1. A state statute which provides that, in actions by residents
of the state against nonresidents for personal injuries resulting
from the operation by the latter of their motor vehicles on the
state highway, service of summons may be made on the Secretary of
state, as their agent, and which contains no further provision
making it reasonably probable that notice of such service will be
communicated to the defendants, is lacking in due process of law.
Pub.Ls. N.J. 1924, c. 232, § 1. P. 276 U. S.
2. Such actions cannot be sustained by serving notice outside of
the state not required by the statute. P. 276 U. S.
103 N.J.L. 130 reversed.
Error to a judgment of the Court of Errors and Appeals of the
State of New Jersey, which affirmed a judgment recovered by
Pizzutti in an action against Wuchter for personal injuries and
damages to property, caused by Wuchter's operation of an
Page 276 U. S. 15
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This case involves the validity, under the Fourteenth Amendment,
of a statute of New Jersey providing for service of process on
nonresidents of the state in suits for injury by the negligent
operation of automobiles on its highways.
Pizzutti was driving a team of horses attached to a wagon on a
public highway in New Jersey. Wuchter was a resident of
Pennsylvania, who was following the wagon with his automobile.
Wuchter drove his car so as to crash into the rear of the wagon,
damaging it and injuring Pizzutti and his horses. Pizzutti
instituted a suit against Wuchter in the Supreme Court of New
Jersey. Wuchter was served with process under the provisions of the
act known as Chapter 232 of the Laws of 1924 (P.L.1924, p. 517), by
leaving process with the Secretary of State. Wuchter interposed no
defense. A judgment interlocutory was taken against him, and a writ
of inquiry of damages was issued. Although the statute did not
Page 276 U. S. 16
require it, notice of its proposed execution was actually served
personally on Wuchter in Pennsylvania. Wuchter did not appear. A
final judgment was entered. Wuchter then appealed to the Supreme
Court, contending that the act under which the process was served
upon him was unconstitutional, because it deprived him of his
property without due process of law, in contravention of § 1 of the
Fourteenth Amendment to the federal Constitution.
Section 1 of the Act complained of, under which the process was
served in this case, was as follows:
"From and after the passage of this act, any chauffeur, operator
or owner of any motor vehicle, not licensed under the laws of the
State of New Jersey, providing for the registration and licensing
of motor vehicles, who shall accept the privilege extended to
nonresident chauffeurs, operators, and owners by law of driving
such a motor vehicle or of having the same driven or operated in
the State of New Jersey, without a New Jersey registration or
license, shall, by such acceptance and the operation of such
automobile within the State of New Jersey, make and constitute the
Secretary of State of the State of New Jersey, his, her or their
agent for the acceptance of process in any civil suit or proceeding
by any resident of the State of New Jersey against such chauffeur,
operator or the owner of such motor vehicle, arising out of or by
reason of any accident or collision occurring within the state in
which a motor vehicle operated by such chauffeur, or operator, or
such motor vehicle is involved."
This is the first section of an act entitled.
"An act providing for the service of process in the civil suits
upon nonresident chauffeurs, operators, or nonresident owners whose
motor vehicles are operated within the State of New Jersey, without
being licensed under the provisions of the laws of the State of New
Jersey, providing for the registration and licensing of drivers and
Page 276 U. S. 17
of motor vehicles, requiring the execution by them of a power of
attorney to the Secretary of State of the State of New Jersey to
accept civil process for them under certain conditions."
The second section provides that, where the car is unlicensed
and there is an accident, the magistrate before whom the
nonresident owner of such motor vehicle or its operator shall be
brought shall require the nonresident, as a condition to his
release on bail or otherwise, to execute a written power of
attorney to the Secretary of State appointing such officer his
lawful attorney for the acceptance of service in any civil suit
instituted or to be instituted by any resident of the State of New
Jersey against the nonresident for or on account of any claim
arising out of the collision or accident.
Section 3 provides that it shall be lawful to serve civil
process upon a nonresident owner in such case upon any chauffeur or
operator of the vehicle while the vehicle is being operated within
the state by such chauffeur or operator, and that such service may
be lawfully served upon any nonresident owner by serving the
process upon any person over the age of 14 years who has custody of
the automobile, whether held by him as security or driven,
provided, however, that a copy of such civil process also shall be
posted in a conspicuous place upon such automobile. The only
provision for other than service on the persons in charge of the
car is by leaving the summons with the Secretary of State without
more, under § 1 of the act already quoted.
