U.S. Supreme Court Pennoyer v. Neff, 95 U.S.
714 (1878) Pennoyer v. Neff 95 U.S.
714 ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF
OREGON Syllabus 1. A statute of Oregon, after providing for service of summons
upon parties or their representatives, personally or at their
residence, declares that, when service cannot be thus made, and the
defendant, after due diligence, cannot be found within the State,
and

															"that fact appears, by affidavit, to the satisfaction of the
court or judge thereof, and it, in like manner, appears that a
cause of action exists against the defendant, or that he is a
proper party to an action relating to real property in the State,
such court or judge may grant an order that the service be made by
publication of summons . . . when the defendant is not a resident
of the State, but has property therein, and the court has
jurisdiction of the subject of the action,"

															-- the order to designate a newspaper of the county where the
action is commenced in which the publication shall be made -- and
that proof of such publication shall be "the affidavit of the
printer, or his foreman, or his principal clerk." Held, that defects in the affidavit for the order can
only be taken advantage of on appeal, or by some other direct
proceeding, and cannot be urged to impeach the judgment
collaterally, and that the provision as to proof of the publication
is satisfied when the affidavit is made by the editor of the
paper.

															2. A personal judgment is without any validity if it be rendered
by a State court in an action upon a money demand against a
nonresident of the State who was served by a publication of
summons, but upon whom no personal service of process within the
State was made, and who did not appear; and no title to property
passes by a sale under an execution issued upon such a
judgment.

															3. The State, having within her territory property of a
nonresident, may hold and appropriate it to satisfy the claims of
her citizens against him, and her tribunals may inquire into his
obligations to the extent necessary to control the disposition of
that property. If he has no property in the State, there is nothing
upon which her tribunals can adjudicate.

															4. Substituted service by publication, or in any other
authorized form, is sufficient to inform a nonresident of the
object of proceedings taken where Page 95 U. S. 715 property is once brought under the control of the court by
seizure or some equivalent act, but where the suit is brought to
determine his personal rights and obligations, that is, where it is
merely in personam, such service upon him is ineffectual
for any purpose.

															5. Process from the tribunals of one State cannot run into
another State and summon a party there domiciled to respond to
proceedings against him, and publication of process or of notice
within the State in which the tribunal sits cannot create any
greater obligation upon him to appear. Process sent to him out of
the State, and process published within it, are equally unavailing
in proceedings to establish his personal liability.

															6. Except in cases affecting the personal status of the
plaintiff, and in those wherein that mode of service may be
considered to have been assented to in advance, the substituted
service of process by publication allowed by the law of Oregon and
by similar laws in other States where actions are brought against
nonresidents is effectual only where, in connection with process
against the person for commencing the action, property in the State
is brought under the control of the court and subjected to its
disposition by process adapted to that purpose, or where the
judgment is sought as a means of reaching such property or
affecting some interest therein; in other words, where the action
is in the nature of a proceeding in rem. 7. Whilst the courts of the United States are not foreign
tribunals in their relations to the State courts, they are
tribunals of a different sovereignty, and are bound to give a
judgment of a State court only the same faith and credit to which
it is entitled in the courts of another State.

															8. The term "due process of law," when applied to judicial
proceedings, means a course of legal proceedings according to those
rules and principles which have been established by our
jurisprudence for the protection and enforcement of private rights.
To give such proceedings any validity, there must be a competent
tribunal to pass upon their subject matter, and if that involves
merely a determination of the personal liability of the defendant,
he must be brought within its jurisdiction by service of process
within the State, or by his voluntary appearance.

															This action was brought by Neff against Pennoyer for the
recovery of a tract of land situated in Multnomah County, Oregon.
Pennoyer, in his answer, denied Neff's title and right to
possession, and set up a title in himself.

															By consent of parties, and in pursuance of their written
stipulation filed in the case, the cause was tried by the court,
and a special verdict given, upon which judgment was rendered in
favor of Neff; whereupon Pennoyer sued out this writ of error.

															The parties respectively claimed title as follows: Neff under a
patent issued to him by the United States, March 19, Page 95 U. S. 716 1866; and Pennoyer by virtue of a sale made by the sheriff of
said county, under an execution sued out upon a judgment against
Neff, rendered Feb. 19, 1866, by the Circuit Court for said county,
in an action wherein he was defendant and J. H. Mitchell was
plaintiff. Neff was then a nonresident of Oregon.

															In Mitchell v. Neff, jurisdiction of Neff was obtained
by service of summons by publication. Pennoyer offered in evidence
duly certified copies of the complaint, summons, order for
publication of summons, affidavit of service by publication, and
the judgment in that case, to the introduction of which papers the
plaintiff objected because, 1, said judgment is in
personam, and appears to have been given without the
appearance of the defendant in the action or personal service of
the summons upon him, and while he was a nonresident of the State,
and is, therefore, void; 2, said judgment is not in rem, and therefore constitutes no basis of title in the defendant; 3,
said copies of complaint, &c., do not show jurisdiction to give
the judgment alleged, either in rem or personam; and, 4, it appears from said papers that no proof of service by
publication was ever made, the affidavit thereof being made by the
"editor" of the "Pacific Christian Advocate," and not by "the
printer, or his foreman or principal clerk." The court admitted the
evidence subject to the objections.

															The finding of the court in regard to the facts bearing upon the
asserted jurisdiction of the State court is as follows: --

															That, on Nov. 13, 1865, Mitchell applied to said Circuit Court,
upon his own affidavit of that date, for an order allowing the
service of the summons in said action to be made upon Neff by
publication thereof, whereupon said court made said order, in the
words following:

															"Now, at this day, comes the plaintiff in his proper person, and
by his attorneys, Mitchell and Dolph, and files affidavit of
plaintiff, and motion for an order of publication of summons, as
follows, to wit:"

															"Now comes the plaintiff, by his attorneys, and upon the
affidavit of plaintiff, herewith filed, moves the court for an
order of publication of summons against defendant, as required by
law, he being a nonresident;"

															"and it appearing to the satisfaction of the court that the
defendant cannot, after due diligence, be Page 95 U. S. 717 found in this State, and that he is a nonresident thereof, that
his place of residence is unknown to plaintiff, and cannot, with
reasonable diligence, be ascertained by him, and that the plaintiff
has a cause of action of action against defendant, and that
defendant has property in this county and State, it is ordered and
adjudged by the court that service of the summons in this action be
made by publication for six weeks successively in the 'Pacific
Christian Advocate,' a weekly newspaper published in Multnomah
County, Oregon, and this action is continued for such service."

															That the affidavit of plaintiff, referred to in said order, is
in the words following:

															"I, J. H. Mitchell, being first duly sworn, say that the
defendant, Marcus Neff, is a nonresident of this State; that he
resides somewhere in the State of California, at what place affiant
knows not, and he cannot be found in this State; that plaintiff has
a just cause of action against defendant for a money demand on
account; that this court has jurisdiction of such action; that the
defendant has property in this county and State."

															That the complaint in said action was verified and filed on Nov.
3, 1865, and contained facts tending to prove that, at that date,
said Mitchell had a cause of action against said Neff for services
as an attorney, performed "between Jan. 1, 1862, and May 15, 1863."
That the entry of judgment in said action contained the following
averments:

															"And it appearing to the court that the defendant was, at the
time of the commencement of this action, and ever since has been, a
nonresident of this State; and it further appearing that he has
property in this State, and that defendant had notice of the
pendency of this action by publication of the summons for six
successive weeks in the 'Pacific Christian Advocate,' a weekly
newspaper of general circulation published in Multnomah County,
State of Oregon, the last issue of which was more than twenty days
before the first day of this term."

															That the affidavit showing the publication of the summons in the
"Advocate" aforesaid was made as stated therein by the "editor" of
that paper. That said complaint, summons, affidavit of Mitchell and
of the "editor" of the "Advocate" aforesaid, and entry of judgment,
were in the judgment roll, made up by the clerk in the case, but
the order for publication of the summons aforesaid was not placed
in said roll Page 95 U. S. 718 by said clerk, but remains on the files of said court; and that,
when said court made said order for publication, and gave said
judgment against Neff, the only evidence it had before it to prove
the facts necessary to give it jurisdiction therefor, and
particularly to authorize it to find and state that Neff's
residence was unknown to Mitchell, and could not, with reasonable
diligence, be ascertained by him, and that Neff had notice of the
pendency of said action by the publication of the summons as
aforesaid, was, so far as appears by the said roll and the records
and files of the said court, the said complaint and affidavits of
Mitchell and the editor of the "Advocate."

															The statute of Oregon at the time of the commencement of the
suit against Neff was as follows: --

															"SECT. 55. When service of the summons cannot be made as
prescribed in the last preceding section, and the defendant, after
due diligence, cannot be found within the State, and when that fact
appears, by affidavit, to the satisfaction of the court or judge
thereof, or justice in an action in a justice's court, and it also
appears that a cause of action exists against the defendant, or
that he is a proper party to an action relating to real property in
this State, such court or judge or justice may grant an order that
the service be made by publication of summons in either of the
following cases: . . ."

															"3. When the defendant is not a resident of the State, but has
property therein, and the court has jurisdiction of the subject of
the action."

															"SECT. 56. The order shall direct the publication to be made in
a newspaper published in the county where the action is commenced,
and, if no newspaper be published in the county, then in a
newspaper to be designated as most likely to give notice to the
person to be served, and for such length of time as may be deemed
reasonable, not less than once a week for six weeks. In case of
publication, the court or judge shall also direct a copy of the
summons and complaint to be forthwith deposited in the post office,
directed to the defendant, at his place of residence, unless it
shall appear that such residence is neither known to the party
making the application, nor can, with reasonable diligence, be
ascertained by him. When publication is ordered, personal service
of a copy of the summons and complaint out of the State shall be
equivalent to publication and deposit in the post office. In either
case, the defendant shall appear and answer by the first day of the
term following the Page 95 U. S. 719 expiration of the time prescribed in the order for publication;
and, if he does not, judgment may be taken against him for want
thereof. In case of personal service out of the State, the summons
shall specify the time prescribed in the order for
publication."

															"SECT. 57. The defendant against whom publication is ordered, or
his personal representatives, on application and sufficient cause
shown, at any time before judgment, shall be allowed to defend the
action; and the defendant against whom publication is ordered, or
his representatives, may in like manner, upon good cause shown, and
upon such terms as may be proper, be allowed to defend after
judgment, and within one year after the entry of such judgment, on
such terms as may be just; and, if the defence be successful, and
the judgment or any part thereof have been collected or otherwise
enforced, such restitution may thereupon be compelled as the court
shall direct. But the title to property sold upon execution issued
on such judgment to a purchaser in good faith shall not be thereby
affected."

															"SECT. 60. Proof of the service of summons shall be, in case of
publication, the affidavit of the printer, or his foreman, or his
principal clerk, showing the same."

															MR. JUSTICE FIELD delivered the opinion of the court.

															This is an action to recover the possession of a tract of land,
of the alleged value of $15,000, situated in the State of Oregon.
The plaintiff asserts title to the premises by a patent of the
United States issued to him in 1866, under the act of Congress of
Sept. 27, 1850, usually known as the Donation Law of Oregon. The
defendant claims to have acquired the premises under a sheriff's
deed, made upon a sale of the property on execution issued upon a
judgment recovered against the plaintiff in one of the circuit
courts of the State. The case turns upon the validity of this
judgment.

															It appears from the record that the judgment was rendered in
February, 1866, in favor of J. H. Mitchell, for less than $300,
including costs, in an action brought by him upon a demand for
services as an attorney; that, at the time the action was commenced
and the judgment rendered, the defendant therein, the plaintiff
here, was a nonresident of the State; Page 95 U. S. 720 that he was not personally served with process, and did not
appear therein; and that the judgment was entered upon his default
in not answering the complaint, upon a constructive service of
summons by publication.

															The Code of Oregon provides for such service when an action is
brought against a nonresident and absent defendant who has property
within the State. It also provides, where the action is for the
recovery of money or damages, for the attachment of the property of
the nonresident. And it also declares that no natural person is
subject to the jurisdiction of a court of the State

															"unless he appear in the court, or be found within the State, or
be a resident thereof, or have property therein; and, in the last
case, only to the extent of such property at the time the
jurisdiction attached."

															Construing this latter provision to mean that, in an action for
money or damages where a defendant does not appear in the court,
and is not found within the State, and is not a resident thereof,
but has property therein, the jurisdiction of the court extends
only over such property, the declaration expresses a principle of
general, if not universal, law. The authority of every tribunal is
necessarily restricted by the territorial limits of the State in
which it is established. Any attempt to exercise authority beyond
those limits would be deemed in every other forum, as has been said
by this Court, an illegitimate assumption of power, and be resisted
as mere abuse. D'Arcy v. Ketchum et
al. , 11 How. 165. In the case against the
plaintiff, the property here in controversy sold under the judgment
rendered was not attached, nor in any way brought under the
jurisdiction of the court. Its first connection with the case was
caused by a levy of the execution. It was not, therefore, disposed
of pursuant to any adjudication, but only in enforcement of a
personal judgment, having no relation to the property, rendered
against a nonresident without service of process upon him in the
action or his appearance therein. The court below did not consider
that an attachment of the property was essential to its
jurisdiction or to the validity of the sale, but held that the
judgment was invalid from defects in the affidavit upon which the
order of publication was obtained and in the affidavit by which the
publication was proved. Page 95 U. S. 721 There is some difference of opinion among the members of this
Court as to the rulings upon these alleged defects. The majority
are of opinion that, inasmuch as the statute requires, for an order
of publication, that certain facts shall appear by affidavit to the
satisfaction of the court or judge, defects in such affidavit can
only be taken advantage of on appeal, or by some other direct
proceeding, and cannot be urged to impeach the judgment
collaterally. The majority of the court are also of opinion that
the provision of the statute requiring proof of the publication in
a newspaper to be made by the "affidavit of the printer, or his
foreman, or his principal clerk" is satisfied when the affidavit is
made by the editor of the paper. The term "printer," in their
judgment, is there used not to indicate the person who sets up the
type -- he does not usually have a foreman or clerks -- it is
rather used as synonymous with publisher. The Supreme Court of New
York so held in one case; observing that, for the purpose of making
the required proof, publishers were "within the spirit of the
statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And,
following this ruling, the Supreme Court of California held that an
affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term "editor," as used
when the statute of New York was passed, from which the Oregon law
is borrowed, usually included not only the person who wrote or
selected the articles for publication, but the person who published
the paper and put it into circulation. Webster, in an early edition
of his Dictionary, gives as one of the definitions of an editor, a
person "who superintends the publication of a newspaper." It is
principally since that time that the business of an editor has been
separated from that of a publisher and printer, and has become an
independent profession.

															If, therefore, we were confined to the rulings of the court
below upon the defects in the affidavits mentioned, we should be
unable to uphold its decision. But it was also contended in that
court, and is insisted upon here, that the judgment in the State
court against the plaintiff was void for want of personal service
of process on him, or of his appearance in the action in which it
was rendered and that the premises in controversy could not be
subjected to the payment of the demand Page 95 U. S. 722 of a resident creditor except by a proceeding in rem, that is, by a direct proceeding against the property for that
purpose. If these positions are sound, the ruling of the Circuit
Court as to the invalidity of that judgment must be sustained
notwithstanding our dissent from the reasons upon which it was
made. And that they are sound would seem to follow from two well
established principles of public law respecting the jurisdiction of
an independent State over persons and property. The several States
of the Union are not, it is true, in every respect independent,
many of the right and powers which originally belonged to them
being now vested in the government created by the Constitution.
But, except as restrained and limited by that instrument, they
possess and exercise the authority of independent States, and the
principles of public law to which we have referred are applicable
to them. One of these principles is that every State possesses
exclusive jurisdiction and sovereignty over persons and property
within its territory. As a consequence, every State has the power
to determine for itself the civil status and capacities of its
inhabitants; to prescribe the subjects upon which they may
contract, the forms and solemnities with which their contracts
shall be executed, the rights and obligations arising from them,
and the mode in which their validity shall be determined and their
obligations enforced; and also the regulate the manner and
conditions upon which property situated within such territory, both
personal and real, may be acquired, enjoyed, and transferred. The
other principle of public law referred to follows from the one
mentioned; that is, that no State can exercise direct jurisdiction
and authority over persons or property without its territory.
Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several
States are of equal dignity and authority, and the independence of
one implies the exclusion of power from all others. And so it is
laid down by jurists as an elementary principle that the laws of
one State have no operation outside of its territory except so far
as is allowed by comity, and that no tribunal established by it can
extend its process beyond that territory so as to subject either
persons or property to its decisions. "Any exertion of authority of
this sort beyond this limit," says Story, "is a mere nullity, and
incapable of binding Page 95 U. S. 723 such persons or property in any other tribunals." Story,
Confl.Laws, sect. 539.

															But as contracts made in one State may be enforceable only in
another State, and property may be held by nonresidents, the
exercise of the jurisdiction which every State is admitted to
possess over persons and property within its own territory will
often affect persons and property without it. To any influence
exerted in this way by a State affecting persons resident or
property situated elsewhere, no objection can be justly taken;
whilst any direct exertion of authority upon them, in an attempt to
give ex-territorial operation to its laws, or to enforce an
ex-territorial jurisdiction by its tribunals, would be deemed an
encroachment upon the independence of the State in which the
persons are domiciled or the property is situated, and be resisted
as usurpation.

															Thus the State, through its tribunals, may compel persons
domiciled within its limits to execute, in pursuance of their
contracts respecting property elsewhere situated, instruments in
such form and with such solemnities as to transfer the title, so
far as such formalities can be complied with; and the exercise of
this jurisdiction in no manner interferes with the supreme control
over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v.
Watts , 6 Cranch 148; Watkins v.
Holman , 16 Pet. 25; Corbett v.
Nutt , 10 Wall. 464.

															So the State, through its tribunals, may subject property
situated within its limits owned by nonresidents to the payment of
the demand of its own citizens against them, and the exercise of
this jurisdiction in no respect infringes upon the sovereignty of
the State where the owners are domiciled. Every State owes
protection to its own citizens, and, when nonresidents deal with
them, it is a legitimate and just exercise of authority to hold and
appropriate any property owned by such nonresidents to satisfy the
claims of its citizens. It is in virtue of the State's jurisdiction
over the property of the nonresident situated within its limits
that its tribunals can inquire into that nonresident's obligations
to its own citizens, and the inquiry can then be carried only to
the extent necessary to control the disposition of the property. If
the nonresident Page 95 U. S. 724 have no property in the State, there is nothing upon which the
tribunals can adjudicate.

															These views are not new. They have been frequently expressed,
with more or less distinctness, in opinions of eminent judges, and
have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said:--

															"Where a party is within a territory, he may justly be subjected
to its process, and bound personally by the judgment pronounced on
such process against him. Where he is not within such territory,
and is not personally subject to its laws, if, on account of his
supposed or actual property being within the territory, process by
the local laws may, by attachment, go to compel his appearance,
and, for his default to appear, judgment may be pronounced against
him, such a judgment must, upon general principles, be deemed only
to bind him to the extent of such property, and cannot have the
effect of a conclusive judgment in personam, for the plain
reason, that, except so far as the property is concerned, it is a
judgment coram non judice. "

															And in Boswell's Lessee v.
Otis , 9 How. 336, where the title of the plaintiff
in ejectment was acquired on a sheriff's sale under a money decree
rendered upon publication of notice against nonresidents, in a suit
brought to enforce a contract relating to land, Mr. Justice McLean
said:--

															"Jurisdiction is acquired in one of two modes: first, as against
the person of the defendant by the service of process; or,
secondly, by a procedure against the property of the defendant
within the jurisdiction of the court. In the latter case, the
defendant is not personally bound by the judgment beyond the
property in question. And it is immaterial whether the proceeding
against the property be by an attachment or bill in chancery. It
must be substantially a proceeding in rem. "

															These citations are not made as authoritative expositions of the
law, for the language was perhaps not essential to the decision of
the cases in which it was used, but as expressions of the opinion
of eminent jurists. But in Cooper v. Reynolds, reported in
the 10th of Wallace, it was essential to the disposition of the
case to declare the effect of a personal action against an absent
party, without the jurisdiction of the court, not served Page 95 U. S. 725 with process or voluntarily submitting to the tribunal, when it
was sought to subject his property to the payment of a demand of a
resident complainant; and, in the opinion there delivered, we have
a clear statement of the law as to the efficacy of such actions,
and the jurisdiction of the court over them. In that case, the
action was for damages for alleged false imprisonment of the
plaintiff; and, upon his affidavit that the defendants had fled
from the State, or had absconded or concealed themselves so that
the ordinary process of law could not reach them, a writ of
attachment was sued out against their property. Publication was
ordered by the court, giving notice to them to appear and plead,
answer or demur, or that the action would be taken as confessed and
proceeded in ex parte as to them. Publication was had, but
they made default, and judgment was entered against them, and the
attached property was sold under it. The purchaser having been put
into possession of the property, the original owner brought
ejectment for its recovery. In considering the character of the
proceeding, the Court, speaking through Mr. Justice Miller,
said:--

															"Its essential purpose or nature is to establish, by the
judgment of the court, a demand or claim against the defendant, and
subject his property lying within the territorial jurisdiction of
the court to the payment of that demand. But the plaintiff is met
at the commencement of his proceedings by the fact that the
defendant is not within the territorial jurisdiction, and cannot be
served with any process by which he can be brought personally
within the power of the court. For this difficulty, the statute has
provided a remedy. It says that, upon affidavit's being made of
that fact, a writ of attachment may be issued and levied on any of
the defendant's property, and a publication may be made warning him
to appear; and that thereafter the court may proceed in the case,
whether he appears or not. If the defendant appears, the cause
becomes mainly a suit in personam, with the added incident
that the property attached remains liable, under the control of the
court, to answer to any demand which may be established against the
defendant by the final judgment of the court. But if there is no
appearance of the defendant, and no service of process on him, the
case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the
payment of the demand which the court may find to be due to the
plaintiff. That such is Page 95 U. S. 726 the nature of this proceeding in this latter class of cases is
clearly evinced by two well established propositions: first, the
judgment of the court, though in form a personal judgment against
the defendant, has no effect beyond the property attached in that
suit. No general execution can be issued for any balance unpaid
after the attached property is exhausted. No suit can be maintained
on such a judgment in the same court, or in any other; nor can it
be used as evidence in any other proceeding not affecting the
attached property; nor could the costs in that proceeding be
collected of defendant out of any other property than that attached
in the suit. Second, the court in such a suit cannot proceed unless
the officer finds some property of defendant on which to levy the
writ of attachment. A return that none can be found is the end of
the case, and deprives the court of further jurisdiction, though
the publication may have been duly made and proven in court."

															The fact that the defendants in that case had fled from the
State, or had concealed themselves, so as not to be reached by the
ordinary process of the court, and were not nonresidents, was not
made a point in the decision. The opinion treated them as being
without the territorial jurisdiction of the court, and the grounds
and extent of its authority over persons and property thus situated
were considered when they were not brought within its jurisdiction
by personal service or voluntary appearance.

															The writer of the present opinion considered that some of the
objections to the preliminary proceedings in the attachment suit
were well taken, and therefore dissented from the judgment of the
Court, but, to the doctrine declared in the above citation, he
agreed, and he may add that it received the approval of all the
judges. It is the only doctrine consistent with proper protection
to citizens of other States. If, without personal service,
judgments in personam, obtained ex parte against
nonresidents and absent parties, upon mere publication of process,
which, in the great majority of cases, would never be seen by the
parties interested, could be upheld and enforced, they would be the
constant instruments of fraud and oppression. Judgments for all
sorts of claims upon contracts and for torts, real or pretended,
would be thus obtained, under which property would be seized, when
the evidence of the transactions upon Page 95 U. S. 727 which they were founded, if they ever had any existence, had
perished.

															Substituted service by publication, or in any other authorized
form, may be sufficient to inform parties of the object of
proceedings taken where property is once brought under the control
of the court by seizure or some equivalent act. The law assumes
that property is always in the possession of its owner, in person
or by agent, and it proceeds upon the theory that its seizure will
inform him not only that it is taken into the custody of the court,
but that he must look to any proceedings authorized by law upon
such seizure for its condemnation and sale. Such service may also
be sufficient in cases where the object of the action is to reach
and dispose of property in the State, or of some interest therein,
by enforcing a contract or a lien respecting the same, or to
partition it among different owners, or, when the public is a
party, to condemn and appropriate it for a public purpose. In other
words, such service may answer in all actions which are
substantially proceedings in rem. But where the entire
object of the action is to determine the personal rights and
obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a
nonresident is ineffectual for any purpose. Process from the
tribunals of one State cannot run into another State, and summon
parties there domiciled to leave its territory and respond to
proceedings against them. Publication of process or notice within
the State where the tribunal sits cannot create any greater
obligation upon the nonresident to appear. Process sent to him out
of the State, and process published within it, are equally
unavailing in proceedings to establish his personal liability.

															The want of authority of the tribunals of a State to adjudicate
upon the obligations of nonresidents, where they have no property
within its limits, is not denied by the court below: but the
position is assumed, that, where they have property within the
State, it is immaterial whether the property is in the first
instance brought under the control of the court by attachment or
some other equivalent act, and afterwards applied by its judgment
to the satisfaction of demands against its owner; or such demands
be first established in a personal action, and Page 95 U. S. 728 the property of the nonresident be afterwards seized and sold on
execution. But the answer to this position has already been given
in the statement that the jurisdiction of the court to inquire into
and determine his obligations at all is only incidental to its
jurisdiction over the property. Its jurisdiction in that respect
cannot be made to depend upon facts to be ascertained after it has
tried the cause and rendered the judgment. If the judgment be
previously void, it will not become valid by the subsequent
discovery of property of the defendant, or by his subsequent
acquisition of it. The judgment, if void when rendered, will always
remain void; it cannot occupy the doubtful position of being valid
if property be found, and void if there be none. Even if the
position assumed were confined to cases where the nonresident
defendant possessed property in the State at the commencement of
the action, it would still make the validity of the proceedings and
judgment depend upon the question whether, before the levy of the
execution, the defendant had or had not disposed of the property.
If, before the levy, the property should be sold, then, according
to this position, the judgment would not be binding. This doctrine
would introduce a new element of uncertainty in judicial
proceedings. The contrary is the law: the validity of every
judgment depends upon the jurisdiction of the court before it is
rendered, not upon what may occur subsequently. In Webster v.
Reid, reported in 11th of Howard, the plaintiff claimed title
to land sold under judgments recovered in suits brought in a
territorial court of Iowa, upon publication of notice under a law
of the territory, without service of process; and the court
said:

															"These suits were not a proceeding in rem against the
land, but were in personam against the owners of it.
Whether they all resided within the territory or not does not
appear, nor is it a matter of any importance. No person is required
to answer in a suit on whom process has not been served, or whose
property has not been attached. In this case, there was no personal
notice, nor an attachment or other proceeding against the land,
until after the judgments. The judgments, therefore, are nullities,
and did not authorize the executions on which the land was sold.
" Page 95 U. S. 729 The force and effect of judgments rendered against nonresidents
without personal service of process upon them, or their voluntary
appearance, have been the subject of frequent consideration in the
courts of the United States and of the several States, as attempts
have been made to enforce such judgments in States other than those
in which they were rendered, under the provision of the
Constitution requiring that "full faith and credit shall be given
in each State to the public acts, records, and judicial proceedings
of every other State;" and the act of Congress providing for the
mode of authenticating such acts, records, and proceedings, and
declaring that, when thus authenticated,

															"they shall have such faith and credit given to them in every
court within the United States as they have by law or usage in the
courts of the State from which they are or shall or taken."

															In the earlier cases, it was supposed that the act gave to all
judgments the same effect in other States which they had by law in
the State where rendered. But this view was afterwards qualified so
as to make the act applicable only when the court rendering the
judgment had jurisdiction of the parties and of the subject matter,
and not to preclude an inquiry into the jurisdiction of the court
in which the judgment was rendered, or the right of the State
itself to exercise authority over the person or the subject matter. M'Elmoyle v.
Cohen , 13 Pet. 312. In the case of D'Arcy v.
Ketchum, reported in the 11th of Howard, this view is stated
with great clearness. That was an action in the Circuit Court of
the United States for Louisiana, brought upon a judgment rendered
in New York under a State statute, against two joint debtors, only
one of whom had been served with process, the other being a
nonresident of the State. The Circuit Court held the judgment
conclusive and binding upon the nonresident not served with
process, but this Court reversed its decision, observing, that it
was a familiar rule that countries foreign to our own disregarded a
judgment merely against the person, where the defendant had not
been served with process nor had a day in court; that national
comity was never thus extended; that the proceeding was deemed an
illegitimate assumption of power, and resisted as mere abuse; that
no faith and credit or force and effect had been given to such
judgments by any State of the Union, so far Page 95 U. S. 730 as known; and that the State courts had uniformly, and in many
instances, held them to be void. "The international law," said the
court,

															"as it existed among the States in 1790, was that a judgment
rendered in one State, assuming to bind the person of a citizen of
another, was void within the foreign State, when the defendant had
not been served with process or voluntarily made defence, because
neither the legislative jurisdiction nor that of courts of justice
had binding force."

															And the Court held that the act of Congress did not intend to
declare a new rule, or to embrace judicial records of this
description. As was stated in a subsequent case, the doctrine of
this Court is that the act

															"was not designed to displace that principle of natural justice
which requires a person to have notice of a suit before he can be
conclusively bound by its result, nor those rules of public law
which protect persons and property within one State from the
exercise of jurisdiction over them by another." The Lafayette Insurance Co. v.
French et al. , 18 How. 404.

															This whole subject has been very fully and learnedly considered
in the recent case of Thompson v.
Whitman , 18 Wall. 457, where all the authorities
are carefully reviewed and distinguished, and the conclusion above
stated is not only reaffirmed, but the doctrine is asserted that
the record of a judgment rendered in another State may be
contradicted as to the facts necessary to give the court
jurisdiction against its recital of their existence. In all the
cases brought in the State and Federal courts, where attempts have
been made under the act of Congress to give effect in one State to
personal judgments rendered in another State against nonresidents,
without service upon them, or upon substituted service by
publication, or in some other form, it has been held, without an
exception, so far as we are aware, that such judgments were without
any binding force except as to property, or interests in property,
within the State, to reach and affect which was the object of the
action in which the judgment was rendered, and which property was
brought under control of the court in connection with the process
against the person. The proceeding in such cases, though in the
form of a personal action, has been uniformly treated, where
service was not obtained, and the party did not voluntarily Page 95 U. S. 731 appear, as effectual and binding merely as a proceeding in
rem, and as having no operation beyond the disposition of the
property, or some interest therein. And the reason assigned for
this conclusion has been that which we have already stated -- that
the tribunals of one State have no jurisdiction over persons beyond
its limits, and can inquire only into their obligations to its
citizens when exercising its conceded jurisdiction over their
property within its limits. In Bissell v. Briggs, decided
by the Supreme Court of Massachusetts as early as 1813, the law is
stated substantially in conformity with these views. In that case,
the court considered at length the effect of the constitutional
provision, and the act of Congress mentioned, and after stating
that, in order to entitle the judgment rendered in any court of the
United States to the full faith and credit mentioned in the
Constitution, the court must have had jurisdiction not only of the
cause, but of the parties, it proceeded to illustrate its position
by observing, that, where a debtor living in one State has goods,
effects, and credits in another, his creditor living in the other
State may have the property attached pursuant to its laws, and, on
recovering judgment, have the property applied to its satisfaction,
and that the party in whose hands the property was would be
protected by the judgment in the State of the debtor against a suit
for it, because the court rendering the judgment had jurisdiction
to that extent; but that, if the property attached were
insufficient to satisfy the judgment, and the creditor should sue
on that judgment in the State of the debtor, he would fail because
the defendant was not amenable to the court rendering the judgment.
In other words, it was held that over the property within the State
the court had jurisdiction by the attachment, but had none over his
person, and that any determination of his liability, except so far
as was necessary for the disposition of the property, was
invalid.

															In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action
of debt was brought in New York upon a personal judgment recovered
in Massachusetts. The defendant in that judgment was not served
with process, and the suit was commenced by the attachment of a
bedstead belonging to the defendant, accompanied with a summons to
appear, served on his wife after she had left her place in
Massachusetts. The court held that Page 95 U. S. 732 the attachment bound only the property attached as a proceeding in rem, and that it could not bind the defendant,
observing, that to bind a defendant personally when he was never
personally summoned or had notice of the proceeding would be
contrary to the first principles of justice, repeating the language
in that respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden
v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited,
and Harris v. Hardeman et
al. , 14 How. 334. To the same purport, decisions
are found in all the State courts. In several of the cases, the
decision has been accompanied with the observation that a personal
judgment thus recovered has no binding force without the State in
which it is rendered, implying that, in such State, it may be valid
and binding. But if the court has no jurisdiction over the person
of the defendant by reason of his nonresidence, and consequently no
authority to pass upon his personal rights and obligations; if the
whole proceeding, without service upon him or his appearance, is coram non judice and void; if to hold a defendant bound by
such a judgment is contrary to the first principles of justice --
it is difficult to see how the judgment can legitimately have any
force within the State. The language used can be justified only on
the ground that there was no mode of directly reviewing such
judgment or impeaching its validity within the State where
rendered, and that therefore it could be called in question only
when its enforcement was elsewhere attempted. In later cases, this
language is repeated with less frequency than formerly, it
beginning to be considered, as it always ought to have been, that a
judgment which can be treated in any State of this Union as
contrary to the first principles of justice, and as an absolute
nullity, because rendered without any jurisdiction of the tribunal
over the party, is not entitled to any respect in the State where
rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v.
Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18
Ind. 123.

															Be that as it may, the courts of the United States are not
required to give effect to judgments of this character when any
right is claimed under them. Whilst they are not foreign tribunals
in their relations to the State courts, they are tribunals Page 95 U. S. 733 of a different sovereignty, exercising a distinct and
independent jurisdiction, and are bound to give to the judgments of
the State courts only the same faith and credit which the courts of
another State are bound to give to them.

															Since the adoption of the Fourteenth Amendment to the Federal
Constitution, the validity of such judgments may be directly
questioned, and their enforcement in the State resisted, on the
ground that proceedings in a court of justice to determine the
personal rights and obligations of parties over whom that court has
no jurisdiction do not constitute due process of law. Whatever
difficulty may be experienced in giving to those terms a definition
which will embrace every permissible exertion of power affecting
private rights, and exclude such as is forbidden, there can be no
doubt of their meaning when applied to judicial proceedings. They
then mean a course of legal proceedings according to those rules
and principles which have been established in our systems of
jurisprudence for the protection and enforcement of private rights.
To give such proceedings any validity, there must be a tribunal
competent by its constitution -- that is, by the law of its
creation -- to pass upon the subject matter of the suit; and if
that involves merely a determination of the personal liability of
the defendant, he must be brought within its jurisdiction by
service of process within the State, or his voluntary
appearance.

															Except in cases affecting the personal status of the plaintiff
and cases in which that mode of service may be considered to have
been assented to in advance, as hereinafter mentioned, the
substituted service of process by publication, allowed by the law
of Oregon and by similar laws in other States, where actions are
brought against nonresidents, is effectual only where, in
connection with process against the person for commencing the
action, property in the State is brought under the control of the
court, and subjected to its disposition by process adapted to that
purpose, or where the judgment is sought as a means of reaching
such property or affecting some interest therein; in other words,
where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations
405, for any other purpose than to subject the property of a
nonresident to valid claims against Page 95 U. S. 734 him in the State, "due process of law would require appearance
or personal service before the defendant could be personally bound
by any judgment rendered."

															It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the
disposition of the property, without reference to the title of
individual claimants; but, in a larger and more general sense, the
terms are applied to actions between parties where the direct
object is to reach and dispose of property owned by them, or of
some interest therein. Such are cases commenced by attachment
against the property of debtors, or instituted to partition real
estate, foreclose a mortgage, or enforce a lien. So far as they
affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.

															It is hardly necessary to observe that, in all we have said, we
have had reference to proceedings in courts of first instance, and
to their jurisdiction, and not to proceedings in an appellate
tribunal to review the action of such courts. The latter may be
taken upon such notice, personal or constructive, as the State
creating the tribunal may provide. They are considered as rather a
continuation of the original litigation than the commencement of a
new action. Nations et al. v. Johnson et
al. , 24 How. 195.

															It follows from the views expressed that the personal judgment
recovered in the State court of Oregon against the plaintiff
herein, then a nonresident of the State, was without any validity,
and did not authorize a sale of the property in controversy.

															To prevent any misapplication of the views expressed in this
opinion, it is proper to observe that we do not mean to assert by
anything we have said that a State may not authorize proceedings to
determine the status of one of its citizens towards a nonresident
which would be binding within the State, though made without
service of process or personal notice to the nonresident. The
jurisdiction which every State possesses to determine the civil
status and capacities of all its inhabitants involves authority to
prescribe the conditions on which proceedings affecting them may be
commenced and carried on within its territory. The State, for
example, has absolute Page 95 U. S. 735 right to prescribe the conditions upon which the marriage
relation between its own citizens shall be created, and the causes
for which it may be dissolved. One of the parties guilty of acts
for which, by the law of the State, a dissolution may be granted
may have removed to a State where no dissolution is permitted. The
complaining party would, therefore, fail if a divorce were sought
in the State of the defendant; and if application could not be made
to the tribunals of the complainant's domicile in such case, and
proceedings be there instituted without personal service of process
or personal notice to the offending party, the injured citizen
would be without redress. Bish. Marr. and Div., sect. 156.

															Neither do we mean to assert that a State may not require a
nonresident entering into a partnership or association within its
limits, or making contracts enforceable there, to appoint an agent
or representative in the State to receive service of process and
notice in legal proceedings instituted with respect to such
partnership, association, or contracts, or to designate a place
where such service may be made and notice given, and provide, upon
their failure, to make such appointment or to designate such place
that service may be made upon a public officer designated for that
purpose, or in some other prescribed way, and that judgments
rendered upon such service may not be binding upon the nonresidents
both within and without the State. As was said by the Court of
Exchequer in Vallee v. Dumergue, 4 Exch. 290,

															"It is not contrary to natural justice that a man who has agreed
to receive a particular mode of notification of legal proceedings
should be bound by a judgment in which that particular mode of
notification has been followed, even though he may not have actual
notice of them." See also The Lafayette Insurance Co. v.
French et al. , 18 How. 404, and Gillespie v.
Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201.
Nor do we doubt that a State, on creating corporations or other
institutions for pecuniary or charitable purposes, may provide a
mode in which their conduct may be investigated, their obligations
enforced, or their charters revoked, which shall require other than
personal service upon their officers or members. Parties becoming
members of such corporations or institutions would hold their Page 95 U. S. 736 interest subject to the conditions prescribed by law. Copin
v. Adamson, Law Rep. 9 Ex. 345.

															In the present case, there is no feature of this kind, and
consequently no consideration of what would be the effect of such
legislation in enforcing the contract of a nonresident can arise.
The question here respects only the validity of a money judgment
rendered in one State in an action upon a simple contract against
the resident of another without service of process upon him or his
appearance therein. Judgment affirmed. MR. JUSTICE HUNT dissenting.

															I am compelled to dissent from the opinion and judgment of the
court, and, deeming the question involved to be important, I take
leave to record my views upon it.

															The judgment of the court below was placed upon the ground that
the provisions of the statute were not complied with. This is of
comparatively little importance, as it affects the present case
only. The judgment of this Court is based upon the theory that the
legislature had no power to pass the law in question; that the
principle of the statute is vicious, and every proceeding under it
void. It, therefore, affects all like cases, past and future, and
in every State.

															The precise case is this: a statute of Oregon authorizes suits
to be commenced by the service of a summons. In the case of a
nonresident of the State, it authorizes the service of the summons
to be made by publication for not less than six weeks, in a
newspaper published in the county where the action is commenced. A
copy of the summons must also be sent by mail, directed to the
defendant at his place of residence, unless it be shown that the
residence is not known and cannot be ascertained. It authorizes a
judgment and execution to be obtained in such proceeding. Judgment
in a suit commenced by one Mitchell in the Circuit Court of
Multnomah County, where the summons was thus served, was obtained
against Neff, the present plaintiff, and the land in question,
situate in Multnomah County, was bought by the defendant Pennoyer
at a sale upon the judgment in such suit. This court now holds
that, by reason of the absence of a personal service of Page 95 U. S. 737 the summons on the defendant, the Circuit Court of Oregon had no
jurisdiction, its judgment could not authorize the sale of land in
said county, and, as a necessary result, a purchaser of land under
it obtained no title; that, as to the former owner, it is a case of
depriving a person of his property without due process of law.

															In my opinion, this decision is at variance with the long
established practice under the statutes of the States of this
Union, is unsound in principle, and, I fear, may be disastrous in
its effects. It tends to produce confusion in titles which have
been obtained under similar statutes in existence for nearly a
century; it invites litigation and strife, and overthrows a well
settled rule of property.

															The result of the authorities on the subject, and the sound
conclusions to be drawn from the principles which should govern the
decision, as I shall endeavor to show, are these:--

															1. A sovereign State must necessarily have such control over the
real and personal property actually being within its limits, as
that it may subject the same to the payment of debts justly due to
its citizens.

															2. This result is not altered by the circumstance that the owner
of the property is nonresident, and so absent from the State that
legal process cannot be served upon him personally.

															3. Personal notice of a proceeding by which title to property is
passed is not indispensable; it is competent to the State to
authorize substituted service by publication or otherwise, as the
commencement of a suit against nonresidents, the judgment in which
will authorize the sale of property in such State.

															4. It belongs to the legislative power of the State to determine
what shall be the modes and means proper to be adopted to give
notice to an absent defendant of the commencement of a suit; and if
they are such as are reasonably likely to communicate to him
information of the proceeding against him, and are in good faith
designed to give him such information, and an opportunity to defend
is provided for him in the event of his appearance in the suit, it
is not competent to the judiciary to declare that such proceeding
is void as not being by due process of law.

															5. Whether the property of such nonresident shall be seized Page 95 U. S. 738 upon attachment as the commencement of a suit which shall be
carried into judgment and execution, upon which it shall then be
sold, or whether it shall be sold upon an execution and judgment
without such preliminary seizure, is a matter not of constitutional
power, but of municipal regulation only.

															To say that a sovereign State has the power to ordain that the
property of nonresidents within its territory may be subjected to
the payment of debts due to its citizens, if the property is levied
upon at the commencement of a suit, but that it has not such power
if the property is levied upon at the end of the suit, is a
refinement and a depreciation of a great general principle that, in
my judgment, cannot be sustained.

															A reference to the statutes of the different States, and to the
statutes of the United States, and to the decided cases, and a
consideration of the principles on which they stand, will more
clearly exhibit my view of the question.

															The statutes are of two classes: first, those which authorize
the commencement of actions by publication, accompanied by an
attachment which is levied upon property, more or less, of an
absent debtor; second, those giving the like mode of commencing a
suit without an attachment.

															The statute of Oregon relating to publication of summons, supra, p. 95 U. S. 718 ,
under which the question arises, is nearly a transcript of a series
of provisions contained in the New York statute, adopted thirty
years since. The latter authorizes the commencement of a suit
against a nonresident by the publication of an order for his
appearance, for a time not less than six weeks, in such newspapers
as shall be most likely to give notice to him, and the deposit of a
copy of the summons and complaint in the post office, directed to
him at his residence, if it can be ascertained; and provides for
the allowance to defend the action before judgment, and within
seven years after its rendition, upon good cause shown, and that,
if the defence be successful, restitution shall be ordered. It then
declares: "But the title to property sold under such judgment to a
purchaser in good faith shall not be thereby affected." Code,
sects. 34, 35; 5 Edm.Rev.Stat. of N.Y., pp. 37-39.

															Provisions similar in their effect, in authorizing the
commencement of suits by attachment against absent debtors, in Page 95 U. S. 739 which all of the property of the absent debtor, real and
personal, not merely that seized upon the attachment, is placed
under the control of trustees, who sell it for the benefit of all
the creditors, and make just distribution thereof, conveying
absolute title to the property sold have been upon the statute book
of New York for more than sixty years. 2 id., p. 2 and
following; 1 Rev.Laws, 1813, p. 157.

															The statute of New York, before the Code, respecting proceedings
in chancery where absent debtors are parties, had long been in use
in that State, and was adopted in all cases of chancery
jurisdiction. Whenever a defendant resided out of the State, his
appearance might be compelled by publication in the manner pointed
out. A decree might pass against him, and performance be compelled
by sequestration of his real or personal property, or by causing
possession of specific property to be delivered, where that relief
is sought. T he relief was not confined to cases of mortgage
foreclosure, or where there was a specific claim upon the property,
but included cases requiring the payment of money as well. 2
Edm.Rev.Stat. N.Y., pp. 193-195; 186, m.

															I doubt not that many valuable titles are now held by virtue of
the provisions of these statutes.

															The statute of California authorizes the service of a summons on
a nonresident defendant by publication, permitting him to come in
and defend upon the merits within one year after the entry of
judgment. Code, sects. 10,412, 10,473. In its general character, it
is like the statutes of Oregon and New York already referred
to.

															The Code of Iowa, sect. 2618, that of Nevada, sect. 1093, and
that of Wisconsin, are to the same general effect. The Revised
Statutes of Ohio, sects. 70, 75, 2 Swan & Critchfield, provide
for a similar publication, and that the defendant may come in to
defend within five years after the entry of the judgment, but that
the title to property held by any purchaser in good faith under the
judgment shall not be affected thereby.

															The attachment laws of New Jersey, Nixon Dig. (4th ed.), p. 55,
are like those of New York already quoted, by which title may be
transferred to all the property of a nonresident debtor. And the
provisions of the Pennsylvania statute regulating Page 95 U. S. 740 proceedings in equity, Brightly's Purden's Dig., p. 5988, sects.
51, 52, give the same authority in substance, and the same result
is produced as under the New York statute.

															Without going into a wearisome detail of the statutes of the
various States, it is safe to say that nearly every State in the
Union provides a process by which the lands and other property of a
nonresident debtor may be subjected to the payment of his debts,
through a judgment or decree against the owner, obtained upon a
substituted service of the summons or writ commencing the
action.

															The principle of substituted service is also a rule of property
under the statutes of the United States.

															The act of Congress "to amend the law of the District of
Columbia in relation to judicial proceedings therein," approved
Feb. 23, 1867, 14 Stat. 403, contains the same general provisions.
It enacts (sect. 7) that publication may be substituted for
personal service when the defendant cannot be found in suits for
partition, divorce, by attachment, for the foreclosure of mortgages
and deeds of trust, and for the enforcement of mechanics' liens and
all other liens against real or personal property, and in all
actions at law or in equity having for their immediate object the
enforcement or establishment of any lawful right, claim, or demand
to or against any real or personal property within the jurisdiction
of the court.

															A following section points out the mode of proceeding, and
closes in these words:

															"The decree, besides subjecting the thing upon which the lien
has attached to the satisfaction of the plaintiff's demand against
the defendant, shall adjudge that the plaintiff recover his demand
against the defendant, and that he may have execution thereof as at
law."

															Sect. 10.

															A formal judgment against the debtor is thus authorized by means
of which any other property of the defendant within the
jurisdiction of the court, in addition to that which is the subject
of the lien, may be sold, and the title transferred to the
purchaser.

															All these statutes are now adjudged to be unconstitutional and
void. The titles obtained under them are not of the value Page 95 U. S. 741 of the paper on which they are recorded, except where a
preliminary attachment was issued.

															Some of the statutes and several of the authorities I cite go
further than the present case requires. In this case, property
lying in the State where the suit was brought, owned by the
nonresident debtor, was sold upon the judgment against him, and it
is on the title to that property that the controversy turns.

															The question whether, in a suit commenced like the present one,
a judgment can be obtained which, if sued upon in another State,
will be conclusive against the debtor, is not before us; nor does
the question arise as to the faith and credit to be given in one
State to a judgment recovered in another. The learning on that
subject is not applicable. The point is simply whether land lying
in the same State may be subjected to process at the end of a suit
thus commenced.

															It is here necessary only to maintain the principle laid down by
Judge Cooley in his work on Constitutional Limitations, p. 404, and
cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer 93,
in these words:

															"The fact that process was not personally served is a conclusive
objection to the judgment as a personal claim, unless the defendant
caused his appearance to be entered in the attachment proceedings.
Where a party has property in a State, and resides elsewhere, his
property is justly subject to all valid claims that may exist
against him there; but, beyond this, due process of law would
require appearance or personal service before the defendant could
be personally bound by any judgment rendered."

															The learned author does not make it a condition that there
should be a preliminary seizure of the property by attachment; he
lays down the rule that all a person's property in a State may be
subjected to all valid claims there existing against him.

															The objection now made that suits commenced by substituted
service, as by publication, and judgments obtained without actual
notice to the debtor, are in violation of that constitutional
provision that no man shall be deprived of his property "without
due process of law," has often been presented.

															In Matter of the Empire City Bank, 18 N.Y. 199,
which Page 95 U. S. 742 was a statutory proceeding to establish and to enforce the
responsibility of the stockholders of a banking corporation, and
the proceedings in which resulted in a personal judgment against
the stockholders for the amount found due, the eminent and learned
Judge Denio, speaking as the organ of the Court of Appeals,
says:

															"The notice of hearing is to be personal, or by service at the
residence of the parties who live in the county, or by
advertisement as to others. It may therefore happen that some of
the persons who are made liable will not have received actual
notice, and the question is whether personal service of process or
actual notice to the party is essential to constitute due process
of law. We have not been referred to any adjudication holding that
no man's right of property can be affected by judicial proceedings
unless he have personal notice. It may be admitted that a statute
which should authorize any debt or damages to be adjudged against a
person upon a purely ex parte proceeding, without a
pretence of notice or any provision for defending, would be a
violation of the Constitution, and be void; but where the
legislature has prescribed a kind of notice by which it is
reasonably probable that the party proceeded against will be
apprised of what is going on against him, and an opportunity is
afforded him to defend, I am of the opinion that the courts have
not the power to pronounce the proceeding illegal. The legislature
has uniformly acted upon that understanding of the
Constitution."

															Numerous provisions of the statutes of the State are commented
upon, after which he proceeds:

															"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
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. " Page 95 U. S. 743 In Happy v. Mosher, 48 id. 313, the court
say:

															"An approved definition of due process of law is 'law in its
regular administration through courts of justice.' 2 Kent Com. 13.
It need not be a legal proceeding according to the course of the
common law, neither must there be personal notice to the party
whose property is in question. It is sufficient if a kind of notice
is provided by which it is reasonably probable that the party
proceeded against will be apprised of what is going on against him,
and an opportunity afforded him to defend."

															The same language is used in Westervelt v. Gregg, 12 id. 202, and in Campbell v. Evans, 45 id. 356. Campbell v. Evans and The Empire
City Bank are cases not of proceedings against property to
enforce a lien or claim, but, in each of them, a personal judgment
in damages was rendered against the party complaining.

															It is undoubtedly true, that, in many cases where the question
respecting due process of law has arisen, the case in hand was that
of a proceeding in rem. It is true also, as is asserted,
that the process of a State cannot be supposed to run beyond its
own territory. It is equally true, however, that, in every instance
where the question has been presented, the validity of substituted
service, which is used to subject property within the State
belonging to a nonresident to a judgment obtained by means thereof
has been sustained. I have found no case in which it is adjudged
that a statute must require a preliminary seizure of such property
as necessary to the validity of the proceeding against it, or that
there must have been a previous specific lien upon it; that is, I
have found no case where such has been the judgment of the court
upon facts making necessary the decision of the point. On the
contrary, in the case of the attachment laws of New York and of New
Jersey, which distribute all of the nonresident's property, not
merely that levied on by the attachment, and in several of the
reported cases already referred to, where the judgment was
sustained, neither of these preliminary facts existed.

															The case of Galpin v.
Page , reported in 18 Wall. 350 and again in 3
Sawyer 93, is cited in hostility to the views I have expressed.
There may be general expressions which will justify Page 95 U. S. 744 this suggestion, but the judgment is in harmony with those
principles. In the case as reported in this Court, it was held that
the title of the purchaser under a decree against a nonresident
infant was invalid, for two reasons: 1st, that there was no
jurisdiction of the proceeding under the statute of California, on
account of the entire absence of an affidavit of nonresidence, and
of diligent inquiry for the residence of the debtor; 2d, the
absence of any order for publication in Eaton's case -- both of
which are conditions precedent to the jurisdiction of the court to
take any action on the subject. The title was held void, also, for
the reason that the decree under which it was obtained had been
reversed in the State court, and the title was not taken at the
sale, nor held then by a purchaser in good faith, the purchase
being made by one of the attorneys in the suit, and the title being
transferred to his law partner after the reversal of the decree.
The court held that there was a failure of jurisdiction in the
court under which the plaintiff claimed title, and that he could
not recover. The learned justice who delivered the opinion in the
Circuit Court and in this Court expressly affirms the authority of
a State over persons not only, but property as well, within its
limits, and this by means of a substituted service. The judgment so
obtained, he insists, can properly be used as a means of reaching
property within the State, which is thus brought under the control
of the court and subjected to its judgment. This is the precise
point in controversy in the present action.

															The case of Cooper v.
Reynolds , 10 Wall. 308, is cited for the same
purpose. There, the judgment of the court below, refusing to give
effect to a judgment obtained upon an order of publication against
a nonresident, was reversed in this Court. The suit was commenced,
or immediately accompanied (it is not clear which), by an
attachment which was levied upon the real estate sold, and for the
recovery of which this action was brought. This Court sustained the
title founded upon the suit commenced against the nonresident by
attachment. In the opinion delivered in that case, there may be
remarks, by way of argument or illustration, tending to show that a
judgment obtained in a suit not commenced by the levy of an
attachment will not give title to land purchased under it. They
are, Page 95 U. S. 745 however, extrajudicial, the decision itself sustaining the
judgment obtained under the State statute by publication. Webster v.
Reid , 11 How. 437, is also cited. There, the action
involved the title to certain lands in the State of Iowa, being
lands formerly belonging to the half-breeds of the Sac and Fox
tribes; and title was claimed against the Indian right under the
statutes of June 2, 1838, and January, 1839. By these statutes,
commissioners were appointed who were authorized to hear claims for
accounts against the Indians, and commence actions for the same,
giving a notice thereof of eight weeks in the Iowa "Territorial
Gazette," and to enter up judgments which should be a lien on the
lands. It was provided that it should not be necessary to name the
defendants in the suits, but the words "owners of the half-breed
lands lying in Lee County" should be a sufficient designation of
the defendants in such suits; and it provided that the trials
should be by the court, and not by a jury. It will be observed that
the lands were not only within the limits of the territory of Iowa,
but that all the Indians who were made defendants under the name
mentioned were also residents of Iowa, and, for aught that appears
to the contrary, of the very county of Lee in which the proceeding
was taken. Nonresidence was not a fact in the case. Moreover, they
were Indians, and, presumptively, not citizens of any State, and
the judgments under which the lands were sold were rendered by the
commissioners for their own services under the act.

															The court found abundant reasons, six in number, for refusing to
sustain the title thus obtained. The act was apparently an attempt
dishonestly to obtain the Indian title, and not intended to give a
substitution for a personal service which would be likely, or was
reasonably designed, to reach the persons to be affected.

															The case of Voorhees v.
Jackson , 10 Pet. 449, affirmed the title levied
under the attachment laws of Ohio, and laid down the principle of
assuming that all had been rightly done by a court having general
jurisdiction of the subject matter.

															In Cooper v. Smith, 25 Iowa, 269, it is said that where
no process is served on the defendant, nor property attached, nor
garnishee charged, nor appearance entered, a judgment based Page 95 U. S. 746 on a publication of the pendency of the suit will be void, and
may be impeached, collaterally or otherwise, and forms no bar to a
recovery in opposition to it, nor any foundation for a title
claimed under it. The language is very general, and goes much
beyond the requirement of the case, which was an appeal from a
personal judgment obtained by publication against the defendant,
and where, as the court say, the petition was not properly
verified. All that the court decided was that this judgment should
be reversed. This is quite a different question from the one before
us. Titles obtained by purchase at a sale upon an erroneous
judgment are generally good, although the judgment itself be
afterwards reversed. McGoon v.
Scales , 9 Wall. 311.

															In Darrance v. Preston, 18 Iowa, 396, the distinction
is pointed out between the validity of a judgment as to the amount
realized from the sale of property within the jurisdiction of the
court and its validity beyond that amount. Picquet v.
Swan, 5 Mas. 35; Bissell v. Briggs, 9 Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are cited, but neither
of them in its facts touches the question before us.

															In Drake on Attachment, the rule is laid down in very general
language; but none of the cases cited by him will control the
present case. They are the following:-- Eaton v. Bridger, 33 N. H. 228, was decided upon the
peculiar terms of the New Hampshire statute, which forbids the
entry of a judgment unless the debtor was served with process, or
actually appeared and answered in the suit. The court say the
judgment was "not only unauthorized by law, but rendered in
violation of its express provisions." Johnson v. Dodge was a proceeding in the same action to
obtain a reversal on appeal of the general judgment, and did not
arise upon a contest for property sold under the judgment. Carleton v. Washington Insurance Co., 35 id. 162,
and Bruce v. Cloutman, 45 id. 37, are to the same
effect and upon the same statute. Smith v. McCutchen, 38 Mo. 415, was a motion in the
former suit to set aside the execution by a garnishee, and it was
held that the statute was intended to extend to that class of
cases. Abbott v. Shepard, 44 id. 273, is to the
same effect, and is based upon Smith v. McCutchen,
supra. Page 95 U. S. 747 So, in Eastman v. Wadleigh, 65 Me. 251, the question
arose in debt on the judgment, not upon a holding of land purchased
under the judgment. It was decided upon the express language of the
statute of Maine, strongly implying the power of the legislature to
make it otherwise, had they so chosen.

															It is said that the case where a preliminary seizure has been
made, and jurisdiction thereby conferred, differs from that where
the property is seized at the end of the action, in this: in the
first case, the property is supposed to be so near to its owner
that, if seizure is made of it, he will be aware of the fact, and
have his opportunity to defend, and jurisdiction of the person is
thus obtained. This, however, is matter of discretion and of
judgment only. Such seizure is not in itself notice to the
defendant, and it is not certain that he will by that means receive
notice. Adopted as a means of communicating it, and although a very
good means, it is not the only one, nor necessarily better than a
publication of the pendency of the suit, made with an honest
intention to reach the debtor. Who shall assume to say to the
legislature that, if it authorizes a particular mode of giving
notice to a debtor, its action may be sustained, but, if it adopts
any or all others, its action is unconstitutional and void? The
rule is universal that modes, means, questions of expediency or
necessity are exclusively within the judgment of the legislature,
and that the judiciary cannot review them. This has been so held in
relation to a bank of the United States, to the legal tender act,
and to cases arising under other provisions of the
Constitution.

															In Jarvis v. Barrett, 14 Wis. 591, such is the holding.
The court say:

															"The essential fact on which the publication is made to depend
is property of the defendant in the State, and not whether it has
been attached. . . . There is no magic about the writ [of
attachment] which should make it the exclusive remedy. The same
legislative power which devised it can devise some other, and
declare that it shall have the same force and effect. The
particular means to be used are always within the control of the
legislature, so that the end be not beyond the scope of legislative
power."

															If the legislature shall think that publication and deposit in
the post office are likely to give the notice, there seems to
be Page 95 U. S. 748 nothing in the nature of things to prevent their adoption in
lieu of the attachment. The point of power cannot be thus
controlled.

															That a State can subject land within its limits belonging to
nonresident owners to debts due to its own citizens as it can
legislate upon all other local matters -- that it can prescribe the
mode and process by which it is to be reached -- seems to me very
plain.

															I am not willing to declare that a sovereign State cannot
subject the land within its limits to the payment of debts due to
its citizens, or that the power to do so depends upon the fact
whether its statute shall authorize the property to be levied upon
at the commencement of the suit or at its termination. This is a
matter of detail, and I am of opinion that, if reasonable notice be
given, with an opportunity to defend when appearance is made, the
question of power will be fully satisfied.


U.S. Supreme Court Louisville & Nashville R. Co. v.
Mottley, 211
U.S. 149 (1908) Louisville and Nashville Railroad
Company v. Mottley No. 37 Argued October 13,
1908 Decided November 16,
1908 211
U.S. 149 APPEAL FROM THE CIRCUIT COURT OF
THE UNITED STATES FOR THE WESTERN DISTRICT OF
KENTUCKY Syllabus The jurisdiction of the circuit court is defined and limited by
statute; and, even if not questioned by either party, this Court
will, of its own motion, see to it that such jurisdiction is not
exceeded.

															A suit arises under the Constitution and laws of the United
States, so as to give the circuit court jurisdiction on that
ground, only when plaintiff's statement of his own cause is based
thereon; that jurisdiction cannot be based on an alleged
anticipated defense which may Page 211 U. S. 150 be set up and which is invalid under some law or provision of
the Constitution of the United States.

															The circuit court has no jurisdiction, in the absence of diverse
citizenship, of a suit brought against a railroad corporation to
enforce an alleged contract for an annual pass because, as stated
in the bill, the refusal is based solely on the anti-pass
provisions of the Hepburn Interstate Commerce Act of June 29, 1906,
c. 3591, 34 Stat. 584.

															The practice in such cases is to reverse the judgment and remit
the case to the Circuit Court with instructions to dismiss the suit
for want of jurisdiction.

															The appellees (husband and wife), being residents and citizens
of Kentucky, brought this suit in equity in the Circuit Court of
the United States for the Western District of Kentucky against the
appellant, a railroad company and a citizen of the same state. The
object of the suit was to compel the specific performance of the
following contract:

															"Louisville, Ky., Oct. 2nd 1871"

															"The Louisville & Nashville Railroad Company, in
consideration that E. L. Mottley and wife, Annie E. Mottley, have
this day released company from all damages or claims for damages
for injuries received by them on the 7th of September, 1871, in
consequence of a collision of trains on the railroad of said
company at Randolph's Station, Jefferson County, Kentucky, hereby
agrees to issue free passes on said railroad and branches now
existing or to exist, to said E. L. & Annie E. Mottley for the
remainder of the present year, and thereafter to renew said passes
annually during the lives of said Mottley and wife or either of
them."

															The bill alleged that, in September, 1871, plaintiffs, while
passengers upon the defendant railroad, were injured by the
defendant's negligence, and released their respective claims for
damages in consideration of the agreement for transportation during
their lives, expressed in the contract. It is alleged that the
contract was performed by the defendant up to January 1, 1907, when
the defendant declined to renew the passes. The bill then alleges
that the refusal to comply with the contract Page 211 U. S. 151 was based solely upon that part of the Act of Congress of June
29, 1906, 34 Stat. 584, c. 3591, which forbids the giving of free
passes or free transportation. The bill further alleges: first,
that the act of Congress referred to does not prohibit the giving
of passes under the circumstances of this case, and second, that,
if the law is to be construed as prohibiting such passes, it is in
conflict with the Fifth Amendment of the Constitution, because it
deprives the plaintiffs of their property without due process of
law. The defendant demurred to the bill. The judge of the circuit
court overruled the demurrer, entered a decree for the relief
prayed for, and the defendant appealed directly to this Court.

															MR. JUSTICE MOODY, after making the foregoing statement,
delivered the opinion of the Court.

															Two questions of law were raised by the demurrer to the bill,
were brought here by appeal, and have been argued before us. They
are, first, whether that part of the Act of Congress of June 29,
1906, 34 Stat. 584, c. 3591, which forbids the giving of free
passes or the collection of any different compensation for
transportation of passengers than that specified in the tariff
filed makes it unlawful to perform a contract for transportation of
persons who, in good faith, before the passage of the act, had
accepted such contract in satisfaction of a valid cause of action
against the railroad; and, second, whether the statute, if it
should be construed to render such a contract unlawful, is in Page 211 U. S. 152 violation of the Fifth Amendment of the Constitution of the
United States. We do not deem it necessary, however, to consider
either of these questions, because, in our opinion, the court below
was without jurisdiction of the cause. Neither party has questioned
that jurisdiction, but it is the duty of this Court to see to it
that the jurisdiction of the circuit court, which is defined and
limited by statute, is not exceeded. This duty we have frequently
performed of our own motion. Mansfield &c. Railway Company
v. Swan, 111 U. S. 379 , 111 U. S. 382 ; King Bridge Company v. Otoe County, 120 U.
S. 225 ; Blacklock v. Small, 127 U. S.
96 , 127 U. S. 105 ; Cameron v. Hodges, 127 U. S. 322 , 127 U. S. 326 ; Metcalf v. Watertown, 128 U. S. 586 , 128 U. S. 587 ; Continental National Bank v. Buford, 191
U. S. 120 .

															There was no diversity of citizenship, and it is not and cannot
be suggested that there was any ground of jurisdiction except that
the case was a "suit . . . arising under the Constitution or laws
of the United States." 25 Stat. 434, c. 866. It is the settled
interpretation of these words, as used in this statute, conferring
jurisdiction, that a suit arises under the Constitution and laws of
the United States only when the plaintiff's statement of his own
cause of action shows that it is based upon those laws or that
Constitution. It is not enough that the plaintiff alleges some
anticipated defense to his cause of action, and asserts that the
defense is invalidated by some provision of the Constitution of the
United States. Although such allegations show that very likely, in
the course of the litigation, a question under the Constitution
would arise, they do not show that the suit -- that is, the
plaintiff's original cause of action -- arises under the
Constitution. In Tennessee v. Union & Planters' Bank, 152 U. S. 454 , the
plaintiff, the State of Tennessee, brought suit in the circuit
court of the United States to recover from the defendant certain
taxes alleged to be due under the laws of the state. The plaintiff
alleged that the defendant claimed an immunity from the taxation by
virtue of its charter, and that therefore the tax was void because
in violation of the provision of the Constitution of the United Page 211 U. S. 153 states, which forbids any state from passing a law impairing the
obligation of contracts. The cause was held to be beyond the
jurisdiction of the circuit court, the court saying, by Mr. Justice
Gray (p. 152 U. S.
464 ):

															"A suggestion of one party that the other will or may set up a
claim under the Constitution or laws of the United States does not
make the suit one arising under that Constitution or those
laws."

															Again, in Boston & Montana Consolidated Copper &
Silver Mining Company v. Montana Ore Purchasing Company, 188 U. S. 632 , the
plaintiff brought suit in the circuit court of the United States
for the conversion of copper ore and for an injunction against its
continuance. The plaintiff then alleged, for the purpose of showing
jurisdiction, in substance, that the defendant would set up in
defense certain laws of the United States. The cause was held to be
beyond the jurisdiction of the circuit court, the Court saying, by
MR. JUSTICE PECKHAM (pp. 188 U. S.
638 -639):

															"It would be wholly unnecessary and improper, in order to prove
complainant's cause of action, to go into any matters of defense
which the defendants might possibly set up, and then attempt to
reply to such defense, and thus, if possible, to show that a
federal question might or probably would arise in the course of the
trial of the case. To allege such defense and then make an answer
to it before the defendant has the opportunity to itself plead or
prove its own defense is inconsistent with any known rule of
pleading, so far as we are aware, and is improper."

															"The rule is a reasonable and just one that the complainant in
the first instance shall be confined to a statement of its cause of
action, leaving to the defendant to set up in his answer what his
defense is, and, if anything more than a denial of complainant's
cause of action, imposing upon the defendant the burden of proving
such defense."

															"Conforming itself to that rule, the complainant would not, in
the assertion or proof of its cause of action, bring up a single
federal question. The presentation of its cause of action would not
show that it was one arising under the Constitution or laws of the
United States. " Page 211 U. S. 154 "The only way in which it might be claimed that a federal
question was presented would be in the complainant's statement of
what the defense of defendants would be, and complainant's answer
to such defense. Under these circumstances, the case is brought
within the rule laid down in Tennessee v. Union & Planters'
Bank, supra. That case has been cited and approved many times
since."

															The interpretation of the act which we have stated was first
announced in Metcalf v. Watertown, 128
U. S. 286 , and has since been repeated and applied in Colorado Central Consolidating Mining Company v. Turck, 150 U. S. 138 , 150 U. S. 142 ; Tennessee v. Union & Planters' Bank, 152 U.
S. 454 , 152 U. S. 459 ; Chappell v. Waterworth, 155 U. S. 102 , 155 U. S. 107 ; Postal Telegraph Cable Company v. Alabama, 155 U.
S. 482 , 155 U. S. 487 ; Oregon Short Line & Utah Northern Railway Company v.
Skottowe, 162 U. S. 490 , 162 U. S. 494 ; Walker v. Collins, 167 U. S. 57 , 167 U. S. 59 ; Muse v. Arlington Hotel Co., 168 U.
S. 430 , 168 U. S. 436 ; Galveston &c. Railway v. Texas, 170 U.
S. 226 , 170 U. S. 236 ; Third Street & Suburban Railway Company v. Lewis, 173 U. S. 457 , 173 U. S. 460 ; Florida Central & Peninsular Railroad Company v. Bell, 176 U. S. 321 , 176 U. S. 327 ; Houston & Texas Central Railroad Company v. Texas, 177 U. S. 66 , 177 U. S. 78 ; Arkansas v. Kansas & Texas Coal Company, 183 U.
S. 185 , 183 U. S. 188 ; Vicksburg Waterworks Company v. Vicksburg, 185 U. S.
65 , 185 U. S. 68 ; Boston & Montana Consolidated Copper & Silver Mining
Company v. Montana Ore Purchasing Co., 188 U.
S. 632 , 188 U. S. 639 ; Minnesota v. Northern Securities Company, 194 U. S.
48 , 194 U. S. 63 ; Joy v. City of St. Louis, 201 U.
S. 332 , 201 U. S. 340 ; Devine v. Los Angeles, 202 U. S. 313 , 202 U. S. 334 .
The application of this rule to the case at bar is decisive against
the jurisdiction of the circuit court.

															It is ordered that the Judgment be reversed, and the case remitted to the circuit
court with instructions to dismiss the suit for want of
jurisdiction.