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to his wishes and change her residence from decree was granted wbich the appellate court whim or caprice on his part or where such reversed. In an able opinion (by Moran, J.) change would injure or endanger ber health.25 the court said: “It is not laid down as a In the Cutler case, the court said, “A hus settled law tbat a wife must live in the house band cannot from mere wbim or caprice re of her mother-in-law or be divorced from her move bis wife from the comforts of bome, husband for desertion. Much stress is laid friends and refinement, to take ber beyond on the fact that before the marriage she the jurisdiction of their domicile."'26 And & agreed to live at his mother's house. Such wife may be justified in refusing to live an antenuptial contract is of ro force. All with her husband's relations against ber such promises are merged and obliterated by inclinations. In the case of Albee v. the marriage contract which bound the husAlbee the parties were married in band to 'leave father and mother and cleave Bellows Falls, Vermont, and at the to his wife.' It is proved that the house was time of the marriage the wife was running a large and comfortable, but his wife wanted small millinery store at that place, and her more than mere space and convenience-she husband, the only child of his parents, was wanted peace of mind and happiness, and working on their farm and living with his was willing to live with him in his father's father and mother a few miles from Bellows sheep house in order to be happy.”:27 In a Falls. After the marriage the young couple similar case in Vermont the court said: went to live on the farm with the husband's “While we recognize fully the right of the parents, though the wife continued her busi. husband to direct the affairs of his own ness at Bellows Falls. As is frequently the house, and to determine the place of abode case the daughter-in-law and the mother-in of the family, and that it is in general the law did not get along pleasantly, and the duty of the wife to submit to such determinawife sought to induce tbe husband to take tions, it is still not an entirely arbitrary rooms in the village, and offered to pay for power which the husband exercises in these them herself. This he would not do and she matters. He must exercise reason and dissuggested that his father build them a home cretion in regard to them. If there is any which the father was willing to do but his ground to conjecture that the husband re. mother said no, there should be no other quires the wife to reside where her health or house built-tbat if the house was not large her comfort will be jeopardized, or even enough for her daughter-in-law she could get where she seriously believes such results will out and leave it. The husband finally took follow which will almost of necessity produce his wife to her father's at Rutland and lived the effect, and it is only upon that ground with her there for a while, and later they that she separates from him, the court cannot again lived with his parents. The mother regard her desertion as continued from mere in-law continued to make it unpleasant, often willfulness. Any man who has proper tendrefusing to speak to the wife, and if sbe erness and affection for his wife would cercame on the porch or into a room where her tainly not require her to reside near bis relahusband's mother was the latter would leave. tives if her peace of mind was thereby
When the wife left to go to Rutland ber seriously disturbed. This would be very husband drove her to the depot. The hus- | far from compliance with the Scriptural ex. band asked her if she noticed when leaving position of the duty of husbands : ‘For this that his mother did not invite her to return. cause shall a man leave father and mother He said, “I'll give mother hell for that.” and cleave to his wife, and they twain shall She said, “Don't for my sake.” The hus.
be one flesh.' And in the present case, as band refused to provide a home for ber other the wife alleges the vicinity of the husband's than that of his parents, and refused to live relatives as a reason why she cannot consent with her at her father's home. He finally to come to Milton to live with him, and as went to Chicago where suit for divorce was every one at all experienced in such matters instituted on the ground of desertion. A knows that it is not uncommon for the female
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.
27 43 Ill. App. 370; affirmed, 141 III. 550, 31 N. E. Rep. 153. See also Hair v. Hair, 10 Rich. (S. Car.) Eq. 163.
