U.S. Supreme Court Hess v. Pawloski, 274
U.S. 352 (1927) Hess v. Pawloski No. 263 Argued April 18, 1927 Decided May 16, 1927 274
U.S. 352 ERROR TO THE SUPERIOR COURT
OF WORCESTER COUNTY,
MASSACHUSETTS Syllabus Massachusetts Gen. Ls., c. 90, as amended by Stat. 1923, c. 431,
§ 2, which declares that use of the state's highways by a
nonresident motorist shall be deemed equivalent to an appointment
by him of the registrar as his attorney upon whom process may be
served Page 274 U. S. 353 in any action growing out of any accident or collision in which
the nonresident may be involved while operating a motor vehicle
upon such highway, and which provides for service in such case by
leaving a copy of the process and a fee with the registrar or in
his office, but conditions the sufficiency of the service upon the
sending of notice of it forthwith and a copy of the process to the
defendant by registered mail and upon his actually receiving and
receipting for the same, and which allows the nonresident when so
served such continuances as may be necessary to afford him a
reasonable opportunity to defend the action, held not in
conflict with the Due Process Clause of the Fourteenth Amendment. Kane v. New Jersey, 242 U. S. 160 . P. 274 U. S.
355 .

															20 Mass. 22, 253 Mass. 478 affirmed.

															Error to a judgment of the Superior Court of Worcester County,
Massachusetts, entered on rescript from the Supreme Judicial Court,
sustaining a verdict for damages in an action for personal injuries
inflicted on Pawloski, the plaintiff, by the negligent driving of a
motor vehicle, by Hess, nonresident defendant, on a Massachusetts
highway.

															MR. JUSTICE BUTLER delivered the opinion of the Court.

															This action was brought by defendant in error to recover damages
for personal injuries. The declaration alleged that plaintiff in
error negligently and wantonly drove a motor vehicle on a public
highway in Massachusetts, and that, by reason thereof, the vehicle
struck and injured defendant in error. Plaintiff in error is a
resident of Pennsylvania. No personal service was made on him, and
no property belonging to him was attached. The service of process
was made in compliance with c. Page 274 U. S. 354 90, General Laws of Massachusetts, as amended by Stat. 1923, c.
431, § 2, the material parts of which follow:

															"The acceptance by a nonresident of the rights and privileges
conferred by section three or four, as evidence by his operating a
motor vehicle thereunder, or the operation by a nonresident of a
motor vehicle on a public way in the commonwealth other than under
said sections, shall be deemed equivalent to an appointment by such
nonresident of the registrar or his successor in office to be his
true and lawful attorney upon whom may be served all lawful
processes in any action or proceeding against him growing out of
any accident or collision in which said nonresident may be involved
while operating a motor vehicle on such a way, and said acceptance
or operation shall be a signification of his agreement that any
such process against him which is so served shall be of the same
legal force and validity as if served on him personally. Service of
such process shall be made by leaving a copy of the process with a
fee of two dollars in the hands of the registrar, or in his office,
and such service shall be sufficient service upon the said
nonresident, provided that notice of such service and a copy of the
process are forthwith sent by registered mail by the plaintiff to
the defendant, and the defendant's return receipt and the
plaintiff's affidavit of compliance herewith are appended to the
writ and entered with the declaration. The court in which the
action is pending may order such continuances as may be necessary
to afford the defendant reasonable opportunity to defend the
action."

															Plaintiff in error appeared specially for the purpose of
contesting jurisdiction, and filed an answer in abatement and moved
to dismiss on the ground that the service of process, if sustained,
would deprive him of his property without due process of law in
violation of the Fourteenth Amendment. The court overruled the
answer in abatement and denied the motion. The Supreme Judicial Page 274 U. S. 355 Court held the statute to be a valid exercise of the police
power, and affirmed the order. Pawloski v. Hess, 250 Mass.
22. At the trial, the contention was renewed, and again denied.
Plaintiff in error excepted. The jury returned a verdict for
defendant in error. The exceptions were overruled by the Supreme
Judicial Court. Pawloski v. Hess, 253 Mass. 478. Thereupon
the superior court entered judgment. The writ of error was allowed
by the chief justice of that court.

															The question is whether the Massachusetts enactment contravenes
the due process clause of the Fourteenth Amendment.

															The process of a court of one state cannot run into another and
summon a party there domiciled to respond to proceedings against
him. Notice sent outside the state to a nonresident is unavailing
to give jurisdiction in an action against him personally for money
recovery. Pennoyer v. Neff, 95 U.
S. 741 . There must be actual service within the state of
notice upon him or upon some one authorized to accept service for
him. Goldey v. Morning News, 156 U.
S. 518 . A personal judgment rendered against a
nonresident, who has neither been served with process nor appeared
in the suit, is without validity. McDonald v. Mabee, 243 U. S. 90 . The
mere transaction of business in a state by nonresident natural
persons does not imply consent to be bound by the process of its
courts. Flexner v. Farson, 248 U.
S. 289 . The power of a state to exclude foreign
corporations, although not absolute, but qualified, is the ground
on which such an implication is supported as to them. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U. S. 93 , 243 U. S. 96 .
But a state may not withhold from nonresident individuals the right
of doing business therein. The privileges and immunities clause of
the Constitution, § 2, Art. IV, safeguards to the citizens of one
state the right "to pass through, or to reside in any other state
for purposes of trade, agriculture, professional pursuits, or
otherwise." Page 274 U. S. 356 And it prohibits state legislation discriminating against
citizens of other states. Corfield v. Coryell, 4 Wash.
C.C. 371, 381. Ward v.
Maryland , 12 Wall. 418, 79 U. S. 430 ; Paul v.
Virginia , 8 Wall. 168, 75 U. S.
180 .

															Motor vehicles are dangerous machines, and, even when skillfully
and carefully operated, their use is attended by serious dangers to
persons and property. In the public interest, the state may make
and enforce regulations reasonable calculated to promote care on
the part of all, residents and nonresidents alike, who use its
highways. The measure in question operates to require a nonresident
to answer for his conduct in the state where arise causes of action
alleged against him, as well as to provide for a claimant a
convenient method by which he may sue to enforce his rights. Under
the statute, the implied consent is limited to proceedings growing
out of accidents or collisions on a highway in which the
nonresident may be involved. It is required that he shall actually
receive and receipt for notice of the service and a copy of the
process. And it contemplates such continuances as may be found
necessary to give reasonable time and opportunity for defense. It
makes no hostile discrimination against nonresidents, but tends to
put them on the same footing as residents. Literal and precise
equality in respect of this matter is not attainable; it is not
required. Canadian Northern Ry. Co. v. Eggen, 252 U.
S. 553 , 252 U. S.
561 -562. The state's power to regulate the use of its
highways extends to their use by nonresidents, as well as by
residents. Hendrick v. Maryland, 235 U.
S. 610 , 235 U. S. 622 .
And, in advance of the operation of a motor vehicle on its highway
by a nonresident, the state may require him to appoint one of its
officials as his agent on whom process may be served in proceedings
growing out of such use. Kane v. New Jersey, 242 U.
S. 160 , 242 U. S. 167 .
That case recognized power of the state to exclude a nonresident
until the formal appointment is made. And, having the power so to
exclude, the state Page 274 U. S. 357 may declare that the use of the highway by the nonresident is
the equivalent of the appointment of the registrar as agent on whom
process may be served. Cf. Pennsylvania Fire Insurance Co. v.
Gold Issue Mining Co., supra, 243 U. S. 96 ; Lafayette Ins. Co. v.
French , 18 How. 404, 59 U. S.
407 -408. The difference between the formal and implied
appointment is not substantial, so far as concerns the application
of the due process clause of the Fourteenth Amendment. Judgment affirmed.

