Opinion by
Hoyt, Associate Justice.The Court below sustained a demurrer to the complaint filed in this action, and rendered judgment in favor of defendants, from which judgment plaintiffs appealed, and have brought the case here for review.
Upon the facts stated in the complaint, plaintiffs were entitled to recover the lands in controversy, unless the special act of the Legislature of the Territory of Oregon declaring the bonds of matrimony between David S. Maynard and Lydia A. Maynard to be dissolved, has had the effect to deprive her of the benefits she would otherwise have been entitled to under the Donation Law of the United States. The case therefore involves two questions, viz: 1st, Was said act of the Legislature valid for any purpose ? and, 2d, If valid, did it affect the rights of the divorced wife under said Donation Law ?
The first inquiry, then, is as to the power of said Legislature to pass a special act of divorce ; for this power being conceded, the fact that it did pass such an act will raise a conclusive presumption that it was rightfully passed, and that just cause therefor was shown to the satisfaction of the said Legislature; and therefore the allegation of the complaint that no such cause in fact existed, is simply a conclusion of law inconsistent with the facts stated in the complaint, and cannot avail plaintiffs. Had such Legislature the power to pass such special act ? If it had the power to dissolve the bonds of matrimony at all, it must do so by special act, as from the nature of the legislation it must be special and not general.
The said Legislature is given full power (subject to certain restrictions not pertinent to this discussion) to legislate upon all rightful subjects not inconsistent, with the Constitution and laws of the United States. We will first enquire as to whether such a law was upon a rightful subject of legislation, and then as to *326its being contrary to any provision of the Constitution or laws of the United States.
The word rightful, as used in the Organic Act of said Territory, is, in our opinion, substantially equivalent to the word lawful; and Congress, by its use, intended only to prohibit legislation that was wrongful in a legal sense, and not necessarily all that might be offensive to the highest standard of moral ethics.
At the time said act was passed, was it lawful for legislative bodies not restricted by any constitutional provisions to pass acts of divorce, and were such acts legal and of effect ?
That must be considered as legal and binding which is recognized and enforced by the Courts; and if this be so, then in 1852, when this act was passed, such acts, examined in the light of all the adjudications upon that subject, must be held to be legal and within the legislative power ; and this, too, despite the fact that the power of government under which such acts had been passed and said adjudications had, had been by the sovereign power distributed into the legislative, executive, and judicial branches. This proposition is so fully established by the text writers upon the subject and the cases by them cited, that a simple reference to some of them will suffice to show it; though it is clear from what is said by most of them that, upon moral grounds, they regretted that such had been and was the course of decision upon the subject. (See 1st Bishop on Marriage and l)ivorce, 664; Cooley Const. Lim.,4th ed., 132; 2d Kent’s Com. 98, 105.)
Besides, theexistence of'this power as a part of the legislative branch of Government has been so well understood, that nearly all of the State Constitutions have, by express provision, restrained their Legislatures from exercising this power; and while this fact may tend to show that the exercise of it was not approved by the moral sentiment of such States, we think that it likewise tends clearly to show that in the absence of such restrictions, its exercise would be lawful, and sustained by the Courts.
The passage of the act in question was, then, a rightful-subject of legislation.
If this act was inconsistent with the Constitution or laws of the United States, it is because the marriage relation is a con*327tract, such as the said Constitution and laws intended to protect from impairment.
And it has been so often decided that such relation is a status rather than a contract, and that the vested rights therein, if any, must yield to the public interest in the regulation and control of such status, and the opinions therein rendered have been so numerous and able, that we content ourselves with a reference to a few of such decisions, from which it will appear that the marriage relation is not a contract, within the meaning of the ■constitutional restrictions above referred to. (See Butler v. Penn, 10 How. 302, 416; Adams v. Palmer, 51 Maine, 480; 1 Bishop on Marriage and Divorce, Secs. 2, 19, 667, 669; Cooley Const. Lim. 134; Brigham v. Miller, 17 Ohio, 445.)
Besides, we think that the fact that Congress nullified certain acts of this nature, and did not, when its attention was thus ■called to the subject, change the general law as to the territoral legislation in the premises, tends strongly to show that in its ■opinion such acts were lawful and of full effect, unless set aside by it, under its power of supervision over all of the laws of the Territories.
But it is said that the wife was never domiciled in the said Territory of Oregon, and consequently said act can have no effect upon her or her rights ; but with this claim we cannot agree, for if we admit that under the facts pleaded she was domiciled in the State of Ohio, still as the husband was a resident of said Territory, the Legislature could regulate his status therein; and having released him from the bonds' of his marriage, he was, at least while in said Territory, absolved from all its duties, and deprived of all its rights, and from the time he was thus released he occupied the status of a single, and not that of a married man ; and the wife could not come here and assert any right as .such wife thereafter.
Did the wife, at the time said act was passed, have such a vested right in her half of said Donation Claim as would continue to her, notwithstanding its passage ? We think not; as it is now .the settled law that no title passes to such donation claimants, until the settlement and cultivation required by law have been fully completed. (See Hall v. Russell, 101 U. S. 503.)
Her rights, therefore, were simply contingent; liable to be *328defeated by the acts of the husband, and in no sense so vested as to be protected from legislative interference.
Besides, the facts pleaded show that as to her half of said claim there never was any compliance with the requirements of said Donation Law; as after said divorce the status of her former husband was that of a single and not of a married man, his residence and cultivation could only serve to complete title to his half of said claim; and as there never was any other settlement or cultivation, it follows that her half has never been earned, but remained the property of the United States, and was properly disposed of as such.
For a more elaborate discussion of the questions involved in-this case, we refer to and approve the opinion of this Court by its Chief Justice, in the case of Maynard v. Valentine, 2 Wash. Territory, 3.
Let a decree be entered here, as in the Court below, dismiss-’ ing the complaint, and for costs in favor of the defendants.
I concur: George Turner, Associate Justice.
It does not appear, except inferentially, that I dissented from the decision in the case of Maynard v. Valentine, 1 Washington Territory, 3; but I did dissent therefrom, and I dissent from the majority opinion in this case.