This case involves the validity, under the Fourteenth Amendment, of a statute of New Jersey providing for service of process on non-residents of the State in suits for injury by the negligent operation of automobiles on its highways.
Pizzutti was driving a team of horses attached to a wagon on a public highway in New Jersey. Wuchter was a resident of Pennsylvania who was following the wagon with his automobile. Wuchter drove his car so as to crash into the rear of the wagon, damaging it, and injuring Pizzutti and his horses. Pizzutti instituted a suit against Wuchter in the Supreme Court of New Jersey. Wuchter was served with process under the provisions of the Act known as Chapter 232 of the Laws of 1924, (P.L. 1924, p. 517) by leaving process with the Secretary of State. Wuchter interposed no defense. A judgment interlocutory was taken against him and a writ of inquiry of damages was issued. Although the statute did not
Section 1 of the Act complained of, under which the process was served in this case, was as follows:
"From and after the passage of this act any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey, providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to nonresident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by such acceptance and the operation of such automobile within the State of New Jersey, make and constitute the Secretary of State of the State of New Jersey, his, her or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within the State in which a motor vehicle operated by such chauffeur, or operator, or such motor vehicle is involved."
This is the first section of an Act entitled "An Act providing for the service of process in civil suits upon non-resident chauffeurs, operators, or nonresident owners whose motor vehicles are operated within the State of New Jersey, without being licensed under the provisions of the Laws of the State of New Jersey, providing for the registration and licensing of drivers and operators and
Section 3 provides that it shall be lawful to serve civil process upon a non-resident owner in such case upon any chauffeur or operator of the vehicle while the vehicle is being operated within the state by such chauffeur or operator, and that such service may be lawfully served upon any non-resident owner by serving the process upon any person over the age of fourteen years who has custody of the automobile, whether held by him as security or driven, provided, however, that a copy of such civil process also shall be posted in a conspicuous place upon such automobile. The only provision for other than service on the persons in charge of the car is by leaving the summons with the Secretary of State without more, under § 1 of the Act already quoted.
By the general state motor law, as amended by Chapter 211, Laws of 1924, provision is made for the registration and license of automobiles owned by non-residents who use the highways of the state, P.L. 1924, § 9, par. 4, p. 451. They are required to agree that original process against the owner made by leaving it in the office of the Secretary of State shall have the same effect as if served on the owner within the state, and the statute
The Act first above referred to, No. 232, under which process in this case was served, applies to the owners of automobiles who are not licensed but who come into the state and use the highways of the state without registration and is not to be confused with the license act or its provisions.
It is settled by our decisions that a state's power to regulate the use of its highways extends to their use by non-residents as well as by residents. Hendrick v. Maryland, 235 U.S. 610, 622. We have further held that, in advance of the operation of a motor vehicle on its highways by a non-resident, a state may require him to take out a license and to appoint one of its officials as his agent, on whom process may be served in suits growing out of accidents in such operation. This was under the license act of New Jersey, last above referred to, and not No. 232. Kane v. New Jersey, 242 U.S. 160, 167. We have also recognized it to be a valid exercise of power by a state, because of its right to regulate the use of its highways by non-residents, to declare, without exacting a license, that the use of the highway by the non-resident may by statute be treated as the equivalent of the appointment by him of a state official as agent on whom process in such a case may be served. Hess v. Pawloski, 274 U.S. 352.
The question made in the present case is whether a statute, making the Secretary of State the person to receive the process, must, in order to be valid, contain a provision making it reasonably probable that notice of the service on the Secretary will be communicated to the non-resident defendant who is sued. Section 232 of the Laws of 1924 makes no such requirement and we
In determining the reasonableness of provision for service we should consider the situation of both parties. The person injured must find out to whom the offending automobile
The cases, in which statutes have been upheld providing that non-resident corporations may properly be served by leaving a summons with a state official, where the corporation has not indicated a resident agent to be served, are not especially applicable to the present statute. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U.S. 93; Simon v. Southern Ry. Co., 236 U.S. 115; Old Wayne Mutual Life Association v. McDonough, 204 U.S. 8. Such corporations may properly be required to accept service through a public officer as a condition of their doing business in the state. Their
"This law makes no provision whatever for the service on the defendant. The officer may decline to communicate with the person sued and give no notice whatever; not even by mail. A judgment might be obtained without the least knowledge of the person sued. Under the phrasing of the statute, the duty of the officer begins and ends in his office. If such a judgment were rendered, it could receive no recognition whatever at the place of the domicile. When a petition cannot legally be served on a defendant, the court can exercise no jurisdiction over him. The service defines the court's jurisdiction."
The question is mooted in Simon v. Southern Railway, 236 U.S. 115, 129, and the above language is quoted, but it was not found necessary to decide the point.
It is instructive in this matter to refer to state authorities to observe their view of what is valid in statutory provision for service upon proposed defendants, corporate or otherwise, where personal service can not be had. In Nelson v. Chicago, Burlington & Quincy Railroad Co., 225 Ill. 197, the action was for personal injuries. The
In Jefferson Fire Insurance Co. v. Brackin, 140 Ga. 637, the statute provided that an action could be brought against an insurance company in the county in which the contract was made, out of which the cause of action arose, although there was no agent doing business in the county at the time. Also, that service of summons might be made by leaving a copy of the writ at the place of business of the agent at the time the cause of action accrued. The latter provision in the actual case was said to be lacking in due process for the reason that there was no reasonable probability that the company would receive notice in cases where there was no longer a place of business in the county.
