Hilton v. Guyot, 159 U.S.
113 (1895) The complaint alleged that in 1886 and since, during the time of all the transactions included in the judgment
Hilton v. Guyot
Nos. 130, 34
Argued April 10, 1894
Decided June 3, 1895
159 U.S. 113
Syllabus
A citizen and resident of this country who has his principal place of business here but has an agent in a foreign
country and is accustomed to purchase and store large quantities of goods there, and, in a suit brought
against him by a citizen and in a court of that country, appears and defends with the sole object of preventing
his property within the jurisdiction, but not in the custody of that court, from being taken in satisfaction of any
judgment that may be recovered against him there cannot, in an action brought against him in this country
upon such a judgment, impeach it for want of jurisdiction of his person.
The admission at the trial in a court of a foreign country, according to its law and practice, of testimony not
under oath and without opportunity of cross-examination, and of documents with which the defendant had no
connection and which by our law would not be admissible against him, is not of itself a sufficient ground for
impeaching the judgment of that court in an action brought upon it in this country.
When an action is brought in a court of this country by a citizen of a foreign country against one of our own
citizens to recover a sum of money adjudged by a court of that country to be due from the defendant to the
plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of
the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them,
and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and
formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged, and the
judgment is conclusive upon the merits tried in the foreign court unless some special ground is shown for
impeaching it, as by showing that it was affected by fraud or prejudice or that, by the principles of international
law and by the comity of our own country, it is not entitled to full credit and credit.
A judgment for a sum of money, rendered by a court of a foreign country, having jurisdiction of the cause and
of the parties, in a suit brought by
Page 159 U. S. 114
one of its citizens against one of ours, is prima facie evidence only, and not conclusive of the merits of the
claim in an action brought here upon the judgment if by the law of the foreign country, as in France, judgments
of our own courts are not recognized as conclusive.
The first of these two cases was an action at law, brought December 18, 1885, in the Circuit Court of the
United States for the Southern District of New York, by Gustave Bertin Guyot, as official liquidator of the firm of
Charles Fortin & Co., and by the surviving members of that firm, all aliens and citizens of the Republic of
France, against Henry Hilton and William Libbey, citizens of the United States and of the State of New York
and trading as copartners in the cities of New York and Paris and elsewhere under the firm name of A. T.
Stewart & Co. The action was upon a judgment recovered in a French court at Paris, in the Republic of
France, by the firm of Charles Fortin & Co., all of whose members were French citizens, against Hilton &
Libbey, trading as copartners, as aforesaid, and citizens of the United States and of the State of New York.
sued on, Hilton and Libbey, as successors to Alexander T. Stewart and Libbey, under the firm name of A. T.
Stewart & Co., carried on a general business as merchants in the Cities of New York and Paris and elsewhere,
and maintained a regular store and place of business at Paris; that during the same time, Charles Fortin & Co.
carried on the manufacture and sale of gloves at Paris, and the two firms had there large dealings in that
business, and controversies arose in the adjustment of accounts between them.
The complaint further alleged that between March 1, 1879, and December 1, 1882, five suits were brought by
Fortin & Co. against Stewart & Co. for sums alleged to be due, and three suits by Stewart & Co. against Fortin
& Co., in the Tribunal of Commerce of the Department of the Seine, a judicial tribunal or court organized and
existing under the laws of France, sitting at Paris and having jurisdiction of suits and controversies between
merchants or traders growing
Page 159 U. S. 115
out of commercial dealings between them; that Stewart & Co. appeared by their authorized attorneys in all
those suits, and that, after full hearing before an arbitrator appointed by that court and before the court itself,
and after all the suits had been consolidated by the court, final judgment was rendered on January 20, 1883,
that Fortin & Co. recover of Stewart & Co. various sums, arising out of the dealings between them, amounting
to 660,847 francs, with interest, and dismissed part of Fortin & Co.'s claim.
The complaint further alleged that appeals were taken by both parties from that judgment to the Court of
Appeal of Paris, Third Section, an appellate court of record organized and existing under the laws of the
Republic of France and having jurisdiction of appeals from the final judgments of the Tribunal of Commerce of
the Department of the Seine, where the amount in dispute exceeded the sum of 1,500 francs, and that the said
Court of Appeal, by a final judgment rendered March 19, 1884, and remaining of record in the office of its clerk
at Paris, after hearing the several parties by their counsel, and upon full consideration of the merits, dismissed
the appeal of the defendants, confirmed the judgment of the lower court in favor of the plaintiffs, and ordered,
upon the plaintiffs' appeal, that they recover the additional sum of 152,528 francs, with 182,849 francs for
interest on all the claims allowed, and 12,559 francs for costs and expenses.
The complaint further alleged that Guyot had been duly appointed by the Tribunal of Commerce of the
Department of the Seine official liquidator of the firm of Forth & Co., with full powers, according to law and
commercial usage, for the verification and realization of its property, both real and personal, and to collect and
cause to be executed the judgments aforesaid.
The complaint further alleged that the judgment of the Court of Appeals of Paris, and the judgment of the
Tribunal of Commerce, as modified by the judgment of the appellate court, still remain in full force and effect;
"that the said courts respectively had jurisdiction of the subject matter of the controversies so submitted to
them, and of the parties, the
Page 159 U. S. 116
said defendants having intervened, by their attorneys and counsel, and applied for affirmative relief in both
courts; that the plaintiffs have hitherto been unable to collect the said judgments or any part thereof, by reason
of the absence of the said defendants, they having given up their business in Paris prior to the recovery of the
said judgment on appeal, and having left no property within the jurisdiction of the Republic of France out of
which the said judgments might be made;"
and that there are still justly due and owing from the defendants to the plaintiffs upon those said judgments
certain sums, specified in the complaint, and amounting in all to 1,008,783 francs in the currency of the
Republic of France, equivalent to $195,122.47.