relatives of the husband to create, either in- | by willfulness and malice. The choice must tentionally or accidentally, disquietude in be free, excepting so far as it may be conthe mind of the wife, and thereby to destroy trolled by these evil impulses. Can this be her comfort and health often, and there is no inferred, by any fair process of reasoning, attempt here to show that this is a simulated from the facts sworn to here? The woman excuse, we must treat it as made in good had for years followed the fortunes of ber faith, and if so, we are not prepared to say husband faithful in everything, as the tes. that she is liable to be divorced for acting timony shows, as well as his anxiety to have upon it.”28 If the husband intends to visit her accompany him to this country evinces, upon the wife the penalty of disobedionce he if he were sincere in it. At this point, howmust present to her in unequivocal terms the ever, and in the face of this great trial, she alternative of a compliance with his wishes fails. The leaving home and country, the that she reside with him or surrender all dangers of a long ocean voyage, the privaclaims to bis support and protection. A tions of a stranger in a strange land, may proposition for the wife's removal addressed have overmastered her strongest desire to merely to her discretion she may reject with follow his footsteps further, and determined out the penalty of desertion.29 In a suit for her to cling to ber native country. This is a divorce by a husband on the ground of the evidence; and the fair inference from it, abandonment it appeared that the abandon- extending to ber the legal presumption of inment from the common home was the act of nocence and honesty until the contrary be the husband, and that, though the conduct made to appear, does not necessarily, and in of the wife may have tended to alienate him opposition to all other inferences, establish from his home, she never deliberately de willful and malicious desertion.” signed by her conduct to effect a final sepa. Where it is doubtful whether the husband ration, it was held that he was not entitled to is able to provide food and sbelter for the
divorce as abandonment to constitute wife, she is not obliged to follow him. In ground for a divorce, a vinculo must be the the case of Phelan v. Phelan, Gary P., J., in deliberate act of the party complained against a characteristic opinion, says: "The dedone with the intent that the marriage rela fendant at the time of the marriage was and tion should no longer exist.30 Tbe refusal of had been for eight or nine years and still is the wife to accompany her husband to a for in business in La Salle in this state. There eign country is not in itself a willful and the parties were married in 1877 and lived malicious desertion within the meaning of the together as husband and wife until 1884, statute.31
when the plaintiff in error came to Chicago In the case last cited the wife refused to and remained here. It is probably true that accompany the husband to America from he has several times requested her to come England. The husband came to Philadel. and live with bim in Chicago, and that she phia to reside, and subsequently returned bas refused. He claims that he is entitled to and renewed his request, but bis wife per a divorce, and cites Kennedy v. Kennedy, 87 sisted in ber refusal, although she allowed Ill. 250. But in this case the record does bim to take some of their children with him. not show that the plaintiff is engaged in any The court held that the proof was insuffi. business, and it does show that he has no cient to show willful and malicious desertion, home to wbich sbe can come in Chicago. and said: “Is willful and malicious deser She is under no obligation to abandon a home tion a natural and necessary inference from and means of support and children by & such a state of facts? The terms imply free former marriage in La Salle and follow bis election to live with or not to live with the uncertain fortunes here, under such circumparty deserted, and determined upon against stances. The decree is affirmed."82 the marital obligation, and impelled thereto In a suit for divorce by the husband who
bad left his wife in New York, he cannot 2 Powell v. Powell, 29 Vt. 148. See also Wright v. sustain a cbarge of desertion by merely showWright, 43 Atl. Rep. 447; Law Notes, vol. 5, No.3. ing a request to her to come and reside with 29 Hardenburgb v. Hardenburgb, 14 Cal. 654. %0 Lypcb v. Lynch, 33 Md. 328. 81 Bishop v. Bishop, 30 Pa. St. 412..
| 82 35 III. App. 511; affirmed 135 IN. 447.
him, but must show that he in good faith fusal to accompany or follow ber husband offered her a home.33
may amount to willful desertion on her part, A wife need not follow her husband to a subsequent cobabitation will be construed as place where her health would be affected, or condonation, and bar a divorce on the ground where the condition of civilization would ren of desertion." But occasional visits or sex. der it an inappropriate place for her resi ual intercourse with the offending party dence.34
without renewal of cobabitation will not The poverty of the husband will not excuse amount to condonation, 42 the wife for refusing to live with him; and As may be seen, the weight of authority is even his inability to provide for her support in favor of the general rule that the domicile · will not constitute desertion on his part.35 of the wife follows that of the husband; that
Through financial reverses a husband was | the husband may change his residence as compelled to change residence, and was un often as his health, pleasure or business dicable to afford the comforts bis wife was used tates, provided that he act in good faith, and to. The court said: “The wife is bound to when he thus removes his domicile it becomes follow the fortunes of her husband, and to the duty of the wife to follow. But, on the live wbere he chooses to live and in the style other hand, it is the husband's duty to proand manner wbich be may adopt."36
vide a home as comfortable as his means will Where the husband's request that his wife warrant for the wife to go to; a home sepajoin him in a new domicile is accompanied by rate from his relatives, should she desire it; threatening language, she will be justified in a home in a healtby and civilized country. refusing to join him; and she may decline to If he does this and the wife refuses to accomaccept an invitation palpably insincere.37 pany or follow bim, such refusal amounts to
And where a husband abandons his wife desertion. MORTON JOHN STEVENSON. because she will not sell her city property and Chicago, Ill. purchase in a distant county and remove with