In Pinney v. Providence Loan & Investment Company, 106 Wis. 396, the suit was by the grantee of a tax deed against the defendant corporation and another, as the former owners of the land, to bar their rights. The corporation was organized under the laws of the state and had its principal place of business in the county. The statute provided that corporations should file the names of officers upon whom service might be made, and that in all cases prior to the filing of such a list, service might be had by delivering and leaving with the register of deeds of the county where the corporation had its principal
In Town of Hinckley v. Kettle River R.R. Co., 70 Minn. 105, there was an action against the railroad company for the recovery of certain bonds or their value. The statute provided that when a corporation created by the laws of the state did not have an officer in the state upon whom legal service of process could be made, an action might be brought in a county where the cause of action arose or the corporation had property, and a service might be made by depositing a copy of the summons in the office of the secretary of state, which should be taken as a personal service on the corporation; provided that whenever any process was served on the secretary of state, the same should be by duplicate copies, one of which should be filed in the office of the secretary of state, and the other mailed by him immediately, postage prepaid, to the office of the company, or to the president, or secretary as found by the articles of incorporation on file in the office of the state official. It was held that the statute provided for due process, there being a necessity for providing for substituted service on domestic corporations, when their officers could not be found within the state, and that the method adopted was appropriate and likely to communicate actual notice of the commencement of the action to the corporation.
In McDonald v. Mabee, 243 U.S. 90, 91, a person domiciled in Texas left the state to make his home in another state. An action for money was begun by publication
"The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. . . . No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice. . . . And in states bound together by a Constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." See also Roller v. Holly, 176 U.S. 398.
These cases and others indicate a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is reasonable probability that if the statutes are complied with, the defendant will receive actual notice, and that is the principle that we think should apply here.
But it is said that the defendant here had actual notice by service out of New Jersey in Pennsylvania. He did not, however, appear in the cause and such notice was not required by the statute. Not having been directed by the statute it can not, therefore, supply constitutional validity to the statute or to service under it. Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 425; Louisville and Nashville R.R. Co. v. Stock Yards Company, 212 U.S. 132, 144; Central of Georgia Ry. Co. v. Wright, 207 U.S. 127, 138; Security Trust Co. v. Lexington, 203 U.S. 323, 333; Roller v. Holly, 176 U.S. 398, 409; Stuart v. Palmer,
MR. JUSTICE BRANDEIS (with whom MR. JUSTICE HOLMES concurs), dissenting.
The rule of general law stated by the Court seems to me sound. But I think the judgment should be affirmed. The objection sustained by the Court — that the statute is void because it fails to provide that the Secretary of State shall notify the non-resident defendant — is an objection taken for the first time in this Court. It was not made or considered below; and it is not to be found in the assignments of error filed in this Court. The only objection made or considered below was that the state court lacked jurisdiction, because the defendant had not been personally served within the State. In other words, that while the State might require the defendant to appoint the Secretary of State as his agent to receive service, as held in Kane v. New Jersey, 242 U.S. 160, service without such appointment is bad. When the case at bar was decided below, the validity for that objection was an open question. Before the case was reached for argument in this Court, Hess v. Pawloski, 274 U.S. 352, settled that process other than personal service within the State may suffice to give jurisdiction over non-resident motorists. The objection now urged — that failure to prescribe the Secretary shall notify the non-resident denies due process — is an afterthought provoked by our decision in Hess v. Pawloski.
The nature of our jurisdiction under § 237 of the Judicial Code demands a rigorous adherance to the long established
For aught that appears, it may have been the uniform practice of the Secretary to give notice whenever the address of the defendant was ascertainable. Such an administrative construction would carry great weight with the courts of New Jersey, State v. Kelsey, 44 N.J.L. 1; Stephens v. Civil Service Commission, 101 N.J.L. 192, 194, as it would with this Court. United States v. Cerecedo Hermanos y Compania, 209 U.S. 337. Moreover, the rule that a construction which raises a serious doubt as to the constitutionality of a statute will not be adopted if some other construction is open, is a rule commonly acted upon by the courts of New Jersey, Colwell v. May's
While this Court has power to construe the statute, it is not obliged to do so. We have often recognized the propriety of remanding a case to a state court for the determination of a delicate question of state law. Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U.S. 503, 506; Dorchy v. Kansas, 264 U.S. 286, 291; Missouri ex rel. Wabash Ry. Co. v. Public Service Commission, 273 U.S. 126, 131; Cobb Brick Co. v. Lindsay, 275 U.S. 491. If the judgment is to be reversed, it should be specifically for the purpose of enabling the Court of Errors and Appeals to pass upon the objection first raised by the defendant in this Court.
In the case at bar, the objection is not lack of jurisdiction, but denial of due process because the statute did not require the Secretary to notify the non-resident defendant.
MR. JUSTICE STONE, dissenting.
I agree that the judgment should be reversed and the cause remanded, but with leave to the state court to determine whether the notice given to the plaintiff in error by the Secretary of State was required by the statute.