No. 25044 | La. | May 1, 1922
Defendant appeals from a judgment granting plaintiff a divorce under Act 269 of 1916. Defendant attacks section 1 of said act as unconstitutionál, upon the ground that it is extraterritorial in its effect. The section in question reads:
“That when married persons have been living separate and apart for a period of seven years or more, either party to the marriage contract may sue, in the courts of the State of his or her residence, provided such residence shall have been continuous for the period of seven years, for an absolute divorce, which shall be granted on proof of the continuous living separ rate - and apart of the spouses, during said period of seven years or more.”
We have italicized the words which defendants’ counsel says gives to the section its extraterritorial character.
Granting that the language is susceptible of the construction contended for, in so far as it might attempt to provide a cause of action or vest jurisdiction in courts outside of this State, it would of course be without effect; but if, treating such provision as surplusage, what remains is found sufficient for its operation within the State, the act would not be unconstitutional, for the ultra vires matter would be ignored. However, we do not think that section is susceptible of such a meaning, at least, when we consider, as we must, that the Legislature intended to do a rational, rather than a futile, thing. What was meant by the phrase,’ “Either party to the marriage contract may sue, in the courts of the State of hi's or her residence” we think, was that the suit might be brought in the courts of this State -«'herein the plaintiff has had his or her residence, .provided such residence within the State has been continuous for at least seven years. It will be noted that the word “State” is spelled with a capital S, as it should be when re
For the reasons assigned the judgment of the lower court is affirmed, at the cost of the appellant.