41 Phelan v. Phelan, 185 III. 447; Reed v. Reed, 62 him, the wife is entitled to a divorce for
Ark. 611, 37 S. W. Rep. 230; Todd v. Todd, 37 Atl. abandopment.38
Rep. 766. Though the wife repeatedly declares she
12 Kennedy v. Kennedy, 87 III. 250; Bobnert v.
Bohnert, 95 Cal. 444; Danforth v. Danfortb, 88 Me. will not go with her husband to a new home
120, 33 Atl. Rep. 781. selected by him, her failure to go with him does not place her in the attitude of desert
STREET RAILROADS-DEFINITION-CONSTI: ing him if he leaves ber at home declaring
TUTIONAL INTERPRETATION. that his absence will be temporary.59 As stated heretofore the husband must request BOARD OF RAILROAD COM'RS OF STATE OF
CALIFORNIA V. MARKET ST. RY. CO. in unequivocal terms bis wife's compliance with bis wishes. And even wbere the wife
Supreme Court of California, May 15, 1901. refuses to accompany her husband to his new
1. Const. art. 12, $ 22, defining the judgment and home, if, in good faith, she subsequently jurisdiction of the railroad commission, and author. offers to return to him, it is his duty to re izing it to estabish rates of charges for the transpor. ceive her at any time before her desertion has
tation of passengers and freight by railroad and
other transportation companies, does not give the reached the period prescribed by statute as commission jurisdiction and control over street rail. a cause for divorce. And if the husband re road companies, since such companies are pot rail.
road or transportation companies, within the mean. fuses, the refusal amounts to desertion.40
ing of the act. Notwithstanding the fact that the wife's re 2. A legislative interpretation of a constitutional
provision contemporaneous with its adoption may be 63 Paul v. Paul, 75 III. App. 388.
considered by the courts in an interpretation of a 34 Haymond v. Haymond, 74 Tex. 414; Harden. doubtful provision thereof. b'urgb v. Hardenburgh, 14 Cal. 654.
COOPER C.: This is an application by the board 35 Bennett v. Bennett, 43 Coon. 313; Palmer v. of railroad commissioners of the state of CaliforPalmer, 22 N. J. Eq. (7 C. E. Green) 88.
pia for a writ of mandate to compel the defend36 Messenger v. Messenger, 66 Mo. 829.
ant corporation to produce to the plaintiffs, and 37 Walker v. Leighton, 31 N. H. 111. 38 Hughart v. Hughart, 5 ky. Law Rep. 931.
to permit plaintiffs to examine, the books, rec89 Barbour v. Barbour, 7 Ky. Law. Rep. 827.
ords and papers of said corporation. The court 40 Hanberry v. Hanberry, 29 Ala. 719; Fellows y.
below refused the writ, and ordered the action Fellows, 31 Me. 342.
dismissed, and judgment was accordingly entered.
