OHIO EX REL. POPOVICI V. AGLER, 280 U. S. 379 (1930)

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U.S. Supreme Court

Ohio ex Rel. Popovici v. Agler, 280 U.S. 379 (1930)

Ohio ex Rel. Popovici v. Agler

No. 35

Argued January 7, 8, 1930

Decided January 20, 1930

280 U.S. 379



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. 62 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.

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