GRANVILLE-SMITH v. GRANVILLE-SMITH
No. 261
Supreme Court of the United States
Argued February 3-4, 1955.—Decided April 11, 1955
349 U.S. 1
This case concerns § 9 (a) of the divorce law of the Virgin Islands:
“Notwithstanding the provisions of sections 8 and 9 hereof,1 if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a
general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.”
The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of “irreconcilable incompatibility”2 in the District Court of the Virgin Islands on March 16, 1953. The complaint allegеd that she had been a “resident and inhabitant” of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel—authorized by a power of attorney executed in New York—respondent entered an appearance, waived personal service, denied petitioner‘s allegations, and filed a “Waiver and Consent” to “hearing of this cause as if by default” and to “such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.”
Solely on the basis of petitioner‘s testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recоmmended that she be granted a divorce. On petitioner‘s motion to confirm the Commissioner‘s recommendation, the District Court inquired of petitioner‘s counsel whether he had “any more evidence to offer on the question of domicile.” Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F. Supp. 878, dismissed the complaint for want of jurisdiction over
The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F. 2d 820, on the basis of its decision in the Alton case, 207 F. 2d 667. In that case, the Court of Appeals, likewise sitting en banc and three judges dissenting, held § 9 (a) in violation of “due process” guaranteed by the Fifth Amendment and the Virgin Islands Organic Act. This Court had granted certiorari in the Alton case, 347 U. S. 911, but intervening mootness aborted disposition on the merits. 347 U. S. 610. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U. S. 810. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel “to appear and present oral argument, as amicus curiae, in support of the judgment below.” 348 U. S. 885.
We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9 (a).
A vital distinction was made between “incorporated” and “unincorporated” territories.5 The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an “incorporated” territory. See, e. g., Rassmussen v. United States, 197 U. S. 516. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e. g., Balzac v. Porto Rico, 258 U. S. 298. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e. g., Balzac v. Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e. g., Downes v. Bidwell, 182 U. S. 244.
The legislative power of territories has customarily been expressed as extending to “all rightful subjects of
The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e. g., Porto Rico v. Rosaly y Castillo, 227 U. S. 270; (2) those in which conflict was claimed with the United States Constitution or laws, e. g., Puerto Rico v. Shell Co., 302 U. S. 253; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the “rightful” nature of particular territorial legislation was assailed, e. g., Tiaco v. Forbes, 228 U. S. 549; People v. Daniels, 6 Utah 288, 22 P. 159. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e. g., Christianson v. King County, 239 U. S. 356. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U. S. 190, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces.8 It is
The United States acquired the Virgin Islands by purchase from Denmark in 1917,9 but it was not until the Organic Act of 1936 that Congress provided a complete government—including a Legislative Assembly. The Organic Act: (1) labeled the Islands an “insular possession” of the United States, 49 Stat. 1807,
The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the
By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks’ “residence” by an “inhabitant” sufficient for divorce jurisdiction.10 In 1952, the Court of Appeals for the Third Circuit construed “inhabitant” and “residence” to imply “domiciliary” and “domicile.” Burch v. Burch, 195 F. 2d 799. The legislature thereupon provided that six weeks’ “physical presence” was adequate as a basis for divorce. The Governor vetoed this amendment.11 To overcome the veto, § 9 (a) was enacted. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.
Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497,
In giving content to the power to pass legislation having “local application,” two considerations at once obtrude. The phrase most liberally interpreted can be no broader than “all rightful subjects of legislation.”13 Yet in the Organic Acts of the “incorporated” territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years.14 37 Stat. 514,
In such light the decisive question is: was § 9 (a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export?16 For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it
It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: “All others can see and understand this. How can we properly shut our minds to it?” Child Labor Tax Case, 259 U. S. 20, 37. But it sometimes helps to prove, as well as to see, the obvious.19
In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreover, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during whiсh the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce.
In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954.
We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction oсcurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance—which strips the court of its power to inquire further into domicile—but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and
The Legislative Assembly is much less liberal toward would-be voters.24 One-year domicile is required. Fur-
In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so.
Affirmed.
MR. JUSTICE HARLAN took no part in the consideration or decision of this case.
MR. JUSTICE CLARK, with whom MR. JUSTICE BLACK and MR. JUSTICE REED join, dissenting.
A “fundamental tenet of judicial review,” the late Mr. Justice Jackson said, is that “not the wisdom or policy of legislation, but only the power of the legislature, is a fit subject for consideration by the courts.” Jackson, The Struggle for Judicial Supremacy (1941), p. 81. Some 10 years later in Harisiades v. Shaughnessy, 342 U. S. 580, 590, he added that “judicially we must tolerate what personally we may regard as a legislative mistake.”
