practiced which prevented the petitioner from [ed" in the finding just quoted was used in contesting the libel, and that thereby the the sense of subsisted and not as synonymous result was produced now sought to be set with legal residence as contended by the reaside. To draw the inference, which seems spondents. almost irresistible from all the circumstanc- [15] 12. The ruling of law to the effect in es, that the petitioner was fraudulently pre- substance that the court had only an apparvented by what occurred between the hus-ent and not a real jurisdiction of the libel band and wife while alone, is no violation of was right. There is ground for the argument the statute in the opinion of a majority of that the superior court, even though a court the court. of general jurisdiction, did not have jurisdic[11] 8. It has been found as a fact that tion, using that word in its accurate sense, Henry J. Sampson had no legal residence in of the libel for divorce. This argument may Springfield, was there during a part of the be grounded upon the words of R. L. c. 152, summer and fall of 1912 "for the sole pur- § 8, which are the same in Rev. St. c. 76, § pose of obtaining a divorce from his wife, 15; Gen. St. c. 107, § 19; Pub. Sts. c. 146, § well knowing that he had no legal ground 9, requiring the "libellee to be summoned to for a divorce," and that "his domicile and appear and answer at a court having jurislegal residence during all of the time while diction of the cause," a single court of genthe divorce proceeding was pending was at eral jurisdiction having jurisdiction of the Westport where he now lives." Confessedly general subject of divorce all the while (Banthe domicile and residence of the petitioner ister v. Banister, 150 Mass. 280, 22 N. E. 900), during the entire crucial period was at West- as well as upon the words of R. L. c. 152, § port. As to these matters the libel falsely 6, to the effect that "libels for divorce shall alleged the residence of Henry J. Sampson to be filed, heard and determined in the superibe in Springfield in the county of Hampden, or court for the county in which one of the and that of Ida H. Sampson to be in Provi- | parties lives." Moore v. Moore, 2 Mass. 117; dence in the state of Rhode Island. The Richardson v. Richardson, 2 Mass. 153. But judge further found that the court had only apparent jurisdiction of the libel in Hampden county "founded on the respondent, Henry J. Sampson's false allegation of domicile." So far as these are findings of fact they are abundantly warranted by the evidence. His findings of fact are not open to review. The only question is whether as matter of law there was any evidence to support them, and whether these findings were pertinent to the decision of the case. Bailey v. Marden, 193 Mass. 277, 79 N. E. 257; Wade v. Smith, 213 Mass. 34, 99 N. E. 477.

[12] 9. The domicile of the husband might have been found to have been in Westport. That was his domicile of origin. It will not be treated as lightly lost in the absence of some clear purpose coupled with the necessary physical facts sufficient to constitute a change. His constant visits to his wife who remained in the home jointly established and occupied by them for most of the married life, coupled with his otherwise itinerant mode of life, was ample evidence to justify the finding.

it is not necessary to decide that point now, nor to determine that in no instance can the superior court of a county, in which a venue of the libel has been laid wrongly, have jurisdiction to decide the issues raised.

[16] In the case at bar the gross fraud practiced by Henry J. Sampson upon the court in view of all the facts was such that the superior court for Hampden county acquired no jurisdiction of the cause or of the present petitioner. That fraud consisted in a willful misrepresentation that he had a domicile in Hampden county, that his wife was domiciled in Providence in the state of Rhode Island, in an abuse of her confidence in misleading her by base methods into the mistaken belief that, after he had caused a publication of the notice of the pendency of the divorce proceedings to be called to her attention, he had abandoned the libel and hence there was no occasion for her to take action, and the contemporaneous prosecution to a final decree in his favor by perjured evidence of a libel for divorce bearing on its face an averment of one of the statutory causes which as he well knew was false and groundless, no service having been made upon the libellee such as the law requires as the prerequisite for jurisdiction over her person (in the absence of voluntary appearance) in all cases where she is a resident within the commonwealth. The perjured evidence alone would not be enough to set aside a decree entered by a court which had jurisdiction of the cause and which had acquired jurisdiction of [14] 11. There is no inconsistency in the the parties. But this record on the facts finding that Henry J. Sampson "lived in found discloses a case where by craft and Springfield during a part of the summer and deceit extrinsic and foreign to the issues raisfall of 1912," and the further finding that his ed on the face of the libel the court was indomicile was in Westport. Manifestly “liv- | duced to assume a jurisdiction which it could

[13] 10. Plainly the word "lives" in R. L. c. 152, § 6, which provides that "libels for divorce shall be filed, heard and determined in the superior court held for the county in which one of the parties lives" connotes a legal residence or domicile. Hanson v. Hanson, 111 Mass. 158; Winans v. Winans, 205 Mass. 388, 91 N. E. 394, 28 L. R. A. (N. S.) 992; Labonte v. Labonte, 210 Mass. 319, 96 N. E. 675.

