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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 "It cannot at the present day be doubted notice.

that Congress, under the power to regulate Another contention, in support of which commerce among the several states, as well plaintiff has presented a voluminous argu- as to provide for postal accommodations ment, is that the United States has no pow. and military exigencies, had authority to er to engage in the work of digging this pass these laws. The power to construct, canal. His first proposition is that the ca- or to authorize individuals or corporations nal zone is no part of the territory of the to construct, national highways and bridges United States, and that, therefore, the gov- from state to state, is essential to the ernment is powerless to do anything of the complete control and regulation of interkind therein. Article 2 of the treaty, here- state commerce. Without authority in Contofore referred to, "grants to the United gress to establish and maintain such highStates in perpetuity the use, occupation, ways and bridges, it would be without auand control of a zone of land and land under thority to regulate one of the most imporwater for the construction, maintenance, tant adjuncts of commerce. This power in operation, sanitation, and protection of said former times was exerted to a very limited canal.” By article 3, Panama "grants to extent, the Cumberland or National road the United States all the rights, power, and being the most notable instance.

Its exerauthority within the zone mentioned and tion was but little called for, as commerce described in article 2 of this agreement, was then mostly conducted by water, and

which the United States would pos- many of our statesmen entertained doubts sess and exercise if it were the sovereign as to the existence of the power to estabof the territory within which said lands and lish ways of communication by land. But waters are located, to the entire exclusion since, in consequence of the expansion of the of the exercise by the Republic of Panama country, the multiplication of its products, of any such sovereign rights, power, or au- and the invention of railroads and locomothority.”

tion 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

In Luxton v. North River Bridge Co. 153 on either side is immaterial. Such dis- U. S. 525, 529, 38 L. ed. 808, 810, 14 Sup. putes not infrequently attend conveyances

Ct. Rep. 891, 892, Mr. Justice Gray, speakof real estate or cessions of territory. Alas-ing for the court, says: ka was ceded to us forty years ago, but the tions as appropriate means of executing the

“Congress, therefore, may create corporaboundary between it and the English poso powers of government; as, for instance, a sessions east was not settled until within bank for the purpose of carrying on the the last two or three years. Yet no one fiscal operations of the United States, or a ever doubted the title of this Republic to railroad corporation for the purpose of proAlaska.

moting 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 state, where the answer contains a general Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073. denial, which, under the local procedure, is Congress has likewise the power, exercised sufficient to put plaintiff's upon proof of early in this century by successive acts in every fact essential in establishing the case of the Cumberland or National road, the court of such other state could legally

cause of action, to show by what authority from the Potomac across the Alleghenies to enter the judgment sued upon, which was the Ohio, to authorize the construction of a one in personam against a corporation, public highway connecting several states. which, according to the complaint itself, See Indiana v. United States, 148 U. S. 148, was a corporation of another state, and was 37 L. ed. 401, 13 Sup. Ct. Rep. 564.”

not alleged to have appeared in person, or See also Monongahela Nav. Co. v. United by an attorney of its own selection, or to States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. have been personally served with process

within the state. Ct. Rep. 622.

These authorities recognize the power of Evidence--presumption as to jurisdiction. Congress to construct interstate highways. I perior authority whose judgment is at

4. The presumption that a court of suA fortiori, Congress would have like power tacked collaterally for the want of jurisdicwithin the territories and outside of state tion acted within its jurisdiction when prolines, for there the legislative power of Con- ceeding within the general scope of its powgress is limited only by the provisions of ers cannot be indulged when it affirmatively the Constitution, and cannot conflict with appears from the pleadings or evidence that the reserved power of the states. Plaintiff, jurisdiction was wanting. recognizing the force of these decisions, Writ and process-service on state officer seeks to obviate it by saying that the ex

as service on foreign corporation. pressions were obiter dicta; but plainly

5. The implied assent of a foreign inthey were not. They announce distinctly Pennsylvania without complying with Pa.

surance company transacting business in the opinion of this court on the questions act of June 20, 1883, that service of process presented, and would have to be overruled in a suit brought against it there in reif a different doctrine were now announced. spect of business transacted in that state Congress has acted in reliance upon these may be made upon the state insurance comdecisions in many ways, and any change missioner, as prescribed by that statute, would disturb a vast volume of rights sup- does not extend to a suit brought by citiposed to be fixed; but we see no reason to zens of that state on a contract of insurdoubt the conclusions expressed in those ance executed in another state. opinions, and adhere to them. The Court

[No. 57.] of Appeals was right, and its decision is affirmed.

