Argument for Defendant in Error.

have been raised in the courts of Massachusetts which would have supported the writ of error from this court, but it does not appear that the courts of that Commonwealth were called upon to consider any Federal question, nor do they appear to have disposed of one. Under such circumstances, the writ of error should be dismissed. Loeber v. Schroeder, 149 U. S. 580; Sayward v. Denny, 158 U. S. 180; Pim v. St. Louis, 165 U. S. 273; Oxley Stave Co. v. Butler Co., 166 U. S. 695; Chapin v. Fye, 179 U. S. 129.

The mere fact that the state courts "decreed that the divorce obtained by Charles S. Andrews in South Dakota is of no force and effect in this Commonwealth" does not of itself raise a Federal question necessitating the exercise of appellate powers by this court, for if it appears upon the face of the foreign decree or otherwise that the court of its origin was without jurisdiction to pronounce it, the so-called decree is in fact no decree, and consequently no constitutional question can arise thereabout. Bell v. Bell, 181 U. S. 175, and cases cited; Streitwolf v. Streitwolf, 181 U. S. 179; Schouler on Husband and Wife, sec. 574; Sewall v. Sewall, 122 Massachusetts, 156; People v. Dawell, 25 Michigan, 247.

It does not follow, because a court has the statutory power to grant divorces, that faith and credit must necessarily be accorded to its decrees, for to enable such court to render a valid decree of divorce it must also happen that at least one of the parties to the proceedings was a domiciled citizen of the State from which the court derives its powers. Hood v. State, 56 Indiana, 263; 26 Am. Rep. 21. The Massachusetts courts have uniformly refused to recognize the validity of divorces granted by other States where a party has gone into another State without acquiring a domicil there for the purpose of obtaining, and does obtain, a divorce for a cause which occurred in but which was not a cause of divorce by the law of Massachusetts, on the ground that the court of that State had no jurisdiction, and its decree granting the divorce is entitled to no faith and credit in Massachusetts as a judicial proceeding, even if the decree recites facts sufficient to give it jurisdiction. Sewall v. Sewall, 122 Massachusetts, 156; Hanore v. Turner, 14 Mass

Argument for Defendant in Error.

achusetts, 227; Chase v. Chase, 6 Gray, 157; Lyon v. Lyon, 2 Gray, 368.

It is now well settled that each State has the right to regulate the status of its own citizens, but it has no jurisdiction to change or determine the status of citizens of a foreign State. Ditson v. Ditson, 4 R. I. 87; Atherton v. Atherton, 181 U. S. 155. Each State is the sole judge of the marital status of its citizens, and it alone has exclusive right to say upon what grounds or for what causes such status may be dissolved or modified. Cook v. Cook, 56 Wisconsin, 195; Hunt v. Hunt, 72 N. Y. 217.

The State of Massachusetts contravened no Federal right in enacting section 41 of chapter 146 of its Public Statutes.

II. On the merits and upon the facts as disclosed by the record that judgment must be affirmed.

By section 2558 of the Compiled Laws of South Dakota, Civil Code, it is provided that marriage may be dissolved only

"1. By the death of one of the parties.

"2. By the judgment of a court of competent jurisdiction decreeing a divorce of the parties."

"SECTION 2578. A divorce must not be granted unless the plaintiff has, in good faith, been a resident of the Territory (State) ninety days next preceding the commencement of the action."

It is plain that a court may have jurisdiction to try a divorce case without having power to grant a valid decree of divorce to the applicant, even though he may allege and prove a cause for divorce under the laws of the State where relief is sought; for example, if the applicant be not in fact domiciled within the territorial jurisdiction of the court. Bishop, Marriage, Divorce and Separation, sec. 51.

The tribunals of a country have no jurisdiction over any cause of divorce, wherever or whenever it arose, if neither of the parties has within its territory an actual bona fide domicil. Nor does it make any difference that both parties are temporarily there, submitting to the jurisdiction. Bishop, Marriage and Divorce, 6th ed. sec. 144.

Argument for Defendant in Error.

Though the words "domicil" and "residence" are not synonymous, a statute requiring a specified number of years' residence in a State to give the courts jurisdiction of an application for divorce is to be interpreted as requiring domicil. Bishop, Marriage and Divorce, 6th ed. sec. 124.

The principles of international law and the general principles of our own requiring the residence for divorce to be animo menendi, such residence must at least partake of the character of permanency. Whitcomb v. Whitcomb, 46 Iowa, 437; Hanson v. Hanson, 111 Massachusetts, 158.

"If a party goes to a jurisdiction other than that of his domicil for the purpose of procuring a divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relations, and any decree they may assume to make would be void as to the other party." Cooley, Constitutional Limitations, p. 401. Citing: Hanover v. Turner, 14 Massachusetts, 227; Greenlaw v. Greenlaw, 12 N. H. 200; Kimball v. Kimball, 13 N. H. 225; Bachelder v. Bachelder, 14 N. H. 380; Payson v. Payson, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474.