This appeal is from the judgment. The question from the state, the otber, from the municipal to be here determined is as to whether or not the authorities of the town or city in wbich it was defendant corporation is subject to the supervis carrying on its business. It is therefore a signifiion of plaintiffs, under the provisions of an act of cant fact that no mention is made in the constithe legislature entitled "An act to organize and tution of 'street railway corporations," and we detine tbe powers of the board of railroad com cannot resist the conclusion tbat sich omission missioners," approved April 15, 1880. St. 1880, p. was not unintentional. There was no public de45. The constitution provides for and defines mand for the regulation of fares of street railthe duties and jurisdiction of the railroad com ways in municipalities. The convention consisted missioners. Article 12, $ 22. The language is : of delegales chosen from all parts of the state. In *The state shall be divided into three districts as the section of the constitution quoted the power nearly equal in population as practicable, in each is given to establish rates for passengers and of which one railroad commissioner sball be freigbt. And it is further provided that the elected. * * * Said commissioners sball bave rates of fares and freights" established by the said the power and it shall be their duty to establish commission sball be conclusively deemed just and rates of charges for tbe transportation of passen reasonable. It is further provided, in section 23 gers and freight by railroad and other transpor of the same article, that the state shall be divided tation companies." Do the words, órailroad and into three “railroad districts," paming the counorber transportation companies," include a street ties in each district. This is consistent with the railway company in a municipality engaged in idea that the entire people of the state were interthe business of carrying passengers on street ested in the great corporations engaged in the railroad cars? In order to correctly determine carrying of freight and passengers from one poribis question, we must look to the words used, tion of the state to another, or from sister states the context, the object in view, and the evils that into or through the state. were intended to be remedied. In this manner It is inconsistent with the idea that the entire we should, if possible, arrive at the intention of people of the state were interested in the rates for the convention in using the words, and give to carrying passengers within the corporate limits them the same meaning and effect as was iniended of a town or municipality. It was tbe policy of by tbe people through their representatives in the constitution that such matters as concerned framing tbe constitution.
the inhabitants of a particular subdivision of the It is a matter of common knowledge tbat among state or county sbould be governed as far as practhe evils, or supposed evils, under wbich the ticable by local laws. That tbe people of the state, people of the state were suffering, and for which through their representatives, understood the said they demanded redress, was that of exorbitant | sections of the constitution not to apply to street and discriminating charges by railroad corpora. | railroad corporations, is apparent from the contions engaged in transportation of freight and 1 temporaneous construction given to them by the passengers. The political agitation of the times legislature in tbe act providing for the organizaresulted in calling a constitutional convention, tion and defining tbe powers of the railroad comand the people, through their representatives, mission, approved April 15, 1880, before cited. framing the present constitution, in 1879, which This act was passed for the purpose of providing was afterwards, in the same year, adopted by the machinery to carry into effect the constitutional people by the expression of their will at the bal. provision creating the railroad commission. It lot box. The constitution in no place mentions was passed at the tirst meeting of the legislature street railroad corporations, although there were after the constitution was adopted, and by the many such corporations in existence at the time representatives of the people who had been elected it was framed. Tbe Civil Code of the state, at the for the purpose of providing for carrying it into time, in tiile 3, $$ 454-491, contained many pro effect. In this act it is provided in section 14: visiops in regard to railroad corporations," and “Tbe term 'transportation companies' ball be in title 4, $$ 497-511, treated of and provided for deemed to mean and include-First. All com"Street railroad corporations." Those sections of panies owning and operating railroads (other the Code so treating railroad corporations and than street railroads) witbin ibis state. Second. street railroad corporations, under separate and All companies owning and operating steamships distinct titles, bad long been a part of the law of engaged in the transportation of freight or pasthe state. Therefore we must presume tbat ibe sengers from and to ports within this state. Third. convention, in which there were many lawyers of All companies owning and operating steamboats ability, knew that the two classes of corporations | used in transporting freigbt or passengers upon bad long been koown by the legal profession, and I the rivers or inland waters of this state." treated by the people throngh their legislatures It will thus be seen that street railroads are as separate and distinct,-the one being engaged expressly excepted from the act. Wbile the inin the commercial business of carrying freigbt terpretation given to the act by the legislature is and passengers over the quasi-public ways from not controlling upon this court as to the meaning one part of the state to another; the other, in of a provision of the constitution, yet, where it is carrying passengers only in the larger municipal doubtful, the courts may, very properly, look ities of the state; the one obtaining its franchise to the contemporaneous interpretation given
