Appeal is taken from judgment of the trial court awarding appellee (plaintiff below) ' an absolute divorce on incompatibility. ...
Appellee is a naval officer; he arrived in New Mexico September 18,1952 under military orders directing á permanent change of station to Sandia Base, Bernalillo County, New Mexico. Appellee -filed suit November 11, 1953 alleging service-in a military branch of the United States Government and that he had “been continuously stationed at Sandia Base, New Mexico within the State of New Mexico for a period of one year next' preceding the filing of this Complaint.” Appellant’s answer admitted the military service and the allegéd station at the time of the filing of complaint but denied that the plaintiff had “been continuously stationed at Sandia Base, or any other military base or installation in the State of New Mexico, for one year next preceding the filing of the complaint herein.”
Appellee left Sandia, Base April 17, 1953 on temporary duty orders placing him physically with the Pacific Fleet and directing his return to Sandia Base upon completion of that temporary duty. The temporary duty was completed and return made to Sandia Base November 6, 1953, five days prior to the filing of complaint. Therefore, appellee, after coming to New Mexico under military orders September 18, 1952, in the first year spent approximately seven months here in New Mexico and five months outside New Mexico on temporary duty; approximately at the conclusion of the thirteenth month following his original arrival in New Mexico, he returned to his permanent station there and filed this suit.. His total absence from New Mexico was slightly in excess of six months.
Parenthetically, it should be stated that both parties appeared in court, litigated all matters involved, and there is no question of the existence of personal jurisdiction of the parties.
Appellant relies upon four points which may be stated as follows: (1) That the trial court erred in holding appellee to have been “continuously stationed” at Sandia Base for one year next preceding the filing of complaint pursuant to § 25-704, N.M.S.A. 1941, as amended by ch. 107, § 1, 1951 Session Laws. (2) That the above cited act is unconstitutional as violative of art. 1, § 8, par. 17 of the Constitution of the United States. (3) That this act is unconstitutional as violative of art. 4, § 24, and art. 2, § 18, N.M. Const. (4) That this act is unconstitutional as violative of art. 7, § 4, N.M.Const.
The act in question is:
“25-704. Residence requirement.— The plaintiff in action for the dissolution of the bonds of matrimony must have been an actual resident, in good faith, of the state for one (1) year next preceding the filing of his or her complaint; Provided, however, that in a suit for the dissolution of the bonds of matrimony wherein the wife is plaintiff, the residence of the husband in this state shall inure to her benefit and she may institute such action setting up any of the causes mentioned in section 2773 (25-701) immediately after the accrual thereof, providing her husband shall have been qualified as to residence to institute a similar action; and provided further, persons serving in any military branch of the United States government who have been continuously stationed in any military base or installation in the state of New Mexico for such period of one (1) year, shall for the purposes hereof, be deemed residents in good faith of the state and county where such military base or installation is located. (Laws 1901, ch. 62, § 25; Code 1915, § 2776; Laws 1921, ch. 106, § 1, p. 192; C.S. 1929, § 68-504; Laws 1951, ch. 107, § 1.) ”
Appellant’s contention under Point .IV, subsequent to his presentation thereof in the trial court, was specifically determined adversely to his position in Wilson v. Wilson, 1954, 58 N.M. 411, 272 P.2d 319. The decision in that case and the major presentation of this point by appellant, however, are confined to the very narrow problem of the applicability of art. 7, § 4, N.M. Const., to residence for the purpose of divorce. Subsequently in this opinion we shall return to a broader phase of this question of residence.
Appellant’s Point III asserts that this act is violative of the above cited New Mexico constitutional provision prohibiting local or special laws and guaranteeing equal protection of the laws. We find no merit an this contention. The language of the Court in Craig v. Craig, 1936, 143 Kan. 624, 56 P.2d 464, 467, expresses in substance the thinking of our Court:
“The specific complaint of defendant is, unless actual residence or domicile on the reservation is required, the amendment discriminates between persons residing on the reservation and those residing off the reservation within the state. It is insisted that is invalid special legislation. The contention is ■not sound. In the first place, the •amendment is not special legislation. Second, it is valid general legislation. The amendment applies to all within the state similarly situated. Its application is therefore general to the entire class it embraces. It is not a false or 'deficient classification, but a genuine, natural, reasonable, and complete classification. It rests upon a substantial basis. It operates uniformly on all members of the class. It is neither arbitrary nor capricious. In discussing the question of special legislation, this court in State v. Board of Com’rs of Butler County, 77 Kan. 527, 533, 94 P. 1004, said: ‘If, however, it operates uniformly on all the members of the class to which it applies, it is not open to the objection, provided the classification adopted by the Legislature is not an arbitrary or capricious one. The Legislature has the power to enact laws of a general nature which will be applicable only to a certain portion of the state or to a certain class of citizens.’
