new influences. This was McElmoyle _v._ Cohen,[7] decided in 1839, in
which the issue was whether a statute of limitations of the State of
Georgia, which applied only to judgments obtained in courts other than
those of Georgia, could constitutionally bar an action in Georgia on a
judgment rendered by a court of record of South Carolina. Declining to
follow Marshall's lead in Hampton _v._ McConnell, the Court held that
the Constitution was not intended "materially to interfere with the
essential attributes of the _lex fori_"; that the act of Congress only
established a rule of evidence, of conclusive evidence to be sure, but
still of evidence only; and that it was necessary, in order to carry
into effect in a State the judgment of a court of a sister State, to
institute a fresh action in the court of the former, in strict
compliance with its laws; and that consequently, when remedies were
sought in support of the rights accruing in another jurisdiction, they
were governed by the _lex fori_. In accord with this holding it has been
further held that foreign judgments enjoy, not the right of priority or
privilege or lien which they have in the State where they are
pronounced, but only that which the _lex fori_ gives them by its own
laws, in their character of foreign judgments.[8] A judgment of a State
court, in a cause within its jurisdiction, and against a defendant
lawfully summoned, or against lawfully attached property of an absent
defendant, is entitled to as much force and effect against the person
summoned or the property attached, when the question is presented for
decision in a court in another State, as it has in the State in which it
was rendered.[9]
A judgment enforceable in the State where rendered must be given effect
in the other State, although the modes of procedure to enforce its
collection may not be the same in both States.[10] If the court has
acquired jurisdiction, the judgment is entitled to full faith and credit
though the court may not be able to enforce it by execution in the State
in which it was rendered, as where the defendant left the State after
service upon him and took all his property with him. While the want of
power to enforce a judgment or decree may afford a reason against
entertaining jurisdiction, it has nothing to do with the validity of a
judgment or decree when made.[11] In the words of the Court in a recent
case: "A cause of action on a judgment is different from that upon which
the judgment was entered. In a suit upon a money judgment for a civil
cause of action, the validity of the claim upon which it was founded is
not open to inquiry, whatever its genesis. Regardless of the nature of
the right which gave rise to it, the judgment is an obligation to pay
money in the nature of a debt upon a specialty. Recovery upon it can be
resisted only on the grounds that the court which rendered it was
without jurisdiction, * * * or that it has ceased to be obligatory
because of payment or other discharge * * * or that it is a cause of
action for which the State of the forum has not provided a court
* * *"[12]
On the other hand, the clause is not violated when a judgment is
disregarded because it is not conclusive of the issues before a court of
the forum. Conversely, no greater effect can be given than is given in
the State where rendered. Thus an interlocutory judgment may not be
given the effect of a final judgment.[13] Likewise when a federal court
does not attempt to foreclose the State court from hearing all matters
of personal defense which landowners might plead, a State court may
refuse to accept the former's judgment as determinative of the
landowners' liabilities.[14] Similarly, though a confession of judgment
upon a note, with a warrant of attorney annexed, in favor of the holder,
is in conformity with a State law and usage as declared by the highest
court of the State in which the judgment is rendered, the judgment may
be collaterally impeached upon the ground that the party in whose behalf
it was rendered was not in fact the holder.[15] But a consent decree,
which under the law of the State has the same force and effect as a
decree _in invitum_, must be given the same effect in the courts of
another State.[16]
One result produced by not following Hampton _v._ McConnell is that even
nowadays the Court is sometimes confronted with the contention that a
State need not provide a forum for some particular type of judgment from
a sister State, a claim which it has by no means met with clear-cut
principles. Thus in one case it held that a New York statute forbidding
foreign corporations doing a domestic business to sue on causes
originating outside the State was constitutionally applicable to prevent
such a corporation from suing on a judgment obtained in a sister
State.[17] But in a later case it ruled that a Mississippi statute
forbidding contracts in cotton futures could not validly close the
courts of the State to an action on a judgment obtained in a sister
State on such a contract, although the contract in question had been
entered into in the forum State and between its citizens.[18] Following
the later rather than the earlier precedent, subsequent cases[19] have
held: (1) that a State may adopt such system of courts and form of
remedy as it sees fit, but cannot, under the guise of merely affecting
the remedy, deny enforcement of claims otherwise within the protection
of the full faith and credit clause when its courts have general
jurisdiction of the subject matter and the parties;[20] (2) that,
accordingly, a forum State, which has a shorter period of limitations
than the State in which a judgment was granted and later reviewed, erred
in concluding that, whatever the effect of the revivor under the law of
the State of origin, it could refuse enforcement of the revived
judgment;[21] (3) that the courts of one State have no jurisdiction to
enjoin the enforcement of judgments at law obtained in another State,
when the same reasons assigned for granting the restraining order were
passed upon on a motion for new trial in the action at law and the
motion denied;[22] (4) that the constitutional mandate requires credit
to be given to a money judgment rendered in a civil cause of action in
another State, even though the forum State would have been under no duty
to entertain the suit on which the judgment was founded, inasmuch as a
State cannot, by the adoption of a particular rule of liability or of
procedure, exclude from its courts a suit on a judgment;[23] and (5)
that similarly, tort claimants in State A, who obtain a judgment against
a foreign insurance company, notwithstanding that, prior to judgment,
domiciliary State B appointed a liquidator for the company, vested
company assets in him, and ordered suits against the company stayed, are
entitled to have such judgment recognized in State B for purposes of
determining the amount of their claim, although not for determination of
what priority, if any, their claim should have.[24] Moreover, there is
no apparent reason why Congress, acting on the implications of
Marshall's words in Hampton _v._ McConnell, should not clothe extrastate
judgments of any particular type with the full status of domestic
judgments of the same type in the several States.[25]
The Jurisdictional Prerequisite
The second great class of cases to arise under the full faith and credit
clause comprises those raising the question whether a judgment for which
extrastate operation was being sought, either as a basis of an action or
as a defense in one, has been rendered with jurisdiction. Records and
proceedings of courts wanting jurisdiction are not entitled to
credit.[26] The jurisdictional question arises both in connection with
judgments _in personam_ against nonresident defendants upon whom it is
alleged personal service was not obtained in the State of origin of the
judgment, and in relation to judgments _in rem_ against property or a
status alleged not to have been within the jurisdiction of the Court
which handed down the original decree.[27]
JUDGMENTS _IN PERSONAM_
The pioneer case is that of D'Arcy _v._ Ketchum,[28] decided in 1850.
The question presented was whether a judgment rendered by a New York
court under a statute which provided that, when joint debtors were sued
and one of them was brought into court on a process, a judgment in favor
of the plaintiff would entitle him to execute against all, and so must
be accorded full faith and credit in Louisiana when offered as the basis
of an action in debt against a resident of that State who had not been
served by process in the New York action. Pressed with the argument that
by "the immutable principles of justice" no man's rights should be
impaired without his being given an opportunity to defend them, the
Court ruled that, interpreted in the light of the principles of
"international law and comity" as they existed in 1790, the act of
Congress of that year did not reach the case.[29] The truth is that the
decision virtually amended the act, for had the Louisiana defendant
ventured to New York, he could, as the Constitution of the United States
then stood, have been subjected to the judgment of the same extent as
the New York defendant who had been personally served. Subsequently,
this disparity between the operation of a personal judgment in the home
State and a sister State has been eliminated, thanks to the adoption of
the Fourteenth Amendment. In divorce cases, however, it still persists
in some measure. (_See_ pp. 662-670.)
In Pennoyer _v._ Neff,[30] decided in 1878, and so under the amendment,
the Court held that a judgment given in a case in which the State court
had endeavored to acquire jurisdiction of a nonresident defendant by an
attachment upon property of his within the State and constructive notice
to him, had not been rendered with jurisdiction and hence could not
afford the basis of an action in the court of another State against such
defendant, although it bound him so far as the property attached was
concerned, on account of the inherent right of a State to assist its own
citizens in obtaining satisfaction of their just claims. Nor would such
a judgment, the Court further indicated, be due process of law to any
greater extent in the State where rendered. In the words of a later
case, "an ordinary personal judgment for money, invalid for want of
service amounting to due process of law, is as ineffective in the State
as outside of it."[31]
THE JURISDICTIONAL QUESTION
In short, when the subject matter of a suit is merely the determination
of the defendant's liability, it is necessary that it should appear from
the record that the defendant had been brought within the jurisdiction
of the court by personal service of process, or his voluntary
appearance, or that he had in some manner authorized the proceeding.[32]
The claim that a judgment was "not responsive to the pleadings" raises
the jurisdictional question;[33] but the fact that a nonresident
defendant was only temporarily in the State when he was served in the
original action does not vitiate the judgment rendered as the basis of
an action in his home State.[34] Also, a judgment rendered in the State
of his domicile against a defendant who, pursuant to the statute thereof
providing for the service of process on absent defendants, was
personally served in another State is entitled to full faith and
credit.[35] Also, when the matter of fact or law on which jurisdiction
depends was not litigated in the original suit, it is a matter to be
adjudicated in the suit founded upon the judgment.[36]
Inasmuch as the principle of _res judicata_ applies only to proceedings
between the same parties and privies, the plea by defendant in an action
based on a judgment that he was no party or privy to the original
action raises the question of jurisdiction; and while a judgment against
a corporation in one State may validly bind a stockholder in another
State to the extent of the par value of his holdings,[37] an
administrator acting under a grant of administration in one State stands
in no sort of relation of priority to an administrator of the same
estate in another State.[38] But where a judgment of dismissal was
entered in a federal court in an action against one of two joint
tortfeasors, in a State in which such a judgment would constitute an
estoppel in another action in the same State against the other
tort-feasor, such judgment is not entitled to full faith and credit in
an action brought against the other tortfeasor in another State.[39]
SERVICE ON FOREIGN CORPORATIONS
In 1856 the Court decided Lafayette Insurance Co. _v._ French et
al.,[40] a pioneer case in its general class. Here it was held that
"where a corporation chartered by the State of Indiana was allowed by a
law of Ohio to transact business in the latter State upon the condition
that service of process upon the agent of the corporation should be
considered as service upon the corporation itself, a judgment obtained
against the corporation by means of such process" ought to receive in
Indiana the same faith and credit as it was entitled to in Ohio.[41]
Later cases establish under both the Fourteenth Amendment and article
IV, section 1, that the cause of action must have arisen within the
State obtaining service in this way,[42] that service on an officer of a
corporation, not its resident agent and not present in the State in an
official capacity, will not confer jurisdiction over the
corporation;[43] that the question whether the corporation was actually
"doing business" in the State may be raised.[44] On the other hand, the
fact that the business was interstate is no objection.[45]
SERVICE ON OUT-OF-STATE OWNERS OF MOTOR VEHICLES
By analogy to the above cases, it has been held that a State may require
nonresident owners of motor vehicles to designate an official within the
State as an agent upon whom process may be served in any legal
proceedings growing out of their operation of a motor vehicle within the
State;[46] and while these cases arose under the Fourteenth Amendment
alone, unquestionably a judgment validly obtained upon this species of
service could be enforced upon the owner of a car through the courts of
his home State.
JUDGMENTS _IN REM_
In sustaining the challenge to jurisdiction in cases involving judgments
_in personam_, the Court was in the main making only a somewhat more
extended application of recognized principles. In order to sustain the
same kind of challenge in cases involving judgments _in rem_ it has had
to make law outright. The leading case is Thompson _v._ Whitman,[47]
decided in 1874. Thompson, sheriff of Monmouth County, New Jersey,
acting under a New Jersey statute, had seized a sloop belonging to
Whitman, and by a proceeding _in rem_ had obtained its condemnation and
forfeiture in a local court. Later, Whitman, a citizen of New York,
brought an action for trespass against Thompson in the United States
Circuit Court for the Southern District of New York, and Thompson
answered by producing a record of the proceedings before the New Jersey
tribunal. Whitman thereupon set up the contention that the New Jersey
court had acted without jurisdiction inasmuch as the sloop which was the
subject matter of the proceedings had been seized outside the county to
which, by the statute under which it had acted, its jurisdiction was
confined.
Thompson _v._ Whitman
As previously explained, the plea of lack of privity cannot be set up in
defense in a sister State against a judgment _in rem_. It is, on the
other hand, required of a proceeding _in rem_ that the _res_ be within
the court's jurisdiction, and this, it was urged, had not been the case
in Thompson _v._ Whitman. Could, then, the Court consider this challenge
with respect to a judgment which was offered not as the basis for an
action for enforcement through the courts of a sister State, but merely
as a defense in a collateral action? As the law stood in 1873, it
apparently could not.[48] All difficulties, nevertheless, to its
consideration of the challenge to jurisdiction in the case were brushed
aside by the Court. Whenever, it said, the record of a judgment rendered
in a State court is offered "in evidence" by either of the parties to an
action in another State, it may be contradicted as to the facts
necessary to sustain the former court's jurisdiction; "and if it be
shown that such facts did not exist, the record will be a nullity,
notwithstanding the claim that they did exist."[49]
Divorce Decrees
THE JURISDICTIONAL PREREQUISITE: DOMICILE
This however, was only the beginning of the court's lawmaking in cases
_in rem_. The most important class of such cases is that in which the
respondent to a suit for divorce offers in defense an earlier decree
from the courts of a sister State. By the almost universally accepted
view prior to 1906 a proceeding in divorce was one against the marriage
status, i.e., _in rem_, and hence might be validly brought by either
party in any State where he or she was _bona fide_ domiciled;[50] and,
conversely, when the plaintiff did not have a _bona fide_ domicile in
the State, a court could not render a decree binding in other States
even if the nonresident defendant entered a personal appearance.[51] But
in 1906 the Court discovered, by a vote of five-to-four, a situation in
which a divorce proceeding is one _in personam_.
