Granville-Smith v. Granville-Smith/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

349 U.S. 1

Granville-Smith  v.  Granville-Smith

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

This case concerns § 9(a) of the divorce law of the Virgin Islands:

'Notwithstanding the provisions of sections 8 and 9 hereof, ^[1] if the plaintiff is within the district at the time of the filing of the complaint and has been continuously for six weeks immediately prior thereto, this shall be prima facie evidence of domicile, and where the defendant has been personally served within the district or enters a general appearance in the action, then the Court shall have jurisdiction of the action and of the parties thereto without further reference to domicile or to the place where the marriage was solemnized or the cause of action arose.'

The circumstances of the case and the course of the litigation are briefly stated. Petitioner filed suit for divorce because of 'irreconcilable incompatibility' ^[2] in the District Court of the Virgin Islands on March 16, 1953. The complaint alleged that she had been a 'resident and inhabitant' of the Islands for more than six weeks prior to the commencement of the action, that respondent was not a resident of the Islands, and that the couple had no children under 21. Through Virgin Islands counsel authorized by a power of attorney executed in New York-respondent entered an appearance, waived personal service, denied petitioner's allegations, and filed a 'Waiver and Consent' to 'hearing of this cause as if by default' and to 'such findings of fact and conclusions of law and decree as to the Court may seem just and reasonable.'

Solely on the basis of petitioner's testimony that she had resided in the Virgin Islands continuously for 43 days before bringing suit, the Commissioner who heard the case found that she was a resident and inhabitant of the Islands and had been so for more than six weeks prior to the action. Having also found that the claimed ground for divorce was substantiated, he recommended that she be granted a divorce. On petitioner's motion to confirm the Commissioner's recommendation, the District Court inquired of petitioner's counsel whether he had 'any more evidence to offer on the question of domicile.' Since no further evidence was proffered, the court, relying on its earlier opinion in Alton v. Alton, 121 F.Supp. 878, dismissed the complaint for want of jurisdiction over petitioner.

The Court of Appeals for the Third Circuit, sitting en banc, affirmed, 214 F.2d 820, on the basis of its decision in the Alton case, 207 F.2d 667. In that case, the Court of Appeals, likewise sitting en banc and three judges dissenting, held § 9(a) in violation of 'due process' guaranteed by the Fifth Amendment and the Virgin Islands Organic Act, 48 U.S.CA. § 1405 et seq. This Court had granted certiorari in the Alton case, 347 U.S. 911, 74 S.Ct. 478, 98 L.Ed. 1068, but intervening mootness aborted disposition on the merits. 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987. The obvious importance of the issue which brought the Alton case here led us to grant certiorari in this case. 348 U.S. 810, 75 S.Ct. 60. In view of the lack of genuine adversary proceedings at any stage in this litigation, the outcome of which could have far-reaching consequences on domestic relations throughout the United States, the Court invited specially qualified counsel 'to appear and present oral argument as amicus curiae in support of the judgment below.' 348 U.S. 885, 75 S.Ct. 205.

We need not consider any of the substantive questions passed on below and we intimate nothing about them. For we find that Congress did not give the Virgin Islands Legislative Assembly power to enact a law with the radiations of § 9(a).

Article IV, § 3 of the Constitution gives the Congress authority to 'make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' Accordingly, Congress has from time to time established governments in the various territories that have come under federal control. Territorial government in the continental United States was customarily viewed as a transition step to statehood, and statehood in fact resulted. The Spanish-American War opened a new chapter. Beginning with the Treaty of Paris, the United States acquired by conquest, treaty or purchase outlying territories for which statehood was not contemplated. The position of these territories in our national scheme gave rise to lively political controversy. Answers to some of the constitutional issues that arose were unfolded in a series of decisions best formulated, perhaps, in opinions by Mr. Chief Justice White ^[3] and Mr. Chief Justice Taft. ^[4]

A vital distinction was made between 'incorporated' and 'unincorporated' territories. ^[5] The first category had the potentialities of statehood like unto continental territories. The United States Constitution, including the Bill of Rights, fully applied to an 'incorporated' territory. See, e.g., Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862. The second category described possessions of the United States not thought of as future States. To these only some essentials, withal undefined, of the Constitution extended. See, e.g., Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. The incidence of the differentiation fell in two areas: (a) the right of the individual to trial by jury and similar protections, e.g., Balzac v. People of Porto Rico, supra; (b) the right of the Federal Government to tax territorial products on a nonuniform basis, e.g., Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088.

