Granville-Smith v. Granville-Smith/Dissent Clark

by Tom C. Clark

United States Supreme Court

349 U.S. 1

Granville-Smith  v.  Granville-Smith

 Argued: Feb. 3 and 4, 1955. --- Decided: April 11, 1955

Mr. Justice CLARK, with whom Mr. Justice BLACK and Mr. Justice REED join, dissenting.

A 'fundamental tenet of judicial review' the late Mr. Justice Jackson said, is that 'not the wisdom or policy of legislation, but only the power of the legislature, is a fit subject for consideration by the courts.' Jackson, The Struggle for Judicial Supremacy (1941), p. 81. Some 10 years later in Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586, he added that 'judicially we must tolerate what personally we may regard as a legislative mistake.'

I must dissent here because I feel that the majority, in striking down the Virgin Islands' divorce law, is substituting its wisdom and policy for that of the Congress. I fail to see how the Virgin Islands' failure to require-in form as well as substance jurisdictional requirements for divorce equal to those presently in vogue in the States is any more than a 'legislative mistake.' The Court, however, in the face of an unbroken national history of granting to our territories full authority in legislating on such subjects, declares the Islands' divorce law invalid on the ground that, rather than being 'of local application,' ^[1] it was 'designed for export.' In so doing, the Court does violence to the command of the Congress; it overrides a long line of its own decisions, as well as the unanimous opinion in this case of the seven judges of the Court of Appeals for the Third Circuit, each of whom has had long experience with territorial acts; and, finally, it confounds the fundamental law governing our territories which heretofore has gone unquestioned.

The legislative history of the 'subjects of local application' provision, on which the Court grounds its action, shows beyond a doubt that today's construction was never dreamed of by the Congress.

The Congress first used closely similar language in 1850. The Organic Act for the Territory of New Mexico provided that 'the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of New Mexico as elsewhere within the United States.' (Emphasis supplied.) 9 Stat. 452. The Act also declared that the legislative power of the Territory covered 'all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act'. 9 Stat. 449.

Fifty years later, the Foraker Act, 31 Stat. 77, establishing a civil government for Puerto Rico, used the same 'not locally inapplicable' provision when extending the laws of the United States to that Island. With reference to the powers of the local legislature, the Act repeated this phrasing, extending the local authority to 'all matters of a legislative character not locally inapplicable * * *,' ^[2] 31 Stat. 83, instead of 'rightful subjects of legislation'. After the Foraker Act, the words evolved but little, until now, with the dropping of the double negative, the phrase has become 'subjects of local application'.

The majority does not dispute that the legislative power of the Virgin Islands is at least on a par with that of Puerto Rico under the Foraker Act. It does, however, contend that the phrase 'of local application' represents a positive limitation on the powers of the Islands below that of a State. That the Virgin Islands has not the quantum of self-government which a State possesses is beyond question. All local laws are subject to the absolute veto shared by the appointive governor and the President of the United States. There are specific limitations on the Islands' legislative power. ^[3] And Congress has specifically provided that it may annul any local law. 48 U.S.C. § 1574c, 48 U.S.C.A. § 1575. However, the Islands' divorce law has been neither vetoed nor annulled.

As the majority points out, 'the phrase (of local application) most liberally interpreted can be no broader than 'all rightful subjects of legislation." Illiberally interpreted, however, it can be no narrower. The Senate Report on the Foraker bill could not possibly be clearer in saying, with reference to the 'not locally inapplicable' phrase, that the 'legislative assembly * * * shall have complete power, subject to the veto of the governor and the supervision of Congress, to legislate upon all rightful subjects of legislation.' (Emphasis supplied.) S.Rep. No. 249, 56th Cong., 1st Sess. 3.

