the privilege, can be prescribed. There certainly was no abuse of the discretion in this instance.

The remaining exceptions relate to the charge as given, and to the refusals to charge as requested by the plaintiff.

The statement on the motion for a new trial, which, by stipulation, is the statement on appeal, and forms the record in this court, does not contain a word of the testimony taken at the trial, and the applicability of most of the instructions, therefore, cannot be determined.

The wording of many of the instructions conclusively shows that they referred to, and depended upon, the testimony taken, and what that was we have no means of knowing or ascertaining.

So far as the instructions related to the pleadings, they show that the view the court took of the case was that the answer sufficiently put in issue the selling of any ties to the defendant, except as stated in the answer, or the sale of any wood whatever, but if the jury. should find against the defendant upon these issues, then the price per tie, and per cord for the wood, was admitted. In this there was no error, certainly none of which the plaintiff can complain. There was, therefore, no ground for a new trial. The order is reversed.

ZANE, C. J., and Twiss, J., concurred.

ESTATE OF HIGBEE, DECEASED.

Filed February 5, 1885.

LEGISLATIVE DIVORCE-TERRITORY HAS NO POWER TO GRANT.-The power to grant divorces is judicial and not legislative. Consequently congress, in delegating to a territorial legislature the power to enact laws on all rightful subjects of legislation, has not conferred upon it authority to grant divorces in special cases, without notice and an opportunity to be heard to the party affected.

APPEAL from a judgment of the district court. The opinion states the facts.

J. G. Sutherland, for the appellant.

Ransford Smith, for the respondent.

ZANE, C. J. This is an appeal from a judgment of the district court affirming a decree of the probate court, denying the right of Sophia E. Higbee, the petitioner, as widow of the late Lyman P. Higbee, and distributing his entire estate to another.

It appears from the findings that Lyman P. Higbee died intestate at Ogden City, Utah territory, on the second day of February, 1883, leaving an estate which, after the payment of all his just debts, amounted to about three thousand dollars. The petitioner is entitled to one-half of this estate if at the time of his death she was his lawful wife.

The facts are that the petitioner was married to deceased at Fon du Lac, in the state of Wisconsin, on the twenty-third day of Au

gust, 1866; that they continued to live together as husband and wife till 1869, when he sent her to California on account of her delicate health, with the mutual expectation that she would return to him in Idaho, or that he would join her in California, and establish his residence there; that he ceased to contribute to her support within a year thereafter, although she was dependent upon him; that she was willing and desirous to return to him, but he neither joined her in California, nor furnished her means to return to him; that he was afterwards elected to the legislature of the territory of Idaho, and while he was acting as a member thereof, that body passed an act, which, without preamble or recital, simply declared that the bonds of matrimony existing between Lyman P. Higbee of Malad City, in the county of Oneida, this territory, and Sophia E. Higbee be, and the same are hereby absolutely dissolved, and that this act shall take effect and be in force from and after its passage." It was approved December 28th, 1874. It also appears that Sophia E. Higbee had no notice of this act until 1876, when she saw the announcement of it in a newspaper sent to her by a third person.

To decide this question, it is necessary to determine whether the divorce was within the grant of legislative power to the territory of Idaho. The federal government is one of enumerated and delegated powers, and possesses no others except such as are necessary to the exercise of those expressed. The second clause of the third section of the fourth article of the constitution of the United States is: "The congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. "No one," says Judge Story, "has ever doubted the authority of congress to erect territorial governments within the territory of the United States, under the general language of this clause:" 2 Story on Const., sec. 1,325.

Rules and regulations in a legal sense mean laws. Blackstone says that "municipal law is a rule of civil conduct prescribed by the supreme power in a state." A divorce is not a rule or regulation. "The divorce act is a judgment, though not pronounced by a court. If it has any effect, it is the dissolution of the bonds of matrimony between husband and wife, a decree which terminates the rights and duties of the marriage relation. It is confined to the parties to the marriage, and, therefore, cannot be a rule or regulation. gress unquestionably has the power to enact laws with respect to marriage and divorce in the territories-to protect the former and to specify the causes for the latter, and the mode to be pursued in obtaining the latter. But, so far as we are advised, congress has never exercised or claimed authority to grant divorces.

Con

Territorial legislatures have not the supreme legislative power. That is vested in congress, and so continues. Chief Justice Waite, in National Bank v. Yankton, 101 U. S. Sup. Court, 133, defines the territorial status as follows: "A territory within the jurisdiction of the United States, not included in any state, must necessarily be governed by and under the authority of congress. The territories

are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective states, and congress may legislate for them as a state does for the municipal organizations. * * Congress may not only abrogate laws of the territorial legislatures, but may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void."

*

Section 1,851 of the revised statutes of the United States provides that "the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States. Only legislative power is conferred, and is extended only to rightful subjects of legislation; so that, even if congress has the power to grant divorces, it has not conferred it on the territorial, legislatures. The federal and state constitutions limit the legislative powers of the various states, and those powers may extend to judicial subjects when they are found within the limitations. The powers of government are distinguished and classified with respect to their purposes and uses. Those necessary to enacting laws are termed legislative; those employed in ascertaining facts from evidence, and in construing and applying the law, are called judicial, and those used in executing judgments, decrees and commands, are named executive. Experience and observation have demonstrated that a legislative body, and the forms and methods which it employs, are best adapted to express the will of the people in laws; and that a tribunal constituted as a court is, and the forms and methods, which it employs, are best suited to the investigation of evidence relating to the varied contentions among men which the government is called upon to settle.