Haddock _v._ Haddock
The case referred to is Haddock _v._ Haddock,[52] while the earlier rule
is illustrated by Atherton _v._ Atherton,[53] decided five years
previously. In the latter it was held, in the former denied, that a
divorce granted a husband without personal service upon the wife, who at
the time was residing in another State, was entitled to recognition
under the full faith and credit clause and the acts of Congress; the
difference between the cases consisting solely in the fact that in the
Atherton case the husband had driven the wife from their joint home by
his conduct, while in the Haddock case he had deserted her. The Court
which granted the divorce in Atherton _v._ Atherton was held to have had
jurisdiction of the marriage status, with the result that the proceeding
was one _in rem_ and hence required only service by publication upon the
respondent. Haddock's suit, on the contrary, was held to be as to the
wife _in personam_, and so to require personal service upon her, or her
voluntary appearance, neither of which had been had; although,
notwithstanding this, the decree in the latter case was held to be valid
as to the State where obtained on account of the State's inherent power
to determine the status of its own citizens. The upshot was a situation
in which a man and a woman, when both were in Connecticut, were
divorced; when both were in New York, were married; and when the one
was in Connecticut and the other in New York, the former was divorced
and the latter married. In Atherton _v._ Atherton the Court had earlier
acknowledged that "a husband without a wife, or a wife without a
husband, is unknown to the law."
EMERGENCE OF THE DOMICILE QUESTION
The practical difficulties and distresses likely to result from such
anomalies were pointed out by critics of the decision at the time. In
point of fact, they have been largely avoided, because most of the State
courts have continued to give judicial recognition and full faith and
credit to one another's divorce proceedings on the basis of the older
idea that a divorce proceeding is one _in rem_, and that if the
applicant is _bona fide_ domiciled in the State the court has
jurisdiction in this respect. Moreover, until the second of the Williams
_v._ North Carolina cases[54] was decided in 1945, there had not been
manifested the slightest disposition to challenge judicially the power
of the States to determine what shall constitute domicile for divorce
purposes. Shortly prior thereto, in 1938, the Court in Davis _v._
Davis[55] rejected contentions adverse to the validity of a Virginia
decree of which enforcement was sought in the District of Columbia. In
this case, a husband, after having obtained in the District a decree of
separation subject to payment of alimony, established years later a
residence in Virginia, and sued there for a divorce. Personally served
in the District, where she continued to reside, the wife filed a plea
denying that her husband was a resident of Virginia and averred that he
was guilty of a fraud on the court in seeking to establish a residence
for purposes of jurisdiction. In ruling that the Virginia decree,
granting to the husband an absolute divorce minus any alimony payment,
was enforceable in the District, the Court stated that in view of the
wife's failure, while in Virginia litigating her husband's status to
sue, to answer the husband's charges of wilful desertion, it would be
unreasonable to hold that the husband's domicile in Virginia was not
sufficient to entitle him to a divorce effective in the District. The
finding of the Virginia court on domicile and jurisdiction was declared
to bind the wife. Davis _v._ Davis is distinguishable from the Williams
_v._ North Carolina decisions in that in the former, determination of
the jurisdictional prerequisite of domicile was made in a contested
proceeding, while in the Williams cases it was not.
Williams I and II
In the Williams I and Williams II cases, the husband of one marriage and
the wife of another left North Carolina, obtained six-week divorce
decrees in Nevada, married there, and resumed their residence in North
Carolina where both previously had been married and domiciled.
Prosecuted for bigamy, the defendants relied upon their Nevada decrees;
and won the preliminary round of this litigation; that is, Williams
I,[56] when a majority of the justices, overruling Haddock _v._ Haddock,
declared that in this case, the Court must assume that the petitioners
for divorce had a _bona fide_ domicile in Nevada, and not that their
Nevada domicile was a sham. "* * * each State, by virtue of its command
over its domiciliaries and its large interest in the institution of
marriage, can alter within its own borders the marriage status of the
spouse domiciled there, even though the other spouse is absent. There is
no constitutional barrier if the form and nature of substituted service
meet the requirements of due process." Accordingly, a decree granted by
Nevada to one, who, it is assumed, is at the time _bona fide_ domiciled
therein, is binding upon the courts of other States, including North
Carolina in which the marriage was performed and where the other party
to the marriage is still domiciled when the divorce was decreed. In view
of its assumptions, which it justified on the basis of an inadequate
record, the Court did not here pass upon the question whether North
Carolina had the power to refuse full faith and credit to a Nevada
decree because it was based on residence rather than domicile; or
because, contrary to the findings of the Nevada court, North Carolina
found that no _bona fide_ domicile had been acquired in Nevada.[57]
Presaging what ruling the Court would make when it did get around to
passing upon the latter question, Justice Jackson, dissenting in
Williams I, protested that "this decision repeals the divorce laws of
all the States and substitutes the law of Nevada as to all marriages one
of the parties to which can afford a short trip there. * * * While a
State can no doubt set up its own standards of domicile as to its
internal concerns, I do not think it can require us to accept and in the
name of the Constitution impose them on other States. * * * The effect
of the Court's decision today--that we must give extraterritorial effect
to any judgment that a state honors for its own purposes--is to deprive
this Court of control over the operation of the full faith and credit
and the due process clauses of the Federal Constitution in cases of
contested jurisdiction and to vest it in the first State to pass on the
facts necessary to jurisdiction."[58]
Notwithstanding that one of the deserted spouses had died since the
initial trial and that another had remarried, North Carolina, without
calling into question the status of the latter marriage began a new
prosecution for bigamy; and when the defendants appealed the conviction
resulting therefrom, the Supreme Court, in Williams II,[59] sustained
the adjudication of guilt as not denying full faith and credit to the
Nevada divorce decree. Reiterating the doctrine that jurisdiction to
grant divorce is founded on domicile,[60] a majority of the Court held
that a decree of divorce rendered in one State may be collaterally
impeached in another by proof that the court which rendered the decree
lacked jurisdiction (the parties not having been domiciled therein),
even though the record of proceedings in that court purports to show
jurisdiction.[61]
CASES INVOLVING CLAIMS FOR ALIMONY OR PROPERTY ARISING IN FORUM STATE
In Esenwein _v._ Commonwealth,[62] decided on the same day as the second
Williams Case, the Supreme Court also sustained a Pennsylvania court in
its refusal to recognize an _ex parte_ Nevada decree on the ground that
the husband who obtained it never acquired a _bona fide_ domicile in the
latter State. In this instance, the husband and wife had separated in
Pennsylvania, where the wife was granted a support order; and after two
unsuccessful attempts to win a divorce in that State, the husband
departed for Nevada. Upon the receipt of a Nevada decree, the husband
thereafter established a residence in Ohio, and filed an action in
Pennsylvania for total relief from the support order. In a concurring
opinion, in which he was joined by Justices Black and Rutledge, Justice
Douglas stressed the "basic difference between the problem of marital
capacity and the problem of support," and stated that it was "not
apparent that the spouse who obtained the decree can defeat an action
for maintenance or support in another State by showing that he was
domiciled in the State which awarded him the divorce decree," unless the
other spouse appeared or was personally served. "The State where the
deserted wife is domiciled has a deep concern in the welfare of the
family deserted by the head of the household. If he is required to
support his former wife, he is not made a bigamist and the offspring of
his second marriage are not bastardized." Or as succinctly stated by
Justice Rutledge, "the jurisdictional foundation for a decree in one
State capable of foreclosing an action for maintenance or support in
another may be different from that required to alter the marital status
with extraterritorial effect."[63]
Three years later, but on this occasion as spokesman for a majority of
the Court, Justice Douglas reiterated these views in the case of Estin
_v._ Estin.[64] Even though it acknowledged the validity of an _ex
parte_ Nevada decree obtained by a husband, New York was held not to
have denied full faith and credit to said decree when, subsequently
thereto, it granted the wife a judgment for arrears in alimony founded
upon a decree of separation previously awarded to her when both she and
her husband were domiciled in New York. The Nevada decree, issued to the
husband after he had resided there a year and upon constructive notice
to the wife in New York who entered no appearance, was held to be
effective only to change the marital status of both parties in all
States of the Union but ineffective on the issue of alimony. Divorce, in
other words, was viewed as being divisible; and Nevada, in the absence
of acquiring jurisdiction over the wife, was held incapable of
adjudicating the rights of the wife in the prior New York judgment
awarding her alimony. Accordingly, the Nevada decree could not prevent
New York from applying its own rule of law which, unlike that of
Pennsylvania,[65] does permit a support order to survive a divorce
decree.[66] Such a result was justified as accommodating the interests
of both New York and Nevada in the broken marriage by restricting each
State to matters of her dominant concern, the concern of New York being
that of protecting the abandoned wife against impoverishment.
RECENT CASES
Fears registered by the dissenters in the second Williams Case that the
stability of all divorces might be undermined thereby and that
thereafter the court of each forum State, by its own independent
determination of domicile, might refuse recognition of foreign decrees
were temporarily set at rest by the holding in Sherrer _v._ Sherrer,[67]
wherein Massachusetts, a state of domiciliary origin, was required to
accord full faith and credit to a 90-day Florida decree which had been
contested by the husband. The latter, upon receiving notice by mail,
retained Florida counsel who entered a general appearance and denied all
allegations in the complaint, including the wife's residence. At the
hearing the husband, though present in person and by counsel, did not
offer evidence in rebuttal of the wife's proof of her Florida residence;
and when the Florida court ruled that she was a _bona fide_ resident,
the husband did not appeal. Inasmuch as the findings of the requisite
jurisdictional facts, unlike those in the Second Williams Case, were
made in proceedings in which the defendant appeared and participated,
the requirements of full faith and credit were held to bar him from
collaterally attacking such findings in a suit instituted by him in his
home State of Massachusetts, particularly in the absence of proof that
the divorce decree was subject to such collateral attack in a Florida
court. Having failed to take advantage of the opportunities afforded him
by his appearance in the Florida proceeding, the husband was thereafter
precluded from re-litigating in another State the issue of his wife's
domicile already passed upon by the Florida court.
In Coe _v._ Coe,[68] embracing a similar set of facts, the Court applied
like reasoning to reach a similar result. Massachusetts again was
compelled to recognize the validity of a six-week Nevada decree obtained
by a husband who had left Massachusetts after a court of that State had
refused him a divorce and had granted his wife separate support. In the
Nevada proceeding, the wife appeared personally and by counsel filed a
cross-complaint for divorce, admitted the husband's residence, and
participated personally in the proceedings. After finding that it had
jurisdiction of the plaintiff, defendant, and the subject matter
involved, the Nevada court granted the wife a divorce, which was valid,
final, and not subject to collateral attack under Nevada law. The
husband married again, and on his return to Massachusetts, his ex-wife
petitioned the Massachusetts court to adjudge him in contempt for
failing to make payments for her separate support under the earlier
Massachusetts decree. Inasmuch as there was no intimation that under
Massachusetts law a decree of separate support would survive a divorce,
recognition of the Nevada decree as valid accordingly necessitated a
rejection of the ex-wife's contention.
Appearing to revive Williams II, and significant for the social
consequences produced by the result decreed therein, is the recent case
of Rice _v._ Rice.[69] To determine the widowhood status of the party
litigants in relation to inheritance of property of a husband who had
deserted his first wife in Connecticut, had obtained an _ex parte_
divorce in Nevada, and after remarriage, had died without ever returning
to Connecticut, the first wife, joining the second wife and the
administrator of his estate as defendants, petitioned a Connecticut
court for a declaratory judgment. After having placed upon the first
wife the burden of proving that the decedent had not acquired a _bona
fide_ domicile in Nevada, and after giving proper weight to the claims
of power by the Nevada court, the Connecticut court concluded that the
evidence sustained the contentions of the first wife; and in so doing,
it was upheld by the Supreme Court. The cases of Sherrer _v._ Sherrer,
334 U.S. 343 (1948) and Coe _v._ Coe, 334 U.S. 378 (1948), previously
discussed, were declared not to be in point; inasmuch as no personal
service was made upon the first wife, nor did she in any way participate
in the Nevada proceedings. She was not, therefore, precluded from
challenging the finding of the Nevada court that the decedent was, at
the time of the divorce, domiciled in that State.[70]
STATE OF THE LAW TODAY: QUAERE
Upon summation one may speculate as to whether the doctrine of divisible
divorce, as developed by Justice Douglas in Estin _v._ Estin, 334 U.S.
541 (1948), has not become the prevailing standard for determining the
enforceability of foreign divorce decrees. If such be the case, it may
be tenable to assert that an _ex parte_ divorce, founded upon
acquisition of domicile by one spouse in the State which granted it, is
effective to destroy the marital status of both parties in the State of
domiciliary origin and probably in all other States and therefore to
preclude subsequent prosecutions for bigamy, but not to alter rights as
to property, alimony, or custody of children in the State of domiciliary
origin of a spouse who was neither served nor personally appeared.