What then, has this Court said is the meaning of 'rightful subjects of legislation'? We note that the majority cites People v. Daniels, 6 Utah 288, 22 P. 160, a decision by the territorial court of Utah, that the Territory was 'restricted' to 'rightful subjects of legislation'. In Cope v. Cope, 137 U.S. 682, 684, 11 S.Ct. 222, 34 L.Ed. 832, decided the following year, this Court held 'With the exceptions noted in this section (such as 'no law shall be passed interfering with the primary disposition of the soil'), the power of the territorial legislature was apparently as plenary as that of the legislature of a state.' ^[4]

Nor were the Caribbean territories placed on a footing different from that of our other possessions. The debates show that Congress was not unaware of the nature of the power it was granting to the local legislators in our Caribbean possessions. Rather than asserting that Puerto Rico had been given less power, one Congressman complained that it had been given more power than had been granted to any territory. 54 Cong.Rec. 3008 3009. Likewise, the debates on the Foraker Act and its successors indicate that the Congress thought that our Caribbean possessions had, within specific restrictions, attained self- government, 54 Cong.Rec. 3074; 53 Cong.Rec. 7478. In one of the debates, at 33 Cong.Rec. 3079, one Senator said, 'Congress, having supreme legislative power over the Territories and not being expressly restricted by the Constitution, can delegate power to local tribunals for self-government, corresponding with the powers of the States of the Union as to legislation. * * * Congress has chosen to leave Puerto Rico (and Hawaii) under the control of their local laws.' In the debates somewhat earlier, the view was expressed that there was no 'radical difference' between Puerto Rico and the other territories, 33 Cong.Rec. 3084, and that Puerto Rico was to receive local self-government, 53 Cong.Rec. 8470. The debates provide further evidence that the phrase 'of local application,' like its ancestral provisions, was not meant as a limitation on the powers of the territories. Again and again in these debates and committee reports, limitations on self-government for the territories are listed. An examination of these listings shows them to be quite complete, but nowhere does the phrase 'of local application' or its equivalent appear among them. 53 Cong.Rec. 7479; H.R.Rep.No.163, 62d Cong., 1st Sess. (with reference to Alaska). In fact, nowhere in the hundreds of pages of legislative history of the acts of Congress using this phrase does it appear that Congress ever contemplated that 'of local application' might be interpreted as a specific limitation.

The government of our Caribbean possessions has been modified by Congress on various occasions, always definitely in the direction of more self-government. See H.R.Rep.No.461, 63d Cong., 2d Sess., 53 Cong.Rec. 7469. As is common in such enactments, a compromise is reached between those who want still greater independence and those who feel that the present degree of restriction is warranted. Yet, after exhaustive research, we have found nowhere in the debates or hearings, or in the arguments of those supporting complete self-government for the Islands, even a hint that the phrase 'of local application' represents any type of a restriction upon the local government, above and beyond our usual concepts of legislative jurisdiction.

In light of this study, it is difficult for me to follow the reasoning of the majority opinion. Apparently, the Court says a statute is not of local application if it is intended to reach beyond its borders, and, since the Islands' law attracts domiciliaries of other States to the Islands specifically to get divorces, it is ipso facto not 'of local application.' Under this reasoning, other laws would not be 'of local application.' Five States have divorce laws that certainly attract out-of-staters. Puerto Rico has established 'operation bootstrap,' a planned campaign to attract industry to the Island by means of tax benefits and several of the States have similar programs. Probably most clearly analogous to the Virgin Island divorce law is the corporation law of the State of Delaware, which often attracts enterprises doing no business in that State; except for incorporation there may be no contact between these companies and their 'home' State. In view of our relatively abstruse constitutional standards of legislative jurisdiction under the Due Process Clause, see Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, it strikes me as completely unreasonable to assume that 'of local application', without the faintest indication of such in the legislative history, was meant to delegate to the Court a novel standard, equally indefinite, which it might apply on an ad hoc basis.

The slenderness of the reed on which the majority depends is further emphasized by the fact that in the 55 years that the 'of local application' provision has been used in describing the power of territorial legislatures it has not, so far as I can find, ever been contended in any court, in any judicial opinion, or in any law review or treatise, that the phrase represented any such limitation as the majority has placed upon it.

What Weight Statistics?

I assume the majority agrees that the Islands' legislature has the power to pass laws on the subject of divorce. In studying this problem, however, it seems to be impressed by the fact that the effect of this law upon the tourist trade (though I assume this too is a local enterprise) was considered of great importance. I had always thought that the courts were not to concern themselves with the motives of the legislature in exercising its powers.

