It is of course to be borne in mind that this question is to he dealt with, so far as the states are concerned, solely with refer ence to the state constitution. There is noth ing in the constitution of the United States which forbids the legislature of a state to exercise judicial functions; Satterlee v. Mat thewson, 2 Pet. (U. S.) 413, 7 L. Ed. 458.
In the earlier development of constitution al government in the United States the sep aration of the powers of government was less strictly observed than has been neces sarily done under the later constitutions, in which it is expressly provided for and insisted upon; it be remarked that the provisions of later constitutions on this sub ject are directed more particularly to the restraint of the legislative power within what are considered its proper bounds, with the view to abolish or avoid the abuses thought to attend the exercise of it in the past.
Mr. Justice Miller, in alluding to the set tlement of the principle that the courts un der the United States constitution are pure ly judicial bodies, observes that, under Unit ed States laws, the converse of this proposi tion does not hold good as to legislative bod ies. He illustrates this by a case in which it was held that a territorial statute of Ore gon divorcing a husband and wife, the for mer being a resident of Oregon and the lat ter with her children residents of Ohio, where they had been left by the husband under a promise to return or send for them, was a legitimate exercise of legislative pow er according to the then prevailing judicial opinion of the country, and the understand ing of the legal profession at the date of the act creating the territorial government; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654 ; and he adds by way of comment : "So extreme a case as this, where manifest injustice was done under the form of law, shows that legislatures ought not to exercise judicial powers; or, at least, if they do exercise them, should be required to dte in all interested parties before they Miller, Const. U. S. 356. The passage of di vorce bills by legislatures has, at times, been very frequent in some states; but the tenden cy of public opinion is decidedly in the line of the comment of Mr. Justice Miller above cited. It is undoubtedly the most extreme case of exercise of legislative power which verges nearly upon the judicial.
In many of the later state constitutions the legislature is expressly prohibited from passing divorce bills, but in the absence of such provision it has been held that the legislature has the power; Head v. Head, 2 Ga. 191; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654. The recog nition of this power in the United States was simply a continuance of the rule which was in force in England at the time of our independence; and it was treated as a mat ter of history that the power existed. The
English parliament has always passed such bills, and may do so at the present time, except so far as the power may be consider ed modified by the divorce act of 1857 ; L.
R. 11 App. Cas. 294; 12 id. 312, 361, 364.
In states where there was an express di vision of governmental powers the question has arisen in several cases whether the pow er to grant a divorce was so far judicial as to make its exercise by the legislature un constitutional. It has been so held in sever al cases; Chouteau v. Magenis, 28 Mo. 192; Ponder v. Graham, 4 Fla. 23; see Jones v. Jones, 12 Pa. 351, 51 Am. Dec. 611. In some cases it has been held that a legislative di vorce was valid where the court had no ju risdiction; Adams v. Palmer, 51 Me. 480; Levins v. Sleator, 2 G. Greene (Ia.) 604 ; but not otherwise, under a constitution separat ing the powers ; Opinion of Justices, 16 Me. 479. On the other hand it has been held that such action by the legislature is not an invasion of the judicial power ; Starr v. Pease, 8 Conn. 547; Wright v. Wright's Les see, 2 Md. 429, 56 Am. Dec. 723 ; Maynard v. Valentine, 2 Wash. Ter. 3, 3 Pac. 195 ; and the United States supreme court in a case cited supra held that the separation of gov ernmental powers, and the implied prohibi tions resulting therefrom were not intended to exclude the legislative power over the marriage relation; Maynard v. Hill, 125 U.
S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654. In Delaware, where the practice of legislative divorces formerly prevailed, while as an orig inal question it was considered that the pow er might be doubted, too many rights of per son and property would be disturbed to war rant the court in doing otherwise than to uphold legislative divorces; Townsend v. Griffin, 4 Harring. (Del.) 442. And in Ken tucky there have been a number of intima tions on the subject, the result of which seems to be that the separation of the gov ernmental powers would be violated by leg islative divorces ; Berthelemy v. Johnson, 3 R. Mon. (Ky.) 90, 38 Am. Dec. 179; at least after the commencement of a suit in the courts ; Gaines v. Gaines' Ex'r, 9 B. Mon. (Ky.) 295, 48 Am. Dec. 425 ; that where it was founded on the application of one party for breach of contract by the other, it was judicial; Maguire v. Maguire, 7 Dana (Ky.) 184; but not where it was for the benefit of and acquiesced in by both parties; Cabell v. Cabell's Adm'r, 1 Mete. (Ky.) 319. The theory of the last case would seem to vio late the doctrine which underlies divorce as a judicial proceeding, that no divorce should be obtainable by collusion. See Jones v. Jones, 95 Ala. 443, 11 South. 11, 18 L. R. A. 95, where cases arising under different con stitutional provisions are collected; DIVORCE.