Article IV. States' Relations |
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ARTICLE IV
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STATES' RELATIONS
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CONTENTS
Page
Section 1. Full Faith and Credit.......................... 831
Sources and Effect of This Provision...................... 831
Private International Law................................. 831
Judgments: Effect to Be Given in Forum State.............. 832
In General................................................ 832
Jurisdiction: A Prerequisite to Enforcement of Judgments.. 837
Judgments in Personam............................. 837
Service on Foreign Corporations................... 838
Service on Nonresident Motor Vehicle Owners....... 839
Judgments in Rem.................................. 839
Divorce Decrees: Domicile as the Jurisdictional
Prerequisite.......................................... 840
Divorce Suit: In Rem or in Personam; Judicial
Indecision.................................... 841
Williams I and Williams II........................ 842
Cases Following Williams II....................... 844
Claims for Alimony or Property in Forum State..... 846
Decrees Awarding Alimony, Custody of Children..... 848
Status of the Law................................. 850
Other Types of Decrees.................................... 851
Probate Decrees................................... 851
Adoption Decrees.................................. 852
Garnishment Decrees............................... 852
Penal Judgments: Types Entitled to Recognition............ 853
Fraud as a Defense to Suits on Foreign Judgments.......... 853
Recognition of Rights Based Upon Constitutions, Statutes,
Common Law............................................... 854
Development of the Modern Rule............................ 854
Transitory Actions: Death Statutes................ 856
Actions Upon Contract............................. 857
Stockholder Corporation Relationship.............. 858
Fraternal Benefit Society: Member Relationship.... 858
Insurance Company, Building and Loan Association:
Contractual Relationship...................... 859
Workmen's Compensation Statutes................... 861
Full Faith and Credit and Statutes of Limitation.. 863
Full Faith and Credit: Miscellany......................... 863
Full Faith and Credit in Federal Court.................... 863
Evaluation of Results Under Provision..................... 864
Scope of Powers of Congress Under Provision............... 866
Judgments of Foreign States............................... 866
Section 2. Interstate Comity.............................. 867
Clause 1. State Citizenship: Privileges and Immunities.... 867
Origin and Purpose................................ 867
How Implemented................................... 870
Citizens of Each State............................ 870
Corporations.............................. 871
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All Privileges and Immunities of Citizens in the
Several States................................ 871
Discrimination in Private Rights.................. 874
Access to Courts.................................. 875
Taxation.......................................... 876
Clause 2. Interstate Rendition............................ 877
Duty to Surrender Fugitives from Justice.......... 878
Fugitive from Justice: Defined............ 879
Procedure for Removal..................... 879
Trial of Fugitives After Removal.......... 880
Clause 3. Fugitives from Labor............................ 881
Section 3. Admission of New States to Union; Property of
United States............................................ 881
Clause 1. Admission of New States to Union................ 881
Doctrine of the Equality of States................ 881
Judicial Proceedings Pending on Admission
of New States......................... 885
Property Rights of States to Soil Under
Navigable Waters...................... 886
Clause 2. Property of the United States................... 887
Property and Territory: Powers of Congress........ 888
Methods of Disposing Thereof.............. 888
Public Lands: Federal and State Powers
Thereover............................. 888
Territories: Powers of Congress Thereover. 890
Section 4. Obligations of United States to States......... 891
Guarantee of Republican Form of Government................ 891
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ARTICLE IV
STATES' RELATIONS
Section 1. Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which such
Acts, Records, and Proceedings shall be proved, and the Effect thereof.
SOURCES AND EFFECT OF THIS PROVISION
Private International Law
The historical background of this section is furnished by that
branch of private law which is variously termed ``private international
law,'' ``conflict of laws,'' ``comity,'' This comprises a body of rules,
based largely on the writings of jurists and judicial decisions, in
accordance with which the courts of one country, or ``jurisdiction,''
will ordinarily, in the absence of a local policy to the contrary,
extend recognition and enforcement to rights claimed by individuals by
virtue of the laws or judicial decisions of another country or
``jurisdiction.'' Most frequently applied examples of these rules
include the following: the rule that a marriage which is good in the
country where performed ( lex loci ) is good elsewhere; the rule that
contracts are to be interpreted in accordance with the laws of the
country where entered into ( lex loci contractus ) unless the parties
clearly intended otherwise; the rule that immovables may be disposed of
only in accordance with the law of the country where situated ( lex rei
sitae );\1\ the converse rule that chattels adhere to the person of
their owner and hence are disposable by him, even when located
elsewhere, in accordance with the law of his domicile ( lex domicilii );
the rule that regardless of where the cause arose, the courts of any
country where personal service of the defendant can be effected will
take jurisdiction of certain types of personal actions, hence termed
``transitory,'' and accord such remedy as the lex fori affords. Still
other rules, of first importance in the present connection, determine
the recognition which the judg
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ments of the courts of one country shall receive from those of another
country.
\1\Clark v. Graham, 6 Wheat. (19 U.S.) 577 (1821), is an early
case in which the Supreme Court enforced this rule.
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So even had the States of the Union remained in a mutual
relationship of entire independence, private claims originating in one
often would have been assured recognition and enforcement in the others.
The Framers felt, however, that the rules of private international law
should not be left among the States altogether on a basis of comity and
hence subject always to the overruling local policy of the lex fori but
ought to be in some measure at least placed on the higher plane of
constitutional obligation. In fulfillment of this intent the section now
under consideration was inserted, and Congress was empowered to enact
supplementary and enforcing legislation.\2\
\2\Congressional legislation under the full faith and credit
clause, so far as it is pertinent to adjudication hereunder, is today
embraced in 28 U.S.C. Sec. Sec. 1738-1739. See also 28 U.S.C.
Sec. Sec. 1740-1742.
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JUDGMENTS: EFFECT TO BE GIVEN IN FORUM STATE
In General
Article IV, Sec. 1, has had its principal operation in relation
to judgments. Embraced within the relevant discussions are two principal
classes of judgments. First, those in which the judgment involved was
offered as a basis of proceedings for its own enforcement outside the
State where rendered, as for example, when an action for debt is brought
in the courts of State B on a judgment for money damages rendered in
State A; second, those in which the judgment involved was offered, in
conformance with the principle of res judicata, in defense in a new or
collateral proceeding growing out of the same facts as the original
suit, as for example, when a decree of divorce granted in State A is
offered as barring a suit for divorce by the other party to the marriage
in the courts of State B.
The English courts and the different state courts in the United
States, while recognizing ``foreign judgments in personam'' which were
reducible to money terms as affording a basis for actions in debt,
originally accorded them generally only the status of prima facie
evidence in support thereof, so that the merits of the original
controversy could always be opened. When offered in defense, on the
other hand, ``foreign judgments in personam'' were regarded as
conclusive upon everybody on the theory that, as stated by Chief Justice
Marshall, ``it is a proceeding in rem, to which all the world are
parties.''\3\
\3\Mankin v. Chandler, 16 Fed Cas. 625, 626 (No. 9030) (C.C.D.
Va. 1823).
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The pioneer case was Mills v. Duryee,\4\ decided in 1813. In an
action brought in the circuit court of the District of Columbia, the
equivalent of a state court for this purpose, on a judgment from a New
York court, the defendant endeavored to reopen the whole question of the
merits of the original case by a plea of ``nil debet.'' It was answered
in the words of the first implementing statute of 1790\5\ that such
records and proceedings were entitled in each State to the same faith
and credit as in the State of origin, and that inasmuch as they were
records of a court in the State of origin, and so conclusive of the
merits of the case there, they were equally so in the forum State. The
Court adopted the latter view, saying that it had not been the intention
of the Constitution merely to reenact the common law--that is, the
principles of private international law--with regard to the reception of
foreign judgments but to amplify and fortify these.\6\ And in Hampton v.
McConnell,\7\ some years later, Chief Justice Marshall went even
further, using language which seems to show that he regarded the
judgment of a state court as constitutionally entitled to be accorded in
the courts of sister States not simply the faith and credit on
conclusive evidence but the validity of final judgment.
\4\7 Cr. (11 U.S.) 481 (1813). See also Everett v. Everett, 215
U.S. 203 (1909); Insurance Company v. Harris, 97 U.S. 331 (1878).
\5\1 Stat. 122.
\6\On the same basis, a judgment cannot be impeached either in,
or out of, the State by showing that it was based on a mistake of law.
American Express Co. v. Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v.
Lum, 210 U.S. 230 (1908); Hartford Life Ins. Co. v. Ibs, 237 U.S. 662
(1915); Hartford Life Ins. Co. v. Barber, 245 U.S. 146 (1917).
\7\3 Wheat. (16 U.S.) 234 (1818).
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When, however, the next important case arose, the Court had come
under new influences. This was McElmoyle v. Cohen,\8\ in which the
issue was whether a statute of limitations of the State of Georgia,
which applied only to judgments obtained in courts other than those of
Georgia, could constitutionally bar an action in Georgia on a judgment
rendered by a court of record of South Carolina. Declining to follow
Marshall's lead in Hampton v. McConnell,
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the Court held that the Constitution was not intended ``materially to
interfere with the essential attributes of the lex fori,'' that the act
of Congress only established a rule of evidence, of conclusive evidence
to be sure, but still of evidence only; and that it was necessary, in
order to carry into effect in a State the judgment of a court of a
sister State, to institute a fresh action in the court of the former, in
strict compliance with its laws; and that, consequently, when remedies
were sought in support of the rights accruing in another jurisdiction,
they were governed by the lex fori. In accord with this holding, it has
been further held that foreign judgments enjoy, not the right of
priority or privilege or lien which they have in the State where they
are pronounced but only that which the lex fori gives them by its own
laws, in their character of foreign judgments.\9\ A judgment of a state
court, in a cause within its jurisdiction, and against a defendant
lawfully summoned, or against lawfully attached property of an absent
defendant, is entitled to as much force and effect against the person
summoned or the property attached, when the question is presented for
decision in a court in another State, as it has in the State in which it
was rendered.\10\
\8\13 Pet. (38 U.S.) 312 (1839). See also Townsend v. Jemison, 9
How. (50 U.S.) 407, 413-420 (1850); Bank of Alabama v. Dalton, 9 How.
(50 U.S.) 522, 528 (1850); Bacon v. Howard, 20 How. (61 U.S.) 22, 25
(1858); Christmas v. Russell, 5 Wall. (72 U.S.) 290, 301 (1866);
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); Great Western
Telegraph Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive
Co., 345 U.S. 514, 516-518 (1953). Recently, the Court reconsidered and
adhered to the rule of these cases, although the Justices divided with
respect to rationales. Sun oil Co. v. Wortman, 486 U.S. 717 (1988).
Acknowledging that in some areas it had treated statutes of limitations
as substantive rules, such as in diversity cases to insure uniformity
with state law in federal courts, the Court ruled that such rules are
procedural for full-faith-and-credit purposes, since ``[t]he purpose
. . . of the Full Faith and Credit Clause . . . is . . . to delimit
spheres of state legislative competence.'' Id., 727.
\9\Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy
v. Thrasher, 6 How. (47 U.S.) 44, 61 (1848); Milwaukee County v. White
Co., 296 U.S. 268 (1935).
\10\Chicago & Alton R. R. v. Wiggins Ferry Co., 119 U.S. 615,
622 (1887); Hanley v. Donoghue, 116 U.S. 1, 3 (1885). See also Green v.
Van Buskirk, 7 Wall. (74 U.S.) 139, 140 (1869); Bigelow v. Old Dominion
Copper Co., 225 U.S. 111 (1912); Roche v. McDonald, 275 U.S. 449 (1928);
Ohio v. Chattanooga Boiler Co., 289 U.S. 439 (1933).
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A judgment enforceable in the State where rendered must be given
effect in another State, notwithstanding that the modes of procedure to
enforce its collection may not be the same in both States.\11\ If the
initial court acquired jurisdiction, its judgment is entitled to full
faith and credit elsewhere even though the former, by reason of the
departure of the defendant with all his property, after having been
served, has lost its capacity to enforce it by execution in the State of
origin.\12\ ``A cause of action on a judgment is different from that
upon which the judgment was entered. In a suit upon a money judgment for
a civil cause of action, the validity of the claim upon which it was
founded is not open to inquiry, whatever its genesis. Regardless of the
nature of the right which gave rise to it, the judgment is an obligation
to pay money in the nature of a debt upon a specialty. Recovery upon it
can be resisted only on the grounds that the court which rendered it was
without jurisdiction, . . . or that it has ceased to be obligatory
because of
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payment or other discharge . . . or that it is a cause of action for
which the State of the forum has not provided a court.''\13\
\11\Sistare v. Sistare, 218 U.S. 1 (1910).
\12\Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also
Fall v. Eastin, 215 U.S. 1 (1909).
\13\Milwaukee County v. White Co., 296 U.S. 268, 275-276 (1935).
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On the other hand, the clause is not violated when a judgment is
disregarded because it is not conclusive of the issues before a court of
the forum. Conversely, no greater effect can be given than is given in
the State where rendered. Thus, an interlocutory judgment may not be
given the effect of a final judgment.\14\ Likewise, when a federal court
does not attempt to foreclose the state court from hearing all matters
of personal defense which landowners might plead, a state court may
refuse to accept the former's judgment as determinative of the
landowners' liabilities.\15\ Similarly, though a confession of judgment
upon a note, with a warrant of attorney annexed, in favor of the holder,
is in conformity with a state law and usage as declared by the highest
court of the State in which the judgment is rendered, the judgement may
be collaterally impeached upon the ground that the party in whose behalf
it was rendered was not in fact the holder.\16\ But a consent decree,
which under the law of the State has the same force and effect as a
decree in invitum, must be given the same effect in the courts of
another State.\17\
\14\Board of Public Works v. Columbia College, 17 Wall. (84
U.S.) 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883).
\15\Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also
Texas & Pac. Ry. Co. v. Southern Pacific Co., 137 U.S. 48 (1890).
\16\National Exchange Bank v. Wiley, 195 U.S. 257, 265 (1904).
See also Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890).
\17\Harding v. Harding, 198 U.S. 317 (1905).
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Subsequent to its departure from Hampton v. McConnell,\18\ the
Court does not appear to have formulated, by way of substitution, any
clear-cut principles for disposing of the contention that a State need
not provide a forum for a particular type of judgment of a sister State.
Thus, in one case it held that a New York statute forbidding foreign
corporations doing a domestic business to sue on causes originating
outside the State was constitutionally applicable to prevent such a
corporation from suing on a judgment obtained in a sister State.\19\ But
in a later case it ruled that a Mississippi statute forbidding contracts
in cotton futures could not validly close the courts of the State to an
action on a judgment obtained in a sister State on such a contract,
although the contract in question had been entered into in the forum
State and between its citizens.\20\
\18\3 Wheat. (16 U.S.) 234 (1818).
\19\Anglo-Am. Prov. Co. v. Davis Prov. Co., No. 1, 191 U.S. 373
(1903).
\20\Fauntleroy v. Lum, 210 U.S. 230 (1908). Justice Holmes who
spoke for the Court in both cases, asserted in his opinion in the latter
that the New York statute was ``directed to jurisdiction,'' the
Mississippi statute to ``merits,'' but four Justices could not grasp the
distinction.
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Following the later rather than the earlier precedent,
subsequent cases\21\ have held: (1) that a State may adopt such system
of courts and form of remedy as it sees fit but cannot, under the guise
of merely affecting the remedy, deny enforcement of claims otherwise
within the protection of the full faith and credit clause when its
courts have general jurisdiction of the subject matter and the
parties;\22\ (2) that, accordingly, a forum State, which has a shorter
period of limitations than the State in which a judgment was granted and
later revived, erred in concluding that, whatever the effect of the
revivor under the law of the State of origin, it could refuse
enforcement of the revived judgment;\23\ (3) that the courts of one
State have no jurisdiction to enjoin the enforcement of judgments at law
obtained in another State, when the same reasons assigned for granting
the restraining order were passed upon on a motion for new trial in the
action at law and the motion denied;\24\ (4) that the constitutional
mandate requires credit to be given to a money judgment rendered in a
civil cause of action in another State, even though the forum State
would have been under no duty to entertain the suit on which the
judgment was founded, inasmuch as a State cannot, by the adoption of a
particular rule of liability or of procedure, exclude from its courts a
suit on a judgment;\25\ and (5) that, similarly, tort claimants in State
A, who obtain a judgment against a foreign insurance company,
notwithstanding that, prior to judgment, domiciliary State B appointed a
liquidator for the company, vested company assets in him, and ordered
suits against the company stayed, are entitled to have such judgment
recognized in State B for purposes of determining the amount of the
claim, although not for determination of what priority, if any, their
claim should have.\26\
\21\Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases
there cited. Holmes again spoke for the Court. See also Cook, ``The
Powers of Congress under the Full Faith and Credit Clause,'' 28 Yale
L.J. 421, 434 (1919).
\22\Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes
v. Fetter, 341 U.S. 609 (1951).
\23\Union National Bank v. Lamb, 337 U.S. 38 (1949); see also
Roche v. McDonald, 275 U.S. 449 (1928).
\24\Embry v. Palmer, 107 U.S. 3, 13 (1883).
\25\Titus v. Wallick, 306 U.S. 282, 291-292 (1939).
\26\Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no
apparent reason why Congress, acting on the implications of Marshall's
words in Hampton v. McConnell, 3 Wheat. (16 U.S.) 234 (1818), should not
clothe extrastate judgments of any particular type with the full status
of domestic judgments of the same type in the several States. Thus, why
should not a judgment for alimony be made directly enforceable in sister
States instead of merely furnishing the basis of an action in debt?
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Jurisdiction: A Prerequisite to Enforcement of Judgments
The jurisdictional question arises both in connection with
judgments in personam against nonresident defendants to whom it is
alleged personal service was not obtained in the State originating the
judgment and in relation to judgments in rem against property or a
status alleged not to have been within the jurisdiction of the court
which handed down the original decree.\27\ Records and proceedings of
courts wanting jurisdiction are not entitled to credit.\28\
\27\Cooper v. Reynolds, 10 Wall. (77 U.S.) 308 (1870); Western
Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961). Full faith and
credit extends to the issue of the original court's jurisdiction, when
the second court's inquiry discloses that the question of jurisdiction
had been fully and fairly litigated and finally decided in the court
which rendered the original judgment. Durfee v. Duke, 375 U.S. 106
(1963); Underwriters Natl. Assur. Co. v. North Carolina Life & Accident
& Health Ins. Guar. Assn., 455 U.S. 691 (1982).
\28\Board of Public Works v. Columbia College, 17 Wall. (84
U.S.) 521, 528 (1873). See also Wisconsin v. Pelican Ins. Co., 127 U.S.
265, 291 (1888); Huntington v. Attrill, 146 U.S. 657, 685 (1892); Brown
v. Fletcher's Estate, 210 U.S. 82 (1908); Bigelow v. Old Dominion Copper
Co., 225 U.S. 111 (1912); Spokane Inland R.R. v. Whitley, 237 U.S. 487
(1915). However, a denial of credit, founded upon a mere suggestion of
want of jurisdiction and unsupported by evidence, violates the clause.
Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford,
238 U.S. 503 (1915).
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Judgments in Personam.--When the subject matter of a suit is
merely the defendant's liability, it is necessary that it should appear
from the record that the defendant has been brought within the
jurisdiction of the court by personal service of process, or by his
voluntary appearance, or that he had in some manner authorized the
proceeding.\29\ Thus, when a state court endeavored to acquire
jurisdiction of a nonresident defendant by an attachment of his property
within the State and constructive notice to him, its judgment was
defective for want of jurisdiction and hence could not afford the basis
of an action against the defendant in the court of another State,
although it bound him so far as the property attached by virtue of the
inherent right of a State to assist its own citizens in obtaining
satisfaction of their just claims.\30\
\29\Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287
(1890). See also Galpin v. Page, 18 Wall. (85 U.S.) 350 (1874); Old
Wayne Life Ass'n v. McDonough, 204 U.S. 8 (1907); Brown v. Fletcher's
Estate, 210 U.S. 82 (1908).
