, the Superior Court of Mendocino County, 74 Pacific Reporter 28, Cal. St. 1903, p. 75, c. 67, declaring that a final judgment of divorce shall not be entered until the expiration of one year from the rendition of an interlocutory decree of di vorce is held not to violate Constitution, Art. 4, §25, subd. 3, prohibiting special laws regulating the practice in courts of justice. The court reiterates the general principle that constitutional prohibition of class legis lation does not forbid such classification as is substantial and germane to the purpose of the law, and then holds that divorce proceed ings are so peculiar as to be legitimate subjects for special legislation. As constitut ing such peculiarity the court instances the theory that the State is a party, and is inter ested in the maintenance of the marital status. The following authorities are cited: "McBlain v. McBlain, 77 Cal. 507, 20 Pacific Reporter 61, Warner г>. Warner. ioo Cal. u, 14, 34 Pacific Reporter 523, 524; Hatton v. Hatton, 136 Cal. 353, 356, 68 Pacific Repor ter 1016; Newman v. Freitas, 129 Cal. 283, 289, 61 Pacific Reporter 907, 50 L. R. A. 548. The existence of other Code regula tions of divorce proceedings, is also pointed out. INDECENT PROPOSAL. (SOLICITATION то SEX UAL INTERCOURSE—CAUSE OF ACTION.) KENTUCKY COURT OF APPEALS.
In Reed v. Maley, 74 Southwestern Reporter 1079, the plaintiff sued to re cover damages for a solicitation to sexual intercourse made her by defendant, and the sole question was whether such an indecent proposal, in the absence of tres
pass or assault, furnished a cause of action. This is answered in the negative. The court says that the fact that no case has been discovered involving this question, conduces strongly to show that the legal profession for centuries has entertained the impression that a civil action will not lie on such a state of facts. Wadsworth v. Western Union Tele graph Company, 86 Tenn. 695, 8 South western Reporter 574, 6 Am. St. Rep. 864 is referred to, and the dissenting opinion of Judge Lurton, in which he points out as the reason for refusing an independent action for mental suffering, the remote and metaphysi cal character of the damages, is quoted with approval. The court says that a solicitation by a criminal to a reputable citizen to join in arson, larceny, or robbery, would furnish no cause of action, notwithstanding the humi liation and indignation which the citizen might feel. A bawd's solicitation of a man to illicit relations with her would give him no cause of action; yet it should do so if a similar proposal would confer a right of re covery on a woman. The cases of Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703; Bennett v. Mclntire (Indiana Supreme Court). 23 Northeastern Reporter 78, 6 L. R. A. 736; City of Henderson v. Clayton (Kentucky) 57 Southwestern i, 53 L. R. A. 145, and Hutchinson v. Louisville & Nash ville Railway Company (Kentucky), 57 Southwestern 251 are all distinguished from the case at bar. The argument in support of plaintiff's re covery was that the solicitation to commit adultery constituted a common law offense, and that for a criminal act occasioning injury to a particular individual a cause of action arose. Kentucky Statutes, Section 466, pro vides that a person injured by the violation of any statute may recover, although a pen alty or a forfeiture is also imposed. But the court says that there is no statute denouncing a penalty for a solicitation to commit adultery, and while assuming for the sake of argument that the defendant could have been indicted at common law, it is of the opinion that that fact would not furnish a ground for civil re covery. Judge Hobson dissents.
