Foreign Commerce on S. 3920, 76th Congress, 3rd Session (1940), page 111; Senate Report No. 1752 on S. 3920, 76th Congress, 3rd Session (1940), pages 6-7).

The 1946 amendments renumbered section 4(a) (v) as 4(a−1) (ii); added references to sickness and maternity benefits which became payable under those amendments; and further broadened the enumeration of payments which could result in disqualification by introduction of the term "other social insurance payments." The analysis of these amendments furnished by Mr. Latimer to the House Committee considering the proposals for the amendments stressed that if the benefits under the Railroad Unemployment Insurance Act exceeded the other benefits, the excess may be paid (Hearings Before the House Committee on Interstate and Foreign Commerce on H.R. 1362, 79th Congress, 1st Session (1945), page 38). This section has not been amended in any material respect since 1946.

The legislative history thus makes it clear that the provisos were intended to confer a benefit on the employee, not to penalize him. A basic purpose of the Railroad Unemployment Insurance Act, quick payment of unemployment insurance benefits, was being frustrated in some cases by the absolute disqualification in section 4(a) (vii) of the original Act. The provisos were introduced into the Act in 1940 to moderate the disqualification. Both in the drafting of the provisos and in their explanation to Congress, emphasis was placed on safeguarding the employee's entitlement to the excess of Railroad Unemployment Insurance Act benefits over the other benefits. The employee was to be aided, and thereby encouraged, to establish his right to the other social insurance payment, but he was not to be made worse off for doing so. In S's case the literal application of section 4(a-1) (ii) has gone far beyond the intention of Congress, since it has penalized S for prosecuting his workmen's compensation claim while the railroad unemployment insurance account profited from his effort. This result is so unfair as to be unreasonable, if not absurd. More than likely it was not foreseen when the provisos were added in 1940. At that time the only other payments which caused disqualification were annuity or pension payments under the Railroad Retirement Acts, old-age benefits under the Social Security Act or similar payments under the Federal law, and unemployment benefits under State or Federal law. Only rarely is an attorney needed to establish rights to such payments. Workmen's compensation, which did not come within the scope of the disqualification until 1946, by its nature frequently involves adversary proceedings. (U. S. Dept. of Labor, Attorneys' Fees in Workmen's Compensation, Bulletin No. 220 (Sept. 1960, pages 1–2).)

Legislation should be given a common-sense meaning insofar as its language permits (United States v. Universal C.I.T. Credit Corporation, 344 U.S. 218, 221 (1952); United States v. Kirby, 74 U.S. 482, 486-7 (1868). The axiom that the words of a statute must be given their plain meaning does not have application where there is something in the literal interpretation so obviously absurd, or mischievous, or unjust, or repugnant to the spirit or intention of the statute, as to justify those who construe it in making the exception (Van Camp & Sons v. American Can Company, 278 U.S. 245, 253–4 (1929) ; Ozawa v. United States, 260 U.S. 178, 194, 196 (1922); Holy Trinity Church v. United States, 143 U.S. 457 (1892)). Frequently, a

departure from the literal meaning has been found justified by a result which was merely unreasonable (not absurd) and plainly at variance with the policy of the legislation as a whole (United States v. American Trucking Associations, Inc., 310 U.S. 534, 543 (1940); Ozawa v. United States, supra, 194). However clear the meaning of the statutory language may seem on superficial examination, there is no rule of law which precludes resort to the legislative history to question the literal meaning and ascertain the intended meaning (Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928); United States v. American Trucking Associations, Inc., supra; United States v. Dickerson, 310 U.S. 554, 561–2 (1940)).

Taking the legislative history as a guide, the Board would be justified in departing from the literal interpretation to achieve a common-sense result in S's case. However, the purpose and spirit of section 4(a-1) (ii) call for no more in this case than forbearance to recover the amount, $215.38, by which he would be worse off for having prosecuted his workmen's compensation claim. (Allowing the deduction of $230.42 requested by S's attorney would leave the Board with a smaller recovery, and S with a net profit from his workmen's compensation; this result is contrary to the purpose of section 4(a-1) (ii).)

SECTION 5(1) (1) OF THE RAILROAD RETIREMENT ACT-VALIDITY OF NEVADA DIVORCE

20 CFR 232

L-61-141

A divorce decree granted in Nevada is not binding if it is found as a factual matter that the annuitant was not domiciled in Nevada when he sought and obtained a divorce there, but went there solely to obtain a divorce.

The issue is whether the divorce obtained in Nevada by the annuitant, S, dissolved his marriage to the claimant, G, and rendered her unable to qualify as a spouse to receive an annuity as such.