DECREES AWARDING ALIMONY, CUSTODY OF CHILDREN
Resulting as a by-product of divorce litigation are decrees for the
payment of alimony, judgments for accrued and unpaid instalments of
alimony, and judicial awards of the custody of children, all of which
necessitate application of the full faith and credit clause when
extrastate enforcement is sought for them. Thus a judgment in State A
for alimony in arrears and payable under a prior judgment of separation
which is not by its terms conditional, nor subject by the law of State A
to modification or recall, and on which execution was directed to issue,
is entitled to recognition in the forum State. Although an obligation
for accrued alimony could have been modified or set aside in State A
prior to its merger in the judgment, such a judgment, by the law of
State A, is not lacking in finality.[71] As to the finality of alimony
decrees in general, the Court had previously ruled that where such a
decree is rendered, payable in future instalments, the right to such
instalments becomes absolute and vested on becoming due, provided no
modification of the decree has been made prior to the maturity of the
instalments.[72] However, a judicial order requiring the payment of
arrearages in alimony, which exceeded the alimony previously decreed, is
invalid for want of due process, the respondent having been given no
opportunity to contest it.[73] "A judgment obtained in violation of
procedural due process," said Chief Justice Stone, "is not entitled to
full faith and credit when sued upon in another jurisdiction."[74]
A recent example of a custody case was one involving a Florida divorce
decree which was granted _ex parte_ to a wife who had left her husband
in New York, where he was served by publication. The decree carried with
it an award of the exclusive custody of the child, whom the day before
the husband had secretly seized and brought back to New York. The Court
ruled that the decree was adequately honored by a New York court when,
in _habeas corpus_ proceedings, it gave the father rights of visitation
and custody of the child during stated periods, and exacted a surety
bond of the wife conditioned on her delivery of the child to the father
at the proper times,[75] it having not been "shown that the New York
court in modifying the Florida decree exceeded the limits permitted
under Florida law. There is therefore a failure of proof that the
Florida decree received less credit in New York than it had in Florida."
COLLATERAL ATTACK BY CHILD
A Florida divorce decree was also at the bottom of another recent case
in which the daughter of a divorced man by his first wife, and his
legatee under his will, sought to attack his divorce in the New York
courts, and thereby indirectly his third marriage. The Court held that
inasmuch as the attack would not have been permitted in Florida under
the doctrine of _res judicata_, it was not permissible under the full
faith and credit clause in New York.[76] On the whole, it appears that
the principle of _res judicata_ is slowly winning out against the
principle of domicile.
Decrees of Other Types
PROBATE DECREES
Many judgments, enforcement of which has given rise to litigation,
embrace decrees of courts of probate respecting the distribution of
estates. In order that a court have jurisdiction of such a proceeding,
the decedent must have been domiciled in the State, and the question
whether he was so domiciled at the time of his death may be raised in
the court of a sister State.[77] Thus, when a court of State A, in
probating a will and issuing letters, in a proceeding to which all
distributees were parties, expressly found that the testator's domicile
at the time of death was in State A, such adjudication of domicile was
held not to bind one subsequently appointed as domiciliary administrator
c.t.a. in State B, in which he was liable to be called upon to deal with
claims of local creditors and that of the State itself for taxes, he
having not been a party to the proceeding in State A. In this situation,
it was held, a court of State C, when disposing of local assets claimed
by both personal representatives, was free to determine domicile in
accordance with the law of State C.[78] Similarly, there is no such
relation of privity between an executor appointed in one State and an
administrator c.t.a. appointed in another State as will make a decree
against the latter binding upon the former.[79] On the other hand,
judicial proceedings in one State, under which inheritance taxes have
been paid and the administration upon the estate has been closed, are
denied full faith and credit by the action of a probate court in another
State in assuming jurisdiction and assessing inheritance taxes against
the beneficiaries of the estate, when under the law of the former State
the order of the probate court barring all creditors who had failed to
bring in their demand from any further claim against the executors was
binding upon all.[80]
What is more important, however, is that the _res_ in such a proceeding,
that is, the estate, in order to entitle the judgment to recognition
under article IV, section 1, must have been located in the State or
legally attached to the person of the decedent. Such a judgment is
accordingly valid, generally speaking, to distribute the intangible
property of the decedent, though the evidences thereof were actually
located elsewhere.[81] This is not so, on the other hand, as to
tangibles and realty. In order that the judgment of a probate court
distributing these be entitled to recognition under the Constitution,
they must have been located in the State; as to tangibles and realty
outside the State, the decree of the probate court is entirely at the
mercy of the _lex rei sitae_.[82] So, the probate of a will in one
State, while conclusive therein, does not displace legal provisions
necessary to its validity as a will of real property in other
States.[83]
ADOPTION DECREES
That a statute legitimizing children born out of wedlock does not
entitle them by the aid of the full faith and credit clause to share in
the property located in another State is not surprising, in view of the
general principle--to which, however, there are exceptions (_see_ pp.
675-682)--that statutes do not have extraterritorial operation.[84] For
the same reason adoption proceedings in one State are not denied full
faith and credit by the law of the sister State which excludes children
adopted by proceedings in other States from the right to inherit land
therein.[85]
GARNISHMENT DECREES
A proceeding which combines some of the elements of both an _in rem_ and
an _in personam_ action is the proceeding in garnishment cases. Suppose
that A owes B and B owes C, and that the two former live in a different
State than C. A, while on a brief visit to C's State, is presented with
a writ attaching his debt to B and also a summons to appear in court on
a named day. The result of the proceedings thus instituted is that a
judgment is entered in C's favor against A to the amount of his
indebtedness to B. Subsequently A is sued by B in their home State, and
offers the judgment, which he has in the meantime paid, in defense. It
was argued in behalf of B that A's debt to him had a _situs_ in their
home State, and furthermore that C could not have sued B in this same
State without formally acquiring a domicile there. Both propositions
were, however, rejected by the Court, which held that the judgment in
the garnishment proceedings was entitled to full faith and credit as
against C's action.[86]
FRAUD AS A DEFENSE TO SUITS ON FOREIGN JUDGMENTS
As to whether recognition of a State judgment can be refused by the
forum State on other than jurisdictional grounds, there are _dicta_ to
the effect that judgments, for which extraterritorial operation is
demanded under article IV, section I and acts of Congress, are
"impeachable for manifest fraud." But unless the fraud affected the
jurisdiction of the court, the vast weight of authority is against the
proposition. Also it is universally agreed that a judgment may not be
impeached for alleged error or irregularity,[87] or as contrary to the
public policy of the State where recognition is sought for it under the
full faith and credit clause.[88] Previously listed cases indicate,
however, that the Court has in fact permitted local policy to determine
the merits of a judgment under the pretext of regulating
jurisdiction.[89] Thus in one case, Cole _v._ Cunningham,[90] the Court
sustained a Massachusetts court in enjoining, in connection with
insolvency proceedings instituted in that State, a Massachusetts
creditor from continuing in New York courts an action which had been
commenced there before the insolvency suit was brought. This was done on
the theory that a party within the jurisdiction of a court may be
restrained from doing something in another jurisdiction opposed to
principles of equity, it having been shown that the creditor was aware
of the debtor's embarrassed condition when the New York action was
instituted. The injunction unquestionably denied full faith and credit
and commanded the assent of only five Justices.
PENAL JUDGMENTS: TYPES ENTITLED TO RECOGNITION
Finally, the clause has been interpreted in the light of the
"incontrovertible maxim" that "the courts of no country execute the
penal laws of another."[91] In the leading case of Huntington _v._
Attrill,[92] however, the Court so narrowly defined "penal" in this
connection as to make it substantially synonymous with "criminal," and
on this basis held a judgment which had been recovered under a State
statute making the officers of a corporation who signed and recorded a
false certificate of the amount of its capital stock liable for all of
its debts, to be entitled under article IV, section 1, to recognition
and enforcement in the courts of sister States. Nor, in general, is a
judgment for taxes to be denied full faith and credit in State and
federal courts merely because it is for taxes.[93]
Recognition of Rights Based Upon Constitutions, Statutes, Common Law
THE EARLY RULE
As to the extrastate protection of rights which have not matured into
final judgments, the full faith and credit clause has never abolished
the general principle of the dominance of local policy over the rules of
comity.[94] This was stated by Justice Nelson in the Dred Scott case, as
follows: "No State, * * *, can enact laws to operate beyond its own
dominions, * * * Nations, from convenience and comity, * * *, recognizes
[sic] and administer the laws of other countries. But, of the nature,
extent, and utility, of them, respecting property, or the state and
condition of persons within her territories, each nation judges for
itself; * * *" He added that it was the same with the States of the
Union in relation to another. It followed that even though Dred had
become a free man in consequence of his having resided in the "free"
State of Illinois, he had nevertheless upon his return to Missouri,
which had the same power as Illinois to determine its local policy
respecting rights acquired extraterritorially, reverted to servitude
under the laws and judicial decisions of that State.[95]
DEVELOPMENT OF THE MODERN RULE
In a case decided in 1887, however, the Court remarked: "Without doubt
the constitutional requirement, Art. IV, Sec. I, that 'full faith and
credit shall be given in each State to the public acts, records, and
judicial proceedings of every other State,' implies that the public acts
of every State shall be given the same effect by the courts of another
State that they have by law and usage at home."[96] And this
proposition was later held to extend to State constitutional
provisions.[97] More recently this doctrine has been stated in a very
mitigated form, the Court saying that where statute or policy of the
forum State is set up as a defense to a suit brought under the statute
of another State or territory, or where a foreign statute is set up as a
defense to a suit or proceedings under a local statute, the conflict is
to be resolved, not by giving automatic effect to the full faith and
credit clause and thus compelling courts of each State to subordinate
its own statutes to those of others, but by appraising the governmental
interest of each jurisdiction and deciding accordingly.[98] Obviously
this doctrine endows the Court with something akin to an arbitral
function in the decision of cases to which it is applied.
TRANSITORY ACTIONS: DEATH STATUTES
The initial effort in this direction was made in connection with
transitory actions based on statute. Earlier, such actions had rested
upon the common law, which was fairly uniform throughout the States, so
that there was usually little discrepancy between the law under which
the plaintiff from another jurisdiction brought his action (_lex loci_)
and the law under which the defendant responded (_lex fori_). In the
late seventies, however, the States, abandoning the common law rule on
the subject, began passing laws which authorized the representatives of
a decedent whose death had resulted from injury to bring an action for
damages.[99] The question at once presented itself whether, if such an
action was brought in a State other than that in which the injury
occurred, it was governed by the statute under which it arose or by the
law of the forum State, which might be less favorable to the defendant.
Nor was it long before the same question presented itself with respect
to transitory action _ex contractu_, where the contract involved had
been made under laws peculiar to the State where made, and with those
laws in view.
ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING
In Chicago and Alton R.R. _v._ Wiggins,[100] referred to above, the
Court, confronted with the latter form of the question, indicated its
clear opinion that in such situations it was the law under which the
contract was made, not the law of the forum State, which should govern.
Its utterance on the point was, however, not merely _obiter_; it was
based on an error, namely, the false supposition that the Constitution
gives "acts" the same extraterritorial operation as the act of 1790 does
"judicial records and proceedings." Notwithstanding which, this dictum
is today the basis of "the settled rule" that the defendant in a
transitory action is entitled to all the benefits resulting from
whatever material restrictions the statute under which plaintiff's right
of action originated sets thereto, except that courts of sister States
cannot be thus prevented from taking jurisdiction in such cases.[101]
However, a State court does not violate the full faith and credit clause
by mere error in construing the law upon which a transitory action from
another state depends;[102] nor is a court of the forum State guilty of
a disregard thereof when it entertains a suit based on a statute of
another State, albeit the statute in terms limits actions thereunder to
courts of the enacting State.[103] Moreover, in actions on contracts
made in other States, a State constitutionally may decline to enforce in
its courts, as contrary to its own policy, the laws of such States
relating to the right to add interest to the recovery as an incidental
item of damages.[104]
STOCKHOLDER--CORPORATION RELATIONSHIP
Nor is it alone to defendants in transitory actions that the full faith
and credit clause is today a shield and a buckler. Some legal
relationships are so complex, the Court holds, that the law under which
they were formed ought always to govern them as long as they
persist.[105] One such relationship is that of a stockholder and his
corporation. Hence, if a question arises as to the liability of the
stockholders of a corporation, the courts of the forum State are
required by the full faith and credit clause to determine the question
in accordance with the Constitution, laws and judicial decisions of the
corporation's home State.[106] Illustrative applications of the latter
rule are to be found in the following cases. A New Jersey statute
forbidding an action at law to enforce a stockholder's liability arising
under the laws of another State, and providing that such liability may
be enforced only in equity, and that in such a case the corporation, its
legal representatives, all its creditors, and stockholders, should be
necessary parties, was held not to preclude an action at law in New
Jersey by the New York State superintendent of banks against 557 New
Jersey stockholders in an insolvent New York bank to recover assessments
made under the laws of New York.[107] Also, in a suit to enforce double
liability, brought in Rhode Island against a stockholder in a Kansas
trust company, the courts of Rhode Island were held to be obligated to
extend recognition to the statutes and court decisions of Kansas
whereunder it is established that a Kansas judgment recovered by a
creditor against the trust company is not only conclusive as to the
liability of the corporation but also an adjudication binding each
stockholder therein. The only defenses available to the stockholder are
those which he could make in a suit in Kansas.[108]
FRATERNAL BENEFIT SOCIETY--MEMBER RELATIONSHIP
And the same principle applies to the relationship which is formed when
one takes out a policy in a "fraternal benefit society." Thus in Royal
Arcanum v. Green,[109] in which a fraternal insurance association
chartered under the laws of Massachusetts was being sued in the courts
of New York by a citizen of the latter State on a contract of insurance
made in that State, the Court held that the defendant company was
entitled under the full faith and credit clause to have the case
determined in accordance with the laws of Massachusetts and its own
constitution and by-laws as these had been construed by the
Massachusetts courts.