“In the case of Rambo v. Larrabee, 67 Kan. 634, 73 P. 915, it was held: ‘An act, to have a uniform operation throughout the state, need not affect every individual, every class, or every community alike. It is competent for the Legislature to classify and adapt a law general in its nature to a class; but such classification must be a natural, and not an arbitrary or fictitious one, and the operation of such general law must be as general throughout the state as is the genera therein provided for.’ Syl. 5. See, also, Cole v. Dorr, 80 Kan. 251, 101 P. 1016, 22 L.R.A.,N.S., 534; State ex rel. v. Kansas City, 125 Kan. 88, 262 P. 1032; State ex rel. v. French, 130 Kan. 464, 286 P. 204; 25 R.C.L. 815-818.”
This language and reasoning, while addressed to “special legislation,” are equally decisive on any question under the “equal protection” clause of the Constitution. Our own cases on the prohibition against local or special laws, while not dealing with the exact problem presented here, support our thinking on this problem. Hutcheson v. Atherton, 1940, 44 N.M. 144, 99 P.2d 462; Davy v. McNeill, 1925, 31 N.M. 7, 240 P. 482; State v. Atchison T. & S. F. Ry. Co., 1915, 20 N.M. 562, 151 P. 305.
Appellant’s Points II and I raise more difficult questions. As to Point II, New Mexico ceded exclusive jurisdiction over Sandia Base to the United States under §§ 8-202 and 8-203, 1941 Comp.:
“8-202. Consent to acquisition of land for federal purposes. — The consent of the state of New Mexico is hereby given, in accordance with the seventeenth clause, eighth section, of the first article of the Constitution of the United States to the acquisition by the United States, by purchase, condemnation, or otherwise, of any land in. this state required for sites for custom-houses, court-houses, post-offices, arsenals, or other public buildings whatever, or for any other purposes of the government.
“8-203. Jurisdiction over federal land — Limitation • — ■ Duration. — Exclusive jurisdiction in and over any land so acquired by the United State's, shall be, and the same is hereby, ceded to the United States for all purposes, except the service upon such sites of all civil and criminal process of the-courts of this state; but the jurisdiction so ceded shall continue no longer than the United States shall own such lands.”
Appellant states his contention clearly: “The legislature, in passing the 1951 amendment to § 25-704, 1941 Comp., supra, clearly was attempting to do that which is exclusively reserved to the federal government in the constitutional provision above quoted, and to which the State of New Mexico has assented by legislative enactment.”
In support of her position, appellant cites Arledge v. Mabry, 1948, 52 N.M. 303, 197 P.2d 884, and cases cited .therein, wherein it was decided that that portion of the Los Alamos Project ceded to the United States under similar statutes and constitutional provisions was not “in New Mexico” within the meaning of the language of our constitutional qualifications for electors, with the resulting decision that persons resident thereon could not vote in New Mexico. Cited by appellee on the opposite side of this question is the case of State v. Mimms, 1939, 43 N.M. 318, 92 P.2d 993, determining that New Mexico had the right to require payment of a license fee for the sale of intoxicating liquor upon lands owned and under the exclusive' jurisdiction of the United States. The availability of these decisions makes it unnecessary to incorporate their language here. Suffice it to say that this Court had difficulty when faced •with the problem of harmonizing its thinking in the Arledge case with the earlier Mimms case. The two come close to conflict; however, it is perhaps wise to deny that one of these cases should be overruled and one followed. The concept of exclusive jurisdiction of the United States over lands ceded by the states is a developing one as are all such concepts with their application to the increasing number of factual situations; the interstate commerce clause is an example.
With the foregoing as justification for adopting neither of the cited cases as controlling, we have been cited to a single case dealing with the exact problem, a case already cited, Craig v. Craig, supra. Faced with the identical problem, the Court there concluded: “Does our divorce law, including the amendment, constitute an unlawful encroachment on federal jurisdiction? We think it does not.” The language, reasoning and authorities there cited are entirely pertinent and to this Court, convincing. We refer to that portion of the opinion appearing under headnote 3 of 56 P.2d 464. Satisfied that the correct result was there reached, our conclusion in the- instant case must be the same and, therefore, appellant’s contention under Point II must be denied.