During its early history, all the authority of the British government was in the king, and he exercised executive, legislative and judicial powers. Later, parliament exercised judicial as well as legislative authority. But divorces granted by the parliament of Great Britain were not legislative, but judicial; and, according to the article on divorces in the Encyclopedia Britannica, the proceeding was "a judicial one by a legislative process. In Jones v. Jones, 12 Pa. Rep., 350, justice Coulter thus refers to divorces by parliament: "In England, parliament has frequently annulled the contract of marriage for adultery. There is, perhaps, more reason for the practice there than existed in this state for the exercise of a similar power by the legislature, because parliament is a court. Lord Coke says it is the highest and most honorable court in the kingdom. But that high court proceeds with the utmost circumspection, examines witnesses to prove the adultery, and, in cases where the guilty parties have not left the realm, requires that there shall also have been a trial in the common law courts for criminal conversation, and damages recovered, and also that a sentence of divorce in the spiritual court should have been decreed, which can only divorce a mensa et thoro; hence the necessity of the interven

No. 61-4.

tion of parliament to divorce a vinculo, whose power only is adequate to that end."

Following the precedents furnished by the British parliament, legislatures in this country granted divorces, but those which have been sustained by the courts, in nearly every case, were for cause, and therefore judicial, and cannot be claimed as the rightful subject of legislation.

66

The Pennsylvania constitution of 1838, sec. 14, art. 1, provided: "The legislature shall not have power to enact laws annulling the contract of marriage in any case where by the laws, the courts of this commonwealth are, or hereafter may be empowered to decree a divorce;" from which" the court in the case of Jones v. Jones, supra, held, "an implication results of a power to annul the marriage contract in the non-enumerated cases;" and further, that it was admissible to show on what charge the legislature proceeded, with a view to determine whether it was one upon which the courts were authorized to grant the divorce. In the case of Starr v. Pease, 8 Conn., 540, the divorce questioned was granted upon notice, and upon evidence and for cause. The act was as follows: "Upon the petition of Martha M. Lewis, representing to this assembly, that sho was lawfully married to John L. Lewis on the twenty-third day of September, 1799, and that on or about the fifteenth day of January, 1826, the said John L. Lewis indulged in such criminal intimacies with one Nancy B. Jones, as amounts to adultery, as nearly as could be without the actual perpetration of the crime, and praying for a divorce, as per petition on file, and the said allegations, after hearing the said petitioner, and said John L. Lewis, with their witnesses and counsel, being found true, resolved, by this assembly that the said Martha M. Lewis be, and she is hereby divorced from her said husband, the said John L. Lewis, and is hereby released and absolved from all obligations by virtue of said marriage." The court said, the act affirms the contract of marriage, and declares that "the acts proved were such as ought to dissolve it," and resolved accordingly. In answer to the objection that the act was not within the jurisdiction of the legislature, because the constitution separated the legislative and judicial powers, the court, in substance, said that the constitution does not so separate them, as to prevent the legislature from exercising judicial powers in certain cases.

The mixed powers of the Connecticut legislature came under discussion in the supreme court of the United States in Calder v. Brill, 3 Dall, 386. Patterson, J., said that the legislature acted “in a double capacity-as a house of legislation with undefined authority, and also as a court of judicature in certain exigencies. * * * From the best information, however, which I have been able to collect on this subject, it appears that the legislature or general court of Connecticut, originally possessed and exercised all legislative, executive and judicial authority." And it would appear that the divorce in question has been granted in the exercise of judicial authority.

Thus it will be found, upon further examination, that nearly all of the divorces granted by legislatures and sustained by the courts, were so granted in the exercise of judicial power-that they were recognized as judicial subjects, and not as legislative. A divorce granted for cause is not a legislative divorce. Mr. Bishop says: "A divorce, like every other statute, would appear, necessarily, to flow merely from the sovereign will. It is not the ascertainment of a right, but the creation of one:" 1 Bish. on Mar. and Div., sec. 689. But the purpose of laws is to protect rights and enforce duties, not to destroy the former, nor to relieve from the latter; municipal law does not create rights. A divorce granted without cause, would destroy the lawful rights of one party, and release the legal duties of the other, and hence law is invoked to abrogate them. "A wife has a right to the love and protecting care of her husband; she has a right to share his bed and board; she has a right to support, consisting of necessary food and clothing, according to her position in life." And these rights are answered by corresponding duties from the husband. In the absence of misconduct on her part, it is impossible for him to shake them off; they exist for life, and if he dies first, her rights survive to his estate. The petitioner is now contending for the latter.

The legislature of the territory of Idaho attempted to try petitioner's case without evidence, and, at one blow, to make the law, and the decision, which severed all her rights as wife. By the common law, marriage is for life, and indissoluble except for cause. In the case of Smith v. Smith, 13 Gray, 209, Shaw, C. J., said: "Marriage is undoubtedly a contract, but it is a contract sanctioned by law, controlled by considerations of public policy, vital to the order and harmony of social life, and in its nature indissoluble, except by the violation of duty on the one part, to be taken advantage of in a special manner, provided by law, on the other."

From the point of view from which we are considering this case, it is immaterial whether marriage is held to be a contract or a status. In either case the rights which the relation affords, and the duties which it imposes, are equally under the protection of the law.

Marshall, C. J., in Gaines v. Gaines, 9 B. Mon., 295, said: "It is the province of the legislature, so far as individual rights are concerned, to pass laws as a rule of action for the community at large, or for a particular class, or for individuals under certain circumstances, to be defined by law. It is the province of the judicial power to administer these laws, by applying them to the facts in individual cases for the ascertainment of the right, and the redress or repression of the wrong. It is essential to the stability and security of individual rights that they should be determined by preexisting laws, under which they have originated, and by general laws operating upon similar rights, and not by laws made merely for their decision, when they come to be contested. It is to avoid the danger of individual rights being determined, not by pre-existing laws, but by a law first promulgated in the decision itself, or made