Nor has the Court manifested lately any disposition to depart from this
rule. In Sovereign Camp _v._ Bolin[110] it declared that a State in
which a certificate of life membership of a foreign fraternal benefit
association is issued, which construes and enforces said certificate
according to its own law rather than according to the law of the State
in which the association is domiciled denies full faith and credit to
the association's charter embodied in the statutes of the domiciliary
State as interpreted by the latter's court. "The beneficiary certificate
was not a mere contract to be construed and enforced according to the
laws of the State where it was delivered. Entry into membership of an
incorporated beneficiary society is more than a contract; it is entering
into a complex and abiding relation and the rights of membership are
governed by the law of the State of incorporation. [Hence] another
State, wherein the certificate of membership was issued, cannot attach
to membership rights against the society which are refused by the law of
domicile." Consistently therewith, the Court also held, in Order of
Travelers _v._ Wolfe,[111] that South Dakota, in a suit brought therein
by an Ohio citizen against an Ohio benefit society, must give effect to
a provision of the constitution of the society prohibiting the bringing
of an action on a claim more than six months after disallowance by the
society, notwithstanding that South Dakota's period of limitation was
six years and that its own statutes voided contract stipulations
limiting the time within which rights may be enforced. Objecting to
these results, Justice Black dissented on the ground that fraternal
insurance companies are not entitled, either by the language of the
Constitution, or by the nature of their enterprise, to such unique
constitutional protection.
INSURANCE COMPANY, BUILDING AND LOAN ASSOCIATION--CONTRACTUAL
RELATIONSHIPS
Whether or not distinguishable by nature of their enterprise, stock and
mutual insurance companies and mutual building and loan associations,
unlike fraternal benefit societies, have not been accorded the same
unique constitutional protection; and, with few exceptions,[112] have
had controversies arising out of their business relationships settled by
application of the law of the forum State. In National Mutual B. & L.
Asso. _v._ Brahan,[113] the principle applicable to these three forms of
business organization was stated as follows: Where a corporation has
become localized in a State and has accepted the laws of the State as a
condition of doing business there, it cannot abrogate those laws by
attempting to make contract stipulations, and there is no violation of
the full faith and credit clause in instructing a jury to find according
to local law notwithstanding a clause in a contract that it should be
construed according to the laws of another State.
Thus, when a Mississippi borrower, having repaid a mortgage loan to a
New York building and loan association, sued in a Mississippi court to
recover, as usurious, certain charges collected by the association, the
usury law of Mississippi rather than that of New York was held to
control. In this case, the loan contract, which was negotiated in
Mississippi subject to approval by the New York office, did not
expressly state that it was governed by New York law.[114] Similarly,
when the New York Life Insurance Company, which had expressly stated in
its application and policy forms that they would be controlled by New
York law, was sued in Missouri on a policy sold to a resident thereof,
the court of that State was sustained in its application of Missouri
rather than New York law.[115] Also, in an action in a federal court in
Texas to collect the amount of a life insurance policy which had been
made in New York and later changed by instruments assigning beneficial
interest, it was held that questions: (1) whether the contract remained
one governed by the law of New York with respect to rights of assignees,
rather than by the law of Texas, (2) whether the public policy of Texas
permits recovery by one named beneficiary who has no beneficial interest
in the life of the insured, and (3) whether lack of insurable interest
becomes material when the insurer acknowledges liability and pays the
money into court, were questions of Texas law, to be decided according
to Texas decisions.[116]
Consistent with the latter holdings are the following two involving
mutual insurance companies. In Pink _v._ A.A.A. Highway Express,[117]
the New York insurance commissioner, as a statutory liquidator of an
insolvent auto mutual company organized in New York sued resident
Georgia policyholders in a Georgia court to recover assessments alleged
to be due by virtue of their membership in it. The Supreme Court held
that, although by the law of the State of incorporation, policyholders
of a mutual insurance company become members thereof and as such liable
to pay assessments adjudged to be required in liquidation proceedings in
that State, the courts of another State are not required to enforce such
liability against local resident policyholders who did not appear and
were not personally served in the foreign liquidation proceedings; but
are free to decide according to local law the question whether, by
entering into the policies, residents became members of the company.
Again, in State Farm Ins. _v._ Duel,[118] the Court ruled that an
insurance company chartered in State A, which does not treat membership
fees as part of premiums, cannot plead denial of full faith and credit
when State B, as a condition of entry, requires the company to maintain
a reserve computed by including membership fees as well as premiums
received in all States. Were the company's contention accepted, "no
State," the Court observed, "could impose stricter financial standards
for foreign corporations doing business within its borders than were
imposed by the State of incorporation." It is not apparent, the Court
added, that State A has an interest superior to that of State B in the
financial soundness and stability of insurance companies doing business
in State B,--which is obviously more the language of arbitration than of
adjudication, as conventionally regarded.
WORKMEN'S COMPENSATION STATUTES
Finally, the relationship of employer and employee, so far as the
obligations of the one and the rights of the other under workmen's
compensation acts are concerned, has been the subject of similar
treatment. In an earlier case,[119] the cause of action was an injury in
New Hampshire, resulting in death to a workman who had entered the
defendant company's employment in Vermont, the home State of both
parties. The Court held that the case was governed under the full faith
and credit clause by the Vermont workmen's compensation act, not that of
New Hampshire. The relationship, it said, "was created by the law of
Vermont, and so long as that relationship persisted its incidents were
properly subject to regulation there."[120]
However, in an unacknowledged departure from this ruling the Court has
subsequently held that the full faith and credit clause did not preclude
California from disregarding a Massachusetts workmen's compensation
statute and applying its own conflicting act in the case of an injury
suffered by a Massachusetts employee of a Massachusetts employer while
in California in the course of his employment.[121] The earlier case was
distinguished as not having decided more than that a State statute,
applicable to employer and employee within the State, which provides
compensation if the employee is injured while temporarily in another
State, will be given full faith and credit in the latter when not
obnoxious to its policy. Inasmuch as the Court in the older decision is
reputed to have observed that reliance on the Vermont statute, as a
defense to the New Hampshire suit, was not obnoxious to the policy of
New Hampshire, it may be possible to reconcile these two cases by
stating that a foreign workmen's compensation statute will be recognized
when it is invoked as a defense but need not be applied when the
plaintiff endeavors to found his suit thereon.
Later decisions involving the recognition of a foreign workmen's
compensation act include the following. In Magnolia Petroleum Co. _v._
Hunt[122] the Court ruled that a Louisiana employee of a Louisiana
employer, who is injured on the job in Texas and who receives an award
under the Texas Act, which does not grant further recovery to an
employee who receives compensation under the laws of another State,
cannot obtain additional compensation under the Louisiana Act. However,
a compensation award by State A to a resident employee of a resident
employer injured on the job in State B will not preclude State B from
awarding added compensation under its own laws, when the compensation
statute of State A does not expressly exclude recovery under a law of
the State in which the injury occurred and when the State A award
incorporated a private settlement contract wherein the employee reserved
his rights in State B.[123] Also, the District of Columbia workmen's
compensation act, which expressly covers an employee of the District
employer, "irrespective of the place where the injury occurs,"
constitutionally may be applied, in the case of injury resulting in
death, to a District resident, employed by a District employer, who was
assigned to a job at Quantico, Virginia, and who, for three years prior
to his death in Virginia, has commuted to the job site from his house in
the District.[124]
Development of Section to Date and Possibilities
EVALUATION OF RESULTS
Thus the Court, from according an extrastate operation to statutes and
judicial decisions in favor of defendants in transitory actions,
proceeded next to confer the same protection upon certain classes of
defendants in local actions in which the plaintiff's claim was the
outgrowth of a relationship formed extraterritorially. But can the Court
stop at this point? If it is true, as Chief Justice Marshall once
remarked, that "the Constitution was not made for the benefit of
plaintiffs alone," so also it is true that it was not made for the
benefit of defendants alone. The day may come when the Court will
approach the question of the relation of the full faith and credit
clause to the extrastate operation of laws from the same angle as it
today views the broader question of the scope of State legislative
power. When and if this day arrives, State statutes and judicial
decisions will be given such extraterritorial operation as seems
reasonable to the Court to give them. In short, the rule of the
dominance of local policy of the forum State will be superseded by that
of judicial review.[125]
The question arises whether the application to date, not by the Court
alone but by Congress and the Court, of article IV, section 1, can be
said to have met the expectations of its framers. In the light of some
things said at the time of the framing of the clause this may be
doubted. The protest was raised against the clause that in vesting
Congress with power to declare the effect State laws should have outside
the enacting State, it enabled the new government to usurp the powers of
the States; but the objection went unheeded. The main concern of the
Convention, undoubtedly, was to render the judgments of the State courts
in civil cases effective throughout the Union. Yet even this object has
been by no means completely realized, owing to the doctrine of the Court
that before a judgment of a State court can be enforced in a sister
State, a new suit must be brought on it in the courts of the latter; and
the further doctrine that with respect to such a suit, the judgment sued
on is only evidence; the logical deduction from which proposition is
that the sister State is under no constitutional compulsion to give it a
forum. These doctrines were first clearly stated in the McElmoyle Case
and flowed directly from the new States' rights premises of the Court;
but they are no longer in harmony with the prevailing spirit of
constitutional construction nor with the needs of the times. Also, the
clause seems always to have been interpreted on the basis of the
assumption that the term "judicial proceedings" refers only to final
judgments and does not include intermediate processes and writs; but the
assumption would seem to be groundless, and if it is, then Congress has
the power under the clause to provide for the service and execution
throughout the United States of the judicial processes of the several
States.
SCOPE OF POWERS OF CONGRESS UNDER SECTION
Under the present system, suit has ordinarily to be brought where the
defendant, the alleged wrongdoer, resides, which means generally where
no part of the transaction giving rise to the action took place. What
could be more irrational? "Granted that no state can of its own volition
make its process run beyond its borders * * * is it unreasonable that
the United States should by federal action be made a unit in the manner
suggested?"[126]
Indeed, there are few clauses of the Constitution, the merely literal
possibilities of which have been so little developed as the full faith
and credit clause. Congress has the power under the clause to decree the
effect that the statutes of one State shall have in other States. This
being so, it does not seem extravagant to argue that Congress may under
the clause describe a certain type of divorce and say that it shall be
granted recognition throughout the Union, and that no other kind shall.
Or to speak in more general terms, Congress has under the clause power
to enact standards whereby uniformity of State legislation may be
secured as to almost any matter in connection with which interstate
recognition of private rights would be useful and valuable.
FULL FAITH AND CREDIT IN THE FEDERAL COURTS
As we saw earlier, the legislation of Congress comprised in section 905
of the Revised Statutes lays down a rule not merely for the recognition
of the records and judicial proceedings of State courts in the courts of
sister States, but for their recognition in "every court of the United
States," and it further lays down a like rule for the records and
proceedings of the courts "of any territory or any country subject to
the jurisdiction of the United States." Thus the courts of the United
States are bound to give to the judgments of the State courts the same
faith and credit that the courts of one State are bound to give to the
judgments of the courts of her sister States.[127] So, where suits to
enforce the laws of one State are entertained in courts of another on
principles of comity, federal district courts sitting in that State may
entertain them, and should, if they do not infringe federal law or
policy.[128] However, the refusal of a territorial court in Hawaii,
having jurisdiction of the action, which was on a policy issued by a New
York insurance company, to admit evidence that an administrator had been
appointed and a suit brought by him on a bond in the federal court in
New York wherein no judgment had been entered, did not violate this
clause.[129]
The power to prescribe what effect shall be given to the judicial
proceedings of the courts of the United States is conferred by other
provisions of the Constitution, such as those which declare the extent
of the judicial power of the United States, which authorize all
legislation necessary and proper for executing the powers vested by the
Constitution in the Government of the United States, and which declare
the supremacy of the authority of the National Government within the
limits of the Constitution. As part of its general authority, the power
to give effect to the judgment of its courts is coextensive with its
territorial jurisdiction.[130]
JUDGMENTS OF FOREIGN STATES
Doubtless Congress might also by virtue of its powers in the field of
foreign relations lay down a mandatory rule regarding recognition of
foreign judgments in every court of the United States. At present the
duty to recognize judgments even in national courts rests only on comity
and is qualified, in the judgment of the Supreme Court, by a strict rule
of parity.[131]
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
The Comity Clause
SOURCES
The community of rights among the citizens of the several States
guaranteed by this article is traceable to colonial days. It had its
origin in the fact that the colonists were all subjects of the same
monarch.[132] After the Declaration of Independence was signed, the
question arose as to how to reconcile the advantages of a common
citizenship with a dispersed sovereignty. One element of the solution is
to be seen in the Fourth of the Articles of Confederation, which read as
follows: "The better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union, the
free inhabitants of each of these States, paupers, vagabonds and
fugitives from justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several States; and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions as the
inhabitants thereof respectively * * *" Madison, writing in _The
Federalist_,[133] adverted to the confusion engendered by use of the
different terms "free inhabitants, free citizens," and "people" and by
"superadding to 'all privileges and immunities of free citizens--all the
privileges of trade and commerce,' * * *" The more concise phraseology
of article IV, however, did little to dispel the uncertainty. In the
Slaughter-House Cases,[134] Justice Miller suggested that it was to be
regarded as the compendious equivalent of the earlier version: "There
can be but little question that the purpose of both these provisions is
the same, and that the privileges and immunities intended are the same
in each. In the Articles of the Confederation we have some of these
specifically mentioned, and enough perhaps to give some general ideal of
the class of civil rights meant by the phrase."[135]
THEORIES AS TO ITS PURPOSE
First and last, at least four theories have been proffered regarding the
purpose of this clause. The first is that the clause is a guaranty to
the citizens of the different States of equal treatment by Congress--is,
in other words, a species of equal protection clause binding on the
National Government. The second is that the clause is a guaranty to the
citizens of each State of all the privileges and immunities of
citizenship that are enjoyed in any State by the citizens thereof,--a
view which, if it had been accepted at the outset, might well have
endowed the Supreme Court with a reviewing power over restrictive State
legislation as broad as that which it later came to exercise under the
Fourteenth Amendment. The third theory of the clause is that it
guarantees to the citizen of any State the rights which he enjoys as
such even when sojourning in another State, that is to say, enables him
to carry with him his rights of State citizenship throughout the Union,
without embarrassment by State lines. Finally, the clause is interpreted
as merely forbidding any State to discriminate against citizens of other
States in favor of its own. Though the first theory received some
recognition in the Dred Scott Case,[136] particularly in the opinion of
Justice Catron,[137] it is today obsolete. The second was specifically
rejected in McKane _v._ Durston;[138] the third, in Detroit _v._
Osborne.[139] The fourth has become a settled doctrine of Constitutional
Law.[140] In the words of Justice Miller in the Slaughter-House
Cases,[141] the sole purpose of the comity clause was "to declare to the
several States, that whatever these rights, as you grant or establish
them to your own citizens, or as you limit or qualify, or impose
restrictions on their exercise, the same, neither more nor less, shall
be the measure of the rights of citizens of other States within your
jurisdiction."[142] It follows that this section has no application in
controversies between a State and its own citizens.[143] It is deemed to
be infringed by a hostile discrimination against all nonresidents[144]
but not by such differences of treatment between residents and
nonresidents as the nature of the subject matter makes reasonable.[145]
HOW IMPLEMENTED
This clause is self-executory, that is to say, its enforcement is
dependent upon the judicial process. It does not authorize penal
legislation by Congress. Federal statutes prohibiting conspiracies to
deprive any person of rights or privileges secured by State laws,[146]
or punishing infractions by individuals of the right of citizens to
reside peacefully in the several States, and to have free ingress into
and egress from such States,[147] have been held void.
