This is an appeal from the judgment of the district court affirming a decree of the probate court, denying the right of Sophia E. Higbee, the petitioner, as widow of the late Lyman P. Higbee, and distributing his entire estate to another.
It appears from the findings that Lyman P. Higbee died intestate at Ogden City, Utah territory, on the 2nd day of February, 1883, leaving an estate which, after the payment of all his just debts, amounted to about $3000. The petitioner is entitled to one half this estate if, at the time of his death, she was his lawful wife.
The facts are that petitioner was married to deceased at *26Fon dn Lac, in tbe state of Wisconsin, on the 23rd day of August, 1866; that they continued to live together as husband and wife till 1869, when he sent her to California on account of her delicate health, with the mutual expectation that she would return to him in Idaho, or that he would join her in California and establish his residence there; that he ceased to contribute to her support within a year thereafter, although she was dependent upon him; that she was willing and desirous to return to him, but he neither joined her in California nor furnished her means to return to him; that he was afterwards elected to the legislature of the territory of Idaho, and, while he was acting as a member thereof, that body passed an act, which, without preamble or recital, simply declared “that the bonds of matrimony existing between Lyman P. Higbee, of Malad City, in the county of Oneida, this territory, and Sophia E. Higbee, be, and the same are hereby absolutely dissolved, and that this act shall take effect and be in force from and after its passage.” It was approved December 28th, 1874. It also appears that Sophia E. Hig-bee had no notice of this act until 1876, when she saw an announcement of it in a newspaper sent to her by a third person.
To decide this question it is necessary to determine whether the divorce was within the grant of legislative power to the territory of Idaho. The Federal government is one of enumerated and delegated powers, and possesses none except such as are necessary to the exercise of those expressed. The second clause of the third section of the fourth article of the Constitution of the United States is: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States.” “No one,” says Judge Story, “has ever doubted the authority of Congress to erect territorial governments within the territory of the United' States, under the general language of this clause:” 2 Story on Const., sec. 1325.
Hules and regulations in a legal sense mean laws. Blackstone says that “municipal law is a rule of civil *27conduct prescribed by the supreme power in a state.” A divorce is not a rule or regulation. “The divorce act is a judgment, though not pronounced by a court;” if it has any effect, it is the dissolution of the bonds of matrimony between husband and wife — a decree which terminates the. rights and duties of the marriage relation. It is confined to the parties to the marriage, and therefore cannot be a rule or regulation. Congress unquestionably has the power to enact laws with respect to marriage and divorce in the territories — to protect the former, and to specify the causes for the latter, and the mode to be .pursued. in obtaining the latter. But, so far as we are advised, Congress lias never exercised or claimed authority to grant divorces.
Territorial legislatures have not the supreme legislative power. That is vested in Congress and so continues: Chief Justice Waite in National Bank v. Yankton, 101 U. S. 133, defines the territorial status as follows: “A territory within the jurisdiction of the United States, not included in any state, must necessarily be governed by and under the authority of Congress. The territories are ■ but political subdivisions of the outlying dominion of the-United States. Their relation to the general government is much the same as that which counties bear to, the respective states, and Congress may legislate for them as a state does for its municipal organizations. . . . Congress may not only abrogate the laws of the territorial legislature, but may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void.”
Section 1851 of the Revised Statutes of the United States provides that “the legislative power of any territory shall extend to all rightful subjects of legislation, not inconsistent with the Constitution and laws -.of the United States.”. Only legislative power is conferred, and-is extended only to rightful subjects of legislation, so that, even if Congress has the power to grant divorces, it has not conferred it on the territorial legislatures. The Federal and state constitutions limit the legislative powers of the various states, and those powers may extend to *28judicial subjects, when they are found within the limitations. The powers of government are distinguished and classified with respect to their purposes and uses. Those necessary to enacting laws are termed legislative; those employed in ascertaining facts from evidence, and in construing and applying the law, are called judicial, and those used in executing judgments, decrees and commands are named executive. Experience and observation have' demonstrated that a legislative body, and the forms and methods which it employs, are best adapted to express the will of the people in laws; and that a tribunal constituted as a court is, and the forms and methods which it employs are best suited to the investigation of evidence relating to the varied contentions among men, which the government is called upon to settle.
During its early history, all the authority of the British government was in the king, and he exercised executive, legislative and judicial power. Later, parliament exercised judicial, as well as legislative, authority. But “divorces granted by the parliament of Great Britain were not legislative, but judicial; and, according to the article on divorces in the Encyclopaedia Brittanica, the proceeding was a judicial one by a legislative process.”
