150 Iowa 511 | Iowa | 1911
Lead Opinion
The special proceeding in which this plaintiff was adjudged to be of unsound mind and Mullin was appointed guardian was instituted in the district court of Iowa County, and personal service was made upon this plaintiff while he was in fact within the limits of the state' of South Dakota. The petition in such proceeding did not allege the place of residence of the defendant therein, but it is now stipulated that his legal residence was in Iowa County. Adopting a different order of discussion from that followed in appellant’s brief, we shall consider the three propositions relied upon for appellant to show that the judgment in the guardianship proceeding was void for want of jurisdiction, and should now be set aside on that ground. These are, first, that John Raher was not an inhabitant of Iowa County where the special proceeding was instituted, and therefore the court had no jurisdiction to adjudicate the question of his mental capacity and appoint a guardian for him; second, that the statutes of the state do not authorize a personal judgment against a defendant personally served with notice and not appearing in the action; and, third, that if such
The sections above referred to are all found in the chapter of the Code relating to the “manner of commencing actions,” but in the chapter relating to “trial and judgment” is found the following provision: “No personal judgment shall be rendered against a defendant served by publication only who has not made an appearance; but a personal judgment may be rendered against a defendant,
In Bates v. Chicago & N. W. R. Co., 19 Iowa, 260, it is said with reference to the provision of section 3164 of the Eevision of 1860 that “this section does not extend
It is to be noted in passing that the provision above referred to in the Revision of 1860 was applicable alike to residents and nonresidents, for the concluding clause of the section as it now stands, limiting its application to residents, was added in _the present Code (section 3800) with this explanation by the commissioners: “The added clause makes clear what is already probably the law; personal service on a nonresident ought not to. have any effect on his rights different from that resulting from publication.” See Code Commissioners’ Report, 1896, page 104. It is therefore quite apparent that what the Legislature in adopting the Civil Code of 1860 attempted to do ivas to authorize some kind of a judgment alike against residents and nonresidents on personal service out of the state, without the preliminary seizure of any property which would give the court jurisdiction in rem, and the question we have to determine is whether such a judgment is of any validity within the state.
After examining all the cases which we have been able to find bearing directly or remotely on the question, we reach the conclusion that no court of last resort in any of the states of the Union has upheld such a judgment, as against an attack based on the want of authority of the state to authorize such a judgment or the want of authority of the court to render it. Thus in Henderson v. Staniford, 105 Mass. 504 (7 Am. Rep. 551), in which defendant, sued in Massachusetts, defended on the ground that a judgment had previously been rendered against him for the same cause of action in California, it was said that although defendant was not in California when the action was commenced against him there, or at any time during its pendency, and no notice or service of process was ever made upon him personally, and although he did not appear by counsel or otherwise or assent to the judgment which was rendered on default, yet, as he had been a citizen of California where the contract was made, and that continued to be his legal domicile when the judgment was rendered, “he was, therefore, upon principles of international law, subject to the laws, and jurisdiction of the courts of that state,” (Citing Story, Conflict of Laws, sections 546 and 548, and Massachusetts cases). But the decision is grounded on the view, not that the judgment was valid, but that, as plaintiff had taken a judg
There are cases in which a defendant not served within the jurisdiction of the court is held bound by the decision ; as, for instance, it is said that one ■ who is bail for another is bound by the judgment, although not himself subject to the court’s jurisdiction (McRae v. Mattoon, 13 Pick. 53), and that one of two joint debtors,. although not within the court’s jurisdiction, is bound by a judgment against his codebtor. Harker v. Brink, 24 N. J. Law, 333. But in these cases nothing is said about the power of a court to take jurisdiction of a defendant who is not served with personal notice. in the state. And it is doubtful whether the propositions announced in these cases are sound, if given effect according to the general language used. See, for instance, Holt v. Alloway, 2 Blackf. (Ind.) 108, where a Kentucky judgment against a person resident in that state, who was adjudged liable as bail without personal notice, was held not absolutely void, but only prima facie valid, and not-conclusive. In Bowler v. Houston, 30 Grat. (Va.) 266 (32 Am. Rep. 673), it was said that a judgment rendered in another state against all the former members of a dissolved partnership without personal service on some of them could not be enforced in that state as a personal judgment against those not served, although by the law of the state where rendered it was enforceable against their joint property. And in Phelps v. Brewer, 9 Cush. (Mass.) 390 (57 Am. Dec. 56), it was said that a judgment against a partnership could not be enforced outside of the jurisdiction as a personal judgment against one of the partners not served with'process.
