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made to the validity of the right and title | 2 Inters. Com. Rep. 153, 160, 8 Sup. Ct. obtained from Panama by the treaty, but Rep. 1073, 1080, it was said: we find nothing in them deserving special notice.
Another contention, in support of which plaintiff has presented a voluminous argument, is that the United States has no power to engage in the work of digging this canal. His first proposition is that the canal zone is no part of the territory of the United States, and that, therefore, the government is powerless to do anything of the kind therein. Article 2 of the treaty, heretofore referred to, "grants to the United States in perpetuity the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of said canal." By article 3, Panama "grants to the United States all the rights, power, and authority within the zone mentioned and described in article 2 of this agreement, which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located, to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority."
"It cannot at the present day be doubted that Congress, under the power to regulate commerce among the several states, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce. This power in former times was exerted to a very limited extent, the Cumberland or National road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water, and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so Other provisions of the treaty add to the vastly increased, a sounder consideration of grants named in these two articles further the subject has prevailed and led to the conguaranties of exclusive rights of the United clusion that Congress has plenary power States in the construction and maintenance over the whole subject. Of course the auof this canal. It is hypercritical to con-thority of Congress over the territories of tend that the title of the United States is the United States, and its power to grant imperfect, and that the territory described franchises exercisable therein, are, and ever does not belong to this nation, because of have been, undoubted. But the wider power the omission of some of the technical terms was very freely exercised, and much to the used in ordinary conveyances of real estate. general satisfaction, in the creation of the Further, it is said that the boundaries of vast system of railroads connecting the East the zone are not described in the treaty; with the Pacific, traversing states as well but the description is sufficient for identi- as territories, and employing the agency of fication, and it has been practically identi-state as well as Federal corporations. See fied by the concurrent action of the two Pacific Railroad Removal Cases, 115 U. S. nations alone interested in the matter. The 1, 14, 18, 29 L. ed. 319, 323, 325, 5 Sup. Ct. fact that there may possibly be in the fu- Rep. 1113." ture some dispute as to the exact boundary on either side is immaterial. Such disputes not infrequently attend conveyances of real estate or cessions of territory. Alaska was ceded to us forty years ago, but the boundary between it and the English possessions east was not settled until within sessions east was not settled until within the last two or three years. Yet no one ever doubted the title of this Republic to
In Luxton v. North River Bridge Co. 153 U. S. 525, 529, 38 L. ed. 808, 810, 14 Sup. Ct. Rep. 891, 892, Mr. Justice Gray, speaking for the court, says:
tions as appropriate means of executing the "Congress, therefore, may create corporapowers of government; as, for instance, a Powers of government; as, for instance, a bank for the purpose of carrying on the fiscal operations of the United States, or a railroad corporation for the purpose of promoting commerce among the states. M'CulAgain, plaintiff contends that the govern- loch v. Maryland, 4 Wheat. 316, 411, 422, ment has no power to engage anywhere in 4 L. ed. 579, 602, 605; Osborn v. Bank of the work of constructing a railroad or ca- United States, 9 Wheat. 738, 861, 873, 6 L. nal. The decisions of this court are adverse ed. 204, 233, 236; Pacific Railroad Removal to this contention. .In California v. Central Cases, 115 U. S. 1, 18, 29 L. ed. 319, 325, 5 P. R. Co. 127 U. S. 1, 39, 32 L. ed. 150, 157, | Sup. Ct. Rep. 1113; California v. Central P.
R. Co. 127 U. S. 1, 39, 32 L. ed. 150, 157, 2| Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073. Congress has likewise the power, exercised early in this century by successive acts in case of the Cumberland or National road, from the Potomac across the Alleghenies to the Ohio, to authorize the construction of a public highway connecting several states. See Indiana v. United States, 148 U. S. 148, 37 L. ed. 401, 13 Sup. Ct. Rep. 564."
See also Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622.
These authorities recognize the power of Congress to construct interstate highways. A fortiori, Congress would have like power within the territories and outside of state lines, for there the legislative power of Congress is limited only by the provisions of the Constitution, and cannot conflict with the reserved power of the states. Plaintiff, recognizing the force of these decisions, seeks to obviate it by saying that the expressions were obiter dicta; but plainly they were not. They announce distinctly the opinion of this court on the questions presented, and would have to be overruled if a different doctrine were now announced. Congress has acted in reliance upon these decisions in many ways, and any change would disturb a vast volume of rights supposed to be fixed; but we see no reason to doubt the conclusions expressed in those opinions, and adhere to them.
The Court of Appeals was right, and its decision is affirmed.
