SOPHIA E. HIGBEE, APPELLANT, r. LUCY M. HIG

BEE, RESPONDENT.

LEGISLATIVE DIVORCES.-The legislature of the territory of Idaho, while one Lyman P. Higbee was a member thereof, passed an act dissolving the marriage between said Higbee and appellant, which was without notice to appellant, and while the territory of Idaho had a general law on the subject of divorce. Held, that the granting of such divorce was not a rightful subject of legislation under § 1851, Revised Stat., U. S.

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Mr. J. G. Sutherland (Mr. J. R. McBride and Mr. H. O. W. Margery, with him), for appellant.

It is not within the competence of a legislature, by the exercise of mere legislative power, to grant a divorce.

The passage of such an act by the forms of legislation is not the exercise of legislative power.

The organic act vested in this territorial legislature legislative power, extending "to all rightful subjects of legislation." The limitations which affect the power of legislative bodies in the territories, and all legislative bodies under the operation of the guaranties contained in the Federal Constitution, will be discussed further on. Now, we contend that the passing of this act was not legislation; that it is an abortive act of depotism not a law.

A law is defined to be a rule of civil conduct. A statute law is such a rule prescribed by the supreme power of the state. It is a rule of conduct or action formulated for subsequent observance.

The legislature of Idaho, in 1864, by the proper exercise of its law-making power, had enacted a divorce statute. This section confers jurisdiction on the courts to grant divorce for cause:

"Divorces from the bonds of matrimony may be obtained by complaint under oath to the district court of the county

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in which the cause therefor shall have accrued, or in which the defendant shall reside, if the latter be within the county in which the parties last cohabited, or in which the plaintiff shall have resided six months before suit be brought, for the following causes: First-Impotency at the time of marriage, continuing to the time of divorce; SecondAdultery since the marriage, remaining unforgiven; Third -Wilful desertion of either party by the other for the space of two years; Fourth-Conviction of felony or infamous crimes; Fifth-Habitual, gross drunkenness, contracted since marriage, of either party, which shall incapacitate such party from contributing his or her share to the support of the family; Sixth-Extreme cruelty in either party; Seventh-Neglect of the husband for the period of two years to provide the common necessaries of life, when such neglect is not the result of poverty on the part of the husband which he could not avoid by ordinary industry."

The legislature of that territory possessed no judicial power. By the organic act that power was vested in the court. The three great powers of goverment-judicial, legislative and executive-were confided to three separate and distinct branches of the territorial establishment. They were delegated powers, and each department could exercise that power which was granted to it, and no other: National Bank v. Yankton, 101 U. S. 101; Territory v. Lee, 2 Mont. 124; Kilbourn v. Thompson, 103 U. S. 168; Chandler v. Nash, 5 Mich. 409; C. W., etc., R. R. Co. v. Commissioners, 1 Ohio St. 87; People v. Draper, 15 N. Y. 543; State v. Maynard, 14 Ill. 420; Greenough v. Greenough, 11 Pa. St. 487; Whart. Com. on Law, § 388; Cooley's Const. Lim., 106, et seq.

This divorce act is a judgment, though not pronounced by a court. It professes to give practical relief. If it can not be sustained as a judgment, it is not therefore a law. It obviously can not be sustained as a judgment. It could be rendered only by a tribunal having judicial power, and the Idaho legislature had none. There were wanting two essential constituents of a court-there was no judex-no reus. The validity of this judgment must be tested like

the validity of any other judicial record. It declares no law, and, hence, must be supposed to be made with reference to the law which a court rendering a similar judgment would judicially take notice of and follow. When a judgment is rendered the law in force must warrant that determination, and that law must authorize its rendition by the tribunal which pronounces it; otherwise it will be void. When rendered on a subject matter not within the jurisdiction of the tribunal, it is void on its face.

As this judgment is rendered by a legislative body, having no judicial authority whatever, there is plainly manifest on its face this fatal defect and want of jurisdiction: Barthelemy v. Johnson, 3 B. Mon. 91; Marshall, C. J., in Gaines v. Gaines, 9 B. Mon. 295; Kent, Ch. J., in Dash v. Van Kleeck, 7 John 508; Irving's Appeal, 16 Pa. St. 266; Lewis v. Webb, 3 Greenlf. 326; Dunham v. Lewiston, 4 Greenlf. 140; Holden v. James, 11 Mass. 396; Piquet, Appellant, 5 Pick. 64; Simonds v. Simonds, 103 Mass. 572; White v. White, 105 Id. 325; People v. Frisbie, 26 Cal. 135; Wallysheim v. Kennedy, 2 Yerg. 554; Clark v. Clark, 10 N. H. 387.