\30\Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a
reformulation of this case's due process foundation, Shaffer v. Heitner,
433 U.S. 186 (1977).
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The fact that a nonresident defendant was only temporarily in
the State when he was served in the original action does not vitiate the
judgment thus obtained and later relied upon as the basis of an action
in his home State.\31\ Also a judgment rendered in the State of his
domicile against a defendant who, pursuant to the stat
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ute thereof providing for the service of process on absent defendants,
was personally served in another State is entitled to full faith and
credit.\32\ When the matter of fact or law on which jurisdiction depends
was not litigated in the original suit, it is a matter to be adjudicated
in the suit founded upon the judgment.\33\
\31\Renaud v. Abbot, 116 U.S. 277 (1886); Jaster v. Currie, 198
U.S. 144 (1905); Reynolds v. Stockton, 140 U.S. 254 (1891).
\32\Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer
case of D'Arcy v. Ketchum, 1 How. (52 U.S.) 165 (1851), the question
presented was whether a judgment rendered by a New York court, under a
statute which provided that, when joint debtors were sued and one of
them was brought into court on a process, a judgment in favor of the
plaintiff would entitle him to execute against all, must be accorded
full faith and credit in Louisiana when offered as a basis of an action
in debt against a resident of that State who had not been served by
process in the New York action. The Court ruled that the original
implementing statute, 1 Stat. 122 (1790), did not reach this type of
case, and hence the New York judgment was not enforceable in Louisiana
against defendant. Had the Louisiana defendant thereafter ventured to
New York, however, he could, as the Constitution then stood, have been
subjected to the judgment to the same extent as the New York defendant
who had been personally served. Subsequently, the disparity between
operation of personal judgment in the home State has been eliminated,
because of the adoption of the Fourteenth Amendment. In divorce cases,
however, it still persists in some measure. See infra.
\33\Adam v. Saenger, 303 U.S. 59, 62 (1938).
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Inasmuch as the principle of res judicata applies only to
proceedings between the same parties and privies, the plea by defendant
in an action based on a judgment that he was not party or privy to the
original action raises the question of jurisdiction; while a judgment
against a corporation in one State may validly bind a stockholder in
another State to the extent of the par value of his holdings,\34\ an
administrator acting under a grant of administration in one State stands
in no sort of relation of privity to an administrator of the same estate
in another State.\35\ But where a judgment of dismissal was entered in a
federal court in an action against one of two joint tortfeasors, in a
State in which such a judgment would constitute an estoppel in another
action in the same State against the other tortfeasor, such judgment is
not entitled to full faith and credit in an action brought against the
tortfeasor in another State.\36\
\34\Hancock Nat. Bank v. Farnum, 176 U.S. 640 (1900).
\35\Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848).
\36\Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912).
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Service on Foreign Corporations.--In 1856, the Court decided
Lafayette Ins. Co. v. French,\37\ a pioneer case in its general class.
Here it was held that ``where a corporation chartered by the State of
Indiana was allowed by a law of Ohio to transact business in the latter
State upon the condition that service of process upon the agent of the
corporation should be considered as service upon the corporation itself,
a judgment obtained against the corporation by means of such process''
ought to receive in Indiana the same
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faith and credit as it was entitled to in Ohio.\38\ Later cases
establish under both the Fourteenth Amendment and Article IV, Sec. 1,
that the cause of action must have arisen within the State obtaining
service in this way,\39\ that service on an officer of a corporation,
not its resident agent and not present in the State in an official
capacity, will not confer jurisdiction over the corporation,\40\ that
the question whether the corporation was actually ``doing business'' in
the State may be raised.\41\ On the other hand, the fact that the
business was interstate is no objection.\42\
\37\18 How. (59 U.S.) 404 (1856).
\38\To the same effect is Connecticut Mutual Life Ins. Co. v.
Spratley, 172 U.S. 602 (1899).
\39\Simon v. Southern Railway, 236 U.S. 115 (1915).
\40\Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills
v. Menfee, 237 U.S. 189 (1915).
\41\International Harvester v. Kentucky, 234 U.S. 579 (1914).
Riverside Mills v. Menefee, 237 U.S. 189 (1915).
\42\International Harvester v. Kentucky, 234 U.S. 579 (1914).
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Service on Nonresident Motor Vehicle Owners.--By analogy to the
above cases, it has been held that a State may require nonresident
owners of motor vehicles to designate an official within the State as an
agent upon whom process may be served in any legal proceedings growing
out of their operation of a motor vehicle within the State.\43\ While
these cases arose under the Fourteenth Amendment alone, unquestionably a
judgment validly obtained upon this species of service could be enforced
upon the owner of a car through the courts of his home State.
\43\Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski,
274 U.S. 352 (1927), limited in Wuchter v. Pizzutti, 276 U.S. 13 (1928).
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Judgments in Rem.--In sustaining the challenge to jurisdiction
in cases involving judgments in personam, the Court in the main was
making only a somewhat more extended application of recognized
principles. In order to sustain the same kind of challenge in cases
involving judgments in rem it has had to make law outright. The leading
case is Thompson v. Whitman.\44\ Thompson, sheriff of Monmouth County,
New Jersey, acting under a New Jersey statute, had seized a sloop
belonging to Whitman and by a proceeding in rem had obtained its
condemnation and forfeiture in a local court. Later, Whitman, a citizen
of New York, brought an action for trespass against Thompson in the
United States Circuit Court for the Southern District of New York, and
Thompson answered by producing a record of the proceedings before the
New Jersey tribunal. Whitman thereupon set up the contention that the
New Jersey court had acted without jurisdiction, inasmuch as the sloop
which was the subject matter of the proceedings had been
[[Page 840]]
seized outside the county to which, by the statute under which it had
acted, its jurisdiction was confined.
\44\18 Wall. (85 U.S.) 457 (1874).
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As previously explained, the plea of lack of privity cannot be
set up in defense in a sister State against a judgment in rem. In a
proceeding in rem, however, the presence of the res within the court's
jurisdiction is a prerequisite, and this, it was urged, had not been the
case in Thompson v. Whitman. Could, then, the Court consider this
challenge with respect to a judgment which was offered, not as the basis
for an action for enforcement through the courts of a sister State but
merely as a defense in a collateral action? As the law stood in 1873, it
apparently could not.\45\ All difficulties, nevertheless, to its
consideration of the challenge to jurisdiction in the case were brushed
aside by the Court. Whenever, it said, the record of a judgment rendered
in a state court is offered ``in evidence'' by either of the parties to
an action in another State, it may be contradicted as to the facts
necessary to sustain the former court's jurisdiction; ``and if it be
shown that such facts did not exist, the record will be a nullity,
notwithstanding the claim that they did exist.''\46\
\45\1 H. Black, A Treatise on the Law of Judgments (St Paul:
1891), Sec. 246.
\46\See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other
words, the challenge to jurisdiction is treated as equivalent to the
plea nul tiel record, a plea which was recognized even in Mills v.
Duryee as available against an attempted invocation of the full faith
and credit clause. What is not pointed out by the Court is that it was
also assumed in the earlier case that such a plea could always be
rebutted by producing a transcript, properly authenticated in accordance
with the act of Congress, of the judgment in the original case. See also
Brown v. Fletcher's Estate, 210, U.S. 82 (1908); German Savings Society
v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v.
Radcliffe, 137 U.S. 287, 294 (1890).
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Divorce Decrees: Domicile as the Jurisdictional Prerequisite
This, however, was only the beginning of the Court's lawmaking
in cases in rem. The most important class of such cases is that in which
the respondent to a suit for divorce offers in defense an earlier decree
from the courts of a sister State. By the almost universally accepted
view prior to 1906, a proceeding in divorce was one against the marriage
status, i.e., in rem, and hence might be validly brought by either party
in any State where he or she was bona fide domiciled;\47\ and,
conversely, when the plaintiff did not have a bona fide domicile in the
State, a court could not render a decree binding in other States even if
the nonresident defendant entered a personal appearance.\48\
\47\Cheever v. Wilson, 9 Wall. (76 U.S.) 108 (1870).
\48\Andrews v. Andrews, 188 U.S. 14 (1903). See also German
Savings Society v. Dormitzer, 192 U.S. 125 (1904).
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[[Page 841]]
Divorce Suit: In Rem or in Personam; Judicial Indecision.--In
1906, however, by a vote of five to four, the Court departed from its
earlier ruling, rendered five years previously in Atherton v.
Atherton,\49\ and in Haddock v. Haddock,\50\ it announced that a divorce
proceeding might be viewed as one in personam. In the former it was
held, in the latter denied, that a divorce granted a husband without
personal service upon the wife, who at the time was residing in another
State, was entitled to recognition under the full faith and credit
clause and the acts of Congress; the difference between the cases
consisted solely in the fact that in the Atherton case the husband had
driven the wife from their joint home by his conduct, while in the
Haddock case he had deserted her. The court which granted the divorce in
Atherton v. Atherton was held to have had jurisdiction of the marriage
status, with the result that the proceeding was one in rem and hence
required only service by publication upon the respondent. Haddock's
suit, on the contrary, was held to be as to the wife in personam and so
to require personal service upon her or her voluntary appearance,
neither of which had been had; although, notwithstanding this, the
decree in the latter case was held to be valid in the State where
obtained because of the State's inherent power to determine the status
of its own citizens. The upshot was a situation in which a man and a
woman, when both were in Connecticut, were divorced; when both were in
New York, were married; and when the one was in Connecticut and the
other in New York, the former was divorced and the latter married. In
Atherton v. Atherton the Court had earlier acknowledged that ``a husband
without a wife, or a wife without a husband, is unknown to the law.''
\49\181 U.S. 155, 162 (1901).
\50\201 U.S. 562 (1906).
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The practical difficulties and distresses likely to result from
such anomalies were pointed out by critics of the decision at the time.
In point of fact, they have been largely avoided, because most of the
state courts have continued to give judicial recognition and full faith
and credit to one another's divorce proceedings on the basis of the
older idea that a divorce proceeding is one in rem, and that if the
applicant is bona fide domiciled in the State the court has jurisdiction
in this respect. Moreover, until the second of the Williams v. North
Carolina cases\51\ was decided in 1945, there had not been manifested
the slightest disposition to challenge judicially the power of the
States to determine what shall constitute domicile for divorce purposes.
Shortly prior thereto, the Court in Davis v.
[[Page 842]]
Davis\52\ rejected contentions adverse to the validity of a Virginia
decree of which enforcement was sought in the District of Columbia. In
this case, a husband, after having obtained in the District a decree of
separation subject to payment of alimony, established years later a
residence in Virginia and sued there for a divorce. Personally served in
the District, where she continued to reside, the wife filed a plea
denying that her husband was a resident of Virginia and averred that he
was guilty of a fraud on the court in seeking to establish a residence
for purposes of jurisdiction. In ruling that the Virginia decree,
granting to the husband an absolute divorce minus any alimony payment,
was enforceable in the District, the Court stated that in view of the
wife's failure, while in Virginia litigating her husband's status to
sue, to answer the husband's charges of willful desertion, it would be
unreasonable to hold that the husband's domicile in Virginia was not
sufficient to entitle him to a divorce effective in the District. The
finding of the Virginia court on domicile and jurisdiction was declared
to bind the wife. Davis v. Davis is distinguishable from the Williams v.
North Carolina decisions in that in the former determination of the
jurisdictional prerequisite of domicile was made in a contested
proceeding while in the Williams cases it was not.
\51\317 U.S. 287 (1942); 325 U.S. 226 (1945).
\52\305 U.S. 32 (1938).
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Williams I and Williams II.--In the Williams I and Williams II
cases, the husband of one marriage and the wife of another left North
Carolina, obtained six-week divorce decrees in Nevada, married there,
and resumed their residence in North Carolina where both previously had
been married and domiciled. Prosecuted for bigamy, the defendants relied
upon their Nevada decrees and won the preliminary round of this
litigation, that is, in Williams I,\53\ when a majority of the Justices,
overruling Haddock v. Haddock, declaring that in this case, the Court
must assume that the petitioners for divorce had a bona fide domicile in
Nevada and not that their Nevada domicile was a sham. ``[E]ach State, by
virtue of its command over the domiciliaries and its large interest in
the institution of marriage, can alter within its own borders the
marriage status of the spouse domiciled there, even though the other
spouse is absent. There is no constitutional barrier if the form and
nature of substituted service meet the requirements of due process.''
Accordingly, a decree granted by Nevada to one, who, it is assumed, is
at the time bona fide domiciled therein, is binding upon the courts of
other States, including North Carolina in which the marriage was
performed and where the other party to the marriage is still domiciled
when the divorce was decreed. In view of its as
[[Page 843]]
sumptions, which it justified on the basis of an inadequate record, the
Court did not here pass upon the question whether North Carolina had the
power to refuse full faith and credit to a Nevada decree because it was
based on residence rather than domicile or because, contrary to the
findings of the Nevada court, North Carolina found that no bona fide
domicile had been acquired in Nevada.\54\
\53\317 U.S. 287, 298-299 (1942).
\54\Id., 302.
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Presaging what ruling the Court would make when it did get
around to passing upon the latter question, Justice Jackson, dissenting
in Williams I, protested that ``this decision repeals the divorce laws
of all the States and substitutes the law of Nevada as to all marriages
one of the parties to which can afford a short trip there. . . . While a
State can no doubt set up its own standards of domicile as to its
internal concerns, I do not think it can require us to accept and in the
name of the Constitution impose them on other States. . . . The effect
of the Court's decision today--that we must give extra-territorial
effect to any judgment that a state honors for its own purposes--is to
deprive this Court of control over the operation of the full faith and
credit and the due process clauses of the Federal Constitution in cases
of contested jurisdiction and to vest it in the first State to pass on
the facts necessary to jurisdiction.''\55\
\55\Id., 311.
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Notwithstanding that one of the deserted spouses had died since
the initial trial and that another had remarried, North Carolina,
without calling into question the status of the latter marriage, began a
new prosecution for bigamy; when the defendants appealed the conviction
resulting therefrom, the Supreme Court, in Williams II,\56\ sustained
the adjudication of guilt as not denying full faith and credit to the
Nevada divorce decree. Reiterating the doctrine that jurisdiction to
grant divorce is founded on domicile,\57\ a majority of the Court held
that a decree of divorce rendered in one State may be collaterally
impeached in another by proof that the court which rendered the decree
lacked jurisdiction (the parties not having been domiciled therein),
even though the record of proceedings in that court purports to show
jurisdiction.\58\
\56\325 U.S. 226, 229 (1945).
\57\Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188
U.S. 14 (1903).
\58\Strong dissents were filed which have influenced subsequent
holdings. Among these was that of Justice Rutledge which attacked both
the consequences of the decision as well as the concept of
jurisdictional domicile on which it was founded.
``Unless `matrimonial domicil,' banished in Williams I [by the
overruling of Haddock v. Haddock ], has returned renamed [`domicil of
origin'] in Williams II, every decree becomes vulnerable in every State.
Every divorce, wherever granted . . . may now be reexamined by every
other State, upon the same or different evidence, to redetermine the
`jurisdiction fact,' always the ultimate conclusion of `domicil.' . . .
``The Constitution does not mention domicil. Nowhere does it
posit the powers of the states or the nation upon that amorphous, highly
variable common law conception. . . . No legal conception, save possibly
`jurisdiction' . . . afford such possibilities for uncertain
application. . . . Apart from the necessity for travel, [to effect a
change of domicile, the latter], criterion comes down to a purely
subjective mental state, related to remaining for a length of time never
yet defined with clarity. . . . When what must be proved is a variable,
the proof and the conclusion which follows upon it inevitably take on
that character. . . . [The majority have not held] that denial of credit
will be allowed, only if the evidence [as to the place of domicile] is
different or depending in any way upon the character or the weight of
the difference. The test is not different evidence. It is evidence,
whether the same or different and, if different, without regard to the
quality of the difference, from which an opposing set of inferences can
be drawn by the trier of fact `not unreasonably.' . . . But . . . [the
Court] does not define `not unreasonably.' It vaguely suggests a
supervisory function, to be exercised when the denial [of credit]
strikes its sensibilities as wrong, by some not stated standard. . . .
There will be no `weighing' [of evidence], . . . only examination for
sufficiency.'' 325 U.S., 248, 251, 255, 258-259.
No less disposed to prophesy undesirable results from this
decision was Justice Black in whose dissenting opinion Justice Douglas
concurred.
``The full faith and credit clause, as now interpreted, has
become a disrupting influence. The Court in effect states that the
clause does not apply to divorce actions, and that States alone have the
right to determine what effect shall be given to the decrees of other
States. If the Court is abandoning the principle that a marriage [valid
where made is valid everywhere], a consequence is to subject people to
bigamy or adultery prosecutions because they exercise their
constitutional right to pass from a State in which they were validly
married on to another which refuses to recognize their marriage. Such a
consequence violates basic guarantees.'' Id., 262.
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[[Page 844]]
Cases Following Williams II.--Fears registered by the dissenters
in the second Williams case that the stability of all divorces might be
undermined thereby and that thereafter the court of each forum State, by
its own independent determination of domicile, might refuse recognition
of foreign decrees were temporarily set at rest by the holding in
Sherrer v. Sherrer,\59\ wherein Massachusetts, a State of domiciliary
origin, was required to accord full faith and credit to a 90-day Florida
decree which had been contested by the husband. The latter, upon
receiving notice by mail, retained Florida counsel who entered a general
appearance and denied all allegations in the complaint, including the
wife's residence. At the hearing, the husband, though present in person
and by counsel, did not offer evidence in rebuttal of the wife's proof
of her Florida residence, and when the Florida court ruled that she was
a bona fide resident, the husband did not appeal. Inasmuch as the
findings of the requisite jurisdictional facts, unlike those in the
second Williams case, were made in proceedings in which the defendant
appeared and participated, the requirements of full faith and credit
were held to bar him from collaterally attacking such findings in a suit
instituted by him in his home State of Massachusetts, particularly in
the absence of proof that the divorce decree was subject to such
collateral attack in a Florida court. Having failed to take advantage of
the opportunities afforded him by his appearance in
[[Page 845]]
the Florida proceeding, the husband was thereafter precluded from
relitigating in another State the issue of his wife's domicile already
passed upon by the Florida court.
\59\334 U.S. 343 (1948).
---------------------------------------------------------------------------
In Coe v. Coe,\60\ embracing a similar set of facts, the Court
applied like reasoning to reach a similar result. Massachusetts again
was compelled to recognize the validity of a six-week Nevada decree
obtained by a husband who had left Massachusetts after a court of that
State had refused him a divorce and had granted his wife separate
support. In the Nevada proceeding, the wife appeared personally and by
counsel filed a cross-complaint for divorce, admitted the husband's
residence, and participated personally in the proceedings. After finding
that it had jurisdiction of the plaintiff, defendant, and the subject
matter involved, the Nevada court granted the wife a divorce, which was
valid, final, and not subject to collateral attack under Nevada law. The
husband married again, and on his return to Massachusetts, his ex-wife
petitioned the Massachusetts court to adjudge him in contempt for
failing to make payments for her separate support under the earlier
Massachusetts decree. Inasmuch as there was no intimation that under
Massachusetts law a decree of separate support would survive a divorce,
recognition of the Nevada decree as valid accordingly necessitated a
rejection of the ex-wife's contention.
\60\334 U.S. 378 (1948). In a dissenting opinion filed in the
case of Sherrer v. Sherrer, but applicable also to the case of Coe v.
Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his
inability to accept the proposition advanced by the majority that
``regardless of how overwhelming the evidence may have been that the
asserted domicile in the State offering bargain-counter divorces was a
sham, the home State of the parties is not permitted to question the
matter if the form of a controversy had been gone through.'' 334 U.S.,
343, 377.
---------------------------------------------------------------------------
Appearing to review Williams II, and significant for the social
consequences produced by the result decreed therein, is the case of Rice
v. Rice.\61\ To determine the widowhood status of the party litigants in
relation to inheritance of property of a husband who had deserted his
first wife in Connecticut, had obtained an ex parte divorce in Nevada,
and after remarriage, had died without ever returning to Connecticut,
the first wife, joining the second wife and
[[Page 846]]
the administrator of his estate as defendants, petitioned a Connecticut
court for a declaratory judgment. After having placed upon the first
wife the burden of proving that the decedent had not acquired a bona
fide domicile in Nevada, and after giving proper weight to the claims of
power by the Nevada court, the Connecticut court concluded that the
evidence sustained the contentions of the first wife, and in so doing,
it was upheld by the Supreme Court. The cases of Sherrer v. Sherrer, and
Coe v. Coe, previously discussed, were declared not to be in point,
inasmuch as no personal service was made upon the first wife, nor did
she in any way participate in the Nevada proceedings. She was not,
therefore, precluded from challenging the findings of the Nevada court
that the decedent was, at the time of the divorce, domiciled in that
State.\62\
\61\336 U.S. 674 (1949). Of four justices dissenting, Black,
Douglas, Rutledge, and Jackson, Justice Jackson alone filed a written
opinion. To him the decision was ``an example of the manner in which, in
the law of domestic relations, `confusion now hath made his
masterpiece,' but for the first Williams case and its progeny, the
judgment of the Connecticut court might properly have held that the Rice
divorce decree was void for every purpose because it was rendered by a
State court which never obtained jurisdiction of the nonresident
defendant. But if we adhere to the holdings that the Nevada court had
power over her for the purpose of blasting her marriage and opening the
way to a successor, I do not see the justice of inventing a compensating
confusion in the device of divisible divorce by which the parties are
half-bound and half-free and which permits Rice to have a wife who
cannot become his widow and to leave a widow who was no longer his
wife.'' Id., 676, 679, 680.
