dissenting:
The majority have succeeded in making a federal case out of an ordinary adoption action and on the basis of the supremacy clause of the United States Constitution they have voided the injunction of the Illinois court.
Because of the nature of this case I do not believe that the supremacy clause of the constitution is invoked nor that the Illinois court was acting beyond its proper power in issuing the injunction in this case. Accordingly, I respectfully dissent.
The majority recognize that there is a distinction that may be made in the origin of Federal courts, that all of them are not the so-called art. Ill or “constitutional” courts. Some Federal courts are created by acts of Congress implementing other provisions of the constitution and these courts have only the jurisdiction prescribed by Congress. (See ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411.) These courts have been termed “legislative” courts and their jurisdiction is not “the judicial power of the United States” as established by art. Ill, sec. 1 of the United States Constitution. (Good v. Martin, 95 U.S. 90; McAllister v. United States, 141 U.S. 174.) However, the jurisdiction and power of a “legislative court” may be so conferred as to include that of an art. Ill court. (Palmore v. United States, 93 S.Ct. 1670.) In the case under consideration, then, the District Court for the Canal Zone is a “legislative court” established by Congress pursuant to art. IV, sec. 3 of the constitution which confers upon Congress the power to make all needful rules and regulations respecting territory belonging to the United States.
While recognizing the fact that the District Court of the Canal Zone is a “legislative court,” the majority point to the origin of its jurisdiction in adoption cases as an act of Congress and on the basis of Donovan v. City of Dallas, 37 U.S. 408, hold the supremacy clause of the constitution preempts any consideration of state court action. No attention is given to the rules of the conflict of laws.
Crucial, I believe, to the proper resolution of the issues in this case is a consideration of the type of proceeding before the Canal Zone Court, i.e., an ordinary adoption, a domestic relations matter. While it is true that the Canal Zone court was created by Congress, it must also be considered that in an adoption proceeding that court is not exercising the “judicial power of the United States” as defined in art. III. Rather it is exercising power conferred by Congress in providing laws for the internal governance of the Canal Zone. The Canal Zone adoption law is special and limited in the scope of its application to that territory; it is not a generic law applicable to all the States. Adoption is a proceeding peculiarly and exclusively the concern of the States. The issuance of the injunction controlling the adoption in the Canal Zone does not interfere with nor is it in contravention of the constitution or any law made by Congress pursuant thereto. An adoption statute, limited in the scope of its application to the Canal Zone, having no application to the several States, not in any way invoking the judicial power of the United States as defined and conferred by art. Ill, and not in any way involving a federal-state relationship, does not confer jurisdiction on a Canal Zone court, albeit a federal court, to effectively require, or even permit, it to override the State court and oust it from jurisdiction in this case. The question presented here would not even have arisen but for the fortuitous circumstances that sent the plaintiff-wife to the Canal Zone; had she gone to any State in the union a federal cotut could not have become involved. I believe the relative powers of the two courts to decide the case in question are to be determined by the traditional rules of the conflict of laws. (See Restatement of the Law, Conflict of Laws, 2d, sec. 3, comment a.) In Applegate v. Applegate, 39 F.Supp. 887, a divorced wife was seeking to garnishee her ex-husband’s wages to recover alimony in arrears. The original decree for divorce and alimony was rendered in the U.S. District Court for the District of Columbia. The garnishee proceeding was in the U.S. District Court for the Eastern District of Virginia. The court stated:
“Federal Courts outside the District of Columbia and of certain territories have no jurisdiction generally pertaining to divorce and alimony. That has been left entirely to the State courts. * * * In coming into this court upon a decree of the District Court for the District of Columbia, the plaintiff to all practical purposes occupies the same position as if she were relying upon the decree of a competent court of one of the States.” (Emphasis supplied.)
Also see Simms v. Simms, 175 U.S. 162.
I believe that in this case we are to consider the Federal District Court in the Canal Zone in the same manner and position as the court of any of the other States of the United States and not as a court exercising “the judicial power of the United States” as that phrase is used in art. Ill of the United States Constitution. Donovan v. City of Dallas does not, and it was not intended, to abolish the distinction between courts created pursuant to art. Ill and those “legislative” courts created in the implementation of other articles of the constitution. The Donovan case was concerned with an art. Ill federal court exercising its traditional “judicial power of the United States” jurisdiction. Accordingly, I believe Donovan inapplicable to this case.
