one year after notice to him in writing of the decree, or within three years after the decree, if no such notice should be given him, apply to the court and obtain a hearing, as if he had seasonably appeared and no decree had been made; and at the end of three years the decree, if not so set aside, should be deemed and adjudged confirmed against him, and the court might make such further order in the premises as should be requisite and just. Under those statutes, as repeatedly and uniformly construed by the higher courts of Colorado, when the sheriff returns the summons on the day of its date, instead of keeping it in his possession until the return-day for the purpose of making the usual exertions to serve it, a notice by publication only will not sustain a decree.

The supreme court of the territory, at February term, 1873, in Palmer v. Cowdrey, 2 Colo. 1, and Wise v. Brocker, Id. note, reversed decrees in ordinary proceedings in chancery for such a defect, and assigned its reasons as follows: "The law intends that service of the summons shall be made on the defendant if he can be found within the jurisdiction during the life of the writ. If the defendant is not in the county at the time the summons is placed in the hands of the officer, he may come into the county before the returnday, and if notice by publication has been given, it is nevertheless the duty of the officer to serve the summons if he can find the defendant in his bailiwick. To the performance of this duty it is necessary that the officer should retain the summons in his hands until the return-day; for after the return of non inventus of course the officer cannot obey the command of the writ. In the present case the sheriff returned the summons more than one month before the return-day, and thereafter he could not comply with the statute by making the usual exertion to serve it. Whether the defendant came into the county after the return and during the life of the writ, we do not know, nor can we be informed except by the return of the proper officer. By the return, as it stands in the record, it does not appear that service could not have been made during the life of the writ, and the court had no authority to proceed upon notice by publication without such evidence." 2 Colo. 6.

Since the admission of Colorado into the Union, the supreme court of the state, at December term, 1877, made a like decision for the same reasons, and said: "Without holding the writ until the return-day, and a proper return accordingly, the publication of notice will not avail to confer jurisdiction upon the court to render final decree upon the petition." Vance's Heirs v. Maroney, 4 Colo. 47, 49.

Upon the strength, and as the necessary result, of those decisions, the supreme court of the state has twice held that decrees of divorce, obtained under such circumstances, were wholly void, for want of jurisdiction in the court that granted them; that the provision of the statute, allowing a defendant, on whom constructive service only had been made, to apply within three years to set aside the decree, did not make the decree valid when the constructive service was so defective; and that such a decree of divorce was no bar to an action by the wife to recover, as the husband's widow, a share of his real estate. One of the cases in which it was so held, decided at December term, 1878, before the judgment of the circuit court in the case at bar, was an action by this plaintiff against this defendant and the administrator of James W. Clayton, in which the defendants set up the decree of divorce now in question. Clayton v. Clayton, 4 Colo. 410. The other is a very recent decision, not yet officially published. Israel v. Arthur, 7 Colo. —; S. C. 1 Pac. Rep. 442, 448.

The fact that the statutes of the territory, relating to chancery proceedings, having been repealed by the Code of Civil Procedure of the state of Colorado, were no longer in force at the time of the last two decisions, does not lessen the weight of those decisions of the highest court of Colorado as evidence of the law of Colorado upon the construction of its statutes affecting the status

of citizens of the state, and the title in, or right of possession of, land within its limits. That James W. Clayton was a citizen of Colorado is necessarily implied in the record, and especially in the finding of the court below that the territorial court had jurisdiction to entertain his application for divorce, and it is the very foundation of the argument in support of this writ of error. But the service in the proceedings for divorce was exactly the same as was held insufficient to support the jurisdiction of the court to make a decree in each of the cases in the Colorado reports above cited. The notice and return, appearing of record in the proceedings for divorce, control the general recital in the decree that due service had been made upon the defendant therein. Galpin v. Page, 18 Wall. 350; Settlemier v. Sullivan, 97 U. S. 444. The decree of divorce being void for the insufficiency of the service, and the status of Clayton and this plaintiff, therefore, that of husband and wife, according to the law of Colorado, as declared by its highest court, she was entitled, as his widow, to the share which the law of that state gives to a widow in the husband's land within the state.

We do not rest our judgment merely upon the ground that the land of which possession is demanded is in Colorado; for if the parties had been domiciled and divorced elsewhere, the question whether they were husband and wife at the time of his death might, even as affecting her right in his land in Colorado, have been governed by the law of their domicile, although the share which a widow should take in her husband's land would of course be determined by the law of the state in which the land was. See Meister v. Moore, 96 U. S. 76; Ross v. Ross, 129 Mass. 243, 247, 248, and cases cited. Nor do we give any weight to the finding of the court below that the wife, at the time of the proceedings for divorce, was a citizen and resident of the state of Illinois; for it is hard to see how, if she unjustifiably refused to live with her busband in Colorado, she could lawfully acquire in his life-time a separate domicile in another state; or how, if the territorial court had jurisdiction to render the decree of divorce, and did render it upon the ground of her unlawful absence from him, the finding of the court below could consist with the fact so adjudged in the decree of divorce. However that may be, the wife, since the husband's death, had the right to elect her own domicile, and at the time of bringing the present action was a citizen of Illinois, and as such entitled to sue in the circuit court of the United States. And the ground upon which we affirm the judgment of that court is that, by the law of Colorado, as declared by the supreme court of the state, the decree of divorce was void, for want of the notice to her required by the local statutes.