In Bimeler v. Dawson, 4 Scam. (Ill.) 536 (39 Am. Dec. 430), it is said that it is competent for a state to declare what manner of process shall be sufficient to. bring its citizens into court, although its regulations can
Another class of casés may be referred to in which it has been said, in a general way, that a defendant not within the state may be brought within the jurisdiction of its courts. These are cases where the statute authorizes service upon a resident agent of a nonresident corporation' which the corporation, as a condition of doing business within the state, is required to appoint for that purpose. Gillespie v. Commercial Mut. Marine Ins. Co., 12 Gray (Mass.) 201 (71 Am. Dec. 743). And, see, Pennoyer v. Neff, 95 U. S. 714, 735 (24 L. Ed. 565), where the reason for this rule is clearly stated. Likewise, personal service within the state on the president of a foreign corporation has been held good as against the corporation (Mexican Railroad v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699), and special appearance to object to a service made outside the state may by statute confer jurisdiction. York v. Texas, 137 U. S. 15 (11 Sup. Ct. 9, 31 L. Ed. 604).
Some English cases seem' to recognize the validity of unusual forms of service on absent defendants who are citizens of the state which authorize such service; but they are not in point here, for they involve acts done within and not without the state. Douglass v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Adol. 941. The point actually decided in Schibsby v. Westenholz, L. R. 6
It must he conceded, however, that we have found no case in which it has been specifically held under pertinent facts that a personal judgment against a resident, who is actually served with notice outside of the territorial limits of the state is void. But in many cases, and in some of the texts, are to be found unqualified statements that the laws of the state have, no extraterritorial force, and that process served outside of the state will not give the court jurisdiction. See, in general, Weil v. Lowenthal, 10 Iowa, 575; Hakes v. Shupe, 27 Iowa, 465; Lutz v. Kelly, 47 Iowa, 307; Bank of Horton v. Knox, 133 Iowa, 443; Harkness v. Hyde, 98 U. S. 476 (25 L. Ed. 237). Ewer v. Coffin, 1 Cush. (Mass.) 23 (48 Am. Dec. 587); Hunt v. Searcy, 167 Mo. 158 (67 S. W. 206); Cross v. Armstrong, 44 Ohio St. 613 (10 N. E. 160) ; Steel v. Smith, 7 Watts & S. (Pa.) 447; Reber v. Wright, 68 Pa. 471; McEwan v. Zimmer, 38 Mich. 765 (31 Am. Rep. 332) ; Irby v. Wilson, 21 N. C. 568; Bernhardt v. Brown, 118
We are not concerned here as to what is sufficient no
It may be conceded that none of the cases hereinbefore cited expressly hold under pertinent facts that service outside of the state is ineffectual to confer jurisdiction upon a court of the state to render personal judgment, if the statutes provide for such service. And this is not surprising in view of the fact that those cases, as well as others cited in the earlier portion of this opinion, almost without exception relate to the enforcement in another state of judgments rendered without the jurisdiction of the person of the defendant in the court rendering such judgment. The right to enforce such judgments is predicated in general upon the injustice and consequent impropriety of thus giving effect to such a judgment of another state. Judge Cooley pertinently states this view in McEwan v. Zimmer, 38 Mich. 765 (31 Am. Rep. 332), as follows: “The question, then, seems to be narrowed to this, whether the service of process beyond the jurisdiction of the court issuing it, can impose upon the party served the obligation to appear in the suit and make there his defense if he has any. If this question must be answered in the affirmative as regards a judgment rendered in Canada, it must receive a like answer when it contemplates a judgment rendered on a like service in New Zealand, or in one of the colonial courts of the Dutch East Indies. The question therefore is not one to be disposed of on a consideration merely of how this defendant might be affected; but it suggests the possible eases of citizens of this coun
What we conceive to the true rule is stated in Story, Conflict of Laws, section 539 (a passage quoted in many of the cases which we have cited and in our own cases of Weil v. Lowenthal, 10 Iowa, 575, and Lutz v. Kelly, 47 Iowa, 307, as well as in Pennoyer v. Neff, hereinafter fully considered) : “No sovereignty can extend its process beyond its own* territorial limits to subject either persons or property to its judicial - decisions. ' Every exercise of authority of this sort beyond this limit is a mere nullity and incapable of binding' such person or property in any other tribunals.”