OLD WAYNE MUTUAL LIFE ASSOCIA
state, where the answer contains a general denial, which, under the local procedure, is sufficient to put plaintiff's upon proof of every fact essential in establishing the the court of such other state could legally cause of action, to show by what authority enter the judgment sued upon, which was one in personam against a corporation, which, according to the complaint itself, was a corporation of another state, and was not alleged to have appeared in person, or by an attorney of its own selection, or to have been personally served with process within the state.
Evidence-presumption as to jurisdiction. perior authority whose judgment is at4. The presumption that a court of sutacked collaterally for the want of jurisdiction acted within its jurisdiction when proceeding within the general scope of its powers cannot be indulged when it affirmatively appears from the pleadings or evidence that jurisdiction was wanting.+
Writ and process-service on state officer as service on foreign corporation.
5. The implied assent of a foreign inPennsylvania without complying with Pa. surance company transacting business in act of June 20, 1883, that service of process in a suit brought against it there in respect of business transacted in that state may be made upon the state insurance commissioner, as prescribed by that statute, does not extend to a suit brought by citi zens of that state on a contract of insurance executed in another state.
TION OF INDIANAPOLIS, INDIANA, IN ERROR to the Supreme Court of the
Plff. in Err.,
SARAH MCDONOUGH and John Herrity, Administrator of the Estate of Winnifred Herrity, Deceased.
Constitutional law-due process of law-enforcing foreign judgment.
1. Due process of law is denied by the action of a state court in according full faith and credit to a judgment in personam rendered by a court of a sister state against a nonresident who was not personally served with process within the state, and who made no appearance in the action. Judgment-of sister state-conclusiveness jurisdiction.
2. The jurisdiction of the court rendering a judgment or decree is open to inquiry under proper averments, where its conclusiveness is questioned in a court of another state.*
Burden of proof—in action on foreign judg
3. The burden of proof is on the plaintiffs in an action on a judgment of a sister
*Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1475.
State of Indiana to review a judgment which affirmed a judgment of the Superior Court of Marion County, in that state, in favor of plaintiffs in an action on a Pennsylvania judgment. Reversed and remanded for further proceedings.
See same case below, 164 Ind. 321, 73 N. E. 703.
The facts are stated in the opinion.
Mr. Justice Harlan delivered the opinion of the court:
This is an action in an Indiana court
against the plaintiff in error upon a judg ment against it in a Pennsylvania court. The decisive questions in the case have reference to the clause of the Constitution of credit to be given in each state to the pubthe United States, requiring full faith and lic acts, records, and judicial proceedings of other states, and, also, to the clause for
†Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 933, 934, 1471-1473.
bidding the deprivation by a state of life, liberty, or property without due process of law. There was a judgment for the plaintiffs, which was affirmed by the supreme court of the state.
and before and since till July 5th, 1900, and after. That the said the Old Wayne Mutual Life Association has no duly appointed agent in said county of Susquehanna, state of Pennsylvania, for the acceptance of serv
The questions before us arise out of facts ice of process other than the commissioner now to be stated.
of insurance of the state of Pennsylvania. 'On the 22d day of February, 1900, the de- The writ of summons in this action, duly fendants in error brought an action in the issued by the court of common pleas of court of common pleas of Susquehanna pleas of Susquehanna Susquehanna county, directing the said decounty, Pennsylvania, against the Old fendant, the Old Wayne Mutual Life AssoWayne Mutual Life Association of Indian- ciation of Indianapolis, Indiana, to appear apolis, an Indiana corporation, upon a cer- and answer, was legally and duly served on tificate or policy of life insurance dated De- the commissioner of insurance of the state cember 3d, 1897, whereby that association of Pennsylvania on the 26th day of Sepagreed to pay to Winnifred Herrity and tember, 1900, the said commissioner of inSarah McDonough, of Scranton, Pennsylva-surance for the state of Pennsylvania benia, or their legal representatives, the sum ing the proper person for service in this of $5,000 upon the condition, among others, case." that if the person whose life was insuredPatrick McNally, of Scranton, Pennsylvania-should die within one year from the date of the certificate, then Herrity and McDonough should not receive more than one fourth of the above sum. McNally died on the 14th day of November, 1898.
This was followed by a notice in that case addressed to the insurance commissioner, and stating that judgment would be taken if no appearance was entered or an affidavit of defense filed by the association within fifteen days after service of that notice. At a later date, the insurance commissioner not having appeared, and no affidavit of defense having been filed, judgment was taken against the life association, by default, April 16th, 1901.