The legislative power of territories has customarily been expressed as extending to 'all rightful subjects of legislation' not inconsistent with the Constitution or laws of the United States. ^[6] This conventional phrasing was altered to subjects of 'local application,' or 'not locally inapplicable,' in the case of unincorporated territories such as pre-Commonwealth Puerto Rico, the Virgin Islands, and Guam. ^[7]

The questions that have arisen under grants of legislative powers to territories have fallen into three main classes: (1) those in which the sovereign immunity of the territory was in issue, e.g., People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 33 S.Ct. 352, 57 L.Ed. 507; (2) those in which conflict was claimed with the United States Constitution or laws, e.g., People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235; Territory of Montana v. Lee, 2 Mont. 124; (3) those in which the 'rightful' nature of particular territorial legislation was assailed, e.g., Chuoco Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960; People v. Daniels, 6 Utah 288, 22 P. 159, 5 L.R.A. 444. It is the third group that is our immediate concern. In determining the rightfulness of territorial legislation the courts have considered whether a territorial legislature has transcended the familiar bounds of legislation. See, e.g., Christianson v. King County, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327. One of the earlier questions regarding the power of territorial legislatures involved the right to pass laws applicable not generally but to specific individuals or portions of a territory. In Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654, this Court held that a legislative divorce granted without cause by the Oregon Territorial Legislature to a local homesteader was valid though the wife was not in the Territory and had had no notice. The Court relied on the historic practice of individual legislative divorces. ^[8] It is significant, however, that while the litigation was in progress Congress forbade territories to pass 'local' or 'special' divorce laws. 24 Stat. 170, now 48 U.S.C.A. § 1471, 48 U.S.C.A. § 1471.

The United States acquired the Virgin Islands by purchase from Denmark in 1917, ^[9] but it was not until the Organic Act of 1936 that Congress provided a complete government-including a Legislative Assembly. The OrganicAct: (1) labeled the Islands an 'insular possession' of the United States, 49 Stat. 1807, 48 U.S.C. § 1405a, 48 U.S.C.A. § 1405a; (2) endowed the Legislative Assembly (consisting of the two pre-existing municipal councils in joint session) with power to enact laws on 'all subjects of local application not inconsistent with * * * this title or the laws of the United States made applicable to said islands, but no law shall be enacted which would impair rights existing or arising by virtue of any treaty entered into by the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents', 49 Stat. 1811, 48 U.S.C. § 1405r, 48 U.S.C.A. § 1405r; (3) enacted a due process clause for the Islands, 49 Stat. 1815, 48 U.S.C. § 1406g, 48 U.S.C.A. § 1406g; and (4) gave the District Court jurisdiction over '(a)ll cases of divorce', 49 Stat. 1814, 48 U.S.C. § 1406(4), 48 U.S.C.A. § 1406(4).

The Legislative Assembly was held on a checkrein by a presidentially appointed governor who shared with the President an absolute veto over legislation. Congress had the customary reserved power to annul legislation. 49 Stat. 1810, 48 U.S.C. § 1405o, 48 U.S.C.A. § 1405o.

By virtue of the 1936 Organic Act, the Legislative Assembly passed the 1944 divorce law making six weeks' 'residence' by an 'inhabitant' sufficient for divorce jurisdiction. ^[10] In 1952, the Court of Appeals for the Third Circuit construed 'inhabitant' and 'residence' to imply 'domiciliary' and 'domicile.' Burch v. Burch, 195 F.2d 799. The legislature thereupon provided that six weeks' 'physical presence' was adequate as a basis for divorce. The Governor vetoed this amendment. ^[11] To overcome the veto, § 9(a) was enacted. Bill No. 55, 17th Legislative Assembly of the Virgin Islands of the United States, 3d Sess., 1953.

Congress passed a revised Organic Act in 1954. Act of July 22, 1954, 68 Stat. 497, 48 U.S.C.A. § 1541 et seq. Previous to the legislation, this Court on June 1, had dismissed Alton v. Alton, supra, for mootness. Though the judgment below was vacated, the Court of Appeals had expressed its views on the constitutionality of § 9(a). Certainly no inference favorable to its validity can be drawn from the revised Organic Act. ^[12]