In Jones v; Jones, 12 Pa. St. 850, Justice Coulter thus refers to divorces by parliament: “In England, parliament has frequently annulled the contract of marriage for adultery. There is, perhaps, more reason for the practice there than existed in this state for the exercise of a similar power by the legislature, because parliament is a court. Lord Coke says it is the highest and most honorable court in the kingdom. But that high court proceeds with the utmost circumspection, examines witnesses to prove the adultery, and, in cases where the guilty parties have not left the realm, requires that there shall also have been a trial in the common law courts for criminal conversation, and damages recovered; also-that a sentence of divorce in the spiritual court should have been decreed, which can only divorce a mensa et thoro; hence the necessity of the intervention of parliament to divorce a vinculo whose power, only, is adequate to that end.”
*29Following precedents furnished by the British parliament, legislatures in this country granted divorces, but those which have been sustained by the courts, in nearly every case, were for cause, and therefore judicial, and can not be claimed as the rightful subject of legislation.
The Pennsylvania Constitution of 1838, sec. 14, art. I., provided: “The legislature shall not have power to enact laws annulling the contract of marriage in any case where, by the laws, the courts, of this commonwealth are, .or hereafter may be, empowered to decree a divorce;” “from which,” the court in the case of Jones v. Jones, supra, held, “an implication results of a power to annul the marriage contract in the non-enumerated cases;” and, further, that it was admissible to show on what charge the legislature proceeded, with a view to determine whether it was one upon which the courts were authorized to grant the divorce. In the case of Starr v. Pease, 1 Conn. 540, the divorce questioned was granted upon notice, and upon evidence, and for cause. The act was as follows: “Upon the petition of Martha M. Lewis, representing to. this assembly that she was lawfully married to John L. Lewis .on the twenty-third day of September, 1799, and that on or about the fifteenth day of January, 1826, the said John L. Lewis indulged in such criminal intimacies with one Nancy B. Jones as amounts to adultery, as nearly as could be without the actual perpetration of the crime, and praying for a divorce as per petition on file, and the said allegations, after hearing the said petitioner and said John L. Lewis, with their witnesses and counsel, being found true, Resolved, by this assembly, that the said Martha M. Lewis be, and she is hereby, divorced from . her said husband, the said John L. Lewis, and is hereby released and absolved from all obligations by virtue of said marriage.”
The court said the act “affirms the contract of marriage and declares that the acts proved were such as ought to dissolve it,” and resolved accordingly. In answer to the objection that the act was not within the jurisdiction of the legislature, because the Constitution separated the legislative from the judicial powers, the court, in sub*30-stance, said that the Constitution does not so separate them, as to prevent the legislature from exercising judicial powers in certain cases.
The mixed powers of the Connecticut legislature came under discussion, in the supreme court of the United States in Calder v. Bull, 3 Dall. 386. Paterson, J., said that the legislature acted “in a double capacity — ás a house of legislation with undefined authority, and also as a court of judicature in certain exigencies.From the best information, however, which I have been able to collect on this subject, it appears that the legislature or general court of Connecticut, originally possessed and exercised all legislative, executive and judicial authority.” And it would appear that the divorce in question has been "granted in the exercise of judicial authority.
Thus it will be found, upon further examination, that nearly all of the divorces granted by legislatures, and sustained by the courts, were so granted in the exercise of judicial power — that they were recognized as judicial sub-jects, and not as legislative.
A divorce granted for cause is not a legislative divorce. Mr. Bishop says: “A divorce, like every other statute, would appear, necessarily, to flow merely from the sovereign will. It is not the ascertainment of a right, but 'the creation of one:” 1 Bish. on Mar. and Div. 689.
' But the purpose of laws is to protect rights and enforce duties, not to destroy the former nor to relieve from the latter; municipal law does not create rights. A divorce granted without cause would destroy the lawful rights of one party and release the legal duties of the other, and dience law is invoked to abrogate them.. “A wife has a right to the love and protecting care of her husband; she has a right to share his bed and board; she has a right to support, consisting of necessary food and clothing, according to her position in life.” And these rights are answered by corresponding duties from the husband.
In thé absence of misconduct on her part, it is impossible for him to shake them off; they exist for life, and if he dies first, her rights survive to his estate. The petitioner is now contending for the latter.
*31The legislature of the territory of Idaho attempted to try petitioner’s case without evidence, and, at one blow, to make the law and the decision which severed all her rights as wife. By the common law, marriage is for life, and indissoluble except for cause.
In the case of Smith v. Smith, 13 Gray 209, Shaw, C. J., said: “Marriage is undoubtedly a contract, but it is a contract sanctioned by law, controlled by considerations of public policy vital to the order and harmony of social life, and in its nature indissoluble except by violation of duty on the one part, to' be taken advantage of in a special manner provided by law on the other.”
From the point of view from which we are considering this case, it is immaterial whether marriage is held to be a contract or a status. In either case the rights which the relation affords, and the duties which it imposes, are equally under the protection of the law.