Under the operation of these principles what would be the effect of a statute which in terms should prescribe that A and B, who were eligible by the general law to intermarry, should not do so, and that the marriage, if they should have it solemnized, should be void? Would such an invidious and exceptional statute be sustained? Under the elementary definition of municipal law, which has been given, and the adjudications which have been cited, such a statute would be held void. It would be held not to be legitimate legislation. An arbitrary act, annulling a lawful marriage, which, by the general law could not be dissolved, would be of the same exceptional character, and obnoxious to the same objection. Those who make the laws "are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and for the countryman at plough:" Locke on Civil Government, § 142; Ward v. Barnard, 1 Aik. 121; Town of Bradford v. Brooks, 2 Id. 284; Kendall v. Dodge, 3 Vt. 360; Starr v. Robinson,

1 Chip. 257; Bates v. Kimball, 2 Id. 77; Bank v. Cooper, 2 Yerg. 599; Durkee v. Janesville, 28 Wis. 564; in the matter of Nichols, 8 R. I. 50; Cooley's Const. Lim. 118, 129, 488.

This divorce act is void for violating the petitioner's constitutional rights.

The petitioner and the deceased having been lawfully married, she had a right to her husband, and there was vested in her other marital rights, which the law recognizes. In respect to them, she was entitled, with all others, to "the equal protection of the laws." She could not be deprived of them, except by "due process of law;" and she was entitled to be exempt from deprivation of any ex post facto law, or any law impairing the obligation of the marriage contract. The divorce act in question would infringe her rights in these several ways.

Marriage is pecuniarily and otherwise valuable; the promise of marriage and actual marriage are so. A loss of it by breach of the promise gives a right to damages. These are measured by the value of the advantages which would have accrued if the contract had been fulfilled. In such an action, the jury may take into consideration the money value or worldly advantages, separate from considerations of sentiment and affection, of the marriage; and if the affections of the plaintiff were in fact implicated, the injury to her affections may be considered as an additional element of damages: Harrison v. Swift, 13 Allen 144.

Marriage is a valuable consideration like money to support a contract or conveyance: Whilan v. Whilan, 3 Cow. 53; Smith v. Allen, 5 Allen 454; Maquiac v. Thompson, 7 Pet. 348; Slerry v. Arden, 1 Johns. Ch. 271.

Wife has a vested right under the marriage contract. Well considered cases in the states have proceeded on the ground that marriage is a contract, within this provision of the constitution, and that under it rights become vested which can not be disturbed by subsequent legislation: Lawrence v. Miller, 2 N. Y. 245; Westervill v. Gregg, 12 Id. 202; Holmes v. Holmes, 4 Barb. 295; Jackson v. Sublett, 10 B. Mon. 467; Dunn v. Sargent, 101 Mass. 336;

Gardner v. Hooper, 3 Gray 398; Cooley's Const. Lim. 447; State v. Fry, 4 Mo. 183; Ponder v. Graham, 4 Flor. 23.

The marriage contract gives each of the parties a right to the person of the other for their mutual happiness, and the production and education of children: 1 Rutherford's Inst. 214; 2 Id. 335.

Every legislative divorce granted in this county that has been upheld by the courts was judicial, except one.

There is one case which holds a legislative divorce to be valid. It is Maynard v. Valentine, 1 West Coast Rep. 840, decided in Washington Territory, in 1880. It was a case as destitute of merit for a divorce as was that of the deceased for a divorce from the petitioner. Notwithstanding the gross injustice done to the wife, the court answered affirmatively the question of the validity of the legislative divorces, conceding that it disposed of her dearest interests, in her absence, without her knowledge, against her will, and without inquiry. It will be noticed in this decision that there was a singular obfuscation respecting the distinctive functions of the legislative and judicial departments of the government. First, the sovereign will is paramount against which no private rights can contend or stand out. Second, the legislative branch is the organ of this sovereign will, and unchecked by a constitution, has the omnipotence of parliament, not only to pass laws, but mould "all persons and things, and each particular person and thing, conclusively to what it says, determining absolutely and finally every question by its fiat." It affirms that "British parliamentary divorces, which are indisputably legislative divorces," are examples, that all positive, "spontaneous" and aggressive action of the sovereign will, is legislative; and only the response of a passive tribunal incapable of acting unless petitioned, is judicial; and, third, that though there is a radical distinction between the legislative and judicial bodies, it is not a dissimilarity of process, procedure or results attained. The distinction "consists in the deep seated organic relations which court and legislature respectively bear to the central sovereignty which speaks and acts through them." In short, it consists in the passiveness of the judicial, and the aggressiveness