Argued October 25, 1906. Decided January

7, 1907. OLD WAYNE MUTUAL LIFE ASSOCIATION OF INDIANAPOLIS, INDIANA, INERROR to the Supreme Court of the in .,

State of Indiana to review a judgment V.

which affirmed a judgment of the Superior SARAH MCDONOUGH and John Herrity, Court of Marion County, in thạt state, in

Administrator of the Estate of Winnifred favor of plaintiffs in an action on a PennHerrity, Deceased.

sylvania judgment. Reversed and remanded

for further proceedings. Constitutional law-due process of law-en

See same case below, 164 Ind. 321, 73 N. forcing foreign judgment.

E. 703. 1. Due process of law is denied by the action of a state court in according full

The facts are stated in the opinion. faith and credit to a judgment in personam

Mr. A. S. Worthington for plaintiff in errendered by a court of a sister state against ror. a nonresident who was not personally served No counsel for defendants in error, with process within the state, and who made no appearance in the action.

Mr. Justice Harlan delivered the opinion Judgment-of sister state-conclusiveness of the court: jurisdiction.

This is an action in an Indiana court 2. The jurisdiction of the court render-against the plaintiff in error upon a judg. ing a judgment or decree is open to inquiry ment against it in a Pennsylvania court. under proper averments, where its conclusiveness is questioned in a court of another. The decisive questions in the case have refstate.*

erence to the clause of the Constitution of Burden of — proof—in action on foreign judg- credit to be given in each state to the pub

the United States, requiring full faith and ment.

3. The burden of proof is on the plain- lic acts, records, and judicial proceedings tiffs in an action on a judgment of a sister of other states, and, also, to the clause forbidding the deprivation by a state of life, and before and since till July 5th, 1900, and liberty, or property without due process of after. That the said the Old Wayne Mutual law. There was a judgment for the plain- Life Association has no duly appointed tiffs, which was affirmed by the supreme agent in said county of Susquehanna, state court of the state.

*Ed. Note.-For cases in point, see vol. 30, Cent. + Ed. Note.-For cases in point, see vol. 30, Cent Dig. Judgment, $ 1475.

Dig. Judgment, $$ 933, 934, 1471-1473.

of Pennsylvania, for the acceptance of servThe 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 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 30, 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 suming the proper person for service in this of $5,000 upon the condition, among others, case.” that if the person whose life was insured- This was followed by a notice in that case Patrick McNally, of Scranton, Pennsylva- addressed to the insurance commissioner, nia-should die within one year from the and stating that judgment would be taken date of the certificate, then Herrity and Mc- if no appearance was entered or an affidavit Donough should not receive more than one of defense filed by the association within fourth of the above sum. McNally died on fifteen days after service of that notice. the 14th day of November, 1898.

At a later date, the insurance commissionA summons, addressed to the sheriff of er not having appeared, and no affidavit Susquehanna county, Pennsylvania, was sued defense having been filed, judgment was out and the following return thereof was taken against the life association, by demade: "Served the Old Wayne Mutual Life fault, April 16th, 1901. 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 insur

Subsequently, the plaintiff's filed a dec- ance commissioner for Pennsylvania, “the laration or statement in the Pennsylvania said defendant having no other agent or case, which contained, among other things, attorney upon whom process could be the following: “That the said the Old served in said state of Pennsylvania.” Wayne Mutual Life Association of Indian- The defendant demurred to the complaint apolis, Indiana, defendant, is a mutual life as insufficient in law, but the demurrer was insurance association, foreign to the state overruled. It then filed its answer, denying of Pennsylvania, to wit: of the state of “each and every material allegation” in the Indiana, as aforesaid, and as such has been complaint. In a separate paragraph it aldoing business of life insurance in the state leged that its only offices for the transacof Pennsylvania, more particularly in the tion of business were, and at all times had counties of Susquehanna and Lackawanna, been, at Indianapolis, Indiana, where its ofin said state of Pennsylvania, issuing poli- ficers had always resided; that it had nevcies of life insurance to numerous and di-er been admitted to do business in Pennvers residents of said counties and state sylvania, and never had an office or agency for many years, upon application therefor there for the transaction of business; that taken in said counties of Susquehanna and no one of its officers or agents was in that Lackawanna, and was transacting such busi- commonwealth at the date of the alleged ness of life insurance in said state and suit, nor had been there since; that no counties on the 3d day of December, 1897, summons was ever served upon it at any time, and that it did not appear in that no jurisdiction, it is not perceived how any action; that no one ever appeared for it allegation contained in the record itself, there who had authority to do so; and however strongly made, can affect the right that the first notice or knowledge it ever so to question it. The very object of the had of the alleged judgment against it was evidence is to invalidate the paper as a long after the day when it appears to have record. If that can be successfully done no been rendered.

statements contained therein have any The plaintiffs replied, denying each and force. If any such statements could be used every material allegation of the answer. 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 I. 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 proceedings of a state, said: “ But this one state is questioned in a court of another does not prevent an inquiry into the jurisgovernment, Federal or state, it is open, diction of the court in which the original under proper averments, to inquire whether judgment was given, to pronounce it; the court rendering the decree or judgment the right of the state itself to exercise auhad jurisdiction to render it.

