Maynard v. Valentine

• Decision Date: 01 July 1880
• Citation: 2 Wash.Terr. 3,3 P. 195
• Parties: MAYNARD v. VALENTINE.
• Court: Washington Supreme Court

3 P. 195

2 Wash.Terr. 3

MAYNARD v. VALENTINE.

Supreme Court of Territory of Washington

July, 1880

Appeal from a judgment of the Third district court, entered in favor of the defendant. The opinion states the facts.

C. H. Hanford, for appellant.

Wheat, Burke & Rasin for appellee.

GREENE, C.J.

Appellant was married to David S. Maynard about 42 years, in Vermont. She bore him two children, and in 1850 was living with him and them in Ohio. Some time in that year her husband left her and the children there, and became himself a resident of Oregon. When leaving, he promised his wife that within two years he would return for her, or send her means to come to him. He never kept this promise. In 1852, under the act of congress commonly known as the Oregon donation law, he, as a married man, settled upon and claimed 640 acres of land living within what is now King county, in Washington territory. Afterwards and on the twenty-second of December of that year the legislature of the territory of Oregon, by special act, declared the bonds of matrimony between David S Maynard and the appellant dissolved. This act of the legislature has never been assented to by appellant. It was passed without notice to her, before she had ever been in Oregon, and when no cause of divorce as against her existed. The notification pursuant to section 6 of the donation law was filed by Maynard in October, 1853. His accompanying affidavit recited the existence of his marriage relation with appellant until December 24, 1852, her death at that date and his marriage on the fifteenth of January, 1853, of Catherine T. Brashears. Maynard's residence as a donation settler was duly completed and proved by May, 1856, and in January, 1869, donation certificate No. 436 was issued from the local land-office at Olympia to him and his wife, Catherine, apportioning the east half to her and the west half to him. As to the wife's half, the commissioner of the general land-office subsequently, in July, 1871, held this certificate to be erroneous, and on the supposition that appellant was dead and that her heirs were entitled, he directed that proof of her marriage should be taken, and that upon proper proof of this marriage the certificate should be amended so as to run to her heirs. A hearing was accordingly had before the register and receiver at Olympia, at which appellant appeared in person, and David and Catherine Maynard by attorney. As a result, the certificate was, on the eighth of April, 1872, so modified as to allot the east half of the claim to appellant. Upon appeal to the commissioner of the general land-office, and from him to the secretary of the interior, it was held that the special divorce act of 1852 shut appellant out from any rights in the premises, and that neither she nor Catherine Maynard could claim anything under the donation law. Conformably to this decision, the east half of the 640 acres was thrown open as public land to entry and sale, and of part of it Valentine, the appellee, became the purchaser and patentee from the government. Such are the facts as averred by the appellant in her complaint, filed in the district court. Upon them she asked a decree that appellee holds title as trustee for her benefit, and that he be required to convey to her, and that she have her costs and general relief. Appellee filed a general demurrer, which the district court sustained. A decree was thereupon entered, dismissing the cause at plaintiff's costs. From that decree this appeal is taken.

The issue made by the demurrer has been argued before us with commendable zeal and thoroughness, and we have derived great assistance from the skill and industry of counsel. Authorities cited have had our careful attention and reflection. Especially valuable have we found the observations of Mr. Bishop in his excellent work on Marriage and Divorce, and those of Judge COOLEY in his work on Constitutional Limitations. The expediency of allowing legislatures, so constituted and related to the people as are those of this country, the power of divorce, has been long a mooted question. It would be an exceedingly interesting and momentous one for a constitutional convention, or a congress organizing a new territory, to debate. We are conscious ourselves of very strong private convictions against the expediency. But in this opinion we shall endeavor to stand so far aloof from these convictions as dispassionately to arrive at the powers actually conferred upon the legislature of the territory of Oregon. Two principal questions are presented for our decision: (1) Is the legislative act of divorce valid? (2) If valid, does it operate to exclude appellant from the benefits of the donation law?

For the correct decision of the first question, everything turns on the power of the legislature to divorce at all. If there was legislative power to enact any divorce, then it seems to us there was power to enact this particular one. To be sure, there are circumstances in this case tending to illustrate the subject of legislative divorces, and to lead the mind to canvas the expediency of allowing them in any instance. Our attention is invited to the fact that this divorce was accomplished by a special act of the legislature. But if a legislature be clothed with power to divorce at all, how else is it to exercise the power save by a particular act for the particular case? Shall it pass a general statute declaring that whenever one of two married persons deserts, or becomes a drunkard, or commits adultery, or ceases to be amiable, then and thenceforth the two shall stand divorced? It is further pointed out that here was an act done which disposed of the wife's dearest interests, in her absence, without her knowledge, against her will, and without inquiry. Granting all this to be as stated, and even that no legislature could rightfully so act, yet if these circumstances do not clearly appear upon the face of the enactment, must it not be conclusively presumed that the legislature has done whatever was right and becoming in the premises--has made inquiry, has found fit facts on which to base its action, and has not exercised a discretion which belongs to it, and to it exclusively, except upon full information and for just cause? Could this court sit as a tribunal of review to investigate and redress the acts of the legislature in the exercise of its legislative discretion? Can we inquire into the fidelity of the legislative body to the trusts reposed in it by the people, and if in our opinion unfaithful, then pronounce its doings void? Certainly, our courts are not constituted with any such functions.

We are sent back to the original question, was there a divorcing power seated in the legislature? It is not a question of whether it was politic or wise to have it seated there, but was it there? This is to be determined by a reference to the powers granted to the legislature by the organic act of Oregon. These powers are not limited by virtue of any limitation operative upon congress. Congress could constitute as it pleased the territorial government, provided the form it pleased to give was harmonious with the fundamental idea of our national life, that is to say, republican. Whether this ability of congress be derived from the clause in the constitution authorizing the making of all needful rules and regulations respecting the territory belonging to the United States, or springs under the last clause of section 8, art. 1, as a logical necessity from the power to acquire and occupy territory, needs not to be discussed here. The power existed and the power was plenary. Congress might have chosen not to parcel out into three separate and clear-cut departments, the legislative, executive, and judicial functions. It might have imposed on the legislature much business ordinarily done by a court, or it might have devolved all legislation upon the governor or judiciary. It saw fit, however, to distribute the governmental business into executive, legislative, and judicial departments. This it did, doubtless, in analogy to the forms of the constitutions prevailing throughout the states of the Union. The mere distribution has significance in every inquiry as to what the legislature may constitutionally do. Under such a distribution the judiciary cannot take upon itself the functions of the legislature, nor can the legislature do that which properly belongs to a court. But does it logically follow that a fact, such, for example, as the dissolution of a marriage, which might be effected as the conclusion of the action of a court of justice, cannot lawfully be brought about immediately by the legislature? We would not be understood to confound the provinces of court and legislature. A distinction exists between the two bodies, and it is a radical distinction. It does not seem to us to arise from dissimilarity of modes of procedure, nor yet from dissimilarity of results attained. Legislators and judges both deal with men and things as socially and politically related. Neither can act well without understanding, deliberation, and judgment.

If inquiry be necessary to inform the understanding, then there must be inquiry also. Inquiry may be made and all proceedings conducted under the same forms, and the same end may be reached in one body as might be in the other. And yet all this will not change a court to a legislature, nor metamorphose a legislature into a court. It is said that a legislature may be arbitrary; but so may a court. So, too both legislatures and courts may be mistaken about facts. But every good piece of legislation, as well as every sound judicial decision, is a piece of good judgment naturally resulting from fair deliberation applied to trustworthy facts. The true distinction between a...