The general welfare of society is involved in the security and
registry of titles to real estate, and those subjects are within
the police power of the state.
A state, in the exercise of its inherent power to legislate in
regard to title to the soil within its confines, may, without
violating the federal Constitution, require parties owning and in
possession of land to establish title by judicial proceedings
before properly constituted tribunals, and this power extends to
nonresident owners of land who may be brought before such tribunals
by publication.
A state possesses, and, after such a disaster to a community as
befell San Francisco, California, by fire and earthquake in 1906,
in which nearly all the public records of registered titles to real
estate were destroyed, may exercise, the power to remedy the
confusion and uncertainty arising from the catastrophe.
Undisclosed and unknown claimants are as dangerous to the
stability of titles to real estate as other classes, and they are
not deprived of their property without due process of law if
compelled to establish their titles by judicial proceeding before a
properly constituted tribunal on adequate published notice, if
given an opportunity to be heard and properly protected in case of
fraud.
A state statute, passed after such a catastrophe as visited San
Francisco in 1906 for the purpose of reestablishing titles to real
estate, which permits an action for that purpose to be brought by
parties who are themselves, or by those holding under them, in
actual and peaceable possession of the property described in the
summons, and which requires the plaintiff to make affidavit before
the summons is issued that he does not know and has never been
informed of any adverse claimants not named in the summons, and
also requires summons to be published at least once a week for two
months, posted on each parcel of the property, and to be recorded
and properly
Page 219 U. S. 48
indexed in the recorder's office and served upon all claimants
whose names and whereabouts could be ascertained, gives an adequate
opportunity to all persons interested in the property to establish
their rights, and does not deprive unknown claimants of their
property without due process of law.
The Fourteenth Amendment does not operate to deprive the states
of their lawful power; the due process clause of that Amendment
only restrains such exertions of power as are so unreasonable and
unjust as to impair or destroy fundamental rights, and therefore
not really within lawful power of the state.
This Court, in determining the constitutionality of a state
statute, is bound by the construction given to it by the highest
court of the state and will treat it as exacting whatever the state
court has declared that it exacts either expressly or by
implication.
In determining the constitutionality of a state statute under
the due process clause, the criterion is not whether any injury to
an individual is possible, but whether the requirements as to
notice and opportunity to protect property rights affected are just
and reasonable.
It being within the power of the state to determine how title to
real estate shall be proved, it is also within the legislative
competency of that state to establish the method of procedure.
Due process of law requires that there shall be jurisdiction of,
and notice to, the parties, and opportunity to be heard, and,
subject to these conditions, the state has power to regulate
procedure.
Twining v. New Jersey, 211 U. S.
78.
The California statute, c. 59, of June 16, 1906, to establish
titles in case of loss of public records, passed after the
earthquake and fire of April, 1906, as construed by the highest
state court, is within the legislative power of the state, provides
adequate notice and protection to unknown claimants, affords
opportunity to be heard, and is not unconstitutional under the
Fourteenth Amendment as depriving unknown claimants of their
property without due process of law.
As a result of the conditions caused in San Francisco by the
great calamity of earthquake and fire which befell that city in
April, 1906, an extraordinary session of the Legislature of
California was convoked. One reason stated for the call was the
necessity of providing for restoring the record title to land in
San Francisco. An act to accomplish
Page 219 U. S. 49
that purpose became a law upon its approval on June 16, 1906. It
is copied on the margin.*
The circuit court of appeals has certified the issues involved
in a pending cause, the determination of which rests upon the
validity of the statute just referred to. The pertinent facts
arising on the record of the cause are stated in the certificate,
and are hereafter set forth. The purpose contemplated is to obtain
instructions as to
Page 219 U. S. 50
whether the act in question "is violative of the Fourteenth
Amendment of the Constitution of the United States," and whether by
virtue of a decree rendered by the Superior
Page 219 U. S. 51
Court of the City and County of San Francisco, referred to in
the recital of facts, the American Land Company "has been deprived
of its property without due process of law."
