against him. He then carried the record to the Court of Appeals and applied for a writ of error, which was refused, and thereupon this writ was sued out.

In the argument at bar seven grounds of error are stated, and in referring to them generally many minute suggestions are made concerning the pilotage statutes, by way of indicating that discrimination arises from them. They mainly relate to the statutes regulating pilotage in the internal waters. Whilst we have given these suggestions our attention, we content ourselves with saying that we deem them to be devoid of merit. The more so because in the written argument the discussion is expressly limited to the first, second and fifth grounds of alleged error. These we proceed to consider.

1st. "This statute violates Article 1, section 9, clause 6, of the Federal Constitution, which provides that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." In effect this proposition denies the power of Congress to permit the several States to adopt pilotage regulations, despite the recognition of that authority by Congress as early as 1789, Rev. Stat. 4235, and the repeated adjudications of this court recognizing and upholding the practice on the subject which has obtained from the beginning. Olsen v. Smith, 195 U. S. 332, and authorities there cited.

2d. "The Virginia pilot law is in conflict with section 4237 of the United States Revised Statutes." The section in question was quoted and commented on in Olsen v. Smith, supra, and avoids the provisions of all state regulations making "any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one State and vessels sailing between the ports of different States, or any discrimination against vessels propelled in whole or in part by steam, or against national vessels of the United States." It cannot be said that the pilotage charge for vessels bound in and out through the capes is in and of itself discriminatory, since it imposes a like compulsory pilotage charge upon all vessels

bound in and bound out. Speaking of the requirements of the statute, the Supreme Court of Appeals of Virginia said in its opinion in this case:

"By the provisions of the sections of the Code quoted all vessels (except coastwise vessels with a pilot license) inward bound from the sea to Smith's Point, Yorktown, Newport News or Norfolk, or any intermediate point, and all such vessels outward bound to the sea from Smith's Point, Yorktown, Newport News, or Norfolk, or any intermediate point, are subject to the compulsory regulations and rates therein provided. All vessels are subject to the same regulations, and, under the same circumstances and conditions, are required to pay the samé fees."

The arguments made to support the assertion that the pilot laws conflict with the act of Congress are twofold. First. As the State of Virginia has no appreciable commerce from her own ports inward bound through the capes, therefore there is discrimination. Second. As Virginia has chosen by her legislation not to subject commerce on her internal waters to a compulsory charge for pilotage, therefore there is a discrimination in favor of commerce on the internal waters of Virginia and against commerce bound in and out through the capes from and to the sea. In other words, the proposition is that the State of Virginia was without power to make an undiscriminating regulation as to pilotage for ships bound in and out through the capes, unless a like regulation was made applicable to all the internal waters within the State. This is attempted to be sustained by contending that the navigation of the internal waters of Virginia is more tortuous than is the navigation in and out of the capes, and other suggestions of a kindred nature.

But the unsoundness of the proposition is made manifest from its mere statement. In effect, it but denies the power of Virginia to regulate pilotage, and presupposes that courts are vested with authority to avoid the pilotage regulations adopted by the States, which do not discriminate as to com

merce to which they apply, simply because it is deemed they are unwise or unjust. As pointed out in Olsen v. Smith, an objection based on the assumed injustice of a pilotage regulation does not involve the power to make the regulation. Objections of this character, therefore, if they be meritorious, but concern the power of Congress to exercise the ultimate authority vested in it on the subject of pilotage.

3d. "The pilot law violates section 4236 of the Revised Statutes, which provides: 'The master of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, may employ any pilot duly licensed or authorized by the law of either of the States bounded on such waters, to pilot the vessel to or from such port.'" It is said that whilst it may be difficult to say that the waters of the Chesapeake Bay between the capes constitute a boundary, still it is possible to so conclude. We observe concerning this contention that it does not appear to have been raised in the courts below. It is accompanied with no suggestion that the State of Maryland has ever attempted to regulate pilotage between the capes of Virginia, to which the Virginia statute relates, or that any Maryland pilot offered his services. The proposition, therefore, rests upon a series of mere conjectures, which we cannot be called upon to investigate or decide.

Judgment affirmed.

HARDING v. HARDING.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 222. Argued April 20, 1905.-Decided May 15, 1905.