such provision, either by the legislature or the poraneous interpretation of statutes, under which courts. Particularly is this the case where that interpretation rigbts of property have for many interpretation bas been upon tbe statute books years been acquired." In the case of Manufactunchallenged for twenty years. The interpreta | uring Co. v. Ferguson, 113 U. S. 733, 5 Sup. Ct. tion placed upon the constitution by the legisla Rep. 741, 28 L. Ed. 1138, in speaking of an act of ture of 1880 has ever since been acquiesced in, the legislature as interpreting a provision of the and legislation has been in accord with such in- constitution of Colorado, tbe court said: "The terpretation. Thus, the legislature by an act act was passed by the first legislature that approved March 23, 1893 (St. 1893, p. 288), made assembled after the adoption of the constitution, provision, among other things, for granting of and has been allowed to remain upon the statute franchises to operate railroads along public book until the present time. It must, therefore, streets and highways by the board of supervisors be considered as a contemporary interpretation or common council, only after public notice by entitled to much weigbt." advertising in one or more daily newspapers and But, independent of the contemporaneous intertben to the highest bidder. Again, on March 13, pretation so given to the constitution by the leg. 1897 (St. 1897, p. 135), it was enacted that a fran. islature, we think the interpretation correct, and chise to construct or operate street railroads, that the words “railroad company" were pot except steam railroads, upon any public street or intended to mean street railway. In the ordinary bigbway,shall be granted by the governing or leg acceptation of the term “railroad company" or islative body of the city or town, oply after public “railroad," it is not understood to mean a street notice by advertising, as provided in said act, to railway engaged in the business of carrying pasthe highest bidder, for a stated per cent. of the sengers the entire distance, or any part of the dis. gross anual receipts, wbich sball in no case be tance, over wbicb the road rups, for one and the less than three per cent. of sucb receipts. Thus, same fare. In the late case of Ferguson v. Sberunder the interpretation given to the act, and as man, 116 Cal. 169, 47 Pac. Rep. 1023, this court it always appears to have been interpreted by the had under consideration a provision of tbe conlegislature, franchises for street railroads have stitution of Kansas exempting from statutory liabeen granted and rights bave accrued. In the ! bility tbe stockholders of railroad corporations. case of Stuart v. Laird, 1 Cranch, 299, 2 L. Ed. and it was held that the provision did not extend 115, the constitutional objection was made tbat to stockholders of the Electric Rapid - Transit the judges of the supreme court bad no right to Company, which was a street railway corporasit as circuit judges, not being appointed as such, tion. In the opinion it is said: “It is not so easy nor having commissions for that purpose. In to believe that the purpose of tbat constitution passing upon the question the Supreme Court of was to exempt from liability tbe stockholders of the United States said: "Totbis objection, wbicb street railways, which are designed merely to is of recent date, it is sufficient to observe tbat facilitate travel and communication upon the practice and acquiescence under it for a period of public bighways of a municipality. * * * In several years, commencing with tbe organization this state the difficulty is much relieved by the of the judicial system, affords an irresistible an. distinction which our Codes make between railswer, and bas indeed fixed the construction. It road corporations proper and street railroad coris a contemporary interpretation of the most for porations. This consideration, however. is cible nature. This practical exposition is too entitled to weight, * * * and we therefore strong and obstipate to be shaken or controlled. conclude that the provision of the constitution of Of course, the question is at rest and ougbt not Kansas was not designed to apply to stockbolders now to be disturbed." In End. Interp. St. § 527, of street railroad corporations." In Gyger v. it is said: “The greatest deference is shown by Railway Co., 136 Pa. 96, 20 Atl. Rep. 399, it was the courts to the interpretation put upon the con held by the Supreme Court of Pennsylvania that stitution by the legislature, in the enactment of section 4, art. 17, of the constitution of the state. laws and other practical application of constitu providing tbat po railroad, canal or otber cortional provisions to the legislative business, wben poration * sball consolidate * * * that interpretation has bad the silent acquiescence with or lease or purchase the works or francbizes of the people, including the legal profession and of, or in any way control, any other railroad or the judiciary, and especially when injurious canal corporation owning * * * 2 parallel or resulis would follow tbe disturbing of it. The competing line,” is not applicable to street raildeference due to such legislative exposition is way companies. In the opinion it is said: "It said to be all the more signal when the latter is is perfectly clear that the convention did not made almost contemporaneously with the estab regard the word “railroad' as synonymous with lisbment of the constitution, and may be supposed railway' or óstreet passenger railway' wben this to result from the same views of policy and section of the article was framed." In Louisville modes of reasoning tbat prevailed among the & P. R. Co. v. Louisville City Ry. Co., 2 Duit. framers of the instrument tbus expounded." This 175, it was held by the court of appeals of Kencourt said in Re Wartield's Will, 22 Cal. 71, 83 tucky that a provision in a railroad cbarter that Am. Dec. 58: Courts feel tbemselves con- no other railroad should be constructed between strained to uphold, where it is possible, contem two named points in a city did not prohibit ibe