concurring:
I concur in the opinion and order as written by Justice Norcross.
It is not denied by any of the authorities that the power to regulate marriage and divorce is vested in the different states, and not in Congress, under the federal constitution. In the absence of some prohibitive organic ■or fundamental provision — and it is not claimed that *502there is any in our state constitution — the legislature is empowered to pass such laws regulating these matters as it deems best. Generally speaking, the marital status of the citizen, the age of consent, the manner in which marriage may be solemnized, the obligations it imposes affecting personal or property rights, the time, condition of residence and causes required for obtaining divorce, are all within the control of the state and subject to her laws as enacted by the legislature. The question is not whether as individuals or as legislators we would desire to have • other restrictions or a different enactment. Unless clearly void for some fundamental cause, it is the duty of the courts to construe the statute according to its language- and the evident intention of the legislature. (Humboldt County v. Churchill County, 6 Nev. 30; Sawyer v. Dooley, 21 Nev. 390; State v. Irwin, 5 Nev. 111; State v. Parkinson, 5 Nev. 15; State v. Commissioners of Humboldt County, 21 Nev. 235; Kirman v. Powning, 25 Nev. 378.)
The policy of the law is for the legislative department of the state government, and it is not for the courts to give the act a meaning different from any implied from the words which it contains. (State v. McClear, 11 Nev. 39; State v. Parkinson, 5 Nev. 15; Ex Parte Boyce, 27 Nev. 299.)
The court cannot read into the statute -something beyond the manifest intention of the legislature- as gathered from its language. The function of the court is to determine the intention of the legislature from the words used, in accordance with established rules of statutory construction. (Ex Parte Pittman, 31 Nev. 43.)
In the Andrews case (188 U. S. 15, 47 L. Ed. 366) it was held that the appearance of a nonresident defendant does not invest the court with jurisdiction of a divorce suit instituted by a person who has no bona fide domicile within the state.
Our district court in Washoe County dismissed the Sothe.rn case a few years ago because the plaintiff, while living in New York, and without coming here, brought suit in Nevada' and had summons served upon the *503defendant, who by chance or collusion was found here, when neither was a resident of this state.
The restriction as held by these and other decisions, that the court is without jurisdiction in an action for divorce when neither of the parties is a resident of the state, does not apply to any question presented by this appeal, because it is alleged, and for the purpose of the demurrer admitted, that the plaintiff is a resident, and consequently it is not necessary to determine whether these decisions are good law or should be followed, when it does not appear that there is any constitutional inhibition against allowing the legislature to confer jurisdiction upon the courts to try cases for divorce between nonresidents, nor is it necessary to consider whether these cases will bear analysis in view of the later opinions of the Supreme Court of the United States, holding that the federal courts have jurisdiction of cases in which both of the litigants are nonresidents if no motion is made to move the case away or objection made to the jurisdiction. If it be conceded that, regardless of statute, it is essential that at least one of the parties must be a resident of the state in order to give the court jurisdiction over the marital status or to grant a divorce, the decisions do not hold that this residence must be for any particular length of time unless required by legislative enactment.
As our statute, passed at the territorial session in 1861, provides that divorce from the bonds of matrimony may be obtained by complaint under oath to the district court of the county in which the defendant shall reside or be found, and this action was brought in the county in which it is alleged, and for the purpose of the demurrer and this appeal admitted, the plaintiff resided and in which the defendant was found at the time it was commenced and has been brought within the provisions of the statute, in order to hold' that the action is not properly brought or cannot be maintained it would be necessary to set aside,-or in-effect judicially amend, this act. If it be argued or conceded that it is necessary that in addition to the provision of the statute that suit- may be *504commenced in the county where the defendant is found, it is required that one of the parties must be a resident of the state, that requirement is fulfilled' by the record. The act does provide that suit may be brought in the county in which the plaintiff shall have resided for six months before the commencement of the action, but does not require any specified length of residence by the plaintiff if suit be brought in the county in which the cause of action accrued or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be the county in which the parties last cohabited. No question regarding collusion or of the bona fides of the residence of the plaintiff being involved, and' the time of residence being one of policy for the legislature, the courts are as much unauthorized to require, six months’ residence of the plaintiff in the county in the cases where the statute requires no specified length of residence, as they would be to exact one or more years’ residence in the cases in which the statute in force to the end of this year designates six months.