CITIZENS OF EACH STATE
A question much mooted before the Civil War was whether the term could
be held to include free Negroes. In the Dred Scott Case,[148] the Court
answered it in the negative. "Citizens of each State," Chief Justice
Taney argued, meant citizens of the United States as understood at the
time the Constitution was adopted, and Negroes were not then regarded as
capable of citizenship. The only category of national citizenship added
under the Constitution comprised aliens, naturalized in accordance with
acts of Congress.[149] In dissent, Justice Curtis not only denied the
Chief Justice's assertion that there were no Negro citizens of States in
1789, but further argued that while Congress alone could determine what
classes of aliens should be naturalized, the several States retained the
right to extend citizenship to classes of persons born within their
borders who had not previously enjoyed citizenship, and that one upon
whom State citizenship was thus conferred became a citizen of the State
in the full sense of the Constitution.[150] So far as persons born in
the United States, and subject to the jurisdiction thereof are
concerned, the question was put at rest by the Fourteenth Amendment.
CORPORATIONS
At a comparatively early date the claim was made that a corporation
chartered by a State and consisting of its citizens was entitled to the
benefits of the comity clause in the transaction of business in other
States. It was argued that the Court was bound to look beyond the act of
incorporation and see who were the incorporators. If it found these to
consist solely of citizens of the incorporating State, it was bound to
permit them through the agency of the corporation, to exercise in other
States such privileges and immunities as the citizens thereof enjoyed.
In Bank of Augusta _v._ Earle[151] this view was rejected. The Supreme
Court held that the comity clause was never intended "to give to the
citizens of each State the privileges of citizens in the several
States, and at the same time to exempt them from the liabilities which
the exercise of such privileges would bring upon individuals who were
citizens of the State. This would be to give the citizens of other
States far higher and greater privileges than are enjoyed by the
citizens of the State itself."[152] A similar result was reached in Paul
_v._ Virginia,[153] but by a different course of reasoning. The Court
there held that a corporation--in this instance, an insurance
company--was "the mere creation of local law" and could "have no legal
existence beyond the limits of the sovereignty"[154] which created it;
even recognition of its existence by other States rested exclusively in
their discretion. More recent cases have held that this discretion is
qualified by other provisions of the Constitution, notably the commerce
clause and the Fourteenth Amendment.[155] By reason of its similarity to
the corporate form of organization, a Massachusetts trust has been
denied the protection of this clause.[156]
ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES
The classical judicial exposition of the meaning of this phrase is that
of Justice Washington in Corfield _v._ Coryell,[157] which was decided
by him on circuit in 1823. The question at issue was the validity of a
New Jersey statute which prohibited "any person who is not, at the time,
an actual inhabitant and resident in this State" from raking or
gathering "clams, oysters or shells" in any of the waters of the State,
on board any vessel "not wholly owned by some person, inhabitant of and
actually residing in this State. * * * The inquiry is," wrote Justice
Washington, "what are the privileges and immunities of citizens in the
several States? We feel no hesitation in confining these expressions to
those privileges and immunities which are, in their nature, fundamental;
which belong, of right, to the citizens of all free governments; and
which have, at all times, been enjoyed by the citizens of the several
States which compose this Union, * * *"[158] He specified the following
rights as answering this description: "Protection by the Government; the
enjoyment of life and liberty, with the right to acquire and possess
property of every kind, and to pursue and obtain happiness and safety;
subject nevertheless to such restraints as the Government may justly
prescribe for the general good of the whole. The right of a citizen of
one State to pass through, or to reside in any other State, for purposes
of trade, agriculture, professional pursuits, or otherwise; to claim the
benefit of the writ of _habeas corpus_; to institute and maintain
actions of any kind in the courts of the State; to take, hold and
dispose of property, either real or personal; and an exemption from
higher taxes or impositions than are paid by the other citizens of the
State; * * *"[159]
After thus defining broadly the private and personal rights which were
protected, Justice Washington went on to distinguish them from the right
to a share in the public patrimony of the State. "* * * we cannot
accede" the opinion proceeds, "to the proposition * * * that, under this
provision of the Constitution, the citizens of the several States are
permitted to participate in all the rights which belong exclusively to
the citizens of any particular State, merely upon the ground that they
are enjoyed by those citizens; much less, that in regulating the use of
the common property of the citizens of such State, the legislature is
bound to extend to the citizens of all other States the same advantages
as are secured to their own citizens."[160] The right of a State to the
fisheries within its borders he then held to be in the nature of a
property right, held by the State "for the use of the citizens thereof;"
the State was under no obligation to grant "co-tenancy in the common
property of the State, to the citizens of all the other States."[161]
The precise holding of this case was confirmed in McCready _v._
Virginia;[162] the logic of Geer _v._ Connecticut[163] extended the same
rule to wild game, and Hudson County Water Co. _v._ McCarter[164]
applied it to the running water of a State. In Toomer _v._ Witsell,[165]
however, the Court refused to apply this rule to free-swimming fish
caught in the three-mile belt off the coast of South Carolina. It held
instead that "commercial shrimping in the marginal sea, like other
common callings, is within the purview of the privileges and immunities
clause" and that a heavily discriminatory license fee exacted from
nonresidents was unconstitutional.[166] Universal practice has also
established another exception to which the Court gave approval by a
dictum in Blake _v._ McClung:[167] "A State may, by rule uniform in its
operation as to citizens of the several States, require residence within
its limits for a given time before a citizen of another State who
becomes a resident thereof shall exercise the right of suffrage or
become eligible to office."[168]
DISCRIMINATION IN PRIVATE RIGHTS
Not only has judicial construction of the comity clause excluded some
privileges of a public nature from its protection; the courts have also
established the proposition that the purely private and personal rights
to which the clause admittedly extends are not in all cases beyond the
reach of State legislation which differentiates citizens and
noncitizens. Broadly speaking, these rights are held subject to the
reasonable exercise by a State of its police power, and the Court has
recognized that there are cases in which discrimination against
nonresidents may be reasonably resorted to by a State in aid of its own
public health, safety and welfare. To that end a State may restrict the
right to sell insurance to persons who have resided within the State for
a prescribed period of time.[169] It may require a nonresident who does
business within the State[170] or who uses the highways of the
State[171] to consent, expressly or by implication, to service of
process on an agent within the State. Without violating this section, a
State may limit the dower rights of a nonresident to lands of which the
husband died seized while giving a resident dower in all lands held
during the marriage,[172] or may leave the rights of nonresident married
persons in respect of property within the State to be governed by the
laws of their domicile, rather than by the laws it promulgates for its
own residents.[173] But a State may not give a preference to resident
creditors in the administration of the property of an insolvent foreign
corporation.[174] An act of the Confederate Government, enforced by a
State, to sequester a debt owed by one of its residents to a citizen of
another State was held to be a flagrant violation of this clause.[175]
ACCESS TO COURTS
The right to sue and defend in the courts is one of the highest and most
essential privileges of citizenship, and must be allowed by each State
to the citizens of all other States to the same extent that it is
allowed to its own citizens.[176] The constitutional requirement is
satisfied if the nonresident is given access to the courts of the State
upon terms which, in themselves, are reasonable and adequate for the
enforcing of any rights he may have, even though they may not be
technically the same as those accorded to resident citizens.[177] The
Supreme Court upheld a State statute of limitations which prevented a
nonresident from suing in the State's courts after expiration of the
time for suit in the place where the cause of action arose,[178] and
another such statute which suspended its operation as to resident
plaintiff, but not as to nonresidents, during the period of the
defendant's absence from the State.[179] A State law making it
discretionary with the courts to entertain an action by a nonresident of
the State against a foreign corporation doing business in the State, was
sustained since it was applicable alike to citizens and noncitizens
residing out of the State.[180] A statute permitting a suit in the
courts of the State for wrongful death occurring outside the State, only
if the decedent was a resident of the State, was sustained, because it
operated equally upon representatives of the deceased whether citizens
or noncitizens.[181]
TAXATION
A State may not, in the exercise of its taxing power, substantially
discriminate between residents and nonresidents. A leading case is Ward
_v._ Maryland,[182] in which the Court set aside a State law which
imposed special taxes upon nonresidents for the privilege of selling
within the State goods which were produced outside it. Likewise, a
Tennessee statute which made the amount of the annual license tax
exacted for the privilege of doing railway construction work dependent
upon whether the person taxed had his chief office within or without the
State, was found to be incompatible with the comity clause.[183] In
Travis _v._ Yale and Towne Mfg. Co.,[184] the Court, while sustaining
the right of a State to tax income accruing within its borders to
nonresidents,[185] held the particular tax void because it denied to
nonresidents exemptions which were allowed to residents. The "terms
'resident' and 'citizen' are not synonymous," wrote Justice Pitney,
"* * * but a general taxing scheme * * * if it discriminates against all
nonresidents, has the necessary effect of including in the
discrimination those who are citizens of other States; * * *"[186]
Where there was no discrimination between citizens and noncitizens, a
State statute taxing the business of hiring persons within the State for
labor outside the State, was sustained.[187] This section of the
Constitution does not prevent a territorial government, exercising
powers delegated by Congress, from imposing a discriminatory license tax
on nonresident fishermen operating within its waters.[188]
However, what at first glance may appear to be a discrimination may turn
out not to be when the entire system of taxation prevailing in the
enacting State is considered. On the basis of over-all fairness, the
Court sustained a Connecticut statute which required nonresident
stockholders to pay a State tax measured by the full market value of
their stock, while resident stockholders were subject to local taxation
on the market value of that stock reduced by the value of the real
estate owned by the corporation.[189] Occasional or accidental
inequality to a nonresident taxpayer are not sufficient to defeat a
scheme of taxation whose operation is generally equitable.[190] In an
early case the Court brushed aside as frivolous the contention that a
State violated this clause by subjecting one of its own citizens to a
property tax on a debt due from a nonresident secured by real estate
situated where the debtor resided.[191]
Clause 2. A person charged in any State With Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall
on Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the
Crime.
Fugitives From Justice
DUTY TO SURRENDER
Although this provision is not in its nature self-executing, and there
is no express grant to Congress of power to carry it into effect, that
body passed a law shortly after the Constitution was adopted, imposing
upon the Governor of each State the duty to deliver up fugitives from
justice found in such State.[192] The Supreme Court has accepted this
contemporaneous construction as establishing the validity of this
legislation.[193] The duty to surrender is not absolute and unqualified;
if the laws of the State to which the fugitive has fled have been put in
force against him, and he is imprisoned there, the demands of those laws
may be satisfied before the duty of obedience to the requisition
arises.[194] In Kentucky _v._ Dennison[195] the Court held, moreover,
that this statute was merely declaratory of a moral duty; that the
Federal Government "has no power to impose on a State officer, as such,
any duty whatever, and compel him to perform it; * * *"[196] and
consequently that a federal court could not issue a mandamus to compel
the governor of one State to surrender a fugitive to another. In 1934
Congress plugged the loophole exposed by this decision by making it
unlawful for any person to flee from one State to another for the
purpose of avoiding prosecution in certain cases.[197]
FUGITIVE FROM JUSTICE
To be a fugitive from justice within the meaning of this clause, it is
not necessary that the party charged should have left the State after an
indictment found, or for the purpose of avoiding a prosecution
anticipated or begun. It is sufficient that the accused, having
committed a crime within one State and having left the jurisdiction
before being subjected to criminal process, is found within another
State.[198] The motive which induced the departure is immaterial.[199]
Even if he were brought involuntarily into the State where found by
requisition from another State, he may be surrendered to a third State
upon an extradition warrant.[200] A person indicted a second time for
the same offense is nonetheless a fugitive from justice by reason of the
fact that after dismissal of the first indictment, on which he was
originally indicted, he left the State with the knowledge of, or without
objection by, State authorities.[201] But a defendant cannot be
extradited if he was only constructively present in the demanding State
at the time of the commission of the crime charged.[202] For the purpose
of determining who is a fugitive from justice, the words "treason,
felony or other crime" embrace every act forbidden and made punishable
by a law of a State,[203] including misdemeanors.[204]
PROCEDURE FOR REMOVAL
Only after a person has been charged with crime in the regular course of
judicial proceedings is the governor of a State entitled to make demand
for his return from another State.[205] The person demanded has no
constitutional right to be heard before the governor of the State in
which he is found on the question whether he has been substantially
charged with crime and is a fugitive from justice.[206] The
constitutionally required surrender is not to be interfered with by
_habeas corpus_ upon speculations as to what ought to be the result of a
trial.[207] Nor is it proper thereby to inquire into the motives
controlling the actions of the governors of the demanding and
surrendering States.[208] Matters of defense, such as the running of the
statute of limitations, cannot be heard on _habeas corpus_, but must be
determined at the trial.[209] A defendant will, however, be discharged
on _habeas corpus_ if he shows by clear and satisfactory evidence that
he was outside the demanding State at the time of the crime.[210] If,
however, the evidence is conflicting, _habeas corpus_ is not a proper
proceeding to try the question of alibi.[211]
TRIAL OF FUGITIVE AFTER REMOVAL
There is nothing in the Constitution or laws of the United States which
exempts an offender, brought before the courts of a State for an offense
against its laws, from trial and punishment, even though he was brought
from another State by unlawful violence,[212] or by abuse of legal
process,[213] and a fugitive lawfully extradited from another State may
be tried for an offense other than that for which he was
surrendered.[214] The rule is different, however, with respect to
fugitives surrendered by a foreign government pursuant to treaty. In
that case the offender may be tried only "for the offence with which he
is charged in the proceedings for his extradition, until a reasonable
time and opportunity have been given him, after his release or trial
upon such charge, to return to the country from whose asylum he had been
forcibly taken under those proceedings."[215]
Clause 3. No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour may
be due.