not have exercised if the truth had been this petition was filed December 27, 1913. known, and where the adversary party was prevented by a flagitious betrayal of conjugal confidence from making appearance in court or in any way contesting the procedure, even though it was called to her attention by him by an irregular service. This presents a case of legal fraud quite outside and be yond the intentional introduction of false testimony. It discloses substantial grounds for relief not only to prevent a wrong to the present petitioner but to frustrate an attempt to make the court an instrument of oppression in aid of a surreptitious sham founded on wrongful artifice. In such case relief will be afforded. Edson v. Edson, 108 Mass. 590, 11 Am. Rep. 393; Tucker v. Fisk, 154 Mass. 574, 578, 28 N. E. 1051; Wiley v. Wiley, 161 Mass. 446, 37 N. E. 196; Keyes v. Brackett, 187 Mass. 306, 72 N. E. 986, 3 Ann. Cas. 81; Zeitlin v. Zeitlin, 202 Mass. 205, 207, 88 N. E. 762, 23 L. R. A. (N. S.) 569, 132 Am. St. Rep. 490.

[17] 13. The husband's conduct in maintaining marital relations with the petitioner on his monthly visits over Sunday during the pendency of the libel, the last occasion being almost six months after the decree of divorce had been made absolute, was a fact rightly given weight in determining whether he had represented to his wife that the libel had been abandoned. These visits apparently were received with the confidence appropriate to the wifely relation. When they are considered in connection with the baffling by the wife of two earlier attempts on the husband's part to obtain a divorce in the state of Washington, they might have been regarded as showing that she had confidence in the rectitude of his intentions. There is nothing to indicate that she ever had renounced her opposition to his obtaining a divorce. If she was believed by the judge from her appearance and testimony to be a virtuous woman, it is almost inconceivable that she would have continued to receive him as husband if she had any suspicion that he was still attempting to sever the marriage tie. The inference from his conduct was warranted that the wife took no steps to contest the divorce because he so abused her confidence and played upon her credulity in his sincerity as to make her certain that the divorce proceeding had been abandoned. His conduct alone, apart from any verbal statement, might have been treated as a representation to that effect. [18] 14. The respondents contend that the petitioner is shown on the evidence to have failed to exercise diligence and good faith in instituting this proceeding. The judge found that she first learned of the divorce about the third week in October, 1913, from Henry J. Sampson, after he had cohabited with her two nights, and that she at once consulted a lawyer who did not act for her and within a day or two after November 5, 1913, she consulted her present attorney and

In the meantime, on November 5, 1913, a marriage ceremony had been performed between Henry J. Sampson and Alice G. Wordell. The marital relation has existed between them since and a child has been born. The petitioner testified that she knew that application had been made for the license for this marriage about a week before the cere mony took place. It should be added in this connection that the judge found that the purpose of Henry J. Sampson in attempting to obtain a divorce from the petitioner in the state of Washington and later in Springfield was that he might marry Alice G. Wordell, who lived near the petitioner in the same town; that the two respondents had maintained friendly relations during 1910, 1911 and 1912, had corresponded with each other, and that he frequently saw her when he returned to Westport. In May, 1911, the petitioner had a talk with the respondent, Alice, and charged her with breaking up the petitioner's home, and the respondent said she was sorry and promised not to have anything more to do with Henry J. Sampson. These circumstances fail to show laches or lack of good faith. It is apparent from the record that the judge in substance gave credence to the testimony of the petitioner and utterly distrusted that of the respondent. He found in effect that she had been the victim of a high degree of perfidy on the part of her husband as to matters most precious to a wife. She appears to have acted at once upon hearing that the marriage license had been applied for, and at all events before the ceremony was performed between the respondents. The time for opposing the granting of a divorce had gone by so far as concerned the court records, for in that regard she was told truly that the decree had been made absolute. The facts were extraordinary. The delay in bringing this action cannot be pronounced as indicative either of laches or want of good faith.

[19] 15. It was found in substance that Alice G. Wordell honestly supposed that she had a legal right to marry Henry J. Sampson, at the time when the marriage ceremony was performed, although it does not appear that she made an investigation to ascertain what the grounds of the libel were. It is urged that because she has entered into that marriage relation in good faith and thereby has become the mother of a child, no relief ought to be granted which will have the effect of annulling that marriage. Reference is made to the analogies of title acquired by an innocent purchaser for value and by the buyer of goods sold in market overt. These suggestions are without weight under the circumstances here disclosed. The marriage between the petitioner and her husband was valid. It established a status recognized as of the highest importance to the moral and social welfare of the state. It cannot be dis

Corporations, Cent. Dig. § 596; Dec. Dig.
[Ed. Note.-For other cases, see Municipal
218(10).]

