in

to his wishes and change her residence from whim or caprice on his part or where such change would injure or endanger her health.25 In the Cutler case, the court said, "A husband cannot from mere whim or caprice remove his wife from the comforts of home, friends and refinement, to take her beyond the jurisdiction of their domicile."26 And a wife may be justified in refusing to live with her husband's relations against ber inclinations. In the case of Albee V. Albee the parties were married Bellows Falls, Vermont, and at the time of the marriage the wife was running small millinery store at that place, and her husband, the only child of his parents, was working on their farm and living with his father and mother a few miles from Bellows Falls. After the marriage the young couple went to live on the farm with the husband's parents, though the wife continued her business at Bellows Falls. As is frequently the case the daughter-in-law and the mother-inlaw did not get along pleasantly, and the wife sought to induce the husband to take rooms in the village, and offered to pay for them herself. This he would not do and she suggested that his father build them a home which the father was willing to do but his mother said no, there should be no other house built-that if the house was not large enough for her daughter-in-law she could get out and leave it. The husband finally took his wife to her father's at Rutland and lived with her there for a while, and later they again lived with his parents. The motherin-law continued to make it unpleasant, often refusing to speak to the wife, and if she came on the porch or into a room where her husband's mother was the latter would leave.

When the wife left to go to Rutland ber husband drove her to the depot. The husband asked her if she noticed when leaving that his mother did not invite her to return. He said, "I'll give mother hell for that." She said, "Don't for my sake." The husband refused to provide a home for her other than that of his parents, and refused to live with her at her father's home. He finally went to Chicago where suit for divorce was instituted on the ground of desertion.

A

25 Powell v. Powell, 29 Vt. 148; Gleason v. Gleason,

4 Wis. 64; Stewart, Mar. & Div. §§ 261, 273.

26 Cutler v. Cutler, 2 Brewst. (Pa.) 513.

decree was granted which the appellate court reversed. In an able opinion (by Moran, J.) the court said: "It is not laid down as 8 settled law that a wife must live in the house of her mother-in-law or be divorced from her husband for desertion. Much stress is laid on the fact that before the marriage she agreed to live at his mother's house. Such an antenuptial contract is of no force. All such promises are merged and obliterated by the marriage contract which bound the husband to 'leave father and mother and cleave to his wife.' It is proved that the house was large and comfortable, but his wife wanted more than mere space and convenience-she wanted peace of mind and happiness, and was willing to live with him in his father's sheep house in order to be happy." In a similar case in Vermont the court said: "While we recognize fully the right of the husband to direct the affairs of his own house, and to determine the place of abode of the family, and that it is in general the duty of the wife to submit to such determinations, it is still not an entirely arbitrary power which the husband exercises in these matters. He must exercise reason and discretion in regard to them. If there is any ground to conjecture that the husband requires the wife to reside where her health or her comfort will be jeopardized, or even where she seriously believes such results will follow which will almost of necessity produce the effect, and it is only upon that ground that she separates from him, the court cannot regard her desertion as continued from mere willfulness. Any man who has proper tenderness and affection for his wife would certainly not require her to reside near his relatives if her peace of mind was thereby seriously disturbed. This would be very far from compliance with the Scriptural exposition of the duty of husbands: For this cause shall a man leave father and mother and cleave to his wife, and they twain shall be one flesh.' And in the present case, as the wife alleges the vicinity of the husband's relatives as a reason why she cannot consent to come to Milton to live with him, and as every one at all experienced in such matters knows that it is not uncommon for the female

27 43 Ill. App. 370; affirmed, 141 Ill. 550, 31 N. E. Rep. 153. See also Hair v. Hair, 10 Rich. (S. Car.) Eq. 163.

relatives of the husband to create, either intentionally or accidentally, disquietude in the mind of the wife, and thereby to destroy her comfort and health often, and there is no attempt here to show that this is a simulated excuse, we must treat it as made in good faith, and if so, we are not prepared to say that she is liable to be divorced for acting upon it."'28 If the husband intends to visit upon the wife the penalty of disobedionce he must present to her in unequivocal terms the alternative of a compliance with his wishes that she reside with him or surrender all claims to his support and protection. A proposition for the wife's removal addressed merely to her discretion she may reject without the penalty of desertion.29 In a suit for a divorce by a husband on the ground of abandonment it appeared that the abandonment from the common home was the act of the husband, and that, though the conduct of the wife may have tended to alienate him from his home, she never deliberately designed by her conduct to effect a final separation, it was held that he was not entitled to a divorce as abandonment to constitute ground for a divorce, a vinculo must be the deliberate act of the party complained against done with the intent that the marriage relation should no longer exist." The refusal of the wife to accompany her husband to a foreign country is not in itself a willful and malicious desertion within the meaning of the statute.31

