allowance and sum to be paid her by said defendant for her support during her life, and such further sums ast may be necessary in order to enable her to make proper compensation to her attorneys and counsel in said action, and to enforce this decree and judgment.”

On the seventh day of September, 1894, on due notice, the defendant moved the court for an order: 1. Vacating the judgment in so far as the same relates to alimony, or any provision for the support of plaintiff or for the support of the children of plaintiff and defendant; 2. Vacating the judgment so far as it relates to the care, custody, and control of the children; 3. Vacating the judgment so far as it relates to alimony or allowance for the support of plaintiff or the children, and for an order striking out from the judgment all the provisions relating to or providing for alimony or support for the plaintiff, or the minor children of plaintiff and defendant, or awarding or providing for the custody, care, or control of the said two minor children.

The motion was based upon the claim that the court had no jurisdiction over the subject matter of this action in so far as it relates to the matters, subjects, and things herein before specified, and had no jurisdiction, or power or authority to make any order or judgment in relation to the subject matters and things aforesaid, and had no jurisdiction over the person of the defendant sufficient to enable, authorize, or empower it to make any order, judgment, or provision, in relation to said subject matters and things, and that said defendant was, at the time of the commencement of this action, and ever since has been, and now is, without the jurisdiction of the said court and without the territorial limits of the state of California, and has never been served with process herein personally, and no service of process has been had herein to enable the court to make any order, judgment, or provision in regard to the subjects, matters and things aforesaid, and that said infant children of plaintiff and defendant were not at the time of the commencement of

this action, and never since have been, and are not now, within the state of California.

In support of the motion various affidavits were read, showing the above facts and others.

Appellant here bases his claim for reversal upon three grounds: 1. That the proof of publication shows that constructive service has never been had according to the statutes of this state, and that, therefore, the judgment is wholly void; 2. The defendant and children were at the time of the attempted service of summons, domiciled in France, and, therefore, the court had no jurisdiction to award the custody of the children to plaintiff, or to provide for alimony; and 3. That the mere fact that the defendant and children were without the territorial limits of California when the action was commenced deprives the court of jurisdiction, even admitting that defendant and the children are domiciled in California, and the constructive service of summons was in all respects regular.

Respondent admits the facts in regard to the departure of defendant from the state with the children, but claims that as matter of law and fact it appears that the domicile of the defendant and children is, and has always been, in California, and she contends that such being the case, the court acquired jurisdiction, not only to grant the divorce to her, but to enter a judgment in personam against the defendant, valid at least in California. She also contends that the judgment awarding to plaintiff the custody of the children is in rem; that it is valid because it is a mere incident to the divorce, and that upon a dissolution of the marriage it was necessary to provide for the children. Furthermore, she insists that there is no judgment for alimony or for an allowance of any kind.

Conceding that the defendant and the children are all domiciled in California, although in fact absent from the state at the time of the commencement of the action and since, and that the constructive service of summons

was sufficient to give the court jurisdiction to grant the divorce, did the court have the power to award to plaintiff the exclusive custody of the children, and to allow alimony? I have concluded that it had no such power.

Some cases are cited which seem to hold that a personal judgment obtained by constructive service of the summons is valid within the state, although the defendant may have been in fact absent from the state at the time of such service. As to most of these cases it may be said that such statements are entirely obiter, the question before the court being as to the extraterritorial effect of such judgment. In such cases the argument is, in general, that, conceding the validity of the judgment within the state where rendered, another state will not recognize its validity, because it will not permit the process of another state to be served within its territory so as to compel one resident there, or in fact being. there, to answer a writ issued by the courts of such foreign state. It is a sort of an invasion of a state to serve a foreign writ there at all. The logic would require the courts to go farther and hold that such judgment is wholly void.

Constructive service upon a party who is within the state does not raise the question. The question there is simply whether a defendant had such reasonable opportunity to be heard as will constitute due process.

The leading case upon subjects of this character is Pennoyer v. Neff, 95 U. S. 714. Counsel for respondent contends that it is not there held that jurisdiction to enter a personal judgment cannot be obtained over one domiciled in the state by constructive service, when such defendant is absent from the state at the time of the attempted service; but only that such service is not good against a defendant who is not only without the state, but is actually domiciled elsewhere. Domicile has never, so far as I am aware, been made the test of jurisdiction to render a personal judgment. The question there is always whether there has been due process; whether the defendant has had a reasonable opportu

nity to be heard? Substituted service may be valid upon those within the state when the same service would be void as to those without the state. As to those within the state the question would be whether it has afforded a defendant a reasonable opportunity to be heard. But the process cannot go beyond the state and compel any person in another state to resort to the state where the action is pending, there to make his defense. No service will be recognized made there, whether actual (or constructive. It is as much an invasion of a foreign jurisdiction to serve a citizen of the state in which the action was brought temporarily resident there, as it would be to summon from its borders a citizen of such foreign state. If such things could be done, who would determine where the domicile of a particular person really was? Domicile often depends upon secret intention. It would be a most unsatisfactory test.

I am aware that it is often said by courts and law writers that domicile is the test of jurisdiction in divorce. This doctrine was built up mainly, if not entirely, to prevent parties really residing in a state from going to another for the purpose of getting a divorce. So far its effect has been beneficent, but it is obvious after all that what in these cases is called domicile is not domicile. As between states it would be no test at all unless it is domicile as defined in international law. To concede that each state may give a different definition, or to speak of domicile for the purposes of divorce, as is often done, is to concede that the test is not domicile. These writers and the courts say the test is "actual bona fide domicile." Since every person always has a domicile, and can have but one, how does actual and bona fide domicile differ from domicile?

It is meant, I presume, that domicile and actual residence must coincide. Where, then, is the jurisdiction. in those cases where they do not? One may be domiciled in California who never was within the state and never had thought of going there. Or he may be domiciled therein years after he has left without the inten

tion of returning. Persons have in California exercised for years all the rights of citizens and even held high office, who, according to Phillimore, Jacobs, Dicy and other writers on the law of domicile, never had a domicile here, because they at all times had a fixed and definite intention of returning to their domicile of origin. Had the wife of such a person obtained a divorce while he was here exercising the rights of a citizen of the state, would the courts of any state declare such a decree void upon proof of the existence of such intention? If not, then domicile is not the test of jurisdiction even as to the status of the litigants, and certainly not in personal actions.

Jurisdiction is derived from the constitution and laws creating the court, and I know of no limitation in the constitution of the United States upon the power of a state to give to its courts jurisdiction over all persons found within its borders. Certainly it has not imposed any such limitation as the test of domicile.

Domicile is the test of personal rights in regard to inheritance, but, unless made so by local law, is not important as affecting the relation of the individual to the government. The relation of the individual to the government depends upon actual presence within the ter ritorial limits of a country, and upon citizenship or allegiance.

But I cannot understand Pennoyer v. Neff, supra, as counsel do. It is true that in the case in which the judgment there under consideration was rendered the defendant was said to have been a nonresident, and, presumably, was domiciled abroad, but that circumstance seems to have been treated as one immaterial in the discussion.

The judgment there was personal, and jurisdiction was obtained, if at all, by constructive service of summons. I use the term "constructive service" for convenience, although it does not constitute service at all when the defendant is without the state. No property had been attached. The conclusion is based upon a