and spontaneity of legislative power. They may separately act to accomplish the same ends, with only this difference: the legislature may act on its own motion, but a court only on petition. Here, however, the parallel ends; the court must apply the law; the legislature is a law unto itself, and may produce a like result or any result in any way it pleases; it "may consume property, obliterate contracts, or destroy life."

Upon this basis and theory, the court interprets the grant of legislative power of the territories-the scope of “all rightful subjects of legislation;" holds it to mean, “subjects already defined by the general consent and practice of the people who in congress have mentioned them." "From these," say the court, "we gather that the people of the United States, at the date of the organic act, thought and still think, individual marriages to be the subjects of legislation, and legislative divorces valid, unless there be some express constitutional provision to the contrary. This seems to us conclusively to establish the proposition, that the territorial legislature, in passing this special act of divorce, was acting upon a subject which, within the sense of the organic act, was a rightful subject of legislation."

We submit that a conclusion based on such premises can not safely be followed as a precedent.

Mr. Ransford Smith, for respondent.

This question is settled in Utah: Whitman v. Harden, 1 West Coast Rep. 424; see also Maynard v. Valentine, 1 West Coast Rep. 840.

An act of the legislature divorcing husband and wife, acquiesced in by both parties, is not an exercise of judicial authority: Caball v. Caball, 1 Metc., Ky., p. 319.

The act divorcing the parties from the bond of marriage is a constitutional act of legislative authority: Wright v. Wright, 2 Md. 429, sec. 3688.

If a legislature dissolve a marriage contract, the presumption is that it acted upon sufficient cause shown: Cromise v. Cromise, 54 Penn., St. 255.

A divorce by act of the legislature is valid in a case

of which the court, under existing laws, has no jurisdiction: Adams v. Palmer, 51 Me. 480. See also Jones v. Jones, 12 Pa. St. 350; Starr v. Pease, 8 Conn. 541; Guilford v. Oxford, 9 Conn. 321; 48 Am. Dec. note, p. 438; Crane v. McGinnis, 1 Gill & Johnson, Md., 463; 19 Am. Dec. 237; Fornshill v. Murray, 1 Bland Ch., Md., 479; 18 Am. Dec. 344.

It is now settled that marriage is not a contract, but a status, and therefore does not come under the provision of the Constitution of the United States forbidding the impairing of contracts: Bishop on M. and D., sec. 667;

16 Maine 481; 8 Conn. 541.

A special act dissolving marriage is not a retrospective law: Bishop, sec. 678; Bryson v. Campbell, 12 Miss. 498.

A legislative divorce is essentially different from a judicial one, although it bears the same name, and, to a certain extent, answers the same end: Bishop, sec. 990; Roberts v. Roberts, 4 Smith, Pa., 265.

Under certain circumstances of acquiescence, a legislative divorce is held valid in Mo.: Richeson v. Simmons, 47 Mo. 20.

Under certain circumstances, a fraudulent decree of divorce was upheld on account of acquiescence: Zoelner v. Zoelner, 46 Mich. 511.

A divorce from the bonds was originally a legislative act: Encyclopædia Brittanica, title Divorce.

ZANE, C. J.:

This is an appeal from the judgment of the district court affirming a decree of the probate court, denying the right of Sophia E. Higbee, the petitioner, as widow of the late Lyman P. Higbee, and distributing his entire estate to another.

It appears from the findings that Lyman P. Higbee died intestate at Ogden City, Utah territory, on the 2nd day of February, 1883, leaving an estate which, after the payment of all his just debts, amounted to about $3000. The petitioner is entitled to one half this estate if, at the time of his death, she was his lawful wife.