\62\Vermont violated the clause in sustaining a collateral
attack on a Florida divorce decree, the presumption of Florida's
jurisdiction over the cause and the parties not having been overcome by
extrinsic evidence or the record of the case. Cook v. Cook, 342 U.S. 126
(1951) The Sherrer and Coe cases were relied upon. There seems,
therefore, to be no doubt of their continued vitality.
A Florida divorce decree was also at the bottom of another case
in which the daughter of a divorced man by his first wife and his
legatee under his will sought to attack his divorce in the New York
courts and thereby indirectly his third marriage. The Court held that
inasmuch as the attack would not have been permitted in Florida under
the doctrine of res judicata, it was not permissible under the full
faith and credit clause in New York. On the whole, it appears that the
principle of res judicata is slowly winning out against the principle of
domicile. Johnson v. Muelberger, 340 U.S. 581 (1951).
---------------------------------------------------------------------------
Claims for Alimony or Property in Forum State.--In Esenwein v.
Commonwealth,\63\ decided on the same day as the second Williams case,
the Supreme Court also sustained a Pennsylvania court in its refusal to
recognize an ex parte Nevada decree on the ground that the husband who
obtained it never acquired a bona fide domicile in the latter State. In
this instance, the husband and wife had separated in Pennsylvania, where
the wife was granted a support order; after two unsuccessful attempts to
win a divorce in that State, the husband departed for Nevada. Upon the
receipt of a Nevada decree, the husband thereafter established a
residence in Ohio and filed an action in Pennsylvania for total relief
from the support order. In a concurring opinion, in which he was joined
by Justices Black and Rutledge, Justice Douglas stressed the ``basic
difference between the problem of marital capacity and the problem of
support,'' and stated that it was ``not apparent that the spouse who
obtained the decree can defeat an action for maintenance or support in
another State by showing that he was domiciled in the State which
awarded him the divorce decree,'' unless the other spouse appeared or
was personally served. ``The State where the deserted wife is domiciled
has a concern in the welfare
[[Page 847]]
of the family deserted by the head of the household. If he is required
to support his former wife, he is not made a bigamist and the offspring
of his second marriage are not bastardized.'' Or, as succinctly stated
by Justice Rutledge, ``the jurisdictional foundation for a decree in one
State capable of foreclosing an action for maintenance or support in
another may be different from that required to alter the marital status
with extraterritorial effect.''\64\
\63\325 U.S. 279 (1945).
\64\Id., 281-283.
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Three years later, but on this occasion as spokesman for a
majority of the Court, Justice Douglas reiterated these views in the
case of Estin v. Estin.\65\ Even though it acknowledged the validity of
an ex parte Nevada decree obtained by a husband, New York was held not
to have denied full faith and credit to the decree when, subsequently
thereto, it granted the wife a judgment for arrears in alimony founded
upon a decree of separation previously awarded to her when both she and
her husband after he had resided there a year and upon constructive
notice to the wife in New York who entered no appearance, was held to be
effective only to change the marital status of both parties in all
States of the Union but ineffective on the issue of alimony. Divorce, in
other words, was viewed as being divisible; Nevada, in the absence of
acquiring jurisdiction over the wife, was held incapable of adjudicating
the rights of the wife in the prior New York judgment awarding her
alimony. Accordingly, the Nevada decree could not prevent New York from
applying its own rule of law which, unlike that of Pennsylvania,\66\
does permit a support order to survive a divorce decree.\67\
\65\334 U.S. 541 (1948). See also the companion case of Kreiger
v. Kreiger, 334 U.S. 555 (1948).
\66\Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).
\67\Because the record, in his opinion, did not make it clear
whether New York ``law'' held that no `` ex parte'' divorce decree could
terminate a prior New York separate maintenance decree, or merely that
no `` ex parte'' decree of divorce of another State could, Justice
Frankfurter dissented and recommended that the case be remanded for
clarification. Justice Jackson dissented on the ground that under New
York law, a New York divorce would terminate the wife's right to
alimony, and if the Nevada decree is good, it was entitled to no less
effect in New York than a local decree. However, for reasons stated in
his dissent in the first Williams case, 317 U.S. 287, he would have
preferred not to give standing to constructive service divorces obtained
on short residence. 334 U.S. 541, 549-554 (1948). These two Justices
filed similar dissents in the companion case of Kreiger v. Kreiger, 334
U.S. 555, 557 (1948).
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Such a result was justified as accommodating the interests of
both New York and Nevada in the broken marriage by restricting each
State to matters of her dominant concern, the concern of New York being
that of protecting the abandoned wife against impoverishment. In Simons
v. Miami National Bank,\68\ the Court held that
[[Page 848]]
a dower right in the deceased husband's estate is extinguished even
though a divorce decree was obtained in a proceeding in which the
nonresident wife was served by publication only and did not make a
personal appearance.\69\ The Court found the principle of Estin v.
Estin\70\ was not applicable. In Simons, the Court rejected the
contention that the forum court, in giving recognition to the foreign
court's separation decree providing for maintenance and support, has to
allow for dower rights in the deceased husband's estate in the forum
State.\71\ Full faith and credit is not denied to a sister State's
separation decree, including an award of monthly alimony, where nothing
in the foreign State's separation decree could be construed as creating
or preserving any interest in the nature of or in lieu of dower in any
property of the decedent, wherever located and where the law of the
forum State did not treat such a decree as having such effect nor
indicate such an effect irrespective of the existence of the foreign
State's decree.\72\
\68\381 U.S. 81 (1965).
\69\Id., 84-85.
\70\334 U.S. 541 (1948).
\71\381 U.S., 84-85.
\72\Id., 85.
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Decrees Awarding Alimony, Custody of Children.--Resulting as a
by-product of divorce litigation are decrees for the payment of alimony,
judgments for accrued and unpaid installments of alimony, and judicial
awards of the custody of children, all of which necessitate application
of the full faith and credit clause when extrastate enforcement is
sought for them. Thus, a judgment in State A for alimony in arrears and
payable under a prior judgment of separation which is not by its terms
conditional nor subject by the law of State A to modification or recall,
and on which execution was directed to issue, is entitled to recognition
in the forum State. Although an obligation for accrued alimony could
have been modified or set aside in State A prior to its merger in the
judgment, such a judgment, by the law of State A, is not lacking in
finality.\73\ As to the finality of alimony decrees in general, the
Court had previously ruled that where such a decree is rendered, payable
in future installments, the right to such installments becomes absolute
and vested on becoming due, provided no modification of the decree has
been made prior to the maturity of the installments.\74\ However, a
judicial order requiring the payment of arrearages in alimony, which
exceeded the alimony previously decreed, is invalid for want of due
process, the respondent having been given no oppor
[[Page 849]]
tunity to contest it.\75\ ``A judgment obtained in violation of
procedural due process,'' said Chief Justice Stone, ``is not entitled to
full faith and credit when sued upon in another jurisdiction.''\76\
\73\Barber v. Barber, 323 U.S. 77, 84 (1944).
\74\Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber
v. Barber, 21 How. (62 U.S.) 582 (1859); Lynde v. Lynde, 181 U.S. 183,
186-187 (1901); Audubon v. Shufeldt, 181 U.S. 575, 577 (1901); Bates v.
Bodie, 245 U.S. 520 (1918); Yarborough v. Yarborough, 290 U.S. 202
(1933); Loughran v. Loughran, 292 U.S. 216 (1934).
\75\Griffin v. Griffin, 327 U.S. 220 (1946).
\76\Id., 228. An alimony case of a quite extraordinary pattern
was that of Sutton v. Leib. Because of the diverse citizenship of the
parties, who had once been husband and wife, the case was brought by the
latter in a federal court in Illinois. Her suit was to recover unpaid
alimony which was to continue until her remarriage. To be sure, she had,
as she confessed, remarried in Nevada, but the marriage had been
annulled in New York on the ground that the man was already married,
inasmuch as his divorce from his previous wife was null and void, she
having neither entered a personal appearance nor been personally served.
The Court, speaking by Justice Reed, held that the New York annulment of
the Nevada marriage must be given full faith and credit in Illinois but
left Illinois to decide for itself the effect of the annulment upon the
obligations of petitioner's first husband. Sutton v. Leib, 342 U.S. 402
(1952).
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An example of a custody case was one involving a Florida divorce
decree which was granted ex parte to a wife who had left her husband in
New York, where he was served by publication. The decree carried with it
an award of the exclusive custody of the child, whom the day before the
husband had secretly seized and brought back to New York. The Court
ruled that the decree was adequately honored by a New York court when,
in habeas corpus proceedings, it gave the father rights of visitation
and custody of the child during stated periods and exacted a surety bond
of the wife conditioned on her delivery of the child to the father at
the proper times,\77\ it having not been ``shown that the New York court
in modifying the Florida decree exceeded the limits permitted under
Florida laws. There is therefore a failure of proof that the Florida
decree received less credit in New York than it had in Florida.''
\77\Halvey v. Halvey, 330 U.S. 610, 615 (1947).
---------------------------------------------------------------------------
Answering a question left open in the preceding holding as to
the binding effect of the ex parte award, the Court more recently
acknowledged that in a proceeding challenging a mother's right to retain
custody of her children, a State is not required to give effect to the
decree of another State's court, which never acquired personal
jurisdiction over the mother of her children, and which awarded custody
to the father as the result of an ex parte divorce action instituted by
him.\78\ In Kovacs v. Brewer,\79\ however, the Court indicated that a
finding of changed circumstances rendering observance of an absentee
foreign custody decree inimical to the
[[Page 850]]
best interests of the child is essential to sustain the validity of the
forum court's refusal to enforce a foreign decree, rendered with
jurisdiction over all the parties but the child, and revising an initial
decree by transferring custody from the paternal grandfather to the
mother. However, when, as is true in Virginia, agreements by parents as
to shared custody of a child do not bind the State's courts, the
dismissal by a Virginia court of a habeas corpus petition instituted by
a father to obtain custody was not res judicata in that State; therefore
even if the full faith and credit clause were applicable to child
custody decrees, it would not require a South Carolina court, in a
custody suit instituted by the wife, to recognize a court order not
binding in Virginia.\80\
\78\May v. Anderson, 345 U.S. 528 (1953). Justices Jackson,
Reed, and Minton dissented.
\79\356 U.S. 604 (1958). Rejecting the implication that
recognition must be accorded unless the circumstances have changed,
Justice Frankfurter dissented on the ground that in determining what is
best for the welfare of the child, the forum court cannot be bound by an
absentee, foreign custody decree, ``irrespective of whether changes in
circumstances are objectively provable.''
\80\Ford v. Ford, 371 U.S. 187, 192-194 (1962). As part of a law
dealing with parental kidnapping, Congress, in P.L. 96-611, 8(a), 94
Stat. 3569, 28 U.S.C. Sec. 1738A, required States to give full faith and
credit to state court custody decrees provided the original court had
jurisdiction and is the home State of the child.
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Status of the Law.--Upon summation, one may speculate as to
whether the doctrine of divisible divorce, as developed by Justice
Douglas in Estin v. Estin,\81\ has not become the prevailing standard
for determining the enforceability of foreign divorce decrees. If such
be the case, it may be tenable to assert that an ex parte divorce,
founded upon acquisition of domicile by one spouse in the State which
granted it, is as effective to destroy the marital status of both
parties in the State of domiciliary origin and probably in all other
States and therefore to preclude subsequent prosecutions for bigamy but
not to alter rights as to property, alimony, or custody of children in
the State of domiciliary origin of a spouse who neither was served nor
appeared personally.
\81\334 U.S. 541 (1948).
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In any event the accuracy of these conclusions has not been
impaired by any decision rendered by the Court since 1948. Thus, in
Armstrong v. Armstrong,\82\ an ex parte divorce decree obtained by the
husband in Florida was deemed to have been adequately recognized by an
Ohio court when, with both of the parties before it, it disposed of the
wife's suit for divorce and alimony with a decree limited solely to an
award of alimony.\83\ Similarly, a New York court was held not bound by
an ex parte Nevada divorce decree, rendered without personal
jurisdiction over the wife, to the extent that it relieved the husband
of all marital obligations, and in an ex parte action for separation and
alimony instituted by the wife,
[[Page 851]]
it was competent to sequester the husband's property in New York to
satisfy his obligations to the wife.\84\
\82\350 U.S. 568 (1956).
\83\Four Justices, Black, Douglas, Clark, and Chief Justice
Warren, disputed the Court's contention that the Florida decree
contained no ruling on the wife's entitlement to alimony and mentioned
that for want of personal jurisdiction over the wife, the Florida court
was not competent to dispose of that issue. Id., 575
\84\Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices
dissented. Justice Frankfurter was unable to perceive ``why dissolution
of the marital relation is not so personal as to require personal
jurisdiction over the absent spouse, while the denial of alimony . . .
is.'' Justice Harlan maintained that inasmuch as the wife did not become
a domiciliary of New York until after the Nevada decree, she had no pre-
divorce rights in new York which the latter was obligated to protect.
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Other Types of Decrees
Probate Decrees.--Many judgments, enforcement of which has given
rise to litigation, embrace decrees of courts of probate respecting the
distribution of estates. In order that a court have jurisdiction of such
a proceeding, the decedent must have been domiciled in the state, and
the question whether he was so domiciled at the time of his death may be
raised in the court of a sister State.\85\ Thus, when a court of State
A, in probating a will and issuing letters, in a proceeding to which all
distributees were parties, expressly found that the testator's domicile
at the time of death was in State A, such adjudication of domicile was
held not to bind one subsequently appointed as domiciliary administrator
c.t.a. in State B, in which he was liable to be called upon to deal with
claims of local creditors and that of the State itself for taxes, he
having not been a party to the proceeding in State A. In this situation,
it was held, a court of State C, when disposing of local assets claimed
by both personal representatives, was free to determine domicile in
accordance with the law of State C.\86\
\85\Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232
U.S. 162 (1914).
\86\Riley v. New York Trust Co., 315 U.S. 343 (1942).
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Similarly, there is no such relation of privity between an
executor appointed in one State and an administrator c.t.a. appointed in
another State as will make a decree against the latter binding upon the
former.\87\ On the other hand, judicial proceedings in one State, under
which inheritance taxes have been paid and the administration upon the
estate has been closed, are denied full faith and credit by the action
of a probate court in another State in assuming jurisdiction and
assessing inheritance taxes against the beneficiaries of the estate,
when under the law of the former State the order of the probate court
barring all creditors who had failed to bring in their demand from any
further claim against the executors was binding upon all.\88\
\87\Brown v. Fletcher's Estate, 210 U.S. 82, 90 (1908). See also
Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848); McLean v. Meek, 18
How. (59 U.S.) 16, 18 (1856).
\88\Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v.
Chapman, 119 U.S. 587, 599 (1887), involving a complicated set of facts,
it was held that a judgment in a probate proceeding, which was merely
ancillary to proceedings in another State and which ordered the residue
of the estate to be assigned to the legatee and discharged the executor
from further liability, did not prevent a creditor, who was not a
resident of the State in which the ancillary judgment was rendered, from
setting up his claim in the state probate court which had the primary
administration of the estate.
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[[Page 852]]
What is more important, however, is that the res in such a
proceeding, that is, the estate, in order to entitle the judgment to
recognition under Article IV, 1, must have been located in the State or
legally attached to the person of the decedent. Such a judgment is
accordingly valid, generally speaking, to distribute the intangible
property of the decedent, though the evidences thereof were actually
located elsewhere.\89\ This is not so, on the other hand, as to
tangibles and realty. In order that the judgment of a probate court
distributing these be entitled to recognition under the Constitution,
they must have been located in the State; as to tangibles and realty
outside the State, the decree of the probate court is entirely at the
mercy of the lex rei sitae.\90\ So, the probate of a will in one State,
while conclusive therein, does not displace legal provisions necessary
to its validity as a will of real property in other States.\91\
\89\Blodgett v. Silberman, 277 U.S. 1 (1928).
\90\Kerr v. Moon, 9 Wheat. (22 U.S.) 565 (1824); McCormick v.
Sullivant, 10 Wheat. (23 U.S.) 192 (1825); Clarke v. Clarke, 178 U.S.
186 (1900). The controlling principle of these cases is not confined to
proceedings in probate. A court of equity ``not having jurisdiction of
the res cannot affect it by its decree nor by a deed made by a master in
accordance with the decree.'' Fall v. Eastin, 215 U.S. 1, 11 (1909).
\91\Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also
Darby v. Mayer, 10 Wheat. (23 U.S.) 465 (1825); Gasquet v. Fenner, 247
U.S. 16 (1918).
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Adoption Decrees.--That a statute legitimizing children born out
of wedlock does not entitle them by the aid of the full faith and credit
clause to share in the property located in another State is not
surprising, in view of the general principle, to which, however, there
are exceptions, that statutes do not have extraterritorial
operation.\92\ For the same reason, adoption proceedings in one State
are not denied full faith and credit by the law of the sister State
which excludes children adopted by proceedings in other States from the
right to inherit land therein.\93\
\92\Olmstead v. Olmstead, 216 U.S. 386 (1910).
\93\Hood v. McGehee, 237 U.S. 611 (1915).
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Garnishment Decrees.--A proceeding which combines some of the
elements of both an in rem and an in personam action is the proceeding
in garnishment cases. Suppose that A owes B and B owes C, and that the
two former live in a different State than C. A, while on a brief visit
to C's State, is presented with a writ attaching his debt to B and also
a summons to appear in court on a named day. The result of the
proceedings thus instituted is that a judgment is entered in C's favor
against A to the amount of his indebtedness to B. Subsequently A is sued
by B in their home State and offers the judgment, which he has in the
meantime paid, in de
[[Page 853]]
fense. It was argued in behalf of B that A's debt to him had a situs in
their home State and furthermore that C could not have sued B in this
same State without formally acquiring a domicile there. Both
propositions were, however, rejected by the Court, which held that the
judgment in the garnishment proceedings was entitled to full faith and
credit as against B's action.\94\
\94\Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I.
& P. Ry. v. Sturm, 174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399
(1899); Louisville & Nashville Railroad v. Deer, 200 U.S. 176 (1906);
Baltimore & Ohio R.R. v. Hostetter, 240 U.S. 620 (1916). Harris itself
has not survived the due process reformulation of Shaffer v. Heitner,
433 U.S. 186 (1977). See Rush v. Savchuk, 444 U.S. 320 (1980).
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Penal Judgments: Types Entitled to Recognition
Finally, the clause has been interpreted in the light of the
``incontrovertible maxim'' that ``the courts of no country execute the
penal laws of another.''\95\ In the leading case of Huntington v.
Attrill,\96\ however, the Court so narrowly defined ``penal'' in this
connection as to make it substantially synonymous with ``criminal'' and
on this basis held a judgment which had been recovered under a state
statute making the officers of a corporation who signed and recorded a
false certificate of the amount of its capital stock liable for all of
its debts to be entitled under Article IV, Sec. 1, to recognition and
enforcement in the courts of sister States. Nor, in general, is a
judgment for taxes to be denied full faith and credit in state and
federal courts merely because it is for taxes. In Nelson v. George,\97\
in which a prisoner was tried in California and North Carolina and
convicted and sentenced in both states for various felonies, the Court
determined that the full faith and credit clause did not require
California to enforce a penal judgment handed down by North Carolina;
California was free to consider what effect if any it would give to the
North Carolina detainer.\98\ Until the obligation to extradite matured,
the full faith and credit clause did not require California to enforce
the North Carolina penal judgment in any way.
