Lowe v. Lowe

⁶⁰² Bond, C. J., filed the following separate opinion, in which Urnee, L, concurred. As I think that the appellant’s proof would not support her cross-bill for divorce if the court had jurisdiction, I concur in the affirmance of the decree against her. But my conclusion on the question of jurisdiction differs from that of the majority. On this latter question, I agree that there is logic in the argument that persons who, because they are not residents of the state, are not included under the laws concerning the civil rights and burdens of its residents, must also be outside of the laws which provide for resort by residents to the state courts.

And broad statements in the decisions, more especially in the earlier ones, on the relations of inhabitants on reservations to the state governments, add strength to that argument. But the consequence to the inhabitants is such that I" cannot conceive that it should be the law, and should have been the law during the more than a hundred years since national reservations were first established, and people began to live on them. The necessity of the inhabitants is so obvious and imperative that it would seem to me there must be some adjustment of the law to it, and that we are not permitted to suppose that the legislative bodies, state and federal, or the framers of the Constitution have not intended to meet it. The argument from necessity, or from inconvenient consequences, in short, seems to me to compel another construction.

The problem, as I see it, may be stated in this way: The Maryland statutory provision, Code, art. 16, sec. 37, that suits for divorce may be instituted where either of the parties resides, is one of several such provisions in our statutes, with respect to personal relations, rights, and remedies, all of them designating the particular jurisdictions of the state in which the proceedings shall be instituted, and all contemplating that only persons within the state were to be affected. A guardian for the property of an infant, is for instance, to be appointed and controlled in “the orphans’ court of the county in which such infant shall reside.” Code, ⁶⁰³ art. 93, sec. 149. Children may be adopted either where the petitioners for adoption reside, or where the children reside. Art. 16, see. 74.

Lunacy proceedings may bo- instituted in the county or city where the lunatic resides. Art. 59, secs. 1 and 38. For administration of the estates of deceased owners, wills may he probated, and letters issued, in tho county or ei ty of the mansion house or residence of the late owner, or the county or city where he died, or where he left a considerable part of his estate. Art. 93, secs. 14, 251.

The statute giving a cause of action for death by negligence (article 67) applies only to cases of injury within the state boundaries. State, use of Allen, v. Pittsburg & C. R. R. Co., 45 Md. 41 ; Dronenburg v. Harris, 108 Md. 597 . And the Workmen’s Compensation Act is, generally speaking, limited to employments within the state. See article 101, secs. 19 and 65.

The federal courts have no jurisdiction over divorce, or over any other of the proceedings here mentioned, except in so far as federal compensation acts may have been extended. Webb v. J. G. White Engineering Co., 204 Ala. 429 . And it is well known that it has not been contemplated that the federal courts should have such jurisdiction. And if the inhabitants of these reservations have been depriired of the right to resort to the state courts in such proceedings, then to that extent, and to a very important extent, they aro without tho law.

They can have none of the relief for which the remedy of divorce is appropriate, however urgently it may be needed; and I. do not see any escape from the conclusion that ownership of their personal property, left at death, cannot legally bo transmitted to their legatees or next of kin, or to any one at all, that their children cannot have legal guardians of their property, that they cannot adopt children on the reservations, that, if any of them should become insane, they could not have the protection of statutory provisions for the care of the insane — and so on, through tho list of personal privileges, rights and obligations, the remedies for which are provided for residents of the state. When we think of the number of people to be left in ⁶⁰⁴ this situation on such reservations as that at Perry Point, or that at Edgewood, on such as the Portress Monroe reservations, with its large population, its private street car lines and other enterprises (Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604 ), on reservations for large ■construction work such as that at Muscle Shoals (Webb v. J. G. White Engineering Co., supra), and add that for a century and more people have actually lived on such reservations, nevertheless, the opposition of facts and necessity to the view of the law adopted seems to me to he almost, if not quite, irresistible. It has been the practice in the Orphans’ Court of Baltimore City to receive probate of wills, and to administer on the estates, of persons resident at Fort McHenry, and it has also, I am informed, been the practice of the Orphans’ Court of Anne Arundel County to do the same 'with respect to wills and estate of persons claiming residence within the United States Haval Academy grounds. We have no information as to the practice elsewhere, but it would seem to me inevitable that the practice of the courts generally must have been to provide such necessary incidents to life on reservations within the respective states.

The situation of residents of the District of Columbia, which was carved out of this state, and over which Congress has, by the same clause of the United States Constitution, a “like authority,” is so different in fact from that of residents on posts and reservations elsewhere about the country that it may be misleading as an analogy from which original principles, applicable to all alike, may be argued. For a long while the District has been equipped with a complete local government, and freed from all need of state law and state courts. That condition did not exist during the first ten years after the transfer of the District, however. By the statutes which provided for the cession, the laws of Maryland were continued in force in the ceded territory until the national government moved to the site and provided its own laws (Acts of Congress, July, 1790, and February 27, 1801; Laws of Maryland, 1791, ch. 45); and lands within ⁶⁰⁵ the District were held liable to attachment out of a state court, in 1797, under the Maryland Act of 1795, ch. 56.

Campbell v. Morris, 3 H. & McH. 535 , 557 ; Davidson v. Beatty, 3 H. & McH. 594 . E'rom this it would seem clear that a cession of territory is not an act with fixed, unescapable consequences, but one with only such consequences as may be desired and