I must dissent here because I feel that the majority, in striking down the Virgin Islands’ divorce law, is substituting its wisdom and policy for that of the Congress. I fail to see how the Virgin Islands’ failure to require—in form as well as substance—jurisdictional requirements for divorce equal to those presently in vogue in the States is any more than a “legislative mistake.” The Court, however, in the face of an unbroken national history of granting to our territories full authority in legislating on such subjects, declares the Islands’ divorce law invalid on the ground that, rather than being “of local
What is the Legislative History?
The legislative history of the “subjects of local application” provision, on which the Court grounds its action, shows beyond a doubt that today‘s construction was never dreamed of by the Congress.
The Congress first used closely similar language in 1850. The Organic Aсt for the Territory of New Mexico provided that “the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States.” (Emphasis supplied.) 9 Stat. 452. The Act also declared that the legislative power of the Territory covered “all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.” 9 Stat. 449.
Fifty years later, the Foraker Act, 31 Stat. 77, establishing a civil government for Puerto Rico, used the same “not locally inapplicable” provision when extending the laws of the United States to that Island. With reference to the powers of the local legislature, the Act repeated this phrasing, extending the local authority to “all matters
The majority does not dispute that the legislative power of the Virgin Islands is at least on a par with that of Puerto Rico under the Foraker Act. It does, however, contend that the phrase “of local application” represents a positive limitation on the powers of the Islands below that of a State. That the Virgin Islands has not the quantum of self-government which a State possesses is beyond question. All local laws are subject to the absolute veto shared by the appointive governor and the President of the United States. There are specific limitations on the Islands’ legislative power.3 And Con-
As the majority points out, “the phrase [of local application] most liberally interpreted can be no broader than ‘all rightful subjects of legislation.‘” Illiberally interpreted, however, it can be no narrower. The Senate Report on the Foraker bill could not possibly be clearer in saying, with reference to the “not locally inapplicable” phrase, that the “legislative assembly . . . shall have complete power, subject to the veto of the governor and the supervision of Congress, to legislate upon all rightful subjects of legislation.” (Emphasis supplied.) S. Rep. No. 249, 56th Cong., 1st Sess. 3.
What then, has this Court said, is the meaning of “rightful subjects of legislation“? We note that the majority cites People v. Daniels, 6 Utah 288, 22 P. 159, a decision by the territorial court of Utah, that the Territory was “restricted” to “rightful subjects of legislation.” In Cope v. Cope, 137 U. S. 682, 684, decided the following year, this Court held “With the exceptions noted in this section [such as ‘no law shall be passed interfering with the primary disposition of the soil‘], the power of the Territorial legislature was apparently as plenary as that of the legislature of a State.”4
Nor were the Caribbean territories placed on a footing different from that of our other pоssessions. The debates
The government of our Caribbean possessions has been modified by Congress on various occasions, always definitely in the direction of more self-government. See H. R. Rep. No. 461, 63d Cong., 2d Sess.; 53 Cong. Rec. 7469. As is common in such enactments, a compromise is reached between those who want still greater independence and those who feel that the present degree of restriction is warranted. Yet, after exhaustive research, we have found nowhere in the debates or hearings, or in the arguments of those supporting complete self-government for the Islands, even a hint that the phrase “of local application” represents any type of a restriction upon the local government, above and beyond our usual concepts of legislative jurisdiction.
In light of this study, it is difficult for me to follow the reаsoning of the majority opinion. Apparently, the Court says a statute is not of local application if it is intended to reach beyond its borders, and, since the Islands’ law attracts domiciliaries of other States to the Islands specifically to get divorces, it is ipso facto not “of local application.” Under this reasoning, other laws would not be “of local application.” Five States have divorce laws that certainly attract out-of-staters. Puerto Rico has established “operation bootstrap,” a planned campaign to attract industry to the Island by means of tax benefits and several of the States have similar programs. Probably most clearly analogous to the Virgin Islands divorce law is the corporation law of the State of Delaware, which often attracts enterprises doing no business in that State; except for incorporation there may be no contact between these companies and their “home” State. In view of our relatively abstruse constitutional standards of legislative jurisdiction under the Due Process Clause,
The slenderness of the reed on which the majority depends is further emphasized by the fact that in the 55 years that the “of local application” provision has been used in describing the power of territorial legislatures it has not, so far as I can find, ever been contended in any court, in any judicial opinion, or in any law review or treatise, that the phrase represented any such limitation as the majority has placed upon it.
What Weight Statistics?
I assume the majority agrees that the Islands’ legislature has the power to pass laws on the subject of divorce. In studying this problem, however, it seems to be impressed by the fact that the effect of this law upon the tourist trade (though I assume this too is a local enterprise) was considered of great importance. I had always thought that the courts were not to concern themselves with the motives of the legislature in exercising its powers.