The same rule is thus stated in Cooley, Constitutional Limitations (7th Ed.) 582: “No state has authority to invade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination’ of its courts;” and, in the same connection, this statement is made (page 583): “Due^proeéss of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.” This last form of announcing this rule is quoted also in Pennoyer v. Neff.
In England it has been held, notwithstanding statutory provisions for service of notice on absent defendants, that a personal judgment thus rendered in another country against a person' not there resident will be given no effect by the courts of England. Schibsby v. Westenholz, L. R. 6 Q. B. 154.
Now, conceding for the sajke of argumént, that the courts of England or of' France would under pertinent statutory provision's sustain a personal judgment against a resident on service made abroad (as to which something
Since the adoption of the fourteenth amendment to the federal Constitution in 1868, this question has frequently been presented to the Supreme Court of the United States with reference to the validity of such judgments in different states, and the leading case on the subject is that of Pennoyer v. Neff, 95 U. S. 714 (24 L. Ed. 565), in which the question was whether a personal judgment rendered in Oregon, in pursuance of service under statutory • provisions of that state, on a defendant who was not then within the limits of the state, was valid in such sense as to sustain the sale of his property on execution. The court refers to cases in-which judgments which could not have been enforced outside the state had been held valid in the state, but says that such a view is expressed less frequently than formerly, “it beginning to be considered, as it ought always to have been, that a judgment which can be treated in any state of- the Union -as contrary to the -first principles of justice and an absolute
It is plain therefore that whatever is said in Pennoyer v. Neff, with reference to whether a personal judgment against a defendant not served with process or notice within the state and not entering an appearance or otherwise voluntarily conferring jurisdiction upon the court, is intended to be applicable alike to cases of residents and nonresidents, and these expressions of view leave no possible doubt in our minds as to what the Supreme Court of the United States would hold as to the validity of the judgment now before us. The court says (at page 723 of 95 U. S. (24 L. Ed. 565)): “The authority of every tribunal. is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to ex
After the statement of these propositions, the court proceeds to consider some apparent, exceptions to or necessary qualifications of its general language. But although it had already directed its attention to the possible distinction between the case of a resident and that of a nonresident served outside of the state, it does not make any qualifications whatever as to the case of a resident. And we are therefore satisfied that what is said as to due process of law is intended to be applicable to any personal
The broad view which is expressed in Pennoyer v. Neff is unequivocally reiterated in Harkness v. Hyde, 98 U. S. 476 (25 L. Ed. 237), in which this language is used: “There can be no jurisdiction in a court of a territory to render a personal judgment against any one upon service made outside its limits. Personal service within its limits, or the personal appearance of the defendant, is essential in such cases.”
This opinion has gone much beyond the limits which the arguments of counsel would warrant, for the reason that there is involved the constitutionality of a provision found in our statutes, and some of the members of this court have entertained a reasonable doubt as to the conclusion which ought to be reached. We have now no hesitation, however, in announcing our conclusion that a state can not by providing for personal service outside of its territorial limits authorize its courts to render personal judgment against a defendant thus served. The judgment in the proceedings for the appointment of a guardian of the property of this plaintiff, predicated upon service of notice upon him in South Dakota, was therefore void, and the trial court erred in not so holding.
