2 Wash. Terr. 3 | Wash. Terr. | 1880
Opinion by
Appellant was married to David S. Maynard about 42 years ago, in Yermont. She bore him two children, and in 1850 was living with him and them, in Ohio. Sometime in that year her husband left her with the children there, and became himself a resident of Oregon. When leaving he promised his wife that within two years he would return for her or send her the means to come to him. He never kept this promise. In 1852, under the act of Congress, commonly, known as the Oregon Donation Law, he, as a married man, settled upon and claimed 640 acres of land, lying within what is now known as King County in Washington Territory. Afterwards and on the 22d of December of that year, the Legislature of the Territory of Oregon by special act, declared the bonds of matrimony between David S. Maynard and the appellant dissolved. This act of the Legislature has never been assented to by appellant. It was passed without notice to her before she had
The notification pursuant to section 6 of the Donation Law was filed by Maynard in Octoberj 1853. His accompanying affidavit recited the existence of his marriage relation with appellant until December 24th, 1852, her death at that date and his marriage on the 15th of January, 1853, to Catherine T. Brashears. Maynard’s residence as a donation settler was duly completed and proved by May, 1856, and in January, 1869, Donation Certificate, Ho. 436, was issued from the local land office at Olympia to him and his wife Catherine, apportioning the east half to her and the west half to him. As to the wife’s half the Commissioner of the General Land Office, subsequently, in July, 1871, held this certificate to be erroneous, and on the supposition that appellant was dead and that her heirs were entitled,- he directed that proof of her marriage should be taken and that upon proper proof of this marriage, the certificate should be amended so as to run to her heirs. A hearing was accordingly had before the Degisten and Deceiver at Olympia, at which appellant appeared- in person, and David and Catherine Maynard by attorney. As a result the' certificate was, on the 8th of April, 1872, so modified as to allot the east half of the claim to appellant. Upon appeal to the Commissioner of the General Land Office, and from him to the Secretary of the Interior,, it was held that the special divorce act of 1852, shut appellant out from any rights in the premises, and that neither she nor Catherine Maynard could claim anything under the Donation Law. Conformably to this decision the east half of the 640 acres was thrown open as public land to entry and sale, and of part of it Valentine, the appellee, became the purchaser and patentee from the- Government.
Such are the facts as averred by the appellant in her complaint filed in the District Court. Upon them she asked a decree that appellee holds title as trustee for her' benefit, and that he be required to convey to her and that she have her costs and ■ general relief. Appellee filed a general demurrer, which the District Court sustained. A decree was thereupon
The expediency of allowing legislatures, so constituted and related to the people as are those of this country, the power of divorce, has beenlong a mooted question. It would be an exceedingly interesting and momentous one for a constitutional convention, or a Congress,, organizing a new Territory, to debate. ~W e are conscious ourselves of very strong private convictions against the expediency. But in this opinion we shall endeavor to stand so far aloof from these convictions as dispassionately to arrive at the powers actually conferred upon the Legislature of the Territory of Oregon. Two principal questions are presented for our decision: 1st. Is the legislative act of divorce valid? 2nd. If valid, does it operate to exclude appellant from the benefit of the Donation Law? For the correct decision of the first question everything turns on the power of the Legislature to divorce at all. If there was legislative power to enact any divorce, then it seems to us there was power to enact this particular one. To be sure there are circumstances in this case, tending to- illustrate the subject of legislative divorces, and to lead the mind to canvass the expediency of allowing them in any instance. Our attention is invited to the fact that this divorce was accomplished by a special act of the Legislature. But if a legislature be clothed with power to divorce at all, how else is it to exercise the power save by a particular act for the particular case? Shall it pass a general statute declaring that whenever one of two married persons deserts, or becomes a drunkard, or commits adultery, or ceases to be amiable, then and thenceforth the two shall stand divorced?
We are sent back to the original question. Was there a divorcing power seated in the Legislature? It is not a question of whether it was politic and wise to have it seated there, but was it there? This is to be determined by á reference to the powers granted to the Legislature by the Organic Act of Oregon.