\95\The Antelope, 10 Wheat. (23 U.S.) 66, 123 (1825). See also
Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
\96\146 U.S. 657 (1892). See also Dennick v. Railroad Co., 103
U.S. 11 (1881); Moore v. Mitchell, 281 U.S. 18 (1930); Milwaukee County
v. White Co., 296 U.S. 268 (1935).
\97\399 U.S. 224 (1970).
\98\Id., 229.
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Fraud as a Defense to Suits on Foreign Judgments
With regard to whether recognition of a state judgment can be
refused by the forum State on other than jurisdictional grounds, there
are dicta to the effect that judgments for which extraterritorial
operation is demanded under Article IV, Sec. 1 and
[[Page 854]]
acts of Congress are ``impeachable for manifest fraud.'' But unless the
fraud affected the jurisdiction of the court, the vast weight of
authority is against the proposition. Also, it is universally agreed
that a judgment may not be impeached for alleged error or
irregularity,\99\ or as contrary to the public policy of the State where
recognition is sought for it under the full faith and credit
clauses.\100\ Previously listed cases indicate, however, that the Court
in fact has permitted local policy to determine the merits of a judgment
under the pretext of regulating jurisdiction.\101\ Thus in one case,
Cole v. Cunningham,\102\ the Court sustained a Massachusetts court in
enjoining, in connection with insolvency proceedings instituted in that
State, a Massachusetts creditor from continuing in New York courts an
action which had been commenced there before the insolvency suit was
brought. This was done on the theory that a party within the
jurisdiction of a court may be restrained from doing something in
another jurisdiction opposed to principles of equity, it having been
shown that the creditor was aware of the debtor's embarrassed condition
when the New York action was instituted. The injunction unquestionably
denied full faith and credit and commanded the assent of only five
Justices.
\99\Christmas v. Russell, 5 Wall. (72 U.S.) 290 (1866); Maxwell
v. Stewart, 21 Wall. (88 U.S.) 71 (1875); Hanley v. Donoghue, 116 U.S. 1
(1885); Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Simmons v.
Saul, 138 U.S. 439 (1891); American Express Co. v. Mullins, 212 U.S. 311
(1909).
\100\Fauntleroy v. Lum, 210 U.S. 230 (1908).
\101\Anglo-American Prov. Co. v. Davis Prov. Co. No. 1, 191 U.S.
373 (1903).
\102\133 U.S. 107 (1890).
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RECOGNITION OF RIGHTS BASED UPON CONSTITUTIONS, STATUTES, COMMON LAW
Development of the Modern Rule
With regard to the extrastate protection of rights which have
not matured into final judgments, the full faith and credit clause has
never abolished the general principle of the dominance of local policy
over the rules of comity.\103\ This was stated by Justice Nelson in the
Dred Scott case, as follows: ``No State . . . can enact laws to operate
beyond its own dominions . . . Nations, from convenience and comity
. . . recognizes [sic] and administer the laws of other countries. But,
of the nature, extent, and utility, of them, respecting property, or the
state and condition of persons within her territories, each nation
judges for itself.'' He added that it was the same with the States of
the Union in relation to another. It followed that even though Dred
Scott had become a free man in con
[[Page 855]]
sequence of his having resided in the ``free'' State of Illinois, he had
nevertheless upon his return to Missouri, which had the same power as
Illinois to determine its local policy respecting rights acquired
extraterritorially, reverted to servitude under the laws and judicial
decisions of that State.\104\
\103\Bank of Augusta v. Earle, 13 Pet. (38 U.S.) 519, 589-596
(1839). See Kryger v. Wilson, 242 U.S. 171 (1916); Bond v. Hume, 243
U.S. 15 (1917).
\104\Scott v. Sandford, 19 How. (60 U.S.) 393, 460 (1857);
Bonaparte v. Tax Court, 104 U.S. 592 (1882), where it was held that a
law exempting from taxation certain bonds of the enacting State did not
operate extraterritorially by virtue of the full faith and credit
clause.
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In a case decided in 1887, however, the Court remarked:
``Without doubt the constitutional requirement, Art. IV, Sec. 1, that
`full faith and credit shall be given in each State to the public acts,
records, and judicial proceedings of every other State,' implies that
the public acts of every State shall be given the same effect by the
courts of another State that they have by law and usage at home.''\105\
And this proposition was later held to extend to state constitutional
provisions.\106\ More recently this doctrine has been stated in a very
mitigated form, the Court saying that where statute or policy of the
forum State is set up as a defense to a suit brought under the statute
of another State or territory, or where a foreign statute is set up as a
defense to a suit or proceedings under a local statute, the conflict is
to be resolved, not by giving automatic effect to the full faith and
credit clause and thus compelling courts of each State to subordinate
its own statutes to those of others but by appraising the governmental
interest of each jurisdiction and deciding accordingly.\107\ That is,
the full faith and credit clause, in its design to transform the States
from independent sovereigns into a single unified Nation, directs that a
State, when acting as the forum for litigation having multistate aspects
or implications, respect the legitimate interests of other States and
avoid infringement upon their sovereignty, but because the forum State
is also a sovereign in its own right, in appropriate cases it may attach
paramount importance to its own legitimate interests.\108\ The
[[Page 856]]
clause (and the comparable due process clause standards) obligate the
forum State to take jurisdiction and to apply foreign law, subject to
the forum's own interest in furthering its public policy. In order ``for
a State's substantive law to be selected in a constitutionally
permissible manner, that State must have a significant contact or
significant aggregation of contacts, creating state interests, such that
choice of its law is neither arbitrary nor fundamentally unfair.''\109\
Obviously this doctrine endows the Court with something akin to an
arbitral function in the decision of cases to which it is applied.
\105\Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615,
622 (1887).
\106\Smithsonian Institution v. St. John, 214 U.S. 19 (1909).
When, in a state court, the validity of an act of the legislature of
another State is not in question, and the controversy turns merely upon
its interpretation or construction, no question arises under the full
faith and credit clause. See also Western Life Indemnity Co. v. Rupp,
235 U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893), Lloyd
v. Matthews, 155 U.S. 222, 227 (1894); Banholzer v. New York Life
Insurance Co., 178 U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S.
458, 465 (1905); Texas & N.O.RR Co. v. Miller, 221 U.S. 408 (1911). See
also National Mutual B. & L. Assn. v. Brahan, 193 U.S. 635 (1904);
Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903);
Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 93 (1917).
\107\Alaska Packers Assn. v. Comm. 294 U.S. 532 (1935); Bradford
Elec. Co. v. Clapper, 286 U.S. 145 (1932).
\108\E.g., Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981);
Nevada v. Hall, 440 U.S. 410 (1979); Carroll v. Lanza, 349 U.S. 408
(1955); Pacific Employers Ins. Co. v. Industrial Accident Comm., 306
U.S. 493 (1939); Alaska Packers Assn. v. Industrial Accident Comm., 294
U.S. 532 (1935).
\109\Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985)
(quoting Allstate Insurance Co. v. Hague, 449 U.S. 302, 312-313 (1981)
(plurality opinion)).
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Transitory Actions: Death Statutes.--The initial effort in this
direction was made in connection with transitory actions based on
statute. Earlier, such actions had rested upon the common law, which was
fairly uniform throughout the States, so that there was usually little
discrepancy between the law under which the plaintiff from another
jurisdiction brought his action ( lex loci ) and the law under which the
defendant responded ( lex fori ). In the late seventies, however, the
States, abandoning the common law rule on the subject, began passing
laws which authorized the representatives of a decedent whose death had
resulted from injury to bring an action for damages.\110\ The question
at once presented itself whether, if such an action was brought in a
State other than that in which the injury occurred, it was governed by
the statute under which it arose or by the law of the forum State, which
might be less favorable to the defendant. Nor was it long before the
same question presented itself with respect to transitory action ex
contractu, where the contract involved had been made under laws peculiar
to the State where made, and with those laws in view.
\110\Dennick v. Railroad Co., 103 U.S. 11 (1881), was the first
so-called ``Death Act'' case to reach the Supreme Court. See also
Stewart v. Baltimore & Ohio R. Co., 168 U.S. 445 (1897). Even today the
obligation of a State to furnish a forum for the determination of death
claims arising in another State under the laws thereof appears to rest
on a rather precarious basis. In Hughes v. Fetter, 341 U.S. 609 (1951),
the Court, by a narrow majority, held invalid under the full faith and
credit clause a statute of Wisconsin which, as locally interpreted,
forbade its courts to entertain suits of this nature; in First Nat. Bank
v. United Airlines, 342 U.S. 396 (1952), a like result was reached under
an Illinois statute. More recently, the Court has acknowledged that the
full faith and credit clause does not compel the forum state, in an
action for wrongful death occurring in another jurisdiction, to apply a
longer period of limitations set out in the Wrongful Death Statute of
the State in which the fatal injury was sustained. Wells v. Simonds
Abrasive Co., 345 U.S. 514 (1953). Justices Jackson, Black, and Minton,
in dissenting, advanced the contrary principle that the clause requires
that the law where the tort action arose should follow said action in
whatever forum it is pursued.
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[[Page 857]]
Actions Upon Contract.--In Chicago & Alton R.R. v. Wiggins Ferry
Co.,\111\ the Court indicated that it was the law under which the
contract was made, not the law of the forum State, which should govern.
Its utterance on the point was, however, not merely obiter, it was based
on an error, namely, the false supposition that the Constitution gives
``acts'' the same extraterritorial operation as the Act of 1790 does
``judicial records and proceedings.'' Notwithstanding which, this dictum
is today the basis of ``the settled rule'' that the defendant in a
transitory action is entitled to all the benefits resulting from
whatever material restrictions the statute under which plaintiff's
rights of action originated sets thereto, except that courts of sister
States cannot be thus prevented from taking jurisdiction in such
cases.\112\
\111\119 U.S. 615 (1887).
\112\Northern Pacific Railroad v. Babcock, 154 U.S. 190 (1894);
Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55,67 (1909).
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However, the modern doctrine permits a forum State with
sufficient contacts with the parties or the matter in dispute to follow
its own law. In Allstate Insurance Co. v. Hague,\113\ the decedent was a
Wisconsin resident, who had died in an automobile accident within
Wisconsin near the Minnesota border, in the course of his daily
employment commute to Wisconsin. He had three automobile insurance
policies on three automobiles, each limited to $15,000. Following his
death, his widow and personal representative moved to Minnesota, and she
sued in that State. She sought to apply Minnesota law, under which she
could ``stack'' or aggregate all three policies, permissible under
Minnesota law but not allowed under Wisconsin law, where the insurance
contracts had been made. The Court, in a divided opinion, permitted
resort to Minnesota law, because of the number of contacts the State had
with the matter. On the other hand, an earlier decision is in
considerable conflict with Hague. There, a life insurance policy was
executed in New York, on a New York insured, with a New York
beneficiary. The insured died in New York, and his beneficiary moved to
Georgia and sued to recover on the policy. The insurance company
defended on the ground that the insured, in the application for the
policy, had made materially false statements that rendered it void under
New York law. The defense was good under New York law, impermissible
under Georgia law, and Georgia's decision to apply its own law was
overturned, the Court stressing the surprise to the parties of the
resort to the law of another State and the absence of any occurrence in
Georgia to which its law could apply.\114\
\113\449 U.S. 302 (1981). See also Clay v. Sun Insurance Office,
Ltd., 377 U.S. 179 (1964).
\114\John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178
(1936).
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[[Page 858]]
Stockholder Corporation Relationship.--Nor is it alone to
defendants in transitory actions that the full faith and credit clause
is today a shield and a buckler. Some legal relationships are so
complex, the Court holds, that the law under which they were formed
ought always to govern them as long as they persist.\115\ One such
relationship is that of a stockholder and his corporation. Hence, if a
question arises as to the liability of the stockholders of a
corporation, the courts of the forum State are required by the full
faith and credit clause to determine the question in accordance with the
constitution, laws and judicial decisions of the corporation's home
States.\116\ Illustrative applications of the latter rule are to be
found in the following cases. A New Jersey statute forbidding an action
at law to enforce a stockholder's liability arising under the laws of
another State and providing that such liability may be enforced only in
equity, and that in such a case the corporation, its legal
representatives, all its creditors, and stockholders, should be
necessary parties, was held not to preclude an action at law in New
Jersey by the New York superintendent of banks against 557 New Jersey
stockholders in an insolvent New York bank to recover assessments made
under the laws of New York.\117\ Also, in a suit to enforce double
liability, brought in Rhode Island against a stockholder in a Kansas
trust company, the courts of Rhode Island were held to be obligated to
extend recognition to the statutes and court decisions of Kansas
whereunder it is established that a Kansas judgment recovered by a
creditor against the trust company is not only conclusive as to the
liability of the corporation but also an adjudication binding each
stockholder therein. The only defenses available to the stockholder are
those which he could make in a suit in Kansas.\118\
\115\Modern Woodmen v. Mixer, 267 U.S. 544 (1925).
\116\Converse v. Hamilton, 224 U.S. 243 (1912); Selig v.
Hamilton, 234 U.S. 652 (1914); Marin v. Augedahl, 247 U.S. 142 (1918).
\117\Broderick v. Rosner, 294 U.S. 629 (1935). See also Thormann
v. Frame, 176 U.S. 350, 356 (1900); Reynolds v. Stockton, 140 U.S. 254,
264 (1891).
\118\Hancock National Bank v. Farnum, 176 U.S. 640 (1900).
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Fraternal Benefit Society: Member Relationship.--The same
principle applies to the relationship which is formed when one takes out
a policy in a ``fraternal benefit society.'' Thus in Royal Arcanum v.
Green,\119\ in which a fraternal insurance association chartered under
the laws of Massachusetts was being sued in the courts of New York by a
citizen of the latter State on a contract of insurance made in that
State, the Court held that the defendant company was entitled under the
full faith and credit clause to have
[[Page 859]]
the case determined in accordance with the laws of Massachusetts and its
own constitution and by-laws as these had been construed by the
Massachusetts courts.
\119\237 U.S.. 531 (1915), followed in Modern Woodmen v. Mixer,
267 U.S. 544 (1925).
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Nor has the Court manifested any disposition to depart from this
rule. In Sovereign Camp v. Bolin,\120\ it declared that a State in which
a certificate of life membership of a foreign fraternal benefit
association is issued, which construes and enforces the certificate
according to its own law rather than according to the law of the State
in which the association is domiciled, denies full faith and credit to
the association's charter embodied in the status of the domiciliary
State as interpreted by the latter's court. ``The beneficiary
certificate was not a mere contract to be construed and enforced
according to the laws of the State where it was delivered. Entry into
membership of an incorporated beneficiary society is more than a
contract; it is entering into a complex and abiding relation and the
rights of membership are governed by the law of the State of
incorporation. [Hence] another State, wherein the certificate of
membership was issued, cannot attach to membership rights against the
society which are refused by the law of domicile.'' Consistent
therewith, the Court also held, in Order of Travelers v. Wolfe,\121\
that South Dakota, in a suit brought therein by an Ohio citizen against
an Ohio benefit society, must give effect to a provision of the
constitution of the society prohibiting the bringing of an action on a
claim more than six months after disallowance by the society,
notwithstanding that South Dakota's period of limitation was six years
and that its own statutes voided contract stipulations limiting the time
within which rights may be enforced. Objecting to these results, Justice
Black dissented on the ground that fraternal insurance companies are not
entitled, either by the language of the Constitution, or by the nature
of their enterprise, to such unique constitutional protection.
\120\305 U.S. 66, 75, 79 (1938).
\121\331 U.S. 586, 588-589, 637 (1947).
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Insurance Company, Building and Loan Association: Contractual
Relationships.--Whether or not distinguishable by nature of their
enterprise, stock and mutual insurance companies and mutual building and
loan associations, unlike fraternal benefit societies, have not been
accorded the same unique constitutional protection; with few
exceptions,\122\ they have had controversies arising out of their
business relationships settled by application of the law of the forum
State. In National Mutual B. & L. Assn. v.
[[Page 860]]
Brahan,\123\ the principle applicable to these three forms of business
organizations was stated as follows: where a corporation has become
localized in a State and has accepted the laws of the State as a
condition of doing business there, it cannot abrogate those laws by
attempting to make contract stipulations, and there is no violation of
the full faith and credit clause in instructing a jury to find according
to local law notwithstanding a clause in a contract that it should be
construed according to the laws of another State.
\122\New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna
Life Ins. Co. v. Dunken, 266 U.S. 389 (1924).
\123\193 U.S. 635 (1904).
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Thus, when a Mississippi borrower, having repaid a mortgage loan
to a New York building and loan association, sued in a Mississippi court
to recover, as usurious, certain charges collected by the association,
the usury law of Mississippi rather than that of New York was held to
control. In this case, the loan contract, which was negotiated in
Mississippi subject to approval by the New York office, did not
expressly state that it was governed by New York law.\124\ Similarly,
when the New York Life Insurance Company, which had expressly stated in
its application and policy forms that they would be controlled by New
York law, was sued in Missouri on a policy sold to a resident thereof,
the court of that State was sustained in its application of Missouri,
rather than New York law.\125\ Also, in an action in a federal court in
Texas to collect the amount of a life insurance policy which had been
made in New York and later changed by instruments assigning beneficial
interest, it was held that questions (1) whether the contract remained
one governed by the law of New York with respect to rights of assignees,
rather than by the law of Texas, (2) whether the public policy of Texas
permits recovery by one named beneficiary who has no beneficial interest
in the life of the insured, and (3) whether lack of insurable interest
becomes material when the insurer acknowledges liability and pays the
money into court, were questions of Texas law, to be decided according
to Texas decisions.\126\ Similarly, a State, by reason of its potential
obligation to care for dependents of persons injured or killed within
its limits, is conceded to have a substantial interest in insurance
policies, wherever issued, which may afford compensation for such
losses; accordingly, it is competent, by its own direct action statute,
to grant the injured party a direct cause of action against the insurer
of the tortfeasor, and to refuse to enforce the law of the State, in
which the policy is issued or delivered, which recognizes as binding a
pol
[[Page 861]]
icy stipulation which forbids direct actions until after the
determination of the liability of the insured tortfeasor.\127\
\124\Ibid.
\125\New York Life Ins. Co. v. Cravens, 178 U.S. 389 (1900). See
also American Fire Ins. Co v. King Lumber Co., 250 U.S. 2 (1919).
\126\Griffin v. McCoach, 313 U.S. 498 (1941).
\127\Watson v. Employers Liability Corp., 348 U.S. 66 (1954). In
Clay v. Sun Insurance Office, 363 U.S. 207 (1960), three dissenters,
Justices Black, and Douglas, and Chief Justice Warren, would have
resolved the constitutional issue which the Court avoided, and would
have sustained application of the forum State's statute of limitations
fixing a period in excess of that set forth in the policy.
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Consistent with the latter holding are the following two
involving mutual insurance companies. In Pink v. A.A.A. Highway
Express,\128\ the New York insurance commissioner, as a statutory
liquidator of an insolvent auto mutual company organized in New York,
sued resident Georgia policyholders in a Georgia court to recover
assessments alleged to be due by virtue of their membership in it. The
Supreme Court held that, although by the law of the State of
incorporation, policyholders of a mutual insurance company become
members thereof and as such liable to pay assessments adjudged to be
required in liquidation proceedings in that State, the courts of another
State are not required to enforce such liability against local resident
policyholders who did not appear and were not personally served in the
foreign liquidation proceedings but are free to decide according to
local law the questions whether, by entering into the policies,
residents became members of the company. Again, in State Farm Ins. Co.
v. Duel,\129\ the Court ruled that an insurance company chartered in
State A, which does not treat membership fees as part of premiums,
cannot plead denial of full faith and credit when State B, as a
condition of entry, requires the company to maintain a reserve computed
by including membership fees as well as premiums received in all States.
Were the company's contention accepted, ``no State,'' the Court
observed, ``could impose stricter financial standards for foreign
corporations doing business within its borders than were imposed by the
State of incorporation.'' It is not apparent, the Court added, that
State A has an interest superior to that of State B in the financial
soundness and stability of insurance companies doing business in State
B.
\128\314 U.S. 201, 206-208 (1941). However, a decree of a
Montana Supreme Court, insofar as it permitted judgment creditors of a
dissolved Iowa surety company to levy execution against local assets to
satisfy judgment, as against title to such assets of the Iowa insurance
commissioner as statutory liquidator and successor to the dissolved
company, was held to deny full faith and credit to the statutes of Iowa.