A summons, addressed to the sheriff of Susquehanna county, Pennsylvania, was sued out and the following return thereof was made: "Served the Old Wayne Mutual Life Association of Indianapolis, Indiana, an in- The present action was brought on that surance company incorporated under the judgment. The complaint in this case, filed laws of the state of Indiana, by giving, Sep- June 21st, 1900, alleged that the defendant tember 26th, 1900, a true and attested copy association was, on the 3d day of Decemof the within writ to Israel W. Durham, ber, 1897, and long prior and subsequent insurance commissioner for the state of thereto, engaged in the transaction of busiPennsylvania, and making known to him ness in Pennsylvania. After setting out the contents thereof, the said association the provisions of the statute of Pennsylvania having no attorney in the state of Pennsyl-(to be presently referred to), the issuing of vania upon whom service could be made." the policy, the death of McNally, and the It does not appear, if the fact be material, making of the requisite proofs of loss, the that any notice of this summons was given complaint alleged that process in the Pennby the commissioner to the defendant. sylvania case was served upon the insurSubsequently, the plaintiffs filed a dec-ance commissioner for Pennsylvania, "the laration or statement in the Pennsylvania case, which contained, among other things, the following: "That the said the Old Wayne Mutual Life Association of Indianapolis, Indiana, defendant, is a mutual life insurance association, foreign to the state of Pennsylvania, to wit: of the state of Indiana, as aforesaid, and as such has been doing business of life insurance in the state of Pennsylvania, more particularly in the counties of Susquehanna and Lackawanna, in said state of Pennsylvania, issuing policies of life insurance to numerous and divers residents of said counties and state for many years, upon application therefor taken in said counties of Susquehanna and Lackawanna, and was transacting such business of life insurance in said state and counties on the 3d day of December, 1897,
said defendant having no other agent or attorney upon whom process could be served in said state of Pennsylvania."
The defendant demurred to the complaint as insufficient in law, but the demurrer was overruled. It then filed its answer, denying "each and every material allegation" in the complaint. In a separate paragraph it alleged that its only offices for the transaction of business were, and at all times had been, at Indianapolis, Indiana, where its officers had always resided; that it had never been admitted to do business in Pennsylvania, and never had an office or agency there for the transaction of business; that no one of its officers or agents was in that commonwealth at the date of the alleged suit, nor had been there since; that no summons was ever served upon it at any
time, and that it did not appear in that action; that no one ever appeared for it there who had authority to do so; and that the first notice or knowledge it ever had of the alleged judgment against it was long after the day when it appears to have been rendered.
The plaintiffs replied, denying each and every material allegation of the answer.
no jurisdiction, it is not perceived how any allegation contained in the record itself, however strongly made, can affect the right so to question it. The very object of the evidence is to invalidate the paper as a record. If that can be successfully done no statements contained therein have any force. If any such statements could be used to prevent inquiry, a slight form of words The plaintiff in error insists that the might always be adopted so as effectually Pennsylvania court had no jurisdiction to to nullify the right of such inquiry. Reproceed against it; consequently the judg- citals of this kind must be regarded like ment it rendered was void for the want of asseverations of good faith in a deed, which the due process of law required by the 14th avail nothing if the instrument is shown Amendment. If the defendant had no such to be fraudulent." This decision was in haractual, legal notice of the Pennsylvania suit mony with previous decisions. Chief Jusas would bring it into court, or if it did tice Marshall had long before observed in not voluntarily appear therein by an au- Rose v. Himely, 4 Cranch, 241, 269, 2 L. ed. thorized representative, then the Pennsyl- 608, 617, that, upon principle, the operation vania court was without jurisdiction, and of every judgment must depend on the powthe conclusion just stated would follow, er of the court to render that judgment. even if the judgment would be deemed con- In Williamson v. Berry, 8 How. 495, 540, clusive in the courts of that commonwealth. 12 L. ed. 1170, 1189, it was said to be well The constitutional requirement that full settled that the jurisdiction of any court faith and credit shall be given in each state exercising authority over a subject "may to the public acts, records, and judicial pro- be inquired into in every other court when ceedings of every other state is necessarily the proceedings in the former are relied upto be interpreted in connection with other on and brought before the latter by a party provisions of the Constitution, and there- claiming the benefit of such proceedings," fore no state can obtain in the tribunals of and that the rule prevails whether "the deother jurisdictions full faith and credit for cree or judgment has been given in a court its judicial proceedings if they are wanting of admiralty, chancery, ecclesiastical court, in the due process of law enjoined by the or court of common law, or whether the fundamental law. "No judgment of a court point ruled has arisen under the laws of is due process of law, if rendered without nations, the practice in chancery, or the mujurisdiction in the court, or without notice nicipal laws of states." In his Commentato the party." Scott v. McNeal, 154 U. S. ries on the Constitution, Story, § 1313, re34, 46, 38 L. ed. 896, 901, 14 Sup. Ct. Rep. ferring to Mills v. Duryee, 7 Cranch, 481, 1108. No state can, by any tribunal or 484, 3 L. ed. 411, 413, and to the constiturepresentative, render nugatory a provision tional requirement as to the faith and credof the supreme law. And if the conclusive-it to be given to the records and judicial ness of a judgment or decree in a court of one state is questioned in a court of another government, Federal or state, it is open, under proper averments, to inquire whether the court rendering the decree or judgment had jurisdiction to render it.