These powers are not limited by virtue of any limitation operative upon Congress. Congress could constitute as -it pleased the Territorial Government, provided the form it pleased to give was harmonious with the fundamental idea of eur national life, that is to say, republican; Whether this ability of Congress be derived from, the clause-in the Constitution authorizing the making of all needful rules and regulations respecting the territory belonging to the United States, or springs under the last clause of section 8, article 1, as a logical necessity from the power to acquire and occupy territory, needs not be discussed here. The power existed, and the power was plenary. Congress might have chosen not to parcel out into three separate and clear-cut departments the legislative, executive and judicial functions. It might have imposed on
We would not be understood to confound the provinces oí court and legislature. A distinction exists between the two bodies, and it is a radical distinction. It does not seem to' us to arise from dissimilarity of the subject matters treated, nor from dissimilarity of modes of procedure, nor yet from dissimilarity of results attained. Legislators and judges both deal with men and things as socially and politically related. Neither can act well without understanding, deliberation and judgment. If inquiry be necessary to inform the understanding, then there must be inquiry also. Inquiry may be made and all proceedings conducted under the same forms, and the same end may be reached in one body as might be in the other. And yet all this will not change a court to a legislature, nor metamorphose a legislature into a. court. It is said that a legislature may be arbitrary; but so may a court. So, too, both legislatures and courts may be mistaken about facts. But every good piece of legislation, as well as every sound judicial decision, is a piece of good judgment naturally resulting from fair deliberation applied to trustworthy facts. The true distinction between a legislature and a court is not to be found in subject-matter, processes or results. Legislation and adjudication might be confided to the same body, and yet the distinction would re
The sovereign power, through its legislative organ, speaks spontaneously, and imposes on that organ no obligation to reply to any petition; it speaks through its courts upon petition only, and obliges its courts to answer every petition. The voice of the court is explanatory and assertive of that of the legislature; the voice of the legislature is determinative of that of the court. Legislatures declare about persons and things in general, and in particular what the sovereign will is. Courts declare what, according to that will, the parties before them are bound or free to do or suffer. In fine, the legislature gives, the court applies, the law. The sovereign’s will is sovereign will, to which when expressed all must conform. If the sovereign has a will, and wishes spontaneously to announce it, there is no organ but the law-giving body through which to do it. One might inconsiderately and pertly say, that the State has no business to have any will about what are called the private contracts and relations of individuals within it, or if it has a will no business to utter it until appealed to by a party privately interested, and then not until due notice to all parties privately concerned. Private' sovereignty as to private affairs is, however, an idea that does not consist with .the idea of political association. Speaking with accuracy, a ■sovereign commonwealth may be truly said to have an interest in every act, every contract, and every relation of every individual that composes it. Itself is a party, by its sufferance or promotion, to_ every act, every contract, and every relation which exists under the allowance or direction of its laws. Being such a party, it may truly be said to have engaged to allow or or promote everything its laws allow or promote. But its engagements with individuals are all subject to its supreme engagements with them all, whereby both it and they are to seek the welfare of the community as a whole. This subjection of
But of course there is a difference between legislatures with defined and legislatures with undefined powers, and the difference is one of range of power. A legislature with undefined powers has all legislative powers. It can lay down the law in every direction, moulding all persons and things, and each particular person and. thing conclusively to what it says, determining absolutely and finally every question by its fiat. Its voice is the voice of the governing power, and the voice of the governing power is the voice of God. Erom that there is no appeal. Great Britain’s Parliament is an example of such a Legislature. And British Parliamentary divorces, which are indisputably legislative, are examples of such législation. American legislatures are different, simply because limited. Higher legislation than any one of them is capable of has at one breath called them into being and circumscribed, their
The language of the Organic Act, declaring that the legislative power shall extend to all rightful subjects of legislation, implies that there are some subjects of legislation that are not rightful. What are rightful and what are not, Congress, has not undertaken to define. Are we, therefore, to understand that to us, as a Court, is referred for discussion and determination the fundamental political question, what subjects in a distributive and complex form of government like ours, it is expedient that a limited Territorial legislature should be permitted to act upon and what it should not be permitted to touch? Or are we to understand, that by the phrase, “rightful subjects of legislation,” are meant subjects already sufficiently defined by the general consent and practise of the people who in Congress have mentioned them? We think the latter. That which the words “rightful subjects of legislation” stood for, in the mind of the people at the time they were speaking them, is the meaning that belongs to them in this statute, and is the meaning we must regard. To find it out, we have recourse to the most solemn and authoritative utterances current among the people,
Thus far, we have considered the phrase “rightful subjects of legislation,” as if the word “legislation” stood in the statute unqualified. In fact, according to the tenor of the aet, “legislation not inconsistent with the Constitution and laws of the United States,” is the only range of legislation to rightful subjects whereof the legislative power is extended. We come, therefore, to inquire whether the divorce act was inconsistent with any provision of the constitution or laws of the United States. An inconsistency is suggested with only one clause of the Constitution. It is the clause forbidding any State to pass any law impairing the obligations of contracts. Const. Art. 1, s. 10. Adhering to the analogy between the State governments and Territorial governments laid down in the case of The Panama (1 Wash. Terr’y 518, 525), we are prepared to hold, that whatever it would be inconsistent with the Constitution of the United States for a State legislature to do, it would also be inconsistent for a Territorial legislature, under an Organic Act like that of Oregon, to do.