The majority admits that the State of Nevada hands out each year forty times as many divorces per capita as the Virgin Islands.5 The opinion concludes, however, that the Islands are really extending their borders further than Nevada attempts, because their ratio of marriages to divorces is much lower. This approaches the perfect non sequitur. The statistics have no relevance whatever to the question before us. I feel, however, that I should point out some of the reasons for the higher ratio
What Law Would Be “Of Local Application“?
The majority‘s holding that the Islands’ law is not “of local application” can be appreciated more fully by asking the question, “What type of a divorce law would be of local application?” The majority does not pass on this, but its whole reasoning is founded on the proposition that only domicile will suffice. The law is not of local application because, “For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point.” Pp. 10–11. Why? Because, says the majority, “Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands.” They are domiciled in the Islands and could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 195 F. 2d 799, 805. They would have no difficulty in making the “appropriate showing of connection with the forum.” It is crystal clear that any divorce law not requiring domicile will also “be abstractly relevant but practically [will have] no point.” In fact, by definition,
What Weight Hawaii and Alaska?
To rationalize its Procrustean treatment of the Virgin Islands Organic Act, the majority argues that, since Congress has specifically limited the divоrce jurisdiction of Alaska and Hawaii to cases where the plaintiff has resided in the Territory for at least two years, it follows that the Congress must have intended similarly to limit the Islands “so temptingly near the mainland.” This is but another non sequitur. Since 1921 the residence require-
Moreover, the conclusion of the Court that the two-year limitation placed on Alaska and Hawaii casts its shadow on the Islands is “hardly reasonable.” If anything, it would be the more logical tо assume the opposite—that the Congress, having placed a specific requirement in the Alaskan and Hawaiian Acts and not in the subsequently passed Act for the Islands, had granted the Islands divorce jurisdiction without any such limitation. It is interesting to note the explanation
“That no provision similar to the one here under discussion is contained in the organic act of Hawaii, passed at the same session [of the Congress] is wholly without significance, when due regard is given to the actual conditions of Congressional draftsmanship. The two acts issued from two different committees, and were actually drawn by different sets of legislators. Instances, such as this case discloses, of the lack of uniformity in similar enactments and general want of scientific draftsmanship, are bound to present themselves . . . .” Page 8, Government Brief.
What Weight Constitutional Doubts?
While the Court‘s opinion makes no reference to any constitutional doubts, these may have motivated it in striking down the Islands’ law on the statutory ground. In my opinion this may be an explanation but it is not an excuse. There are limits to which the Court should not run to escape a constitutional adjudication. Admittedly, the doubt that domicile is not a constitutional requirement is not free from doubters. Even though judge-made, it does involve a peculiarly sensitive area of American life. Nevertheless, the Virgin Islands are entitled to a forthright adjudication on their statute—not one by a phantom escape clause.
The constitutional questions presented on brief and at argument involve the Due Process Clause of the Fifth Amendment, the Full Faith and Credit Clause, and the Tenth Amendment. First of all, neither of the Granville-Smiths claims to have been deprived of life, liberty, or property without due process of law. While the State has an interest in the marital relationship, certainly this
Nor have the Islands invaded the sphere of activities reserved to the States, contrary to the Tenth Amendment. The “Tenth Amendment ‘does not operate as a limitation upon the powers, express or implied, delegated to the national government.‘” Case v. Bowles, 327 U. S. 92, 102. The Congress has the power to deal with the Islands, granting or withholding from them the powers of a State as it sees fit.
The only constitutional bugaboo is a judge-made one, domicile.8 It creates strange anomalies. A married couple, both of whom desire a divorce, can obtain one in Nevada merely by having one spouse “reside” there uninterruptedly for six weeks, and claim an intention to take up permanent residence there. See, e. g., Business Week, July 14, 1945, p. 24. Then, after divorce, though the divorcee immediately leaves Nevada, as was always intended, both sides here concede that regardless of how evident it is there was no domicile in the divorcing State, no other State can question the validity of the divorce so long as both parties appeared in the action. See Johnson v. Muelberger, 340 U. S. 581. We too agree with the language of Mr. Chief Justice Taft: “All others can see and understand this. How can we properly shut our
Divorce is an intensely practical matter, and if a husband and wife domiciled in any State want a divorce enough, we all know that they can secure it in several of our States. This being true, I see no sense in striking down the Islands’ law. There is no virtue in a state of the law the only practical effect of which would be to make New Yorkers fly 2,400 miles over land to Reno instead of 1,450 miles over water to the Virgin Islands.
The only vice of the Virgin Islаnds’ statute, in an uncontested case like this, is that it makes unnecessary a choice between bigamy and perjury. I think the Court should not discourage this and I would reverse.