In the case last cited the wife refused to accompany the husband to America from England. The husband came to Philadel phia to reside, and subsequently returned and renewed his request, but his wife persisted in her refusal, although she allowed him to take some of their children with him. The court held that the proof was insufficient to show willful and malicious desertion, and said: "Is willful and malicious desertion a natural and necessary inference from

by willfulness and malice. The choice must be free, excepting so far as it may be controlled by these evil impulses. Can this be inferred, by any fair process of reasoning, from the facts sworn to here? The woman had for years followed the fortunes of her husband-faithful in everything, as the testimony shows, as well as his anxiety to have her accompany him to this country evinces, if he were sincere in it. At this point, however, and in the face of this great trial, she fails. The leaving home and country, the dangers of a long ocean voyage, the privations of a stranger in a strange land, may have overmastered her strongest desire to follow his footsteps further, and determined her to cling to her native country. This is the evidence; and the fair inference from it, extending to her the legal presumption of innocence and honesty until the contrary be made to appear, does not necessarily, and in opposition to all other inferences, establish willful and malicious desertion.”

Where it is doubtful whether the husband is able to provide food and shelter for the wife, she is not obliged to follow him. In the case of Phelan v. Phelan, Gary P., J., in a characteristic opinion, says: "The defendant at the time of the marriage was and had been for eight or nine years and still is in business in La Salle in this state. There the parties were married in 1877 and lived together as husband and wife until 1884, when the plaintiff in error came to Chicago and remained here. It is probably true that he has several times requested her to come and live with him in Chicago, and that she has refused. He claims that he is entitled to a divorce, and cites Kennedy v. Kennedy, 87 Ill. 250. But in this case the record does not show that the plaintiff is engaged in any business, and it does show that he has no home to which she can come in Chicago. She is under no obligation to abandon a home and means of support and children by a

him, but must show that he in good faith offered her a home.33

A wife need not follow her husband to a place where her health would be affected, or where the condition of civilization would render it an inappropriate place for her residence.34

The poverty of the husband will not excuse the wife for refusing to live with him; and even his inability to provide for her support will not constitute desertion on his part.35

Through financial reverses a husband was compelled to change residence, and was unable to afford the comforts his wife was used to. The court said: "The wife is bound to follow the fortunes of her husband, and to live where he chooses to live and in the style and manner which he may adopt.'

1936

Where the husband's request that his wife join him in a new domicile is accompanied by threatening language, she will be justified in refusing to join him; and she may decline to accept an invitation palpably insincere.37

And where a husband abandons his wife because she will not sell her city property and purchase in a distant county and remove with him, the wife is entitled to a divorce for abandonment.88

Though the wife repeatedly declares she will not go with her husband to a new home selected by him, her failure to go with him does not place her in the attitude of deserting him if he leaves her at home declaring that his absence will be temporary." As stated heretofore the husband must request in unequivocal terms his wife's compliance with his wishes. And even where the wife refuses to accompany her husband to his new home, if, in good faith, she subsequently offers to return to him, it is his duty to receive her at any time before her desertion has reached the period prescribed by statute as a cause for divorce. And if the husband refuses, the refusal amounts to desertion.40 Notwithstanding the fact that the wife's re

63 Paul v. Paul, 75 Ill. App. 388.

34 Haymond v. Haymond, 74 Tex. 414; Harden. burgh v. Hardenburgh, 14 Cal. 654.

35 Bennett v. Bennett, 43 Conn. 313; Palmer v. Palmer, 22 N. J. Eq. (7 C. E. Green) 88. 36 Messenger v. Messenger, 56 Mo. 329.