There could hardly be a better illustration of the fitness and justice of this conclusion than is afforded by the facts of this case. To reverse the judgment of the circuit court would be to leave the status of the plaintiff, as widow and heir of James W. Clayton, established by the state court as to one parcel of land, and denied by this court as to other lands within the same state. It was said in argument, indeed, that part of the land sought to be recovered was the same in both actions; but this does not appear upon the record before us.

Judgment affirmed.

(111 U. S. 43)

Ex parte COMMONWEALTH OF VIRGINIA; Petitioner.

(March 17, 1884.)

ACT OF 1836-DEPOSITS OF SURPLUS FUNDS WITH STATES-EXPIRATION OF THE OBLIGATION.

Congress in 1836 enacted that the surplus above $5,000,000 which should be in the treasury January 1, 1837, should be deposited with the states in four installments, subject to be withdrawn at the public need. Three installments were duly paid, but the payment of the fourth was postponed by act of congress until January 1, 1839. At that date there was not a sufficient surplus in the treasury with which to pay the installment, and no part thereof was deposited with the states. Held, that the duty of the secretary in 1839 was to pay the installment if there was a sufficient surplus, but that as he was unable then to make the payment, the obligation expired, and he could not be compelled at any subsequent time to do so unless authorized thereto by further legislation.

Petition for Mandamus.

W. Willoughby and F. E. Alexander, for petitioner.

HARLAN, J. This is an application for a writ of mandamus directed to the secretary of the treasury, commanding him to deliver to the proper officer of the commonwealth of Virginia the sum of $732,809.33-that being, it is claimed, the amount of the fourth installment of the public money of the United States required by the act of congress, approved June 23, 1836, to be deposited with that state upon the terms and conditions therein prescribed. The thirteenth and fourteenth sections of that act -the only parts thereof material to the present inquiry-are as follows:

"Sec. 13. And be it further enacted, that the money which shall be in the treasury of the United States on the first day of January, eighteen hundred and thirty-seven, reserving the sum of five millions of dollars, shall be deposited with such of the several states, in proportion to their respective representation in the senate and house of representatives of the United States as shall, by law, authorize their treasurers, or other competent authorities, to receive the same on the terms hereinafter specified; and the secretary of the treasury shall deliver the same to such treasurers or other competent authorities, on receiving certificates of deposit therefor, signed by such competent authorities, in such form as may be prescribed by the secretary aforesaid; which certificates shall express the usual and legal obligations, and pledge the faith of the state for the safe keeping and repayment thereof, and shall pledge the faith of the states receiving the same to pay the said moneys, and every part thereof, from time to time, whenever the same shall be required by the secretary of the treasury for the purpose of defraying & wants of the public treasury, beyond the amount of the five millions afon said: provided, that if any state declines to receive its proportion of the surplus aforesaid, on the terms before named, the same shall be deposited with the other states agreeing to accept the same on deposit, in the proportion aforesaid: and provided further, that when said money, or any part thereof, shall be wanted by the said secretary to meet appropriations by law, the same shall be called for, in ratable proportions, within one year, as nearly as conveniently may be, from the different states with which the same is deposited, and shall not be called for in sums exceeding ten thousand dollars from any one state, in any one month, without previous notice of thirty days for every additional sum of twenty thousand dollars which may at any time be required, "Sec. 14. And be it further enacted, that the said deposits shall be made with said states in the following proportions, and at the following times, towit: One-quarter part on the first day of January, eighteen hundred and thirty-seven, or as soon thereafter as may be; one-quarter part on the first

day of April, one-quarter part on the first day of July, and one-quarter part on the first day of October,-all in the same year." 5 St. 55.