Page 219 U. S. 52
The following are the facts recited in the certificate:
"The appellant, as complainant in the court below, brought its
bill in equity against the appellee to remove
Page 219 U. S. 53
a cloud from its title to real property, and to quiet its title
thereto. The bill alleges on April 10, 1908, and at all the times
prior thereto, referred to in the bill, George H. Lent
Page 219 U. S. 54
and Mary G. Coggeshall were severally the owners in fee simple
of two adjacent lots of land in San Francisco, which lots are
described in the bill. The lots and others similarly situated are
known as city slip and water lots. Under the provisions of an Act
of the Legislature of the State of California, approved March 5,
1851 (Stats. of 1851, p. 764), the state leased this property to
the City of San Francisco for the term of ninety-nine years. The
appellee is alleged to be the owner of the unexpired portion of
this lease as successor in interest of the city's right, and to be
entitled to the possession thereof until March 26, 1950. The bill
alleges that the appellee has no right whatever other than this
right of possession and occupation; that notwithstanding the
premises, the appellee claims to be the owner in fee simple of said
lands under a judgment and decree of the Superior Court of the
State of California in and for the City and County of San
Francisco, made and entered December 19, 1906, in a proceeding
entitled 'Louis Zeiss, Plaintiff vs. All Persons Claiming Any
Interest in or Lien upon the Real Property Herein
Page 219 U. S. 55
Described, or Any Part Thereof, Defendants;' that said
proceeding was brought under an act of the Legislature of the State
of California entitled, 'An Act to Provide for the Establishment
and Quieting of Title to Real Property in case of the Loss or
Destruction of Public Records,' approved June 16, 1906; that said
claim of the appellee under said decree is without right, and said
decree is void; that, in the complaint in that proceeding, the
appellee, after properly setting forth the destruction of the
records, alleged that he was the owner in fee simple, free of
encumbrance, of the lands which are described in the bill in this
case, and that he prayed for a decree of the superior court
adjudging his title to be as set forth by him; that at the time of
filing his complaint he filed his affidavit setting forth the
character of the estate, the source of his title, his possession,
and stating that he had made no conveyance of the land, that there
were no liens on it, and that he did not know and that he had never
been informed of any other person who claimed or may claim any
interest or lien upon the property, or any part thereof, adversely
to him. The affidavit contained no averment that inquiry of any
kind had been made to ascertain whether such adverse claim did
exist. It is shown in the bill that in said proceeding under said
act of the legislature, summons was published in the Law Recorder
for the space of two months, and was also posted on the land, and
after the period of publication of the summons the appellee herein
obtained a decree of the court, as prayed for by him. The bill
further alleges that, although the appellant's grantors were at all
times citizens and residents of California, not seeking to evade,
but ready to accept, service of summons, and easily reached for
that purpose, no service was made upon them, nor did they in any
way receive notice of the pendency of the action, nor did they gain
any knowledge of the existence of the decree until more than a year
after its entry. A demurrer
Page 219 U. S. 56
was interposed to the bill in the court below for want of
equity, which demurrer was sustained by the court and the bill was
dismissed. "
Page 219 U. S. 58
MR. CHIEF JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
Although not objecting to an answer to the questions,
nevertheless the American Land Company, which was the appellant
below, suggests at bar a want of power to reply to the questions
for a two-fold reason: first, because
Page 219 U. S. 59
the certificate on its face indicates that the court below was
not in a state of mind which required the instruction of this
Court, but was merely desirous of provoking a direct decision by
this Court, to avoid the delay and the public inconvenience which
otherwise might result. Second, because the certificate is so broad
as simply to refer the whole case to this Court for decision,
instead of presenting definite propositions of law for solution.
While it may be that these suggestions find possible support,
considering the record in a detached way, we think when the
certificate is considered as a whole, and the subject with which it
deals is properly weighed, the suggestions are without merit. We
therefore pass to a consideration of the questions propounded.
It is apparent that the substantial considerations involved in
the questions certified are embraced in the following: (a) the
authority of the state to deal with the subject with which the
statute is concerned; (b) upon the hypothesis of the existence of
power, the sufficiency of the safeguards provided in the statute;
(c) upon the like hypothesis the adequacy of the proceedings had in
the particular cause with which the certificate deals. We shall
consider these subjects separately.
As to power of the state.
The conditions which led to the legislation in question were
stated by the Supreme Court of California in
Title &
Document Restoration Co. v. Kerrigan, 150 Cal. 289. The court
said:
"It is also matter of common knowledge that in the City and
County of San Francisco at least, if not in other counties, the
disaster of April last worked so great a destruction of the public
records as to make it impossible to trace any title with
completeness or certainty. That some provision was necessary to
enable the holders and owners of real estate in this city to secure
to themselves such evidence of title as would enable them not only
to
Page 219 U. S. 60
defend their possession, but to enjoy and exercise the equally
important right of disposition, is clear."