The action of the lower court in refusing on plain
Dissenting Opinion
(dissenting). — This case is so important in its results that, while I am not prepared to dissent from the final conclusion in so far as this particular case is concerned, I am very doubtful about the argument used in support of the opinion and fearful of the results which may follow. The majority hold that in no case can an absent defendant be brought into court and personal judgment rendered against him, no-matter what his residence or domicile. Again, the majority hold, as I understand it, that an original notice under our practice is in the nature of -process, and that it is of no efficacy if served outside the state. If this be true, then service outside the state is of no efficacy whatever, even where the court has jurisdiction of the res. In such cases some sort of notice to the defendant must be given to constitute due process of law, and if the majority opinion is to prevail, no judgment heretofore rendered in attachment, divorce, and other .proceedings in rent, where service was made outside the state, is of any validity, for process outside the state is ineffective for any- purpose whatever. We have several times held that an original notice is not a process of court. Nichols v. Burlington Road Co., 4 G. Greene, 42.; Klingel v. Palmer, 42 Iowa, 166. If this be not true, then it follows that there can never be personal service of notice without the state. I am aware that as a matter of first impression nearly every lawyer will say that no personal judgment can be rendered upon service by publication, or any other form of constructive service, and such - w*as my view when the case was first stated; but in' looking up the authorities I found it' necessary to modify my views, and I am now of opinion that the majority are carrying the rule too far and that there is no necessity for déclaring'three "separate statutes of
“Service may be made by publication, when an affidavit is filed that personal service can not be made on the defendant, within this state, in either of the following cases:
“7. In all actions where the defendant, being a resident of the state, has departed therefrom, or from the county of his residence,' with intent to delay or defraud his creditors, or to avoid the service of a notice, or keeps himself concealed therein with like intent.” Code, section 3534.
“Actual personal service of the notice within or without the state supersedes the necessity of publication.” Code, section 3537.
“No personal judgment shall be rendered against a defendant served by publication 'only who has not made an appearance; but a personal judgment may be rendered against a defendant whether he appears or not, who has been served in any mode provided in this Code other than by publication, whether • served within or without this state, if such defendant is a resident of the state.” Code, section 3800.
Courts should hesitate long before declaring any statute unconstitutional. Such power is a delicate one and should never be exercised, except where no doubt exists as to the excess of legislative authority. The simple question, as 1 view it, is this: Can the Legislature provide for constructive or substituted service of notice upon a resident of this state, who is temporarily absent therefrom, of a purely personal action? With the “full faith and credit” clause of the federal Constitution (article 4)
We have affirmed this doctrine in Lyman v. Plummer, 75 Iowa, 353, and Johnson v. Board, 148 Iowa, 539, recently decided by this court, and it is so fundamental that I need not take the time to cite other authorities. • Following this doctrine to its final conclusion it has been held in many cases that constructive or substituted service of notice upon a citizen and resident is sufficient basis for a personal judgment and constitutes due process of law, although at the time of service the defendant was temporarily out of the state. See Botna Valley Bank v. Silver City Bank, 87 Iowa, 479; Knowles v. Gaslight Co., 86 U. S. 58 (22 L. Ed. 70); Galvin v. Dailey, 109 Iowa, 332; Beard v. Beard, 21 Ind. 321; Thouvenin v. Rodrigues, 24 Tex. 468; Buford v. Kirkpatrick, 13 Ark. 33; Nunn v. Sturges, 22 Ark. 389; Mitchell v. Garrett, 5 Houst. (Del.) 34; Huntley v. Baker, 33 Hun (N. Y.) 578; Fernandez v. Casey (decided May 27, 1890) 77 Tex. 452 (14 S. W. 149) ; Harryman v. Roberts, 52 Md. 64.
The distinction between constructive and substituted service' upon residents and nonresidents is very fundamental. -In the one case the resident consents to the state law; is subject to-the jurisdiction of the. state and amenable to its laws, especially those relating to service of process. It becomes important then to determine what is due process of law. In settling this inquiry we should assume, .1 think, that if, before the adoption of the Constitution or before the adoption of the fourteenth amendment, we find that ■• personal judgment might have been
In Schibsby v. Westenholz, L. R. 6 Q. B. 155 (24 T. N. S. 93, 19 Week. Rep. 58), the court said: “If the defendants had been at the time of the judgment subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the 'country, so as to-have the benefit of its laws protecting them, or as it is sometimes expressed, owing temporary allegiance to that country, we think that 'its laws would have bound them. If at the time when the obligation was contracted the defendants were within the .foreign country, but left it before the suit was instituted, we should be inclined to think the laws 'of that country bound them.”