The majority admits that the State of Nevada hands out each year forty times as many divorces per capita as the Virgin Islands. ^[5] The opinion concludes, however, that the Islands are really extending their borders further than Nevada attempts, because their ratio of marriages to divorces is much lower. This approaches the perfect non sequitur. The statistics have no relevance whatever to the question before us. I feel, however, that I should point out some of the reasons for the higher ratio of marriages to divorces in Nevada. First, the Nevada divorce machinery has become so smooth that the husband-to-be often flies out to be present at the divorce, gets married in the church next door, and then accompanies his new wife to their 'new' domicile. Secondly, Nevada does a thriving business not only in divorcing out-of-staters but in marrying them as well; by requiring no waiting period before marriage, Nevada steals a march on nearby California and other States which attempt to force their often impatient residents to wait three days. ^[6]

The majority's holding that the Islands' law is not 'of local application' can be appreciated more fully by asking the question, 'What type of a divorce law would be of local application?' The majority does not pass on this, but its whole reasoning is founded on the proposition that only domicile will suffice. The law is not of local application because, 'For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point.' 75 S.Ct. at page 559. Why? Because, says the majority, 'Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands.' They are domiciled in the Islands and could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 3, Cir., 195 F.2d 799, 805. They would have no difficulty in making the 'appropriate showing of connection with the forum.' It is crystal clear that any divorce law not requiring domicile will also 'be abstractly relevant but practically (will have) no point.' In fact, by definition, the only people in the Islands who are not mere 'sojourners' or 'transients' are those domiciled there. Thus the 'appropriate showing of connection with the forum' required before the law can be of other than local application is nothing other than the sacred cow of domicile. Is it any more meaningful to ask whether Congress specifically required the Islands to adhere to domicile as a basis for divorce jurisdiction, come what may, than to ask whether 'Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders'? Congress authorized the Islands in this area to have the power of a State and thought no more about it. If the majority is willing to say that a State is restrained by the Constitution from passing such enactments, that is another story. But it has not done so. The language of Mr. Justice Brown in Cope v. Cope, supra, 137 U.S. at page 685, 11 S.Ct. at page 223, is peculiarly appropriate here: '(W)hile it is the duty of the courts to put a construction upon statutes, which shall, so far as possible, be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure to conform to our own standard of social and moral obligations. Legislatures are as competent as courts to deal with these subjects, and, in fixing a standard of their own, are beyond our control.'

What Weight Hawaii and Alaska?

To rationalize its Procrustean treatment of the Virgin Islands Organic Act, the majority argues that, since Congress has specifically limited the divorce jurisdiction of Alaska and Hawaii to cases where the plaintiff has resided in the Territory for at least two years, it follows that the Congress must have intended similarly to limit the Islands 'so temptingly near the mainland.' This is but another non sequitur. Since 1921 the residence requirement in the Islands has never been longer than six months; the 1936 Organic Act in effect recognized and continued that requirement; three years thereafter in 1939, the residence period was reduced to six weeks; and, in the 1944 law, this new requirement was continued. Then, 10 years later, long after the 'extraordinary rate of divorce' had occurred and the controversy over the Islands' law was brought to the attention of the Congress, it adopted, in 1954, a new Organic Act which re-enacted the identical 'subjects of local application' provision of the 1936 Act. Cf. Alaska Steamship Co. v. United States, 290 U.S. 256, 54 S.Ct. 159, 78 L.Ed. 302. ^[7]

Moreover, the conclusion of the Court that the two-year limitation placed on Alaska and Hawaii casts its shadow on the Islands is 'hardly reasonable.' If anything, it would be the more logical to assume the opposite-that the Congress, having placed a specific requirement in the Alaskan and Hawaiian Acts and not in the subsequently passed Act for the Islands, had granted the Islands divorce jurisdiction without any such limitation. It is interesting to note the explanation of Government counsel on this point in People of Porto Rico v. Rosaly y Castillo, supra:

'That no provision similar to the one here under discussion is contained in the organic act of Hawaii, passed at the same session (of the Congress) is wholly without significance, when due regard is given to the actual conditions of Congressional draftsmanship. The two acts issued from two different committees, and were actually drawn by different sets of legislators. Instances, such as this case discloses, of the lack of uniformity in similar enactments and general want of scientific draftsmanship, are bound to present themselves * * *.' Page 8, Government Brief.