As it is indisputable that the general welfare of society is
involved in the security of the titles to real estate and in the
public registry of such titles, it is obvious that the power to
legislate as to such subjects inheres in the very nature of
government. This being true, it follows that government possesses
the power to remedy the confusion and uncertainty as to registered
titles arising from a disaster like that described by the court
below. We might well pursue no further the subject of the power of
the state to enact the law in question, and thus leave its
authority to depend upon the demonstration necessarily resulting
from the obvious considerations just stated. As, however, the
question of power is intimately interwoven with the sufficiency of
the procedure adopted, and as a clear comprehension of the scope of
the power will serve to elucidate the question of procedure, we
shall briefly refer to some of the leading cases by which the
elementary doctrine of power over the subject of titles to real
estate, and the application of that doctrine to a case like the one
in hand, is settled beyond question. That a state has the power,
generally speaking, to provide for and protect individual rights to
the soil within its confines, and declare what shall form a cloud
on the title to such soil, was recognized in
Clark v.
Smith, 13 Pet.195. So, also, it is conclusively
established that, when the public interests demand, the law may
require even a party in actual possession of land, and claiming a
perfect title, to appear before a properly constituted tribunal,
and establish that title by a judicial proceeding. Such was the
method employed by the United States in settling, as between itself
and claimants under Mexican grants, the title to property in
California.
Barker v. Harvey, 181 U.
S. 481;
Mitchell v. Furman, 180 U.
S. 402;
Botiller v. Dominguez, 130 U.
S. 238;
More v. Steinbach, 127 U. S.
70.
Page 219 U. S. 61
The question of what authority a state possesses over titles to
real estate, and what jurisdiction over the subject it may confer
upon its courts, received much consideration in
Arndt v.
Griggs, 134 U. S. 316. It
was there held that, even as to ordinary controversies respecting
title to land, arising between rival claimants, the state possessed
the power to provide for the adjudication of titles to real estate
not only as against residents, but as against nonresidents, who
might be brought into court by publication. In the course of the
opinion, the Court said (p.
134 U. S.
320):
"It [the state] has control over property within its limits, and
the condition of ownership of real estate therein, whether the
owner be stranger or citizen, is subjection to its rules concerning
the holding, the transfer, liability to obligations, private or
public, and the modes of establishing titles thereto. It cannot
bring the person of a nonresident within its limits -- its process
goes not out beyond its borders -- but it may determine the extent
of his title to real estate within its limits, and for the purpose
of such determination may provide any reasonable methods of
imparting notice. The wellbeing of every community requires that
the title to real estate therein shall be secured, and that there
be convenient and certain methods of determining any unsettled
questions respecting it. The duty of accomplishing this is local in
its nature; it is not a matter of national concern or vested in the
general government; it remains with the state, and as this duty is
one of the state, the manner of discharging it must be determined
by the state, and no proceeding which it provides can be declared
invalid, unless in conflict with some special inhibitions of the
Constitution, or against natural justice."
Manifestly, under circumstances like those here presented, the
principle applies with equal force in the case of unknown
claimants. Undisclosed and unknown claimants
Page 219 U. S. 62
are, to say the least, as dangerous to the stability of titles
as other classes. This principle received recognition and was
applied in
Hamilton v. Brown, 161 U.
S. 256, where it was held to be competent for a state to
make provision for promptly ascertaining, by appropriate judicial
proceedings, who has succeeded to property upon the death of a
person leaving such property within the state. It was said (p.
161 U. S.
275):
"If such proceedings are had, after actual notice by service of
summons to all known claimants, and constructive notice by
publication to all possible claimants who are unknown, the final
determination of the right of succession, either among private
persons, as in the ordinary administration of estates, or between
all persons and the state, as by inquest of office or similar
process to determine whether the estate has escheated to the
public, is due process of law, and a statute providing for such
proceedings and determination does not impair the obligation of any
contract contained in the grant under which the former owner held,
whether that grant was from the state or from a private
person."
The application of the doctrine of governmental power, as just
stated, to a condition like the one here in question was aptly
pointed out by the Supreme Court of Illinois in
Bertrand v.
Taylor, 87 Ill. 235, where, in considering the Illinois Burnt
Record Act, the court said:
"It was demanded as a matter of safety in a great emergency. It
was not calculated to take any reasonable being by surprise. It was
known throughout the civilized world that a large part of the City
of Chicago had been destroyed by fire, and that the records of the
courts and the records of deeds were all destroyed. This naturally
commanded the attention of all reasonable persons everywhere, and
called upon them to attend and see what means would be adopted to
mitigate the evils and dangers incident to the destruction. This
legislation was not done
Page 219 U. S. 63
in a corner, but before the observation of the civilized world.
We cannot doubt the power of the general assembly to pass the
act."
The Supreme Court of California, in the
Kerrigan case,
supra, addressing itself to the same subject, pertinently
observed:
"Applying the principles which have led the courts in cases like
Arndt v. Griggs and
Perkins v. Wakeham, 86 Cal.