This clause contemplated the existence of a positive unqualified right
on the part of the owner of a slave which no State law could in any way
regulate, control or restrain. Consequently the owner of a slave had the
same right to seize and repossess him in another State, as the local
laws of his own State conferred upon him, and a State law which
penalized such seizure was held unconstitutional.[216] Congress had the
power and the duty, which it exercised by the act of February 12,
1793,[217] to carry into effect the rights given by this Section,[218]
and the States had no concurrent power to legislate on the subject.[219]
However, a State statute providing a penalty for harboring a fugitive
slave was held not to conflict with this clause since it did not affect
the right or remedy either of the master or the slave; by it the State
simply prescribed a rule of conduct for its own citizens in the exercise
of its police power.[220]
Section 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the Junction
of two or more States, or Parts of States, without the Consent of the
Legislatures of the States concerned as well as of the Congress.
Doctrine of the Equality of the States
"Equality of constitutional right and power is the condition of all the
States of the Union, old and new."[221] This doctrine, now a truism of
Constitutional Law, did not find favor in the Constitutional Convention.
That body struck out from this section, as reported by the Committee on
Detail, two sections to the effect that "... new States shall be
admitted on the same terms with the original States. But the Legislature
may make conditions with the new States concerning the public debt which
shall be subsisting."[222] Opposing this action, Madison insisted that
"the Western States neither would nor ought to submit to a union which
degraded them from an equal rank with the other States."[223]
Nonetheless, after further expressions of opinion _pro_ and _con_, the
Convention voted nine States to two to delete the requirement of
equality.[224] Prior to this time, however, Georgia and Virginia had
ceded to the United States large territories held by them, upon
condition that new States should be formed therefrom, and admitted to
the Union on an equal footing with the original States.[225] With the
admission of Louisiana in 1812, the principle of equality was extended
to States created out of territory purchased from a foreign power.[226]
By the Joint Resolution of December 29, 1845, Texas "was admitted into
the Union on an equal footing with the original States in all respects
whatever."[227] Again and again, in adjudicating the rights and duties
of States admitted after 1789, the Supreme Court has referred to the
condition of equality as if it were an inherent attribute of the Federal
Union.[228] Finally, in 1911, it invalidated a restriction on the change
of location of the State capital, which Congress had imposed as a
condition for the admission of Oklahoma, on the ground that Congress may
not embrace in an enabling act conditions relating wholly to matters
under State control.[229] In an opinion, from which Justices Holmes and
McKenna dissented, Justice Lurton argued: "The power is to admit 'new
States into _this_ Union.' 'This Union' was and is a union of States,
equal in power, dignity and authority, each competent to exert that
residuum of sovereignty not delegated to the United States by the
Constitution itself. To maintain otherwise would be to say that the
Union, through the power of Congress to admit new States, might come to
be a union of States unequal in power, as including States whose powers
were restricted only by the Constitution, with others whose powers had
been further restricted by an act of Congress accepted as a condition of
admission."[230]
EARLIER SCOPE OF THE DOCTRINE
Until recently, however, the requirement of equality has applied
primarily to political standing and sovereignty rather than to economic
or property rights.[231] Broadly speaking, every new State is entitled
to exercise all the powers of government which belong to the original
States of the Union.[232] It acquires general jurisdiction, civil and
criminal, for the preservation of public order, and the protection of
persons and property throughout its limits except where it has ceded
exclusive jurisdiction to the United States.[233] The legislative
authority of a newly admitted State extends over federally owned land
within the State, to the same extent as over similar property held by
private owners, save that the State can enact no law which would
conflict with the constitutional powers of the United States.
Consequently it has jurisdiction to tax private activities carried on
within the public domain, if the tax does not constitute an
unconstitutional burden on the Federal Government.[234] Statutes
applicable to territories, e.g., the Northwest Territory Ordinance of
1787, cease to have any operative force when the territory, or any part
thereof, is admitted to the Union, except as adopted by State law.[235]
When the enabling act contains no exclusion of jurisdiction as to crimes
committed on Indian reservations by persons other than Indians, State
courts are vested with jurisdiction.[236] But the constitutional
authority of Congress to regulate commerce with Indian tribes is not
inconsistent with the equality of new States,[237] and conditions
inserted in the New Mexico Enabling Act forbidding the introduction of
liquor into Indian territory were therefore valid.[238]
CITIZENSHIP OF INHABITANTS
Admission of a State on an equal footing with the original States
involves the adoption as citizens of the United States of those whom
Congress makes members of the political community, and who are
recognized as such in the formation of the new State.[239]
JUDICIAL PROCEEDINGS
Whenever a territory is admitted into the Union, the cases pending in
the territorial court which are of exclusive federal cognizance are
transferred to the federal court having jurisdiction over the area;
cases not cognizable in the federal courts are transferred to the
tribunals of the new State, and those over which federal and State
courts have concurrent jurisdiction may be transferred either to the
State or federal courts by the party possessing that option under
existing law.[240] Where Congress neglected to make provision for
disposition of certain pending cases in an Enabling Act for the
admission of a State to the Union, a subsequent act supplying the
omission was held valid.[241] After a case, begun in a United States
court of a territory, is transferred to a State court under the
operation of the enabling act and the State constitution, the appellate
procedure is governed by the State statutes and procedure.[242] The new
State cannot, without the express or implied assent of Congress, enact
that the records of the former territorial court of appeals should
become records of its own courts, or provide by law for proceedings
based thereon.[243]
PROPERTY RIGHTS: UNITED STATES _v._ TEXAS
Holding that a "mere agreement in reference to property" involved "no
question of equality of status," the Supreme Court upheld, in Stearns
_v._ Minnesota,[244] a promise exacted from Minnesota upon its admission
to the Union which was interpreted to limit its right to tax lands held
by the United States at the time of admission and subsequently granted
to a railroad. The "equal footing" doctrine has had an important effect,
however, on the property rights of new States to soil under navigable
waters. In Pollard _v._ Hagan,[245] the Court held that the original
States had reserved to themselves the ownership of the shores of
navigable waters and the soils under them, and that under the principle
of equality the title to the soils of navigable waters passes to a new
State upon admission. After refusing to extend the inland-water rule of
this case to the three mile marginal belt under the ocean along the
coast,[246] the Court applied the principle of the Pollard Case in
reverse in United States _v._ Texas.[247] Since the original States had
been found not to own the soil under the three mile belt, Texas, which
concededly did own this soil before its annexation to the United States,
was held to have surrendered its dominion and sovereignty over it, upon
entering the Union on terms of equality with the existing States. To
this extent, the earlier rule that unless otherwise declared by Congress
the title to every species of property owned by a territory passes to
the State upon admission[248] has been qualified.
RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE
While the territorial status continues, the United States has power to
convey property rights, such as rights in soil below high-water mark
along navigable waters,[249] or the right to fish in designated
waters,[250] which will be binding on the State. But a treaty with an
Indian tribe which gave hunting rights on unoccupied lands of the United
States, which rights should cease when the United States parted with its
title to any of the land, was held to be repealed by the admission to
the Union of the territory in which the hunting lands were
situated.[251]
Clause 2. The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
Property of the United States
METHODS OF DISPOSING THEREOF
The Constitution is silent as to the methods of disposing of property of
the United States. In United States _v._ Gratiot,[252] in which the
validity of a lease of lead mines on government lands was put in issue,
the contention was advanced that "disposal is not letting or leasing,"
and that Congress has no power "to give or authorize leases." The Court
sustained the leases, saying "the disposal must be left to the
discretion of Congress."[253] Nearly a century later this power to
dispose of public property was relied upon to uphold the generation and
sale of electricity by the Tennessee Valley Authority. The reasoning of
the Court ran thus: the potential electrical energy made available by
the construction of a dam in the exercise of its constitutional powers
is property which the United States is entitled to reduce to possession;
to that end it may install the equipment necessary to generate such
energy. In order to widen the market and make a more advantageous
disposition of the product, it may construct transmission lines, and may
enter into a contract with a private company for the interchange of
electric energy.[254]
PUBLIC LANDS
No appropriation of public lands may be made for any purpose except by
authority of Congress.[255] However, the long-continued practice of
withdrawing land from the public domain by Executive Orders for the
purpose of creating Indian reservations has raised an implied delegation
of authority from Congress to take such action.[256] The comprehensive
authority of Congress over public lands includes the power to prescribe
the times, conditions and mode of transfer thereof, and to designate the
persons to whom the transfer shall be made;[257] to declare the dignity
and effect of titles emanating from the United States;[258] to determine
the validity of grants which antedate the government's acquisition of
the property;[259] to exempt lands acquired under the homestead laws
from previously contracted debts;[260] to withdraw land from settlement
and to prohibit grazing thereon;[261] to prevent unlawful occupation of
public property and to declare what are nuisances, as affecting such
property, and provide for their abatement;[262] and to prohibit the
introduction of liquor on lands purchased and used for an Indian
colony.[263] Congress may limit the disposition of the public domain to
a manner consistent with its views of public policy. A restriction
inserted in a grant of public lands to a municipality which prohibited
the grantee from selling or leasing to a private corporation the right
to sell or sublet water or electric energy supplied by the facilities
constructed on such land was held valid.[264]
THE POWER OF THE STATE
No State can tax public lands of the United States within its
borders;[265] nor can State legislation interfere with the power of
Congress under this clause or embarrass its exercise.[266] The question
whether title to land which has once been the property of the United
States has passed from it must be resolved by the laws of the United
States; after title has passed, "that property, like all other property
in the State, is subject to State legislation; so far as that
legislation is consistent with the admission that the title passed and
vested according to the laws of the United States."[267] In construing a
conveyance by the United States of land within a State, the settled and
reasonable rule of construction of the State affords a guide in
determining what impliedly passes to the grantee as an incident to land
expressly granted.[268] But a State statute enacted subsequently to a
federal grant cannot be given effect to vest in the State rights which
either remained in the United States or passed to its grantee.[269]
POWER OF CONGRESS OVER THE TERRITORIES
In the territories, Congress has the entire dominion and sovereignty,
national and local, and has full legislative power over all subjects
upon which a State legislature might act.[270] It may legislate directly
with respect to the local affairs of a territory or it may transfer that
function to a legislature elected by the citizens thereof,[271] which
will then be invested with all legislative power except as limited by
the Constitution of the United States and acts of Congress.[272] In
1886, Congress prohibited the enactment by territorial legislatures of
local or special laws on enumerated subjects.[273] The constitutional
guarantees of private rights are applicable in territories which have
been made a part of the United States by Congressional action,[274] but
not to unincorporated territories.[275] Alaska is of the former
description,[276] while the status of Hawaii appears to be
doubtful.[277] Congress may establish, or may authorize the territorial
legislature to create, legislative courts whose jurisdiction is derived
from statutes enacted pursuant to this section rather than from article
IV.[278] Such courts may exercise admiralty jurisdiction despite the
fact that such jurisdiction may be exercised in the States only by
constitutional courts.[279]
Section 4. The United States shall guarantee to every State in
this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.
A Republican Form of Government
It was established in the pioneer case of Luther _v._ Borden,[280] that
questions arising under this section are political, not judicial, in
character, and that "it rests with Congress to decide what government is
the established one in a State * * * as well as its republican
character."[281] Upon Congress also rested the duty to restore
republican governments to the States which seceded from the Union at the
time of the Civil War. In Texas _v._ White[282] the Supreme Court
declared that the action of the President in setting up provisional
governments at the end of the war was justified, if at all, only as an
exercise of his powers as Commander in Chief and that such governments
were to be regarded merely as provisional regimes to perform the
functions of government pending action by Congress. On the ground that
the questions were not justiciable in character, the Supreme Court has
refused to consider whether the adoption of the initiative and
referendum,[283] or the delegation of legislative power to other
departments of government[284] is compatible with a republican form of
government. This guarantee does not give the Supreme Court jurisdiction
to review a decision of a State court sustaining a determination of an
election contest for the office of governor made by a State legislature
under the authority of a State constitution.[285] Inasmuch as women were
denied the right to vote in most, if not all, of the original thirteen
States, it was held, prior to the adoption of Amendment XIX, that a
State government could be challenged under this clause by reason of the
fact that it did not permit women to vote.[286]
Protection Against Domestic Violence
The Supreme Court also held in Luther _v._ Borden[287] that it rested
with Congress to determine upon the means proper to fulfill the
constitutional guarantee of protection to the States against domestic
violence. Chief Justice Taney declared that Congress might have placed
it in the power of a court to decide when the contingency had happened
which required the Federal Government to interfere. Instead, Congress
had, by the act of February 28, 1795,[288] authorized the President to
call out the militia in case of insurrection against the government of
any State. It followed, said Taney, that the President "must, of
necessity, decide which is the government, and which party is unlawfully
arrayed against it, before he can perform the duty imposed upon him by
the act of Congress"[289] and that his determination was not subject to
review by the courts.