218(10)-OF

FICERS - - WRONGFUL DISCHARGE-MEASURE
OF DAMAGES.

solved during their joint life except for the | 1908, c. 210, but he might sue for breach of his limited causes and in the narrow manner contract of employment. allowed by the statute. A legal wife at least is as much entitled to have her status preserved as is an unfortunate and possibly duped woman, who mistakenly thought her-3. MUNICIPAL CORPORATIONS self to be the second wife, to have her status justified and established. Turner v. Wil- Plaintiff, who on June 13, 1914, was wrongliams, 202 Mass. 500, 89 N. E. 110, 24 L. R. A. fully discharged from his civil service position (N. S.) 1199, 132 Am. St. Rep. 511. The sup-city, and who had used due diligence to secure in the tax collecting department of defendant posed second wife hardly can ask to be pro- other employment up to the following September tected by such a trick upon the courts as that without success, and who up to October 1, by which Henry J. Sampson obtained the 1914, was ready, able, and willing to perform the duties of his employment, was entitled to reappearance of a legal divorce. The position cover his salary to that date; but, where ill of the second wife is unfortunate. But she health made it impossible for him to thereafter is in no worse condition than any woman who perform such duties, he could not recover salary marries a man already married. The guilt beyond that date. of the husband is the sole cause of her misfortune, to which no act of the petitioner contributed. The court cannot suffer itself to be used fraudulently by a man, reckless of his initial marriage obligations, as an instrumentality for wronging his first wife, merely to protect his second wife. Holmes v. Holmes, 63 Me. 420. Moreover, some measure of protection is afforded by St. 1902, c. 310, whereby her innocence and the legitimacy of her child may be established.

All the exceptions which have been argued have been disposed of by what has been said. The others are treated as waived. But an examination of them discloses no reversible

error.

Decree affirmed.

(223 Mass. 478)

TUCKER v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. April 6, 1916.)

1. MUNICIPAL CORPORATIONS 218(8)-CrvIL SERVICE LAWS-REMOVAL OF EMPLOYÉ RIGHT TO HEARING.

Under St. 1913, c. 672, making plaintiff's employment by the defendant city as cashier in its collecting department subject to the civil service laws, and St. 1904, c. 314, § 2, as amended by St. 1905, c. 243, entitling him before removal to notice of the proposed action and to the reasons required to be given by section 1, and on request to a public hearing, with the right to answer the charges preferred, either personally or by counsel, the hearing contemplates a proceeding in the nature of a judicial investigation, and is a condition precedent to removal, so that the action of the tax collector in handing plaintiff a letter stating that he was discharged, and that in compliance with the statute a hearing would be granted him if requested, was a violation of the civil service law and invalid.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 594, 595, 598; Dec. Dig. 218(8).]

2. MUNICIPAL CORPORATIONS

MOVAL OF EMPLOYE-REMEDY.

218(10)-RE

In such case, where it did not appear that the plaintiff's name had been illegally removed from the pay roll, or that the civil service commission had refused to certify such pay roll, the plaintiff's remedy, if any, was not under St.

Corporations, Cent. Dig. § 596; Dec. Dig.
[Ed. Note.-For other cases, see Municipal
218(10).]

Report from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Action by Charles E. Tucker against the City of Boston. Finding for defendant, and case reported. Judgment for plaintiff for $758.33, and interest according to the terms of the report.

Bates, Nay, Abbott & Dane and Robert E. Buffum, all of Boston, for plaintiff. George A. Flynn, of Boston, for defendant.

"City Hall, June 13, 1914. "Charles E. Tucker, 33 Garden Street, West Roxbury-Dear Sir: You are hereby notified that you are discharged from the services of the city as an employé of this department at the close of business on this date, in the interests of economy and to promote the efficiency of the department.

"In compliance with the provisions of chapter 314 of the Acts of 1904, as amended by chapter 243 of the Acts of 1905, a hearing will be granted you, if requested, by the city collector at his office, city hall, Boston, on or before 10 a. m. July 14, 1914. "Respectfully,

"John J. Curley, City Collector."

[1] It was admitted that the plaintiff's employment was under the civil service laws of the commonwealth by virtue of St. 1913, c. 672. Under St. 1904, c. 314, as amended by St. 1905, c. 243, the plaintiff was entitled before removal to notice under section 2, "of the proposed action and shall be furnished with the reasons required to be given by section one, and shall, if he so requests in writing, be given a public hearing, and be allowed to answer the charges preferred against him either personally or by counsel."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Courts, Cent. Dig. $$ 492, 493; Dec. Dig. 208.] 3. STATES 30-LEGISLATURE-ELECTION OF

MEMBERS-CONSTITUTIONAL PROVISIONS.