By the general state motor law, as amended by chapter 211, Laws
of 1924, provision is made for the registration and license of
automobiles owned by nonresidents who use the highways of the state
(P.L.1924, § 9, par. 4, p. 451). They are required to agree that
original process against the owner made by leaving it in the office
of the Secretary of State shall have the same effect as if served
on the owner within the state, and the statute
Page 276 U. S. 18
provides that the commissioner of motor vehicles shall notify
the owner of such motor car by letter directed to him at the post
office address stated in his application for registration and
license already filed with the commissioner.
The act first above referred to, No. 232, under which process in
this case was served, applies to the owners of automobiles who are
not licensed, but who come into the state and use the highways of
the state without registration, and is not to be confused with the
license act or its provisions.
It is settled by our decisions that a state's power to regulate
the use of its highways extends to their use by nonresidents as
well as by residents. Hendrick v. Maryland, 235 U.
, 235 U. S. 622
We have further held that, in advance of the operation of a motor
vehicle on its highways by a nonresident, a state may require him
to take out a license and to appoint one of its officials as his
agent, on whom process may be served in suits growing out of
accidents in such operation. This was under the license act or New
Jersey, last above referred to, and not No. 232. Kane v. New
Jersey, 242 U. S. 160
242 U. S. 167
We have also recognized it to be a valid exercise of power by a
state, because of its right to regulate the use of its highways by
nonresidents, to declare, without exacting a license, that the use
of the highway by the nonresident may be statute be treated as the
equivalent of the appointment by him of a state official as agent
on whom process in such a case may be served. Hess v.
Pawloski, 274 U. S. 352
The question made in the present case is whether a statute
making the Secretary of State the person to receive the process
must, in order to be valid, contain a provision making it
reasonably probable that notice of the service on the secretary
will be communicated to the nonresident defendant who is sued.
Chapter 232 of the Laws of 1924 makes no such requirement, and
Page 276 U. S. 19
have not been shown any provision in any applicable law of the
State of New Jersey requiring such communication. We think that a
law with the effect of this one should make a reasonable provision
for such probable communication. We quite agree, and, indeed, have
so held in the Pawloski
case, that the act of a
nonresident in using the highways of another state may be properly
declared to be an agreement to accept service of summons in a suit
growing out of the use of the highway by the owner of the
automobile, but the enforced acceptance of the service of process
on a state officer by the defendant would not be fair or due
process unless such officer or the plaintiff is required to mail
the notice to the defendant, or to advise him, by some written
communication, so as to make it reasonably probable that he will
receive actual notice. Otherwise, where the service of summons is
limited to a service of the Secretary of State or some officer of
the state, without more, it will be entirely possible for a person
injured to sue any nonresident he chooses, and, through service
upon the state official, obtain a default judgment against a
nonresident who has never been in the state, who had nothing to do
with the accident, or whose automobile having been in the state has
never injured anybody. A provision of law for service that leaves
open such a clear opportunity for the commission of fraud
(Heinemann v. Pier,
110 Wis. 185) or injustice is not a
reasonable provision, and, in the case supposed, would certainly be
depriving a defendant of his property without due process of law.
The Massachusetts statute considered in Hess v. Pawloski
really made necessary actual personal service to be evidenced by
the written admission of the defendant. In Kane v. New
the service provided for by statute was by mail to the
necessarily known registered address of the licensed defendant.
In determining the reasonableness of provision for service, we
should consider the situation of both parties. The person injured
must find out to whom the offending automobile
Page 276 U. S. 20
belongs. This may be a difficult task. It is easy when the
operator of the automobile is present after the accident. That is
provided for in the second section of this act by apprehending him
or his operator. But the vehicle may be operated by someone who,
having committed the injury, successfully escapes capture or
identification. In such a case, the person injured must be left
without a remedy by suit at law, as everyone must be who does not
know or cannot discover the person who injured him. The burden is
necessarily on him to investigate and learn. In finding out who it
was, and whether the person is of such financial responsibility as
to warrant a suit, he almost necessarily will secure knowledge of
his post office address or his place of residence, and thereby be
enabled to point out how notice may be communicated to him. With
this information at hand, the state may properly authorize service
to be made on one of its own officials if it also requires that
notice of that service shall be communicated to the person sued.
Every statute of this kind, therefore, should require the plaintiff
bringing the suit to show in the summons to be served the post
office address or residence of the defendant being sued, and should
impose either on the plaintiff himself or upon the official
receiving service or some other the duty of communication by mail
or otherwise with the defendant.