Clark v. Williard, 292 U.S. 112 (1934).
\129\324 U.S. 154, 159-160 (1945).
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Workmen's Compensation Statutes.--Finally, the relationship of
employer and employee, insofar as the obligations of the one and the
rights of the other under workmen's compensation acts are concerned, has
been the subject of differing and confusing treat
[[Page 862]]
ment. In an early case, the injury occurred in New Hampshire, resulting
in death to a workman who had entered the defendant company's employ in
Vermont, the home State of both parties. The Court required the New
Hampshire courts to respect a Vermont statute which precluded a worker
from bringing a common-law action against his employer for job related
injuries where the employment relation was formed in Vermont,
prescribing a constitutional rule giving priority to the place of the
establishment of the employment relationship over the place of
injury.\130\ The same result was achieved in a subsequent case, but the
Court promulgated a new rule, applied thereafter, which emphasized a
balancing of the governmental interests of each jurisdiction, rather
than the mere application of the statutory rule of one or another State
under full faith and credit.\131\ Thus, the Court held that the clause
did not preclude California from disregarding a Massachusett's workmen's
compensation statute, making its law exclusive of any common law action
or any law of any other jurisdiction, and applying its own act in the
case of an injury suffered by a Massachusetts employee of a
Massachusetts employer while in California in the course of his
employment.\132\ It is therefore settled that an injured workman may
seek a compensation award either in the State in which the injury
occurred or in the State in which the employee resided, his employer was
principally located, and the employment relation was formed, even if one
statute or the other purported to confer an exclusive remedy on the
workman.\133\
\130\Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932).
\131\Alaska Packers Assn. v. Comm., 294 U.S. 532 (1935). The
State where the employment contract was made was permitted to apply its
workmen's compensation law despite the provision in the law of the State
of injury making its law the exclusive remedy for injuries occurring
there. See id., 547 (stating the balancing test).
\132\Pacific Ins. Co. v. Comm., 306 U.S. 493 (1939).
\133\In addition to Alaska Packers and Pacific Ins., see Carroll
v. Lanza, 349 U.S. 408 (1955); Cardillo v. Liberty Mutual Co., 330 U.S.
469 (1947); Crider v. Zurich Ins. Co., 380 U.S. 39 (1965); Nevada v.
Hall, 440 U.S. 410, 421-424 (1979).
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Less settled is the question whether a second State, with
interests in the matter, may supplement a workmen's compensation award
provided in the first State. At first, the Court ruled that a Louisiana
employee of a Louisiana employer, who was injured on the job in Texas
and who received an award under the Texas act, which did not grant
further recovery to an employee who received compensation under the laws
of another State, could not obtain additional compensation under the
Louisiana statute.\134\ Shortly, however, the Court departed from this
holding, permitting Wisconsin, the State of the injury, to supplement an
award pursuant to the laws of Illinois, where the worker resided and
where the em
[[Page 863]]
ployment contract had been entered into.\135\ Although the second case
could have been factually distinguished from the first,\136\ the Court
instead chose to depart from the principle of the first, saying that
only if the laws of the first State making an award contained
``unmistakable language'' to the effect that those laws were exclusive
of any remedy under the laws of any other State would supplementary
awards be precluded.\137\ While the overwhelming number of state court
decisions since follow McCartin and Magnolia has been little noticed,
all the Justices have recently expressed dissatisfaction with the former
case as a rule of the full faith and credit clause, although a majority
of the Court followed it and permitted a supplementary award.\138\
\134\Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).
\135\Industrial Comm. v. McCartin, 330 U.S. 622 (1947).
\136\Employer and employee had entered into a contract of
settlement under the Illinois act, the contract expressly providing that
it did not affect any rights the employee had under Wisconsin law. Id.,
624.
\137\Id., 627-628, 630.
\138\Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980).
For the disapproval of McCartin, see id., 269-272 (plurality opinion of
four), 289 (concurring opinion of three), 291 (dissenting opinion of
two). But the four Justice plurality would have instead overruled
Magnolia, id., 277-286, and adopted the rule of interest balancing used
in deciding which State may apply its laws in the first place. The
dissenting two Justices would have overruled McCartin and followed
Magnolia. Id., 290. The other Justices considered Magnolia the sounder
rule but decided to follow McCurtin because it could be limited to
workmen's compensation cases, thus requiring no evaluation of changes
throughout the reach of the full faith and credit clause. Id., 286.
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Full Faith and Credit and Statutes of Limitation.--The full
faith and credit clause is not violated by a state statute providing
that all suits upon foreign judgments shall be brought within five years
after such judgment shall have been obtained, where the statute has been
construed by the state courts as barring suits on foreign judgments,
only if the plaintiff could not revive his judgment in the state where
it was originally obtained.\139\
\139\Watkins v. Conway, 385 U.S. 188, 190-191 (1965).
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FULL FAITH AND CREDIT: MISCELLANY
Full Faith and Credit in Federal Courts
By the terms of 28 U.S.C. Sec. Sec. 1738-1739, the rule
comprised therein pertains not merely to recognition by state courts of
the records and judicial proceedings of courts of sister States but to
recognition by ``every court within the United States,'' including
recognition of the records and proceedings of the courts of any
territory or any country subject to the jurisdiction of the United
States. The federal courts are bound to give to the judgments of the
state courts the same faith and credit that the courts of one State are
bound to give to the judgments of the courts of her sister
[[Page 864]]
States.\140\ Where suits to enforce the laws of one State are
entertained in courts of another on principles of comity, federal
district courts sitting in that State may entertain them and should, if
they do not infringe federal law or policy.\141\ However, the refusal of
a territorial court in Hawaii, having jurisdiction of the action which
was on a policy issued by a New York insurance company, to admit
evidence that an administrator had been appointed and a suit brought by
him on a bond in the federal court in New York wherein no judgment had
been entered, did not violate this clause.\142\
\140\Cooper v. Newell, 173 U.S. 555, 567 (1899), See also
Pennington v. Gibson, 16 How. (57 U.S.) 65, 81 (1854); Cheever v.
Wilson, 9 Wall. (76 U.S.) 108, 123 (1870); Wisconsin v. Pelican Ins.
Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232 U.S. 51 (1914);
Baldwin v. Traveling Men's Assn., 283 U.S. 522 (1931); American Surety
Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292
U.S. 190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry,
449 U.S. 90 (1980); Kremer v. Chemical Const. Corp., 456 U.S. 461
(1982).
\141\Milwaukee County v. White Co., 296 U.S. 268 (1935).
\142\Equitable Life Assurance Society v. Brown, 187 U.S. 308
(1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).
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The power to prescribe what effect shall be given to the
judicial proceedings of the courts of the United States is conferred by
other provisions of the Constitution, such as those which declare the
extent of the judicial power of the United States, which authorize all
legislation necessary and proper for executing the powers vested by the
Constitution in the Government of the United States, and which declare
the supremacy of the authority of the National Government within the
limits of the Constitution. As part of its general authority, the power
to give effect to the judgment of its courts is coextensive with its
territorial jurisdiction.\143\
\143\Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern
Assurance Co. v. Grand View Assn., 203 U.S. 106 (1906); Louisville &
N.R.R. Co. v. Stock Yards Co., 212 U.S. 132 (1909); Atchison, T. & S.F.
Ry. v. Sowers, 213 U.S. 55 (1909); West Side R.R. Co. v. Pittsburgh
Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer, 265 U.S.
30, 33 (1924).
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Evaluation Of Results Under Provision
Thus the Court, from according an extrastate operation to
statutes and judicial decisions in favor of defendants in transitory
actions, proceeded next to confer the same protection upon certain
classes of defendants in local actions in which the plaintiff's claim
was the outgrowth of a relationship formed *extraterritorially. But can
the Court stop at this point? If it is true, as Chief Justice Marshall
once remarked, that ``the Constitution was not made for the benefit of
plaintiffs' alone,'' so also it is true that it was not made for the
benefit of defendants alone. The day may come when the Court will
approach the question of the relation of the full faith and credit
clause to the extrastate operation of laws from the same
[[Page 865]]
angle as it today views the broader question of the scope of state
legislative power. When and if this day arrives, state statutes and
judicial decisions will be given such extraterritorial operation as
seems reasonable to the Court to give them. In short, the rule of the
dominance of legal policy of the forum State will be superseded by that
of judicial review.\144\
\144\Reviewing some of the cases treated in this section, a
writer in 1926 said: ``It appears, then, that the Supreme Court has
quite definitely committed itself to a program of making itself, to some
extent, a tribunal for bringing about uniformity in the field of
conflicts...although the precise circumstances under which it will
regard itself as having jurisdiction for this purpose are far from
clear.'' Dodd, The Power of the Supreme Court to Review State Decisions
in the Field of Conflict of Laws, 39 Harv. L. Rev. 533, 562 (1926). It
can hardly be said that the law has been subsequently clarified on this
point.
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The question arises whether the application to date, not by the
Court alone but by Congress and the Court, of Article IV, Sec. 1, can be
said to have met the expectations of its Framers. In the light of some
things said at the time of the framing of the clause this may be
doubted. The protest was raised against the clause that, in vesting
Congress with power to declare the effect state laws should have outside
the enacting State, it enabled the new government to usurp the powers of
the States, but the objection went unheeded. The main concern of the
Convention, undoubtedly, was to render the judgments of the state courts
in civil cases effective throughout the Union. Yet even this object has
been by no means completely realized, owing to the doctrine of the
Court, that before a judgment of a state court can be enforced in a
sister State, a new suit must be brought on it in the courts of the
latter, and the further doctrine that with respect to such a suit, the
judgment sued on is only evidence; the logical deduction from this
proposition is that the sister State is under no constitutional
compulsion to give it a forum. These doctrines were first clearly stated
in the McElmoyle case and flowed directly from the new states' rights
premises of the Court, but they are no longer in harmony with the
prevailing spirit of constitutional construction nor with the needs of
the times. Also, the clause seems always to have been interpreted on the
basis of the assumption that the term, ``judicial proceedings,'' refers
only to final judgments and does not include intermediate processes and
writs, but the assumption would seem to be groundless, and if it is,
then Congress has the power under the clause to provide for the service
and execution throughout the United States of the judicial processes of
the several States.
[[Page 866]]
SCOPE OF POWERS OF CONGRESS UNDER PROVISION
Under the present system, suit ordinarily has to be brought
where the defendant, the alleged wrongdoer, resides, which means
generally where no part of the transaction giving rise to the action
took place. What could be more irrational? ``Granted that no state can
of its own volition make its process run beyond its borders . . . is it
unreasonable that the United States should by federal action be made a
unit in the manner suggested?''\145\
\145\Cook, The Power of Congress Under the Full Faith and Credit
Clause, 28 Yale L.J. 421, 430 (1919).
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Indeed, there are few clauses of the Constitution, the merely
literal possibilities of which have been so little developed as the full
faith and credit clause. Congress has the power under the clause to
decree the effect that the statutes of one State shall have in other
States. This being so, it does not seem extravagant to argue that
Congress may under the clause describe a certain type of divorce and say
that it shall be granted recognition throughout the Union and that no
other kind shall. Or to speak in more general terms, Congress has under
the clause power to enact standards whereby uniformity of state
legislation may be secured as to almost any matter in connection with
which interstate recognition of private rights would be useful and
valuable.
JUDGMENTS OF FOREIGN STATES
Doubtless Congress, by virtue of its powers in the field of
foreign relations, might also lay down a mandatory rule regarding
recognition of foreign judgments in every court of the United States. At
present the duty to recognize judgments even in national courts rests
only on comity and is qualified in the judgment of the Supreme Court, by
a strict rule of parity.\146\
\146\No right, privilege, or immunity is conferred by the
Constitution in respect to judgments of foreign states and nations.
Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185 (1912). See also
Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment
offered in defense was held not a bar to the suit. Four Justices
dissented on the ground that ``the application of the doctrine of res
judicata does not rest in discretion; and it is for the Government, and
not for its courts, to adopt the principle of retorsion, if deemed under
any circumstances desirable or necessary.'' At the same sitting of the
Court, an action in a United States circuit court on a Canadian judgment
was sustained on the same ground of reciprocity, Ritchie v. McMullen,
159 U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541
(1927), where a decision of the Supreme Court of the Philippine Islands
was reversed for refusal to enforce a judgment of the Supreme Court of
the British colony of Hong Kong, which was rendered ``after a fair trial
by a court having jurisdiction of the parties.'' Another instance of
international cooperation in the judicial field is furnished by letters
rogatory. See 28 U.S.C. Sec. 1781. Several States have similar
provisions, 2 J. Moore, Digest of International Law (Washington: 1906),
108-109.
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[[Page 867]]
ARTICLE IV
STATES' RELATIONS
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES
Origin and Purpose
``The primary purpose of this clause, like the clauses between
which it is located. . .was to help fuse into one Nation a collection of
independent sovereign States.''\147\ Precedent for this clause was a
much wordier and a somewhat unclear\148\ clause of the Articles of
Confederation. ``The better to secure and perpetuate mutual friendship
and intercourse among the people of the different States in this Union,
the free inhabitants of each of these States, paupers, vagabonds and
fugitives from justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several States; and the people of
each State shall have free ingress and regress to and from any other
State, and shall enjoy therein all the privileges of trade and commerce,
subject to the same duties, impositions and restrictions as the
inhabitants thereof respectively,. . .''\149\ In the Convention, the
present clause was presented, reported by the Committee on Detail, and
adopted all in the language ultimately approved.\150\ Little commentary
was addressed to it,\151\ and we may assume with Justice Miller that
``[t]here can be but little question that the purpose of both these
provisions is the same, and that the privileges and immunities intended
are the same in each. In the Articles of Confederation we have some of
these specifically mentioned, and enough perhaps to give some general
idea of the class of civil rights meant by the phrase.''\152\
\147\Toomer v. Witsell, 334 U.S. 385, 395 (1948).
\148\The Federalist, No. 42 (J. Cooke ed. 1961), 285-286
(Madison).
\149\1 F. Thorpe (ed.), The Federal and State Constitutions, H.
Doc. No. 357, 59th Cong., 2 sess. (Washington: 1909), 10.
\150\2 M. Farrand, The Records of the Federal Convention of 1787
(New Haven: rev. ed. 1937), 173, 187, 443.
\151\``It may be esteemed the basis of the Union, that `the
citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several States.' And if it be a just
principle that every government ought to possess the means of executing
its own provisions by its own authority, it will follow, that in order
to the inviolable maintenance of that equality of privileges and
immunities to which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which one State or
its citizens are opposed to another State or its citizens. To secure the
full effect of so fundamental a provision against all evasion and
subterfuge, it is necessary that its construction should be committed to
that tribunal which, having no local attachments, will be likely to be
impartial between the different States and their citizens, and which,
owing its official existence to the Union, will never be likely to feel
any bias inauspicious to the principles on which its is founded.'' The
Federalist, No. 80 (J. Cooke ed. 1961), 537-538 (Hamilton).
\152\Slaughter-House Cases, 16 Wall. (83 U.S.) 36, 75 (1873).
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[[Page 868]]
At least four theories have been proffered regarding the purpose
of this clause. First, the clause is a guaranty to the citizens of the
different States of equal treatment by Congress; in other words, it is a
species of equal protection clause binding on the National Government.
Though it received some recognition in the Dred Scott case,\153\
particularly in the opinion of Justice Catron,\154\ this theory is today
obsolete.\155\ Second, the clause is a guaranty to the citizens of each
State of the natural and fundamental rights inherent in the citizenship
of persons in a free society, the privileges and immunities of free
citizens, which no State could deny to citizens of other States, without
regard to the manner in which it treated its own citizens. This theory
found some expression in a few state cases\156\ and best accords with
the natural law-natural rights language of Justice Washington in
Corfield v. Coryell.\157\
\153\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
\154\Id., 518, 527-529.
\155\Today, the due process clause of the Fifth Amendment
imposes equal protection standards on the Federal Government. Bolling v.
Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168
(1964); Shapiro v. Thompson, 394 U.S. 618, 641-642 (1969).
\156\Campbell v. Morris, 3 Harr. & McHen, 288 (Md. 1797); Murray
v. McCarty, 2 Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns.
Case. 507 (N.Y. 1812); Douglas v. Stephens, 1, Del. Ch. 465 (1821);
Smith v. Moody, 26 Ind. 299 (1866).
\157\6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823).
(Justice Washington on circuit), quoted infra, text at nn. 178-182. ``At
one time it was thought that this section recognized a group of rights
which, according to the jurisprudence of the day, were classed as
`natural rights'; and that the purpose of the section was to create
rights of citizens of the United States by guaranteeing the citizens of
every State the recognition of this group of rights by every other
State. Such was the view of Justice Washington.'' Hague v. CIO, 307 U.S.
496, 511 (1939) (Justice Roberts for the Court). This view of the clause
was asserted by Justices Field and Bradley, Slaughter House Cases, 16
Wall. (83 U.S.) 97, 117-118 (1873) (dissenting opinions); Butchers Union
Co. v. Crescent City Co., 111 U.S. 746, 760 (1884) (Justice Field
concurring), but see infra, n. 160, and was possibly understood so by
Chief Justice Taney. Scott v. Sandford, 19 How. (60 U.S.) 393, 423
(1857). And see id., 580 (Justice Curtis dissenting). The natural rights
concept of privileges and immunities was strongly held by abolitionists
and their congressional allies who drafted the similar clause into 1 of
the Fourteenth Amendment. Graham, Our ``Declaratory'' Fourteenth
Amendment, reprinted in H. Graham, Everyman's Constitution--Historical
Essays on the Fourteenth Amendment, the ``Conspiracy Theory'', and
American Constitutionalism (Madison: 1968), 295.
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If it had been accepted by the Court, this theory might well
have endowed the Supreme Court with a reviewing power over restrictive
state legislation as broad as that which it later came to exercise under
the due process and equal protection clauses of the Fourteenth
Amendment, but it was firmly rejected by the Court.\158\ Third, the
clause guarantees to the citizen of any State the rights which he enjoys
as such even when he is sojourning in another State; that is, it enables
him to carry with him his rights of State
[[Page 869]]
citizenship throughout the Union, unembarrassed by state lines. This
theory, too, the Court rejected.\159\ Fourth, the clause merely forbids
any State to discriminate against citizens of other States in favor of
its own. It is this narrow interpretation that has become the settled
one. ``It was undoubtedly the object of the clause in question to place
the citizens of each State upon the same footing with citizens of other
States, so far as the advantages resulting from citizenship in those
States are concerned. It relieves them from the disabilities of alienage
in other States; it inhibits discriminating legislation against them by
other States; it gives them the right of free ingress into other States,
and egress from them; it insures to them in other States the same
freedom possessed by the citizens of those States in the acquisition and
enjoyment of property, and in the pursuit of happiness; and it secures
to them in other States the equal protection of their laws.''\160\
\158\McKane v. Durston, 153 U.S. 684, 687 (1894); and see cases
cited infra, n.160.
\159\City of Detroit v. Osborne, 135 U.S. 492 (1890).
\160\Paul v. Virginia, 8 Wall. (75 U.S.) 168, 180 (1869)
(Justice Field for the Court; see supra, n. 157); and see Slaughter
House Cases, 16 Wall. (83 U.S.) 36, 77 (1873); Chambers v. Baltimore &
O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).
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The recent cases emphasize that interpretation of the clause is
tied to maintenance of the Union. ``Some distinctions between residents
and nonresidents merely reflect the fact that this is a Nation composed
of individual States, and are permitted; other distinctions are
prohibited because they hinder the formation, the purpose, or the
development of a single Union of those States. Only with respect to
those `privileges' and `immunities' bearing upon the vitality of the
Nation as a single entity must the State treat all citizens, resident
and nonresident, equally.''\161\ While the clause ``was intended to
create a national economic union,'' it as well protects noneconomic
interests relating to the Union.\162\
\161\Baldwin v. Montana Fish & Game Comm., 436 U.S. 371, 383
(1978). See also Austin v. New Hampshire, 420 U.S. 656, 660-665 (1975)
(clause ``implicates not only the individual's right to
nondiscriminatory treatment but also, perhaps more so, the structural
balance essential to the concept of federalism.'' Id., 662); Hicklin v.
Orbeck, 437 U.S. 518, 523-524 (1978).