The defendants, in their answer, set forth in detail the original contracts and transactions in France between
the parties and the subsequent dealings between them modifying those contracts, and alleged that the
plaintiffs had no just claim against the defendants, but that, on the contrary, the defendants, upon a just
settlement of the accounts, were entitled to recover large sums from the plaintiffs.
The answer admitted the proceedings and judgments in the French courts and that the defendants gave up
their business in France before the judgment on appeal, and had no property within the jurisdiction of France
out of which that judgment could be collected.
The answer further alleged that the Tribunal of Commerce of the Department of the Seine was a tribunal
whose judges were merchants, ship captains, stockbrokers, and persons engaged in commercial pursuits, and
of which Charles Fortin had been a member until shortly before the commencement of the litigation.
The answer further alleged that in the original suits brought against the defendants by Fortin & Co., the
citations were left at their storehouse in Paris; that they were then residents and citizens of the State of New
York, and neither of them at that time, or within four years before, had been within, or resident or domiciled
within, the jurisdiction of that tribunal or owed any allegiance to France, but that
and is void; that the trial hereinbefore mentioned was not conducted according to the usages and practice of
the common law, and the allegations and proofs given by said Fortin & Co., upon which said judgment is
founded, would not be competent or admissible in any court or tribunal of the United States, in any suit
between the same parties involving the same subject matter, and it is contrary to natural justice and public
policy that the said judgment should be enforced against a citizen of the United States, and that, if there had
been a full and fair trial upon the merits of the controversies so pending before said tribunals, no judgment
would have been obtained against said Stewart & Co."
"Defendants, further answering, allege that it is contrary to natural justice that the judgment hereinbefore
mentioned should be enforced without an examination of the merits thereof; that by the laws of the Republic of
France, to-wit, article 181 [121] of the Royal Ordinance of June 15, 1629, it is provided namely:"
"Judgments rendered, contracts or obligations recognized, in foreign kingdoms and sovereignties, for any
cause whatever shall give rise to no lien or execution in our Kingdom. Thus, the contracts shall stand for
simple promises, and, notwithstanding such judgments, our subjects against whom they have been rendered
may contest their rights anew before our own judges."
"And it is further provided by the laws of France, by article 546 of the Code de Procedure Civile, as follows:"

Page 159 U. S. 117

" Judgments rendered by foreign tribunals shall be capable of execution

they were the owners of property situated in that country which would by the law of France have been liable to
seizure if they did not appear in that tribunal, and that they unwillingly, and solely for the purpose of protecting Page 159 U. S. 119
that property, authorized and caused an agent to appear for them in those proceedings, and that the suits
brought by them against Fortin & Co. were brought for the same purpose, and in order to make a proper
defense, and to establish counterclaims arising out of the transactions between the parties, and to compel the in France only in the manner and in the cases set forth by articles 2123 and 2128 of the Civil Code."
production and inspection of Fortin & Co.'s books, and that they sought no other affirmative relief in that
tribunal.
"And it is further provided by the laws of France, by article 2128 [2123] of the Code de Procedure Civile [Civil
Code]:"
The answer further alleged that, pending that litigation, the defendants discovered gross frauds in the
accounts of Fourtin & Co., that the arbitrator and the tribunal declined to compel Fortin & Co. to produce their
" A lien cannot, in like manner, arise from judgments rendered in any foreign country, save only as they have
books and papers for inspection, and that, if they had been produced, the judgment would not have been
been declared in force by a French tribunal, without prejudice, however, to provisions to the contrary,
obtained against the defendants.
contained in public laws and treaties."

The answer further alleged that without any fault or negligence on the part of the defendants, there was not a
full and fair trial of the controversies before the arbitrator, in that no witness was sworn or affirmed; in that
Charles Fortin was permitted to make, and did make, statements not under oath containing many falsehoods;
in that the privilege of cross-examination of Fortin and other persons who made statements before the
arbitrator was denied to the defendants, and in that extracts from printed newspapers, the knowledge of which
was not brought home to the defendants, and letters and other communications in writing between Fortin &
Co. and third persons, to which the defendants were neither privy nor party, were received by the arbitrator;
that without such improper evidence, the judgment would not have been obtained, and that the arbitrator was
deceived and misled by the false and fraudulent accounts introduced by Fortin & Co. and by the hearsay
testimony given, without the solemnity of an oath and without cross-examination, and by the fraudulent
suppression of the books and papers.
The answer further alleged that Fortin & Co. made up their statements and accounts falsely and fraudulently,
and with
"[And by article 2128 of that Code: 'Contracts entered into in a foreign country cannot give a lien upon property
in France if there are no provisions contrary to this principle in public laws or in treaties.']"
"That the construction given to said statutes by the judicial tribunals of France is such that no comity is
displayed towards the judgments of tribunals of foreign countries against the citizens of France, when sued
upon in said courts of France, and the merits of the controversies upon which the said judgments are based
are examined anew, unless a treaty to the contrary effect exists between the said Republic of France and the
country in which such judgment is obtained. That no treaty exists between the said Republic of France and the
United States, by the terms or effect of which the judgments of either country are prevented from being
examined anew upon the merits, when sued upon in the courts of the country other than that in which it is
obtained. That the tribunals of the Republic of France give no force and effect, within the jurisdiction of the said
country, to the duly rendered judgments of courts of competent jurisdiction of the United States against citizens
of France, after proper personal service of the process of said courts is made thereon in this country."

The answer further set up, by way of counterclaim and in detail, various matters arising out of the dealings
Page 159 U. S. 118
between the parties, and alleged that none of the plaintiffs had since 1881 been residents of the State of New
York, or within the jurisdiction of that state, but the defendants were, and always had been, residents of that
intent to deceive the defendants and the arbitrator and the said courts of France, and those courts were state.
deceived and misled thereby; that owing to the fraudulent suppression of the books and papers of Fortin & Co.
upon the trial and the false statements of Fortin regarding matters involved in the controversy, the arbitrator
The answer concluded by demanding that the plaintiffs'
and the courts of France

Page 159 U. S. 120

"were deceived and misled in regard to the merits of the controversies pending before them, and wrongfully
decided against said Stewart & Co., as hereinbefore stated; that said judgment, hereinbefore mentioned, is
fraudulent, and based upon false and fraudulent accounts and statements, and is erroneous in fact and in law,
complaint be dismissed, and that the defendants have judgment against them upon the counterclaims,
amounting to $102,942.91.
