Lanham v. Lanham, 136 Wis. 360. but he was then very ill and no ceremony was ever performed. The circuit court concluded that there was a valid common-law marriage between the parties, resulting from their living and cohabiting together as man and wife after the expiration of one year from the date of the decree of divorce, and held that the plaintiff was the lawful widow of the deceased and entitled to an allowance as such. For the appellants there was a brief by Higbee & Higbee, and oral argument by E. C. Higbee. They argued, among other things, that the marriage was not valid in this state. Sturgis v. Sturgis (Oreg.) 93 Pac. 696; Estate of Stull, 183 Pa. St. 625, 39 L. R. A. 542; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703; Sussex Peerage Case, 11 Čl. & F. 85; Williams v Oates, 27 N. C. (5 Ired. Law) 535; State v. Tutty, 41 Fed. 753; Conn v. Conn, 2 Kan. App. 419, 42 Pac. 1006; McLennan v. McLennan, 31 Oreg. 480, 50 Pac. 802, 38 L. R. A. 863; Kruger v. Kruger (Ill. Super. Ct.) 36 Nat. Corp. Rep. 442; Williams v. Williams, 63 Wis. 58; Zahorka v. Geith, 129 Wis. 498, 505; Story, Confl. Laws, secs. 86, 87; Wharton, Confl. Laws, secs. 159-1656. There was an entire absence of proof as to the law of Michigan, and in such case a court of this state must presume the law there to be the same as here. Rape v. Heaton, 9 Wis. 329; MacCarthy v. Whitcomb, 110 Wis. 113; Hyde v. German Nat. Bank, 115 Wis. 170; Hynes v. McDermott, 82 N. Y. 41; Bailey v. State, 36 Neb. 808, 55 N. W. 241; People v. Loomis, 106 Mich. 250, 64 N. W. 18; Comm. v. Graham, 157 Mass. 73, 16 L. R. A. 578; Jackson v. Jackson, 82 Md. 17, 34 L. R. A. 776; Comm. v. Stevens, 196 Mass. 280, 82 N. E. 33. The relationship between these parties having been illegal in its inception, it must be held to have been continued, unless there is affirmative proof of subsequent marriage. Drawdy v. Hesters, 130 Ga. 161, 60 S. E. 451; Comm. v. Stevens, 196 Mass. 280, 82 N. E. 33; Thompson v. Thompson, 114 Mass. 566. Lanham v. Lanham, 136 Wis. 360. For the respondent there was a brief by Masters, Graves & Masters, and oral argument by R. B. Graves. They contended, inter alia, that when a marriage is established by evidence or admissions it is presumed to be valid, and the burden of establishing the contrary fact rests on the party who attacks it. 26 Cyc. 877. In case of conflicting presumptions in civil cases, the presumption in favor of marriage generally prevails over all others. 3 Elliott, Ev. § 2486; Johnson v. Johnson, 114 Ill. 611, 55 Am. Rep. 883, 2 N. E. 232. The burden of proving restrictions in another state upon the remarriage of divorced persons is upon the person alleging them. State v. Shattuck, 69 Vt. 403, 40 L. R. A. 428; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Ward v. Morrison, 25 Vt. 593, 601. The weight of authority holds that if a marriage between divorced persons is valid according to the lex loci, it will be upheld by the courts of the state which enacted the statute prohibiting it and in which the parties to the marriage are domiciled, notwithstanding that the parties went out of the state to solemnize the same for the express purpose of evading the law of the domicile and of the forum. Hills v. State, 61 Neb. 589, 57 L. R. A. 155, and note; Comm. v. Lane, 113 Mass. 458; Medway v. Needham, 16 Mass. 157; Ross v. Ross, 129 Mass. 243; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505; Thorp v. Thorp, 90 N. Y. 602, 43 Am. Rep. 189; Moore v. Hegeman, 92 N. Y. 521, 44 Am. Rep. 408; State v. Shattuck, 69 Vt. 403, 40 L. R. A. 428; State v. Richardson, 72 Vt. 49, 47 Atl. 103; Phillips v. Madrid, 83 Me. 205, 12 L. R. A. 862; Fuller's Adm'r v. Fuller, 40 Ala. 301; State v. Bentley, 75 Vt. 163, 53 Atl. 1068; Sutton v. Warren, 10 Met. 451; Putnam v. Putnam, 8 Pick. 433; State v. Weatherby, 43 Me. 258, 69 Am. Dec. 56; Comm. v. Hunt, 4 Cush. 49; Stack v. Stack, 6 Dem. Sur. (N. Y.) 280; In re Chace, 26 R. I. 351, 69 L. R. A. 493. The principal cases holding contrary views are Williams v. Oates, 27 N. C. (5 Ired. Law) 535; Estate of Lanham v. Lanham, 136 Wis. 360. Stull, 183 Pa. St. 625, 39 L. R. A. 539; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703; Kinney v. Comm. 30 Gratt. 858, 32 Am. Rep. 690; Dupre v. Boulard's Ex'r, 10 La. Ann. 411; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. No more reason exists for giving the statute under consideration extraterritorial force than any other legislative enactment forbidding in unqualified terms the doing of an act, and which must always be understood as forbidding the thing in the state. Charles v. People, 1 N. Y. 180; Sims v. Sims, 75 N. Y. 466; Nat. T. Co. v. Gleason, 77 N. Y. 400; Van Voorhis v. Brintnall, 86 N. Y. 18; Western T. & C. Co. v. Kilderhouse, 87 N. Y. 430; Phillips v. Madrid, 83 Me. 205, 12 L. R. A. 862. In the following cases where the original cohabitation was preceded by a ceremonial marriage which was void because one of the parties was already married, it was held that the continuance of the cohabitation after the removal of the impediment by the death of the former husband or wife, in connection with circumstances tending to show that the parties regarded their relations as of a matrimonial character and held themselves out as husband and wife, created a presumption of marriage, although there was no evidence of another ceremony. Hyde v. Hyde, 3 Bradf. Sur. 509; Donnelly v. Donnelly's Heirs, 8 B. Mon. 113; Fenton v. Reed, 4 Johns. 