1. The provisions of Article III, § 2, of the Constitution
extending the judicial power to all cases affecting ambassadors,
other public ministers, and consuls, and investing this Court with
original jurisdiction of such cases, do not, of themselves and
without more, exclude jurisdiction in the courts of a state over a
suit against a vice-consul for divorce and alimony. P.
280 U. S.
382.
2. The provisions of the Judicial Code, § 24, par. Eighteenth, §
256, par. Eighth, giving the district court original jurisdiction,
exclusive of the courts of the several states, over all suits
against consuls and vice-consuls, should not be construed as
granting to the district court or denying to the state courts,
jurisdiction over suits for divorce and alimony. P.
280 U. S.
383.
119 Ohio St. 484 affirmed.
Certiorari, 279 U.S. 828, to review a judgment of the Supreme
Court of Ohio denying a writ of prohibition, which was sought by
the petitioner for the purpose of restraining a proceeding for
divorce and alimony in the Court of Common Pleas.
Page 280 U. S. 382
MR. JUSTICE HOLMES delivered the opinion of the Court.
The relator was sued for divorce and alimony in a Court of the
State of Ohio. He objected to the jurisdiction of the Court, but
the objection was overruled, and an order for temporary alimony was
made. He thereupon applied to the supreme court of the state for a
writ of prohibition, but, upon demurrer, to the petition, the writ
was denied. ,119 Ohio St. 484. A writ of certiorari was granted by
this Court. 279 U.S. 828.
The facts alleged are that the relator is Vice-Consul of
Roumania and a citizen of that country, stationed and now residing
at Cleveland, Ohio, and it is said by the Supreme Court to have
been conceded at the argument that he was married to Helen
Popovici, the plaintiff in the original suit, in Stark county,
Ohio, where she resided. The relator invokes article III, § 2, of
the Constitution: "The judicial Power shall extend . . . to all
Cases affecting Ambassadors, other public Ministers and Consuls."
"In all Cases affecting Ambassadors, other public Ministers and
Consuls . . . the supreme Court shall have original jurisdiction;"
and also the Judicial Code (Act of March 3, 1911, c. 231) §
256.
"The jurisdiction vested in the courts of the United States in
the cases and proceedings hereinafter mentioned shall be exclusive
of the courts of the several states: . . .
Page 280 U. S. 383
Eighth. Of all suits and proceedings against ambassadors, or
other public ministers, or their domestics, or domestic servants,
or against consuls or vice consuls."
To this may be added § 24, giving to the district court original
jurisdiction: "Eighteenth. Of all suits against consuls and vice
consuls," the Supreme Court by § 233 being given
"exclusively all such jurisdiction of suits or proceedings
against ambassadors or other public ministers, or their domestics
or domestic servants, as a court of law can have consistently with
the law of nations."
The language, so far as it affects the present case, is pretty
sweeping, but, like all language, it has to be interpreted in the
light of the tacit assumptions upon which it is reasonable to
suppose that the language was used. It has been understood that
"the whole subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the states, and not
to the laws of the United States,"
Ex parte Burrus, 136 U. S. 586,
136 U. S. 583,
136 U. S. 594,
and the jurisdiction of the Courts of the United States over
divorces and alimony always has been denied.
Barber v.
Barber, 21 How. 582.
Simms v. Simms,
175 U. S. 162,
175 U. S. 167;
De La Rama v. De La Rama, 201 U.
S. 303,
201 U. S. 307.
A suit for divorce between the present parties brought in the
district court of the United States was dismissed.
Popovici v.
Popovici, 30 F.2d
185.
The words quoted from the Constitution do not. of themselves and
without more, exclude the jurisdiction of the state.
Plaquemines Tropical Fruit Co. v. Henderson, 170 U.
S. 511. The statutes do not purport to exclude the state
Courts from jurisdiction except where they grant it to courts of
the United States. Therefore, they do not affect the present case
if it be true, as has been unquestioned for three-quarters of a
century, that the Courts of the United States have no jurisdiction
over divorce. If, when the Constitution was adopted, the common
understanding
Page 280 U. S. 384
was that the domestic relations of husband and wife and parent
and child were matters reserved to the states, there is no
difficulty in construing the instrument accordingly, and not much
in dealing with the statutes. "Suits against consuls and
vice-consuls" must be taken to refer to ordinary civil proceedings,
and not to include what formerly would have belonged to the
ecclesiastical Courts.
It is true that there may be objections of policy to one of our
states intermeddling with the domestic relations of an official and
subject of a foreign power that conceivably might regard
jurisdiction as determined by nationality, and not by domicil. But,
on the other hand, if, as seems likely, the wife was an American
citizen, probably she remained one notwithstanding her marriage.
Act Sept. 22, 1922, c. 411, § 3, 42 Stat. 1021, 1022. Her position
certainly is not less to be considered than her husband's, and, at
all events, these considerations are not for us.
In the absence of any prohibition in the Constitution or laws of
the United States, it is for the state to decide how far it will
go.
Judgment affirmed.