*34

The ground upon which this conclusion was predicated is thus embodied in an excerpt made from the opinion delivered by Mr. Chief Justice Marshall, speaking for the court, in Rose v. Himely, 4 Cranch, 269,

stroyed those rights of local self-govern-mit the jurisdictional facts, which were ment which it was its purpose to preserve. foreclosed by the judgment, to be re-examIt, moreover, presupposes that the deter-ined, would be a violation of the due faith mination of what powers are reserved and and credit clause of the Constitution. This what delegated by the Constitution is to be court, however, decided to the contrary, ascertained by a blind adherence to mere saying: form, in disregard of the substance of "We think it clear that the jurisdiction things. But the settled rule is directly to of the court by which a judgment is renthe contrary. Reasoning from analogy, the dered in any state may be questioned in a unsoundness of the proposition is demon-collateral proceeding in another state, notstrated. Thus, in* enforcing the clause of withstanding_the provision of the 4th arti the Constitution forbidding a state from cle of the Constitution, and the law of impairing the obligations of a contract, it 1790, and notwithstanding the averments is settled by the decisions of this court: contained in the record of the judgment Although a state, for adequate considera- itself." tion, may have executed a contract sanctioning the carrying on of a lottery for a stated term, no contract protected from impairment under the Constitution results, because, disregarding the mere form and looking at substance, a state may not, by 2 L. ed. 617, where it was said: the application of the contract clause of "Upon principle, it would seem that the the Constitution, be shorn of an ever inher-operation of every judgment must depend ent authority to preserve the public morals on the power of the court to render that by suppressing lotteries. Stone v. Missis-judgment; or, in other words, on its jurissippi, 101 U. S. 814, 25 L. ed. 1079; Doug-diction over the subject-matter which it las v. Kentucky, 168 U. S. 488, 42 L. ed. has determined. In some cases that juris553, 18 Sup. Ct. Rep. 199. In other words, diction unquestionably depends as well on the doctrine is that, although a particular the state of the thing, as on the constitu provision of the Constitution may seeming- tion of the court. If, by any means what ly be applicable, its controlling effect is ever, a prize court should be induced to conlimited by the essential nature of the pow-demn, as prize of war, a vessel which was ers of government reserved to the states never captured, it could not be contended when the Constitution was adopted. In that this condemnation operated a change view of the rule thus applied to the con- of property. Upon principle, then, it would tract clause of the Constitution, we could not maintain the claim now made as to the effect of the due faith and credit clause, without saying that the states must, in the nature of things, always possess the power to legislate for the preservation of the morals of society, but that they need not have the continued authority to save society from destruction.

Resort to reasoning by analogy, however, is not required, since the principle which has been applied to the contract clause has been likewise enforced as to the due faith

and credit clause.

seem that, to a certain extent, the capacity of the court to act upon the thing condemned, arising from its being within or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence."

And the same principle, in a different aspect, was applied in Wisconsin v. Pelican Ins. Co. (1888) 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370. In that case the state of Wisconsin had obtained a money judgment in its own courts against the Pelican Insurance Company, a Louisiana corIn Thompson v. Whitman (1874) 18 poration. Availing itself of the original Wall. 457, 21 L. ed. 897, the action in the jurisdiction of this court, the state of Wiscourt below was trespass for the conver-consin brought in this court an action_of sion of a sloop, her tackle, furniture, etc., debt upon the judgment in question. The upon a seizure for an alleged violation of a answer of the defendant was to the effect statute of the state of New Jersey. By that the judgment was not entitled to exspecial plea in bar, the defendant set up traterritorial enforcement, because the that the seizure was made within the limits claim upon which it was based was a penof a named county, in the state of New Jer-alty imposed upon the corporation for an sey, and by answer to this plea the plaintiff took issue as to the place of seizure, thus challenging the jurisdiction of the justices who had tried the information and decreed the forfeiture and sale of the property. The precise point involved in the case, as presented in this court, was whether or not error had been committed by the trial court in receiving evidence to contradict the record of the New Jersey judgment as to jurisdictional facts asserted therein, and especially as to facts stated to have been passed upon by the court which had rendered the judgment. It was contended that to per23 S. C.-16.

alleged violation of the insurance laws of the state of Wisconsin. The answer having been demurred to, it was, of course, conceded that the claim which was merged in the judgment was such a penalty. This court, having concluded that ordinarily a penalty imposed by the laws of one state could have no extraterritorial operation, came then to consider whether, under the due faith and credit clause of the Constitution of the United States, a judgment rendered upon a penal statute was entitled to recognition outside of the state in which it had been rendered, because the character of

the cause of action had been merged in the judgment as such. In declining to enforce the Wisconsin judgment, and in deciding that, notwithstanding the judgment and the due faith and credit clause of the Constitution, the power existed to look back of the judgment and ascertain whether the claim which had entered into it was one susceptible of being enforced in another state, the court, speaking through Mr. Justice Gray, said (p. 291, L. ed. p. 243, Sup. Ct. Rep. p. 1375):