The plaintiffs filed a replication to so much of the answer as made counterclaims, denying its allegations and
setting up in bar thereof the judgment sued on.
The defendants, on June 22, 1888, filed a bill in equity against the plaintiffs setting forth the same matters as
in their answer to the action at law and praying for a discovery and for an injunction against the prosecution of
the action. To that bill a plea was filed setting up the French judgments, and upon a hearing, the bill was
dismissed. 42 F. 249. From the decree dismissing the bill an appeal was taken, which is the second case now
before this Court.
The action at law afterwards came on for trial by a jury, and the plaintiffs put in the records of the proceedings
and judgments in the French courts, and evidence that the jurisdiction of those courts was as alleged in the
complaint and that the practice followed and the method of examining the witnesses were according to the
French law, and also proved the title of Guyot as liquidator.
It was admitted by both parties that for several years prior to 1876, the firm of Alexander T. Stewart & Co.,
composed of Stewart and Libbey, conducted their business as merchants in the City of New York, with
branches in other cities of America and Europe; that both partners were citizens and residents of the City and
State of New York during the entire period mentioned in the complaint, and that in April, 1876, Stewart died,
and Hilton and Libbey formed a partnership to continue the business under the same firm name, and became
the owners of all the property and rights of the old firm.
The defendants made numerous offers of evidence in support of all the specific allegations of fact in their
answer, including the allegations as to the law and comity of France. The plaintiffs, in their brief filed in this
Court, admitted that most of these offers
"were offers to prove matters in support of the defenses and counterclaims set up by the defendants in the
cases tried before the French courts, and which, or most
Page 159 U. S. 121
of which, would have been relevant and competent if the plaintiffs in error are not concluded by the result of
those litigations, and have now the right to try those issues, either on the ground that the French judgments
are only prima facie evidence of the correctness of those judgments, or on the ground that the case is within
the exception of a judgment obtained by fraud."
The defendants, in order to show that they should not be concluded by having appeared and litigated in the
suits brought against them by the plaintiffs in the French courts, offered to prove that they were residents and
citizens of the State of New York, and neither of them had been, within four years prior to the commencement
of those suits, domiciled or resident within the jurisdiction of those courts; that they had a purchasing agent
and a storehouse in Paris, but only as a means or facility to aid in the transaction of their principal business,
which was in New York, and they were never otherwise engaged in business in France; that neither of them
owed allegiance to France, but they were the owners of property there which would, according to the laws of
France, have been liable to seizure if they had not appeared to answer in those suits; that they unwillingly, and
solely for the purpose of protecting their property within the jurisdiction of the French tribunal, authorized an
agent to appear, and he did appear in the proceedings before it, and that their motion to compel an inspection
of the plaintiffs' books, as well as the suits brought by the defendants in France, were necessary by way of
defense or counterclaim to the suits there brought by the plaintiffs against them.
Among the matters which the defendants alleged and offered to prove in order to show that the French
judgments were procured by fraud were that Fortin & Co., with intent to deceive and defraud the defendants,
and the arbitrator and the courts of France, entered in their books, and presented to the defendants, and to the
French courts, accounts bearing upon the transactions in controversy which were false and fraudulent, and
contained excessive and fraudulent charges against the defendants in various particulars, specified; that the
Page 159 U. S. 122
defendants made due application to the Tribunal of Commerce to compel Fortin & Co. to allow their account
books and letter books to be inspected by the defendants, and the application was opposed by Fortin & Co.,
and denied by the tribunal; that the discovery and inspection of those books were necessary to determine the
truth of the controversies between the parties; that before the Tribunal of Commerce, Charles Fortin was
permitted to and did give in evidence statements not under oath relating to the merits of the controversies
there pending, and falsely represented that a certain written contract made in 1873 between Stewart & Co.
and Fortin & Co. concerning their dealings was not intended by the parties to be operative according to its
terms, and in support of that false representation made statements as to admissions by Stewart in a private
conversation with him, and that the defendants could not deny those statements, because Stewart was dead,
and they were not protected from the effect of Fortin's statements by the privilege of cross-examining him
under oath, and that the French judgments were based upon false and fraudulent accounts presented and
statements made by Fortin & Co. before the Tribunal of Commerce during the trial before it.
The records of the judgments of the French courts, put in evidence by the plaintiffs, showed that all the matters
now relied on to show fraud were contested in and considered by those courts.
The plaintiffs objected to all the evidence offered by the defendants on the grounds that the matters offered to
be proved were irrelevant, immaterial, and incompetent; that in respect to them the defendants were
concluded by the judgment sued on and given in evidence, and that none of those matters, if proved, would be
a defense to this action upon that judgment.
The court declined to admit any of the evidence so offered by the defendants, and directed a verdict for the
plaintiffs in the sum of $277,775.44, being the amount of the French judgment and interest. The defendants,
having duly excepted to the rulings and direction of the court, sued out a writ of error.
Page 159 U. S. 123
The writ of error in the action at law and the appeal in the suit in equity were argued together in this Court in
January, 1894, and, by direction of the Court, were reargued in April, 1894, before a full Bench.
G.R. No. L-18164 January 23, 1967
WILLIAM F. GEMPERLE, plaintiff-appellant,
vs.
HELEN SCHENKER and PAUL SCHENKER as her husband, defendants-appellees.
Gamboa & Gamboa for plaintiff-appellant.