\162\Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281-
282 (1985). See also Doe v. Bolton, 410 U.S. 179, 200 (1973)
(discrimination against out-of-state residents seeking medical care
violates clause).
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Hostile discrimination against all nonresidents infringes the
clause,\163\ but controversies between a State and its own citizens are
not covered by the provision.\164\ However, a state discrimination in
favor of residents of one of its municipalities implicates the
[[Page 870]]
clause, even though the disfavored class consists of in-state as well as
out-of-state inhabitants.\165\ The clause should not be read so
literally, the Court held, as to permit States to exclude out-of-state
residents from benefits through the simple expediency of delegating
authority to political subdivisions.\166\
\163\Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale
& Towne Mfg. Co., 252 U.S. 60 (1920).
\164\Bradwell v. Illinois, 16 Wall. (83 U.S.) 130, 138 (1873);
Cove v. Cunningham, 133 U.S. 107 (1890). But see Zobel v. Williams, 457
U.S. 55, 71 (1982) (Justice O'Connor concurring).
\165\United Building & Construction Trades Council v. Mayor of
Camden, 465 U.S. 208 (1984).
\166\Id., 217. The holding illustrates what the Court has
referred to as the ``mutually reinforcing relationship'' between the
commerce clause and the privileges and immunities clause. Supreme Court
of New Hampshire v. Piper, 470 U.S. 274, 280 n. 8 (1985) (quoting
Hicklin v. Orbeck, 437 U.S. 518, 531 (1978)). See, e.g., Dean Milk Co.
v. City of Madison, 424 U.S. 366 (1976) (city protectionist ordinance
that disadvantages both out-of-state producers and some in-state
producers violates commerce clause).
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How Implemented
This clause is self-executory, that is to say, its enforcement
is dependent upon the judicial process. It does not authorize penal
legislation by Congress. Federal statutes prohibiting conspiracies to
deprive any person of rights or privileges secured by state laws,\167\
or punishing infractions by individuals of the right of citizens to
reside peacefully in the several States and to have free ingress into
and egress from such States,\168\ have been held void.
\167\United States v. Harris, 106 U.S. 629, 643 (1883). See also
Baldwin v. Franks, 120 U.S. 678 (1887).
\168\United States v. Wheeler, 254 U.S. 281 (1920).
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Citizens of Each State
A question much mooted before the Civil War was whether the term
could be held to include free Negroes. In the Dred Scott case,\169\ the
Court answered it in the negative. ``Citizens of each State,'' Chief
Justice Taney argued, meant citizens of the United States as understood
at the time the Constitution was adopted, and Negroes were not then
regarded as capable of citizenship. The only category of national
citizenship added under the Constitution comprised aliens, naturalized
in accordance with acts of Congress.\170\ In dissent, Justice Curtis not
only denied the Chief Justice's assertion that there were no Negro
citizens of States in 1789 but further argued that while Congress alone
could determine what classes of aliens should be naturalized, the
several States retained the right to extend citizenship to classes of
persons born within their borders who had not previously enjoyed
citizenship and that one upon whom state citizenship was thus conferred
became a citizen of the State in the full sense of the
Constitution.\171\ So far as persons
[[Page 871]]
born in the United States, and subject to the jurisdiction thereof are
concerned, the question was put at rest by the Fourteenth Amendment.
\169\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
\170\Id., 403-411.
\171\Id., 572-590.
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Corporations.--At a comparatively early date the claim was made
that a corporation chartered by a State and consisting of its citizens
was entitled to the benefits of the comity clause in the transaction of
business in other States. It was argued that the Court was bound to look
beyond the act of incorporation and see who were the incorporators. If
it found these to consist solely of citizens of the incorporating State,
it was bound to permit them through the agency of the corporation to
exercise in other States such privileges and immunities as the citizens
thereof enjoyed. In Bank of Augusta v. Earle,\172\ this view was
rejected. The Court held that the comity clause was never intended ``to
give to the citizens of each State the privileges of citizens in the
several States, and at the same time to exempt them from the liabilities
which the exercise of such privileges would bring upon individuals who
were citizens of the State. This would be to give the citizens of other
States far higher and greater privileges than are enjoyed by the
citizens of the State itself.''\173\ A similar result was reached in
Paul v. Virginia,\174\ but by a different course of reasoning. The Court
there held that a corporation, in this instance, an insurance company,
was ``the mere creation of local law'' and could ``have no legal
existence beyond the limits of the sovereignty''\175\ which created it;
even recognition of its existence by other States rested exclusively in
their discretion. More recent cases have held that this discretion is
qualified by other provisions of the Constitution notably the commerce
clause and the Fourteenth Amendment.\176\ By reason of its similarity to
the corporate form of organization, a Massachusetts trust has been
denied the protection of this clause.\177\
\172\13 Pet. (38 U.S.) 519 (1839).
\173\Id., 586.
\174\8 Wall. (75 U.S.) 168 (1869).
\175\Id., 181.
\176\Crutcher v. Kentucky, 141 U.S. 47 (1891).
\177\Hemphill v. Orloff, 277 U.S. 537 (1928).
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All Privileges and Immunities of Citizens in the Several States
The classical judicial exposition of the meaning of this phrase
is that of Justice Washington in Corfield v. Coryell,\178\ which was
decided by him on circuit in 1823. The question at issue was the
validity of a New Jersey statute which prohibited ``any person who is
not, at the time, an actual inhabitant and resident in this State''
[[Page 872]]
from raking or gathering ``clams, oysters or shells'' in any of the
waters of the State, on board any vessel ``not wholly owned by some
person, inhabitant of and actually residing in this State. . . . The
inquiry is,'' wrote Justice Washington, ``what are the privileges and
immunities of citizens in the several States? We feel no hesitation in
confining these expressions to those privileges and immunities which
are, in their nature, fundamental; which belong, of right, to the
citizens of all free governments; and which have, at all times, been
enjoyed by the citizens of the several States which compose this Union,
. . .''\179\ He specified the following rights as answering this
description: ``Protection by the Government; the enjoyment of life and
liberty, with the right to acquire and possess property of every kind,
and to pursue and obtain happiness and safety; subject nevertheless to
such restraints as the Government must justly prescribe for the general
good of the whole. The right of a citizen of one State to pass through,
or to reside in any other State, for purposes of trade, agriculture,
professional pursuits, or otherwise; to claim the benefits of the writ
of habeas corpus ; to institute and maintain actions of any kind in the
courts of the State; to take, hold and dispose of property, either real
or personal; and an exemption from higher taxes or impositions than are
paid by the other citizens of the State; . . . .''\180\
\178\6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).
\179\Id., 551-552.
\180\Id., 552.
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After thus defining broadly the private and personal rights
which were protected, Justice Washington went on to distinguish them
from the right to a share in the public patrimony of the State. ``[W]e
cannot accede'' the opinion proceeds, ``to the proposition . . . that,
under this provision of the Constitution, the citizens of the several
States are permitted to participate in all the rights which belong
exclusively to the citizens of any particular State, merely upon the
ground that they are enjoyed by those citizens; much less, that in
regulating the use of the common property of the citizens of such State,
the legislature is bound to extend to the citizens of all other States
the same advantages as are secured to their own citizens.''\181\ The
right of a State to the fisheries within its borders he then held to be
in the nature of a property right, held by the State ``for the use of
the citizens thereof;'' the State was under no obligation to grant ``co-
tenancy in the common property of the State, to the citizens of all the
other States.''\182\ The precise holding of this case was confirmed in
McCready v. Virginia;\183\ the logic of
[[Page 873]]
Geer v. Connecticut\184\ extended the same rule to wild game, and Hudson
Water Co. v. McCarter\185\ applied it to the running water of a State.
In Toomer v. Witsell,\186\ however, the Court refused to apply this rule
to free-swimming fish caught in the three-mile belt off the coast of
South Carolina. It held instead that ``commercial shrimping in the
marginal sea, like other common callings, is within the purview of the
privileges and immunities clause'' and that a severely discriminatory
license fee exacted from nonresidents was unconstitutional.\187\
\181\Ibid.
\182\Ibid.
\183\94 U.S. 391 (1877).
\184\161 U.S. 519 (1896).
\185\209 U.S. 349 (1908).
\186\334 U.S. 385 (1948).
\187\Id., 403. In Mullaney v. Anderson, 342 U.S. 415 (1952), an
Alaska statute providing for the licensing of commercial fishermen in
territorial waters and levying a license fee of $50.00 on nonresident
and only $5.00 on resident fishermen was held void under Art. IV, Sec. 2
on the authority of Toomer v. Witsell .
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The virtual demise, however, of the state ownership theory of
animals and natural resources\188\ compelled the Court to review and
revise its mode of analysis of state restrictions that distinguished
between residents and nonresidents\189\ in respect to hunting and
fishing and working with natural resources. A two-pronged test emerged.
First, the Court held, it must be determined whether an activity in
which a nonresident wishes to engage is within the protection of the
clause. Such an activity must be ``fundamental,'' must, that is, be
essential or basic, ``interference with which would frustrate the
purposes of the formation of the Union, . . .'' Justice Washington's
opinion on Circuit in Coryell afforded the Court the standard; while
recognizing that the opinion relied on notions of natural rights, the
Court thought he used the term ``fundamental'' in the modern sense as
well. Such activities as the pursuit of common callings within the
State, the ownership and disposition of privately held property within
the State, and the access to the courts of the State, had been
recognized in previous cases as fundamental and protected against
unreasonable burdening; but sport and recreational hunting, the issue in
the particular case, was not a fundamental activity. It had nothing to
do with one's livelihood and implicated no other interest recognized as
fundamental.\190\ Subse
[[Page 874]]
quent cases have recognized that the right to practice law\191\ and the
right to seek employment on public contracts\192\ are to be considered
fundamental activity.
\188\The cases arose in the commerce clause context. See Douglas
v. Seacoast Products, 431 U.S. 265, 284 (1977) (dictum). Geer v.
Connecticut, 161 U.S. 519 (1896), was overruled in Hughes v. Oklahoma,
441 U.S. 322 (1979); Hudson County Water Co. v. McCarter, 209 U.S. 349
(1908), was overruled in Sporhase v. Nebraska, ex rel. Douglas, 458 U.S.
941 (1982).
\189\Although the clause specifically refers to ``citizens,''
the Court treats the terms ``citizens'' and ``residents'' as
``essentially interchangeable.'' Austin v. New Hampshire, 420 U.S. 656,
662 n. 8 (1975); Hicklin v. Orbeck, 437 U.S. 518, 524 n. 8 (1978).
\190\Baldwin v. Montana Fish & Game Comm., 436 U.S. 371 (1978).
The quotation is id., 387.
\191\Supreme Court of New Hampshire v. Piper, 470 U.S. 274
(1985).
\192\United Building & Construction Trades Council v. Mayor of
Camden, 465 U.S. 208 (1984).
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Second, finding a fundamental interest protected under the
clause, in the particular case the right to pursue an occupation or
common calling, the Court employed a two-pronged analysis to determine
whether the State's distinction between residents and nonresidents was
justified. Thus, the State was compelled to show that nonresidents
constituted a peculiar source of the evil at which the statute was aimed
and that the discrimination bore a substantial relationship to the
particular ``evil'' they are said to represent, e.g., that it is
``closely tailored'' to meet the actual problem. An Alaska statute
giving residents preference over nonresidents in hiring for work on the
oil and gas pipelines within the State failed both elements of the
test.\193\ No state justification for exclusion of new residents from
the practice of law on grounds not applied to long-term residents has
been approved by the Court.\194\
\193\Hicklin v. Orbeck, 437 U.S. 518 (1978). Activity relating
to pursuit of an occupation or common calling the Court recognized had
long been held to be protected by the clause. The burden of showing
constitutional justification was clearly placed on the State, id., 526-
528, rather than giving the statute the ordinary presumption of
constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
\194\Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Court of
Virginia v. Friedman, 487 U.S. 59 (1988); Supreme Court of New Hampshire
v. Piper, 470 U.S. 274 (1985).
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Universal practice has also established a political exception to
the clause to which the Court has given its approval. ``A State may, by
rule uniform in its operation as to citizens of the several States,
require residence within its limits for a given time before a citizen of
another State who becomes a resident thereof shall exercise the right of
suffrage or become eligible to office.''\195\
\195\Blake v. McClung, 172 U.S. 239, 256 (1898). Of course as to
suffrage, see Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to
candidacy, the principle is now qualified under the equal protection
clause of the Fourteenth Amendment. Baldwin v. Montana Fish & Game
Comm., 436 U.S. 371, 383 (1978) (citing Kanapaux v. Ellisor, 419 U.S.
891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (D.C.D. N.H.), aff'd.
414 U.S. 802 (1973)).
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Discrimination in Private Rights
Not only has judicial construction of the comity clause excluded
certain privileges of a public nature from its protection, but the
courts also have established the proposition that the purely private and
personal rights to which the clause admittedly extends are not in all
cases beyond the reach of state legislation which differentiates
citizens and noncitizens. Broadly speaking, these rights are
[[Page 875]]
held subject to the reasonable exercise by a State of its police power,
and the Court has recognized that there are cases in which
discrimination against nonresidents may be reasonably resorted to by a
State in aid of its own public health, safety and welfare. To that end a
State may reserve the right to sell insurance to persons who have
resided within the State for a prescribed period of time.\196\ It may
require a nonresident who does business within the State\197\ or who
uses the highways of the State\198\ to consent, expressly or by
implication, to service of process on an agent within the State. Without
violating this section, a State may limit the dower rights of a
nonresident to lands of which the husband died seized while giving a
resident dower in all lands held during the marriage,\199\ or may leave
the rights of nonresident married persons in respect of property within
the State to be governed by the laws of their domicile, rather than by
the laws it promulgates for its own residents.\200\ But a State may not
give a preference to resident creditors in the administration of the
property of an insolvent foreign corporation.\201\ An act of the
Confederate Government, enforced by a State, to sequester a debt owed by
one of its residents to a citizen of another State was held to be a
flagrant violation of this clause.\202\
\196\LaTourette v. McMaster, 248 U.S. 465 (1919).
\197\Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
\198\Hess v. Pawloski, 274 U.S. 352, 356 (1927).
\199\Ferry v. Spokane P. & S. Ry. Co., 258 U.S. 314 (1922),
followed in Ferry v. Corbett, 258 U.S. 609 (1922).
\200\Conner v. Elliott, 18 How. (59 U.S.) 591, 593 (1856).
\201\Blake v. McClung, 172 U.S. 239, 248 (1898).
\202\Williams v. Bruffy, 96 U.S. 176, 184 (1878).
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Access to Courts
The right to sue and defend in the courts is one of the highest
and most essential privileges of citizenship and must be allowed by each
State to the citizens of all other States to the same extent that it is
allowed to its own citizens.\203\ The constitutional requirement is
satisfied if the nonresident is given access to the courts of the State
upon terms which, in themselves, are reasonable and adequate for the
enforcing of any rights he may have, even though they may not be
technically the same as those accorded to resident citizens.\204\ The
Supreme Court upheld a state statute of limitations which prevented a
nonresident from suing in the State's courts after expiration of the
time for suit in the place where the cause of action arose\205\ and
another such statute which suspended
[[Page 876]]
its operation as to resident plaintiffs, but not as to nonresidents,
during the period of the defendant's absence from the State.\206\ A
state law making it discretionary with the courts to entertain an action
by a nonresident of the State against a foreign corporation doing
business in the State was sustained since it was applicable alike to
citizens and noncitizens residing out of the State.\207\ A statute
permitting a suit in the courts of the State for wrongful death
occurring outside the State, only if the decedent was a resident of the
State, was sustained, because it operated equally upon representatives
of the deceased whether citizens or noncitizens.\208\ Being patently
nondiscriminatory, a Uniform Reciprocal State Law to secure the
attendance of witnesses from within or without a State in criminal
proceedings, whereunder an Illinois resident, while temporarily in
Florida, was summoned to appear at a hearing for determination as to
whether he should be surrendered to a New York officer for testimony in
the latter State is not violative of this clause.\209\
\203\Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148
(1907); McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934).
\204\Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553 (1920).
\205\Id., 563.
\206\Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
\207\Douglas v. New York, N.H. & H. R. Co., 279 U.S. 377 (1929).
\208\Chambers v. Baltimore & Ohio R.R., 207 U.S. 142 (1907).
\209\New York v. O'Neill, 359 U.S. 1 (1959). Justices Douglas
and Black dissented.
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Taxation
In the exercise of its taxing power, a State may not
discriminate substantially between residents and nonresidents. In Ward
v. Maryland,\210\ the Court set aside a state law which imposed specific
taxes upon nonresidents for the privilege of selling within the State
goods which were produced in other States. Also found to be incompatible
with the comity clause was a Tennessee license tax, the amount of which
was dependent upon whether the person taxed had his chief office within
or without the State.\211\ In Travis v. Yale & Towne Mfg. Co.,\212\ the
Court, while sustaining the right of a State to tax income accruing
within its borders to nonresidents,\213\ held the particular tax void
because it denied to nonresidents exemptions which were allowed to
residents. The ``terms `resident' and `citizen' are not synonymous,''
wrote Justice Pitney, ``. . . but a general taxing scheme . . . if it
discriminates against all
[[Page 877]]
nonresidents, has the necessary effect of including in the
discrimination those who are citizens of other States; . . .''\214\
Where there were no discriminations between citizens and noncitizens, a
state statute taxing the business of hiring persons within the State for
labor outside the State was sustained.\215\ This section of the
Constitution does not prevent a territorial government, exercising
powers delegated by Congress, from imposing a discriminatory license tax
on nonresident fishermen operating within its waters.\216\
\210\12 Wall. (79 U.S.) 418, 424 (1871). See also Downham v.
Alexandria Council, 10 Wall. (77 U.S.) 173, 175 (1870).
\211\Chalker v. Birmingham & Nw. Ry. Co., 249 U.S. 522 (1919).
\212\252 U.S. 60 (1920).
\213\Id., 62-64. See also Shaffer v. Carter, 252 U.S. 37 (1920).
In Austin v. New Hampshire, 420 U.S. 656 (1975), the Court held void a
state commuter income tax, inasmuch as the State imposed no income tax
on its own residents and thus the tax fell exclusively on nonresidents'
income and was not offset even approximately by other taxes imposed upon
residents alone.
\214\252 U.S. 60, 78-79 (1920).
\215\Williams v. Fears, 179 U.S. 270, 274 (1900).
\216\Haavik v. Alaska Packers Assn., 263 U.S. 510 (1924).
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However, what at first glance may appear to be a discrimination
may turn out not to be when the entire system of taxation prevailing in
the enacting State is considered. On the basis of over-all fairness, the
Court sustained a Connecticut statute which required nonresident
stockholders to pay a state tax measured by the full market value of
their stock while resident stockholders were subject to local taxation
on the market value of that stock reduced by the value of the real
estate owned by the corporation.\217\ Occasional or accidental
inequality to a nonresident taxpayer is not sufficient to defeat a
scheme of taxation whose operation is generally equitable.\218\ In an
early case the Court brushed aside as frivolous the contention that a
State violated this clause by subjecting one of its own citizens to a
property tax on a debt due from a nonresident secured by real estate
situated where the debtor resided.\219\
\217\Travellers' Inc. Co. v. Connecticut, 185 U.S. 364, 371
(1902).
\218\Maxwell v. Bugbee, 250 U.S. 525 (1919).
\219\Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf.
Colgate v. Harvey, 296 U.S. 404 (1935), in which discriminatory taxation
of bank deposits outside the State owned by a citizen of the State was
held to infringe a privilege of national citizenship, in contravention
of the Fourteenth Amendment. The decision in Colgate v. Harvey was
overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).
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Clause 2. A person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State, shall
on Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the
Crime.
[[Page 878]]
INTERSTATE RENDITION
Duty to Surrender Fugitives From Justice
Although this provision is not in its nature self-executing, and
there is no express grant to Congress of power to carry it into effect,
that body passed a law shortly after the Constitution was adopted,
imposing upon the Governor of each State the duty to deliver up
fugitives from justice found in such State.\220\ The Supreme Court has
accepted this contemporaneous construction as establishing the validity
of this legislation.\221\ The duty to surrender is not absolute and
unqualified; if the laws of the State to which the fugitive has fled
have been put in force against him, and he is imprisoned there, the
demands of those laws may be satisfied before the duty of obedience to
the requisition arises.\222\ But, in Kentucky. v. Dennison,\223\ the
Court held that this statute was merely declaratory of a moral duty;
that the Federal Government ``has no power to impose on a State officer,
as such, any duty whatever, and compel him to perform it; . . .'',\224\
and consequently that a federal court could not issue a mandamus to
compel the governor of one State to surrender a fugitive to another.