In Chopin's case the court said: “It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.” This was said in a case where the matter of enforcing a French judgment was involved. In that case judgment had been rendered by a French court against a shareholder of a French company who was not a resident of nor domiciled in France, on process served in the manner prescribed by a French statute.
In' Bernhardt v. Brown, 118 N. C. 700 (24 S. E. 527, 36 L. R. A. 402), the Supreme Court of North Carolina said: “There can be no question that the state has the right to prescribe that service upon parties residing here can be made by publication when such parties can not, after due diligence, be found, not only in those cases in which it can be averred by affidavit that they have departed this state, or have concealed themselves herein, with intent to defraud creditors or avoid service of summons, but also in cases where such intent can not be averred.” See, also, cases cited in 2 Freeman on Judgments, section 589.
The Supreme Court of the United States has recognized the same doctrine in_ Grover Machine Co. v. Radcliffe, 137 U. S. 287 (11 Sup. Ct. 92, 34 L. Ed. 670). And upon the authority of that case a federal district court held a judgment against an absent defendant on constructive service good. See DuPont v. Abel (C. C.) 81 Fed. 534. I am also of opinion that the same doctrine is announced in York v. State of Texas, 137 U. S. 15 (11 Sup. Ct. 9, 34 L. Ed. 604). Sée, also, Mexican R. R.
Going to the text-books, I find that there is perfect unanimity of opinion upon this matter. Mr. Ereeman, in the fourth edition of his work on Judgments, says (section 570) : “In relation to the extraterritorial effect of a judgment procured against a person in the state of his domicile, in an action in which he entered no appearance; and in which the process was served constructively, in accordance with the laws of the state, radical and irreconcilable differences of opinion exist. In one case the court said: ‘We will treat the judgment not as void, nor as conclusive, but simply as prima facie.’ This is a kind of middle ground, or compromise treatment of the question; and, like most compromises, is probably less defensible, upon principle, than either of the extremes between which it is placed. The position, however, which seems to be the best sustained, both by reason and by precedents, is that each state has the authority to provide the means by which its own citizens may be brought before its court; that the courts of other states have no authority to disregard the means thus provided; and finally, that every judgment or decree obtained in a state against some of its citizens, by virtue of a lawful, though eon
Mr. Black, in his work on Judgments, says, (section 227) : “It is a principle of law, too well settled to require the citation of authorities in its support, that the sovereignty of a state or country, for the. judicial as well as other purposes, extends only to its own citizens, or resident aliens, or persons temporarily within its borders, and to property within its territory, but not to absent nonresidents. In many of our states, .however, there' are statutes authorizing the commencement of certain classes of - actions by a merely constructive service of process, and these acts apply almost exclusively to proceedings against nonresidents. The validity of judgments rendered under them has been much in question before the courts, and principally in cases where a judgment so given in one state has been sought 'to be enforced in another. This aspect of the subject will be fully considered in fhe chapter on judgments of a sister state, to which the reader is referred. But there are certain divisions of the topic which must be. treatéd in this connection. And first, -a distinction must be carefully noted between the jurisdiction over the state’s own citizens and that over aliens. Every sovereignty has plenary control over its own subjects, and it may authorize a judgment to be rendered against one of its citizens, upon a constructive notice only, and although he is temporarily absent from its dominions, and such a judgment must be everywhere recognized as valid and of binding force and effect. This much being premised, the contrary rule may be stated, viz., that a personal judgment (as
That these learned text-writers were justified in stating these rules is apparent when we go to the authorities. I shall quote from a few of the opinions.