If the marriage contract between Maynard and appellant contained obligations such as the constitution prohibits any State by law to impair, and the contract could not be set aside without impairment of those obligations, then it was one that the Legislature of Oregon never had power to annul. But we are of opinion that the contract of marriage was not within the purview of the constitutional clause. Mot but that we believe a marriage to be a contract. It certainly is a very important contract. It not only most intimately affects the
In “Butler v. Pennsylvania (10 How. 402, 416), the Supreme Court of the United States, through Daniel, J., say “The contracts designed to be protected by the 10th section of the first article of the Federal Constitution are contracts by which perfect rights, certain definite, fixed, private rights of property are vested.” According to this definition, property rights which are not still inchoate or imperfect, and which become vested by marriage, and only such rights could not be constitutionally divested by dissolution of marriage. Such rights no divorce act avails or professes to divest. The act divorcing Maynard from appellant did not profess to divest any such rights, nor did it accomplish any snch divestiture. If the rights existed it would not be necessary to maintain for the future the marriage in order to maintain the rights. Such rights are freely separable from such a contract as that of mar
But appellant argues that if the act be not void for inconsistency with this constitutional provision, it is for inconsistency with two clauses of the ordinance for the government of the territory northwest of the river Ohio, commonly called the Ordinance of 1787. By the léth section of the Organic Act, all the provisions of that ordinance were extended over Oregon, so that any inconsistency with those provisions would be doubtless an inconsistency with the laws of the United States. The last clause of Article II of the ordinance declares “that no law ought ever to be made or have force in said Territory that shall in any manner whatever interfere with or affect private contracts or engagements, Iona fide, without fraud previously formed.” . This is the first clause on which appellant bases her argument. We take it that the language of the article is intended, like that of the constitutional provision we have been considering, to forbid the passing of laws which would impair rights”of property vested under private contracts or engagements. We see no reason why the phrase “private contracts or engagements,” here occurring, should have more compass given it than the word “contract,” in the Constitution. Perhaps some restrictive force should bé allowed to the word “private.” If so, then it may be worth while to notice that contracts relating simply to property or service can be privately made and privately rescinded, varied or released. They are left perfectly within the control of the private parties concerned. Hot so, among us, with the contract of marriage. In that, as soon as formed, the State asserts its interest as controlling, and permits no rescission, variation or release, save by its own expressT consent. But whatever office be assigned to the word “private,” we are clear that the clause under consideration was not intended to apply to the contract of marriage. The act by which Maynard and his wife were divorced is, therefore, not obnoxious to the charge of inconsistency with that elause. In the fourth
Appellant contends that the act of the Oregon Legislature divorcing appellant is inconsistent with this provision also. But we are unable to perceive how the divorce could interfere with the primary disposal of the soil of Oregon, or with any Congressional regulations for securing title to purchasers. The act does not stand in the way of Congress securing title as it pleases in appellant of any land which she may, by money, service or residence, bona fide, purchase. It does not propose to -dispose of the soil, nor qualify a disposition already made. All it does at the most is to change the relations of two parties between themselves.; tha-t they are n© longer husband .and wife. It no mere interferes with the disposal of the soil than a public act providing for the granting of divorces by the judiciary would. Whether the divorce was effected by court or by legislature, the primary disposer of the soil, recognizing the fact and freely acting with it in view, might be unwilling to bestow upon her who is no longer a wife, land that he was minded to give not to her particularly, but to whoever actually and lawfully filled the wife’s place.
This brings us to the verge of the second question proposed at the outset. Its solution depends on the applicability of the provisions already noticed of the Federal Constitution and the Ordinance of 1787, touching the inviolability of contracts. The question is this: Had the appellant, as Maynard’s wife, at the time of the divorce act, any perfect right of property to the land in controversy vested in her which the operation of that act must not be suffered to impair? She asserts that such a right was then hers under the provisions of section é, of the Donation Law. But by that section the donation of six hundred and forty .acres, one-half to himself and the other half to his wife, to be held by her in her own right, is given to that married man only who shall hme resided upon and, oultmated
The statute, moreover, contemplates, we think, a common residence and settlement by husband and wife “in all cases.” It reads: “Where such married persons have complied with the provisions of this act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall have died before patent issues,' the survivor and children or heirs of the deceased shall be entitled,” etc. In argument before us, the wife claims that her domicile never was in Oregon. If this be granted, it is difficult to see how, within the spirit of this generous law, a law intended to foster and reward actual and conjoint settlement, she can proceed to claim even .an incipient right to land under that law. Probably the law should not be held to compel wives to accept a gift. If they can refuse, what is so decisive proof of intent to refuse as a refusal to be considered partaker of the husband’s domicile? Doubtless double donations were offered to promote double settlement. The aim was to plant and endow families in Oregon.
Hpon the whole case, we are of opinion that the judgment of the District Court must be affirmed.