Section 5(1)(1) of the Railroad Retirement Act provides:

In determining for purposes of this section and subsection (f) of section 2 whether an applicant is the wife *** of an employee as claimed, the rules set forth in section 216 (h) (1) of the Social Security Act, as in effect prior to 1957, shall be applied.

Section 216(h) (1) of the Social Security Act as in effect prior to 1957 provides:

In determining whether an applicant is the wife * * * of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, * * *. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife * * shall be deemed such.

S was domiciled in Arizona at the time G filed an application for a spouse's annuity; therefore, the laws of that State must be applied in determining whether the divorce he secured from her in Nevada is binding to deprive her of the status of his wife.

While no Arizona case directly in point has been found, dicta in the case of In Re Brandt's Estate, 190 P. 2d 497 (Ariz., 1948) is to the effect that Arizona courts would apply the doctrine of the second Williams case (Williams v. State of North Carolina; 326 U.S. 226 (1944)) in determining whether a divorce obtained in another State is valid. In the Brandt case the Arizona Supreme Court stated:

Certainly the decedent if living could not be heard to question either the validity of the Texas divorce procured by him or the validity of his second marriage. Nor is there any doubt but that in an appropriate proceeding, an Arizona court would have jurisdiction to question the validity of the Texas divorce decree. Such was the holding of the Supreme Court of the United States in the second case of Williams v. State of North Carolina, reported in 325 U.S. 226.

This case together with decisions in other western States, notably the California case of Crouch v. Crouch, 169 P. 2d 897 (Cal., 1946) and the Colorado case of Koscove v. Koscove, 156 P. 2d 696 (Colo., 1945) (decided before the second Williams case but expressing the same view as did the Supreme Court of the United States in the second Williams case), lead to the conclusion that the Arizona courts would apply the Williams case doctrine in determining the binding effect of a divorce granted by another State. Of course, the Williams case is, in any event, binding on the Arizona courts, but the doctrine in that case does not require, but only permits a State to contradict the finding of the court of another State that such court has jurisdiction to grant a divorce. But no case has been found after the second Williams decision where in circumstances like those in the Williams case a State court would not permit a challenge of the jurisdiction of the court of another State.

The doctrine of the second Williams case is, simply stated, that a State is not required under the full faith and credit clause of the Constitution to find that an ex parte divorce decree granted by a sister State dissolves a marriage where the State in which the divorce is questioned can find that neither the party who procured the divorce nor the other party was a bona fide domiciliary of the State granting the divorce at the time the divorce was obtained. Under such circumstances the State has no jurisdiction to grant the divorce. The court in the Crouch case stated:

Neither the second Williams case, supra, nor the Esenwein case, supra [325 U.S. 279 (1945)], necessarily controls the determination of the present controversy. Although these cases hold that one State need not give full faith and credit to a divorce decree rendered by a State which has neither jurisdiction of the parties nor subject matter, they do not decide that one State may not, if it wishes, recognize as valid a decree of another State. However, the decisions are significant for they point out, not only that a State has the "right collaterally to impeach a decree of divorce made in another State, by proof that the court had no jurisdiction, even when the record purports to show jurisdiction" and that "jurisdiction * is founded on domicil," but also that if the findings of domicil by one State were conclusive in the State from which the successful litigant came, "the policy of each State in matters of most intimate concern could be subverted by the policy of every other State." Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, pages 1095, 1096, 89 L. Ed. 1577, 157 A.L.R. 1366. The case of Esenwein v. Commonwealth, 325 U.S. 279 (1945), which involved the same issue, was governed, as the court stated, by the second Williams case which was decided on the same day. The court pointed

out that the facts relating to domicile were not essentially different from the second Williams case except that Esenwein while in Nevada lived in a hotel instead of an auto court and did not return to Pennsylvania, his domiciliary State, before he went to Nevada but went to Ohio. This issue differs to the extent that the evidence regarding domicile varies and in that the question must be decided as if it were before Arizona courts rather than Pennsylvania courts. In the Esenwein case relief from a support order of the County Court of Allegheny County, Pennsylvania, was sought and in this case G was granted such an order by the same court. The court in the Esenwein case did not describe or discuss the evidence in detail, it merely concluded that it was not to retry the facts and that there was sufficient evidence in the record to uphold the decision of the Pennsylvania Supreme Court sustaining the lower court finding that Esenwein did not intend to establish a domicile in Nevada. The court pointed out that the burden was on the litigant attacking the validity of the Nevada divorce but held that the Pennsylvania courts did not err in finding that the evidence disproved Esenwein's intention to establish a domicile in Nevada.