580, to sustain judgments quieting titles against nonresidents upon
substituted service, why should not the legislature have power to
give similar effect to such judgments against unknown claimants
where the notice is reasonably full and complete? The validity of
such judgments against known residents is based upon the grounds
that the state has power to provide for the determination of titles
to real estate within its borders, and that, as against nonresident
defendants or others, who cannot be served in the state, a
substituted service is permissible, as being the only service
possible. These grounds apply with equal force to unknown
claimants. The power of the state as to titles should not be
limited to settling them as against persons named. In order to
exercise this power to its fullest extent, it is necessary that it
should be made to operate on all interests, known and unknown. As
was said by Holmes, C.J., in
Tyler v. Judges of the Court of
Registration, 175 Mass. 71, in speaking of a statute which, in
the particular under discussion, was similar to ours:"
"If it does not satisfy the Constitution, a judicial proceeding
to clear titles against all the world hardly is possible; for the
very meaning of such a proceeding is to get rid of unknown as well
as known claimants -- indeed, certainty against the unknown may be
said to be its chief end -- and unknown claimants cannot be dealt
with by personal service upon the claimant."
The power exerted by the act being, then, clearly within
Page 219 U. S. 64
the legislative authority, we are brought to consider whether
the lawful power was manifested in such a manner as to cause the
act to be repugnant to the Fourteenth Amendment. And this brings us
to the second proposition heretofore stated,
viz.:
The adequacy of the safeguards which the statute
provides.
As no complaint is made concerning the provisions of the statute
relating to the designation of and notice to known claimants, we
put that subject out of view and address ourselves to the
provisions relating to unknown claimants or claims. The action
which the statute authorizes may be brought by
"any person who claims an estate of inheritance or for life in,
and who is by himself or his tenant, or other person holding under
him, in the actual and peaceable possession of any real
property"
situated in a county where "the public records in the office of
a county recorder have been lost or destroyed, in whole or in any
material part, by flood, fire, or earthquake." In the caption of
the complaint, the statute requires that the defendants shall be
described as "all persons claiming any interest in or lien upon the
real property herein described, or any part thereof." The summons
is required to contain a description of the property affected by
the suit, and to be directed to "all persons claiming an interest
in or lien upon the real property herein described, or any part
thereof." The summons is to be published at least once a week for
two months, and the defendants are commanded to appear and answer
within three months after the first publication of the summons. A
copy of the summons is required to be posted in a conspicuous place
on each separate parcel of the property described in the complaint
within fifteen days after the first publication of the summons. At
the time of filing the complaint, a notice of the pendency of the
action, giving, among other things, a particular description of the
property affected thereby, must be recorded
Page 219 U. S. 65
in the office of the recorder of the county in which the
property is situated, and it is made the duty of the recorder to
enter,
"upon a map or plat of the parcels of land, to be kept by him
for that purpose, on that part of the map or plat representing the
parcel or parcels so described, a reference to the date of the
filing of such notice, and, when recorded, to the book and page of
the record thereof."
In considering the statute, we are bound by the construction
affixed to it by the supreme court of the state, and therefore
treat as embraced within its terms that which the highest court of
the state has declared the statute exacts, either expressly or by
necessary implication. In the
Kerrigan case,
supra, it was held that the result of the provisions of
the statute was "to require the complainant to designate and to
serve as known claimants all whom, with reasonable diligence, he
could ascertain to be claimants" -- a construction which in effect
declared that the statute prohibited the omission of a known claim
or claimant, upon the conception that the rights of such claim or
claimant would be foreclosed by the general designation and notice
prescribed for unknown claimants. And in
Hoffman v. Superior
Court, 151 Cal. 386, where the doctrine of the
Kerrigan case was reiterated and applied, the court, after
holding that the statute requires the plaintiff in his affidavit to
allege in terms "that he does not know and has never been informed"
of any adverse claimants whom he has not specifically named,
pointed out that failure of the plaintiff to make inquiry or to
avail himself of knowledge which would be imputed to him because of
facts sufficient to put him on inquiry as to the existence of
adverse claims would be available
"in any subsequent attack upon the decree, upon the ground that
there was extraneous fraud of the plaintiff in making a false
affidavit to obtain jurisdiction."
It is to be borne in mind that it has been settled (
Griffith
v. Connecticut, 218 U. S. 563, and
cases cited) that
Page 219 U. S. 66
the Fourteenth Amendment does not operate to deprive the states
of their lawful power, and of the right, in the exercise of such
power, to resort to reasonable methods inherently belonging to the
power exerted. On the contrary, the provisions of the due process
clause only restrain those arbitrary and unreasonable exertions of
power which are not really within lawful state power, since they
are so unreasonable and unjust as to impair or destroy fundamental
rights.