Long considered a constitutional derelict, Dennison was finally formally
overruled in 1987.\225\ Now, States and Territories may invoke the power
of federal courts to enforce against state officers this and other
rights
[[Page 879]]
created by federal statute, including equitable relief to compel
performance of federally-imposed duties.\226\
\220\1 Stat. 302 (1793), 18 U.S.C. Sec. 3182. The Act requires
rendition of fugitives at the request of a demanding ``Territory,'' as
well as of a State, thus extending beyond the terms of the clause. In
New York ex rel. Kopel v. Bingham, 211 U.S. 468 (1909), the Court held
that the legislative extension was permissible under the territorial
clause. See Puerto Rico v. Branstad, 483 U.S. 219, 229-230 (1987).
\221\Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes
v. Tobin, 240 U.S. 127 (1916). Said Justice Story: ``[T]he natural, if
not the necessary conclusion is, that the national government, in the
absence of all positive provisions to the contrary, is bound, through
its own proper departments, legislative, judicial, or executive, as the
case may require, to carry into effect all the rights and duties imposed
upon it by the Constitution;'' and again ``it has, on various occasions,
exercised powers which were necessary and proper as means to carry into
effect rights expressly given, and duties expressly enjoined thereby.''
Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 616, 618-619 (1842).
\222\Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 371 (1873).
\223\24 How. (65 U.S.) 66 (1861); cf. Prigg v. Pennsylvania, 16
Pet. (41 U.S.) 539, 612 (1842).
\224\24 How. (65 U.S.) 66, 107 (1861). Congress in 1934 plugged
the loophole created by this decision by making it unlawful for any
person to flee from one State to another for the purpose of avoiding
prosecution in certain cases. 48 Stat. 782, 18 U.S.C. Sec. 1073.
\225\Puerto Rico v. Branstad, 483 U.S. 219 (1987). ``Kentucky v.
Dennison is the product of another time. The conception of the relation
between the States and the Federal Government there announced is
fundamentally incompatible with more than a century of constitutional
development.'' Id., 230.
\226\Id., 230.
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Fugitive From Justice: Defined.--To be a fugitive from justice
within the meaning of this clause, it is not necessary that the party
charged should have left the State after an indictment found or for the
purpose of avoiding a prosecution anticipated or begun. It is sufficient
that the accused, having committed a crime within one State and having
left the jurisdiction before being subjected to criminal process, is
found within another State.\227\ The motive which induced the departure
is immaterial.\228\ Even if he were brought involuntarily into the State
where found by requisition from another State, he may be surrendered to
a third State upon an extradition warrant.\229\ A person indicted a
second time for the same offense is nonetheless a fugitive from justice
by reason of the fact that after dismissal of the first indictment, on
which he was originally indicted, he left the State with the knowledge
of, or without objection by, state authorities.\230\ But a defendant
cannot be extradited if he was only constructively present in the
demanding State at the time of the commission of the crime charged.\231\
For the purpose of determining who is a fugitive from justice, the words
``treason, felony or other crime'' embrace every act forbidden and made
punishable by a law of a State,\232\ including misdemeanors.\233\
\227\Roberts v. Reilly, 116 U.S. 80 (1885). See also Strassheim
v. Daily, 221 U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222
(1906); Ex parte Reggel, 114 U.S. 642, 650 (1885).
\228\Drew v. Thaw, 235 U.S. 432, 439 (1914).
\229\Innes v. Tobin, 240 U.S. 127 (1916).
\230\Bassing v. Cady, 208 U.S. 386 (1908).
\231\Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903).
\232\Kentucky v. Dennison, 24 How. (65 U.S.) 66, 103 (1861).
\233\Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 375 (1873).
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Procedure for Removal.--Only after a person has been charged
with a crime in the regular course of judicial proceedings is the
governor of a State entitled to make demand for his return from another
State.\234\ The person demanded has no constitutional right to be heard
before the governor of the State in which he is found on the question
whether he has been substantially charged with crime and is a fugitive
from justice.\235\ The constitutionally required surrender is not to be
interfered with by habeas corpus
[[Page 880]]
upon speculations as to what ought to be the result of a trial.\236\ Nor
is it proper thereby to inquire into the motives controlling the actions
of the governors of the demanding and surrendering States.\237\ Matters
of defense, such as the running of the statute of limitations,\238\ or
the contention that continued confinement in the prison of the demanding
State would amount to cruel and unjust punishment,\239\ cannot be heard
on habeas corpus but should be tested in the courts of the demanding
State, where all parties may be heard, where all pertinent testimony
will be readily available, and where suitable relief, if any, may be
fashioned. A defendant will, however, be discharged on habeas corpus if
he shows by clear and satisfactory evidence that he was outside the
demanding State at the time of the crime.\240\ If, however, the evidence
is conflicting, habeas corpus is not a proper proceeding to try the
question of alibi.\241\ The habeas court's role is, therefore, very
limited.\242\
\234\Kentucky v. Dennison, 24 How. (65 U.S.) 66, 104 (1861);
Pierce v. Creecy, 210 U.S. 387 (1908). See also Matter of Strauss, 197
U.S. 324, 325 (1905); Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim
v. Daily, 221 U.S. 280 (1911).
\235\Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v.
Nichols, 203 U.S. 192 (1906).
\236\Drew v. Thaw, 235 U.S. 432 (1914).
\237\Pettibone v. Nichols, 203 U.S. 192 (1906).
\238\Biddinger v. Commissioner of Police, 245 U.S. 128 (1917).
See also Rodman v. Pothier, 264 U.S. 399 (1924).
\239\Sweeney v. Woodall, 344 U.S. 86 (1952).
\240\Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See
also South Carolina v. Bailey, 289 U.S. 412 (1933).
\241\Munsey v. Clough, 196 U.S. 364, 375 (1905).
\242\Michigan v. Doran, 439 U.S. 282, 289 (1978). In California
v. Superior Court, 482 U.S. 400 (1987), the Court reiterated that
extradition is a ``summary procedure.''
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Trial of Fugitives After Removal.--There is nothing in the
Constitution or laws of the United States which exempts an offender,
brought before the courts of a State for an offense against its laws,
from trial and punishment, even though he was brought from another State
by unlawful violence,\243\ or by abuse of legal process,\244\ and a
fugitive lawfully extradited from another State may be tried for an
offense other than that for which he was surrendered.\245\ The rule is
different, however, with respect to fugitives surrendered by a foreign
government, pursuant to treaty. In that case the offender may be tried
only ``for the offense with which he is charged in the proceedings for
his extradition, until a reasonable time and opportunity have been given
him, after his release or trial upon such charge, to return to the
country from whose asylum he had been forcibly taken under those
proceedings.''\246\
\243\Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v.
Justice, 127 U.S. 700, 707, 712, 714 (1888).
\244\Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v.
Nichols, 203 U.S. 192, 215 (1906).
\245\Lascelles v. Georgia, 148 U.S. 537, 543 (1893).
\246\United States v. Rauscher, 119 U.S. 407, 430 (1886).
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[[Page 881]]
Clause 3. No person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour may
be due.
FUGITIVES FROM LABOR
This clause contemplated the existence of a positive unqualified
right on the part of the owner of a slave which no state law could in
any way regulate, control, or restrain. Consequently the owner of a
slave had the same right to seize and repossess him in another State, as
the local laws of his own State conferred upon him, and a state law
which penalized such seizure was held unconstitutional.\247\ Congress
had the power and the duty, which it exercised by the Act of February
12, 1793,\248\ to carry into effect the rights given by this
section,\249\ and the States had no concurrent power to legislate on the
subject.\250\ However, a state statute providing a penalty for harboring
a fugitive slave was held not to conflict with this clause since it did
not affect the right or remedy either of the master or the slave; by it
the State simply prescribed a rule of conduct for its own citizens in
the exercise of its police power.\251\
\247\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 612 (1842).
\248\1 Stat. 302 (1793).
\249\Jones v. Van Zandt, 5 How. (46 U.S.) 215, 229 (1847);
Ableman v. Booth, 21 How. (62 U.S.) 506 (1859).
\250\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 625 (1842).
\251\Moore v. Illinois, 14 How. (55 U.S.) 13, 17 (1853).
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ARTICLE IV
STATES' RELATIONS
Section 3. New States may be admitted by the Congress into this Union;
but no new State shall be formed or erected within the Jurisdiction of
any other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned was well as of the Congress.
DOCTRINE OF THE EQUALITY OF STATES
``Equality of constitutional right and power is the condition of
all the States of the Union, old and new.''\252\ This doctrine, now a
truism of constitutional law, did not find favor in the Constitu
[[Page 882]]
tional Convention. That body struck out from this section, as reported
by the Committee on Detail, two sections to the effect that ``new States
shall be admitted on the same terms with the original States. But the
Legislature may make conditions with the new States concerning the
public debt which shall be subsisting.''\253\ Opposing this action,
Madison insisted that ``the Western States neither would nor ought to
submit to a union which degraded them from an equal rank with the other
States.''\254\ Nonetheless, after further expressions of opinion pro and
con, the Convention voted nine States to two to delete the requirement
of equality.\255\
\252\Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883).
\253\2 M. Farrand, The Records of the Federal Convention of 1787
(New Haven; rev. ed. 1937), 454.
\254\Ibid.
\255\Ibid. The present provision was then adopted as a
substitute. Id., 455.
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Prior to this time, however, Georgia and Virginia had ceded to
the United States large territories held by them, upon condition that
new States should be formed therefrom and admitted to the Union on an
equal footing with the original States.\256\ Since the admission of
Tennessee in 1796, Congress has included in each State's act of
admission a clause providing that the State enters the Union ``on an
equal footing with the original States in all respects whatever.''\257\
With the admission of Louisiana in 1812, the principle of equality was
extended to States created out of territory purchased from a foreign
power.\258\ By the Joint Resolution of December 29, 1845, Texas, then an
independent Nation, ``was admitted into the Union on an equal footing
with the original States in all respects whatever.''\259\
\256\Pollard v. Hagan, 3 How. (44 U.S.) 212, 221 (1845). The
Continental Congress in responding in the Northwest Ordinance, on July
13, 1787, provided that when each of the designated States in the
territorial area achieved a population of 60,000 free inhabitants it was
to be admitted ``on an equal footing with the original States, in all
respects whatever[.]'' An Ordinance for the Government of the Territory
of the United States Northwest of the River Ohio, Art. V, 5 Journals of
Congress 752-754 (1823 ed.), reprinted in C. Tansill (ed.), Documents
Illustrative of the Formation of the Union of the American States, H.
Doc. No. 398, 69th Cong., 1st sess. (1927), 47, 54.
\257\1 Stat. 491 (1796). Prior to Tennessee's admission, Vermont
and Kentucky were admitted with different but conceptually similar
terminology. 1 Stat. 191 (1791); 1 Stat. 189 (1791).
\258\2 Stat. 701, 703 (1812).
\259\Justice Harlan, speaking for the Court, in United States v.
Texas, 143 U.S. 621, 634 (1892) (citing 9 Stat. 108).
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However, if the doctrine rested merely on construction of the
declarations in the admission acts, then the conditions and limitations
imposed by Congress and agreed to by the States in order to be admitted
would nonetheless govern, since they must be construed along with the
declarations. Again and again, however, in adjudicating the rights and
duties of States admitted after 1789,
[[Page 883]]
the Supreme Court has referred to the condition of equality as if it
were an inherent attribute of the Federal Union.\260\ That the doctrine
is of constitutional stature was made evident at least by the time of
the decision in Pollard's Lessee, if not before.\261\ Pollard's Lessee
involved conflicting claims by the United States and Alabama of
ownership of certain partially inundated lands on the shore of the Gulf
of Mexico in Alabama. The enabling act for Alabama had contained both a
declaration of equal footing and a reservation to the United States of
these lands.\262\ Rather than an issue of mere land ownership, the Court
saw the question as one concerning sovereignty and jurisdiction of the
States. Inasmuch as the original States retained sovereignty and
jurisdiction over the navigable waters and the soil beneath them within
their boundaries, retention by the United States of either title to or
jurisdiction over common lands in the new States would bring those
States into the Union on less than an equal footing with the original
States. This, the Court would not permit. ``Alabama is, therefore,
entitled to the sovereignty and jurisdiction over all the territory
within her limits, subject to the common law, to the same extent that
Georgia possessed it, before she ceded it to the United States. To
maintain any other doctrine, is to deny that Alabama has been admitted
into the union on an equal footing with the original states, the
constitution, laws, and compact, to the contrary notwithstanding. . . .
[T]o Alabama belong the navigable waters and soils under them, in
controversy in this case, subject to the rights surrendered by the
Constitution to the United States; and no compact that might be made
between her and the United States could diminish or enlarge these
rights.''\263\
\260\Permoli v. First Municipality, 3 How. (44 U.S.) 589, 609
(1845); McCabe v. Atchison, T. & S.F. Ry Co., 235 U.S. 151 (1914);
Illinois Central Railroad v. Illinois, 146 U.S. 387, 434 (1892); Knight
v. U.S. Land Association, 142 U.S. 161, 183 (1891); Weber v. Harbor
Commissioners, 18 Wall. (85 U.S.) 57, 65 (1873).
\261\Pollard's Lessee v. Hagan, 3 How. (44 U.S.) 212 (1845). See
Mayor of New Orleans v. United States, 10 Pet. (35 U.S.) 662 (1836);
Permoli v. Municipality No. 1 of New Orleans, 3 How. (44 U.S.) 588
(1845).
\262\3 Stat. 489, 492 (1819).
\263\Pollard's Lessee v. Hagan, 3 How. (44 U.S.) 212, 228-229
(1845) (emphasis supplied). And see id., 222-223.
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Finally, in 1911, the Court invalidated a restriction on the
change of location of the State capital, which Congress had imposed as a
condition for the admission of Oklahoma, on the ground that Congress may
not embrace in an enabling act conditions relating wholly to matters
under state control.\264\ In an opinion, from which Justices Holmes and
McKenna dissented, Justice Lurton argued: ``The power is to admit `new
States into this Union,' `This Union'
[[Page 884]]
was and is a union of States, equal in power, dignity and authority,
each competent to exert that residuum of sovereignty not delegated to
the United States by the Constitution itself. To maintain otherwise
would be to say that the Union, through the power of Congress to admit
new States, might come to be a union of States unequal in power, as
including States whose powers were restricted only by the Constitution,
with others whose powers had been further restricted by an act of
Congress accepted as a condition of admission.''\265\
\264\Coyle v. Smith, 221 U.S. 559 (1911).
\265\Id., 567.
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The equal footing doctrine is a limitation only upon the terms
by which Congress admits a State.\266\ That is, States must be admitted
on an equal footing in the sense that Congress may not exact conditions
solely as a tribute for admission, but it may, in the enabling or
admitting acts or subsequently impose requirements that would be or are
valid and effectual if the subject of congressional legislation after
admission.\267\ Thus, Congress may embrace in an admitting act a
regulation of commerce among the States or with Indian tribes or rules
for the care and disposition of the public lands or reservations within
a State. ``[I]n every such case such legislation would derive its force
not from any agreement or compact with the proposed new State, nor by
reason of its acceptance of such enactment as a term of admission, but
solely because the power of Congress extended to the subject, and,
therefore, would not operate to restrict the State's legislative power
in respect of any matter which was not plainly within the regulating
power of Congress.''\268\
\266\South Carolina v. Katzenbach, 383 U.S. 301, 328-329 (1966).
There is a broader implication, however, in Baker v. Carr, 369 U.S. 186,
226 n. 53 (1962).
\267\Pollard's Lessee v. Hagan, 3 How. (44 U.S.) 212, 224-225,
229-230 (1845); Coyle v. Smith, 221 U.S. 559, 573-574 (1911). See also
Bolln v. Nebraska, 176 U.S. 83, 89 (1900); Ward v. Race Horse, 163 U.S.
504, 514 (1895); Escanaba Co. v. City of Chicago, 107 U.S. 678, 688
(1882); Withers v. Buckley, 20 How. (61 U.S.) 84, 92 (1857).
\268\Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include
Stearns v. Minnesota, 179 U.S. 223 (1900) (congressional authority to
dispose of and to make rules and regulations respecting the property of
the United States); United States v. Sandoval, 231 U.S. 28 (1913)
(regulating Indian tribes and intercourse with them); United States v.
Chavez, 290 U.S. 357 (1933) (same); Willamette Bridge Co. v. Hatch, 125
U.S. 1, 9-10 (1888) (prevention of interference with navigability of
waterways under commerce clause).
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Until recently the requirement of equality has applied primarily
to political standing and sovereignty rather than to economic or
property rights.\269\ Broadly speaking, every new State is entitled to
exercise all the powers of government which belong to
[[Page 885]]
the original States of the Union.\270\ It acquires general jurisdiction,
civil and criminal, for the preservation of public order, and the
protection of persons and property throughout its limits even as to
federal lands, except where the Federal Government has reserved\271\ or
the State has ceded some degree of jurisdiction to the United States,
and, of course, no State can enact a law which would conflict with the
constitutional powers of the United States. Consequently, it has
jurisdiction to tax private activities carried on within the public
domain (although not to tax the Federal lands), if the tax does not
constitute an unconstitutional burden on the Federal Government.\272\
Statutes applicable to territories, e.g., the Northwest Territory
Ordinance of 1787, cease to have any operative force when the territory,
or any part thereof, is admitted to the Union, except as adopted by
state law.\273\ When the enabling act contains no exclusion of
jurisdiction as to crimes committed on Indian reservations by persons
other than Indians, state courts are vested with jurisdiction.\274\ But
the constitutional authority of Congress to regulate commerce with
Indian tribes is not inconsistent with the equality of new States,\275\
and conditions inserted in the New Mexico Enabling Act forbidding the
introduction of liquor into Indian territory were therefore valid.\276\
\269\United States v. Texas, 339 U.S. 707, 716 (1950); Stearns
v. Minnesota, 179 U.S. 223, 245 (1900).
\270\Pollard v. Hagan, 3 How. (44 U.S.) 212, 223 (1845); McCabe
v. Atchison T. & S.F. Ry. Co., 235 U.S. 151 (1914).
\271\Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
\272\Wilson v. Cook, 327 U.S. 474 (1946).
\273\Permoli v. First Municipality, 3 How. (44 U.S.) 589, 609
(1845); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see
also Withers v. Buckley, 20 How. (61 U.S.) 84, 92 (1858); Huse v.
Glover, 119 U.S. 543 (1886); Willamette Iron Bridge Co. v. Hatch, 125
U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R. Co., 223
U.S. 390 (1912).
\274\Draper v. United States, 164 U.S. 240 (1896), following
United States v. McBratney, 104 U.S. 621 (1882).
\275\Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb,
225 U.S. 663 (1912).
\276\United States v. Sandoval, 231 U.S. 28 (1913).
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Admission of a State on an equal footing with the original
States involves the adoption as citizens of the United States of those
whom Congress makes members of the political community and who are
recognized as such in the formation of the new State.\277\
\277\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).
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Judicial Proceedings Pending on Admission of New States
Whenever a territory is admitted into the Union, the cases
pending in the territorial court which are of exclusive federal
cognizance are transferred to the federal court having jurisdiction over
the area; cases not cognizable in the federal courts are transferred
[[Page 886]]
to the tribunals of the new State, and those over which federal and
state courts have concurrent jurisdiction may be transferred either to
the state or federal courts by the party possessing the option under
existing law.\278\ Where Congress neglected to make provision for
disposition of certain pending cases in an enabling act for the
admission of a State to the Union, a subsequent act supplying the
omission was held valid.\279\ After a case, begun in a United States
court of a territory, is transferred to a state court under the
operation of the enabling act and the state constitution, the appellate
procedure is governed by the state statutes and procedures.\280\
\278\Baker v. Morton, 12 Wall. (79 U.S.) 150, 153 (1871).
\279\Freeborn v. Smith, 2 Wall. (69 U.S.) 160 (1865).
\280\John v. Paullin, 231 U.S. 583 (1913).
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The new State, without the express or implied assent of
Congress, cannot enact that the records of the former territorial court
of appeals should become records of its own courts or provide by law for
proceedings based thereon.\281\
\281\Hunt v. Palao, 4 How. (45 U.S.) 589 (1846). Cf. Benner v.