Such is the settled doctrine of this court. In the leading case of Thompson v. Whitman, 18 Wall. 457, 468, 21 L. ed. 897, 901, the whole question was fully examined in the light of the authorities. Mr. Justice Bradley, speaking for the court and delivering its unanimous judgment, stated the conclusion to be clear that the jurisdiction of a court rendering judgment in one state may be questioned in a collateral proceeding in another state, notwithstanding the averments in the record of the judgment itself. The court, among other things, said that if it be once conceded that "the validity of a judgment may be attacked collaterally by evidence showing that the court had
proceedings of a state, said: "But this
averments respecting the facts presumed. | the commissioner of insurance for PennsylThey have no place for consideration when vania, the defendant association not having the evidence is disclosed or the averment is appointed an agent in that commonwealth made. When, therefore, the record states upon whom process could be served nor havthe evidence or makes an averment with ing appeared by an attorney or representareference to a jurisdictional fact, it will tive. 3. That, the insurance commissioner be understood to speak the truth on that not having appeared in the action, judgment point, and it will not be presumed that was taken against the defendant; and that there was other or different evidence re- is the judgment here in suit. specting the fact, or that the fact was otherwise than as averred." In the same case: "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court; by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered." The question of the jurisdiction of the Pennsylvania court being, then, open, on this record, let us see what presumptions arise from the showing made by it.
The complaint in this case, as we have seen, alleged that on the 3d day of December, 1897, the date of the insurance certificate, as well as prior and subsequent thereto, the defendant association engaged in business in Pennsylvania, soliciting applications for insurance and issuing policies to residents of that commonwealth. The anThe answer denied each and every material allegation in the complaint, and such a denial under the Indiana Code of Civil Procedure was sufficient to put the plaintiffs upon proof of every fact that was essential in establishing their cause of action. Thornton's Code Ind. art. 10, § 47, title "Pleadings;" U. S. Rev. Stat. § 914, U. S. Comp. Stat. 1901, p. 684.
The burden of proof was therefore upon the plaintiffs to show by what authority the Pennsylvania court could legally enter a personal judgment against a corporation which, according to the complaint itself, was a corporation of another state, and was not alleged to have appeared in person or by an attorney of its own selection, or to have been personally served with process. This burden the plaintiffs met by introducing in evidence a complete transcript of the record of the action in the Pennsylvania court, from which it appeared: 1. That the defendant association was sued in the Pennsylvania court as a life insurance association of Indiana, was alleged to have been engaged in business in Pennsylvania, and was so engaged before and after the certificate of insurance in question was issued. 2. That the summons in that action was served on
It was further made to appear in the present action that when the contract of insurance was executed, as well as before and since, it was provided by a statute of Pennsylvania, approved June 20th, 1883, amendatory of a previous statute of that commonwealth establishing an insurance department, as follows: "No insurance company not of this state, nor its agents, shall do business in this state until it has filed with the insurance commissioner of this state a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company, served on the insurance commissioner, or the party designated by him, or the agent specified by the company to receive service of process for said company, shall have the same effect as if served personally on the company within this state, and, if such company should cease to maintain such agent in this state so designated, such process may thereafter be served on the insurance commissioner; but, so long, as any liability of the stipulating company to any resident of this state continues, such stipulation cannot be revoked or modified, except that a new one may be substituted, so as to require or dispense with the service at the office of the said company within this state, and that such service of process according to this stipulation shall be sufficient personal service on the company. The term "process" shall be construed to mean and include any and every writ, rule, order, notice, or decree, including any process of execution that may issue in or upon any action, suit, or legal proceeding to which said company may be a party by themselves, or jointly with others, whether the same shall arise upon a policy of insurance or otherwise, by or in any other court of this commonwealth having jurisdiction of the subject-matter in controversy, and, in default of an agent appointed by the company, as aforesaid, then the officer so charged with the service of said process shall, in like manner, deputize the sheriff, constable, or other officer aforesaid of the county where the agent, if any there be, named by the insurance commissioner, may reside, to serve the same on him, and, in default of such agent named by such commissioner, as aforesaid, then in like manner