A. R. Narvasa for defendants-appellees.
CONCEPCION, C. J.:
Appeal, taken by plaintiff, William F. Gemperle, from a decision of the Court of First Instance of Rizal
dismissing this case for lack of jurisdiction over the person of defendant Paul Schenker and for want of cause
of action against his wife and co-defendant, Helen Schenker said Paul Schenker "being in no position to be
joined with her as party defendant, because he is beyond the reach of the magistracy of the Philippine courts."
The record shows that sometime in 1952, Paul Schenker-hereinafter referred to as Schenker acting through
his wife and attorney-in-fact, Helen Schenker herein-after referred to as Mrs. Schenker filed with the
Court of First Instance of Rizal, a complaint which was docketed as Civil Case No. Q-2796 thereof
against herein plaintiff William F. Gemperle, for the enforcement of Schenker's allegedly initial subscription to
the shares of stock of the Philippines-Swiss Trading Co., Inc. and the exercise of his alleged pre-emptive rights
to the then unissued original capital stock of said corporation and the increase thereof, as well as for an
accounting and damages. Alleging that, in connection with said complaint, Mrs. Schenker had caused to be
published some allegations thereof and other matters, which were impertinent, irrelevant and immaterial to
said case No. Q-2796, aside from being false and derogatory to the reputation, good name and credit of
Gemperle, "with the only purpose of attacking" his" honesty, integrity and reputation" and of bringing him "into summons . . . when the defendant is not a resident of the State, but has property therein, and the court has
public hatred, discredit, disrepute and contempt as a man and a businessman", Gemperle commenced the jurisdiction of the subject of the action,"
present action against the Schenkers for the recovery of P300,000 as damages, P30,000 as attorney's fees,
and costs, in addition to praying for a judgment ordering Mrs. Schenker "to retract in writing the said
-- the order to designate a newspaper of the county where the action is commenced in which the publication
defamatory expressions". In due course, thereafter, the lower court, rendered the decision above referred to. A
shall be made -- and that proof of such publication shall be "the affidavit of the printer, or his foreman, or his
reconsiderating thereof having been denied, Gemperle interposed the present appeal.
principal clerk."

The first question for determination therein is whether or not the lower court had acquired jurisdiction over the
Held, that defects in the affidavit for the order can only be taken advantage of on appeal, or by some other
person of Schenker. Admittedly, he, a Swiss citizen, residing in Zurich, Switzerland, has not been actually
direct proceeding, and cannot be urged to impeach the judgment collaterally, and that the provision as to proof
served with summons in the Philippines, although the summons address to him and Mrs. Schenker had been
of the publication is satisfied when the affidavit is made by the editor of the paper.
served personally upon her in the Philippines. It is urged by plaintiff that jurisdiction over the person of
Schenker has been secured through voluntary appearance on his part, he not having made a special
appearance to assail the jurisdiction over his person, and an answer having been filed in this case, stating that 2. A personal judgment is without any validity if it be rendered by a State court in an action upon a money
"the defendants, by counsel, answering the plaintiff's complaint, respectfully aver", which is allegedly a general demand against a nonresident of the State who was served by a publication of summons, but upon whom no
appearance amounting to a submission to the jurisdiction of the court, confirmed, according to plaintiff, by a personal service of process within the State was made, and who did not appear; and no title to property
P225,000 counterclaim for damages set up in said answer; but this counterclaim was set up by Mrs. Schenker passes by a sale under an execution issued upon such a judgment.
alone, not including her husband. Moreover, said answer contained several affirmative defenses, one of which
was lack of jurisdiction over the person of Schenker, thus negating the alleged waiver of this defense.
3. The State, having within her territory property of a nonresident, may hold and appropriate it to satisfy the
Nevertheless, We hold that the lower court had acquired jurisdiction over said defendant, through service of
claims of her citizens against him, and her tribunals may inquire into his obligations to the extent necessary to
the summons addressed to him upon Mrs. Schenker, it appearing from said answer that she is the
control the disposition of that property. If he has no property in the State, there is nothing upon which her
representative and attorney-in-fact of her husband aforementioned civil case No. Q-2796, which apparently
tribunals can adjudicate.
was filed at her behest, in her aforementioned representative capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of her husband, so that she was, also, empowered to
represent him in suits filed against him, particularly in a case, like the of the one at bar, which is consequence 4. Substituted service by publication, or in any other authorized form, is sufficient to inform a nonresident of the
of the action brought by her on his behalf. object of proceedings taken where

Inasmuch as the alleged absence of a cause of action against Mrs. Schenker is premised upon the alleged Page 95 U. S. 715
lack of jurisdiction over the person of Schenker, which cannot be sustained, it follows that the conclusion
drawn therefore from is, likewise, untenable.
property is once brought under the control of the court by seizure or some equivalent act, but where the suit is
brought to determine his personal rights and obligations, that is, where it is merely in personam, such service
Wherefore, the decision appealed from should be, is hereby, reversed, and the case remanded to the lower upon him is ineffectual for any purpose.
court for proceedings, with the costs of this instance defendants-appellees. It is so ordered.

5. Process from the tribunals of one State cannot run into another State and summon a party there domiciled
Pennoyer v. Neff, 95 U.S. 714 (1878) to respond to proceedings against him, and publication of process or of notice within the State in which the
tribunal sits cannot create any greater obligation upon him to appear. Process sent to him out of the State, and
Pennoyer v. Neff process published within it, are equally unavailing in proceedings to establish his personal liability.

95 U.S. 714 6. Except in cases affecting the personal status of the plaintiff, and in those wherein that mode of service may
be considered to have been assented to in advance, the substituted service of process by publication allowed
by the law of Oregon and by similar laws in other States where actions are brought against nonresidents is
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES
effectual only where, in connection with process against the person for commencing the action, property in the
State is brought under the control of the court and subjected to its disposition by process adapted to that
FOR THE DISTRICT OF OREGON purpose, or where the judgment is sought as a means of reaching such property or affecting some interest
therein; in other words, where the action is in the nature of a proceeding in rem.

