Pugh v. Pugh

• Decision Date: 09 February 1910
• Citation: 124 N.W. 959,25 S.D. 7
• Parties: JAMES ARTHUR PUGH, Plaintiff and appellant, v. MARY MANTON PUGH, Defendant and respondent.
• Court: South Dakota Supreme Court

25 S.D. 7, 124 N.W. 959 (1910)

JAMES ARTHUR PUGH, Plaintiff and appellant v MARY MANTON PUGH,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Lincoln County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Joseph Mitchell Donovan

Attorney for appellant.

Herbert Abbott

Attorney for respondent.

Opinion filed Feb. 9, 1910

CORSON, J.

This case comes before us on an appeal by the plaintiff from an order of the circuit court sustaining the defendant's demurrer to the complaint of the plaintiff, and from the final judgment entered by the court on said order dismissing the complaint.

The action was commenced on January 2, 1909, and the complaint to which the demurrer was interposed and sustained is as follows:

"First. That the plaintiff now is, and for a period of more than six months next and immediately preceding the commencement of this action has been, an actual and bona fide resident in good faith of the state of South Dakota, having at all times since the 15th day of June, 1908, maintained his sole domicile within the state of South Dakota, with the intention of making the said state of South Dakota his sole residence and domicile indefinitely. That the plaintiff is a citizen of the United States, over the age of 21 years, and now, and at all times since the 15th day of December, 1908 (at which last-named date he had been a bona fide resident of the state of South Dakota for six months), has been a bona fide citizen and qualified elector of the state of South Dakota, and at the time of the commencement of this action is such bona fide citizen and qualified elector of this state, and as such is entitled to the privileges of all of its law equally with every other citizen and elector as provided by section 18 of article 6 of the Constitution of the state of South Dakota, which is in words and figures as follows: 'No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.'

"Second. Plaintiff further alleges and shows to the court that the Plaintiff and the defendant herein legally intermarried, the one with the other, in the state of Pennsylvania, on or about the 28th day of April, 1889, and have since remained and now are husband and wife, and that no children were born as issue of this marriage.

"Third. And for a cause of action herein the plaintiff further alleges that on or about the 22d day of July, 1906, at Baltimore, in the state of Maryland, the defendant herein, without any sufficient cause or reason on the part of the plaintiff, did willfully, voluntarily, and unlawfully desert and abandon this plaintiff, and at all times since has continued, and still so continues, to willfully, voluntarily, and unlawfully desert and abandon this plaintiff, and to live separate and apart from him, without sufficient cause, or any reason, and against his will and without his consent.

"Fourth. And for a cause of action herein the plaintiff further alleges and reiterates all of the foregoing paragraphs of this complaint, the same as if they, the first, second, and third paragraphs of this complaint, were set out in full in this paragraph, and further alleges: That under the law or statute of the state of South Dakota, known as Senate Bill 95, passed by the Legislature of the state of South Dakota of 1907, duly referred as provided by the Constitution of the state of South Dakota, favorably voted upon, and now at any times since about the 5th day of December, 1908, in force and effect within this state as a statute or law of this state, being chapter 132 of the Session Laws South Dakota 1907, a true and certified copy of which law or statute of this state is hereto attached, marked 'Exhibit A' for identification and made a part of this complaint, is unconstitutional and void under section 1 of the fourteenth amendment to the Constitution of the United States, which is in words and figures as follows: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' And that said law or statute is void and unconstitutional under section 18 of article 6 of the Constitution of the state of South Dakota, which is in words and figures as follows: 'No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.' That said statute or law, hereto attached, marked 'Exhibit A,' and made a part of this complaint, is unconstitutional and void as discriminatory or class legislation, in that it allows or permits one class of citizens or persons within the borders of this state to maintain an action for divorce without any stated term of residence or domicile within the state, viz., those persons who were married within this state, and allows another class of citizens, or persons within the borders of this state, to maintain an action for divorce on a residence or domicile of six months, viz., those persons whose cause of action arose in this state, while the class of citizens or persons within the borders of this state to which your complainant belongs are compelled by said law or statute to reside and have their domicile within this state for one year before having the privilege or right to maintain an action for divorce. That said law or statute, hereto attached marked for identification as 'Exhibit A,' and made a part of this complaint, is unconstitutional and void under the Constitution of the state of South Dakota conferring upon all male persons over the age of 21 years, and who are citizens of the United States, full citizenship and the benefit of all of its laws equally with every other citizen, class of citizens, or corporations. And that said law or statute hereto attached, marked 'Exhibit A,' for identification, and made a part hereof, is unconstitutional and void under the Constitution of the United States and the amendments thereto, and under the Constitution of the State of South Dakota and the amendments thereto.

"Wherefore, the plaintiff demands judgment herein, and prays: That the bonds of matrimony heretofore and until now, existing between this plaintiff and this defendant be, by judgment and decree of this court, absolutely dissolved, and that the parties plaintiff and defendant be absolutely released from said marriage and restored to the status of single persons."

To the complaint was annexed a copy of "An act relating to action for divorce, and the proceedings therein. Approved March 8, 1907," and constituting chapter 132, Sess. Laws 1907, which reads as follows:

"Section 1. The plaintiff in an action for divorce must have been an actual resident, in good faith, of this state for one year, and of the county wherein such action is commenced for three months next preceding the commencement of said action, except as herein otherwise provided.

"Sec. 2. If the parties were married in this state and the plaintiff shall have resided therein from the time of marriage until the commencement of the action, said action may be commenced at any time after the cause of action has arisen.

"Sec. 3. All hearings and trials upon the merits in actions for divorce, except default cases and except such hearings as relate to alimony during the pendency of the action, or the granting of an interlocutory order or decree, shall be had at a regular term of court.

"Sec. 4. If the cause of action arose in this state then said action may be commenced at any time after the plaintiff shall have resided in the state for a period of six months.

"Sec. 5. All acts and parts of acts in conflict herewith are hereby repealed."

The demurrer interposed was upon the following grounds: (1) That the court has no jurisdiction of the person of the defendant or the subject of the action. (2) That the complaint does not state facts sufficient to constitute a cause of action.

It is contended by the appellant: (1) That chapter 132 of the Session Laws of 1907 is unconstitutional and void, being in direct conflict with and prohibited by the fourteenth amendment of the Constitution of the United States, and section 18 of article 6 of the Constitution of the state of South Dakota. (2) That said statute or act is unconstitutional and void under all of the provisions of the Constitution of the United States and of the state of South Dakota respecting the right of all citizens of the United States and of the state wherein they reside being qualified equally with all others of the same class to the equal benefits and protection of the laws, courts, and procedure without hindrance or delay. (3) That said act or statute is unconstitutional and void as being discriminatory and class legislation even under the police powers of the state. (4) That said act or statute is unconstitutional and void as a violation of...