In Bishop on Marriage and Divorce, 6th ed. vol. 2, secs. 343b, 113, and 113a, it is said: "The court, to render a valid decree of divorce, must, as shown in preceding discussions, have jurisdiction over the subject-matter, which is the marital status either of one of the parties or of both, and over the person of the party or parties whose status is to be dissolved. * * * For the state, including its government in every other department as well as its courts, is bound by the law of nations, and it has no just right to establish a domestic rule, pertaining to a thing of international law like the marital status, in conflict therewith. Still, if it does, the courts are compelled to obey the statute, in preference to the unwritten rule of nations. * * * As the legislature is under high obligations not to violate the law of nations, its commands on this question of international law may well be accepted by the courts as expressive of its opinion of what such law permits. When, therefore, a judicial tribunal finds a statute of its own state directing it to *505take the jurisdiction and dissolve marriages in specified ¡circumstances, it, accepting this as expressive of the legislative interpretation of what the law of nations allows, may properly regard itself at liberty, and perhaps required, to hold as valid a divorce pronounced in the same circumstances in another state or country. It was as competent for the legislature to command this as the other, and the implication is very distinct that it so intended. In a Wisconsin case it appeared that parties were married in Wisconsin, where they lived together, and there the husband committed a matrimonial offense. The wife, afterward, without him, went to reside in Minnesota, in which state she obtained a divorce for this offense from him; he not appearing, and having merely the notice by • publication which the laws of Minnesota provided for nonresident defendants. Yet the Wisconsin courts accepted this divorce as adequate to change in Wisconsin her matrimonial status.”
In Jones v. Jones, 108 N. Y. 415, 60 Tex. 451, in an action for divorce brought by the husband in New York, it appeared that the wife had obtained a decree of divorce from him in Texas, on the ground of cruel treatment, in a suit commenced in Texas, on service of the petition and citation on the husband in the city of New York while he was a resident there. Thereafter, the husband went to Texas, filed an answer to the petition, which, after alleging want of jurisdiction of the person and that he appeared solely for the purpose of a motion to quash the service of the citation, contained a general denial of the allegations of the petition. The court overruled the motion to quash the service, the case was continued until the-next term to enable the husband to prepare for trial, was tried, and a decree was granted, which on appeal by the husband was affirmed. It was held by the New York Court of Appeals that the Texas decree was a valid and binding adjudication, that the husband became bound by it and the statute of that state, which made the filing of an answer by the defendant an appearance and submission to the jurisdiction.
In Donegal v. Donegal, 3 Phillim. 597, a resident of *506Dublin appeared in a divorce suit brought in London and admitted an allegation of the bill that she was a resident of St. James, Westminster. There being no collusion, it was held that the court had jurisdiction of the person.
In Cheever v. Wilson, 76 U. S. 110, 19 L. Ed. 604, it was held that the constitution and laws of the United States give an Indiana decree of divorce the same effect elsewhere which it has in that state, that the finding of the residence of the plaintiff by the decree was sufficient, that the wife may acquire a separate domicile from her husband whenever it is necessary and proper that she should do so, that suit may be instituted where the wife resides, regardless of the place of marriage, of the offense, and the domicile of the husband. The following appears in the opinion of the Supreme Court of the United States in that case:
"It is said that the petitioner went to- Indiana to procure the divorce, and that she never resided there. The only question is as to the reality of her new residence and-of the change of domicile. (Case v. Clark, 5 Mason, 70; Cooper’s Lessee v. Calbraith, 3 Wash. C. C. 550; McDonald v. Smalley, 1 Pet. 620.) .That she did reside in the county where the petition was filed is expressly found by the decree. Whether this finding is conclusive; or only prima facie sufficient, is a point on which the authorities- are not in -harmony. (Noyes v. Butler, 6 Barb. Sup. Ct. 613; Hall v. Williams, 6 Pick. 239; Mills v. Duryee, 2 Amer. L. C. 791, note; 7 Cr. 481-487.) We do not deem it necessary to express any opinion upon the- point. The finding is clearly sufficient until overcome by adverse testimony. None adequate to that result is found in the record. Giving to what there is the fullest effect, it only raises a suspicion that the animus manendi may have been wanting. It is insisted that Cheever never resided in Indiana; that the domicile of the husband is the wife’s, and that she cannot have- a different one from his. The converse of the latter proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicile whenever it is necessary or *507proper that she should do so. The right springs from the necessity of its exercise, and endures as long as the necessity continues. (2 Bishop on Marriage and Divorce, 475.) The proceeding for a divorce may be instituted where the wife has her domicile. The place of the marriage, of the offense, and the domicile of the husband are of no consequence. (Ditson v. Ditson, 4 R. I. 87.)