The cases in which statutes have been upheld providing that
nonresident corporations may properly be served by leaving a
summons with a state official where the corporation has not
indicated a resident agent to be served are not especially
applicable to the present statute. Pennsylvania Fire Insurance
Co. v. Gold Issue Mining Co., 243 U. S.
; Simon v. Southern Ry. Co., 236 U.
; Old Wayne Mutual Life Association v.
McDonough, 204 U. S. 8
corporations may be properly required to accept service through a
public officer as a condition of their doing business in the state.
Page 276 U. S. 21
knowledge of the statutory requirement may perhaps prompt
frequent inquiry as to suits against them, of their appointed agent
or at the office of the public official to be served, but it could
hardly be fair or reasonable to require a nonresident individual
owner of a motor vehicle who may use the state highways to make
constant inquiry of the Secretary of State to learn whether he has
been sued. Even in cases of nonresident corporations, it has been
held that a statute directing service upon them by leaving process
with a state official is void if it contains no provision requiring
the official upon whom the service may be made to give the foreign
corporations notice that suit has been brought and citation served.
Southern Railway Co. v. Simon,
184 F. 959, 961; Gouner
v. Missouri Valley Bridge Co.,
123 La. 964. In the latter
case, the Louisiana court said in respect to such a law:
"This law makes no provision whatever for the service on the
defendant. The officer may decline to communicate with the person
sued and give no notice whatever, not even by mail. A judgment
might be obtained without the least knowledge of the person sued.
Under the phrasing of the statute, the duty of the officer begins
and ends in his office. If such a judgment were rendered, it could
receive no recognition whatever at the place of the domicile. When
a petition cannot legally be served on a defendant, the court can
exercise no jurisdiction over him. The service defines the court's
The question is mooted in Simon v. Southern R. Co.,
236 U. S. 115
236 U. S. 129
and the above language is quoted, but it was not found necessary to
decide the point.
It is instructive in this matter to refer to state authorities
to observe their view of what is valid in statutory provision for
service upon proposed defendants, corporate or otherwise, where
personal service cannot be had. In Nelson v. Chicago,
Burlington & Quincy R. Co.,
225 Ill. 197, the action was
for personal injuries. The
Page 276 U. S. 22
statute provided that service could be had upon the president of
a company at the place of business in the county, but that, if
there was no officer in the county, then the company might be
notified by publication and mail in like manner and like effect as
is provided in the rules of chancery. Those rules required an
affidavit showing the publication of a notice in a newspaper and
the mailing of the notice published. It was held that the service
under the statute was valid as a reasonable one, for it was
probable that the defendant would receive actual notice of the
action before judgment was rendered against it.
In Jefferson Fire Insurance Co. v. Brackin,
637, the statute provided that an action could be brought against
an insurance company in the county in which the contract was made,
out of which the cause of action arose, although there was no agent
doing business in the county at the time. Also, that service of
summons might be made by leaving a copy of the writ at the place of
business of the agent at the time the cause of action accrued. The
latter provision in the actual case was said to be lacking in due
process for the reason that there was no reasonable probability
that the company would receive notice in cases where there was no
longer a place of business in the county.
In Pinney v. Providence Loan & Investment Co.,
Wis. 396, the suit was by the grantee of a tax deed against the
defendant corporation and another, as the former owners of the
land, to bar their rights. The corporation was organized under the
laws of the state, and had its principal place of business in the
county. The statute provided that corporation should file the names
of officers upon whom service might be made, and that, in all cases
prior to the filing of such a list, service might be had by
delivering and leaving with the register of deeds of the county
where the corporation had its principal
Page 276 U. S. 23
place of business, a copy of the papers. Service in this case
was had on the register of deeds accordingly. It was held that the
statute was unconstitutional; that, while the state might authorize
constructive service on corporations,
"the method adopted should be reasonably calculated to bring
notice home to some of the officers or agents of the corporation,
and thus secure an opportunity for being heard."
In Town of Hinckley v. Kettle River R. Co.,
105, there was an action against the railroad company for the
recovery of certain bonds or their value. The statute provided
that, when a corporation created by the laws of the state did not
have an officer in the state upon whom legal service of process
could be made, an action might be brought in a county where the
cause of action arose or the corporation had property, and a
service might be made by depositing a copy of the summons in the
office of the secretary of state, which should be taken as a
personal service on the corporation, provided that, whenever any
process was served on the secretary of state, the same should be by
duplicate copies, one of which should be filed in the office of the
secretary of state, and the other mailed by him immediately,
postage prepaid, to the office of the company, or to the president,
or secretary as found by the articles of incorporation on file in
the office of the state official. It was held that the statute
provided for due process, there being a necessity for providing for
substituted service on domestic corporations when the officer could
not be found within the state, and that the method adopted was
appropriate and likely to communicate actual notice of the
commencement of the action to the corporation.