Appellant’s contention under Point I is even more difficult of solution. Under the admitted factual situation here present— thirteen months of permanent station in New Mexico with physical presence during the first seven months, physical absence during the next six months, and then a physical return to New Mexico, the permanent station — does appellee come within the language of § 25-704, supra, as amended? Was he “continuously stationed in any military base or installation in the state of New Mexico for” “one (1) year next preceding the filing of his * * * complaint” ?
For the purpose of deciding this question, the value of an extensive weighing of extreme factual combinations is dubious. There would be on the one side continuous physical presence at Sandia Base for a full year, interrupted by a weekend’s fishing in Colorado, as against the possibility of a permanent assignment to Sandia Base, interrupted on the first day or prior to arrival by a temporary assignment requiring physical presence outside the state of New Mexico for the whole of the ensuing year.
Appellant defines “station” as a military-post where military duty is performed, and offers the test of whether or not for the period of' one year before filing his complaint, appellee was performing military duty at Sandia Base without substantial interruption. Appellant’s answer to this question would be, “no.”
The legislature had available for choice many words; it could have incorporated in the act the words, “physically present,” or it could have eliminated the word, “continuously.” For an interpretation of the words, “continuously stationed,” we must look to the intent of the legislature and the canons of statutory construction set forth in our many cases on that subject. Reese v. Dempsey, 1944, 48 N.M. 417, 152 P.2d 157; Town of Clayton v. Colorado & S. Ry. Co., 10 Cir., 1931, 51 F.2d 977, 82 A.L.R. 417; Fisherdick v. San Juan County Bd. of Ed., 1925, 30 N.M. 454, 236 P. 743; State v. Llewellyn, 1917, 23 N.M. 43, 167 P. 414; State ex rel. Lorenzino v. County Com’rs, 1915, 20 N.M. 67, 145 P. 1083, L.R.A.1915C, 898; Rapp v. Venable, 1910, 15 N.M. 509, 110 P. 834; Territory ex rel. Wade v. Ashenfelter, 1887, 4 N.M., Gild., 93, 12 P. 879; Leitensdorfer v. Webb, 1857, 1 N.M. 34; Id., 20 How. 176, 61 U.S. 176, 15 L.Ed. 891.
In the present instance the legislative intent is more than ordinarily clear. Allen v. Allen, 1948, 52 N.M. 174, 194 P.2d 270, held that a soldier who lived continuously in New Mexico during the required period and rented a home for himself and family did not acquire the actual residence,' in- good faith, required by the statute before amende ment; Chaney v. Chaney, 1949, 53 N.M. 66, 201 P.2d 782, held that a residence at Los Alamos on condemned land belonging to-the United States was insufficient to supply the required residence under the act before amendment.
It was to alleviate the harshness of these-decisions in their effect upon the domestic affairs of military personnel thát the-amendment was passed. And there are certain conclusions that one cannot escape.. At the present time, and it is almost certain for many years to come, a large number of our young men and women, by demand of conscience or by law, will be required to • enter the military service. The primary purpose of that service is the preservation for our citizens of all of the civil and other lights we deem so precious. Such service-comprehends for its members the temporary loss of many of those rights, one of the most cherished of which is freedom of movement from place to place and choice of' residence and domicile. Because by chance- and tradition, divorce, as a part- of- the. field of domestic relations, has become-closely tied to the concepts of residence and domicile, is not alone enough to justify- depriving- this group in military service of a civil right available to those not in service,. and one which could be available to many-of them without detriment or loss to their important duties. This thought was persuasive in our conclusion concerning appellant’s preceding point and certainly impels this Court toward any legally sound interpretation of the statutory language which may serve to implement the legislative intent.
While we have already disposed of the constitutional questions raised, we are conscious of certain consequences which would or might flow from a decision in favor of the constitutional contentions of either side. Although they do not bear directly upon an interpretation of the words, “continuously stationed,” we mention them at this point in our opinion because they do bear obliquely upon the power of this Court to effectively implement the intention of the legislature: (1) There have been a great many divorces granted in New Mexico to well-intentioned military personnel under this act; subsequent marriages have been contracted; children have been born of such marriages; to now render illegal those divorces and irregular all of the human relations predicated thereon can be considered only for the most compelling reasons. This we have determined not to do as is apparent from our disposition of the three constitutional questions already considered. (2) While this Court can determine the validity of a divorce proceedings within its own boundaries and enforce its recognition, it cannot determine that other states will give full faith and credit to its judgments in this field. In the event they do not, the consequences for military personnel divorced under our statute, in terms of orderly human relationships in the future, approach in seriousness the consequences of holding this-statute invalid. Therefore, having determined upon the constitutionality of the act on the points raised by the parties, we shall consider a final constitutional question: which we believe to be substantially raised by appellant, for the purpose of concluding, constitutional attacks upon this act and for the further purpose of reaching a determination of our last question on grounds calculated to minimize the chance of having our judgments denied full faith and credit by the courts of other states.
