177 Ga. 379 | Ga. | 1933
The exceptions are solely to the rulings of the court on a motion to nonsuit, and a motion to dismiss the case for lack of jurisdiction, first, on the ground that the plaintiff “had not been a bona fide resident of the State twelve months before the filing of the application for divorce,” and second, because the defendant was not a resident of the State of Georgia and not within the jurisdiction of the court. The motion to dismiss the case because the evidence showed a lack of jurisdiction is equivalent tó a motion to non-suit on the same ground.
The Civil Code (1910), § 2950 declares: “No court in this \ State shall grant divorce of any character to any person who has not been a bonajide resident of the State twelve months before the / filing of the application for divorce.” In House v. House, 25 Ga. 473, this court held: “A court has no jurisdiction over a case in
It is contended in the brief of the plaintiff in error that the plaintiff, being an officer in the United States army stationed on the government reservation known as Eort Benning, is not a resident of the State of Georgia, and that as a matter of law it was and is impossible for him to become such so long as he is in the United States army residing on a government reservation. The act of the General Assembly approved August 23, 1927 (Ga. Laws 1927, p. 352), in which the lands within Eort Benning were ceded to the United States, contains the provisions that “exclusive jurisdiction in and over any land so acquired by the United States shall be and the same is hereby ceded to the United States for all purposes, except that the State retains the right to serve thereon civil and criminal processes issued under authority of the State.” A statute such as
In Bank of Phœbus v. Byrum, 110 Va. 708 (67 S. E. 349, 27 L. R. A. (N. S.) 436, 135 Am. St. R. 953), it was said: “A non-resident who, as an enlisted soldier of the United States, is stationed upon a tract of land which has been secured by the Federal Government within a State for military purposes, does not become a citizen of such State, so as to defeat the right of a creditor to issue air attachment against him as a non-resident, although State process may be served within the reservation.” The constitution, above quoted, properly construed, does not altogether deny a soldier in our army of the right enjoyed by others of changing his domicile from one State to another State because he is stationed on a government reservation. He should not unnecessarily be thus discriminated against, and limited in matters not connected with his status as a soldier. Constitutional provisions should not be so construed unless the provisions clearly require it. The United States constitution, fourteenth amendment, declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they re
There is ample authority for holding that mere residence by a United States soldier on a government reservation, nothing more
In Lowe v. Lowe, 150 Md. 592 (133 Atl. 729, 46 A. L. R. 983), two Justices dissenting, it was said that “persons residing upon land purchased by the Federal government with consent of the State within which it lies, for military purposes, are not such residents of the State as will entitle them to file a bill for divorce in any of the courts of the State, where the State statute limits the
The provision of the United States constitution quoted above, in which the government is delegated the power "to exercise exclusive legislation” over federal reservations such as Fort Benning, specifically refers to legislation. It does not expressly deny the right of any one residing on such reservation to litigate in courts of either the State within which the reservation is located or elsewhere. Art. 1, sec. 8, par. 17, of the United States constitution is as follows: "The Congress shall have power . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” If the Congress should exercise the power of exclusive legislation with regard to such rights, the State courts would be excluded to the extent provided in such legislation. In 18 U. S. C. A. § 451, it is declared that the crimes designated therein shall be within the jurisdiction of the United States when committed on board an American vessel on the'high seas or great lakes, or "within or on any lands reserved or acquired for the exclusive use of the United States,” according to the constitutional provision above quoted. See also §§ 468, 511. The latter section, among other crimes, denounces and provides punishment for polygamy, unlawful cohabitation, incest, adultery, etc. See also Cannon v. U. S., 116 U. S. 55 (6 Sup. Ct. 278, 29 L. ed. 561). Suffice it to say that the Congress to this date has not enacted any legislation with regard to the right of a United States soldier residing on a government reservation to sue in a State court for a divorce. In Barber v. Barber, 62 U. S. (21 How.) p. 582, the Supreme Court declared: “This
In People v. Lent, supra, the court said: “As to some of the powers given to Congress, they are necessarily exclusive from their very nature; because, as to them, separate powers can not be coexistent ; as for example, to borrow money on the credit of the United States, to erect inferior tribunals, &c. But there are others of these powers which are of different character, and as to which the authority of the States is not excluded, and as to some matters Congress have the right to exclude the State authority by the exercise of their power to legislate ás to these matters. But until Congress does exercise their power, the State authority remains. Of this latter description, I consider the power now under consideration — Congress have power to, that is, they may exercise exclusive legislation over the places purchased by the consent of the State legislature, as they have done with respect to the District of Columbia. But they are not obliged to exercise that power; and if they do not, the State authority is, in my judgment, unimpaired. It may be inferred, I think, that our State legislature which passed the law of 1800, under the plea to which the jurisdiction of this court is formed, had this view of the subject. The jurisdiction of the State is not thereby relinquished, as it is by some other laws of our own in relation to other places. Nor is Governor’s Island declared to be under the jurisdiction of the United States, but the law declares that it shall, therefore, be subject to the jurisdiction of the United States. The language of the legislature I understand to mean, that they give their consent that Congress may exercise their power exclusively to legislate for Governor’s Island; the place is made subject to the exercise of that power; but until it be exercised by Congress, it is, in my opinion, to use the words of the twelfth article of the amendments to the constitution of the United States, ‘a power not prohibited to the State, but reserved to it.’ ” In re Grant’s
Whatever may be the true law as to jurisdiction of State courts over lands formally ceded to the United States, where the latter has not exercised its power of exclusive legislation, the precise and controlling question here is whether a soldier residing on a government reservation can acquire by such residence such domicile as will afford jurisdiction to a Georgia Court of his suit for divorce under the Civil Code (1910), § 2950. The American Law Institute has had this matter under consideration. In the Bestatement of Conflict of Laws (proposed Final Draft No. 1, p. 48, sec. 23, illustration 2) it is said: “A’s domicil is X. As an officer in the army, A is required to live in Y at an army post, his family being permitted to reside and residing with him. A is still domiciled in X.” The letter “X” here is intended to represent the domicile of origin, that is, the State where the soldier was born, or to such domicile as the soldier has acquired before entering into the service of the United
From what has been said we reach the conclusion that over army posts and like government reservations purchased by the United States and ceded by the States, under the constitution, the Federal Government has power to exercise exclusive legislation. Where it has not exercised the power, the laws of the State previously existing may be exercised. Nevertheless an officer or enlisted man residing on a government army post can not acquire a domicile thereon, unless permitted so to do by the United States. Consequently the superior court in this State has no jurisdiction over this proceeding filed by such officer, the reason being that he has not established a domicile in this State for the twelve months prior to filing his petition. Such officer, if allowed by proper authorities, may establish a domicile in Georgia outside the army post; and if acquired twelve months prior to the filing of his petition, the superior court in this State would have jurisdiction of the case.
The second headnote does not require elaboration.
Judgment reversed.