In giving content to the power to pass legislation having 'local application,' two considerations at once obtrude. The phrase most liberally interpreted can be no broader than 'all rightful subjects of legislation.' ^[13] Yet in the Organic Acts of the 'incorporated' territories, Alaska and Hawaii, there is specific limitation on divorce jurisdiction to cases where the plaintiff has resided in such territory for at least two years. ^[14] 37 Stat. 514, 48 U.S.C. § 45, 48 U.S.C.A. § 45 (Alaska); 31 Stat. 150, 48 U.S.C. § 519, 48 U.S.C.A. § 519 (Hawaii). It is hardly reasonable to believe that Congress was less concerned with the scope of divorce jurisdiction in the 'unincorporated' possession of the Virgin Islands, so temptingly near the mainland, and that it intended to give them unrestricted freedom in this sensitive field of legislation. The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska. See Compiled Laws of the Territory of Alaska (1913) §§ 1293-1306; cf. Terrill v. Terrill, 2 Alaska 475; Wilson v. Wilson, 10 Alaska 616. Secondly, 'local application' obviously implies limitation to subjects having relevant ties within the territory, ^[15] to laws growing out of the needs of the Islands and governing relations within them. An example is provided by People of Puerto Rico v. Shell Co., supra, which involved the validity of a territorial antitrust law. 'It requires no argument to demonstrate that a conspiracy in restraint of trade within the borders of Puerto Rico is clearly a local matter, and that it falls within the precise terms of the power granted * * *.' 302 U.S. at page 261, 58 S.Ct. at page 171. And in upholding the power of the Philippine Legislature to deport dangerous aliens, Mr. Justice Holmes, for the Court, observed that 'the local government has all civil and judicial power necessary to govern the Islands. * * * It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the sopt.' Chuoco Tiaco v. Forbes, 228 U.S. at page 557, 33 S.Ct. at page 586.

In such light the decisive question is: was § 9(a) concerned with the needs and interests of the local population or was it, as amicus pressed upon us, designed for export? ^[16] For the purpose of regulating divorce of Virgin Islanders, it may be abstractly relevant but practically it has no point. ^[17] The Virgin Islanders could of course bring themselves within the 1944 law as interpreted in Burch v. Burch, 195 F.2d 799. They would have no difficulty in making the appropriate showing of connection with the forum. Virgin Islanders seeking divorce are not sojourners, mere transients in the Islands. Cf. Berger v. Berger, 3 Cir., 210 F.2d 403. It hardly needs proof to read this statute as one designed for people outside the Virgin Islands. The Virgin Islands Legislative Assembly stated the purpose of § 9(a) with disarming frankness. ^[18] It is inadmissible to assume that Congress authorized the Assembly to traffic in easy divorces for citizens of the States as a stimulus to money-making by the Islanders. What Mr. Chief Justice Taft for the Court said in another connection is strikingly applicable here: 'All others can see and understand this. How can we properly shut our minds to it?' Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37, 42 S.Ct. 449, 450, 66 L.Ed. 817. But it sometimes helps to prove, as well as to see, the obvious. ^[19]

In 1950 the Virgin Islands had 26,665 inhabitants in its 133 square miles; for at least 20 years the population had remained relatively static, and the 1952 census estimates indicate a slight decline. In 1940, 34 divorces were granted in the Islands (1.4 per 1,000 population). In 1951 the figure had reached 312 (12.5 per 1,000). This, per capita, represented the second highest figure for any State or Territory of the United States. Moreever, the Virgin Islands far exceeded its leader, Nevada, in ratio of divorces to marriages. Nevada in 1951 had 55.7 divorces per 1,000 population but at the same time had 289.5 marriage licenses per 1,000. Thus while Nevada granted 5 marriage licenses for every divorce, the Virgin Islands was granting 4 divorces for every 3 marriages. Lest this year be considered unrepresentative, we may look to 1950 and 1952, during which the Islands granted 2 for 1 and 7 for 5 divorces over marriages respectively. Only in the Virgin Islands did divorces exceed marriages during any of the years under consideration. The national average in 1940 was 2.0 divorces and 12.1 marriages per 1,000 population. Apart from some wartime fluctuations, the ratios have been quite stable. In 1951 the average was 2.5 divorces and 10.4 marriages. Thus, while the Virgin Islands was somewhat below the national average for marriages in 1951, it was 5 times the national average for divorce.

In 1952 the Virgin Islands hit its peak of divorces. Three hundred and forty-three were granted (14.3 per 1,000) as opposed to only 237 marriages. But the decisions in Alton v. Alton reduced the divorce figure to 236 in 1953, and only 111 divorces were granted between January and November of 1954.