DECLINE IN IMPORTANCE OF THIS GUARANTY
With the recognition in the Debs Case[290] of the power and duty of the
Federal Government to use "the entire strength of the Nation * * * to
enforce in any part of the land the full and free exercise of all
national powers and the security of all rights entrusted by the
Constitution to its care,"[291] this clause has declined in importance.
When that Government finds it necessary or desirable to use force to
quell domestic violence, its power to protect the property of the United
States, to remove obstructions to the United States mails, or to protect
interstate commerce from interruption by labor disputes or otherwise,
usually will furnish legal warrant for its action, without reference to
this provision.[292]
Notes
[1] Clark _v._ Graham, 6 Wheat. 577 (1821), is an early case in which
the Supreme Court enforced this rule.
[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. Sec. 905 28 U.S.C. Sec.
687.
[3] Mankin _v._ Chandler & Co., 2 Brock. 125, 127 (1823).
[4] 7 Cr. 481 (1813). _See_ also Everett _v._ Everett, 215 U.S. 203
(1909); Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878).
[5] On the same basis, a judgment cannot be impeached either in or out
of the State by showing that it was based on a mistake of law. American
Exp. Co. _v._ Mullins, 212 U.S. 311, 312 (1909); Fauntleroy _v._ Lum,
210 U.S. 230 (1908); Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146
(1917); Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915).
[6] 3 Wheat. 234 (1818).
[7] 13 Pet. 312 (1839). _See also_ Bacon _v._ Howard, 20 How. 22, 25
(1858); Bank of Ala. _v._ Dalton, 9 How. 522, 528 (1850); Great Western
Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896); Christmas _v._ Russell, 5
Wall. 290, 301 (1866); Wisconsin _v._ Pelican Insurance Co., 127 U.S.
265, 292 (1888).
[8] Cole _v._ Cunningham, 133 U.S. 107, 112 (1890). _See also_ Stacy
_v._ Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County
_v._ White (M.E.) Co., 296 U.S. 268 (1935).
[9] Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615, 622 (1887);
Hanley _v._ Donoghue, 116 U.S. 1, 3 (1885). _See also_ Bigelow _v._ Old
Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green _v._ Van
Buskirk, 7 Wall. 139, 140 (1869); Roche _v._ McDonald, 275 U.S. 449
(1928); Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933).
[10] Sistare _v._ Sistare, 218 U.S. 1 (1910).
[11] Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). _See also_ Fall
_v._ Eastin, 215 U.S. 1 (1909).
[12] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268, 275-276
(1935).
[13] Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873);
Robertson _v._ Pickrell, 109 U.S. 608, 610 (1883).
[14] Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940). _See
also_ Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890).
[15] National Exchange Bank _v._ Wiley, 195 U.S. 257, 265 (1904). _See
also_ Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).
[16] Harding _v._ Harding, 198 U.S. 317 (1905). The following cases
further illustrate the application of the clause when its protection is
sought by a defendant. Such claim must be specific, Wabash R. Co. _v._
Flannigan, 192 U.S. 29, 37 (1904). _See also_ American Exp. Co. _v._
Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to
establish the failure of a court to give to decrees of a federal court
and the court of another State the due effect to which they are
entitled. Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567, 573 (1903).
However, by defending on the merits, after pleading and relying upon a
foreign judgment, a party does not waive the benefits of an alleged
estoppel arising from the foreign judgment. Harding _v._ Harding, 198
U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a
bar to suit in another jurisdiction. Swift _v._ McPherson, 232 U.S. 51
(1914). Nor is an entry of discontinuance. In allowing the plaintiff to
show that such entry of discontinuance was not intended by the parties
as a release and satisfaction of the cause of action, but was the result
of a promissory agreement by the defendant which was never complied
with, the Court in the forum State was not refusing full faith and
credit to the judgment. Such evidence was properly allowed, not to
contradict the legal import of said judgment, but to show the true
meaning of the parties to the suit in agreeing upon its discontinuance.
Jacobs _v._ Marks, 182 U.S. 583, 593 (1901).
[17] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373
(1903).
[18] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke
for the Court in both cases, asserted in his opinion in the latter that
the New York statute was "directed to jurisdiction," the Mississippi
statute to "merits," but four Justices could not grasp the distinction.
[19] Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), and cases there
cited. Holmes again spoke for the Court. _See also_ Cook, The Powers of
Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434
(1919).
[20] Broderick _v._ Rosner, 294 U.S. 629 (1935), affirmed in Hughes _v._
Fetter, 341 U.S. 609 (1951).
[21] Union National Bank _v._ Lamb, 337 U.S. 38 (1949); _see also_ Roche
_v._ McDonald, 275 U.S. 449 (1928).
[22] Embry _v._ Palmer, 107 U.S. 3, 13 (1883).
[23] Titus _v._ Wallick, 306 U.S. 282, 291-292 (1939).
[24] Morris _v._ Jones, 329 U.S. 545 (1947).
[25] Thus why should not a judgment for alimony be made directly
enforceable in sister States instead of merely furnishing the basis of
an action in debt? _See_ Thompson _v._ Thompson, 226 U.S. 551 (1913).
[26] Board of Public Works _v._ Columbia College, 17 Wall. 521, 528
(1873). _See also_ Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487
(1915); Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111
(1912); Brown _v._ Fletcher, 210 U.S. 82 (1908); Wisconsin _v._ Pelican
Ins. Co., 127 U.S. 265, 291 (1888); Huntington _v._ Attrill, 146 U.S.
657, 685 (1892). However a denial of credit, founded upon a mere
suggestion of want of jurisdiction and unsupported by evidence, violates
the clause. _See also_ Rogers _v._ Alabama, 192 U.S. 226, 231 (1904);
Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915).
[27] _See_ Cooper _v._ Reynolds, 10 Wall. 308 (1870).
[28] 11 How. 165 (1850).
[29] Justice Johnson, dissenting in Mills _v._ Duryee, 7 Cr. 481 (1813),
had said: "There are certain eternal principles of justice which never
ought to be dispensed with, and which Courts of justice never can
dispense with but when compelled by positive statute. One of those is,
that jurisdiction cannot be justly exercised by a State over property
not within the reach of its process, or over persons not owing them
allegiance or not subjected to their jurisdiction, by being found within
their limits." Ibid. 486.
[30] 95 U.S. 714 (1878).
[31] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). _See also_ Wetmore
_v._ Karrick, 205 U.S. 141 (1907).
[32] Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).
_See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); Galpin _v._ Page, 18
Wall. 350 (1874); Old Wayne Mutual Life Asso. Co. _v._ McDonough, 204
U.S. 8 (1907).
[33] Reynolds _v._ Stockton, 140 U.S. 254 (1891).
[34] Renaud _v._ Abbott, 116 U.S. 277 (1886); Jaster _v._ Currie, 198
U.S. 144 (1905).
[35] Milliken _v._ Meyer, 311 U.S. 457, 463 (1940).
[36] Adam _v._ Saenger, 303 U.S. 59, 62 (1938).
[37] Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900).
[38] Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 58 (1848).
[39] Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111
(1912).
[40] 18 How. 404 (1856).
[41] To the same effect is Connecticut Mut. Ins. Co. _v._ Spratley, 172
U.S. 602 (1899).
[42] Simon _v._ Southern Ky., 236 U.S. 115 (1915).
[43] Goldey _v._ Morning News, 156 U.S. 518 (1895); Riverside Mills _v._
Menefee, 237 U.S. 189 (1915).
[44] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914);
Riverside Mills _v._ Menefee, 237 U.S. 189 (1915).
[45] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914).
[46] Kane _v._ New Jersey, 242 U.S. 160 (1916); Hess _v._ Pawloski, 274
U.S. 352 (1927). Limited in Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).
[47] 18 Wall. 457 (1874).
[48] _See_ 1 Black, Judgments Sec. 246 (1891).
[49] _See also_ Simmons _v._ Saul, 138 U.S. 439, 448 (1891). In other
words, the challenge to jurisdiction is treated as equivalent to the
plea _nul tiel record_, a plea which was recognized even in Mills _v._
Duryee as always available against an attempted invocation of the full
faith and credit clause. What is not pointed out by the Court, is that
it was also assumed in the earlier case that such a plea could always be
rebutted by producing a transcript, properly authenticated in accordance
with the act of Congress, of the judgment in the original case. _See
also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); German Savings Society
_v._ Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. _v._
Radcliffe, 137 U.S. 287, 294 (1890).
[50] Cheever _v._ Wilson, 9 Wall. 108 (1870).
[51] Andrews _v._ Andrews, 188 U.S. 14 (1903). _See also_ German Savings
Society _v._ Dormitzer, 192 U.S. 125 (1904).
[52] 201 U.S. 562 (1906). _See also_ Thompson _v._ Thompson, 226 U.S.
551 (1913).
[53] 181 U.S. 155, 162 (1901).
[54] 317 U.S. 287 (1942); 325 U.S. 226 (1945).
[55] 305 U.S. 32 (1938).
[56] 317 U.S. 287, 298-299 (1942).
[57] Ibid. at p. 302.
[58] 317 U.S. 287, 312, 315, 321 (1942).
[59] 325 U.S. 226, 229 (1945).
[60] Bell _v._ Bell, 181 U.S. 175 (1901); Andrews _v._ Andrews, 188 U.S.
14 (1903).
[61] Strong dissents were filed which have influenced subsequent
holdings. Among these was that of Justice Rutledge which attacked both
the consequences of the decision as well as the concept of
jurisdictional domicile on which it was founded.
"Unless 'matrimonial domicil,' banished in _Williams_ I [by the
overruling of Haddock _v._ Haddock], has returned renamed ['domicil of
origin'] in _Williams_ II, every decree becomes vulnerable in every
State. Every divorce, wherever granted, * * *, may now be reexamined by
every other State, upon the same or different evidence, to redetermine
the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.'
* * *
"The Constitution does not mention domicil. Nowhere does it posit the
powers of the states or the nation upon that amorphous, highly variable
common-law conception. * * * No legal conception, save possibly
'jurisdiction,' * * *, affords such possibilities for uncertain
application. * * * Apart from the necessity for travel, [to effect a
change of domicile, the latter], criterion comes down to a purely
subjective mental state, related to remaining for a length of time never
yet defined with clarity. * * * When what must be proved is a variable,
the proof and the conclusion which follows upon it inevitably take on
that character. * * * [The majority have not held] that denial of credit
will be allowed, only if the evidence [as to the place of domicile] is
different or depending in any way upon the character or the weight of
the difference. The test is not different evidence. It is evidence,
whether the same or different and, if different, without regard to the
quality of the difference, from which an opposing set of inferences can
be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the
Court] does not define 'not unreasonably.' It vaguely suggests a
supervisory function, to be exercised when the denial [of credit]
strikes its sensibilities as wrong, by some not stated standard. * * *
There will be no 'weighing' [of evidence], * * * only examination for
sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)).
No less disposed to prophesy undesirable results from this decision was
Justice Black in whose dissenting opinion Justice Douglas concurred.
"The full faith and credit clause, as now interpreted, has become a
disrupting influence. The Court in effect states that the clause does
not apply to divorce actions, and that States alone have the right to
determine what effect shall be given to the decrees of other States. If
the Court is abandoning the principle that a marriage [valid where made
is valid everywhere], a consequence is to subject people to bigamy or
adultery prosecutions because they exercise their constitutional right
to pass from a State in which they were validly married on to another
which refuses to recognize their marriage. Such a consequence violates
basic guarantees."
North Carolina's interest was to preserve a bare marital status as to
two persons who sought a divorce and two others who had not objected to
it. "It is an extraordinary thing for a State to procure a retroactive
invalidation of a divorce decree, and then punish one of its citizens
for conduct authorized by that decree, when it had never been challenged
by either of the people most immediately interested in it." The State
here did not sue to protect any North Carolina property rights nor to
obtain support for deserted families. "I would not permit such an
attenuated state interest to override the Full Faith and Credit Clause *
* *" (325 U.S. 226, 262-267 (1945)).
The unsettling effect of this decision was expressed statistically by
Justice Black as follows: "Statistics indicate that approximately five
million divorced persons are scattered throughout the forty-eight
States. More than 85% of these divorces were granted in uncontested
proceedings. Not one of this latter group can now retain any feeling of
security in his divorce decree. Ever present will be the danger of
criminal prosecution and harassment." Ibid. 262-263.
As to the conclusion that the Supreme Court as well as the State courts
should reach in like situations, Justice Black asserted that "until
Congress has commanded a different 'effect' for divorces granted on a
short sojourn within a State, we should stay our hands. * * * If we
follow that course, North Carolina cannot be permitted to disregard the
Nevada decrees without passing upon the 'faith and credit' which Nevada
itself would give to them under its own 'law or usage.' * * * For in
Nevada, even its Attorney General could not have obtained a cancellation
of the decree * * *." Ibid. 267, 268.
The reader should take note of the effect in some of the above opinions
to weigh competing interests against one another and the implication
that the court's relation to the full faith and credit clause is that of
an arbitral tribunal rather than of a court in the conventional sense of
a body whose duty is to maintain an established rule of law.
[62] 325 U.S. 279 (1945).
[63] Ibid. 281-283.
[64] 334 U.S. 541 (1948). _See also_ the companion case of Kreiger _v._
Kreiger, 334 U.S. 555 (1948).
[65] Esenwein _v._ Commonwealth, 325 U.S. 279, 280 (1945).