In Allen v. Allen, supra [52 N.M. 174, 194 P.2d 273], our Court said: “While ordinarily the domicile of a soldier is not changed or lost by his induction into military service, where he is under orders from his superiors and subject to transfer to different posts, as in the case in bar, yet, a new domicile may be acquired by a soldier as well as by any civilian if both the fact and the intent concur.” The concluding sentence of appellant’s brief relevant to the foregoing quotation is, sufficient to raise this further and final jurisdictional question ; that sentence is: “The reasoning of the Allen case, supra, is as sound in construing the statute as now amended, as it was before such amendment was passed.” The jurisdictional question raised is whether or not “domicile” is an essential base for the court’s jurisdiction of a divorce action; and assuming the answer to be in the affirmative, the constitutional question is whether the statutory presumption created by the amendment is an unreasonable interference by ■ the legislative branch of government with the judicial branch of government. As to the first jurisdictional question, both as a matter of present judgment and by reason of our earlier decisions, Allen v. Allen, ■supra, our answer must be in the affirmative, residence for the required period of time with domiciliary intent is a necessary jurisdictional prerequisite of divorce in New Mexico.
The legislature has said, however, that a member of the military “continuously stationed” at a base in New Mexico for one year, for the purposes of this act, shall be deemed a resident of New Mexico with the necessary domiciliary intent. Is such a presumption an unwarranted interference by the legislature with the judicial branch ■of government? We think not. In the case ■of Craig v. Craig, supra, upon which heavy reliance is placed by this Court in disposing of other constitutional questions, this particular question, as we read that case, was disposed of upon the basis that the legislature obviously dispensed with the requirement of domicile and the Court was willing to abide by the legislative intent. We are not satisfied to drop the matter at this point, because an assertion by us that domicile is not a prerequisite to divorce jurisdiction would greatly imperil the full faith and credit which we believe should be given by the courts of other states to divorces granted under this act.
A precisely parallel question arose in Alton v. Alton, 3 Cir., 1953, 207 F.2d 667, certiorari granted, 1954, 347 U.S. 911, 74 S.Ct. 478, under a 1953 amendment by the Virgin Islands of its divorce law. By per curiam decision of the United States Supreme Court, June 1, 1954, the entire proceeding was dismissed as moot. 347 U.S. 610, 74 S.Ct. 736. That law made six weeks presence of plaintiff prima facie evidence of domicile. On appeal from the trial court’s decision denying jurisdiction, the Third Circuit Court of Appeals, three judges dissenting, affirmed the lower court in holding the statutory presumption unconstitutional. Cornell L.Q., Vol. 39, No. 2, p. 293, comments in detail upon this decision, discussing briefly and effectively the development of “the law of migratory divorce,” and explores the application of the principles of full faith and credit and of due process to this problem. We find this article of great assistance in reaching a conclusion.
Parenthetically: The second phase of the Alton case is not before us; the statute provided further that if jurisdiction in personam was acquired over defendant, domicile was not necessary to jurisdiction. This, too, was held unconstitutional. In the instant case, as heretofore stated, the trial court had such personal jurisdiction; moreover, we are already committed to the principle that regardless of that fact, domiciliary residence is a requisite of jurisdiction. Absent the personal jurisdiction of defendant which we have here, and assuming momentarily domiciliary jurisdiction under the amendment, the question raised is one of “due process” not involved in the instant case, although important in the future as to whether or not our judgments would be given full faith and credit in a case of constructive service.
It is our conclusion that the statutory presumption is not unconstitutional. There is a rational connection between the fact proved (one year continuously stationed in New Mexico) and the fact presumed (domiciliary intent). To reach this conclusion requires a step beyond the reasoning of any adjudicated cases called to our attention. We find justification in taking that step upon the following theory: The issue of the existence of residence with domiciliary intent for divorce purposes has centered for decades upon the “integrity” of the intent of the parties concerned. A blunt statement of the question would be: Is the plaintiff lying in his or her assertion of domiciliary intent as it is coupled with residence for an arbitrary period of time? This basic question of integrity, as a matter of logic, has no place in an action by the average member of the military service-under the amendment, since the enactment of the amendment was necessitated by the recognition of the fact that the duties of the military and its absolute power to control the physical whereabouts of its members, placed such intent in abeyance for the duration of service.