Summary: The Supreme Court upheld a Massachusetts law that allowed for service of process on nonresident motorists involved in accidents in the state by serving the registrar of motor vehicles, with notice sent to the nonresident by registered mail. The Court found that the law did not violate the Due Process Clause of the Fourteenth Amendment, as it provided sufficient notice and opportunities for defense, and treated nonresidents and residents equally in terms of legal responsibilities when using state highways.


U.S. Supreme Court Shoshone Mining Co. v. Rutter, 177
U.S. 505 (1900) Shoshone Mining Co. v.
Rutter No. 208 Argued March 21, 1900 Decided April 30,
1900 177
U.S. 505 APPEAL FROM THE CIRCUIT
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus A suit brought in support of an adverse claim under Rev.Stat. §§
2325, 2326, is not a suit arising under the laws of the United
States in such a sense as to confer jurisdiction on a federal
court, regardless of the citizenship of the parties. Blackburn v. Portland Gold Mining Co., 175 U.
S. 571 , reexamined and affirmed to this point.

															Although suits like the present one may sometimes so present
questions arising under the Constitution or laws of the United
States that a federal court will have jurisdiction, yet the mere
fact that a suit is an adverse suit, authorized by the statutes of
Congress, is not, in and of itself, sufficient to vest jurisdiction
in the federal courts.

															The case is stated in the opinion.

															MR. JUSTICE BREWER delivered the opinion of the court.

															In Blackburn v. Portland Gold Mining Company, 175 U. S. 571 ,
decided January 8, 1900, we held that a suit brought in support of
an adverse claim under sections 2325 and 2326 of the Revised
Statutes was not a suit arising under the laws of the United States
in such a sense as to confer jurisdiction on a federal court,
regardless of the citizenship of the parties. In this case, the
same question is again presented, and has been elaborately argued
by counsel against the opinion we then announced. Its importance,
as well as the great ability with which it was argued by counsel
for appellee, have induced a careful reexamination of the question.
While it may be conceded Page 177 U. S. 506 that the matter is not free from doubt, nevertheless our
reexamination has not led us to change our former views. We deem it
unnecessary to restate all the reasons given in the opinion then
delivered, and yet some matters may appropriately be noticed.

															By the Constitution, Article III, Section 2, the judicial power
of the United States extends "to all cases, in law and equity,
arising under this Constitution, the laws of the United States" and
to controversies "between citizens of different states." By Article
IV, Section 3, cl. 2, Congress is given "power to dispose of and
make all needful rules and regulations respecting the territory or
other property belonging to the United States." Under these
clauses, Congress might doubtless provide that any controversy of a
judicial nature arising in or growing out of the disposal of the
public lands should be litigated only in the courts of the United
States. The question therefore is not one of the power of Congress,
but of its intent. It has so constructed the judicial system of the
United States that the great bulk of litigation respecting rights
of property, although those rights may in their inception go back
to some law of the United States, is in fact carried on in the
courts of the several states. It has provided that the federal
courts shall have exclusive jurisdiction of admiralty and patent
litigation, and jurisdiction concurrent with the state courts of
suits arising under the Constitution or laws of the United States.
Rev.Stat. § 629; 25 Stat. 433, c. 866.

															When, in section 2326, Rev.Stat., Congress authorized that which
is familiarly known in the mining regions as an "adverse suit," it
simply declared that the adverse claimant should commence
proceedings "in a court of competent jurisdiction." It did not in
express language prescribe either a federal or a state court, and
did not provide for exclusive or concurrent jurisdiction. If it had
intended that the jurisdiction should be vested only in the federal
courts, it would undoubtedly have said so. If it had intended that
any new rule of demarcation between the jurisdiction of the federal
and state courts should apply, it would likewise undoubtedly have
said so. Leaving the matter as it did, it unquestionably meant that
the competency of Page 177 U. S. 507 the court should be determined by rules theretofore prescribed
in respect to the jurisdiction of the federal courts. In that view,
if the adverse suit were between citizens of different states, and
the value of the thing in controversy exceeded $2,000, then, by
virtue of the general provisions of the statutes, the federal
courts might take jurisdiction, or, if the suit was one arising
under the Constitution or the laws of the United States, and the
amount in controversy was over $2,000, then also the federal courts
might take jurisdiction. Conversely, it would be true that if the
amount in controversy was not in excess of $2,000 or if the parties
were not citizens of different states and the suit was not one
arising under the Constitution or laws of the United States, the
federal courts could not take jurisdiction.

															In the present case, diverse citizenship does not exist.
Jurisdiction must therefore depend upon the question whether the
suit is one arising under the Constitution or laws of the United
States.

															We pointed out in the former opinion that it was well settled
that a suit to enforce a right which takes its origin in the laws
of the United States is not necessarily one arising under the
Constitution or laws of the United States within the meaning of the
jurisdiction clauses, for if it did, every action to establish
title to real estate (at least in the newer states) would be such a
one, as all titles in those states come from the United States or
by virtue of its laws. As said by Mr. Chief Justice Waite, in Gold Washing & Water Co. v. Keyes, 96 U. S.
199 , 96 U. S.
203 .

															"The suit must, in part at least, arise out of a controversy
between the parties in regard to the operation and effect of the
Constitution or laws upon the facts involved. . . . Before,
therefore, a circuit court can be required to retain a cause under
this jurisdiction, it must in some form appear upon the record by a
statement of facts, 'in legal and logical form' such as is required
in good pleading, . . . that the suit is one which 'really and
substantially involves a dispute or controversy' as to a right
which depends upon the construction or effect of the Constitution
or some law or treaty of the United States."

															The adverse suit, Rev.Stat. sec. 2326, is "to determine the
question of the right of possession." That right may or may Page 177 U. S. 508 not involve the construction or effect of the Constitution or a
law or treaty of the United States. By sections 2319, 2324 and
2332, Revised Statutes, it is expressly provided that this right of
possession may be determined by "local customs of rules of miners
in the several mining districts, so far as the same are applicable
and not inconsistent with the laws of the United States," or "by
the statute of limitations for mining claims of the state or
territory where the same may be situated." So that, in a given
case, the right of possession may not involve any question under
the Constitution or laws of the United States, but simply a
determination of local rules and customs, or state statutes, or
even only a mere matter of fact.

															The recognition by Congress of local customs and statutory
provisions as at times controlling the right of possession does not
incorporate them into the body of federal law. Section 2 of Article
I of the Constitution provides that the electors in each State of
members of the House of Representatives "shall have the
qualifications requisite for electors of the most numerous branch
of the state legislature," but this does not make the statutes and
constitutional provisions of the various states in reference to the
qualifications of electors parts of the Constitution or laws of the
United States.

															On August 8, 1890, Congress enacted (26 Stat. 313, c. 728) that
intoxicating liquors transported into any state or territory "shall
upon arrival in such state or territory be subject to the operation
and effect of the laws of such state or territory," etc., and in In re Rahrer, 140 U. S. 545 , 140 U. S. 561 ,
this Court said:

															"Congress has not attempted to delegate the power to regulate
commerce, or to exercise any power reserved to the states, or to
grant a power not possessed by the states, or to adopt state
laws."

															In Miller v. Swann, 150 U. S. 132 , 150 U. S. 136 ,
it appeared that the State of Alabama had passed an act containing
this provision:

															"The said Alabama & Chattanooga Railroad Company shall have
the privilege and right of selling said lands or any part thereof
in accordance with the acts of Congress granting the same,"

															and it was held:

															"The question is not what rights passed to the state under Page 177 U. S. 509 the acts of Congress, but what authority the railroad company
had under the statute of the state. The construction of such a
statute is a matter for the state court, and its determination
thereof is binding on this Court. The fact that the state statute
and the mortgage refer to certain acts of Congress as prescribing
the rule and measure of the rights granted by the state does not
make the determination of such rights a federal question. A state
may prescribe the procedure in the federal courts as the rule of
practice in its own tribunals; it may authorize the disposal of its
own lands in accordance with the provisions for the sale of the
public lands of the United States, and in such cases an examination
may be necessary of the acts of Congress, the rules of the federal
courts, and the practices of the Land Department, and yet the
questions for decision would not be of a federal character. The
inquiry along federal lines is only incidental to a determination
of the local question of what the state has required and
prescribed. The matter decided is one of state rule and practice.
The facts by which that state rule and practice are determined may
be of a federal origin."

															Inasmuch, therefore, as the "adverse suit" to determine the
right of possession may not involve any question as to the
construction or effect of the Constitution or laws of the United
States, but may present simply a question of fact as to the time of
the discovery of mineral, the location of the claim on the ground,
or a determination of the meaning and effect of certain local rules
and customs prescribed by the miners of the district, or the effect
of state statutes, it would seem to follow that it is not one which
necessarily arises under the Constitution and laws of the United
States.

															As against this, we are met by these suggestions: first, that a
corporation created by Congress has a right to invoke the
jurisdiction of the federal courts in respect to any litigation
which it may have, except as specifically restricted by some act of
Congress. Osborn v. Bank of United
States , 9 Wheat. 738; Pacific Railroad Removal
Cases, 115 U. S. 1 . The
argument of Chief Justice Marshall in support of this was, briefly,
that a corporation has no powers and can incur no obligations
except as authorized or provided for in its charter. Its power to
do Page 177 U. S. 510 any act which it assumes to do, and its liability to any
obligation which is sought to be cast upon it, depend upon its
charter, and when such charter is given by one of the laws of the
United States, there is the primary question of the extent and
meaning of that law. In other words, as to every act or obligation,
the first question is whether that act or obligation is within the
scope of the law of Congress, and that being the matter which must
be first determined, a suit by or against the corporation is one
which involves a construction of the terms of its charter -- in
other words, a question arising under the law of Congress. But that
argument is not pertinent here. The right of the contestants in an
adverse suit, as we have seen, does not always call for any
construction of an act of Congress. It may depend solely on local
rules or customs or state statutes, and in that case does not
involve a dispute or controversy

															"which depends upon the construction or effect of the
Constitution, or some law or treaty of the United States. . . . In
most actions concerning mining claims, the parties agree as to the
proper rule of construction to be applied to the mining laws, and
the controversies are usually limited to questions of fact relating
to the compliance with these laws. In such cases, the federal
courts have no original jurisdiction unless there is a diversity of
citizenship; but in cases arising under section 2326 of the Revised
Statutes, the authority for the action is found in the
legislation of Congress. Without this authority, the action for the
purposes avowed by the statute could not be maintained."

															2 Lindley on Mines, sec. 748. A statute authorizing an action to
establish a right is very different from one which creates a right
to be established. An action brought under the one may involve no
controversy as to the scope and effect of the statute, while in the
other case it necessarily involves such a controversy, for the
thing to be decided is the extent of the right given by the
statute.

															Again, it is said that this adverse suit is one step in the
administration of the laws of the United States in respect to
mineral lands, and therefore it must be presumed that Congress
intended that such step should rightfully be taken in one of the
courts of the United States. This suggestion was open to the Page 177 U. S. 511 consideration of Congress when it was determining where the
adverse suit should be brought, but that it did not consider it
vital is evident from the conceded fact that, unless the amount in
controversy is over $2,000, no jurisdiction attaches to the federal
court. In other words, Congress did not deem the matter of the
jurisdiction of those courts so essential a part of the
administration of the land laws of the United States as to vest in
them jurisdiction of all such controversies, but left a large, if
not a major, portion of them to be determined in the state courts.
It evidently contemplated the fact that a controversy about a right
of possession might as appropriately be decided in a state as in a
federal court, and, not prescribing in which court it should be
litigated, left the matter to be determined by the ordinary rules
in respect to the jurisdiction of the federal courts.

															Counsel also calls our attention to the difference in the
procedure in the disposal of agricultural and mineral lands. With
respect to the former, all proceedings are carried on in the Land
Department, and it is only after the legal title has passed by
patent that inquiry is permissible in the courts, while in respect
to the latter, the aid of the courts is invoked before the issue of
a patent and in order to determine, to some extent, the right
thereto. Noticing this distinction, he also notes the fact that a
contest in respect to the validity of a patent for agricultural
lands can be litigated in the federal courts, and hence draws the
inference that a contest preliminary to a patent for mineral lands,
and involving the right thereto, must also be one which can be
litigated in the same courts. But we think the true inference from
this difference of procedure is to the contrary, because, in
respect to agricultural lands, it is settled that all questions of
fact are determined by the Land Department, and that, after the
issue of a patent, only questions of law are open for consideration
in the courts, and as the laws of Congress alone determine the
matter of the disposal of the public lands, it follows that the
questions of law which are thus open for consideration are those
arising under the acts of Congress. While on the other hand, as we
have heretofore shown, in these adverse suits preliminary to a
patent of mineral lands, not merely questions Page 177 U. S. 512 of law arising under the statutes of the United States, but
questions of fact and questions arising under local rules and
customs and state statutes are open for consideration. The scope of
the inquiry which is permissible in the two cases emphasizes the
fact that, in the latter case, the controversy may be one not
arising under the Constitution or laws of Congress.

															Again, it is said that Congress has in these cases prescribed a
specific rule of limitation which is ordinarily different from that
obtaining under state statutes in respect to actions for the
recovery of possession; that it has authorized decrees in peculiar
form, some partly for and partly against each of the different
parties, and also some adversely to both. 21 Stat. 505, c. 140; Richmond Mining Co. v. Rose, 114 U.
S. 576 , 114 U. S. 585 ; Perego v. Dodge, 163 U. S. 160 , 163 U. S. 167 .
But incidental matters such as these are not decisive, especially
as confessedly the statute leaves the jurisdiction over those cases
in which the matter in controversy does not exceed $2,000 in value
in the state courts. This fact shows conclusively that Congress was
not intending to carve out a new jurisdiction for the federal
courts, and also that it did not doubt that the state courts would
carry into effect its enactments in reference to limitations and
procedure.

															And finally it is said that Congress cannot confer any
jurisdiction on the state courts, that they may decline to
entertain these adverse suits, and that Congress cannot compel them
to do so. But here again we are met with the fact that Congress has
left all controversies in respect to right of possession, not
exceeding $2,000 in value, to the state courts. It evidently
proceeded upon the supposition (which is a rightful one) that, as
by the express terms of the Constitution, Article VI, clause 2,

															"this Constitution, and the laws of the United States which
shall be made in pursuance thereof, . . . shall be the supreme law
of the land, and the judges in every state shall be bound thereby,
anything in the constitution or laws of any state to the contrary
notwithstanding,"

															no courts, national or state, would decline to carry into effect
the acts of Congress. Whether, if a state court should refuse to
act under these statutes, the matter is one which could be
corrected by error in this Court is immaterial. Page 177 U. S. 513 If it shall appear that state courts decline to entertain such
jurisdiction, and that it cannot be enforced upon them, Congress
may further legislate. Evidently, thus far in these cases, as in
many others, there has been no reason to suppose that any state
court would decline to enforce the laws of the United States or to
carry into effect their provisions. And, as well said by Mr.
Justice Miller in Iron Silver Mining Co. v. Campbell, 135 U. S. 286 , 135 U. S.
299 :

															"The purpose of the statute seems to be that where there are two
claimants to the same mine, neither of whom has yet acquired the
title from the government, they shall bring their respective claims
to the same property, in the manner prescribed in the statute,
before some judicial tribunal located in the neighborhood where the
property is, and that the result of this judicial investigation
shall govern the action of the officers of the Land Department in
determining which of these claimants shall have the patent, the
final evidence of title, from the government."

															If every adverse suit could be taken into the federal courts,
obviously in some of the larger western states the litigation would
not be "before some judicial tribunal located in the neighborhood
where the property is," for in them the federal courts are often
held only in the capital or chief city of the state and at a great
distance from certain parts of the mining regions therein.

															So we conclude, as we did in the prior case, that although these
suits may sometimes so present questions arising under the
Constitution or laws of the United States that the federal courts
will have jurisdiction, yet the mere fact that a suit is an adverse
suit authorized by the statutes of Congress is not, in and of
itself, sufficient to vest jurisdiction in the federal courts.

															It appears that there were two cases in the Circuit Court of
Idaho, that they were there consolidated for trial, and the
consolidated case taken on appeal to the circuit court of appeals.
Of the two original cases, No. 81 on the docket of the circuit
court was commenced by the appellees in that court. The other, No.
102, was commenced by the appellant in the District Court of the
First Judicial District of the State of Idaho in and Page 177 U. S. 514 for Shoshone County, and by the appellees removed to the federal
court. The matters involved in the two cases were similar, and
hence the consolidation. Under these circumstances, and in view of
the conclusion to which we have arrived, the order will be that The judgment of the United States Circuit Court of Appeals
for the Ninth Circuit is reversed, and the case remanded to the
Circuit Court, Northern Division, District of Idaho, with
instructions to reverse its decree and enter a decree dismissing
case No. 81, and an order remanding case No. 102 to the state
court. MR. JUSTICE WHITE did not hear the argument and took no part in
the decision of this case.

															MR. JUSTICE McKENNA dissents.

Summary: Shoshone Mining Co. v. Rutter (1900) concerns a dispute over mining claims and the jurisdiction of federal courts in such cases. The Supreme Court ruled that a lawsuit supporting an adverse claim under specific Revised Statutes does not constitute a case arising under US laws, thus federal courts cannot preside over such cases solely based on the nature of the claim. The Court acknowledged the importance of Congress's role in regulating disputes over public lands but emphasized that federal courts should not assume jurisdiction unless the case presents substantial questions arising under the Constitution or US laws. The decision highlights the Court's interpretation of federal judicial power and its deference to state courts in certain matters.


SUPREME COURT OF THE UNITED STATES

															JAIME CAETANO v. MASSACHUSETTS

															on petition for writ of certiorari to the
supreme judicial court of massachusetts

															No. 14–10078. Decided March 21, 2016

															Per Curiam.

															The Court has held that “the Second Amendment
extends, prima facie, to all instruments that constitute bearable
arms, even those that were not in existence at the time of the
founding,” District of Columbia v. Heller , 554
U. S. 570, 582 (2008) , and that this “ Second Amendment right
is fully applicable to the States,” McDonald v. Chicago , 561 U. S. 742, 750 (2010) . In this case, the
Supreme Judicial Court of Massachusetts upheld a Massachusetts law
prohibiting the possession of stun guns after examining “whether a
stun gun is the type of weapon contemplated by Congress in 1789 as
being protected by the Second Amendment.” 470 Mass. 774, 777, 26
N. E. 3d 688, 691 (2015).

															The court offered three explanations to support
its holding that the Second Amendment does not extend to stun guns.
First, the court explained that stun guns are not protected because
they “were not in common use at the time of the Second Amendment’s
enactment.” Id., at 781, 26 N. E. 3d, at 693. This is
inconsistent with Heller ’s clear statement that the Second
Amendment “extends . . . to . . . arms
. . . that were not in existence at the time of the
founding.” 554 U. S., at 582.

															The court next asked whether stun guns are
“dangerous per se at common law and unusual,” 470 Mass., at
781, 26 N. E. 3d, at 694, in an attempt to apply one
“important limitation on the right to keep and carry arms,” Heller , 554 U. S., at 627; see ibid. (referring
to “the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons’ ”). In so doing, the court
concluded that stun guns are “unusual” because they are “a
thoroughly modern invention.” 470 Mass., at 781, 26
N. E. 3d, at 693–694. By equating “unusual” with “in
common use at the time of the Second Amendment’s enactment,” the
court’s second explanation is the same as the first; it is
inconsistent with Heller for the same reason.

															Finally, the court used “a contemporary lens”
and found “nothing in the record to suggest that [stun guns] are
readily adaptable to use in the military.” 470 Mass., at 781, 26
N. E. 3d, at 694. But Heller rejected the
proposition “that only those weapons useful in warfare are
protected.” 554 U. S., at 624–625.

															For these three reasons, the explanation the
Massachusetts court offered for upholding the law contradicts this
Court’s precedent. Consequently, the petition for a writ of
certiorari and the motion for leave to proceed in forma
pauperis are granted. The judgment of the Supreme Judicial
Court of Massachusetts is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															JAIME CAETANO v. MASSACHUSETTS

															on petition for writ of certiorari to the
supreme judicial court of massachusetts

															No. 14–10078. Decided March 21, 2016

															Justice Alito, with whom Justice Thomas joins,
concurring in the judgment.

															After a “bad altercation” with an abusive
boyfriend put her in the hospital, Jaime Caetano found herself
homeless and “in fear for [her] life.” Tr. 31, 38 (July 10, 2013).
She obtained multiple restraining orders against her abuser, but
they proved futile. So when a friend offered her a stun gun “for
self-defense against [her] former boy friend,” 470 Mass. 774, 776,
26 N. E. 3d 688, 690 (2015), Caetano accepted the
weapon.

															It is a good thing she did. One night after
leaving work, Caetano found her ex-boyfriend “waiting for [her]
outside.” Tr. 35. He “started screaming” that she was “not gonna
[expletive deleted] work at this place” any more because she
“should be home with the kids” they had together. Ibid. Caetano’s abuser towered over her by nearly a foot and outweighed
her by close to 100 pounds. But she didn’t need physical strength
to protect herself. She stood her ground, displayed the stun gun,
and announced: “I’m not gonna take this
anymore. . . . I don’t wanna have to [use the stun
gun on] you, but if you don’t leave me alone, I’m gonna have to.” Id., at 35–36. The gambit worked. The ex-boyfriend “got
scared and he left [her] alone.” Id., at 36.

															It is settled that the Second Amendment protects
an individual right to keep and bear arms that applies against both
the Federal Government and the States. District of Columbia v. Heller , 554 U. S. 570 (2008) ; McDonald v. Chicago , 561 U. S. 742 (2010) . That right vindicates
the “basic right” of “individual self-defense.” Id. , at 767;
see Heller , supra , at 599, 628. Caetano’s encounter
with her violent ex-boyfriend illustrates the connection between
those fundamental rights: By arming herself, Caetano was able to
protect against a physical threat that restraining orders had
proved useless to prevent. And, commendably, she did so by using a
weapon that posed little, if any, danger of permanently harming
either herself or the father of her children.

															Under Massachusetts law, however, Caetano’s mere
possession of the stun gun that may have saved her life made her a
criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When
police later discovered the weapon, she was arrested, tried, and
convicted. The Massachusetts Supreme Judicial Court affirmed the
conviction, holding that a stun gun “is not the type of weapon that
is eligible for Second Amendment protection” because it was “not in
common use at the time of [the Second Amendment’s] enactment.” 470
Mass., at 781, 26 N. E. 3d, at 693.

															This reasoning defies our decision in Heller , which rejected as “bordering on the frivolous” the
argument “that only those arms in existence in the 18th century are
protected by the Second Amendment.” 554 U. S., at 582. The
decision below also does a grave disservice to vulnerable
individuals like Caetano who must defend themselves because the
State will not.

															I

															The events leading to Caetano’s prosecution
occurred sometime after the confrontation between her and her
ex-boyfriend. In September 2011, police officers responded to a
reported shoplifting at an Ashland, Massachusetts, supermarket. The
store’s manager had detained a suspect, but he identified Caetano
and another person in the parking lot as potential accomplices.
Police approached the two and obtained Caetano’s consent to search
her purse. They found no evidence of shoplifting, but saw Caetano’s
stun gun. Caetano explained to the officers that she had acquired
the weapon to defend herself against a violent ex-boyfriend.

															The officers believed Caetano, but they arrested
her for violating Mass. Gen. Laws, ch. 140, §131J, “which bans
entirely the possession of an electrical weapon,” 470 Mass., at
775, 26 N. E. 3d, at 689.[ 1 ] When Caetano moved to dismiss the charge on Second
Amendment grounds, the trial court denied the motion.

															A subsequent bench trial established the
following undisputed facts. The parties stipulated that Caetano
possessed the stun gun and that the weapon fell within the
statute’s prohibition.[ 2 ] The
Commonwealth also did not challenge Caetano’s testimony that she
possessed the weapon to defend herself against the violent
ex-boyfriend. Indeed, the prosecutor urged the court “to believe
the defendant.” Tr. 40. The trial court nonetheless found Caetano
guilty, and she appealed to the Massachusetts Supreme Judicial
Court.

															The Supreme Judicial Court rejected Caetano’s
Second Amendment claim, holding that “a stun gun is not the type of
weapon that is eligible for Second Amendment protection.” 470
Mass., at 775, 26 N. E. 3d, at 689. The court reasoned
that stun guns are unprotected because they were “not ‘in common
use at the time’ of enactment of the Second Amendment,” id., at 781, 26 N. E. 3d, at 693 (quoting Heller , supra , at 627), and because they fall within the
“traditional prohibition against carrying dangerous and unusual
weapons,” 470 Mass. , at 779, 26 N. E. 3d, at 692
(citing Heller , supra , at 627).

															II

															Although the Supreme Judicial Court professed
to apply Heller , each step of its analysis defied Heller ’s reasoning.

															A

															The state court repeatedly framed the question
before it as whether a particular weapon was “ ‘in common use
at the time’ of enactment of the Second Amendment.” 470 Mass., at
781, 26 N. E. 3d, at 693; see also id., at 779,
780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller , we emphatically rejected such a formulation. We
found the argument “that only those arms in existence in the 18th
century are protected by the Second Amendment” not merely wrong,
but “bordering on the frivolous.” 554 U. S., at 582. Instead,
we held that “the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were
not in existence at the time of the founding .” Ibid. (emphasis added).[ 3 ] It is hard
to imagine language speaking more directly to the point. Yet the
Supreme Judicial Court did not so much as mention it.

															Instead, the court seized on language,
originating in United States v. Miller , 307
U. S. 174 (1939) , that “ ‘the sorts of weapons protected
were those “in common use at the time.” ’ ” 470 Mass., at
778, 26 N. E. 3d, at 692 (quoting Heller , supra , at 627, in turn quoting Miller , supra ,
at 179). That quotation does not mean, as the court below thought,
that only weapons popular in 1789 are covered by the Second
Amendment. It simply reflects the reality that the founding-era
militia consisted of citizens “who would bring the sorts of lawful
weapons that they possessed at home to militia duty,” Heller , 554 U. S., at 627, and that the Second
Amendment accordingly guarantees the right to carry weapons
“typically possessed by law-abiding citizens for lawful purposes,” id., at 625. While stun guns were not in existence at the
end of the 18th century, the same is true for the weapons most
commonly used today for self-defense, namely, revolvers and
semiautomatic pistols. Revolvers were virtually unknown until well
into the 19th century,[ 4 ] and
semiautomatic pistols were not invented until near the end of that
century.[ 5 ] Electronic stun
guns are no more exempt from the Second Amendment’s protections,
simply because they were unknown to the First Congress, than
electronic communications are exempt from the First Amendment, or
electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil
Liberties Union , 521 U. S. 844, 849 (1997) , and Kyllo v. United States , 533 U. S. 27 –36
(2001)). As Heller aptly put it: “We do not interpret
constitutional rights that way.” 554 U. S., at 582.

															B

															The Supreme Judicial Court’s holding that stun
guns may be banned as “dangerous and unusual weapons” fares no
better. As the per curiam opinion recognizes, this is a
conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects
the lower court’s conclusion that stun guns are “unusual,” it does
not need to consider the lower court’s conclusion that they are
also “dangerous.” See ante , at 1–2. But make no mistake—the
decision below gravely erred on both grounds.

															1

															As to “dangerous,” the court below held that a
weapon is “dangerous per se” if it is “ ‘designed and
constructed to produce death or great bodily harm’ and ‘for the
purpose of bodily assault or defense.’ ” 470 Mass., at 779, 26
N. E. 3d, at 692 (quoting Commonwealth v. Appleby , 380 Mass. 296, 303, 402 N. E. 2d 1051,
1056 (1980)). That test may be appropriate for applying statutes
criminalizing assault with a dangerous weapon. See ibid. ,
402 N. E. 2d, at 1056. But it cannot be used to identify
arms that fall outside the Second Amendment. First, the relative
dangerousness of a weapon is irrelevant when the weapon belongs to
a class of arms commonly used for lawful purposes. See Heller , supra , at 627 (contrasting “ ‘dangerous
and unusual weapons’ ” that may be banned with protected
“weapons . . . ‘in common use at the time’ ”).
Second, even in cases where dangerousness might be relevant, the
Supreme Judicial Court’s test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to
include “ ‘any thing that a man wears for his defence, or
takes into his hands, or useth in wrath to cast at or strike
another.’ ” 554 U. S., at 581. Under the decision below,
however, virtually every covered arm would qualify as
“dangerous.”

															Were there any doubt on this point, one need
only look at the court’s first example of “dangerous per se”
weapons: “firearms.” 470 Mass., at 779, 26 N. E. 3d, at
692. If Heller tells us anything, it is that firearms cannot
be categorically prohibited just because they are dangerous. 554
U. S., at 636. A fortiori , stun guns that the
Commonwealth’s own witness described as “non-lethal force,” Tr. 27,
cannot be banned on that basis.

															2

															The Supreme Judicial Court’s conclusion that
stun guns are “unusual” rested largely on its premise that one must
ask whether a weapon was commonly used in 1789. See 470 Mass., at
780–781, 26 N. E. 3d, at 693–694. As already discussed,
that is simply wrong. See supra, at 4–6.

															The court also opined that a weapon’s
unusualness depends on whether “it is a weapon of warfare to be
used by the militia.” 470 Mass., at 780, 26 N. E. 3d, at
693. It asserted that we followed such an approach in Miller and “approved its use in Heller .” 470 Mass., at 780, 26
N. E. 3d, at 693. But Heller actually said that it
would be a “startling reading” of Miller to conclude that
“only those weapons useful in warfare are protected.” 554
U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty
carrying “the sorts of lawful weapons that they possessed at home,”
and that the Second Amendment therefore protects such weapons as a
class, regardless of any particular weapon’s suitability for
military use. 554 U. S. , at 627; see id., at
624–625. Indeed, Heller acknowledged that advancements in
military technology might render many commonly owned weapons
ineffective in warfare. Id., at 627–628. But such “modern
developments . . . cannot change our interpretation of
the right.” Ibid. In any event, the Supreme Judicial Court’s
assumption that stun guns are unsuited for militia or military use
is untenable. Section 131J allows law enforcement and correctional
officers to carry stun guns and Tasers, presumably for such
purposes as nonlethal crowd control. Subduing members of a mob is
little different from “suppress[ing] Insurrections,” a traditional
role of the militia. U. S. Const., Art. I, §8,
cl. 15; see also ibid. (militia may be called forth “to
execute the Laws of the Union”). Additionally, several branches of
the U. S. armed services equip troops with electrical stun
weapons to “incapacitate a target without permanent injury or known
side effects.” U. S. Army, Project Manager Close Combat
Systems, PD Combat Munitions: Launched Electrode Stun Device
(LESD),
http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html
(all Internet materials as last visited Mar. 18, 2016); see
U. S. Marine Corps Admin-istrative Message 560/08 (Oct. 2,
2008) (Marine Corps guidance for use of Tasers),
http://www.marines.mil/News / Messages / MessagesDisplay /tabid/13286/Article/113024/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx;
Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW)
Reference Book 3 (2012) (Department of Defense report stating that
“[m]ultiple Services employ” Tasers),
http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf.

															C

															As the foregoing makes clear, the pertinent
Second Amendment inquiry is whether stun guns are commonly
possessed by law-abiding citizens for lawful purposes today .
The Supreme Judicial Court offered only a cursory discussion of
that question, noting that the “ ‘number of Tasers and stun
guns is dwarfed by the number of firearms.’ ” 470 Mass., at
781, 26 N. E. 3d, at 693. This observation may be true, but it
is beside the point. Otherwise, a State would be free to ban all weapons except handguns, because “handguns are
the most popular weapon chosen by Americans for self-defense in the
home.” Heller , supra , at 629.

															The more relevant statistic is that “[h]undreds
of thousands of Tasers and stun guns have been sold to private
citizens,” who it appears may lawfully possess them in 45 States. People v. Yanna , 297 Mich. App. 137, 144, 824
N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban
unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost
Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms
and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun
gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015)
(amended Wisconsin law permitting stun gun possession); see also
Brief in Opposition 11 (acknowledging that “approximately 200,000
civilians owned stun guns” as of 2009). While less popular than
handguns, stun guns are widely owned and accepted as a legitimate
means of self-defense across the country. Massachusetts’
categorical ban of such weapons therefore violates the Second
Amendment.

															III

															The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts
court poses a grave threat to the fundamental right of
self-defense. The Supreme Judicial Court suggested that Caetano
could have simply gotten a firearm to defend herself. 470 Mass., at
783, 26 N. E. 3d, at 695. But the right to bear other
weapons is “no answer” to a ban on the possession of protected
arms. Heller , 554 U. S., at 629. Moreover, a weapon is
an effective means of self-defense only if one is prepared to use
it, and it is presumptuous to tell Caetano she should have been
ready to shoot the father of her two young children if she wanted
to protect herself. Courts should not be in the business of
demanding that citizens use more force for self-defense than
they are comfortable wielding.[ 6 ]

															Countless people may have reservations about
using deadly force, whether for moral, religious, or emotional
reasons—or simply out of fear of killing the wrong person. See
Brief for Arming Women Against Rape & Endangerment as Amicus
Curiae 4–5. “Self-defense,” however, “is a basic right.” McDonald , 561 U. S. , at 767. I am not prepared
to say that a State may force an individual to choose between
exercising that right and following her conscience, at least where
both can be accommodated by a weapon already in widespread use
across the Nation.

															*  *  *

															A State’s most basic responsibility is to keep
its people safe. The Commonwealth of Massachusetts was either
unable or unwilling to do what was necessary to protect Jaime
Caetano, so she was forced to protect herself. To make matters
worse, the Commonwealth chose to deploy its prosecutorial resources
to prosecute and convict her of a criminal offense for arming
herself with a nonlethal weapon that may well have saved her life.
The Supreme Judicial Court then affirmed her conviction on the
flimsiest of grounds. This Court’s grudging per curiam now
sends the case back to that same court. And the consequences for
Caetano may prove more tragic still, as her conviction likely bars
her from ever bearing arms for self-defense. See Pet. for Cert.
14.

															If the fundamental right of self-defense does
not protect Caetano, then the safety of all Americans is left to
the mercy of state authorities who may be more concerned about
disarming the people than about keeping them safe. Notes 1 Specifically, the statute
prohibits the possession of any “portable device or weapon from
which an electrical current, impulse, wave or beam may be directed,
which current, impulse, wave or beam is designed to incapacitate
temporarily, injure or kill.” Mass. Gen. Laws, ch. 140, §131J
(2014). The statute includes exceptions for law-enforcement
officers and weapon suppliers, who may possess electrical weapons
“designed to incapacitate temporarily.” Ibid. Violations are
punishable by a fine of $500 to $1,000, imprisonment of 6 months to
2½ years, or both. Ibid. 2 Stun guns like Caetano’s
“are designed to stun a person with an electrical current” by
running a current between two metal prongs on the device and
placing the prongs in direct contact with the person. 470 Mass.
774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A
similar device, popularly known by the brand name “Taser,” shoots
out wires tipped with electrodes that can deliver an electrical
current from a distance. Tr. 25–26. Tasers can also be used like a
stun gun without deploying the electrodes—a so-called “dry stun.” Id., at 26. As the Commonwealth’s witness testified at
trial, these sorts of electrical weapons are “non-lethal force”
“designed to incapacitate”—“not kill”—a target. Id., at
27. 3 Stun guns are plainly
“bearable arms.” As Heller explained, the term includes any
“[w]eapo[n] of offence” or “thing that a man wears for his defence,
or takes into his hands,” that is “carr[ied] . . . for
the purpose of offensive or defensive action.” 554 U. S., at
581, 584 (internal quotation marks omitted). 4 See J. Bilby, A
Revolution in Arms: A History of the First Repeating Rifles 23
(2006). Samuel Colt did not patent his famous revolver until 1836. Ibid. 5 See Firearms: An
Illustrated History 166 (2014); see also W. Greener, The Gun and
Its Development 524–529, 531–534 (9th ed. 1910) (discussing
revolvers and self-loading semiautomatic pistols as “modern
pistols”). 6 The court below also
noted that Massachusetts no longer requires a license to possess
mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But
the law was changed in 2014, after Caetano was convicted. A spray
can also be foiled by a stiff breeze, while a stun gun
cannot.

Summary: The Supreme Court of the United States ruled that the Second Amendment protects the right to possess stun guns, rejecting the argument that only weapons commonly used at the time of the Second Amendment's enactment are protected. The Court vacated the judgment of the Supreme Judicial Court of Massachusetts, which had upheld a state law prohibiting stun gun possession, and remanded the case for further proceedings.


U.S. Supreme Court Hansberry v. Lee, 311 U.S.
32 (1940) Hansberry v. Lee No. 29 Argued October 25,
1940 Decided November 12,
1940 311 U.S.
32 CERTIORARI TO THE SUPREME COURT OF
ILLINOIS Syllabus Numerous owners of lots in a particular area agreed in writing,
each severally with each of the others, that their lots should not
be sold to or occupied by Negroes, the effectiveness of the
agreement being conditioned, however, upon signing by owners of a
specified percentage of the lot frontage. In a case in a state
court, tried upon an agreed statement of facts, in which it was
stipulated (erroneously) that this condition had been complied
with, and in which the issue litigated was whether the agreement
had ceased to be enforceable in equity by reason of changes in the
restricted area, an owner of one of the lots, suing in behalf of
himself and of others in like situation, obtained a decree
enjoining violation of the agreement by four individuals, who
asserted an interest in the restricted land through another signer
of the agreement, but who were not treated by the pleadings or
decree as representing others or as foreclosing by their defense
the rights of others, and whose interest in defeating the contract
did not appear to outweigh their interest in sustaining it. Held: 1. That others who were privy to the agreement, but not made
parties to the litigation, and whose substantial interest was in
resisting performance of the agreement, could not be bound by the
decree upon the theory that the suit was a class suit in which they
were duly represented. Pp. 311 U. S. 39 , 311 U. S.
44 .

															2. That a decree of the state court in a second, similar suit,
adjudging such other persons estopped by the former decree as res judicata from defending upon the ground that the
condition precedent of the agreement had not been fulfilled, was in
violation of the due process clause of the Fourteenth Amendment.
Pp. 311 U. S. 40 , 311 U. S.
44 .

															372 Ill. 369; 24 N.E.2d 37, reversed. Page 311 U. S. 33 Certiorari, 309 U.S. 652, to review the affirmance of a decree
in equity enjoining a violation of an agreement of lot owners
restricting the sale and use of lots in a particular area. Page 311 U. S. 37 MR. JUSTICE STONE delivered the opinion of the Court.

															The question is whether the Supreme Court of Illinois, by its
adjudication that petitioners in this case are bound by a judgment
rendered in an earlier litigation to which they were not parties,
has deprived them of the due process of law guaranteed by the
Fourteenth Amendment.

															Respondents brought this suit in the Circuit Court of Cook
County, Illinois, to enjoin the breach by petitioners of an
agreement restricting the use of land within a described area of
the City of Chicago, which was alleged to have been entered into by
some five hundred of the land owners. The agreement stipulated,
that for a specified period, no part of the land should be "sold,
leased to or permitted to be occupied by any person of the
colored Page 311 U. S. 38 race," and provided that it should not be effective unless
signed by the "owners of 95 percentum of the frontage" within the
described area. The bill of complaint set up that the owners of 95
percent of the frontage had signed; that respondents are owners of
land within the restricted area who have either signed the
agreement or acquired their land from others who did sign, and that
petitioners Hansberry, who are Negroes, have, with the alleged aid
of the other petitioners and with knowledge of the agreement,
acquired and are occupying land in the restricted area formerly
belonging to an owner who had signed the agreement.

															To the defense that the agreement had never become effective
because owners of 95 percent of the frontage had not signed it,
respondents pleaded that that issue was res judicata by
the decree in an earlier suit. Burke v. Kleiman, 277
Ill.App. 519. To this petitioners pleaded, by way of rejoinder,
that they were not parties to that suit or bound by its decree, and
that denial of their right to litigate, in the present suit, the
issue of performance of the condition precedent to the validity of
the agreement would be a denial of due process of law guaranteed by
the Fourteenth Amendment. It does not appear, nor is it contended
that any of petitioners is the successor in interest to or in
privity with any of the parties in the earlier suit.

															The circuit court, after a trial on the merits, found that
owners of only about 54 percent of the frontage had signed the
agreement, and that the only support of the judgment in the Burke case was a false and fraudulent stipulation of the
parties that 95 percent had signed. But it ruled that the issue of
performance of the condition precedent to the validity of the
agreement was res judicata as alleged, and entered a
decree for respondents. The Supreme Court of Illinois affirmed. 372
Ill. 369, 24 N.E.2d 37. We granted certiorari to resolve the
constitutional question. 309 U.S. 652. Page 311 U. S. 39 The Supreme Court of Illinois, upon an examination of the record
in Burke v. Kleiman, supra, found that that suit in the
Superior Court of Cook County was brought by a landowner in the
restricted area to enforce the agreement, which had been signed by
her predecessor in title in behalf of herself and other property
owners in like situation against four named individuals who had
acquired or asserted an interest in a plot of land formerly owned
by another signer of the agreement; that, upon stipulation of the
parties in that suit that the agreement had been signed by owners
of 95 percent of all the frontage, the court had adjudged that the
agreement was in force, that it was a covenant running with the
land and binding all the land within the described area in the
hands of the parties to the agreement and those claiming under them
including defendants, and had entered its decree restraining the
breach of the agreement by the defendants and those claiming under
them, and that the appellate court had affirmed the decree. It
found that the stipulation was untrue, but held, contrary to the
trial court, that it was not fraudulent or collusive. It also
appears from the record in Burke v. Kleiman that the case
was tried on an agreed statement of facts which raised only a
single issue -- whether by reason of changes in the restricted
area, the agreement had ceased to be enforceable in equity.

															From this, the Supreme Court of Illinois concluded in the
present case that Burke v. Kleiman was a "class" or
"representative" suit, and that, in such a suit,

															"where the remedy is pursued by a plaintiff who has the right to
represent the class to which he belongs, other members of the class
are bound by the results in the case unless it is reversed or set
aside on direct proceedings;"

															(372 Ill. 369, 24 N.E.2d 39), that petitioners in the present
suit were members of the class represented by the plaintiffs in the
earlier suit and consequently were bound by its decree which had
rendered Page 311 U. S. 40 the issue of performance of the condition precedent to the
restrictive agreement res judicata so far as petitioners
are concerned. The court thought that the circumstance that the
stipulation in the earlier suit that owners of 95 percent of the
frontage had signed the agreement was contrary to the fact, as
found in the present suit, did not militate against this
conclusion, since the court in the earlier suit had jurisdiction to
determine the fact as between the parties before it, and that its
determination, because of the representative character of the suit,
even though erroneous, was binding on petitioners until set aside
by a direct attack on the first judgment.

															State courts are free to attach such descriptive labels to
litigations before them as they may choose, and to attribute to
them such consequences as they think appropriate under state
constitutions and laws, subject only to the requirements of the
Constitution of the United States. But when the judgment of a state
court, ascribing to the judgment of another court the binding force
and effect of res judicata, is challenged for want of due
process, it becomes the duty of this Court to examine the course of
procedure in both litigations to ascertain whether the litigant
whose rights have thus been adjudicated has been afforded such
notice and opportunity to be heard as are requisite to the due
process which the Constitution prescribes. Western Life
Indemnity Co. v. Rupp, 235 U. S. 261 , 235 U. S.
273 .

															It is a principle of general application in Anglo-American
jurisprudence that one is not bound by a judgment in
personam in a litigation in which he is not designated as a
party or to which he has not been made a party by service of
process. Pennoyer v. Neff, 95 U. S.
714 ; 1 Freeman on Judgments, 5th Ed., § 407. A judgment
rendered in such circumstances is not entitled to the full faith
and credit which the Constitution and statute of the United States,
R.S. § 905, 28 U.S.C. § 687, prescribe, Page 311 U. S. 41 Pennoyer v. Neff, supra; 59 U. S. Co. v.
French, 18 How. 404; Hall v. Lanning, 91 U. S.
160 ; Baker v. Baker, E. & Co., 242 U.
S. 394 , and judicial action enforcing it against the
person or property of the absent party is not that due process
which the Fifth and Fourteenth Amendments requires. Postal
Telegraph-Cable Co. v. Neport, 247 U.
S. 464 ; Old Wayne Mut.L. Assn. v. McDonough, 204 U. S. 8 .

															To these general rules there is a recognized exception -- that,
to an extent not precisely defined by judicial opinion, the
judgment in a "class" or "representative" suit, to which some
members of the class are parties, may bind members of the class or
those represented who were not made parties to it. Smith v.
Swormstedt , 16 How. 288; Royal Arcanum v.
Green, 237 U. S. 531 ; Hartford L. Ins. Co. v. Ibs, 237 U.
S. 662 ; Hartford Life Ins. Co. v. Barber, 245 U. S. 146 ; Supreme Tribe of Ben-Hur v. Cauble, 255 U.
S. 356 ; cf. Christopher v. Brusselback, 302 U. S. 500 .

															The class suit was an invention of equity to enable it to
proceed to a decree in suits where the number of those interested
in the subject of the litigation is so great that their joinder as
parties in conformity to the usual rules of procedure is
impracticable. Courts are not infrequently called upon to proceed
with causes in which the number of those interested in the
litigation is so great as to make difficult or impossible the
joinder of all because some are not within the jurisdiction, or
because their whereabouts is unknown, or where, if all were made
parties to the suit, its continued abatement by the death of some
would prevent or unduly delay a decree. In such cases, where the
interests of those not joined are of the same class as the
interests of those who are, and where it is considered that the
latter fairly represent the former in the prosecution of the
litigation of the issues in which all have a common interest, the
court will Page 311 U. S. 42 proceed to a decree. Brown v. Vermuden, 1 Ch.Cas. 272; City of London v. Richmond, 2 Vern. 421; Cockburn v.
Thompson, 161 Ves.Jr. 321; West v. Randall, Fed.Cas.
No. 17,724, 2 Mason 181; Beatty v.
Kurtz , 2 Pet. 566; Smith v. Swormstedt, supra;
Supreme Tribe of Ben-Hur v. Cauble, supra; Story, Equity
Pleading (2d Ed.) § 98.

															It is evident that the considerations which may induce a court
thus to proceed, despite a technical defect of parties, may differ
from those which must be taken into account in determining whether
the absent parties are bound by the decree or, if it is adjudged
that they are, in ascertaining whether such an adjudication
satisfies the requirements of due process and of full faith and
credit. Nevertheless, there is scope within the framework of the
Constitution for holding in appropriate cases that a judgment
rendered in a class suit is res judicata as to members of
the class who are not formal parties to the suit. Here, as
elsewhere, the Fourteenth Amendment does not compel state courts or
legislatures to adopt any particular rule for establishing the
conclusiveness of judgments in class suits; cf. Brown v. New
Jersey, 175 U. S. 172 ; Brown v. Mississippi, 297 U. S. 278 ; United Gas Public Service Co. v. Texas, 303 U.
S. 123 ; Avery v. Alabama, 308 U.
S. 444 , 308 U. S.
446 -447, nor does it compel the adoption of the
particular rules thought by this court to be appropriate for the
federal courts. With a proper regard for divergent local
institutions and interests, cf. Jackson County v. United
States, 308 U. S. 343 , 308 U. S. 351 ,
this Court is justified in saying that there has been a failure of
due process only in those cases where it cannot be said that the
procedure adopted, fairly insures the protection of the interests
of absent parties who are to be bound by it. Chicago, B. &
Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S.
235 .

															It is familiar doctrine of the federal courts that members of a
class not present as parties to the litigation Page 311 U. S. 43 may be bound by the judgment where they are in fact adequately
represented by parties who are present, or where they actually
participate in the conduct of the litigation in which members of
the class are present as parties, Plumb v. Goodnow's
Administrator, 123 U. S. 560 ; Confectioners' Machinery Co. v. Racine Engine & Mach.
Co., 163 F. 914; 170 F. 1021; Bryant El. Co. v.
Marshall, 169 F. 426, or where the interest of the members of
the class, some of whom are present as parties, is joint, or where
for any other reason the relationship between the parties present
and those who are absent is such as legally to entitle the former
to stand in judgment for the latter. Smith v. Swormstedt,
supra; cf. Christopher v. Brusselback, supra, 302 U.S. at 302 U. S.
503 -504, and cases cited.

															In all such cases, so far as it can be said that the members of
the class who are present are, by generally recognized rules of
law, entitled to stand in judgment for those who are not, we may
assume for present purposes that such procedure affords a
protection to the parties who are represented though absent, which
would satisfy the requirements of due process and full faith and
credit. See Bernheimer v. Converse, 206 U.
S. 516 ; Marin v. Augedahl, 247 U.
S. 142 ; Chandler v. Peketz, 297 U.
S. 609 . Nor do we find it necessary for the decision of
this case to say that, when the only circumstance defining the
class is that the determination of the rights of its members turns
upon a single issue of fact or law, a state could not
constitutionally adopt a procedure whereby some of the members of
the class could stand in judgment for all, provided that the
procedure were so devised and applied as to insure that those
present are of the same class as those absent and that the
litigation is so conducted as to insure the full and fair
consideration of the common issue. Compare New England
Divisions Case, 261 U. S. 184 , 261 U. S. 197 ; Taggart v. Bremner, 236 F. 544. Page 311 U. S. 44 We decide only that the procedure and the course of litigation
sustained here by the plea of res judicata do not satisfy
these requirements.

															The restrictive agreement did not purport to create a joint
obligation or liability. If valid and effective, its promises were
the several obligations of the signers and those claiming under
them. The promises ran severally to every other signer. It is plain
that, in such circumstances, all those alleged to be bound by the
agreement would not constitute a single class in any litigation
brought to enforce it. Those who sought to secure its benefits by
enforcing it could not be said to be in the same class with or
represent those whose interest was in resisting performance, for
the agreement, by its terms, imposes obligations and confers rights
on the owner of each plot of land who signs it. If those who thus
seek to secure the benefits of the agreement were rightly regarded
by the state Supreme Court as constituting a class, it is evident
that those signers or their successors who are interested in
challenging the validity of the agreement and resisting its
performance are not of the same class in the sense that their
interests are identical, so that any group who had elected to
enforce rights conferred by the agreement could be said to be
acting in the interest of any others who were free to deny its
obligation.

															Because of the dual and potentially conflicting interests of
those who are putative parties to the agreement in compelling or
resisting its performance, it is impossible to say, solely because
they are parties to it, that any two of them are of the same class.
Nor, without more, and with the due regard for the protection of
the rights of absent parties which due process exacts, can some be
permitted to stand in judgment for all.

															It is one thing to say that some members of a class may
represent other members in a litigation where the sole and common
interest of the class in the litigation is either to assert a
common right or to challenge an Page 311 U. S. 45 asserted obligation. Smith v. Swormstedt, supra; Supreme
Tribe of Ben-Hur v. Cauble, supra; Groves v. Farmers State
Bank, 368 Ill. 35, 12 N.E.2d 618. It is quite another to hold
that all those who are free alternatively either to assert rights
or to challenge them are of a single class, so that any group
merely because it is of the class so constituted, may be deemed
adequately to represent any others of the class in litigating their
interests in either alternative. Such a selection of
representatives for purposes of litigation, whose substantial
interests are not necessarily or even probably the same as those
whom they are deemed to represent, does not afford that protection
to absent parties which due process requires. The doctrine of
representation of absent parties in a class suit has not hitherto
been thought to go so far. See Terry v. Bank of Cape Fear, 20 F. 777, 781; Weidenfeld v. Northern Pac. Ry. Co., 129
F. 305, 310; McQuillen v. National Cash Register
Co., 22 F. Supp.
867 , 873, aff'd, 112 F.2d 877, 882; Brenner v.
Title Guarantee & Trust Co., 276 N.Y. 230, 11 N.E.2d 890; cf. Wabash R. Co. v. Adelbert College, 208 U. S.
38 ; Coe v. Armour Fertilizer Works, 237 U. S. 413 .
Apart from the opportunities it would afford for the fraudulent and
collusive sacrifice of the rights of absent parties, we think that
the representation in this case no more satisfies the requirements
of due process than a trial by a judicial officer who is in such
situation that he may have an interest in the outcome of the
litigation in conflict with that of the litigants. Tumey v.
Ohio, 273 U. S. 510 .

															The plaintiffs in the Burke case sought to compel
performance of the agreement in behalf of themselves and all others
similarly situated. They did not designate the defendants in the
suit as a class or seek any injunction or other relief against
others than the named defendants, and the decree which was entered
did not purport to bind others. In seeking to enforce the
agreement, the plaintiffs Page 311 U. S. 46 in that suit were not representing the petitioners here whose
substantial interest is in resisting performance. The defendants in
the first suit were not treated by the pleadings or decree as
representing others or as foreclosing by their defense the rights
of others, and, even though nominal defendants, it does not appear
that their interest in defeating the contract outweighed their
interest in establishing its validity. For a court in this
situation to ascribe to either the plaintiffs or defendants the
performance of such functions on behalf of petitioners here is to
attribute to them a power that it cannot be said that they had
assumed to exercise, and a responsibility which, in view of their
dual interests it does not appear that they could rightly
discharge. Reversed. MR. JUSTICE McREYNOLDS, MR. JUSTICE ROBERTS, and MR. JUSTICE
REED concur in the result.

Summary: The Supreme Court ruled that a group of landowners who were not parties to a previous lawsuit could not be bound by the decision in that case, as they were not adequately represented by the defendants in the original suit, and their interests in resisting the performance of the agreement were not adequately protected. The Court held that due process requires that absent parties have a sufficient opportunity to protect their own interests, and that the representation in this case did not meet that standard.