Worthington v. District Court of Second Judicial Dist. in and for Washoe County

• Decision Date: 03 July 1914
• Docket Number: 2112.
• Citation: 142 P. 230,37 Nev. 212
• Parties: WORTHINGTON v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR WASHOE COUNTY ET AL.
• Court: Nevada Supreme Court

142 P. 230

37 Nev. 212

WORTHINGTON v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR WASHOE COUNTY ET AL.

No. 2112.

Supreme Court of Nevada

July 3, 1914

Mandamus by Alfred Worthington against the District Court of the Second Judicial District in and for Washoe County and Judge thereof to compel respondents to issue an order for the publication of a summons in an action by petitioner for divorce. Denied.

Sweeney & Morehouse, W. D. Jones, and N. J. Barry, all of Reno, for petitioner.

A. A Heer, S. Summerfield, R. G. Withers, Prince A. Hawkins George S. Brown, John S. Orr, and L. A. Gibbons, all of Reno for respondents.

H. D Danforth, of Reno, amicus curiæ.

TALBOT C.J.

Petitioner applies for a writ of mandate commanding the Honorable T. F. Moran, judge of the Second judicial district court, to issue an order for the publication of summons in the action of Alfred Worthington, Plaintiff, v. Cecelia Worthington, Defendant, for divorce, which was brought in that court on the 11th day of February, 1914.

It is alleged that the petitioner filed his verified complaint in that case, stating two causes of action, in conformity with the laws of this state relating to marriage and divorce; that the summons and certified copy of complaint could not be served personally upon the defendant because she resides, and for a long time has resided, in the city of Daly, San Mateo county, state of California, and is not now, and never has been, a resident of the state of Nevada. Petitioner made and presented to the district judge an affidavit setting forth these facts, and stating that on the 20th day of July, 1913, he became, and ever since has been, a resident of Washoe county, state of Nevada; that he needed an order in conformity with the laws of this state authorizing the publication of the summons and the deposit of a certified copy of the complaint and summons in the post office at Reno, addressed to the defendant at her place of residence, with the postage thereon prepaid, so that she might be notified of the action.

The district judge refused to make the order for publication and service of summons, upon the ground that petitioner had not been a resident of the county of Washoe, state of Nevada, for the full period of one year before the commencement of the action, and based his refusal upon section 22 of the act relating to marriage and divorce, as amended at the last session of the Legislature by an act approved February 20, 1913, under the title:

"An act to amend an act entitled 'An act to amend an act entitled "An act relating to marriage and divorce," approved November 28, 1861,' as approved February 15, 1875."

This act provides:

"Section 1. Section twenty-two of said act is amended so as to read as follows:

Sec. 22. Divorce from the bonds of matrimony may be obtained, by complaint under oath, to the district court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided six months before suit be brought, for the following causes: First--Impotency at the time of the marriage continuing to the time of the divorce. Second--Adultery since the marriage, remaining unforgiven. Third--Willful desertion, at any time, of either party by the other, for the period of one year. Fourth--Conviction of felony or infamous crime. Fifth--Habitual gross drunkenness, contracted since marriage, of either party, which shall incapacitate such party from contributing his or her share to the support of the family. Sixth--Extreme cruelty in either party. Seventh--Neglect of the husband, for a period of one year, to provide the common necessaries of life, when such neglect is not the result of poverty on the part of the husband which he could not avoid by ordinary industry. Provided, that when at the time the cause of divorce accrues, the parties shall not both be bona fide residents of the state, no court shall have jurisdiction to grant a divorce, unless either the plaintiff or the defendant shall have been a bona fide resident of the state for a period of not less than one year next preceding the commencement of the action.

Sec. 2. All acts or parts of acts in conflict with this act are hereby repealed.

Sec. 3. This act shall be in effect from and after the first day of January, 1914."

Laws 1913, c. 10.

The only change made by this amendment is the addition of the last sentence quoted in section 22, which begins with the word "provided." Otherwise the section is the same as the amendment of 1875, which was the same as section 22 of the act as originally passed by the first territorial session of the Legislature in 1861 (Laws 1861, c. 33), excepting that the amendment of 1875 (Laws 1875, c. 22) shortened from two years to one year the time required for desertion and failure to provide.

Petitioner makes no objection to the act of 1875, but directs his batteries against the last amendment. It is said that there was no section 22 to amend in 1913, and that the Legislature cannot inject into the statutes by the last amendment the jurisdiction of the court, not germane to the title.

Also, it is claimed that this act is in violation of the following provisions of the state Constitution:

"All men are, by nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and pursuing and obtaining safety and happiness." Section 1, art. 1.

"Each law enacted by the Legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but, in such case, the act as revised, or section as amended, shall be re-enacted and published at length." Section 17, art. 4.

"The Legislature shall not pass local or special laws * * * granting divorce." Section 20, art. 4.

"In all cases enumerated in the preceding section, and in all other cases, where a general law can be made applicable, all laws shall be made general and of uniform operation throughout the state." Section 21, art. 4.

It is further contended that the statute is in conflict with section 2, art. 4, of the Constitution of the United States, which provides that:

"The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states"

--and of the fourteenth amendment, which specified that:

"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."

The objection that the amendment requiring one year's residence in certain cases to give the court jurisdiction in an action for divorce is not germane to the title is untenable. To sustain such a contention would be in effect saying that the provision of the act originally passed requiring six months' residence under certain circumstances was unconstitutional because under a similar title, and that divorces granted since the organization of the territory and state are void, resulting in many cases of bigamy, illegitimacy, and failure of inheritance.

We had occasion to examine similar objections to the sufficiency of titles to legislative acts in the cases of State v. State Bank & Trust Co., 31 Nev. 456, 103 P. 407, 105 P. 567, and Ex parte Ah Pah, 34 Nev. 283, 119 P. 770. In the former case we said:

"The main principles controlling these questions have been well-nigh settled by this and other courts. That section 17, art. 4, of the Constitution, providing that 'each law enacted by the Legislature shall embrace but one subject and matters properly connected therewith,' is mandatory must be conceded. In regard to this objection, we need only determine whether this action and the decree of the district court relate to matters germane to the subject expressed in the title of the act, or to what is properly connected therewith."

In that case we held that "an act creating a board of bank commissioners, defining their duties, providing for the appointment of a bank examiner, prescribing his duties, fixing his compensation, providing penalties for the violation of the provisions of this act, and other matters relating thereto" (Laws 1907, c. 119), although providing by section 10 for an action by the Attorney General against a banking corporation on the decision by the bank examiner and commissioners that it is unsafe for it to continue business, and that, if the court shall find it unsafe, it shall appoint a receiver, does not contravene the above constitutional provision.

The title of the original and the two amendatory acts relate to marriage and divorce. Divorce, being the dissolution of the marriage relation, necessarily relates to marriage. The length of residence required before parties apply for a divorce, whether it be six months, or one year, or a longer or shorter period, necessarily pertains to divorce, and is a matter connected with the title of the act. The amendment is as free from constitutional objection as if it had been entitled an act relating to divorce, or an act relating to the jurisdiction of the district court. Many acts, such as the ones relating to crimes, punishments, civil practice, and criminal practice relate to numerous matters. It is sufficient if they relate to the subject briefly expressed in the title and anything properly connected therewith.

The Constitution of the state adopted...