52, 4 Am. Dec. 244; Adams v. Adams, 57 Miss. 267; Appeal of Reading F. Ins. & T. Co. 113 Pa. St. 204, 57 Am. Rep. 457-463, note; Chamberlain v. Chamberlain, 68 N. J. Eq. 736, 62 Atl. 680; Schuchart v. Schuchart, 61 Kan. 597, 50 L. R. A. 180; Petit v. Petit, 45 Misc. 155, 91 N. Y. Supp. 979; Eaton v. Eaton, 66 Neb. 676, 60 L. R. A. 605; Manning v. Spurck, 199 Ill. 447, 65 N. E. 342; Barker v. Valentine, 125 Mich. 336, 51 L. R. A. 787; In re Schmidt, 42 Misc. 463, 87 N. Y. Supp. 428; 1 Bishop, Mar., Div. & Sep. §§ 970, 975, 979; Univ. of Mich. v. McGuckin, 62 Neb. 487, 57 L. R. A. 917; Teter v. Teler, S8 Ind. 494; S. C. 101 Ind. 129; Flanagan v. Flanagan, 122 Mich. 386, 81 N. W. 258. Lanham v. Lanham, 136 Wis. 360. WINSLOW, C. J. Sec. 2330, Stats. (1898), as amended by ch. 456, Laws of 1905, provides, among other things, that "it shall not be lawful for any person divorced from the bonds of matrimony by any court of this state to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void." A proviso to the section authorizes the circuit judge to grant permission to the divorced parties to remarry within the year, but this is of no moment here. The first question is whether the Michigan marriage was valid notwithstanding the provisions of this law. The general rule of law unquestionably is that a marriage valid where it is celebrated is valid everywhere. To this rule, however, there are two general exceptions which are equally well recognized, namely: (1) Marriages which are deemed contrary to the law of nature as generally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. An exhaustive review of the many and somewhat conflicting authorities upon this general subject will be found in a note to Hills v. State in 57 L. R. A. at p. 155; S. C. 61 Neb. 589, 85 N. W. 836. The first of these exceptions covers polygamous and incestuous marriages and has no application here, and the question presented is whether the case comes within the second exception. A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they be celebrated in other states under whose laws they would ordinarily be valid. In this sense, at least, it has Lanham v. Lanham, 136 Wis. 360. power to give extraterritorial effect to its laws. The intention to give such effect must, however, be quite clear. So the question must be, in the present case, whether our legislature by the act quoted declared a public policy and clearly indicated the intention that the law was to apply to its citizens wherever they may be at the time of their marriage. To our minds there can be no doubt that the law was intended to express a public policy. There have been many laws in other states providing that the guilty party in a divorce action shall not remarry for a term of years, or for life, and these laws have generally been regarded merely as intended to regulate the conduct of the divorced party within the state and not as intended to follow him to another jurisdiction and prevent a marriage which would be lawful there; in other words, they impose a penalty local only in its effect. Under this construction the remarriage of such guilty party in another state has generally been held valid notwithstanding the prohibition of the local statute. Of this class are the cases of Frame v. Thormann, 102 Wis. 653, 79 N. W. 39; Van Voorhis v. Brintnall, 86 N. Y. 18; and State v. Shattuck, 69 Vt. 403, 38 Atl. 81, and others which might be cited. It is very clear, however, that the statute under consideration is in no sense a penal law. It imposes a restriction upon the remarriage of both parties, whether innocent or guilty. Upon no reasonable ground can this general restriction be explained except upon the ground that the legislature deemed that it was against public policy and good morals that divorced persons should be at liberty to immediately contract new marriages. The inference is unmistakable that the legislature recognized the fact that the sacredness of marriage and the stability of the marriage tie lie at the very foundation of Christian civilization and social order; that divorce, while at times necessary, should not be made easy, nor should inducement be held out to procure it; that one of the frequent causes of marital disagreement and divorce actions |