In McDonald v. Mabee, 243 U. S. 90
243 U. S. 91
person domiciled in Texas left the state to make his home in
another state. An action for money was begun by publication
Page 276 U. S. 24
in a newspaper after his departure, and a judgment recovered and
sustained by the state supreme court was held void by this Court.
This Court said:
"The foundation of jurisdiction is physical power, although in
civilized times it is not necessary to maintain that power
throughout proceedings properly begun, and although submission to
the jurisdiction by appearance may take the place of service upon
the person. . . . No doubt there may be some extension of the means
of acquiring jurisdiction beyond service or appearance, but the
foundation should be borne in mind. Subject to its conception of
sovereignty, even the common law required a judgment not to be
contrary to natural justice. . . . And in states bound together by
a Constitution and subject to the Fourteenth Amendment, great
caution should be used not to let fiction deny the fair play that
can be secured only by a pretty close adhesion to fact."
See also Roller v. Holly, 176 U.
These cases and others indicate a general trend of authority
toward sustaining the validity of service of process, if the
statutory provisions in themselves indicate that there is
reasonable probability that, if the statutes are complied with, the
defendant will receive actual notice, and that is the principle
that we think should apply here.
But it is said that the defendant here had actual notice by
service out of New Jersey in Pennsylvania. He did not, however,
appear in the cause, and such notice was not required by the
statute. Not having been directed by the statute, it cannot
therefore supply constitutional validity to the statute or to
service under it. Coe v. Armour Fertilizer Works,
237 U. S. 413
237 U. S.
-425; Louisville & Nashville R. Co. v. Stock
Yards Co., 212 U. S. 132
212 U. S. 144
Central of Georgia Ry. Co. v. Wright, 207 U.
, 207 U. S. 138
Security Trust Co. v. Lexington, 203 U.
, 203 U. S. 333
Roller v. Holly, 176 U. S. 398
176 U. S. 409
Stuart v. Palmer,
Page 276 U. S. 25
74 N.Y. 183, 188; Berryhill v. Sepp.,
106 Minn. 458.
For these reasons, we think that the statute of New Jersey under
consideration does not make provision for communication to be
proposed defendant such as to create reasonable probability that he
would be made aware of the bringing of the suit.
MR. JUSTICE BRANDEIS (with whom MR. JUSTICE HOLMES concurs),
The rule of general law stated by the Court seems to me sound.
But I think the judgment should be affirmed. The objection
sustained by the Court -- that the statute is void because it fails
to provide that the Secretary of State shall notify the nonresident
defendant -- is an objection taken for the first time in this
Court. It was not made or considered below, and it is not to be
found in the assignments of error filed in this Court. The only
objection made or considered below was that the state court lacked
jurisdiction because the defendant had not been personally served
within the state -- in other words, that, while the state might
require the defendant to appoint the Secretary of State as his
agent to receive service, as held in Kane v. New Jersey,
242 U. S. 160
service without such appointment is bad. When the case at bar was
decided below, the validity of that objection was an open question.
Before the case was reached for argument in this Court, Hess v.
Pawloski, 274 U. S. 352
settled that process other than personal service within the state
may suffice to give jurisdiction over nonresident motorists. The
objection now urged -- that failure to prescribe that the secretary
shall notify the nonresident denies due process -- is an
afterthought provoked by our decision in Hess v.
The nature of our jurisdiction under § 237 of the Judicial Code
demands a rigorous adherence to the long established
Page 276 U. S. 26
practice that objections not raised or considered below cannot
be relied on here. First National Bank v.
9 Wall. 353, 76 U. S. 363
21 Wall. 532, 88 U. S. 557
Bolln v. Nebraska, 176 U. S. 83
176 U. S. 89
Detroit, Ft. Wayne & Belle Isle R. Co. v. Osborn,
189 U. S. 383
189 U. S.
-391; Cox v. Texas, 202 U.
, 202 U. S. 451
Haire v. Rice, 204 U. S. 291
204 U. S. 301
It is immaterial that Wuchter made a general objection that the
statute violated the due process clause. Compare Wilson v.
McNamee, 102 U. S. 572
Dewey v. Des Moines, 173 U. S. 193
173 U. S.
-201; Bullen v. Wisconsin, 240 U.