What Weight Constitutional Doubts?

While the Court's opinion makes no reference to any constitutional doubts, these may have motivated it in striking down the Islands' law on the statutory ground. In my opinion this may be an explanation but it is not an excuse. There are limits to which the Court should not run to escape a constitutional adjudication. Admittedly, the doubt that domicile is not a constitutional requirement is not free from doubters. Even though judge-made, it does involve a peculiarly sensitive area of American life. Nevertheless, the Virgin Islands are entitled to a forthright adjudication on their statute-not one by a phantom escape clause.

The constitutional questions presented on brief and at argument involve the Due Process Clause of the Fifth Amendment, the Full Faith and Credit Clause, and the Tenth Amendment. First of all, neither of the Granville-Smiths claims to have been deprived of life, liberty, or property without due process of law. While the State has an interest in the marital relationship, certainly this interest does not come within the protection of the Due Process Clause. Likewise, full faith and credit is not applicable. Mrs. Granville-Smith is not asking that this Court make her divorce, if granted, valid in the States. That issue is not here and may never be. All she asks is that the Islands be permitted to proceed under their own law. In this connection, I find no words in the Constitution which require a Territory to give full faith and credit to the laws of a State.

Nor have the Islands invaded the sphere of activities reserved to the States, contrary to the Tenth Amendment. The 'Tenth Amendment 'does not operate as a limitation upon the powers, express or implied, delegated to the national government." Case v. Bowles, 327 U.S. 92, 102, 66 S.Ct. 438, 443, 90 L.Ed. 552. The Congress has the power to deal with the Islands, granting or withholding from them the powers of a State as it sees fit.

The only constitutional bugaboo is a judge-made one, domicile. ^[8] It creates strange anomalies. A married couple, both of whom desire a divorce, can obtain one in Nevada merely by having one spouse 'reside' there uninterruptedly for six weeks, and claim an intention to take up permanent residence there. See, e.g., Business Week, July 14, 1945, p. 24. Then, after divorce, though the divorcee immediately leaves Nevada, as was always intended, both sides here concede that regardless of how evident it is there was no domicile in the divorcing State, no other State can question the validity of the divorce so long as both parties appeared in the action. See Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. We too agree with the language of Mr. Chief Justice Taft: 'All others can see and understand this. How can we properly shut our minds to it?' ^[9] Child Labor Tax Case (Bailey v. Drexel Furniture Co.) 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817. Still the Court strikes down the Islands' law which avoids this judicial fraud.

Divorce is an intensely practical matter, and if a husband and wife domiciled in any State want a divorce enough, we all know that they can secure it in several of our States. This being true, I see no sense in striking down the Islands' law. There is no virtue in a state of the law the only practical effect of which would be to make New Yorkers fly 2,400 miles over land to Reno instead of 1,450 miles over water to the Virgin Islands.

The only vice of the Virgin Islands' statute, in an uncontested case like this, is that it makes unnecessary a choice between bigamy and perjury. I think the Court should not discourage this and I would reverse.

