State of Ohio Popovici v. Agler 1930

• Court: U.S. Supreme Court
• Writing for the Court: HOLMES
• Citation: State of Ohio Popovici v. Agler 1930, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930)
• Decision Date: 20 January 1930
• Docket Number: No. 35,35
• Parties: STATE OF OHIO ex rel. POPOVICI, Vice Consul of Roumania, v. AGLER et al., Judges of Court of Common Pleas of Stark County, Ohio. Argued Jan. 7-8, 1930

280 U.S. 379

50 S.Ct. 154

74 L.Ed. 489

STATE OF OHIO ex rel. POPOVICI, Vice Consul of Roumania,

v AGLER et al., Judges of Court of Common Pleas of Stark County, Ohio.

No. 35.

Argued Jan. 7-8, 1930.

Decided Jan. 20, 1930.

Messrs. Atlee Pomerene and Malcolm Y. Yost, both of Cleveland, Ohio, for petitioner.

[Argument of Counsel from pages 380-381 intentionally omitted] Mr. Harry Nusbaum, of Canton, Ohio, for respondents.

Mr. Justice HOLMES delivered the opinion of the Court.

The relator was sued for divorce and alimony in a Court of the State of Ohio. He objected to the jurisdiction of the Court, but the objection was overruled and an order for temporary alimony was made. He thereupon applied to the Supreme Court of the State for a writ of prohibition, but upon demurrer to the petition the writ was denied. 119 Ohio St. 484, 164 N. E. 524. A writ of certiorari was granted by this Court. 279 U. S. 828, 49 S. Ct. 265, 73 L. Ed. 979.

The facts alleged are that the relator is Vice-Consul of Roumania and a citizen of that country, stationed and now residing at Cleveland, Ohio, and it is said by the Supreme Court to have been conceded at the argument that he was married to Helen Popovici, the plaintiff in the original suit, in Stark county, Ohio, where she resided. The relator invokes article 3, section 2, of the Constitution: 'The judicial Power shall extend * * * to all Cases affecting Ambassadors, other public Ministers and Consuls.' 'In all Cases affecting Ambassadors, other public Ministers and Consuls * * * the supreme Court shall have original jurisdiction'; and also the Judicial Code (Act of March 3, 1911, c. 231) § 256 (28 USCA § 371). 'The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: * * * Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice consuls.' To this may be added section 24 (28 USCA § 41(18) giving to the District Court original jurisdiction: 'Eighteenth. Of all suits against consuls and vice consuls'; the Supreme Court by section 233 (28 USCA § 341) being given 'exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations.'

The language so far as it affects the present case is pretty sweeping, but like all language it has to be interpreted in the light of the tacit assumptions upon which it is reasonable to suppose that the language was used. It has been understood that, 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States,' Ex parte Burrus, 136 U. S. 586, 583, 594, 10 S. Ct. 850, 853, 34 L. Ed. 500, and the jurisdiction of the Courts of the United States over divorces and alimony always has been denied. Barber v. Barber, 21 How. 582, 16 L. Ed. 226. Simms v. Simms, 175 U. S. 162, 167, 20 S. Ct. 58, 44 L. Ed. 115; De La Rama v. De La Rama, 201 U. S. 303, 307, 26 S. Ct. 485, 50 L. Ed. 765. A suit for divorce between the present parties brought in the District Court of the United States was dismissed. Popovici v. Popovici (D. C.) 30 F.(2d) 185.

The words quoted from the Constitution do not of themselves and without more...