A number of other cases holding that the appearance of a nonresident defendant gives the court jurisdiction to enter a decree are cited in the note under this decision in 19 L. Ed. 605.
The personal service of summons on the defendant may be considered as equivalent to his appearance, so far as the giving of jurisdiction is concerned.
Section 5034 of the Revised Laws provides: "From the time of the service of the summons in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to personal service of the summons upon him.”
In. the Atherton case, 181 U. S. 155, 45 L. Ed. 795, it was held that constructive, service, by mailing to another state notice of suit, will make a decree granting a divorce as binding on the defendant as though service had been made with notice in - the state where the suit was pending, or there had been voluntary appearance in the action. Any modification of that case, or of the one of Cheever v. Wilson by the divided court of five to four in the Haddock case, 201 U. S. 565, does not affect their application to this case, for there is nothing in the opinion of any of the justices concurring or dissenting which might have that effect.
In the majority opinion in the Haddock case it is said: "That where a court of one state, conformably to the laws of such state, or the state, through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the state in dealing with its own *508citizens concerning the marriage relation was repugnant to the due process clause of the constitution. (Maynard v. Hill, 125 U. S. 190, 31 L. Ed. 654, 8 Sup. Ct. 723.) In that case the facts were these: Maynard was married in Vermont, and the husband and wife removed to Ohio, from whence Maynard left his wife and family and went to California. Subsequently he acquired a domicile in the Territory of Washington. Being there so domiciled an act of the legislature of the territory was passed granting a divorce to the husband. Maynard continued to reside in Washington, and there remarried and died. The children of the former wife, claiming in right of their mother, sued in a court of the Territory of Washington to recover real estate situated in the territory, and one of the issues for decision was the validity of the legislative divorce granted to the father; The statute was assailed as invalid, on the ground'that Mrs. Maynard had no notice and that she was not a resident of the territory when the act was passed. * * * The power of the territorial legislature, in the absence of restrictions in the organic act, to grant a divorce to a citizen of the territory was, however, upheld in view of the nature and extent of the authority which the government possessed over the marriage relation. It was therefore decided that the courts of the territory committed no error in giving effect within the territory to the divorce in question. And as a corollary of the recognized power of the government thus to deal with its own citizen by a decree which would be operative within its own borders, irrespective of any extraterritorial efficacy, it follows that the right of another sovereignty exists, under principles of comity, to give a decree so rendered such efficacy as to that government may seem to be justified by its conceptions of duty and public policy.”
In the dissenting opinion of Justice Brown in the Haddock case, concurred in by Justices Harlan, Brewer, and Holmes, it is said: "There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial domicile, notwithstanding that the defendant may have taken up his or her residence *509separate from the other party in another state, providing that the law of domicile with respect to personal service or publication be scrupulously observed. (Atherton v. Atherton, 181 U. S. 155, 45 L. Ed. 794, 21 Sup. Ct. 544.)”
Doubtless the jurisdiction of the court granting the divorce may be inquired into, and, if it appear that the plaintiff had not acquired a bona fide domicile in that state at the time of instituting proceedings, the decree is open to a collateral attack (Bell v. Bell, 181 U. S. 175, 45 L. Ed. 804, 21 Sup. Ct. 551), and a recital in the proceedings of a fact necessary to show jurisdiction may be contradicted. (Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Streitwolf v. Streitwolf, 181 U. S. 179, 45 L. Ed. 807, 21 Sup. Ct. 550; Andrews v. Andrews, 188 U. S. 14, 47 L. Ed. 366, 23 Sup. Ct. 237.)
Subject to these conditions, each state has the right to regulate the marital status of its citizens, at least so far as to determine in what manner and by whom marriages may be solemnized, what shall be deemed the age of consent, what obligations are assumed, what property rights are created, for what causes divorces shall be granted, for what length of time the domicile of plaintiff shall have been acquired prior to the institution of the proceedings, and in what manner notice shall be given to the defendant. Nor is the power of the legislature in this connection ousted by the fact that the other party to the contract resides in another state, provided that in case of proceedings adverse to such party he or she shall be given such notice as due process of law requires. If such proceedings be in rem or quasi in rem, notice by publication is ordinarily deemed sufficient. But in case of actions in personam for the recovery of damages, personal service within the jurisdiction is vital, to the proceedings. (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Huling v. Kaw Valley R. & I. Co., 130 U. S. 559, 32 L. Ed. 1045, 9 Sup. Ct. 603.)”