The facts are that petitioner was married to deceased at

Fon du Lac, in the state of Wisconsin, on the 23rd day of August, 1866; that they continued to live together as husband and wife till 1869, when he sent her to California on account of her delicate health, with the mutual expectation that she would return to him in Idaho, or that he would join her in California and establish his residence there; that he ceased to contribute to her support within a year thereafter, although she was dependent upon him; that she was willing and desirous to return to him, but he neither joined her in California nor furnished her means to return to him; that he was afterwards elected to the legislature of the territory of Idaho, and, while he was acting as a member thereof, that body passed an act, which, without preamble or recital, simply declared "that the bonds of matrimony existing between Lyman P. Higbee, of Malad City, in the county of Oneida, this territory, and Sophia E. Higbee, be, and the same are hereby absolutely dissolved, and that this act shall take effect and be in force from and after its passage." It was approved December 28th, 1874. It also appears that Sophia E. Higbee had no notice of this act until 1876, when she saw an announcement of it in a newspaper sent to her by a third

person.

To decide this question it is necessary to determine whether the divorce was within the grant of legislative power to the territory of Idaho. The Federal government is one of enumerated and delegated powers, and possesses none except such as are necessary to the exercise of those expressed. The second clause of the third section of the fourth article of the Constitution of the United States is: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States." "No one," says Judge Story, "has ever doubted the authority of Congress to erect territorial governments within the territory of the United States, under the general language of this clause:" 2 Story on Const., sec. 1325.

Rules and regulations in a legal sense mean laws. Blackstone says that "municipal law is a rule of civil

Α

conduct prescribed by the supreme power in a state." divorce is not a rule or regulation. "The divorce act is a judgment, though not pronounced by a court;" if it has any effect, it is the dissolution of the bonds of matrimony between husband and wife-a decree which terminates the rights and duties of the marriage relation. It is confined to the parties to the marriage, and therefore cannot be a rule or regulation. Congress unquestionably has the power to enact laws with respect to marriage and divorce in the territories-to protect the former, and to specify the causes for the latter, and the mode to be pursued in obtaining the latter. But, so far as we are advised, Congress has never exercised or claimed authority to grant divorces.

Territorial legislatures have not the supreme legislative power. That is vested in Congress and so continues: Chief Justice Waite in National Bank v. Yankton, 101 U. S. 133, defines the territorial status as follows: "A territory within the jurisdiction of the United States, not included in any state, must necessarily be governed by and under the authority of Congress. The territories are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective states, and Congress may legislate for them as a state does for its municipal organizations. gress may not only abrogate the laws of the territorial legislature, but may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void."

Con

Section 1851 of the Revised Statutes of the United States provides that "the legislative power of any territory shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws of the United States." Only legislative power is conferred, and is extended only to rightful subjects of legislation, so that, even if Congress has the power to grant divorces, it has not conferred it on the territorial legislatures. The Federal and state constitutions limit the legislative powers of the various states, and those powers may extend to

judicial subjects, when they are found within the limitations. The powers of government are distinguished and classified with respect to their purposes and uses. Those necessary to enacting laws are termed legislative; those employed in ascertaining facts from evidence, and in construing and applying the law, are called judicial, and those used in executing judgments, decrees and commands are named executive. Experience and observation have demonstrated that a legislative body, and the forms and methods which it employs, are best adapted to express the will of the people in laws; and that a tribunal constituted as a court is, and the forms and methods which it employs are best suited to the investigation of evidence relating to the varied contentions among men, which the government is called upon to settle.

During its early history, all the authority of the British government was in the king, and he exercised executive, legislative and judicial power. Later, parliament exercised judicial, as well as legislative, authority. But "divorces granted by the parliament of Great Britain were not legislative, but judicial; and, according to the article on divorces in the Encyclopædia Brittanica, the proceeding was a judicial one by a legislative process."

In Jones v. Jones, 12 Pa. St. 350, Justice Coulter thus refers to divorces by parliament: "In England, parliament has frequently annulled the contract of marriage for adultery. There is, perhaps, more reason for the practice there than existed in this state for the exercise of a similar power by the legislature, because parliament is a court. Lord Coke says it is the highest and most honorable court in the kingdom. But that high court proceeds with the utmost circumspection, examines witnesses to prove the adultery, and, in cases where the guilty parties have not left the realm, requires that there shall also have been a trial in the common law courts for criminal conversation, and damages recovered; also that a sentence of divorce in the spiritual court should have been decreed, which can only divorce a mensa et thoro; hence the necessity of the intervention of parliament to divorce a vinculo whose power, only, is adequate to that end."