Pursuant to the statutes of Illinois, a wife living apart from her husband, both being citizens of Illinois, sued for separate maintenance alleging that she was so living on account of the husband's cruelty and adultery and without any fault on her part. The suit was contested, and, after much evidence had been taken, the husband filed a paper admitting that the evidence sustained the wife's contention, and consenting to a decree pro

Argument for Plaintiff in Error.

198 U.S.

viding for separation and support on certain terms; and the wife filed a paper accepting the terms offered by the husband if the decree found that her living apart from her husband was without fault on her part. Such a decree was entered. Subsequently the husband removed to California and commenced a suit for divorce on the ground of desertion. The wife contested and pleaded the Illinois judgment as an estoppel, but the California court declined to recognize it on the ground that the issues were not the same, and also because it was entered on consent. The wife then defended on the merits and judgment was entered in favor of the husband. Reversed on writ of error and held that; Under the circumstances the wife did not waive her right to assert the estoppel of the judgment by defending on the merits.

The issues involved in the Illinois case and the California case were practically the same and under the full faith and credit clause of the Constitution the California court should have held that the Illinois judgment was an estoppel against the assertion of the husband that the wife's living apart from him was through any fault on her part or amounted to desertion.

As under the Illinois statutes the judgment entered in favor of the wife was necessarily based on a judicial finding that her living apart was not through her fault the papers filed were to be regarded as consents that the testimony be construed as sustaining the wife's contention and not as mere consents for entry of judgment.

As a judgment in Illinois entered on consent has the same force as a judgment entered in invitum, and is entitled to similar faith and credit in the courts of another State.

THE facts are stated in the opinion.

Mr. Pliny B. Smith, with whom Mr. John S. Miller was on the brief, for plaintiff in error:

This court has jurisdiction to review the ruling of the Supreme Court of California upon this writ of error. Andrews v. Andrews, 188 U. S. 14; Atherton v. Atherton, 181 U. S. 155; Bell v. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 U. S. 179; Lynde v. Lynde, 181 U. S. 183; Water Co. v. Railroad Co., 172 U. S. 475; Bank v. Stevens, 169 U. S. 432; Huntington v. Attrill, 146 U. S. 657; Gt. W. Tel. Co. v. Purdy, 162 U. S. 329.

This case comes within the second clause of § 709, because there is drawn in question the validity of an authority exercised by the Supreme Court of California, on the ground of its being repugnant to the Constitution and laws of the United States. It makes no difference by what department of the

198 U. S.

Argument for Plaintiff in Error.

State the authority was exercised the validity of which is called in question. Railroad Co. v. Chicago, 166 U. S. 226, 233, 234.

If the decision of the Federal question was necessarily involved in the state court, and the case could not have been determined without deciding such question, this is sufficient. Cases cited supra and Chapman v. Goodnow, 123 U. S. 540. It is sufficient that it appears from the record that such rights were specially set up in such manner as to bring it to the attention of that court, Green Bay &c. Co. v. Patent Paper Co., 172 U. S. 58, 67, or that it was the necessary effect of the judgment. Roby v. Colehorn, 146 U. S. 153. Streitwolf v. Streitwolf, 181 U. S. 179; Lynde v. Lynde, 181 U. S. 183.

Here the Federal question was in fact the only question decided by the Supreme Court of California. And see also Chicago L. I. Co. v. Needles, 113 U. S. 574; Eureka Lake v. Yuba County, 116 U. S. 410; Arrowsmith v. Harmoning, 118 U. S. 195; Kaukauna County v. Green Bay &c. Co., 142 U. S. 257, 271; Railroad Co. v. Adams, 180 U. S. 28; Railroad Co. v. Osborn, 193 U. S. 17, 28; Laing v. Rigney, 160 U. S. 531. The opinion of the state court may be examined for the purpose of determining whether the Federal question was presented and decided. Phil. Fire Assn. v. New York, 119 U. S. 110, 116.

Under the Fourteenth Amendment, proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process. Pennoyer v. Neff, 95 U. S. 714, 733.

Jurisdiction of the subject matter in actions of divorce depends upon domicil, and without such domicil there was no authority to decree a divorce. Cases cited supra.

A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, can not be again drawn into question in any future action between the same parties or their privies, whether the causes of action in the two suits be identical or different. Black on Judges, $504;