On the twentieth of December, 1836, Virginia, by legislative enactment, signified her acceptance of the terms and conditions of this act, of which due notice was given to the secretary of the treasury and to congress. On the first day of January, 1837, as appears from a letter of the secretary of the treasury to the speaker of the house of representatives, under date of January 3, 1837, the balance in the treasury-in excess of $5,000,000-subject to be deposited with the states was $37,468,859.97, of which Virginia would have been entitled, under the act of June 23, 1836, to the sum of $2,931,237.32, payable in four installments. Ex. Doc. 2d Sess. 24th Cong. vol. 2, Doc. No. 62. The first three installments were deposited with the states at the respective dates fixed in the act of congress, but no part of the fourth has ever been delivered. The reason why the last installment was not deposited on the first of October, 1837, is shown by the message of President Van Bure to congress, at its extra session in September of that year. He said: "There are now in the treasury $9,367,214, directed by the act of the twenty-third of June, 1836, to be deposited with the states in October next. This sum, if so deposited, will be subject, under the law, to be recalled, if needed, to defray existing appropriations; and, as it is now evident that the whole, or the principal part of it, will be wanted for that purpose, it appears most proper that the deposits should be withheld." Cong. Globe and Appendix, vol. 5, p. 8, 1st Sess. 25th Cong. The secretary of the treasury, in his report to congress, at the same session, after alluding to the then disturbed condition of the finances, and to the fourth installment payable in October, 1837, suggested that, in view of the condition of the finances, "and the importance of meeting with efficiency and good faith all the obligations of the government to the public creditors, it would be most judicious to apply the whole installment, as fast as it is wanted and can be collected, to the prompt discharge of these obligations; and that the last deposit with the states, not being a debt, but a mere temporary disposal of a surplus, should be postponed until congress, in some different state of the finances, when such an available surplus may exist, shall see a manifest propriety and ability in completing the deposits, and shall give directions to that effect." Ex. Doc. and Reports of Committees, 1st Sess. 25th Cong. Doc. No. 2.

By an act of congress, approved October 2, 1837, it was provided "that the transfer of the fourth installment of deposit, directed to be made with the states under the thirteenth section of the act of June 23, 1836, be and the same is hereby postponed until the first day of January, 1839: provided that the first three installments under the said act shall remain on deposit with the states until otherwise directed by congress. 5 St. 201. But, on the first day of January, 1839, there was not, as the petition admits, in the treasury a sufficient amount to meet that installment after paying existing appropriations for the current expenses of the government. And by the third section of an act approved August 13, 1841, the entire act of June 23, 1836, exceptng its thirteenth and fourteenth sections, was repealed. Id. 440. The petition concedes that at no time since January 1, 1841, until within the past few years, has there been in the treasury a surplus of money large enough, after defraying existing charges imposed by congress, to make the fourth installment of deposit. It is, however, alleged that there is now in the treasury of the United States a sufficient sum of money, after defraying all the existing charges imposed by congress upon the treasury, and not needed or wanted by the secretary to meet appropriations by law, or to meet the interest accruing upon the public debt, or to meet all the expenditures of the government, estimated or ascertained by him for the present fiscal year, to make the deposits of the fourth installment with all of the states with which said deposits were directed to be made. The present secretary of the treasury hav

ing refused, upon the demand of Virginia, by its duly authorized agent, to use any part of the public moneys for the purpose of meeting that installment, the present application has been made for a mandamus compelling him to deposit with that state an amount equal to one-fourth of the said sum of $2,931,237.32. No case is made for a mandamus. If it was the duty of the secretary of the treasury, in execution of the act of 1836, to make the fourth installment of deposit on the day fixed in that act, whatever may have been, on that day, the wants of the public treasury, his failure to do so was legalized by the act of October 2, 1837, postponing that deposit until January 1, 1839. Of the latter act the states could not complain, because that of January 23, 1836, created no debt or legal obligation upon the part of the government, but only made the states the depositaries, temporarily, of a portion of the public revenue not needed, as was then supposed, for the purposes of the United States. What was the duty of the secretary, on January 1, 1839, to which time, by the act of 1837, the deposit of the fourth installment was postponed? It is conceded that there was not in the treasury, on January 1, 1839, a sufficient amount, available and applicable to public purposes, after paying necessary appropriations for the expenses of the government, to meet that installment. He could not, therefore, do what he might then lawfully have done, had the treasury, on January 1, 1839, been in the condition contemplated by congress when the act of 1837 was passed. The last direction given by the legislative department, upon the subject of this installment, is found in the latter act. No authority has been conferred upon the secretary, by subsequent legislation, to use any surplus revenue accruing after January 1, 1839, for the purpose of meeting the fourth installment of deposit. Congress, by the original act, as we have seen, charged the payment of the several installments upon the revenue, above $5,000,000, which might be in the treasury on January 1, 1837. That charge was transferred to and imposed upon the surplus revenue in the treasury on January 1, 1839. But no such charge has been imposed upon the revenue accruing subsequently to the latter date.

Congress has permitted the thirteenth and fourteenth sections of the act of 1836, as modified by the act of October 2, 1837, to stand for the purpose, as we infer, of showing not only the terms upon which the states received the three first installments of deposit, but that those installments are held by the states, subject to be recalled in the discretion of the United States. But the legislative department of the government seems, purposely, to have refrained from making the fourth installment of deposit a charge directly upon any revenues accruing since January 1, 1839. Since the last direction given by congress upon the subject the financial necessities and obligations of the government have been largely increased, and this circumstance, perhaps, suggests the reason why the legislative department has not fixed any day for the final execution of the act of 1836. Be the reason what it may, we are of opinion that the secretary of the treasury has no authority, under existing legislation and without further direction from congress, to use the surplus revenue in the treasury, from whatever source derived, or whenever, since January 1, 1839, it may have accrued, for the purpose of making the fourth installment of deposit required by the act of 1836.

The petition for a mandamus must consequently be denied. It is so ordered.