The exigencies of the cases have already developed different concepts of domicile which exist in this field, and have gone so far as to recognize that two or perhaps-more domiciles can be co-existent at the same time. Under certain circumstances,, both husband and wife, living in different states, may have domicile in their particular states for the purposes of divorce; there is the further facet of “matrimonial domicile.”' Today we know there exists a way of living involving many of our citizens which might be termed “military domicile.” Prior to the amendment, “good faith” was a primary requisite for divorce and supplied the domiciliary intent to the actual residence. The legislature has said in effect, and properly so, that a member of the military is here under orders, his failure to obey is subject to punishment, his “good faith” cannot be questioned and will be presumed upon showing that he has been “continuously stationed” in the state for the year next preceding the filing of his complaint.
We shall not lengthen this opinion with a discussion of the many factors persuasive to this point of view: (1) The permanent station of military personnel for a year necessarily becomes his or her base of operations for current Hying. (2) The avowed aim of our government it to retain trained personnel in the service as a lifetime occupation, and continuous efforts are made in that regard to confer upon such personnel security and as many of the benefits of life in our land as are compatible with the duties of such service. There are many other factors of a similar kind which immediately spring to mind.
Therefore, we conclude that the presumption of domicile established by the amendment is not an unconstitutional interference with the judicial branch of government. We do not feel that the extension of the idea of domicile beyond the area of the integrity of individual intent to an area which might be called “military domicile” in which individual intent has no place, is an extension which will appreciably weaken or disturb the traditional concept of domicile and the large body of fixed law resting thereon.
Having progressed thus far, it remains only to determine whether this appellee can meet the literal test of being “continuously stationed” in New Mexico. In the light of the purpose of the amendment and the foregoing discussion, we feel that he does meet it. Had the lapsed time ■outside New Mexico in this case been composed of weekly training flights instead of an uninterrupted period, we would not hesitate in this conclusion. This litigant is a naval officer; should his substantial rights be dictated by the branch of service or character of duty ? The answer should be, “no,” if it can be given practical application. Again conscious of the intent of the legislature, it would seem that the language of the statute is broad enough to comprehend one who is permanently stationed in New Mexico for one year next preceding the filing of suit, although physically absent for substantial periods of time, or to comprehend one temporarily stationed in New Mexico for one year next preceding the filing of complaint, who, as appellant phrases it, physically performs military duty at that temporary base for one year without substantial interruption.
We specifically disavow the intention of deciding prior to submission the law applicable to different factual situations. The language of the preceding paragraph merely expresses the line of reasoning whereby it is determined in the instant case that appellee was “continuously stationed” in New Mexico within the meaning of the amended statute.
A final word on the problem of -full faith and credit: The residence of one year required in New Mexico is the measure of time most commonly in use throughout the different states. This is a guarantee that this state is not in the objectionable competitive market for transient divorce business. There is no comparison between the obvious prostitution of the idea of domicile arising from the “invitation to divorce” extended by Nevada and the Virgin Islands, where the only reason for physical presence is divorce, and the presence of military personnel, physical or otherwise, at a military installation in New Mexico for one year, from which they may not depart, absent orders, without severe disciplinary action. The continuous station of the military in New Mexico for one year, with: (1) no possible question of their good faith; (2) the knowledge that many have and many will make their homes here at the conclusion of their service; (3) the mutual aim of both military and civilian policy to make the military a welcome and useful part of the community in which they are stationed; — such station is an adequate basis for the statutory presumption of residence, with the requisite domiciliary intent, established by the amended act in giving our courts jurisdiction of this type of divorce. It is our belief that the integrity of such domicile is entitled to full faith and credit once it is adjudicated by our courts.
The question has been raised as to whether this presumption is conclusive or rebuttable. Upon proof of continuous station pursuant to the statute, the presumption of domicile is conclusive; at the same time, we believe that extrinsic evidence directed to the issue of continuous station could destroy the premise of the presumption; and, if it should be destroyed, of necessity the presumption fails.
Judgment is affirmed. It is so ordered.
SADLER, COMPTON and LUJAN, JJ., concur. McGHEE, C. J., concurring specially.