"The application of the rule to the courts of the several states and of the United States is not affected by the provisions of the Constitution and of the act of Congress, by which the judgments of the courts of any state are to have such faith and credit given to them in every court within the United States as they have by law or usage in the state in which they were rendered. Const. art. 4, § 1; act May 26, 1790, 1 Stat. at L. 122, chap. 11; Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677.

force of a judgment in another state it must be made a judgment there, and can only be executed in the latter as its laws may permit.' M'Elmoyle v. Cohen, 13 Pet. 312, 325, 10 L. ed. 177, 183.

"The essential nature and real foundation of a cause of action are not changed by recovering judgment upon it, and the technical rules which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judgment is presented for affirmative action (while it cannot go behind the judgment for the purpose of examining into the validity of the claim), from ascertaining whether the claim is really one of such a nature that the court is authorized to enforce it."

2. When the principles which we have above demonstrated by reason and authority are applied to the question in hand, its solution is free from difficulty. As the state of Massachusetts had exclusive juris-* diction over its citizens concerning the mar"Those provisions establish a rule of evi- riage tie and its dissolution, and consedence, rather than of jurisdiction. While quently the authority to prohibit them from they make the record of a judgment, ren- perpetrating a fraud upon the law of their dered after due notice in one state, conclu- domicil by temporarily sojourning in ansive evidence in the courts of another state other state, and there, without acquiring a or of the United States, of the matter ad- bona fide domicil, procuring a decree of dijudged, they do not affect the jurisdiction vorce, it follows that the South Dakota deeither of the court in which the judgment is cree relied upon was rendered by a court rendered or of the court in which it is of without jurisdiction, and hence the due faith fered in evidence. Judgments recovered in and credit clause of the Constitution of the one state of the Union, when proved in the United States did not require the enforcecourts of another government, whether statement of such decree in the state of Massaor national, within the United States, differ chusetts, against the public policy of that from judgments recovered in a foreign coun-state as expressed in its statutes. Indeed, try in no other respect than in not being this application of the general principle is re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties. Hanley v. Donoghue, 116 U. S. 1, 4, 29 L. ed. 535, 536, 6 Sup. Ct. Rep. 242.

"In the words of Mr. Justice Story, cited and approved by Mr. Justice Bradley speaking for this court, 'the Constitution did not mean to confer any new power upon the states, but simply to regulate the effect of their acknowledged jurisdiction over per sons and things within their territory. It did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other states. And they enjoy not the right of priority or lien which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments.' Story, Confl. L. § 609; Thompson v. Whitman, 18 Wall. 457, 462, 463, 21 L. ed. 897, 899.

"A judgment recovered in one state, as was said by Mr. Justice Wayne, delivering an earlier judgment of this court, 'does not carry with it into another state the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the

not open to dispute, since it has been directly sustained by decisions of this court. Bell v. Bell, 181 U. S. 175, 45 L. ed. 804, 21 Sup. Ct. Rep. 551; Streitwolf v. Streitwolf, 181 U. S. 179, 45 L. ed. 807, 21 Sup. Ct. Rep. 553. In each of these cases it was sought in one state to enforce a decree of divorce rendered in another state, and the authority of the due faith and credit clause of the Constitution was invoked for that purpose. It having been established in each case that at the time the divorce proceedings were commenced, the plaintiff in the proceedings had no bona fide domicil within the state where the decree of divorce was rendered, it was held, applying the principle announced in Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897, that the question of jurisdiction was open for consideration, and that, as, in any event, domicil was essential to confer jurisdiction, the due faith and credit clause did not require recognition of such decree outside of the state in which it had been rendered. A like rule, by inverse reasoning, was also applied in the case of Atherton v. Atherton, 181 U. S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544. There, a decree of divorce was rendered in Kentucky in favor of a husband who had commenced proceedings in Kentucky against his wife, then a resident of the state of New York. The courts of the latter stata having, in substance, refused to give effect