37 Walker v. Leighton, 31 N. H. 111.

38 Hughart v. Hughart, 5 Ky. Law Rep. 931.

39 Barbour v. Barbour, 7 Ky. Law. Rep. 827. 40 Hanberry v. Hanberry, 29 Ala. 719; Fellows v. Fellows, 31 Me. 342.

fusal to accompany or follow her husband may amount to willful desertion on her part, subsequent cohabitation will be construed as condonation, and bar a divorce on the ground of desertion.41 But occasional visits or sexual intercourse with the offending party without renewal of cohabitation will not amount to condonation, 42

As may be seen, the weight of authority is in favor of the general rule that the domicile of the wife follows that of the husband; that the husband may change his residence as often as his health, pleasure or business dictates, provided that he act in good faith, and when he thus removes his domicile it becomes the duty of the wife to follow. But, on the other hand, it is the husband's duty to provide a home as comfortable as his means will warrant for the wife to go to; a home separate from his relatives, should she desire it; a home in a healthy and civilized country. If he does this and the wife refuses to accompany or follow him, such refusal amounts to desertion. MORTON JOHN STEVENSON.

Chicago, Ill.

41 Phelan v. Phelan, 135 Ill. 447; Reed v. Reed, 62 Ark. 611, 37 S. W. Rep. 230; Todd v. Todd, 37 Atl. Rep. 766.

42 Kennedy v. Kennedy, 87 Ill. 250; Bohnert v. Bohnert, 95 Cal. 444; Danforth v. Danforth, 88 Me. 120, 33 Atl. Rep. 781.

STREET RAILROADS-DEFINITION-CONSTI TUTIONAL INTERPRETATION.

BOARD OF RAILROAD COM'RS OF STATE OF CALIFORNIA v. MARKET ST. RY. CÓ.

Supreme Court of California, May 15, 1901.

1. Const. art. 12, § 22, defining the judgment and jurisdiction of the railroad commission, and authorizing it to estabish rates of charges for the transportation of passengers and freight by railroad and other transportation companies, does not give the commission jurisdiction and control over street rail. road companies, since such companies are not rail. road or transportation companies, within the meaning of the act.

2. A legislative interpretation of a constitutional provision contemporaneous with its adoption may be considered by the courts in an interpretation of a doubtful provision thereof.

COOPER C.: This is an application by the board of railroad commissioners of the state of California for a writ of mandate to compel the defendant corporation to produce to the plaintiffs, and to permit plaintiffs to examine. the books, records and papers of said corporation. The court below refused the writ, and ordered the action dismissed, and judgment was accordingly entered.

This appeal is from the judgment. The question to be here determined is as to whether or not the defendant corporation is subject to the supervision of plaintiffs, under the provisions of an act of the legislature entitled "An act to organize and define the powers of the board of railroad commissioners," approved April 15, 1880. St. 1880, p. 45. The constitution provides for and defines the duties and jurisdiction of the railroad commissioners. Article 12, § 22. The language is: The state shall be divided into three districts as nearly equal in population as practicable, in each of which one railroad commissioner shall be elected. * Said commissioners shall have the power and it shall be their duty to establish rates of charges for the transportation of passengers and freight by railroad and other transportation companies." Do the words, railroad and other transportation companies," include a street railway company in a municipality engaged in the business of carrying passengers on street railroad cars? In order to correctly determine this question, we must look to the words used, the context, the object in view, and the evils that were intended to be remedied. In this manner we should, if possible, arrive at the intention of the convention in using the words, and give to them the same meaning and effect as was intended by the people through their representatives in framing the constitution.

It is a matter of common knowledge that among the evils, or supposed evils, under which the people of the state were suffering, and for which they demanded redress, was that of exorbitant and discriminating charges by railroad corporations engaged in transportation of freight and passengers. The political agitation of the times resulted in calling a constitutional convention, and the people, through their representatives, framing the present constitution, in 1879, which was afterwards, in the same year, adopted by the people by the expression of their will at the ballot box.

The constitution in no place mentions street railroad corporations, although there were many such corporations in existence at the time it was framed. The Civil Code of the state, at the time, in title 3, §§ 454-491, contained many provisions in regard to "railroad corporations," and in title 4, §§ 497-511, treated of and provided for street railroad corporations." Those sections of the Code so treating railroad corporations and street railroad corporations, under separate and distinct titles, had long been a part of the law of

from the state, the other, from the municipal authorities of the town or city in which it was carrying on its business. It is therefore a significant fact that no mention is made in the constitution of "street railway corporations," and we cannot resist the conclusion that such omission was not unintentional. There was no public demand for the regulation of fares of street railways in municipalities. The convention consisted of delegates chosen from all parts of the state. In the section of the constitution quoted the power is given to establish rates for passengers and freight. And it is further provided that "the rates of fares and freights" established by the said commission shall be conclusively deemed just and reasonable. It is further provided, in section 23 of the same article, that the state shall be divided into three "railroad districts," naming the counties in each district. This is consistent with the idea that the entire people of the state were interested in the great corporations engaged in the carrying of freight and passengers from one portion of the state to another, or from sister states into or through the state.