Syllabus
7. Whilst the courts of the United States are not foreign tribunals in their relations to the State courts, they are
tribunals of a different sovereignty, and are bound to give a judgment of a State court only the same faith and
1. A statute of Oregon, after providing for service of summons upon parties or their representatives, personally
credit to which it is entitled in the courts of another State.
or at their residence, declares that, when service cannot be thus made, and the defendant, after due diligence,
cannot be found within the State, and

"that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner, appears
that a cause of action exists against the defendant, or that he is a proper party to an action relating to real
property in the State, such court or judge may grant an order that the service be made by publication of
8. The term "due process of law," when applied to judicial proceedings, means a course of legal proceedings
according to those rules and principles which have been established by our jurisprudence for the protection
and enforcement of private rights. To give such proceedings any validity, there must be a competent tribunal to
pass upon their subject matter, and if that involves merely a determination of the personal liability of the
defendant, he must be brought within its jurisdiction by service of process within the State, or by his voluntary
appearance.
This action was brought by Neff against Pennoyer for the recovery of a tract of land situated in Multnomah
County, Oregon. Pennoyer, in his answer, denied Neff's title and right to possession, and set up a title in
himself.
By consent of parties, and in pursuance of their written stipulation filed in the case, the cause was tried by the
court, and a special verdict given, upon which judgment was rendered in favor of Neff; whereupon Pennoyer
sued out this writ of error.
The parties respectively claimed title as follows: Neff under a patent issued to him by the United States, March
19,
Page 95 U. S. 716
1866; and Pennoyer by virtue of a sale made by the sheriff of said county, under an execution sued out upon a
judgment against Neff, rendered Feb. 19, 1866, by the Circuit Court for said county, in an action wherein he
was defendant and J. H. Mitchell was plaintiff. Neff was then a nonresident of Oregon.
In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by publication. Pennoyer offered in
evidence duly certified copies of the complaint, summons, order for publication of summons, affidavit of
service by publication, and the judgment in that case, to the introduction of which papers the plaintiff objected
because, 1, said judgment is in personam, and appears to have been given without the appearance of the
defendant in the action or personal service of the summons upon him, and while he was a nonresident of the
State, and is, therefore, void; 2, said judgment is not in rem, and therefore constitutes no basis of title in the
defendant; 3, said copies of complaint, &c., do not show jurisdiction to give the judgment alleged, either in
rem or personam; and, 4, it appears from said papers that no proof of service by publication was ever made,
the affidavit thereof being made by the "editor" of the "Pacific Christian Advocate," and not by "the printer, or
his foreman or principal clerk." The court admitted the evidence subject to the objections.
The finding of the court in regard to the facts bearing upon the asserted jurisdiction of the State court is as
follows: --
That, on Nov. 13, 1865, Mitchell applied to said Circuit Court, upon his own affidavit of that date, for an order
allowing the service of the summons in said action to be made upon Neff by publication thereof, whereupon
said court made said order, in the words following:
"Now, at this day, comes the plaintiff in his proper person, and by his attorneys, Mitchell and Dolph, and files
affidavit of plaintiff, and motion for an order of publication of summons, as follows, to wit:"
"Now comes the plaintiff, by his attorneys, and upon the affidavit of plaintiff, herewith filed, moves the court for
an order of publication of summons against defendant, as required by law, he being a nonresident;"
"and it appearing to the satisfaction of the court that the defendant cannot, after due diligence, be
Page 95 U. S. 717
found in this State, and that he is a nonresident thereof, that his place of residence is unknown to plaintiff, and
cannot, with reasonable diligence, be ascertained by him, and that the plaintiff has a cause of action of action
against defendant, and that defendant has property in this county and State, it is ordered and adjudged by the
court that service of the summons in this action be made by publication for six weeks successively in the
'Pacific Christian Advocate,' a weekly newspaper published in Multnomah County, Oregon, and this action is
continued for such service."
That the affidavit of plaintiff, referred to in said order, is in the words following:
"I, J. H. Mitchell, being first duly sworn, say that the defendant, Marcus Neff, is a nonresident of this State; that
he resides somewhere in the State of California, at what place affiant knows not, and he cannot be found in
this State; that plaintiff has a just cause of action against defendant for a money demand on account; that this
court has jurisdiction of such action; that the defendant has property in this county and State."
That the complaint in said action was verified and filed on Nov. 3, 1865, and contained facts tending to prove
that, at that date, said Mitchell had a cause of action against said Neff for services as an attorney, performed
"between Jan. 1, 1862, and May 15, 1863." That the entry of judgment in said action contained the following
averments:
"And it appearing to the court that the defendant was, at the time of the commencement of this action, and
ever since has been, a nonresident of this State; and it further appearing that he has property in this State, and
that defendant had notice of the pendency of this action by publication of the summons for six successive
weeks in the 'Pacific Christian Advocate,' a weekly newspaper of general circulation published in Multnomah
County, State of Oregon, the last issue of which was more than twenty days before the first day of this term."
That the affidavit showing the publication of the summons in the "Advocate" aforesaid was made as stated
therein by the "editor" of that paper. That said complaint, summons, affidavit of Mitchell and of the "editor" of
the "Advocate" aforesaid, and entry of judgment, were in the judgment roll, made up by the clerk in the case,
but the order for publication of the summons aforesaid was not placed in said roll
Page 95 U. S. 718
by said clerk, but remains on the files of said court; and that, when said court made said order for publication,
and gave said judgment against Neff, the only evidence it had before it to prove the facts necessary to give it
jurisdiction therefor, and particularly to authorize it to find and state that Neff's residence was unknown to
Mitchell, and could not, with reasonable diligence, be ascertained by him, and that Neff had notice of the
pendency of said action by the publication of the summons as aforesaid, was, so far as appears by the said
roll and the records and files of the said court, the said complaint and affidavits of Mitchell and the editor of the
"Advocate."