39

to the Kentucky divorce, the question It becomes clear, also, that such is the rewhether such refusal constituted a violation sult of the argument as to Bell v. Bell and of the due faith and credit clause of the Streitwolf v. Streitwolf, when it is considConstitution was brought to this court for cred that in both those cases it was con decision. It having been established that ceded, arguendo, that the power to decres Kentucky was the domicil of the husband the divorce in ex parte proceedings by suband had ever been the matrimonial domicil, stituted service would have obtained if and, therefore, that the courts of Kentucky there had been bona fide domicil. The rulhad jurisdiction over the subject-matter, it ings made in the case referred to, hence, was held that the due faith and credit rested not at all upon the fact that the proclause of the Constitution of the United ceedings were ex parte, but on the premise States imposed upon the courts of New that, there being no domicil, there could be York the duty of giving effect to the decree no jurisdiction. True it is that in Bell v. of divorce which had been rendered in Ken- Bell and Streitwolf v. Streitwolf the questucky. tion was reserved whether jurisdiction to But it is said that the decrees of divorce render a divorce having extraterritorial efwhich were under consideration in Bell v. fect could be acquired by a mere domicil in Bell and Streitwolf v. Streitwolf were ren- the state of the party plaintiff, where there dered in ex parte proceedings, the defend- had been no matrimonial domicil in such ants having been summoned by substituted state, a question also reserved here. But service, and making no appearance; hence, the fact that this question was reserved the case now under consideration is taken does not affect the issue now involved, since out of the rule announced in those cases, those cases proceeded, as does this, upon the since here the defendant appeared, and con- hypothesis conceded, arguendo, that if there sequently became subject to the jurisdic had been domicil there would have been ju tion of the court by which the decree of di- risdiction, whether the proceedings were ex vorce was rendered. But this disregards parte or not, and therefore the ruling on the fact that the rulings in the cases re- both cases was that, at least, domicil was in ferred to were predicated upon the proposi- any event the inherent element upon which tion that jurisdiction over the subject-mat- the jurisdiction must rest, whether the proter depended upon domicil, and without ceedings were ex parte or inter partes. such domicil there was no authority to de- And these conclusions are rendered certain cree a divorce. This becomes apparent when the decision in Atherton v. Atherton when it is considered that the cases referred is taken into view, for there, although the to were directly rested upon the authority proceeding was ex parte, as it was found of Thompson v. Whitman, 18 Wall. 457, 21 that bona fide domicil, both personal and L. ed. 897, where the jurisdiction was as-matrimonial, existed in Kentucky, jurisdicsailed, not because there was no power in tion over the subject-matter was held to obthe court to operate, by ex parte proceed-tain, and the duty to enforce the decree of ings, on the res, if jurisdiction existed, but divorce was consequently declared. Nor is solely because the res was not, at the time there force in the suggestion that because, of its seizure, within the territorial sway in the case before us, the wife appeared, of the court, and hence was not a subjectmatter over which the court could exercise jurisdiction by ex parte or other proceedings. And this view is emphasized by a consideration of the ruling in Wisconsin v. Pelican Ins. Co. 127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, where the judgment was one inter partes, and yet it was held that, in so far as the extraterritorial effect of the judgment was concerned, the jurisdiction over the subject-matter of the state and its courts was open to inquiry, and if jurisdiction did not exist, the enforcement of the judgment was not compelled by reason of the due faith and credit clause of the Constitution.

Indeed, the argument by which it is sought to take this case out of the rule laid down in the cases iust referred to, and which was applied to decrees of divorce in the Bell and Streitwolf Cases, practically invokes the overruling of those cases, and, in effect, also, the overthrow of the decision in the Atherton Case, since, in reason, it but insists that the rule announced in "those cases should not be applied merely because of a distinction without a difference.

This is demonstrated as to Thompson v. Whitman and Wisconsin v. Pelican Ins. Co. by the considerations already adverted to.

hence the South Dakota court had jurisdic-
tion to decree the divorce. The contention
stated must rest on the premise that the au
thority of the court depended on the jurisdic
ance of the parties, and not on its jurisdic-
tion over the subject-matter that is, bona
fide domicil, irrespective of the a
*appearance
of the parties. Here again the argument,
if sustained, would involve the overruling
of Bell v. Bell and Streitwolf v. Streitwolf.
As, in each of the cases, jurisdiction was
conferred, as far as it could be given, by the
appearance of the plaintiff who brought the
suit, it follows that the decision that there
was no jurisdiction because of the want of
bona fide domicil was a ruling that, in its
absence, there could be no jurisdiction over
the subject-matter, irrespective of the ap-
pearance of the party by whom the suit was
brought. But it is obvious that the inade-
quacy of the appearance or consent of one
person to confer jurisdiction over a subject-
matter not resting on consent includes, nec-
essarily, the want of power of both parties
to endow the court with jurisdiction over
a subject-matter, which appearance or con-
sent could not give. Indeed, the argument
but ignores the nature of the marriage con-
tract and the legislative control over its
dissolution which was pointed out at the

$42

3.

outset. The principle dominating the sub- |2.
ject is that the marriage relation is so in-
terwoven with public policy that the consent
of the parties is impotent to dissolve it
contrary to the law of the domicil. The
proposition relied upon, if maintained,
would involve this contradiction in terms:
That marriage may not be dissolved by the
consent of the parties, but that they can, by
their consent, accomplish the dissolution of
the marriage tie by appearing in a court
foreign to their domicil and wholly want-
ing in jurisdiction, and may subsequently
compel the courts of the domicil to give ef-
fect to such judgment despite the prohibi-
tions of the law of the domicil and the rule
of public policy by which it is enforced.