It is to be observed that the statute not only requires a
disclosure by the plaintiff of all known claimants, but, moreover,
at the very outset, contains words of limitation that no one not in
the actual and peaceable possession of property can maintain the
action which it authorizes. No person can therefore be deprived of
his property under the statute unless he had not only gone out of
possession of such property and allowed another to acquire
possession, or, if he had a claim to such property or an interest
therein, had so entirely failed to disclose that fact as to enable
a possessor to truthfully make the affidavit which the statute
exacts of a want of all knowledge of the existence of other
claimants than as disclosed in his affidavit. Besides, it is to be
considered that the statute, as construed by the California court,
imposed upon the one in possession seeking the establishment of an
alleged title the duty to make diligent inquiry to ascertain the
names of all claimants. Instead, therefore, of the statute's
amounting to the exertion of a purely unreasonable and arbitrary
power, its provisions leave no room for that contention. On the
contrary, we think the statute manifests the careful purpose of the
legislature to provide every reasonable safeguard for the
protection of the rights of unknown claimants, and to give such
notice as, under the circumstances, would be reasonably likely to
bring the fact of the pendency and the purpose of the proceeding to
the attention of those interested. To argue that the provisions
Page 219 U. S. 67
of the statute are repugnant to the due process clause because a
case may be conceived where rights in and to property would be
adversely affected without notice being actually conveyed by the
proceedings is in effect to deny the power of the state to deal
with the subject. The criterion is not the possibility of
conceivable injury, but the just and reasonable character of the
requirements, having reference to the subject with which the
statute deals. The doctrine on this subject was clearly expressed
by the Court of Appeals of New York in
In re Empire City
Bank, 18 N.Y. 199, where, speaking of the right of a state to
prescribe in a suitable case for constructive service, it was
said:
"Various prudential regulations are made with respect to these
remedies, but it may possibly happen, notwithstanding all these
precautions, that a citizen who owes nothing, and has done none of
the acts mentioned in the statute may be deprived of his estate
without any actual knowledge of the process by which it has been
taken from him. If we hold, as we must in order to sustain this
legislation, that the Constitution does not positively require
personal notice in order to constitute a legal proceeding due
process of law, it then belongs to the legislature to determine in
the particular instance whether the case calls for this kind of
exceptional legislation, and what manner of constructive notice
shall be sufficient to reasonably apprise the party proceeded
against of the legal steps which are taken against him."
And in accordance with this view, the Supreme Court of
California, in the
Kerrigan case, pointed out that the
statute furnished all the safeguards for which, in reason, it could
have been expected to provide consistently with the condition dealt
with. The court said:
"Where, as here, the summons describing the nature of the
action, the property involved, the name of the plaintiff, and the
relief sought, is posted upon the property,
Page 219 U. S. 68
and is published in a newspaper for two months, and a
lis
pendens containing the same particulars is recorded in the
recorder's office and entered upon the recorder's map of the
property, we cannot doubt that, so far as concerns the possible
claimants who are not known to the plaintiff, the notice prescribed
by the act is as complete and full as, from the nature of the case,
could reasonably be expected."
The case of
Ballard v. Hunter, 204 U.
S. 241, is instructive on this feature of the case. In
that case, a judgment of the circuit court of Arkansas was affirmed
which sustained the validity of a sale of lands for levee taxes.
The Arkansas statute authorized the proceedings which had resulted
in the sale upon constructive publication against nonresidents and
unknown owners. Lands of Josephine Ballard were sold under the
statutory proceeding, she not having knowledge of the existence of
the suit or of the fact that the taxes had been assessed against
her property. In the course of the opinion, the court, speaking
through MR. JUSTICE McKENNA, said (p.
204 U. S.
261):
"It is said, however, that Josephine Ballard was not made a
defendant in the suit, though the records of the county showed that
she was an owner thereof. But the statute provided against such an
omission. It provided that the proceedings and judgment should be
in the nature of proceedings
in rem, and that it should be
immaterial that the ownership of the lands might be incorrectly
alleged in the proceedings. We see no want of due process in that
requirement, or what was done under it. It is manifest that any
criticism of either is answered by the cases we have cited. The
proceedings were appropriate to the nature of the case."
"It should be kept in mind that the laws of a state come under
the prohibition of the Fourteenth Amendment only when they infringe
fundamental rights. A law must be framed and judged of in
consideration of the practical
Page 219 U. S. 69
affairs of man. The law cannot give personal notice of its
provisions or proceedings to everyone. It charges everyone with
knowledge of its provisions; of its proceedings it must at times
adopt some form of indirect notice, and indirect notice is usually
efficient notice when the proceedings affect real estate. Of what
concerns or may concern their real estate men usually keep
informed, and on that probability the law may frame its proceedings
-- indeed, must frame them -- and assume the care of property to be
universal if it would give efficiency to many of its exercises.