Departing from the “federal court” rationale, the majority claim support for their result under the traditional conflict of laws concept that the first court to obtain jurisdiction of a cause may proceed to exercise that jurisdiction to the conclusion of the case and no court of another State will interfere. They cite for this proposition Kleinschmidt v. Kleinschmidt and James v. Grand Trunk West. R.R. Co. I am in agreement with the rule and the authorities but differ with the majority in their application in this case. They require its affirmance rather than its reversal.
In this case the wife had thoroughly litigated the custody question in the Circuit Court of Madison County, submitting herself and the child to the jurisdiction of that court. When she failed to get the desired result she forthwith went to the Canal Zone with the child and, according to the record, went with her new husband to seek a lawyer for an adoption proceeding in the Canal Zone. To me this circumstance shows the plaintiff-wife had a complete disregard for the order of the Circuit Court of Madison County and places her in the position of a scofflaw. In consenting to the adoption in the Canal Zone proceeding the mother of the child is committing an act of contempt against the Madison County court since she is directly subverting its jurisdiction and contradicting an order touching the custody of the child. Her action will serve to deprive the father of his custody rights under the Illinois decree as well as to deprive him of his child. We are not dealing here with the authority of the court of another State in which the child is present to make new or different orders of custody based upon a change of circumstances having occurred following a prior custody order in another State. Unquestionably, such amendatory orders are proper. (People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382; Wilner v. Wilner, 131 Ill.App.2d 891, 266 N.E.2d 918.) The proceeding in the Canal Zone is not one arising out of a “change in circumstance” of the child nor is it a proceeding to determine what is in the best interests of the child. It is a proceeding totally alien to the award of custody in the Illinois court.
Of salient importance in the determination of the validity of the injunction is the fact that the plaintiff-wife appeared, with counsel, and litigated the injunction question before the Illinois court and she remains subject to its jurisdiction and subject to its injunctive order. Furthermore, the plaintiff-wife is not a party to the Canal Zone adoption proceeding.
Restatement of the Law, Conflicts of Laws, 2d, sec. 53 states that:
“A state has power to exercise judicial jurisdiction to order a person, who is subject to its judicial jurisdiction, to do an act, or to refrain from doing an act, in another state.”
As noted above, sec. 3 of the same Restatement provides that the word “state” includes the Canal Zone. In James v. Grand Trunk West. R.R. Co. the court states:
“* * * while we quite agree with defendant’s repeated assertion that a court of equity has power to restrain persons within its jurisdiction from instituting or proceeding with foreign actions (Cole v. Cunningham, 133 U.S. 107, 33 L.ed. 538; 6 A.L.R.2d 896), we note that the exercise of such power by equity courts has been deemed a matter of great delicacy, invoked with great restraint to avoid distressing conflicts and reciprocal interference with jurisdiction. [Citations.]
Illinois has consistently followed the course of refusing to restrain the prosecution of a prior instituted action pending in a sister State unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice; and neither a difference of remedy afforded by the domicile and the forum nor mere inconvenience and expense of defending will constitute grounds for such an injunction. [Citations.] That course is based on the policy that after suits are commenced in one State, it is inconsistent with inter-State harmony if their prosecution be controlled by the courts of another State.”
Here we have a case of clear and overriding equity; it is the interest of a capable, fit and proper father in retaining his son. The question has been litigated. Must the father now go into any jurisdiction which the wife may select for further litigation to preserve his parental rights?
There are cases in which it has been held that an out of State decree awarding custody may not deprive a court of a State in which a child is present of jurisdiction to entertain an adoption action. (See People ex rel. Bachleda v. Dean, 48 Ill.2d 16, 268 N.E.2d 11; In re Adoption of Greer, Okla., 463 P.2d 677; In re Lewis’ Adoption, Okla., 380 P.2d 697; In re Adoption of Rule, Mo.App., 435 S.W.2d 35; In re Burton’s Adoption, Calif., 305 P.2d 185.) However, those cases should not be applicable here because of the injunction which has issued after notice and a hearing in which the plaintiff-wife has participated.
I would affirm the order of the trial court.