thority over the person or the subject-matSuch is the settled doctrine of this court. ter. The Constitution did not mean to conIn the leading case of Thompson v. Whit- fer [upon the states] a new power or juman, 18 Wall. 457, 468, 21 L. ed. 897, 901, risdiction, but simply to regulate the effect the whole question was fully examined in of the acknowledged jurisdiction over perthe light of the authorities. Mr. Justice sons and things within the territory.'” In Bradley, speaking for the court and de- the later case of Galpin v. Page, 18 Wall. livering its unanimous judgment, stated the 350, 365, 366, 368, 21 L. ed. 959, 962, 963,conclusion to be clear that the jurisdiction decided after, but at the same term as, of a court rendering judgment in one state Thompson v. Whitman,—the court, after may be questioned in a collateral proceed - referring to the general rule as to the preing in another state, notwithstanding the sumption of jurisdiction in superior courts averments in the record of the judgment it- of general jurisdiction, said that such preself. The court, among other things, said sumptions "only arise with respect to juthat if it be once conceded that "the validi- risdictional facts concerning which the recty of a judgment may be attacked collater- ord is silent Presumptions are only inally by evidence showing that the court had | dulged to supply the absence of evidence or 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 other- It was further made to appear in the pres. wise than as averred." In the same case:

ent action that when the contract of in"It is a rule as old as the law, and never surance was executed, as well as before and more to be respected than now, that no one since, it was provided by a statute of Pennshall be personally bound until he has had sylvania, approved June 20th, 1883, amendhis day in court; by which is meant until atory of a previous statute of that comhe has been duly cited to appear, and has monwealth establishing an insurance debeen afforded an opportunity to be heard. partment, as follows: "No insurance comJudgment without such citation and oppor- pany not of this state, nor its agents, shall tunity wants all the attributes of a ju- do business in this state until it has filed dicial determination; it is judicial usurpa- with the insurance commissioner of this tion and oppression, and never can be up- state a written stipulation, duly authentiheld where justice is justly administered." cated by the company, agreeing that any

The question of the jurisdiction of the legal process affecting the company, served Pennsylvania court being, then, open, on on the insurance commissioner, or the parthis record, let us see what presumptions ty designated by him, or the agent specified arise from the showing made by it. by the company to receive service of proc

The complaint in this case, as we have ess for said company, shall have the same seen, alleged that on the 3d day of Decem- effect as if served personally on the comber, 1897,--the date of the insurance certifi-pany within this state, and, if such comcate,-as well as prior and subsequent there- pany should cease to maintain such agent to, the defendant association engaged in in this state so designated, such process business in Pennsylvania, soliciting applica- may thereafter be served on the insurance tions for insurance and issuing policies to commissioner; but, so long, as any liability residents of that commonwealth. The an- of the stipulating company to any resident swer denied each and every material al- of this state continues, such stipulation legation in the complaint, and such a denial cannot be revoked or modified, except that under the Indiana Code of Civil Procedure a new one may be substituted, so as to rewas sufficient to put the plaintiffs upon quire or dispense with the service at the proof of every fact that was essential in office of the said company within this state, establishing their cause of action. Thorn- and that such service of process according ton's Code Ind. art. 10, § 47, title "Plead to this stipulation shall be sufficient personings;” U. S. Rev. Stat. & 914, U. S. Comp. al service on the company. The term Stat. 1901, p. 684.

"process" shall be construed to mean and The burden of proof was therefore upon include any and every writ, rule, order, nothe plaintiffs to show by what authority the tice, or decree, including any process of Pennsylvania court could legally enter a per- execution that may issue in or upon any acsonal judgment against a corporation which, tion, suit, or legal proceeding to which said according to the complaint itself, was a cor company may be a party by themselves, or poration of another state, and was not al-jointly with others, whether the same shall leged to have appeared in person or by an arise upon a policy of insurance or otherattorney of its own selection, or to have been wise, by or in any other court of this compersonally served with process. This bur- monwealth having jurisdiction of the subden the plaintiffs met by introducing in evi-ject-matter in controversy,

and, dence a complete transcript of the record in default of an agent appointed by the of the action in the Pennsylvania court, company, as aforesaid, then the officer so from which it appeared: 1. That the defend. charged with the service of said process ant association was sued in the Pennsylva- shall, in like manner, deputize the sheriff, nia court as a life insurance association of constable, or other officer aforesaid of the Indiana, was alleged to have been engaged county where the agent, if any there be, in business in Pennsylvania, and was so named by the insurance commissioner, may engaged before and after the certificate of reside, to serve the same on him, and, in insurance in question was issued. 2. That default of such agent named by such comthe summons in that action was served on missioner, as aforesaid, then in like manner

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