The question here then, after concluding that the Arizona courts would apply the doctrine of the Williams case, is whether the evidence is such as to require a finding that S did not have a bona fide domicile in Nevada when he entered suit for and obtained a divorce. As the court in the Koscove case pointed out a mere recital that the court had jurisdiction is not conclusive on the question of domicile and may be contradicted. In Williamson v. Osenton, 232 U.S. 624 (1914) the court stated:

The essential fact that raises a change of abode to a change of domicil is the absence of any intention to live elsewhere, Story on Conflict of Laws, § 43— or, as Mr. Dicey puts it in his admirable book, "the absence of any present intention of not residing permanently or indefinitely in" the new abode. Conflict of Laws, 2d ed. 111.

In the Koscove case, supra, the following quotation was included in the court's decision:

The intention required for the acquisition of domicile of choice is an intention to make a home in fact, *** Restatement, Conflict of Laws, § 19.

In referring to the second Williams case (325 U.S. 226) the court in the case of LePell v. United States, 177 F. 2d 1013 (C.A. 10, 1949) stated:

It was held that a finding in the Court rendering a divorce decree, that it had jurisdiction of the parties, was not conclusive and binding upon the court of another State when such a judgment comes before it for consideration. The court indicates that such a judgment is entitled to great weight even when the jurisdiction of the rendering court is in question, and that an onerous burden rests upon one who challenges the judgment on such grounds. (Emphasis supplied.)

A divorce decree that shows compliance with the law is presumed in other States to be valid (Crouch v. Crouch, supra).

In line with the concept that a finding of the court granting a divorce decree is not to be treated lightly and in view of the fact that evidence to nullify such a divorce on the ground that the court lacked jurisdiction must be extremely strong and convincing to overcome the presumption in favor

of jurisdiction it was held in an earlier opinion (L-60-299), pertaining to this issue, that there was then not sufficient evidence of record to find that the Nevada divorce decree obtained by S would be treated as invalid by another State.

If, however, it can be found on the basis of the evidence since presented by G and despite any additional evidence that may be submitted by S that he was not domiciled in Nevada when he sought and obtained a divorce decree there, but went there to obtain a divorce, then the divorce may be regarded as not binding. However, before a final decision on this issue is reached, S should be given an opportunity to submit any evidence in his possession to establish that he was a domiciliary of Nevada at the time he obtained a divorce.

SECTION 3(e) OF THE RAILROAD RETIREMENT ACT-SOCIAL SECURITY MINIMUM

20 CFR 225.6

L-61-143

In the application of the social security minimum provision of section 3(e) of the Railroad Retirement Act, the minimum is calculated by taking 110 per centum of the benefit amounts that would be payable under the Social Security Act if the employee's railroad service had been "employment" under that Act, without rounding such benefits to the next higher multiple of 10 cents as provided for benefits under that Act.

The issue, under consideration, is the method of calculating the social security minimum of section 3 (e) of the Railroad Retirement Act, i.e. whether benefit amounts under the Social Security Act should be rounded to the next higher multiple of 10 cents before applying the 110 per cent factor. Section 3 (e) of the Railroad Retirement Act provides:

In the case of an individual having a current connection with the railroad industry, the minimum annuity payable shall, before any reduction pursuant to section 2(a)3, be whichever of the following is the least: (1) $5.00 multiplied by the number of his years of service; or (2) $83.50; or (3) 110 per centum of his monthly compensation: Provided, however, That if for any entire month in which an annuity accrues and is payable under this Act the annuity to which an employee is entitled under this Act (or would have been entitled except for a reduction pursuant to section 2(a)3 or a joint and survivor election), together with his or her spouse's annuity, if any, or the total of survivor annuities under this Act deriving from the same employee, is less than 110 per centum of the amount, or 110 per centum of the additional amount which would have been payable to all persons for such month under the Social Security Act (deeming completely and partially insured individuals to be fully and currently insured respectively, individuals entitled to insurance annuities under subsections (a) and (d) of section 5 to have attained age sixty-five, women entitled to spouses' annuities pursuant to elections made under subsection (h) of section 2 to be entitled to wife's insurance benefits determined under section 202 (q) of the Social Security Act, and individuals entitled to insurance annuities under subsection (c) of section 5 on the basis of disability to be less than eighteen years of age and disregarding any possible deductions under subsections (f) and (g) (2) of section 203 of the Social Security Act) if such employee's service as an employee after December 31, 1936, were included in the term “employment" as defined in that Act and quarters of coverage were determined in accordance with section 5(1)(4) of this Act, such annuity or annuities, shall be increased proportionately to a total of 110 per centum of such amount or 110 per centum of such additional

amount.