In an action by the husband for his interest in the deceased wife's lands it appeared that the wife had gone to Nebraska temporarily to obtain a divorce. The law of Nebraska required as a condition precedent six months' residence. The wife remained within the State the requisite length of time. Held, that the Nebraska court had not acquired jurisdiction, and its decree of divorce in the case might be collaterally assailed. Neff v. Beauchamp, 74 Iowa, 95.

Residence in good faith includes the attributes of domicil. Carpenter v. Carpenter, 30 Kansas, 712.

It presupposes the intention of remaining in the place permanently. Smith v. Smith, 7 North Dakota, 412.

This view was applied to the case at bar as follows:

"Charles S. Andrews went to South Dakota for the purpose of getting the divorce, and intended to return to Massachusetts as soon as he had done so. Subject to this intention, it is found that he intended to become a resident of South Dakota for the

Argument for Defendant in Error.

purpose of getting a divorce, and to do all that was needful to make him such a resident.

"The statute of South Dakota forbids a divorce, unless the plaintiff has, in good faith, been a resident of the Territory ninety days next preceding the commencement of the action.'

The language of the South Dakota statute must be taken to require not merely bodily presence, but domicil. In the light of the decisions upon similar acts, and the generally accepted rule making domicil the foundation, the words 'resident of the Territory' mean domiciled in the Territory, whether they also mean personally present or not," citing Graham v. Graham, 81 N. W. Rep. 44; Dickinson v. Dickinson, 167 Mass. 474, 475; Reed v. Reed, 52 Michigan, 117, 122; Leith v. Leith, 39 New Hampshire, 20, 41; Van Fossen v. State, 37 Ohio St. 317,

319.

“The finding of the single justice clearly means that the deceased did not get a domicil in South Dakota. He meant to stay there ninety days, and such further time, perhaps, as was necessary to get his divorce, and then he meant to come back to Massachusetts."

The facts in evidence warranted, and indeed required, the finding that Charles S. Andrews did not have a bona fide residence or domicil in the State of South Dakota when he obtained the decree of divorce there, and also the further finding that his wife, Kate H., had never been in that State.

Upon the authority of Bell v. Bell and Streitwolf v. Streitwolf, ubi supra, it is plain that the decree of the supreme judicial court must be affirmed unless the further facts found by that court, viz., that said Kate H., having notice of the pendency of the proceedings in the South Dakota court, appeared therein by counsel, filed an answer denying that the libellant was then or ever had been a bona fide resident of South Dakota, and subsequently "for the purpose of carrying out her agreement, 'to consent to the granting of a divorce for desertion in South Dakota,' requested her counsel there to withdraw her appearance in that suit, which they did," and afterwards, without further objection on her part, the decree now attacked was passed, are material and necessitate a different result.

Argument for Defendant in Error.

These additional facts cannot affect the result unless connivance or consent can serve to render a decree otherwise void for want of jurisdiction in the tribunal pronouncing it valid.

However this might be in ordinary suits in personam, in divorce proceedings consent cannot vitalize an otherwise void decree, for the courts of a State where neither party is domiciled are without jurisdiction in law to render a valid decree of divorce, and as such suits are not merely suits between the husband and wife, but affect a public institution, their consent cannot confer jurisdiction, so that where a divorce is granted in a State where neither party is domiciled, but in a proceeding in which both have appeared, their married status is not affected. Harrison v. Harrison, 20 Alabama, 629; McGuire v. McGuire, 7 Dana (Ky.), 181; People v. Dawell, 25 Michigan, 247; Van Fossen v. State, 37 Ohio St. 317; Whitcomb v. Whitcomb, 46 Iowa, 437; Litowitch v. Litowitch, 19 Kansas, 451; Chase v. Chase, 6 Gray, 157; Sewall v. Sewall, 122 Massachusetts, 156; Leith v. Leith, 39 New Hampshire, 20; Platt v. Platt, 80 Penn. St. 501; Hare v. Hare, 10 Texas, 355; Jackson v. Jackson, 1 Johns. 424.

"Divorce is allowed only for causes approved by law. Therefore the parties cannot dissolve their own marriage, or validly agree to a suspension of the cohabitation under it. Nor, for the same reason, can the courts do either simply from their consent. So that when an attempt is made through the tribunals to accomplish this object, the public becomes in effect a party to the proceeding, not to oppose the divorce at all events, but to prevent the sentence passing except as justified by facts which the law has declared to be sufficient; for society has an interest in the maintenance of marriage ties, which the collusion or negligence of the parties cannot impair; hence a divorce suit, while on its face a mere controversy between private parties of record, is, as truly viewed, a triangular proceeding sui generis, wherein the public, or government, occupies in effect the position of a third party." Bishop, Marriage and Divorce, 6th ed. secs. 2296, 230.

This view has already been sealed with the approval of this court, and the doctrine contended for was expounded at length