In Hamill v. Talbott, 72 Mo. App. 22, the court said: “Regarding the service as constructive or substituted service, it was a proceeding against a citizen of Ohio as the trial court has found and as the Ohio court must have adjudged, even though he was temporarily absent from Ohio at the time of service. Being a citizen of Ohio, that state had The right to prescribe by law how its citizens shall be. brought into its courts,’ it being now well settled that if process be served upon the defendant according to the laws of the state of which he ]s a resident and judgment be afterwards rendered against him, such judgment is as binding between the parties, in another state, when relied upon as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the state where it was rendered. Harryman v. Roberts, 52 Md. 64; 2 Black on Judgments, section 907; Gillespie v. Insurance Co,, 12 Gray (Mass.) 201 (71 Am. Dec. 743);
In Cassidy v. Leitch, 2 Abb. N. C. (N. Y.) 315, that court said: “The defendant, as has been said, was domiciled in Louisiana, and owed allegiance to that state, and submission to its laws. The manner of serving process must necessarily be regulated by every country for itself; and if a state permits process to be served upon one of its own citizens by the leaving of it in his absence at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it
In Harryman v. Roberts, 52 Md. 64, the Supreme Court said: “It is essential, of course, to the validity of every judgment, that the parties to be bound should have notice of some kind, either actual or constructive. Every one is entitled to his day in court, and to the right of being heard before a judgment of any kind is rendered against him. But it is not always necessary that personal process shall be served upon him. Each state has the right to prescribe by law how its citizens shall be brought into its courts. And whatever conflict there may be in some of the earlier cases on the subject, we think it is now well settled, that if process be served upon the defendant according to the laws of the state of which he is a resident, and judgment be- afterwards rendered against him, such a judgment is as binding between the parties, in this state, when relied on as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the state ’where it was rendered. Price v. Hickok, 39 Vt. 292; McRae v. Mattoon, 13 Pick. (Mass.) 53; Poorman v. Crane, Wright (Ohio) 347; Joiner v. Hill, S. C. 439; Hunt v. Lyle, 8 Yerg. (Tenn.) 142; Green v. Sarmiento, Pet. C. C. 74 (Fed. Cas. No. 5,760) ; Rangely v. Webster, 11 N. H. 299.”
In Biesenthall v. Williams, 1 Duv. (Ky.) 329, the court said:
The fight of each state to prescribe the manner and by what legal remedies its own citizens shall seek redress
The reasoning of the court is so potent in Huntley v. Baker, 33 Hun (N. Y.) 578, that although this decision was hy a supreme court, I here quote what was said in the opinion:
■ It will be observed that the summons was not served on the defendant personally. And it appears that at the time of the constructive service (and is so found by the referee) he was not in the state of Wisconsin, nor was he afterward in. that state until after the judgment was rendered, and had no actual knowledge of the action or of
These same principles are announced in many of the other cases cited by Black and Freeman, but as they all proceed upon the same theory no further quotations are deemed necessary. See, however, Happy v. Mosher, 48 N. Y. 313; Orcutt v. Ranney, 10 Cush. (Mass.) 183; McRae v. Mattoon, 13 Pick. (Mass.) 53; Holt v. Alloway, 2 Blackf. (Ind.) 108.
Without reference to the merits of the particular case now before us, I think I am justified in expressing the gravest doubts regarding the conclusions of the majority,
As already suggested, I am not objecting to the final conclusion. Indeed, I think I see a way in which the same result can be reached without overturning the statutes in question. As I can not make my Brethren see it in this light, I am doubtless wrong, and I may also be entirely wrong in my doubts regarding the unconstitutionality of the acts in question. Buty, however, seems to call for an expression of individual opinion on the matter, and in view of what has been said by courts and text-writers, I am constrained to put these doubts in writing, to the end that the full effect of the decision of the majority may not be overlooked. I make bold to do this for the reason that no court, so far as I have been able to find, has gone to the extent which the majority find it necessary to go in this case. I shall not advert to the supposed hardship arising or which may arise from an opinion upholding the statutes in question, for I think the results of the majority opinion may be quite as harmful as a contrary conclusion. The majority opinion points out' the way whereby a resident of the state, having no real property therein, may go to another state for the purpose of avoiding service,' taking his personalty with him, and thus defeat his creditors by finally pleading the statute of limitations. It is well known, of course, that if defendant be
Tbis opinion bas already outgrown proper limits, and I conclude by saying that I am in so much doubt about •tbe correctness of the majority opinion that I can not at-this time join with my Brethren in bolding tbe statutes in question unconstitutional.
I am authorized to say that Mr. Chief Justice Sherwin joins in tbis dissent.