Porter, 9 How. (50 U.S.) 235, 246 (1850).
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Property Rights of States to Soil Under Navigable Waters
The ``equal footing'' doctrine has had an important effect on
the property rights of new States to soil under navigable waters. In
Pollard v. Hagan,\282\ as was observed above, the Court held that the
original States had reserved to themselves the ownership of the shores
of navigable waters and the soils under them, and that under the
principle of equality the title to the soils of navigable water passes
to a new State upon admission. The principle of this case supplies the
rule of decision in many property-claims cases.\283\
\282\3 How. (44 U.S.) 212, 223 (1845). See also Martin v.
Waddell, 16 pet. (41 U.S.) 367, 410 (1842).
\283\See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469
(1988) (confirming language in earlier cases recognizing state
sovereignty over tidal but nonnavigable lands); Utah Division of State
Lands v. United States, 482 U.S. 193 (1987) (applying presumption
against congressional intent to defeat state title to find inadequate
federal reservation of lake bed); Oregon ex rel. State Land Board v.
Corvallis Sand & Gravel Co., 429 U.S. 363 (1977) (doctrine requires
utilization of state common law rather than federal to determine
ownership of land underlying river that is navigable but not an
interstate boundary); Shively v. Bowlby, 152 U.S. 1 (1894) (whether
Oregon or a prestatehood grantee from the United States of riparian
lands near mouth of Columbia River owned soil below high-water mark).
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After refusing to extend the inland-water rule of Pollard's
Lessee to the three mile marginal belt under the ocean along the
coast,\284\ the Court applied the principle in reverse in United States
v. Texas.\285\ Since the original States had been found not to own
[[Page 887]]
the soil under the three mile belt, Texas, which concededly did own this
soil before its annexation to the United States, was held to have
surrendered its dominion and sovereignty over it, upon entering the
Union on terms of equality with the existing States. To this extent, the
earlier rule that unless otherwise declared by Congress the title to
every species of property owned by a territory passes to the State upon
admission\286\ has been qualified. However, when Congress, through
passage of the Submerged Lands Act of 1953,\287\ surrendered its
paramount rights to natural resources in the marginal seas to certain
States, without any corresponding cession to all States, the transfer
was held to entail no abdication of national sovereignty over control
and use of the oceans in a manner destructive of the equality of the
States.\288\
\284\United States v. California, 332 U.S. 19, 38 (1947); United
States v. Louisiana, 339 U.S. 699 (1950).
\285\339 U.S. 707, 716 (1950). See United States v. Maine, 420,
U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and
Texas cases).
\286\Brown v. Grant, 116 U.S. 207, 212 (1886).
\287\67 Stat. 29, 43 U.S.C. Sec. Sec. 1301-1315.
\288\Alabama v. Texas, 347 U.S. 272, 274-277, 281 (1954).
Justice Black and Douglas dissented.
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While the territorial status continues, the United States has
power to convey property rights, such as rights in soil below the high-
water mark along navigable waters,\289\ or the right to fish in
designated waters,\290\ which will be binding on the State. But a treaty
with an Indian tribe which gave hunting rights on unoccupied lands of
the United States, which rights should cease when the United States
parted with its title to any of the land, was held to be repealed by the
admission to the Union of the territory in which the hunting lands were
situated.\291\
\289\Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v.
St. Louis, 201 U.S. 332 (1906).
\290\United States v. Winans, 198 U.S. 371, 378 (1905); Seufert
Bros. Co. v. United States, 249 U.S. 194 (1919). A fishing right granted
by treaty to Indians does not necessarily preclude the application to
Indians of state game laws regulating the time and manner of taking
fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916). See also
Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57-59 (1962): Kake Village
v. Egan, 369 U.S. 60, 64-65, 67-69, 75-76 (1962). But it has been held
to be violated by the exaction of a license fee which is both regulatory
and revenue producing. Tulee v. Washington, 315 U.S. 681 (1942).
\291\Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).
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Clause 2. The Congress shall have Power to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
[[Page 888]]
PROPERTY AND TERRITORY: POWERS OF CONGRESS PROPERTY OF THE UNITED STATES
Methods of Disposing Thereof
The Constitution is silent as to the methods of disposing of
property of the United States. In United States v. Gratiot,\292\ in
which the validity of a lease of lead mines on government lands was put
in issue, the contention was advanced that ``disposal is not letting or
leasing,'' and that Congress has no power ``to give or authorize
leases.'' The Court sustained the leases, saying ``the disposal must be
left to the discretion of Congress.''\293\ Nearly a century later this
power to dispose of public property was relied upon to uphold the
generation and sale of electricity by the Tennessee Valley Authority.
The reasoning of the Court ran thus: the potential electrical energy
made available by the construction of a dam in the exercise of its
constitutional powers is property which the United States is entitled to
reduce to possession; to that end it may install the equipment necessary
to generate such energy. In order to widen the market and make a more
advantageous disposition of the product, it may construct transmission
lines and may enter into a contract with a private company for the
interchange of electric energy.\294\
\292\14 Pet. (39 U.S.) 526 (1840).
\293\Id., 533, 538.
\294\Ashwander v. TVA, 297 U.S. 288, 335-340 (1936). See also
Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).
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Public Lands: Federal and State Powers Thereover
No appropriation of public lands may be made for any purpose
except by authority of Congress.\295\ However, the long-continued
practice of withdrawing land from the public domain by Executive Orders
for the purpose of creating Indian reservations has raised an implied
delegation of authority from Congress to take such action.\296\ The
comprehensive authority of Congress over public lands includes the power
to prescribe the times, conditions, and mode of transfer thereof and to
designate the persons to whom the transfer shall be made,\297\ to
declare the dignity and effect of titles emanat
[[Page 889]]
ing from the United States,\298\ to determine the validity of grants
which antedate the government's acquisition of the property,\299\ to
exempt lands acquired under the homestead laws from previously
contracted debts,\300\ to withdraw land from settlement and to prohibit
grazing thereon,\301\ to prevent unlawful occupation of public property
and to declare what are nuisances, as affecting such property, and
provide for their abatement,\302\ and to prohibit the introduction of
liquor on lands purchased and used for an Indian colony.\303\ Congress
may limit the disposition of the public domain to a manner consistent
with its views of public policy. A restriction inserted in a grant of
public lands to a municipality which prohibited the grantee from selling
or leasing to a private corporation the right to sell or sublet water or
electric energy supplied by the facilities constructed on such land was
held valid.\304\
\295\United States v. Fitzgerald, 15 Pet. (40 U.S.) 407, 421
(1841). See also California v. Deseret Water, Oil & Irrigation Co., 243
U.S. 415 (1917); Utah Power & Light Co. v. United States, 243 U.S. 389
(1917).
\296\Sioux Tribe v. United States, 316 U.S. 317 (1942); United
States v. Midwest Oil Co., 236 U.S. 459,469 (1915).
\297\Gibson v. Chouteau, 13 Wall. (80 U.S.) 92, 99 (1872); see
also Irvine v. Marshall, 20 How. (61 U.S.) 558 (1858); Emblem v. Lincoln
Land Co., 184 U.S. 660, 664 (1902).
\298\Bagnell v. Broderick, 13 Pet. (38 U.S.) 436, 450 (1839).
See also Field v. Seabury, 19 How. (60 U.S.) 323, 332 (1857).
\299\Tameling v. United States Freehold & Immigration Co., 93
U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325,
366 (1887).
\300\Ruddy v. Rossi, 248 U.S. 104 (1918).
\301\Light v. United States, 220 U.S. 523 (1911). See also The
Yosemite Valley Case, 15 Wall. (82 U.S.) 77 (1873).
\302\Camfield v. United States, 167 U.S. 518, 525 (1897). See
also Jourdan v. Barrett, 4 How. (45 U.S.) 169 (1846): United States v.
Waddell, 112 U.S. 76 (1884).
\303\United States v. McGowan, 302 U.S. 535 (1938).
\304\United States v. City of San Francisco, 310 U.S. 16 (1940).
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Unanimously upholding a federal law to protect wild-roaming
horses and burros on federal lands, the Court restated the applicable
principles governing Congress' power under this clause. It empowers
Congress to act as both proprietor and legislature over the public
domain; Congress has complete power to make those ``needful rules''
which in its discretion it determines are necessary. When Congress acts
with respect to those lands covered by the clause, its legislation
overrides conflicting state laws.\305\ Absent action by Congress,
however, States may in some instances exercise some jurisdiction over
activities on federal lands.\306\
\305\Kleppe v. New Mexico, 426 U.S. 529 (1976).
\306\California Coastal Comm. v. Granite Rock Co., 480 U.S. 572
(1987).
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No State can tax public lands of the United States within its
borders,\307\ nor can state legislation interfere with the power of
Congress under this clause or embarrass its exercise.\308\ Thus, by
virtue of a Treaty of 1868, according self-government to Navajos living
on an Indian Reservation in Arizona, the tribal court, rather than the
courts of that State, had jurisdiction over a suit for a debt
[[Page 890]]
owed by an Indian resident thereof to a non-Indian conducting a store on
the Reservation under federal license.\309\ The question whether title
to land which has once been the property of the United States has passed
from it must be resolved by the laws of the United States; after title
has passed, ``that property, like all other property in the state, is
subject to state legislation, so far as that legislation is consistent
with the admission that the title passed and vested according to the
laws of the United States.''\310\ In construing a conveyance by the
United States of land within a State, the settled and reasonable rule of
construction of the State affords a guide in determining what impliedly
passes to the grantee as an incident to land expressly granted.\311\ But
a state statute enacted subsequently to a federal grant cannot operate
to vest in the State rights which either remained in the United States
or passed to its grantee.\312\
\307\Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson
v. Cook, 327 U.S. 474 (1946).
\308\Gibson v. Choutau, 13 Wall. (80 U.S.) 92, 99 (1872). See
also Irvine v. Marshall, 20 How. (61 U.S.) 558 (1858); Emblem v. Lincoln
Land Co., 184 U.S. 660, 664 (1902).
\309\Williams v. Lee, 358 U.S. 217 (1959).
\310\Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 517 (1839).
\311\Oklahoma v. Texas, 258 U.S. 574, 595 (1922).
\312\United States v. Oregon, 295 U.S. 1, 28 (1935).
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Territories: Powers of Congress Thereover
In the territories, Congress has the entire dominion and
sovereignty, national and local, and has full legislative power over all
subjects upon which a state legislature might act.\313\ It may legislate
directly with respect to the local affairs of a territory or it may
transfer that function to a legislature elected by the citizens
thereof,\314\ which will then be invested with all legislative power
except as limited by the Constitution of the United States and acts of
Congress.\315\ In 1886, Congress prohibited the enactment by territorial
legislatures of local or special laws on enumerated subjects.\316\ The
constitutional guarantees of private rights are applicable in
territories which have been made a part of the United States by
congressional action\317\ but not in unincorporated territories.\318\
Con
[[Page 891]]
gress may establish, or may authorize the territorial legislature to
create, legislative courts whose jurisdiction is derived from statutes
enacted pursuant to this section other than from Article III.\319\ Such
courts may exercise admiralty jurisdiction despite the fact that such
jurisdiction may be exercised in the States only by constitutional
courts.\320\
\313\Simms v. Simms, 175 U.S. 162, 168 (1899). See also United
States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v.
Gutierrez, 215 U.S. 87 (1909); First Nat. Bank v. County of Yankton, 101
U.S. 129, 133 (1880).
\314\Binns v. United States, 194 U.S. 486, 491 (1904). See also
Sere v. Pitot, 6 Cr. (10 U.S.) 332, 336 (1810); Murphy v. Ramsey, 114
U.S. 15, 44 (1885).
\315\Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 604
(1897); Simms v. Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170
U.S. 588, 591 (1898).
\316\24 Stat. 170 (1886).
\317\Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also
Mormon Church v. United States, 136 U.S. 1, 14 (1890); ICC v. United
States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912).
\318\Downes v. Bidwell, 182 U.S. 244 (1901);Dorr v. United
States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922)
(collectively, the Insular Cases). The guarantees of fundamental rights
apply to persons in Puerto Rico, id., 312-313, but what these are and
how they are to be determined, in light of Balzac's holding that the
right to a civil jury trial was not protected. The vitality of the
Insular Cases has been questioned by some Justices, Reid v. Covert, 354
U.S. 1, 14 (1957) (plurality opinion); Torres v. Puerto Rico, 442 U.S.
465, 474, 475 (1979) (concurring opinion of four Justices), but there is
no doubt the Court adheres to it, United States v. Verdugo-Urquidez, 494
U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980), and the
developing caselaw using the cases as the proper analysis. Applying
stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining
Board v. Flores de Otero, 426 U.S. 572 (1976) (equal protection
principles); Torres v. Puerto Rico, 442 U.S. 465 (1979) (search and
seizure); Harris v. Rosario, supra (same); Rodriguez v. Popular
Democratic Party, 457 U.S. 1, 7-8 (1982) (equality of voting rights);
Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 331 n. 1
(1986) (First Amendment speech). See also Califano v. Torres, 435 U.S.
1, 4 n. 6 (1978) (right to travel assumed). Puerto Rico is, of course,
not the only territory that is the subject of the doctrine of the
Insular Cases. E.g., Ocampo v. United States, 234 U.S. 91 (1914)
(Philippines and Sixth Amendment jury trial); Hawaii v. Mankichi, 190
U.S. 197 (1903) (grand jury indictment and trial by jury).
\319\American Insurance Co. v. Canter, 1 Pet. (26 U.S.) 511, 546
(1828). See also Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434-447
(1872); Hornbuckle v. Toombs, 18 Wall. (85 U.S.) 648, 655 (1874);
Reynolds v. United States, 98 U.S. 145, 154 (1879); The ``City of
Panama,'' 101 U.S. 453, 460 (1880); McAllister v. United States, 141
U.S. 174, 180 (1891); United States v. McMillan, 165 U.S. 504, 510
(1897); Romeu v. Todd, 206 U.S. 358, 368 (1907).
\320\American Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511, 545
(1828).
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ARTICLE IV
STATES' RELATIONS
Section 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of them
against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.
GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT
The first clause of this section, in somewhat different
language, was contained in the Virginia Plan introduced in the
Convention and was obviously attributable to Madison.\321\ Through the
various
[[Page 892]]
permutations into its final form,\322\ the object of the clause seems
clearly to have been more than an authorization for the Federal
Government to protect States against foreign invasion or internal
insurrection,\323\ a power seemingly already conferred in any case.\324\
No one can now resurrect the full meaning of the clause and intent which
moved the Framers to adopt it, but with the exception of the reliance
for a brief period during Reconstruction the authority contained within
the confines of the clause has been largely unexplored.\325\
\321\``Resd. that a Republican government . . . ought to be
guaranteed by the United States to each state.'' 1 M. Farrand, The
Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937),
22. In a letter in April, 1787, to Randolph, who formally presented the
Virginia Plan to the Convention, Madison had suggested that ``an article
ought to be inserted expressly guaranteeing the tranquility of the
states against internal as well as external danger. . . . Unless the
Union be organized efficiently on republican principles innovations of a
much more objectionable form may be obtruded.'' 2 Writings of James
Madison, G. Hunt ed. (New York: 1900), 336. On the background of the
clause, see W. Wiecek, The Guarantee Clause of the U.S. Constitution
(Ithaca: 1972), ch. 1.
\322\Thus, on June 11, the language of the provision was on
Madison's motion changed to: ``Resolved that a republican constitution
and its existing laws ought to be guaranteed to each state by the United
States.'' 1 M. Farrand, The Records of the Federal Convention of 1787
(New Haven: rev. ed. 1937), 193-194, 206. Then, on July 18, Gouverneur
Morris objected to this language on the ground that ``[h]e should be
very unwilling that such laws as exist in R. Island ought to be
guaranteed to each State of the Union.'' 2 id., 47. Madison then
suggested language ``that the Constitutional authority of the States
shall be guaranteed to them respectively against domestic as well as
foreign violence,'' whereas Randolph wanted to add to this the language
``and that no State be at liberty to form any other than a Republican
Govt.'' Wilson then moved, ``as a better expression of the idea,''
almost the present language of the section, which was adopted. Id., 47-
49.
\323\Thus, Randolph on June 11, supporting Madison's version
pending then, said that ``a republican government must be the basis of
our national union; and no state in it ought to have it in their power
to change its government into a monarchy.'' 1 id., 206. Again, on July
18, when Wilson and Mason indicated their understanding that the object
of the proposal was ``merely'' to protect States against violence,
Randolph asserted: ``The Resoln. has 2 Objects. 1. to secure Republican
government. 2. to suppress domestic commotions. He urged the necessity
of both these provisions.'' 2 id., 47. Following speakers alluded to the
dangers of monarchy being created peacefully as necessitating the
provision. Id., 48. See W. Wiecek, The Guarantee Clause of the U.S.
Constitution (Ithaca: 1972), ch. 2.
\324\See Article I, Sec. 8, cl. 15.
\325\See generally W. Wiecek, The Guarantee Clause of the U.S.
Constitution (Ithaca: 1972).
---------------------------------------------------------------------------
In Luther v. Borden,\326\ the Supreme Court established the
doctrine that questions arising under this section are political, not
judicial, in character and that ``it rests with Congress to decide what
government is the established one in a State . . . as well as its
republican character.''\327\ Texas v. White\328\ held that the action of
the President in setting up provisional governments at the conclusion of
the war was justified, if at all, only as an exercise of his powers as
Commander-in-Chief and that such governments were to be regarded merely
as provisional regimes to perform the functions of government pending
action by Congress. On the ground that the
[[Page 893]]
issues were not justiciable, the Court in the early part of this century
refused to pass on a number of challenges to state governmental reforms
and thus made the clause in effect noncognizable by the courts in any
matter,\329\ a status from which the Court's opinion in Baker v.
Carr,\330\ despite its substantial curbing of the political question
doctrine, did not release it.\331\
\326\7 How. (48 U.S.) 1 (1849).
\327\Id., 42.
\328\7 Wall. (74 U.S.) 700, 729 (1869). In Georgia v. Stanton, 6
Wall. (73 U.S.) 50 (1868), the State attempted to attack Reconstruction
legislation on the premise that it already had a republican form of
government and that Congress was thus not authorized to act. The Court
viewed the congressional decision as determinative.
\329\Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118
(1912); Kiernan v. City of Portland, 223 U.S. 151 (1912); Davis v. Ohio,
241 U.S. 565 (1916); Ohio v. Akron Park District, 281 U.S. 74 (1930);
O'Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms Dairy v. Agnew,
300 U.S. 608 (1937). But in certain earlier cases the Court had disposed
of guarantee clause questions on the merits. Forsyth v. Hammond, 166
U.S. 506 (1897); Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875).
\330\369 U.S. 186, 218-232 (1962). In the Court's view,
guarantee clause questions were nonjusticiable because resolution of
them had been committed to Congress and not because they involved
matters of state governmental structure.
\331\More recently, the Court speaking through Justice O'Connor
has raised without deciding the possibility that the guarantee clause is
justiciable and is a constraint upon Congress' power to regulate the
activities of the States. New York v. United States, 112 S.Ct. 2408,
2432-2433 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). The
opinions draw support from a powerful argument for utilizing the
guarantee clause as a judicially enforceable limit on federal power.
Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third
Century, 88 Colum. L. Rev. 1 (1988).
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Similarly, in Luther v. Borden,\332\ the Court indicated that it
rested with Congress to determine upon the means proper to fulfill the
guarantee of protection to the States against domestic violence. Chief
Justice Taney declared that Congress might have placed it in the power
of a court to decide when the contingency had happened which required
the Federal Government to interfere, but that instead Congress had by
the act of February 28, 1795,\333\ authorized the President to call out
the militia in case of insurrection against the government of any State.
It followed, said Taney, that the President ``must, of necessity, decide
which is the government, and which party is unlawfully arrayed against
it, before he can perform the duty imposed upon him by the act of
Congress'',\334\ which determination was not subject to review by the
courts.
\332\7 How. (48 U.S.) 1 (1849).
\333\1 Stat. 424.
\334\Luther v. Borden, 7 How. (48 U.S.) 1, 43 (1849).
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In recent years, the authority of the United States to use
troops and other forces in the States has not generally been derived
from this clause and it has been of little importance.\335\
\335\Supra, pp. 472-473, 557-561.
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