dissenting, with whom concurred Vooehies, J. The one hundred and fourteenth Article of the Constitution of 1852, has wisely prohibited the Legislature from granting- divorces. It would not be difficult to demonstrate, that any State law which has granted a divorce, was a violation of the Constitution of the United Slates. Such a law impairs the obligation of a contract. To the judiciary belongs the power of declaring a contract annulled or no longer operative, upon the complaint of the party aggrieved, and after hearing all the parties and the evidence adduced by them respectively. But this high power is to be exercised strictly within the limits prescribed by law, more especially when the contract impeached is one which may, in many respects, be said to constitute the foundation of civilized society.
The suit is for a divorce, prayed for on the ground of a judgment of separation of bed and board, rendered six years previously.
If the separation was decreed, as alleged, on the ground of abandonment of the conjugal domicil, it is singular that the petition for separation should have stated, as alleged, that that suit was “-merely preparatory to a divorce,” for the form of proceeding sanctioned by our law in such cases, so far from being on its face a preparation for a divorce, is, on- the contrary, an invitation to union. See Civil Code, Art. 141, and following. In' that proceeding, the law allows an appointment of a curator ad hoe in case of absence from the State of the defendant. C. C. 143. But in a suit for divorce'the law only authorizes the appointment of an attorney to represent the absent defendant in one case, viz: when the party defendant has been charged with an infamous offence, and has fled from justice. Act of 1832, Bull. & Curry, page 286. I conclude that the defendant cannot be brought into court through an attorney or curator ad hoc in any other case. The general principle- upon which such appointments are made, has been most judiciously settled by the late Supreme Court, restricting greatly the loose practice which previously prevailed. A citation by a curator ad hoc is, at best, but a fiction of law, as such it cannot be recognized=as bind--ing except in cases distinctly and expressly pointed out by law.
I think the judgment should be affirmed.