Notes

1. The words of the Organic Act, however, appear to require that local laws merely be on 'subjects of local application'. Divorce, it seems to me, is such a subject.
2. Rather than interpreting this as a greater restriction, it would seem more reasonable to me to assume that the Congress, in repeating these words, meant that the legislature, within the specific limitations laid down in the Organic Act, was to exercise the same type of power as Congress could for the Territory, subject, of course, to the power of the Congress. This view is supported by the Government's argument in People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235, cited by the majority: 'The broad grant to a territorial legislature of 'all local legislative power' in the Territory, to 'extend to all matters of a legislative character not locally inapplicable,' in language such as, or similar to, that used in the Organic Act for Puerto Rico, taken in connection with the other provisions of an organic act establishing, as in Puerto Rico, an organized territorial government in accordance with the American system, with legislative, executive, and judicial powers, confers (with the exceptions specifically stated in the Organic Act) as plenary local legislative power upon the territorial legislature as that habitually exercised by the legislature of a State.' (Emphasis supplied.) Government brief, p. 31.
3. These include the substance of the Bill of Rights, 48 U.S.C. § 1561, 48 U.S.C.A. § 1561, and provisions covering the pay of legislators, 48 U.S.C. § 1572, 48 U.S.C.A. § 1572, the extent of the franchise, 48 U.S.C. § 1542, 48 U.S.C.A. § 1542, and various aspects of legislative procedure, 48 U.S.C. § 1575, 48 U.S.C.A. § 1575.
4. See also Walker v. New Mexico & Southern Pacific R. Co., 1897, 165 U.S. 593, 604, 17 S.Ct. 421, 425, 41 L.Ed. 837 (New Mexico); Clinton v. Englebrecht, 1872, 13 Wall. 434, 441, 20 L.Ed. 659 (Utah); Hornbuckle v. Tombs, 1874, 18 Wall. 648, 655, 21 L.Ed. 966 (Montana); Gromer v. Standard Dredging Co., 1912, 224 U.S. 362, 370, 32 S.Ct. 499, 502, 56 L.Ed. 801 (Puerto Rico); Christianson v. King County, 1915, 239 U.S. 356, 365, 36 S.Ct. 114, 118, 60 L.Ed. 327 (Washington); Maynard v. Hill, 1888, 125 U.S. 190, 204, 8 S.Ct. 723, 726, 31 L.Ed. 654 (Oregon); Chuoco Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960 (Philippine Islands); In re Murphy, 1895, 5 Wyo. 297, 310, 40 P. 398, 402 (Wyoming); Territory v. Long Bell Lumber Co., 1908, 22 Okl. 890, 898, 99 P. 911, 914-915 (Oklahoma); 19 Op.Atty.Gen. 335, 338 (Arizona).
5. Nevada's yearly average is about 9,000; the Islands' highest total is 343, and its 5-year average is about 200.
6. This arrangement has taken so many nuptials to Nevada that the marriage trade has also become a very lucrative business. So good, in fact, that Nevada's legislature has recently found it necessary to settle a squabble between local officials as to who might perform the marriage ceremony. See Reno Evening Gazette, March 21, 1955, p. 11, col. 3; March 23, p. 11, col. 6.
7. In addition to all this, I believe the re-enactment by Congress of this provision in 1954 is entitled to extra weight. When the Organic Act came up before Congress, the Third Circuit had construed it to permit the Virgin Islands' divorce law. Nor does the fact that the majority in the Third Circuit held the Virgin Islands' law invalid on other grounds change the weight to be given to the re-enactment. Any lawyer would know that, on the constitutional grounds relied on by the one-judge majority, the Supreme Court was just as likely to disagree as to agree. In the not improbable case that the Court held the Virgin Islands' enactment constitutional, a small change in the Organic Act would be the only way of preventing the operation of this Insular 'Pied Piper.' Yet Congress made no such change. As Chief Justice Stone said dissenting in Girouard v. United States, 328 U.S. 61, 75, 76, 66 S.Ct. 826, 833, 90 L.Ed. 1084, 'In any case it is not lightly to be implied that Congress * * * has delegated to this Court the responsibility of giving new content to language deliberately readopted'.
8. Even this is being fast undone and 'English courts may now grant divorces in many cases where the parties are not domiciled in England.' See 65 Harv.L.Rev. 193, 200. See also Crownover v. Crownover, 1954, 58 N.M. 597, 274 P.2d 127.
9. An article on the Nevada divorce in a popular magazine shows that the people have not closed their minds even if this Court has. 'Nevada's first requirement for a divorce is what lawyers smugly refer to as a 'legal fiction': six weeks' steady residence in Nevada. * * * After this a mild sort of perjury is committed when the applicant mumbles in reply to the judge's mumble, that she does intend to continue residence in Nevada.' Holiday, February 1949, p. 98.