[1429] Deering, Codes and Stat. of Cal. (1886), II, 25, 26; Rev. Stat. of Idaho (1887), 302; Mills, Ann. Stat. of Col. (1891), II, 1681.
[1430] The solemnizer is required to ascertain the "name and place of residence of the witness, or two witnesses, if more than one is present": Ann. Stat. of S. D. (1899), II, 1022.
[1431] Witnesses are mentioned in the form of return to be made by the solemnizer: Gen. Stat. of N. J. (1896), II, 2006: Deering, Codes and Stat. of Cal., II, 26, 27.
[1432] Wright, Report, 57.
[1433] On witnesses and the form of ceremony see Deering, Codes and Stat. of Cal. (1886), II, 26 (form); Rev. Stat. of Idaho (1887), 302; Howell, Gen. Stat. of Mich. (1882-90), II, 1619, 3602; Gen. Stat. of Minn. (1894), I, 1265; ibid. (1866), 407; Rev. Stat. of Minn. (1851), 271; Comp. Codes and Stat. of Mont. (1895), 477; Comp. Stat. of Neb. (1899), 757; Comp. Laws of Nev. (1900), 113; Rev. Stat. of N. Y. (1889), IV, 2597; same in ibid. (1827-28), 139, 140; Codes and Gen. Laws of Ore. (1892), II, 1319; same in Gen. Laws (1862), 86: Ann. Codes and Stat. of Wash. (1897), I, 1175, 1176; Rev. Stat. of Wyo. (1899), 791; Rev. Stat. of Wis. (1849), 392; also in Ann. Stat. of Wis. (1889), I, 1355.
[1434] Cf. Wright, Report, 56.
[1435] Sharon v. Sharon, 67 Cal. (1885), 185 ff.; 75 Cal. (1888), 1-78; 79 Cal. (1889), 633-703; 84 Cal. (1890), 424 ff. For other cases of "contract" marriages under the code of 1873, see Kelly v. Murphy, 70 Cal. (1887), 560; Kilburn v. Kilburn, 89 Cal. (1891), 46; People v. Beevers, 99 Cal. (1893), 286; Toon v. Huberty, 104 Cal. (1894), 260; People v. Lehman, 104 Cal. (1894), 631; Hinckley v. Ayres, 105 Cal. (1895), 357. From 1849 to 1873 common-law marriages were good in California: see Graham v. Bennett, 2 Cal. (1852), 503; Letters v. Cady, 10 Cal. (1858), 530; Case v. Case, 17 Cal. (1861), 598; People v. Anderson, 26 Cal. (1864), 130; estate of Charles Beverson, 47 Cal. (1874), 621; estate of McCausland, 52 Cal. (1878), 568; in re Briswalter, 72 Cal. (1887), 107; White v. White, 82 Cal. (1890), 427. The facts in the four cases last mentioned arose before 1873.
[1436] Deering, Codes and Stat. of Cal. (1886), II, 18, 19, 20, 27; amended by act of March 26, 1895: Stat. and Amendments to the Codes (1895), 121. Compare the present law of South Dakota: Ann. Stat. (1899), II, 1018, 1022; Rev. Codes of S. D. (1903), 596; and that of Montana: Comp. Codes and Stat. (1895), 475, 477, 478, which in the definition declares that consent "must be followed by a solemnization, or by a mutual and public assumption of the marital relation." In the use of the word "public" the present law of Montana differs from that of California previous to 1895. Formerly the laws of Idaho and California were identical; but now the provision for declaration is omitted from those of Idaho, although the prescribed celebration is not essential to a valid marriage. Cf. Comp. and Rev. Laws of Idaho (1875), 642, 645; Rev. Stat. (1887), 301.
[1437] Want of authority to solemnize does not avoid a marriage: State v. Brecht, 41 Minn., 50, 54; 42 N. W. Rep., 602; Martin v. Ryan, 2 Pinney, Wis. Reports, 24.
[1438] For unauthorized solemnization and the penalty see Rev. Stat. of Idaho (1887), 303, 761: a misdemeanor punished by confinement in the county jail not exceeding six months, or a fine of not more than $300, or both; Laws of Ind. (1897), 129 (March 4); Rev. Stat. (1896), I, sec. 2148: a fine of $50 to $500, to which may be added imprisonment in the county jail for from ten days to three months; Howell, Gen. Stat. of Mich. (1883), II, 1620: a misdemeanor punishable by imprisonment in the county jail of not more than one year, or a fine of $50 to $500, or both; Gen. Stat. of Minn. (1894), I, 1266: a misdemeanor, with not over one year's imprisonment, or a fine of not exceeding $500, or both; Comp. Codes and Stat. of Mont. (1895), 477; Comp. Stat. of Neb. (1899), 757: a misdemeanor, with not more than one year in jail, or a fine not to exceed $500; Comp. Laws of Nev. (1900), 114: a fine of not more than $500, or imprisonment till paid; Codes and Gen. Laws of Ore. (1892), II, 1320-22; I, 967: not more than one year in jail, or a fine of $100 to $500; and the same penalty for illegal solemnization and for illegally issuing a license by the clerk; Rev. Stat. of Utah (1898), 331; Laws (1888), 90: not exceeding three years in the state prison, and the same penalty for false personation of parent or guardian, or for forging a certificate of consent; Ann. Code of Wash. (1897), I, 1175, 1178; Ann. Stat. of Wis. (1889), I, 1356: not exceeding one year in jail, or a fine of not more than $500, and the same for illegal solemnization, making false certificate, or for false personation; Rev. Stat. of Wyo. (1899), 791, 792: a misdemeanor, and the same penalty as in Wisconsin for unauthorized solemnization, which is prescribed also for false certificate or false record by the clerk; Ann. Rev. Stat. of Ohio (1897), II, 3017: imprisonment for six months, or a fine of $500, or both; Laws of N. D. (1890), 278: a misdemeanor with fine of $100 to $500 and costs, or imprisonment in the county jail for from three months to one year.