[66] Because the record, in his opinion, did not make it clear whether
New York "law" held that no "_ex parte_" divorce decree could terminate
a prior New York separate maintenance decree, or merely that no "_ex
parte_" decree of divorce of _another State_ could, Justice Frankfurter
dissented and recommended that the case be remanded for clarification.
Justice Jackson dissented on the ground that under New York law, a New
York divorce would terminate the wife's right to alimony; and if the
Nevada decree is good, it is entitled to no less effect in New York than
a local decree. However, for reasons stated in his dissent in the First
Williams Case, 317 U.S. 287, he would prefer not to give standing to
constructive service divorces obtained on short residence. 334 U.S. 541,
549-554 (1948). These two Justices filed similar dissents in the
companion case of Kreiger _v._ Kreiger, 334 U.S. 555, 557 (1948).
[67] 334 U.S. 343 (1948).
[68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of
Sherrer _v._ Sherrer, but applicable also to the case of Coe _v._ Coe,
Justice Frankfurter, with Justice Murphy concurring, asserted his
inability to accept the proposition advanced by the majority that
"regardless of how overwhelming the evidence may have been that the
asserted domicile in the State offering bargain-counter divorces was a
sham, the home State of the parties is not permitted to question the
matter if the form of a controversy had been gone through."--334 U.S.
343, 377 (1948).
[69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas,
Rutledge, Jackson), Justice Jackson alone filed a written opinion. To
him the decision is "an example of the manner in which, in the law of
domestic relations, 'confusion now hath made his masterpiece,'" but for
the first Williams case and its progeny, the judgment of the Connecticut
court might properly have held that the Rice divorce decree was void for
every purpose because it was rendered by a State court which never
obtained jurisdiction of the nonresident defendant. "But if we adhere to
the holdings that the Nevada court had power over her for the purpose of
blasting her marriage and opening the way to a successor, I do not see
the justice of inventing a compensating confusion in the device of
divisible divorce by which the parties are half-bound and half-free and
which permits Rice to have a wife who cannot become his widow and to
leave a widow who was no longer his wife." Ibid. 676, 679, 680.
[70] Vermont violated the clause in sustaining a collateral attack on a
Florida divorce decree, the presumption of Florida's jurisdiction over
the cause and the parties not having been overcome by extrinsic evidence
or the record of the case. Cook _v._ Cook, 342 U.S. 126 (1951). The
Sherrer and Coe cases were relied upon. There seems, therefore, to be no
doubt of their continued vitality.
[71] Barber _v._ Barber, 323 U.S. 77, 84 (1944).
[72] Sistare _v._ Sistare, 218 U.S. 1, 11 (1910). _See also_ Barber _v._
Barber, 21 How. 582 (1859); Lynde _v._ Lynde, 181 U.S. 183, 186-187
(1901); Bates _v._ Bodie, 245 U.S. 520 (1918); Audubon _v._ Shufeldt,
181 U.S. 575, 577 (1901); Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933);
Loughran _v._ Loughran, 292 U.S. 216 (1934).
[73] Griffin _v._ Griffin, 327 U.S. 220 (1946).
[74] Ibid. 228. An alimony case of a quite extraordinary pattern was
that of Sutton _v._ Leib. On account of the diverse citizenship of the
parties, who had once been husband and wife, the case was brought by the
latter in a federal court in Illinois. Her suit was to recover unpaid
alimony which was to continue until her remarriage. To be sure, she had,
as she confessed, remarried in Nevada, but the marriage had been
annulled in New York on the ground that the man was already married,
inasmuch as his divorce from his previous wife was null and void, she
having neither entered a personal appearance nor been personally served.
The Court, speaking by Justice Reed, held that the New York annulment of
the Nevada marriage must be given full faith and credit in Illinois, but
left Illinois to decide for itself the effect of the annulment upon the
obligations of petitioner's first husband. Sutton _v._ Leib, 342 U.S.
402 (1952).
[75] Halvey _v._ Halvey, 330 U.S. 610, 615 (1947).
[76] Johnson _v._ Muelberger, 341 U.S. 581 (1951).
[77] Tilt _v._ Kelsey, 207 U.S. 43 (1907); Burbank _v._ Ernst, 232 U.S.
162 (1914).
[78] Riley _v._ New York Trust Company, 315 U.S. 343 (1942).
[79] Brown _v._ Fletcher, 210 U.S. 82, 90 (1908). _See also_ Stacy _v._
Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean _v._ Meek, 18
How. 16, 18, (1856).
[80] Tilt _v._ Kelsey, 207 U.S. 43 (1907). In the case of Borer _v._
Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts,
it was held, in 1887, that a judgment in a probate proceeding, which was
merely ancillary to proceedings in another State and which ordered the
residue of the estate to be assigned to the legatee and discharged the
executor from further liability, did not prevent a creditor, who was not
a resident of the State in which the ancillary judgment was rendered,
from setting up his claim in the State probate court which had the
primary administration of the estate.
[81] Blodgett _v._ Silberman, 277 U.S. 1 (1928).
[82] Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824); McCormick _v._
Sullivant, 10 Wheat. 192 (1825); Clarke _v._ Clarke, 178 U.S. 186
(1900). The controlling principle of these cases is not confined to
proceedings in probate. A court of equity "not having jurisdiction of
the _res_ cannot affect it by its decree nor by a deed made by a master
in accordance with the decree." _See_ Fall _v._ Eastin, 215 U.S. 1, 11
(1909).
[83] Robertson _v._ Pickrell, 109 U.S. 608, 611 (1883). _See also_ Darby
_v._ Mayer, 10 Wheat. 465 (1825); Gasquet _v._ Fenner, 247 U.S. 16
(1918).
[84] Olmsted _v._ Olmsted, 216 U.S. 386 (1910).
[85] Hood _v._ McGehee, 237 U.S. 611 (1915).
[86] Harris _v._ Balk, 198 U.S. 215 (1905). _See also_ Chicago, R.I. &
Pac. Ry _v._ Sturm, 174 U.S. 710 (1899); King _v._ Cross, 175 U.S. 396,
399 (1899); Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906);
Baltimore & O.R. Co. _v._ Hostetter, 240 U.S. 620 (1916).
[87] Christmas _v._ Russell, 5 Wall. 290 (1866); Maxwell _v._ Stewart,
21 Wall. 71 (1875); Hanley _v._ Donoghue, 116 U.S. 1 (1885); Wisconsin
_v._ Pelican Ins. Co., 127 U.S. 265 (1888); Simmons _v._ Saul, 138 U.S.
439 (1891); American Express Co. _v._ Mullins, 212 U.S. 311 (1909).
[88] Fauntleroy _v._ Lum, 210 U.S. 230 (1908).
[89] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373
(1903).
[90] 133 U.S. 107 (1890).
[91] The Antelope, 10 Wheat. 66, 123 (1825). _See also_ Wisconsin _v._
Pelican Ins. Co., 127 U.S. 265 (1888).
[92] 146 U.S. 657 (1892). _See also_ Dennick _v._ R.R. 103 U.S. 11
(1881).
[93] Milwaukee County _v._ White (N.E.) Co., 296 U.S. 268 (1935). _See
also_ Moore _v._ Mitchell, 281 U.S. 18 (1930).
[94] Bank of Augusta _v._ Earle, 13 Pet. 519, 589-596 (1839). _See_
Kryger _v._ Wilson, 242 U.S. 171 (1916); Bond _v._ Hume, 243 U.S. 15
(1917).
[95] 19 How. 393, 460 (1857); Bonaparte _v._ Tax Court, 104 U.S. 592
(1882), where it was held that a law exempting from taxation certain
bonds of the enacting State did not operate extraterritorially by virtue
of the full faith and credit clause.
[96] Chicago & Alton R. Co. _v._ Wiggins Ferry, 119 U.S. 615, 622
(1887).
[97] Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909). When, in
a State court, the validity of an act of the legislature of another
State is not in question, and the controversy turns merely upon its
interpretation or construction, no question arises under the full faith
and credit clause. _See also_ Western Life Indemnity Co. _v._ Rupp, 235
U.S. 261 (1914), citing Glenn _v._ Garth, 147 U.S. 360 (1893); Lloyd
_v._ Matthews, 155 U.S. 222, 227 (1894); Banholzer _v._ New York L. Ins.
Co., 178 U.S. 402 (1900); Allen _v._ Alleghany Co., 196 U.S. 458, 465
(1905); Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911). _See also_
National Mut. Bldg. & Loan Asso. _v._ Brahan, 193 U.S. 635 (1904);
Johnson _v._ New York Life Ins. Co., 187 U.S. 491, 495 (1903);
Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93
(1917).
[98] Alaska Packers Asso. _v._ Industrial Acci. Commission, 294 U.S. 532
(1935); Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932).
[99] Dennick _v._ R.R., 103 U.S. 11 (1881) was the first of the
so-called "Death Act" cases to reach the Supreme Court. _See also_
Stewart _v._ B.& O.R. Co., 168 U.S. 445 (1897). Even today the
obligation of a State to furnish a forum for the determination of death
claims arising in another State under the laws thereof appears to rest
on a rather precarious basis. In Hughes _v._ Fetter, 341 U.S. 609
(1951), the Court, by a narrow majority, held invalid under the full
faith and credit clause a statute of Wisconsin which, as locally
interpreted, forbade its courts to entertain suits of this nature; and
in First National Bank _v._ United Air Lines, 342 U.S. 396 (1952), a
like result was reached as to an Illinois statute. In both cases the
same four Justices dissented.
[100] 119 U.S. 615 (1887).
[101] Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894); Atchison, T.
& S.F.R. Co. _v._ Sowers, 213 U.S. 55, 67 (1909).
[102] Glenn _v._ Garth, 147 U.S. 360 (1893).
[103] Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914).
[104] Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941); John Hancock Mut.
Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936) distinguished.
[105] Modern Woodmen of Am. _v._ Mixer, 267 U.S. 544 (1925).
[106] Converse _v._ Hamilton, 224 U.S. 243 (1912); Selig _v._ Hamilton,
234 U.S. 652 (1914); Marin _v._ Augedahl, 247 U.S. 142 (1918).
[107] Broderick _v._ Rosner, 294 U.S. 629 (1935). _See also_ Thormann
_v._ Frame, 176 U.S. 350, 356 (1900); Reynolds _v._ Stockton, 140 U.S.
254, 264 (1891).
[108] Hancock Nat. Bank. _v._ Farnum, 176 U.S. 640 (1900).
[109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. _v._ Mixer,
267 U.S. 544 (1925).
[110] 305 U.S. 66, 75, 79 (1938).
[111] 331 U.S. 586, 588-589, 637 (1947).
[112] New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914); Aetna Life
Ins. Co. _v._ Dunken, 266 U.S. 389 (1924).
[113] 193 U.S. 635 (1904).
[114] National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904).
[115] New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900). _See
also_ American Fire Ins. Co. _v._ King Lumber Co., 250 U.S. 2 (1919).
[116] Griffin _v._ McCoach, 313 U.S. 498 (1941).
[117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana
Supreme Court, insofar as it permitted judgment creditors of a dissolved
Iowa surety company to levy execution against local assets to satisfy
judgment, as against title to such assets of the Iowa insurance
commissioner as statutory liquidator and successor to the dissolved
company, was held to deny full faith and credit to the statutes of
Iowa.--Clark _v._ Willard, 292 U.S. 112 (1934).
[118] 324 U.S. 154, 159-160 (1945).
[119] Bradford Electric Co. _v._ Clapper, 286 U.S. 145, 158 (1932).
[120] The Court had earlier remarked that "workmen's compensation
legislation rests upon the idea of status, not upon that of implied
contract." Cudahy Packing Co. _v._ Parramore, 263 U.S. 418, 423 (1923).
In contrast to the above cases, _see_ Kryger _v._ Wilson, 242 U.S. 171
(1916), where it was held that the question whether the cancellation of
a land contract was governed by the _lex rei sitae_ or the _lex loci
contractus_ was purely a question of local common law; _also_ Bond _v._
Hume, 243 U.S. 15 (1917).
[121] Pacific Ins. Co. _v._ Comm'n., 306 U.S. 493, 497, 503-504 (1939).
[122] 320 U.S. 430 (1943).
[123] Industrial Comm'n. _v._ McCartin, 330 U.S. 622 (1947).
[124] Cardillo _v._ Liberty Mutual Co., 330 U.S. 469 (1947).
[125] Reviewing some of the cases treated in this section, a writer in
1925 said: "It appears, then, that the Supreme Court has quite
definitely committed itself to a program of making itself, to some
extent, a tribunal for bringing about uniformity in the field of
conflicts * * * although the precise circumstances under which it will
regard itself as having jurisdiction for this purpose are far from
clear." E.M. Dodd, The Power of the Supreme Court to Review State
Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev.
533-562. It can hardly be said that the law has been subsequently
clarified on this point.
[126] Walter W. Cook, The Power of Congress Under the Full Faith and
Credit Clause (1919), 28 Yale L.J. 430.
[127] Cooper _v._ Newell, 173 U.S. 555, 567 (1899). _See also_ Wisconsin
_v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift _v._ McPherson,
232 U.S. 51 (1914); Pennington _v._ Gibson, 16 How. 65, 81 (1854);
Cheever _v._ Wilson, 9 Wall. 108, 123 (1870); Baldwin _v._ Iowa State
Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. _v._
Baldwin, 287 U.S. 156 (1932); Sanders _v._ Armour Fertilizer Works, 292
U.S. 190 (1934).
[128] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935).
[129] Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902). _See
also_ Gibson _v._ Lyon, 115 U.S. 439 (1885).
[130] Embry _v._ Palmer, 107 U.S. 3, 9 (1883). _See also_ Northern
Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison,
T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55 (1909); Knights of Pythias _v._
Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. _v._ Central
Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. _v._
Pittsburgh Constr. Co., 219 U.S. 92 (1911).