, 240 U. S. 632
wisdom of that rule of practice is illustrated by what has happened
in the case at bar. The reversal rests wholly upon a construction
given to the New Jersey statute by this Court. It construes the
statute as not requiring the Secretary of State to give notice to
the defendant. Whether the Court of Errors and Appeals would have
so construed the statute is at least doubtful. Had the objection
been made there, it is possible -- and indeed probable -- that the
highest court of New Jersey would have construed the statute as
requiring the notice. Its able opinion shows that it appreciates
fully the requirements of the due process clause. See also
Redzina v. Provident Institution for Savings,
For aught that appears, it may have been the uniform practice of
the secretary to give notice whenever the address of the defendant
was ascertainable. Such an administrative construction would carry
great weight with the courts of New Jersey (State v.
44 N.J.Law, 1; Stephens v. Civil Service
101 N.J.Law, 192, 194), as it would with this
Court (United States v. Cerecedo Hermanos y Compania,
209 U. S. 337
Moreover, the rule that a construction which raises a serious doubt
as to the constitutionality of a statute will not be adopted if
some other construction is open is a rule commonly acted upon by
the courts of New Jersey (Colwell v. May's
Page 276 U. S. 27
Landing Water & Power Co.,
19 N.J.Eq. 245, 249;
Atlantic City Water Works Co. v. Consumers Water Co.,
N.J.Eq. 427, 437, 15 A. 581; State v. Taxhin,
270, 274), as it is in this Court (Texas v. Eastern Texas R.
Co., 258 U. S. 204
258 U. S. 217
Arkansas Natural Gas Co. v. Railroad Commission,
261 U. S. 379
261 U. S. 383
South Utah Mines v. Beaver County, 262 U.
, 262 U. S. 331
Matthew Addy Co. v. United States, 264 U.
, 264 U. S. 245
Panama R. Co. v. Johnson, 264 U.
, 264 U. S.
-390; Lewellyn v. Frick, 268 U.
, 268 U. S. 251
Hopkins v. Southern California Telephone Co., 275 U.
). Compare Presser v. Illinois,
116 U. S. 252
116 U. S. 268
Hooper v. California, 155 U. S. 648
155 U. S. 657
Plymouth Coal Co. v. Pennsylvania, 232 U.
, 232 U. S. 546
As was said in St. Louis Southwestern Ry. Co. v. Arkansas,
235 U. S. 350
235 U. S.
"We ought not to indulge the presumption either that the
legislature intended to exceed the limits imposed upon state action
by the federal Constitution or that the courts of the state will so
interpret the legislation as to lead to that result."
See also Chicago, Terre Haute & Southeastern R. Co. v.
Anderson, 242 U. S. 283
242 U. S.
While this Court has power to construe the statute, it is not
obliged to do so. We have often recognized the propriety of
remanding a case to a state court for the determination of a
delicate question of state law. Gulf, Colorado & Santa Fe
Ry. Co. v. Dennis, 224 U. S. 503
224 U. S. 506
Dorchy v. Kansas, 264 U. S. 286
264 U. S. 291
Missouri ex rel. Wabash R. Co. v. Public Service
Commission, 273 U. S. 126
273 U. S. 131
Cobb Brick Co. v. Lindsay,
275 U.S. 491. If the judgment
is to be reversed, it should be specifically for the purpose of
enabling the Court of Errors and Appeals to pass upon the objection
first raised by the defendant in this Court.
In the case at bar, the objection is not lack of jurisdiction,
but denial of due process because the statute did not require the
secretary to notify the nonresident defendant.
Page 276 U. S. 28
Notice was in fact given. And it was admitted at the bar that
the defendant had at all times actual knowledge and the opportunity
to defend. The cases cited by the Court as holding that he could
deliberately disregard that notice and opportunity and yet insist
upon a defect in the statute as drawn, although he was in no way
prejudiced thereby, seem hardly reconcilable with a long line of
authorities. Louisville & Nashville R. Co. v. Schmidt,
177 U. S. 230
177 U. S.
-239; Simon v. Craft, 182 U.
, 182 U. S.
-437; Harris v. Balk, 198 U.
, 198 U. S.
-228; Baltimore & Ohio R. Co. v.
Hostetter, 240 U. S. 620
Aikins v. Kingsbury, 247 U. S. 484
247 U. S. 489
For the reasons stated, I do not need to attempt to reconcile
MR. JUSTICE STONE, dissenting.
I agree that the judgment should be reversed and the cause
remanded, but with leave to the state court to determine whether
the notice given to the plaintiff in error by the Secretary of
State was required by the statute.