151 S.W.2d 69 | Ky. Ct. App. | 1941
Affirming.
The only question involved on this appeal is the constitutionality of that part of Section 2120, Kentucky Statutes, which provides that in a suit for divorce "no action shall be brought by one who has not been a continuous resident of this state for a year next before its institution."
In addition to the grounds for divorce, appellant alleged in his petition that he was a citizen and resident of Knoxville, Tennessee. A special demurrer objecting to the petition because the plaintiff did not have legal capacity to sue was sustained by the court and judgment was entered dismissing the petition. Appellant contends that the above quoted section of the statute is in violation of Article 4, Section 2, and Amendment 14, Section 1, of the Constitution of the United States.
Article 4, Section 2, reads: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
Amendment 14, Section 1, among other things, provides:
"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 reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; * * * nor deny to any person within its jurisdiction the equal protection of the laws."
Without referring to the Constitution of the United States, this Court has held that a plaintiff in a divorce action must allege and prove an actual residence in this state for one year next before commencement of the action *380
in accordance with the provisions of the statute. Tipton v. Tipton,
Whilst it is true that the Legislature of a state cannot deny the citizens of another state the use of its courts in enforcement of privileges and immunities which owe their existence to the Constitution and laws of the federal government in its national character, it is likewise true that the privileges and immunities protected by the aforesaid provisions of the United States Constitution do not include those fundamental privileges and immunities solely inherent in state citizenship. Cooley's Constitutional Limitations, Vol. 2, page 848; Conner v. Elliot, 18 How. 591,
"Marriage, though, in one sense, a contract — because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds — is nevertheless, sui generis, and unlike ordinary or commercial contracts, is publici juris, because it establishes fundamental and most important domestic relations. And therefore, as every well organized society is essentially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and useful of them all, is regulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dissolved by the mutual consent only of the contracting parties, but may be abrogated by the sovereign will, either with, or without the consent of both parties, whenever the public good, or justice to both or either of the parties, will be thereby subserved. Such a remedial and conservative power is inherent in every independent nation, and cannot be surrendered or subjected to political restraint or foreign control consistently with the public welfare."
Since divorce is a privilege solely inherent in State citizenship, it is not a privilege or immunity within the meaning of the sections of the Constitution of the United States referred to above. Though the question was not presented for decision, in discussing the general scope of the Constitution of the United States in the Dartmouth College Case, Chief Justice Marshall said: "It [the Constitution of the United States] never has been understood to restrict the general right of the legislature to legislate on the subject of divorces." Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 519, 629,
Since the petition showed on its face that the plaintiff was not, and had not been for a year previous to the filing of this action, a citizen and resident of the State of Kentucky, the special demurrer to the petition was properly sustained.
Wherefore, the judgment of the lower court is affirmed.