Marshall, C. J., in Gaines v. Gaines, 9 B. Mon. 295, said: “It is the province of the legislature, so far as individual rights are concerned, to pass laws as a rqle of action for the community at large, or for a particular class, or for individuals, under certain circumstances to be defined by law. It is the province of the judicial power to administer these laws, by applying them to the facts in individual.cases, for the ascertainment of the right, and the redress or repression of the wrong. It is essential to the stability and security of individual rights that they should be determined by pre-existing laws under which they have originated, and by general laws operating upon similar rights, and not by laws made merely for their decision, when they come to be contested. It is to avoid the danger of individual rights being determined, not by preexisting laws, but by a law first promulgated in the decision itself, or made for it, or by the secret law of will or discretion, that the judicial department, entrusted with the power of ascertaining and enforcing private rights, as created and sustained by law, is prohibited from exercising legislative power; and it is for the same reason that the legislative department, entrusted with the power of making, altering and repealing laws, is prohibited from *32the exercise of the judicial power, which'is but the power of applying the existing laws to the facts, and thence deducing and establishing the rights in contest. But it is in vain that the Constitution has vested this power exclusively in the judiciary department, and said it shall not be exercised by the legislative, if, when a party alleging in- . jury by the deprivation of a right, has resorted by the appropriate remedy to the appropriate tribunal for redress, the party accused of wrong may appeal to the legislature, obtain the passage of an act, not to change the general laws by which all similar cases are to be governed, nor to change the organizations or jurisdiction of the courts, by which others as well as himself will be affected, but an act for his own exclusive benefit, to operate only between himself and his antagonist, and, by extinguishing the right asserted against him, to stifle judicial inquiry, and to arrest the administration of the law in his case, and save him from all those consequences to which the general laws would subject him, if he -had committed an injury to the rights of another.”
To the same effect Kent, Ch. J.,in Dash v. Van Kleeck, 7 John. 508, said: “The power that makes is not the power to construe a law. It is a well settled axiom that the union of these two powers is tyranny. Theorists and practical statesmen concur in this opinion.”
The legislature of the territory of Idaho had passed a general law, in which causes for divorce were specified, and a trial in court secured. But it granted the divorce against the petitioner without notice and without cause, and, if the granting was valid, the votes and formalities which made the law pronounced the decree. In the general law the legislature recognized the principle that personal rights cannot be taken away without an opportunity to the person to whom they belong to be heard. It was said by Webster in the celebrated Dartmouth College case, 4 Wheat. 519, that “by the law of the land is most clearly intended the general law; a law,which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial;” and, likewise, Judge Cooley, Const, Lim, 491; “Kvery ope has a right to demand that *33be be governed by general rules; and a special statute, which, without his consent, singles his case out to be governed by a different law from that which is applied in all similar cases, would not be a legitimate legislation, but would be such an arbitrary mandate as is not within the province of free government. This is a maxim in constitutional law, and by it we may test the authority and binding-effect of legislative enactments.”
Notwithstanding the general act, this legislature supposed that it possessed the power to hurl its fiats against such as it chose, which, like the lightning, should strike first and thunder afterwards.
By calling marriage a status, some writers appear to think that the individual rights belonging to marriage are lost, and that the state then has absolute power to treat it as it pleases. In time of insurrection or war, private rights appear to be lost sight of, but a just government must compensate its loyal citizens for the losses which they may have sustained. Similarly, private property may be taken for the public use, but compensation must be made. Taxes may be exacted, but personal security and protection are given in return. But the private rights which belong to marriage can not be taken away on any such grounds as these; for the only interest which the public can have in the institution of marriage is to regulate and protect it. On account of the misconduct of one party, the court may declare, at the instance of the other, that the rights resulting from marriage are forfeited. Yet it does not follow that the individual rights of the parties may be disregarded, because the public have an interest in the institution of marriage. Both classes of interest exist together, and both should be secured and protected. All persons, with respect to their marital rights, are equal before the law; and the state must extend to all equal, exact and even-handed justice. Therefore the act of the legislature of Idaho can not be sustained, without holding that the granting of a divorce is a rightful subject of legislation, without violating that great principle of' equalness upon which all justice and all equity repose, and without denying to the petitioner the benefit of the law pf the land, *34and refusing her a day in court and a right to a fair trial.
The act can not be upheld on principle — the authorities are conflicting. The constitutions of thirty-one states forbid legislative divorces. None have ever been granted in this territory, and but few in any of the territories. Neither of the parties to the marriage in question ever married again, and no serious consequences are likely to follow from holding that the act in question is void.
The decree of the lower court is reversed, and the cause remanded, with direction to enter a decree in harmony with this opinion.
Twiss, J., and Emerson, J., concurred.