This was pointed out in
Huling v. Kaw Valley Railway &
Improvement Company, 130 U. S. 559, where it was
declared to be the"
"duty of the owner of real estate who is a nonresident to take
measures that in some way he shall be represented when his property
is called into requisition, and if he fails to get notice by the
ordinary publications which have been usually required in such
cases, it is his misfortune, and he must abide the
consequences."
"It makes no difference therefore that plaintiffs in error did
not have personal notice of the suit to collect the taxes on their
lands, or that taxes had been levied, or knowledge of the law under
which the taxes had been levied."
While we are of opinion that the views just stated demonstrate
the want of merit in the contention that the statute, because of
the insufficiency of its requirements, was repugnant to the
Fourteenth Amendment, a consideration of a provision of the general
law of California, which, by the construction of the Supreme Court
of California, is incorporated into the statute under
consideration, would lead to the same result. Thus, in the
Hoffman case, 151 Cal. 386, 393, the court said:
"In this connection it is proper to say that, in determining
whether or not due process of law is afforded, other statutes
applicable to the proceeding may be considered. The provisions of §
473 of the Code of Civil Procedure
Page 219 U. S. 70
apply in such cases. Any person interested in the property, and
having no actual notice of the decree, may come in at any time
within a year after its rendition, and by showing that he has not
been personally served with process, and stating facts constituting
a good defense to the proceeding -- that is, facts sufficient to
show that he has a valid adverse interest in the property -- he may
have the decree vacated as to him, and be allowed to answer to the
merits."
The right conferred by § 473 of the code, it is to be observed,
is an absolute right, although the section declares that the court
may impose "such terms as may be just."
Holiness Church v.
Metropolitan Church Association, 12 Cal. App. 445;
Gray v.
Lawlor, 151 Cal. 352.
Under this construction, it might well be held, if it were
necessary to do so, as establishing a rule of limitation which it
was in the power of the state to prescribe, in view of the
circumstances to which the limitation was made applicable.
See
Tyler v. Judges, 175 Mass. 71, and
State v. Westfall,
85 Minn. 437.
See also Illinois cases concerning the power
to fix a short period of limitation to meet a disaster like the one
to which the statute in question relates, collected in
Gormley
v. Clark, 134 U. S. 346,
134 U. S.
347.
These views dispose of all the contentions concerning the
repugnancy of the statute to the Fourteenth Amendment which we
think it necessary to separately consider. In saying this, we are
not unmindful of a multitude of subordinate propositions pressed in
the voluminous brief of counsel, and which were all in effect urged
upon the Supreme Court of California in the
Kerrigan and
Hoffman cases, and were in those cases adversely disposed
of, and which we also find to be without merit. Some of them we
briefly refer to. We do not think it is important to determine the
precise nature of the action authorized by
Page 219 U. S. 71
the statute, since the method of procedure which was prescribed
was within the legislative competency. So also we do not deem it
important to discuss what constitutes a judicial proceeding, since
the statutory proceeding provided by the act was within the
authority of the state to enact, and that it was judicial in
character has been expressly determined by the court of last resort
of the state. Indeed, not only these, but all the contentions
proceed upon a misconception as to the legislative authority of the
state and the effect thereon of the due process clause of the
Constitution of the United States. The error which all the
propositions involve was pointed out in
Twining v. New
Jersey, 211 U. S. 78,
where, speaking by Mr. Justice Moody, the Court said:
"Due process requires that the court which assumes to determine
the rights of parties shall have jurisdiction [citing cases], and
that there shall be notice and opportunity for hearing given the
parties [citing cases]. Subject to these two fundamental
conditions, which seem to be universally prescribed in all systems
of law established by civilized countries, this Court has, up to
this time, sustained all state laws, statutory or judicially
declared, regulating procedure, evidence, and methods of trials,
and held them to be consistent with due process of law."
3.
The adequacy of the proceedings pursued in the case
referred to in the certificate.
As there is no claim that fraud, actual or constructive, was
employed by Zeiss in obtaining the judgment complained of, and the
proceedings conformed to the California statute, the considerations
previously stated entirely dispose of this question.
It follows that both of the questions certified must be answered
in the negative.
And it is so ordered.
*
"
Chapter 59."
"An Act to Provide for the Establishment and Quieting of Title
to Real Property in case of the Loss or Destruction of Public
Records."
"
[Approved June 16, 1906.]"
"The people of the State of California, represented in Senate
and Assembly, do enact as follows:"
"SEC. 1. Whenever the public records in the office of a county
recorder have been, or shall hereafter be, lost or destroyed, in
whole or in any material part, by flood, fire, or earthquake, any
person who claims an estate of inheritance or for life in, and who
is by himself or his tenant or other person holding under him, in
the actual and peaceable possession of any real property in such
county, may bring and maintain an action
in rem against
all the world, in the superior court for the county in which such
real property is situate, to establish his title to such property,
and to determine all adverse claims thereto. Any number of separate
parcels of land claimed by the plaintiff may be included in the
same action."
"SEC. 2. The action shall be commenced by the filing of a
verified complaint, in which the party so commencing the same shall
be named as plaintiff, and the defendants shall be described as
'all persons claiming any interest in, or lien upon, the real
property herein described, or any part thereof,' and shall contain
a statement of the facts enumerated in section one of this act, a
particular description of such real property, and a specification
of the estate, title, or interest of the plaintiff therein."
"SEC. 3. Upon the filing of the complaint, a summons must be
issued under the seal of the court, which shall contain the name of
the court and county in which the action is brought, the name of
the plaintiff, and a particular description of the real property
involved, and shall be directed to 'all persons claiming any
interest in, or lien upon the real property herein described, or
any part thereof,' as defendants, and shall be substantially in the
following form:"
"
I
n the Superior Court of the California, in and for the County"
"
(or City and County) of _____."
"
Action No. ___."
"
________ ________, plaintiff,"
"
vs."
"
All Persons Claiming Any Interest in, or Lien upon, the
Real Property"
"
Herein Described, or Any Part Thereof,
Defendants."
" The People of the State of California, to all persons claiming
any interest in, or lien upon, the real property herein described,
or any part thereof, defendants, Greetings:"
" You are hereby required to appear and answer the complaint of
________ _____, plaintiff, filed with the clerk of the above
entitled court and county, within three months after the first
publication of this summons, and to set forth what interest or
lien, if any, you have in or upon that certain real property or any
part thereof, situated in the county (or city and county) of _____,
State of California, particularly described as follows: (Here
insert description.)"
" And you are hereby notified that, unless you so appear and
answer, the plaintiff will apply to the court for the relief
demanded in the complaint, to-wit: (Here insert a statement of the
relief so demanded.)"
" Witness my hand and the seal of said court, this ___ day of
_____, A.D. _____."
"[SEAL.] ________ ________,
Clerk"
"Sec. 4. The summons shall be published in a newspaper of
general circulation, published in the county in which the action is
brought. The newspaper in which such publication is to be made
shall be designated by an order of the court or a judge thereof, to
be signed and filed with the clerk. No other order for the
publication of the summons shall be necessary, nor shall any
affidavit therefor be required, nor need any copy of the complaint
be served, except as hereinafter required. The summons shall be
published at least once a week for a period of two months, and to
each publication thereof shall be appended a memorandum in
substance as follows:"
" The first publication of this summons was made in _____ (here
insert the name) newspaper on the ___ day of _____ A.D. ____;
(inserting the date)."
"And if the affidavit provided for in section five of this act
discloses the name of any person claiming an interest in the
property, or a lien thereon adverse to the plaintiff, that fact,
together with the name and address (if given), of said person,
shall be stated in a memorandum to be appended to the summons in
substance as follows:"
" The following persons are said to claim an interest in, or
lien upon said property adverse to plaintiff (giving their names
and addresses as above provided). A copy of the summons, together
with a copy of the foregoing memoranda, shall be posted in a
conspicuous place on each parcel of the property described in the
complaint, within fifteen days after the first publication of the
summons."
"SEC. 5. At the time of filing the complaint, the plaintiff
shall file with the same his affidavit, fully and explicitly
setting forth and showing (1) the character of his estate, right,
title, interest, or claim in and possession of the property, during
what period the same has existed and from whom obtained; (2)
whether or not he has ever made any conveyance of the property, or
any part thereof, or any interests therein, and if so, when and to
whom; also a statement of any and all subsisting mortgages, deeds
of trust, and other liens thereon; (3) that he does not know and
has never been informed of any other person who claims or who may
claim, any interest in, or lien upon, the property or any part
thereof, adversely to him, or, if he does know, or has been
informed of any such person, then the name and address of such
person. If the plaintiff is unable to state any one or more of the
matters herein required, he shall set forth and show, fully and
explicitly, the reasons for such inability. Such affidavit shall
constitute a part of the judgment roll. If the plaintiff be a
corporation, the affidavit shall be made by an officer thereof. If
the plaintiff be a person under guardianship, the affidavit shall
be made by his guardian."
"SEC. 6. If the said affidavit discloses the name of any person
claiming any interest in, or lien upon, the property adverse to the
plaintiff, the summons shall also be personally served upon such
person if he can be found within the state, together with a copy of
the complaint and a copy of said affidavit during the period of the
publications of the summons, and to the copy of the summons
delivered to any such person there shall be appended a copy of the
memoranda provided for in section four hereof."
"If such person resides out of this state, a copy of the
summons, memoranda, complaint, and affidavit shall be within
fifteen days after the first publication of the summons deposited
in the United States post office, enclosed in a sealed envelop,
postage prepaid, addressed to such person at the address given in
the affidavit, or if no address be given therein, then at the
county seat at the county in which the action is brought. If such
person resides within this state, and could not, with due
diligence, be found within the state, within the period of the
publication of the summons, then said copies aforesaid shall be
mailed to him as above provided forthwith upon the expiration of
said period of publication."
"SEC. 7. Upon the completion of the publication and posting of
the summons, and its service upon and mailing to the person, if
any, upon whom it is hereby directed to be so specially served, the
court shall have full and complete jurisdiction over the plaintiff
and the said property, and of the person of everyone claiming any
estate, right, title, or interest in or to, or lien upon, said
property, or any part thereof, and shall be deemed to have obtained
the possession and control of said property for the purposes of the
action, and shall have full and complete jurisdiction to render the
judgment therein which is provided for in this act."
"SEC. 8. At any time within three months from the first
publication of the summons, or within such further time, not
exceeding thirty days, as the court may, for good cause, grant, any
person having or claiming any estate, right, title, or interest, in
or to, or lien upon, said property, or any part thereof, may appear
and make himself a party to the action by pleading to the
complaint. All answers must be verified and must specifically set
forth the estate, right, title, interest, or lien so claimed."
"SEC. 9. The plaintiff must at the time of filing the complaint,
and every defendant claiming any affirmative relief must at the
time of filing his answer, record in the office of the recorder of
the county in which the property is situated, a notice of the
pendency of the action, containing the object of the action or
defense, and a particular description of the property affected
thereby, and the recorder shall record the same in a book devoted
exclusively to the recordation of such notices and shall enter,
upon a map or plat of the parcels of land, to be kept by him for
that purpose, on that part of the map or plat representing the
parcel or parcels so described, a reference to the date of the
filing of such notice and, when recorded, to the book and page of
the record thereof."
"SEC. 10. No judgment in any such action shall be given by
default, but the court must require proof of the facts alleged in
the complaint and other pleadings."
"SEC. 11. The judgment shall ascertain and determine all
estates, rights, titles, interests, and claims in and to said
property and every part thereof, whether the same be legal or
equitable, present or future, vested or contingent, or whether the
same consist of mortgages or liens of any description, and shall be
binding and conclusive upon every person who at the time of the
commencement of the action, had or claimed any estate, right,
title, or interest in or to said property, or any part thereof, and
upon every person claiming under him by title subsequent to the
commencement of the action. A certified copy of the judgment in
such action shall be recorded in the office of the recorder of the
county in which said action was commenced, and any party or the
successor in interest of any party to said action may at his
option, file for record in the office of the recorder of such
county the entire judgment roll in said action."
"SEC. 12. Except as herein otherwise provided, all the
provisions and rules of law relating to evidence, pleading,
practice, new trials and appeals, applicable to other civil
actions, shall apply to the actions hereby authorized."
"At any time after the issuance of the summons, any party to the
action may take depositions therein, in conformity to law, upon
notice to the adverse party sought to be bound by such depositions,
and who have appeared in the action (if any), and upon notice filed
with the clerk. The depositions may be used by any party against
any other party giving or receiving the notice (except the clerk),
subject to all just exceptions."
"SEC. 13. The clerk shall number consecutively, in a distinct
series, all actions hereby authorized, and shall keep an index and
register thereof devoted exclusively to such actions."
"SEC. 14. Whenever judgment in an action hereby authorized shall
have been entered as to any real property, no other action relative
to the same property or any part thereof, maintained under this
act, shall be tried until proof shall first have been made to the
court that all persons who appeared in the first action, or their
successors in interest, have been personally served with the papers
mentioned in section six of this act, either within or without this
state, more than one month before the time to plead expired."
"SEC. 15. An executor, administrator, or guardian, or other
person holding the possession of property in the right of another,
may maintain as plaintiff, and may appear and defend in, the action
herein provided for."
"SEC. 16. The word 'county,' whenever used in this act, includes
and applies to a consolidated city and county."
"SEC. 17. The remedies provided for by this act shall be deemed
cumulative, and in addition to any other remedy now or hereafter
provided by law for quieting or establishing title to real
property."
"SEC. 18. All actions authorized hereby must be commenced before
July first, 1909."
"SEC.19. This act shall be in force thirty days after its
passage."