HOLMES, HARLAN, BREWER and BROWN, JJ., dissenting. 201 U. S. he really has been deserted, it will be binding everywhere. Hawkins v. Ragsdale, 80 Kentucky, 353, cited 181 U. S. 162. Cheely v. Clayton, 110 U. S. 701, 705. It is unnecessary to add more cases. The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if he is deserted his power over the matrimonial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is a pure fiction, and fiction always is a poor ground for changing substantial rights. It seems to me also an inadequate fiction, since by the same principle, if he deserts her in the matrimonial domicil, he is equally powerless to keep her domicil there, if she moves into another State. The truth is that jurisdiction no more depends upon both parties having their domicil within the State, than it does upon the presence of the defendant there, as is shown not only by Atherton v. Atherton, but by the rights of the wife in the matrimonial domicil when the husband deserts. There is no question that a husband may establish a new domicil for himself, even if he has deserted his wife. Yet in these days of equality I do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her, as it would for him in the converse case. See Cheever v. Wilson, 9 Wall. 108. Indeed in Ditson v. Ditson, 4 R. I. 87, which, after a quotation of Judge Cooley's praise of it, is stated and relied upon as one of the pillars for the decision of Atherton v. Atherton, a wife was granted a divorce, without personal service, in the State of a domicil acquired by her after separation, on the sole ground that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances, that is to say of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson, confirms the assumption that jurisdiction is not dependent on the wife's actually residing in 201 U. S. HOLMES, HARLAN, BREWER and BROWN, JJ., dissenting. the same State as her husband, which has been established by this court. Atherton v. Atherton, 181 U. S. 155; Maynard v. Hill, 125 U. S. 190; Cheever v. Wilson, 9 Wall. 108. When that assumption is out of the way, I repeat that I cannot see any ground for distinguishing between the extent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired. I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if in consequence of her husband's conduct the wife has left the State. But Atherton v. Atherton decides that it does not. It is important to bear in mind that the present decision purports to respect and not to overrule Atherton v. Atherton. For that reason, among others, I spend no time in justifying that case. And yet it appears to me that the whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Jus tice Gray confined the decision to the case before the court. Evidently, I should say, from internal evidence, in deference to scruples which he did not share. But a court by announcing that its decision is confined to the facts before it does not decide in advance that logic will not drive it further when new facts arise. New facts have arisen. I state what logic seems to me to require if that case is to stand, and I think it reasonable to ask for an articulate indication of how it is to be distinguished. I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is HOLMES, HARLAN, BREWER and BROWN, JJ., dissenting. 201 U. S. a little nearer than the nearest opposing case to one pole of an admitted antithesis. When a crime is made burglary by the fact that it was committed thirty seconds after one hour after sunset, ascertained according to mean time in the place of the act, to take an example from Massachusetts (R. L. c. 219, § 10), the act is a little nearer to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day. The fixing of a point when day ends is made inevitable by the admission of that difference. But I can find no basis for giving a greater jurisdiction to the courts of the husband's domicil when the married pair happens to have resided there for a month, even if with intent to make it a permanent abode, than if they had not lived there at all. I may add, as a consideration distinct from those which I have urged, that I am unable to reconcile with the requirements of the Constitution, Article 4, section 1, the notion of a judgment being valid and binding in the State where it is rendered, and yet depending for recognition to the same extent in other States of the Union upon the comity of those States. No doubt some color for such a notion may be found in state decisions. State courts do not always have the Constitution of the United States vividly present to their minds. I am responsible for language treating what seems to me the fallacy as open, in Blackinton v. Blackinton, 141 Massachusetts, 432, 436. But there is no exception in the words of the Constitution. "If the judgment is conclusive in the State where it was pronounced it is equally conclusive everywhere." Christmas v. Russell, 5 Wall. 290, 302; Marshall, C. J., in Hampton v. McConnel, 3 Wheat. 234; Mills v. Duryee, 7 Cranch, 481, 485; Story, Const. $ 1313. See also Hancock National Bank v. Farnum, 176 U. S. 640, 644, 645. I find no qualification of the rule in Wisconsin v. Pelican Ins. Co., 127 U. S. 265. That merely decided, with regard to a case not within the words of the Constitution, that a state judgment could not be sued upon when the facts which it established were not a cause of action outside the State. It did not decide or even remotely suggest that the judgment would not be conclusive as to the facts if in any way those facts came in question. It is decided as well as admitted that a decree like that rendered in Connecticut in favor of a deserting husband is binding in the State where it is rendered. Maynard v. Hill, 125 U. S. 190. I think it enough to read that case in order to be convinced that at that time the court had no thought of the divorce being confined in its effects to the Territory where it was granted, and enough to read Atherton v. Atherton to see that its whole drift and tendency now are reversed and its necessary consequences denied. ST. JOHN v. NEW YORK. ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. No. 210. Argued March 14, 1906.-Decided April 16, 1906. A State may classify persons and objects for the purpose of legislation, provided the classification is based on proper and justifiable distinctions; and so held that chap. 338 of the laws of New York of 1893, prohibiting the sale of adulterated milk, is not in conflict with the equal protection clause of the Fourteenth Amendment because in certain respects, it provides different prohibitions and penalties as to producing and non-producing vendors of milk. THE facts are stated in the opinion. Mr. William Brennan, Jr., for plaintiff in error. Mr. Horace McGuire, with whom Mr. Julius M. Mayer, Attorney General of the State of New York, was on the brief, for defendant in error. MR. JUSTICE MCKENNA delivered the opinion of the court. Plaintiff in error is a non-producing wholesale and retail milk dealer in the city of Buffalo, New York. In February, 1903, he exposed for sale and sold a quantity of milk in violation of sections 20 and 22 of chapter 338 of the laws of New York for the year 1893, and its amendments and supplements, in that the said milk contained more than 88% of water and less than 12% of milk solids, to wit, 89.24% of water and 10.36% of milk solids. The Commissioner of Agriculture of the State in pursuance of said laws filed a complaint against plaintiff in error in the Supreme Court of the State, charging him with the violation of the laws, and that it was his second offense. Judgment was prayed for the sum of $200 in pursuance of section 37. Plaintiff in error admitted the charge, but alleged in defense that the laws were in contravention of section 1 of the Fourteenth Amendment of the Constitution of the United States; also of the constitution of New York. At the trial he offered to show that the milk from which the sample exhibited in the case was taken was in the same condition when the sample was taken as it was when it left the herd of the producer. The testimony was rejected and plaintiff in error excepted. The court directed the jury to find a verdict against him for $100 and costs, which was done. He excepted to the ruling. Under the procedure in New York the court ordered the exceptions to be heard in the Appellate Division. In that court the exceptions were overruled, a motion for a new trial was denied and judgment entered on the verdict. On appeal, the Court of Appeals affirmed the judgment, and the record and proceedings were remanded to the Supreme Court, where judgment was entered in accordance with the remittitur from the Court of Appeals. This writ of error was then sued out. The purpose of the law which is assailed is to prevent the sale of adulterated and unwholesome milk. Section 201 de 1 SEC. 20. Definitions. The term, adulterated milk, when so used, means: 1. Milk containing more than eighty-eight per centum of water or fluids. 2. Milk containing less than twelve per centum of milk solids. 3. Milk containing less than three per centum of fats. |