The extraordinary rate of divorce and the disproportion between marriages and divorces raise controlling doubts of the 'local' application of § 9(a), especially in the context of its legislative history. Such doubts are confirmed by further inquiry. The 1950 Census reveals that only 416 widowed or divorced men and 1,105 widowed or divorced women resided in the Islands. ^[20] Thus the number of divorces in 1951 nearly equalled the total widowed or divorced male population of the Islands. Remarriage can serve only as a partial explanation. Petitioner's brief reveals a second surprising disproportion. Although the two components of the Islands (the Municipality of St. Croix and the Municipality of St. Thomas and St. John) are nearly equal in population, and although in 1940 St. Croix granted 18 divorces and St. Thomas and St. John 16, by 1952 St. Croix had increased only to 33, whereas St. Thomas and St. John had gone up nearly 2,000% to 310. ^[21] It is not inappropriate to take judicial notice of the considerably greater tourist facilities on the Islands of St. Thomas and St. John. ^[22]

We have no information as to the duration of residence of divorcees under the questioned law. But we are advised that contest of jurisdiction occurred in only 1% of the 310 cases concluded in St. Thomas and St. John in 1952 and that contest of the merits was no more frequent. A general appearance-which strips the court of its power to inquire further into domicile-but no contest as to any issue, was the practice in most cases. The clear impact of the legislation, even if we disregard the candid explanations of local political, commercial and legal sources ^[23] and the rapid drop in divorces following the initial decision of unconstitutionality, is to provide a convenient forum for prosperous persons with substantial connections to the mainland, who desire to sever their marital ties while vacationing. The Commissioner in the case at bar did not even ask petitioner where she lived in the Virgin Islands.

The Legislative Assembly is much less liberal toward would-be voters. ^[24] One-year domicile is required. Further, a personal property or income tax on persons physically present for six weeks but with no stronger link to the Islands would no doubt be strongly challenged and of questionable validity.

In the circumstances, we cannot conclude that if Congress had consciously been asked to give the Virgin Islands Legislative Assembly power to do what no State has ever attempted, it would have done so.

Affirmed.

Mr. Justice HARLAN took no part in the consideration or decision of this case.