St. 1913, c. 835, § 369, as amended by St. 1914. c. 783, § 10, requiring the judges of the superior court on petition of voters to investigate an election, and, on a finding of any corrupt practice in the election of members of the House, etc., to enter a decree declaring the com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

mission of a corrupt practice and set forth the having reasonable cause to believe that there facts relative thereto and to certify the decree has been committed by a successful candiand declaration to the secretary of the common- date (for whom they had a right to vote) in wealth for transmission to the presiding officer

statute.

[Ed. Note,-For other cases, see States, Cent. Dig. 39; Dec. Dig. 30.]

of the legislative body to which the defendant connection with his election or in his interest was elected, cannot be supported by Const. pt. and behalf, a corrupt practice as defined in 2, c. 1, § 3, art. 11, providing that the Senate the act, to investigate the election. If after a and House of Representatives may try and determine all cases where the rights and privileg- hearing it is found that such corrupt practice es of members are concerned, which, by the has been committed, then the court is given Constitution they have authority to try and de- power to enter a decree [section 10 (g)] "determine by committees of their members in such way as to see fit, as it is still the "Senate and claring void the election of the defendant to the House of Representatives" which must hold the office in question, and ousting and excluda trial and make the decision, and as such power ing him from such office and declaring the ofcannot be limited by the opinion of both branch- fice vacant: Provided, however, that if an es of some preceding Legislature expressed in a election petition is brought to investigate the election of a member of the Senate or House of Representatives of the commonwealth, or of the United States Congress, and the court or a majority of them shall find that violations of this act have been committed with Such statute is in contravention of the Bill of Rights, art. 30, marking an entire separa- reference to such election, of such a nature tion of the legislative and judicial departments that a decree would otherwise be entered deof the government, as its operation would impose claring void the election or ousting or excludupon the judicial department the investigation ing the candidate from such office and deof a matter not resulting in a judgment, nor finally vesting the rights of parties, nor ulti-claring the office vacant, the court shall, submately determining a state of facts, and would ject to the limitations and conditions hereinsubject a proceeding arising in a court to modi- before prescribed, enter a decree declaring fication, suspension, annulment, or affirmation by a part of the legislative department before it would possess any definite force.

4. CONSTITUTIONAL LAW 70(1)-SEPARATION OF DEPARTMENTS-CORRUPT PRACTICE Аст.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129, 132; Dec. Dig. 70(1).]

5. CONSTITUTIONAL LAW 70(1)-LEGISLATURE ELECTION OF MEMBERS - CONSTITUTIONAL PROVISIONS-COMMISSIONERS.

Such statute cannot be upheld upon the ground supporting the appointment of commissioners to perform duties lying close to the line between the legislative and judicial faculties but partaking chiefly of the latter, in view of the reservation of the power of legislative revision. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129, 132; Dec. Dig. 70(1).]

Report from Superior Court, Suffolk County; Jabez Fox, Charles F. Jenney, and William D. McLaughlin, Judges.

Petition by Joseph J. Dinan and others against Simon Swig. Report by three judges of the superior court on the question whether the statute involved was constitutional so far as it imposed duties upon the court with reference to the election of a member of the Legislature. Question answered in the negative.

Jos. P. Walsh, of Boston, for petitioners. Herbert Parker and Asa P. French, both of Boston, and Louis Swig, of Taunton, for respondent.

RUGG, C. J. This is a petition brought under St. 1913, c. 835, § 369, as amended by St. 1914, c. 783, § 10, which relates to corrupt practices in elections, against the defendant, elected a member of the General Court of the commonwealth for 1916. Summarily stated, the statute so far as here material requires three judges of the, superior court, upon petition of five or more voters

that with respect to the election of the said candidate a corrupt practice was committed and setting forth the facts relative to such finding, and shall forthwith certify the decree and declaration to the secretary of the commonwealth, to be by him transmitted to the presiding officer of the legislative body to which the defendant was elected."

[1] Proceedings have been had in accordance with the terms of this statute and a finding with appropriate details has been made that the defendant, elected a member of the House of Representatives of the commonwealth, committed corrupt practices in connection with his election. The three judges then reported to this court amongst other matters the question whether the statute is constitutional so far as it imposes duties upon the court with reference to the election of a member of the Legislature.

The pertinent provision of the Constitution is in part the second, chapter 1, section 3, article 10:

"The House of Representatives shall be the tions of its own members, as pointed out in the judge of the returns, elections, and qualificaConstitution.

The power to pass upon the election and qualification of its own members thus is vested exclusively in each branch of the General Court. No other department of the government has any authority under the Constitution to adjudicate upon that subject. The grant of power is comprehensive, full and complete. It is necessarily exclusive, for the Constitution contains no words permitting either branch of the Legislature to delegate or share that power. It must remain where the sovereign authority of the state has placed it. General phrases elsewhere in the Constitution, which in the ab

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes