Page images


Constitutional questions are no longer to be apprehended, both because of the provision in the Constitution of Virginia and because such questions have been fought out and solved in the forums of her States. (People vs. Chase 165 Ill. 527-36 L. R. A. 105; People vs. Simon, 176 Ill. 165, 44 L. R. A. 801; Tyler vs. Judges of the Court of Registration 175 Mass. 71, 51 L. R. A. 433; William B. Tyler vs. Judges of the Court of Registration 179 U. S., 404; State vs. Guilbert 56 Ohio 575; State vs. Westfall, 84 Minn. 437, 57 L. R. A. 297.)


These cases dealing with the Torrens Acts of other States should be conclusive. But as it is human to err, so is it eminently legal to doubt. And professional doubters may still be found who seize upon that clause of the XIV Amendment to the Constitution of the United States saying: "nor shall any State deprive any person of life, liberty, or property, without due process of law", and endeavor to entrench themselves within its mysteries. The Supreme Court has remarked more than once upon “the abundant evidence that there exists some strange misconception of this provision", and has been wearied into chiding the lawyers with having looked upon the clause “as a means of bringing to the test of the decision of this Court the abstract opinions of every unsuccessful litigant in a State Court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded”. (Davidson vs. New Orleans 95 U. S. 97; Missouri Pacific R. R. vs. Humes 115 U. S. 512).

The Court has never undertaken to give any comprehensive definition of the phrase, but has declared that it will deal with each case as it arises pronouncing it the part of wisdom to ascertain the intent and application of such an important phrase of the Federal Constitution, “ by the gradual process of judicial inclusion and exclusion, as the cases presented for such decision shall require, with the reasoning on which such decisions may be founded”. (Davidson vs. New Orleans, supra). It is believed that a sufficient number of such cases have now been decided to establish the constitutionality of the Bill under discussion, as will appear from the following citations. Due process of law does not necessarily imply a regular proceeding in a court of justice, or after the manner of such Courts (Murphy vs. Hoboken Land Co. 18 How. 272); it does not necessarily imply delay (Kennard vs. Louisiana 92 U. S. 480), nor a plenary suit and trial by jury (Simon vs. Craft 182 U. S. 427; Ex parte Wall 107 U. S. 265; Holden vs. Hardy 169 U. S. 366; Walker vs. Savannah 92 U. S. 90; Tinsley vs. Anderson 171 U. S. 101); it does not require presentment and indictment by grand jury (Hurtado vs. California 110 U. S. 516; Caldwell vs. Texas 137 U. S. 692), but an information instead of an indictment is sufficient. (Hodgson vs. Vermont 168 U. S. 261: Balln vs. Nebraska 176 U. S. 83: Maxwell vs. Dow 176 U. S. 581; Davis vs. Burke 179 U.S. 399). Passing to positive expressions, the Federal Courts have held “due process of law” under the Federal Constitution to be equivalent to the words "law of the land" in Magna Charta (Murray vs. Hoboken 18 How. 272; Davidson vs. New Orleans, 96 U. S. 97).

The "due process of law" clause of the XIV Amendment was intended as an additional security against the arbitrary deprivation of life and property and the arbitrary spoilation of property (Hagar vs. Reclamation District 111 U. S. 701; Barbier vs. Conolly 113 U. S. 28; Kentucky R. R. Tax Cases 115 U. S. 321: Dent vs. West Virginia 129 U. S. 114; Ex parte Converse 137 U. S. 624).

Legislation general in its operation upon the subjects to which it relates and enforceable by process or proceedings adapted to the nature of the case, affords “due process of law” (Dent vs. West Va. 129 U. S. 114); and so does a state statute, general in its application, embracing all persons under substantially like circumstances, and not being an arbitrary exercise of power (Jones vs. Brim 165 U. S. 175; Leeper vs. Texas 139 U. S. 462). The Constitution does not declare what principles are to be applied to ascertain "due process of law”; yet it is manifest that it was not left to the legislative power to enact any process which might be devised (Murray vs. Hoboken 18 How. 272). But forms of procedure in the State Courts are not controlled by the XIV Amendment, provided the fundamental rights secured by the amendment are not denied (L. & N. R. R. Co. vs. Schmidt 177 U. S. 747).

Every State has the power to regulate the manner and conditions upon which real and personal property within its territory may be acquired, enjoyed, and transferred. “Substituted services 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 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. ***** In other words such service may answer in all actions which are substantially proceedings in rem. (Pennoyer vs. Neff 95 U. S. 714). A State has "control

"control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liability to obligations private or public, and the modes of establishing title thereto;*** and no proceeding which it provides can be declared invalid, unless in conflict with some special inhibitions of the constitution, or against natural justice”. (Arndt vs. Griggs 134 U. S. 31) “The power of the State to regulate the tenure of real property within her limits, and the modes of acquisition and transfer, ** is undoubted”. (U. S. vs. Fox 94 U. S. 315. See also McCormick vs. Sullivant 10 Wheat. 202; Beaureguard vs. New Orleans 18 How. 497; Snydam vs. Williamson 24 How. 427; Christian Union vs. Yount 101 U. S. 352).

In Holden vs. Hardy 169 U. S. 366, a review of all the cases concerning due process of law led to the statement that in passing upon the validity of State legislation under the XIV Amendment "this Court has not failed to recognize the fact that the law is to a certain extent a

progressive science; that in some of the States methods of procedure which, at the time the Constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary”. And after mentioning some of the notable changes that had taken place, in the laws and jurisprudence of England and America, attention was called to the probability that other changes of no less importance might be made in the future. The Court said that “the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the suprme law of the land.”

In the earlier case of Hurtado vs. California 110 U. S. 516, 530, it had been finely said: “The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown.**There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experience of our situation and system will mould and shape it into new and not less useful forms”. It is fortunate for our government that such broad principles of adjudication and interpretation have swayed the Supreme Court of the United States since the days of its Great Chief Justice, John Marshall of Virginia; and faith in the permanence of our free institutions makes us confident that the greatest tribunal of law and order the world has ever seen will not readily depart from its grand and liberal traditions.


In view of these authorities there would seem to be no reasonable ground to doubt the constitutionality of the Torrens Act proposed for Virginia, since it not only makes ample provision for personal notice to all known claimants and provides for such personal service of process as is required in Chancery proceedings upon residents not under disability who are made known to the Court before final decree and can be reached by its process, unless such service be waived by appearance or otherwise, but also makes the proceedings in rem against the land itself and provides for a regular order of publication against all unknown and non-resident parties who may be concerned. I shall therefore allude to but one other case, that of Leigh vs. Green decided in 1903 and reported in 193 U. S. 79, in which it was held that “Due process of law is not denied the holder of a lien on real property by lack of any provision for personal service on him of notice of the pendency of proceedings in rem to enforce the lien acquired by a purchaser of the property at a tax sale, which are authorized by the Nebraska Statutes, where notice is given by publication to all persons interested in the property to appear and set up their claims". This was a case involving title under a tax sale. The Court held that publication of notice was sufficient to bind resident as well as non-resident claimants of title. The proceeding was held to be in rem, under the Nebraska Statute so declaring, and notice by publication “to all persons interested”, was held to be good against all the world. It is worthy of note that the Court quotes with approval “Tyler vs. Registration Court Judges 175 Mass. 71", the case in which Mr. Justice Holmes, who was then Chief Justice of the Supreme Court of Massachusetts, upheld the Massachusets Torrens Act against all assaults.


So much for the legal aspects of the question. Let us turn once more, in conclusion, to the practical side of the situation

« PreviousContinue »