Equity is without jurisdiction, on the ground of the prevention of a multiplicity of suits, of a suit to enforce the statutory liability of the stockholders of a foreign corporation, in which the amount demanded is the full amount of the par value of the shares held by each defendant.

A suit to enforce the statutory liability of stockholders in a foreign corporation cannot be maintained in a court of equity on the theory that it is an ancillary or auxiliary proceeding brought in aid of and to enforce an equitable decree of a court of the state where the corporation resides in a suit to enforce the liability of its stockholders, where the nonresident stockholders were merely nominal parties in that suit, and no judgment was rendered against them because of a want of jurisdiction over them.

[No. 77.]

Although it is not essential to the question before us, which calls upon us only to determine whether the decree of divorce ren- Argued November 6, 7, 1902. Decided Jandered in South Dakota was entitled to extraterritorial effect, we observe, in passing,

uary 19, 1903.

WRIT of Certiorari to the United States Circuit Court of Appeals for the Third Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Eastern District of Pennsylvania sustaining a demurrer to a bill to enforce the liability of stockholders of a foreign corporation. Affirmed.

See same case below, 45 C. C. A. 270, 106 Fed. 258.

that the statute of South Dakota made ON
domicil, and not mere residence, the basis
of divorce proceedings in that state. As,
without reference to the statute of South
Dakota and in any event, domicil in that
state was essential to give jurisdiction to
the courts of such state to render a decree
of divorce which would have extraterrito-
rial effect, and as the appearance of one or
both of the parties to a divorce proceeding
could not suffice to confer jurisdiction over
the subject-matter, where it was wanting
because of the absence of domicil within the
state, we conclude that no violation of the
due faith and credit clause of the Constitu-
tion of the United States arose from the ac-
tion of the supreme judicial court of
Massachusetts in obeying the command of
the state statute, and refusing to give ef-
fect to the decree of divorce in question.
Affirmed.

Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peckham dissent.

Mr Justice Holmes, not being a member of the court when the case was argued, takes no part.

(188 U. S. 56)

WILLIAM E. HALE, as Receiver, etc.,

v.

EDWARD P. ALLINSON et al.

Courts jurisdiction-suit by receiver in foreign jurisdiction-equity-multiplicity of suits ancillary remedy-suit to enforce stockholder's liability.

1. A receiver appointed by a court of equity in the exercise of its general jurisdiction cannot, by virtue of his appointment and the direction to sue contained therein, maintain a sult in equity in a foreign jurisdiction to enforce the statutory liability of stockholders In an insolvent corporation, especially where the courts of the state where the receiver was appointed have held that such an action cannot be inaintained by him in the courts of that state.

Statement by Mr. Justice Peckham:

This case comes here by virtue of a writ of certiorari directed to the circuit court of appeals for the third circuit. It is a suit in equity brought by a foreign receiver, in the United States circuit court for the eastern district of Pennsylvania, to enforce the liability of stockholders, residing in Pennsylvania, of the Northwestern Guaranty Loan Company, a corporation of Minnesota.

Demurrers were filed, setting up, among other grounds, that the receiver appointed under proceedings in Minnesota had no right to sue in any court of a foreign jurisdiction; also that, even if the receiver had the right to sue, there was an adequate remedy at law for whatever rights might exist in the receiver or any other person, and that no ground of equitable jurisdiction was stated. The circuit court sustained the demurrer on the ground that the remedy, if any the complainant had, was at law. 102 Fed. 790. The judgment was affirmed by the circuit court of appeals for the third circuit. 45 C. C. A. 270, 106 Fed. 258.

The facts are these: In May, 1893, the loan company was adjudged insolvent in proceedings instituted, under the Minnesota statute, in the district court of Hennepin county, which court had jurisdiction, and the Minneapolis Trust Company was appointed a receiver of the corporate assets, and took possession thereof, and proceeded 'to the discharge of its duties. In November, 1893, one Arthur R. Rogers, who was the assignee of a judgment creditor of the corporation, whose execution against it had been returned wholly unsatisfied, filed a bill

2. See Corporations, vol. 12, Cent. Dig. § 1059; Equity, vol. 19, Cent. Dig. §§ 168, 169.

89.