It is inconsistent with the idea that the entire people of the state were interested in the rates for carrying passengers within the corporate limits of a town or municipality. It was the policy of the constitution that such matters as concerned the inhabitants of a particular subdivision of the state or county should be governed as far as practicable by local laws. That the people of the state, through their representatives, understood the said sections of the constitution not to apply to street railroad corporations, is apparent from the contemporaneous construction given to them by the legislature in the act providing for the organization and defining the powers of the railroad commission, approved April 15, 1880, before cited. This act was passed for the purpose of providing machinery to carry into effect the constitutional provision creating the railroad commission. was passed at the first meeting of the legislature after the constitution was adopted, and by the representatives of the people who had been elected for the purpose of providing for carrying it into effect. In this act it is provided in section 14: "The term 'transportation companies shall be deemed to mean and include-First. All companies owning and operating railroads (other than street railroads) within this state. Second. All companies owning and operating steamships engaged in the transportation of freight or pas

It

such provision, either by the legislature or the courts. Particularly is this the case where that interpretation has been upon the statute books unchallenged for twenty years. The interpretation placed upon the constitution by the legislature of 1880 has ever since been acquiesced in, and legislation has been in accord with such interpretation. Thus, the legislature by an act approved March 23, 1893 (St. 1893, p. 288), made provision, among other things, for granting of franchises to operate railroads along public streets and highways by the board of supervisors or common council, only after public notice by advertising in one or more daily newspapers and then to the highest bidder. Again, on March 13, 1897 (St. 1897, p. 135), it was enacted that a franchise to construct or operate street railroads, except steam railroads, upon any public street or highway,shall be granted by the governing or legislative body of the city or town, only after public notice by advertising, as provided in said act, to the highest bidder, for a stated per cent. of the gross anual receipts, which shall in no case be less than three per cent. of such receipts. Thus, under the interpretation given to the act, and as it always appears to have been interpreted by the legislature, franchises for street railroads have been granted and rights have accrued. In the case of Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. 115, the constitutional objection was made that the judges of the supreme court had no right to sit as circuit judges, not being appointed as such, nor having commissions for that purpose. passing upon the question the Supreme Court of the United States said: "To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest and ought not now to be disturbed." In End. Interp. St. § 527, it is said: "The greatest deference is shown by the courts to the interpretation put upon the constitution by the legislature, in the enactment of laws and other practical application of constitutional provisions to the legislative business, when that interpretation has had the silent acquiescence of the people, including the legal profession and

In

poraneous interpretation of statutes, under which interpretation rights of property have for many years been acquired." In the ease of Manufacturing Co. v. Ferguson, 113 U. S. 733, 5 Sup. Ct. Rep. 741, 28 L. Ed. 1138, in speaking of an act of the legislature as interpreting a provision of the constitution of Colorado, the court said: "The act was passed by the first legislature that assembled after the adoption of the constitution, and has been allowed to remain upon the statute book until the present time. It must, therefore, be considered as a contemporary interpretation entitled to much weight."

But, independent of the contemporaneous interpretation so given to the constitution by the leg. islature, we think the interpretation correct, and that the words "railroad company" were not intended to mean street railway. In the ordinary acceptation of the term "railroad company" or "railroad," it is not understood to mean a street railway engaged in the business of carrying passengers the entire distance, or any part of the distance, over which the road runs, for one and the same fare. In the late case of Ferguson v. Sherman, 116 Cal. 169, 47 Pac. Rep. 1023, this court had under consideration a provision of the constitution of Kansas exempting from statutory liability the stockholders of railroad corporations. and it was held that the provision did not extend to stockholders of the Electric Rapid-Transit Company, which was a street railway corpora tion. In the opinion it is said: "It is not so easy to believe that the purpose of that constitution was to exempt from liability the stockholders of street railways, which are designed merely to facilitate travel and communication upon the public highways of a municipality. * In this state the difficulty is much relieved by the distinction which our Codes make between railroad corporations proper and street railroad corporations. This consideration, however. is entitled to weight, and we therefore

*