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

Notes

1. Section 8 deals with annulment and is not here relevant. Section 9 reads as follows: 'In an action for the dissolution of the marriage contract or for a legal separation the plaintiff therein must be an inhabitant of the district at the commencement of the action and for six weeks prior thereto, which residence shall be sufficient to give the Court jurisdiction without regard to the place where the marriage was solemnized or the cause of action arose.' Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
2. Section 7(8), Bill No. 14, 8th Legislative Assembly of the Virgin Islands of the United States, Sess., 1944.
3. Beginning with Downes v. Bidwell, 182 U.S. 244, 287-344, 21 S.Ct. 770, 787-809, 45 L.Ed. 1088; see Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Col.L.Rev. 823.
4. In Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627.
5. Both were distinguished from States. 'A state, except as the federal Constition otherwise requires, is supreme and independent. * * * A dependency (here the Philippines) has no government but that of the United States, except in so far as the United States may permit. * * * (O)ver such a dependency the nation possesses the sovereign powers of the general government plus the powers of a local or a state government in all cases where legislation is possible.' Cincinnati Soap Co. v. United States, 301 U.S. 308, 317, 57 S.Ct. 764, 768, 81 L.Ed. 1122.
6. E.g., 37 Stat. 514, 48 U.S.C. § 77, 48 U.S.C.A. § 77 (Alaska).
7. 39 Stat. 964, 48 U.S.C. § 821, 48 U.S.C.A. § 821 (Puerto Rico); 68 Stat. 500, 48 U.S.C.A. § 1574(a) (Virgin Islands); 64 Stat. 387, 48 U.S.C. § 1423a, 48 U.S.C.A. § 1423a (Guam).
8. '* * * the granting of divorces was a rightful subject of legislation according to the prevailing judicial opinion of the country, and the understanding of the profession at the time the organic act of Oregon was passed by congress, when either of the parties divorced was at the time a resident within the territorial jurisdiction of the legislature.' 125 U.S. at page 209, 8 S.Ct. at page 728.
9. The local law as it had existed under Danish rule was continued in effect, 39 Stat. 1132, 48 U.S.C. § 1392, 48 U.S.C.A. § 1392, subject to change by the two Colonial Councils, the instruments of municipal government for the two districts of the Islands. Presidential approval of any change in this body of law was required. Ibid. Each Colonial Council subsequently passed a divorce law, verbally drawn from that of Alaska. Burch v. Burch, 3 Cir., 195 F.2d 799, 805-806.
10. See note 1, supra.
11. His objection was that the amendment made physical presence sufficient in both ex parte and contested actions.
12. For the first time, the legislation explicitly characterized the Virgin Islands an 'unincorporated territory.'
13. See note 12, supra. The Senate Report on the 1936 Organic Act gives some idea of the legislative purpose: '* * * The inhabitants of the Virgin Islands * * * are capable of managing their local affairs. Unfortunately, the islands are not yet economically self-supporting. Hence it has been necessary to provide for an amount of Federal control over local affairs commensurate with continuing expenditures of Federal funds to subsidize the local government. * * * Matters of purely local concern are placed within local legislative power. The levying of local taxes and the expenditure of local revenue are authorized. It has not been deemed wise to give the local government power to incur bonded indebtedness so long as local revenue is insufficient to pay the entire cost of local government. Locally enacted bills may be vetoed by the Governor.' S.Rep.No.1974, 74th Cong., 2d Sess. 2.
14. For the history of the Alaskan provision, see 48 Cong.Rec. 5267-5270, 5293, 5297-5298.
15. Of course a suit for damages brought by a resident of the Virgin Islands for an injury occurring on the mainland, or a suit against a defendant served in the Virgin Islands arising out of a commercial transaction connecting both the Virgin Islands and the mainland, would clearly contain a relevant tie amply affording jurisdiction to the courts of the Virgin Islands.
16. We are dealing here with the bearing of the statute on consensual divorces. So far as these are concerned § 9(a) is an entirety, for in its application the first part of the section accomplishes precisely the same thing as the second. Under our system of law a judge is not charged with the role of an adversary party, and as such called upon to assume responsibility for rebutting a statutory presumption.
17. Cf. People v. Daniels, 6 Utah 288, 293, 22 P. 159, 160, 5 L.R.A. 444 '* * * as to the extent to which the legislature may act on a rightful subject, when the limit is not expressly fixed, the court must ascertain the limit and determine whether the law is within it. To illustrate: * * * Divorce is also a rightful subject of legislation, but a law giving any married person who might apply to the court a right to a divorce without cause would be invalid.'
18. Three members of the Legislative Assembly addressed themselves to the reasons for changing the result of the Court of Appeals in Burch v. Burch, see 75 S.Ct. at page 557, supra.
19. The statistics which follow are derived from these sources: United States Bureau of the Census, Statistical Abstract of the United States: 1954, pp. 9, 63, 85, 940, 942; United States Department of Health, Education, and Welfare, Summary of Marriage and Divorce Statistics, United States, 1952, pp. 45, 52-53; United States Department of Health, Education, and Welfare, Monthly Vital Statistics Report, Vol. 3, No. 12, Feb. 15, 1955, p. 7; Brief for Petitioner, p. 53.
20. United States Bureau of the Census, Statistical Abstract of the United States: 1954, p. 939.
21. Brief for Petitioner, p. 53.
22. See Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 125-127; VIII Virgin Islands Magazine (Special Edition 1954) 7 et seq.; Murray, The Complete Handbook of the Virgin Islands 1951, 12-100.
23. The St. Croix Chamber of Commerce Newsletter for Feb. 1, 1954, cited the 'change in the divorce situation' as one reason for the tourist slump during the previous season. District Judge Moore, who decided both Alton v. Alton, supra, and this case, wrote the Senate Committee on Interior and Insular Affairs: '* * * the present court is not unsympathetic to the fact that the failure to grant these divorces has affected the economic status of both lawyers and guest house keepers * * *' Virgin Islands Report, Senate Committee on Interior and Insular Affairs, 83d Cong., 2d Sess. 4, 54.
24. '(b) For the purpose of this law 'residents of the Virgin Islands' shall be persons who have maintained legal residence in the Virgin Islands for a period of one year next preceding the date of the election, and in the district in which they desire to vote for a period of sixty days next preceding the election. In all cases of doubt as to legal residence, the Board shall request the registrant to submit substantial and satisfactory proof that the said registrant has fulfilled the legal residence requirement. The domicile, which is the registrant's legal residence, shall be determined in accordance with the following rules:

'1) Every person has a domicile.

'2) There can be but one domicile.

'3) Legal residence or domicile is the place where a person habitually resides when not called elsewhere to work or for some other temporary purpose and to which such person returns in season for rest.

'4) Legal domicile or residence may be changed by joinder of act and intent.

'5) A domicile cannot be lost until a new one has been acquired.

'This subsection shall be strictly enforced by the Board.' Bill No. 86, 18th Legislative Assembly of the Virgin Islands of the United States, 2d Sess., 1954, c. II, § 1.