The statute of Oregon at the time of the commencement of the suit against Neff was as follows: --
"SECT. 55. When service of the summons cannot be made as prescribed in the last preceding section, and the
defendant, after due diligence, cannot be found within the State, and when that fact appears, by affidavit, to
the satisfaction of the court or judge thereof, or justice in an action in a justice's court, and it also appears that
a cause of action exists against the defendant, or that he is a proper party to an action relating to real property
in this State, such court or judge or justice may grant an order that the service be made by publication of
summons in either of the following cases: . . ."
"3. When the defendant is not a resident of the State, but has property therein, and the court has jurisdiction of
the subject of the action."
"SECT. 56. The order shall direct the publication to be made in a newspaper published in the county where the
action is commenced, and, if no newspaper be published in the county, then in a newspaper to be designated
as most likely to give notice to the person to be served, and for such length of time as may be deemed
reasonable, not less than once a week for six weeks. In case of publication, the court or judge shall also direct
a copy of the summons and complaint to be forthwith deposited in the post office, directed to the defendant, at
his place of residence, unless it shall appear that such residence is neither known to the party making the
application, nor can, with reasonable diligence, be ascertained by him. When publication is ordered, personal
service of a copy of the summons and complaint out of the State shall be equivalent to publication and deposit
in the post office. In either case, the defendant shall appear and answer by the first day of the term following
the
Page 95 U. S. 719
expiration of the time prescribed in the order for publication; and, if he does not, judgment may be taken
against him for want thereof. In case of personal service out of the State, the summons shall specify the time
prescribed in the order for publication."
"SECT. 57. The defendant against whom publication is ordered, or his personal representatives, on application
and sufficient cause shown, at any time before judgment, shall be allowed to defend the action; and the
defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause
shown, and upon such terms as may be proper, be allowed to defend after judgment, and within one year after
the entry of such judgment, on such terms as may be just; and, if the defence be successful, and the judgment
or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled
as the court shall direct. But the title to property sold upon execution issued on such judgment to a purchaser
in good faith shall not be thereby affected."
"SECT. 60. Proof of the service of summons shall be, in case of publication, the affidavit of the printer, or his
foreman, or his principal clerk, showing the same."
MR. JUSTICE FIELD delivered the opinion of the court.
This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the
State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in
1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The
defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on
execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The
case turns upon the validity of this judgment.
It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less
than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the
time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a
nonresident of the State;
Page 95 U. S. 720
that he was not personally served with process, and did not appear therein; and that the judgment was
entered upon his default in not answering the complaint, upon a constructive service of summons by
publication.
The Code of Oregon provides for such service when an action is brought against a nonresident and absent
defendant who has property within the State. It also provides, where the action is for the recovery of money or
damages, for the attachment of the property of the nonresident. And it also declares that no natural person is
subject to the jurisdiction of a court of the State
"unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein;
and, in the last case, only to the extent of such property at the time the jurisdiction attached."
Construing this latter provision to mean that, in an action for money or damages where a defendant does not
appear in the court, and is not found within the State, and is not a resident thereof, but has property therein,
the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if
not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in
which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other
forum, as has been said by this Court, an illegitimate assumption of power, and be resisted as mere
abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy
sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court.
Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of
pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the
property, rendered against a nonresident without service of process upon him in the action or his appearance
therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or
to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the
order of publication was obtained and in the affidavit by which the publication was proved.
Page 95 U. S. 721
There is some difference of opinion among the members of this Court as to the rulings upon these alleged
defects. The majority are of opinion that, inasmuch as the statute requires, for an order of publication, that
certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only
be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the
judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring
proof of the publication in a newspaper to be made by the "affidavit of the printer, or his foreman, or his
principal clerk" is satisfied when the affidavit is made by the editor of the paper. The term "printer," in their
judgment, is there used not to indicate the person who sets up the type -- he does not usually have a foreman
or clerks -- it is rather used as synonymous with publisher. The Supreme Court of New York so held in one
case; observing that, for the purpose of making the required proof, publishers were "within the spirit of the
statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held
that an affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term
"editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually
included not only the person who wrote or selected the articles for publication, but the person who published
the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the
definitions of an editor, a person "who superintends the publication of a newspaper." It is principally since that
time that the business of an editor has been separated from that of a publisher and printer, and has become
an independent profession.
If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned,
we should be unable to uphold its decision. But it was also contended in that court, and is insisted upon here,
that the judgment in the State court against the plaintiff was void for want of personal service of process on
him, or of his appearance in the action in which it was rendered and that the premises in controversy could not
be subjected to the payment of the demand
Page 95 U. S. 722
of a resident creditor except by a proceeding in rem, that is, by a direct proceeding against the property for that
purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must
be sustained notwithstanding our dissent from the reasons upon which it was made. And that they are sound
would seem to follow from two well established principles of public law respecting the jurisdiction of an
independent State over persons and property. The several States of the Union are not, it is true, in every
respect independent, many of the right and powers which originally belonged to them being now vested in the
government created by the Constitution. But, except as restrained and limited by that instrument, they possess
and exercise the authority of independent States, and the principles of public law to which we have referred
are applicable to them. One of these principles is that every State possesses exclusive jurisdiction and
sovereignty over persons and property within its territory. As a consequence, every State has the power to
determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they
may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations
arising from them, and the mode in which their validity shall be determined and their obligations enforced; and
also the regulate the manner and conditions upon which property situated within such territory, both personal
and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from
the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property
without its territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity
and authority, and the independence of one implies the exclusion of power from all others. And so it is laid
down by jurists as an elementary principle that the laws of one State have no operation outside of its territory
except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that
territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort
beyond this limit," says Story, "is a mere nullity, and incapable of binding
Page 95 U. S. 723
such persons or property in any other tribunals." Story, Confl.Laws, sect. 539.
But as contracts made in one State may be enforceable only in another State, and property may be held by
nonresidents, the exercise of the jurisdiction which every State is admitted to possess over persons and
property within its own territory will often affect persons and property without it. To any influence exerted in this
way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken;
whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to
enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the
independence of the State in which the persons are domiciled or the property is situated, and be resisted as
usurpation.
Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance
of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities
as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no
manner interferes with the supreme control over the property by the State within which it is situated. Penn v.
Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch 148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10
Wall. 464.
So the State, through its tribunals, may subject property situated within its limits owned by nonresidents to the
payment of the demand of its own citizens against them, and the exercise of this jurisdiction in no respect
infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its
own citizens, and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold
and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of
the State's jurisdiction over the property of the nonresident situated within its limits that its tribunals can inquire
into that nonresident's obligations to its own citizens, and the inquiry can then be carried only to the extent
necessary to control the disposition of the property. If the nonresident
Page 95 U. S. 724
have no property in the State, there is nothing upon which the tribunals can adjudicate.
These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of
eminent judges, and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5
Mas. 35, Mr. Justice Story said:--
"Where a party is within a territory, he may justly be subjected to its process, and bound personally by the
judgment pronounced on such process against him. Where he is not within such territory, and is not personally
subject to its laws, if, on account of his supposed or actual property being within the territory, process by the
local laws may, by attachment, go to compel his appearance, and, for his default to appear, judgment may be
pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the
extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason,
that, except so far as the property is concerned, it is a judgment coram non judice."
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a
sheriff's sale under a money decree rendered upon publication of notice against nonresidents, in a suit brought
to enforce a contract relating to land, Mr. Justice McLean said:--
"Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of
process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court.
In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And
it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be
substantially a proceeding in rem."
These citations are not made as authoritative expositions of the law, for the language was perhaps not
essential to the decision of the cases in which it was used, but as expressions of the opinion of eminent jurists.
But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to
declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served
Page 95 U. S. 725
with process or voluntarily submitting to the tribunal, when it was sought to subject his property to the payment
of a demand of a resident complainant; and, in the opinion there delivered, we have a clear statement of the
law as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the action was
for damages for alleged false imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled
from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach
them, a writ of attachment was sued out against their property. Publication was ordered by the court, giving
notice to them to appear and plead, answer or demur, or that the action would be taken as confessed and
proceeded in ex parte as to them. Publication was had, but they made default, and judgment was entered
against them, and the attached property was sold under it. The purchaser having been put into possession of
the property, the original owner brought ejectment for its recovery. In considering the character of the
proceeding, the Court, speaking through Mr. Justice Miller, said:--
"Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the
defendant, and subject his property lying within the territorial jurisdiction of the court to the payment of that
demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not
within the territorial jurisdiction, and cannot be served with any process by which he can be brought personally
within the power of the court. For this difficulty, the statute has provided a remedy. It says that, upon affidavit's
being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and
a publication may be made warning him to appear; and that thereafter the court may proceed in the case,
whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the
added incident that the property attached remains liable, under the control of the court, to answer to any
demand which may be established against the defendant by the final judgment of the court. But if there is no
appearance of the defendant, and no service of process on him, the case becomes in its essential nature a
proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand
which the court may find to be due to the plaintiff. That such is
Page 95 U. S. 726
the nature of this proceeding in this latter class of cases is clearly evinced by two well established
propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has
no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid
after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or
in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor
could the costs in that proceeding be collected of defendant out of any other property than that attached in the
suit. Second, the court in such a suit cannot proceed unless the officer finds some property of defendant on
which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the
court of further jurisdiction, though the publication may have been duly made and proven in court."
The fact that the defendants in that case had fled from the State, or had concealed themselves, so as not to be
reached by the ordinary process of the court, and were not nonresidents, was not made a point in the
decision. The opinion treated them as being without the territorial jurisdiction of the court, and the grounds and
extent of its authority over persons and property thus situated were considered when they were not brought
within its jurisdiction by personal service or voluntary appearance.
The writer of the present opinion considered that some of the objections to the preliminary proceedings in the
attachment suit were well taken, and therefore dissented from the judgment of the Court, but, to the doctrine
declared in the above citation, he agreed, and he may add that it received the approval of all the judges. It is
the only doctrine consistent with proper protection to citizens of other States. If, without personal service,
judgments in personam, obtained ex parte against nonresidents and absent parties, upon mere publication of
process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld
and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of
claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be
seized, when the evidence of the transactions upon
Page 95 U. S. 727
which they were founded, if they ever had any existence, had perished.
Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the
object of proceedings taken where property is once brought under the control of the court by seizure or some
equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent,
and it proceeds upon the theory that its seizure will inform him not only that it is taken into the custody of the
court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and
sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of
property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to
partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public
purpose. In other words, such service may answer in all actions which are substantially proceedings in
rem. But where the entire object of the action is to determine the personal rights and obligations of the
defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident
is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and
summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of
process or notice within the State where the tribunal sits cannot create any greater obligation upon the
nonresident to appear. Process sent to him out of the State, and process published within it, are equally
unavailing in proceedings to establish his personal liability.
The want of authority of the tribunals of a State to adjudicate upon the obligations of nonresidents, where they
have no property within its limits, is not denied by the court below: but the position is assumed, that, where
they have property within the State, it is immaterial whether the property is in the first instance brought under
the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to
the satisfaction of demands against its owner; or such demands be first established in a personal action, and
Page 95 U. S. 728
the property of the nonresident be afterwards seized and sold on execution. But the answer to this position has
already been given in the statement that the jurisdiction of the court to inquire into and determine his
obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be
made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the
judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant,
or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void; it cannot
occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position
assumed were confined to cases where the nonresident defendant possessed property in the State at the
commencement of the action, it would still make the validity of the proceedings and judgment depend upon the
question whether, before the levy of the execution, the defendant had or had not disposed of the property. If,
before the levy, the property should be sold, then, according to this position, the judgment would not be
binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the
law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon
what may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land
sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under
a law of the territory, without service of process; and the court said:
"These suits were not a proceeding in rem against the land, but were in personam against the owners of it.
Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No
person is required to answer in a suit on whom process has not been served, or whose property has not been
attached. In this case, there was no personal notice, nor an attachment or other proceeding against the land,
until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which
the land was sold. "
Page 95 U. S. 729
The force and effect of judgments rendered against nonresidents without personal service of process upon
them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the
United States and of the several States, as attempts have been made to enforce such judgments in States
other than those in which they were rendered, under the provision of the Constitution requiring that "full faith
and credit shall be given in each State to the public acts, records, and judicial proceedings of every other
State;" and the act of Congress providing for the mode of authenticating such acts, records, and proceedings,
and declaring that, when thus authenticated,
"they shall have such faith and credit given to them in every court within the United States as they have by law
or usage in the courts of the State from which they are or shall or taken."
In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which
they had by law in the State where rendered. But this view was afterwards qualified so as to make the act
applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject matter,
and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right
of the State itself to exercise authority over the person or the subject matter. M'Elmoyle v. Cohen, 13 Pet. 312.
In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That
was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in
New York under a State statute, against two joint debtors, only one of whom had been served with process,
the other being a nonresident of the State. The Circuit Court held the judgment conclusive and binding upon
the nonresident not served with process, but this Court reversed its decision, observing, that it was a familiar
rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant
had not been served with process nor had a day in court; that national comity was never thus extended; that
the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse; that no faith
and credit or force and effect had been given to such judgments by any State of the Union, so far
Page 95 U. S. 730
as known; and that the State courts had uniformly, and in many instances, held them to be void. "The suit was commenced by the attachment of a bedstead belonging to the defendant, accompanied with a
international law," said the court, summons to appear, served on his wife after she had left her place in Massachusetts. The court held that

"as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the Page 95 U. S. 732
person of a citizen of another, was void within the foreign State, when the defendant had not been served with
process or voluntarily made defence, because neither the legislative jurisdiction nor that of courts of justice
the attachment bound only the property attached as a proceeding in rem, and that it could not bind the
had binding force."
defendant, observing, that to bind a defendant personally when he was never personally summoned or had
notice of the proceeding would be contrary to the first principles of justice, repeating the language in that
And the Court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v.
of this description. As was stated in a subsequent case, the doctrine of this Court is that the act Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al., 14 How. 334. To the
same purport, decisions are found in all the State courts. In several of the cases, the decision has been
accompanied with the observation that a personal judgment thus recovered has no binding force without the
"was not designed to displace that principle of natural justice which requires a person to have notice of a suit
State in which it is rendered, implying that, in such State, it may be valid and binding. But if the court has no
before he can be conclusively bound by its result, nor those rules of public law which protect persons and
jurisdiction over the person of the defendant by reason of his nonresidence, and consequently no authority to
property within one State from the exercise of jurisdiction over them by another."
pass upon his personal rights and obligations; if the whole proceeding, without service upon him or his
appearance, is coram non judice and void; if to hold a defendant bound by such a judgment is contrary to the
The Lafayette Insurance Co. v. French et al., 18 How. 404. first principles of justice -- it is difficult to see how the judgment can legitimately have any force within the
State. The language used can be justified only on the ground that there was no mode of directly reviewing
such judgment or impeaching its validity within the State where rendered, and that therefore it could be called
This whole subject has been very fully and learnedly considered in the recent case of Thompson v.
in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with
Whitman, 18 Wall. 457, where all the authorities are carefully reviewed and distinguished, and the conclusion
less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment
above stated is not only reaffirmed, but the doctrine is asserted that the record of a judgment rendered in
which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute
another State may be contradicted as to the facts necessary to give the court jurisdiction against its recital of
nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in
their existence. In all the cases brought in the State and Federal courts, where attempts have been made
the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes v.
under the act of Congress to give effect in one State to personal judgments rendered in another State against
Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123.
nonresidents, without service upon them, or upon substituted service by publication, or in some other form, it
has been held, without an exception, so far as we are aware, that such judgments were without any binding
force except as to property, or interests in property, within the State, to reach and affect which was the object Be that as it may, the courts of the United States are not required to give effect to judgments of this character
of the action in which the judgment was rendered, and which property was brought under control of the court when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts,
in connection with the process against the person. The proceeding in such cases, though in the form of a they are tribunals
personal action, has been uniformly treated, where service was not obtained, and the party did not voluntarily
Page 95 U. S. 733
Page 95 U. S. 731
of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the
appear, as effectual and binding merely as a proceeding in rem, and as having no operation beyond the judgments of the State courts only the same faith and credit which the courts of another State are bound to
disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that give to them.
which we have already stated -- that the tribunals of one State have no jurisdiction over persons beyond its
limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments
their property within its limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as
may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a
1813, the law is stated substantially in conformity with these views. In that case, the court considered at length
court of justice to determine the personal rights and obligations of parties over whom that court has no
the effect of the constitutional provision, and the act of Congress mentioned, and after stating that, in order to
jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those
entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the
terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude
Constitution, the court must have had jurisdiction not only of the cause, but of the parties, it proceeded to
such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then
illustrate its position by observing, that, where a debtor living in one State has goods, effects, and credits in
mean a course of legal proceedings according to those rules and principles which have been established in
another, his creditor living in the other State may have the property attached pursuant to its laws, and, on
our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings
recovering judgment, have the property applied to its satisfaction, and that the party in whose hands the
any validity, there must be a tribunal competent by its constitution -- that is, by the law of its creation -- to pass
property was would be protected by the judgment in the State of the debtor against a suit for it, because the
upon the subject matter of the suit; and if that involves merely a determination of the personal liability of the
court rendering the judgment had jurisdiction to that extent; but that, if the property attached were insufficient
defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary
to satisfy the judgment, and the creditor should sue on that judgment in the State of the debtor, he would fail
appearance.
because the defendant was not amenable to the court rendering the judgment. In other words, it was held that
over the property within the State the court had jurisdiction by the attachment, but had none over his person,
and that any determination of his liability, except so far as was necessary for the disposition of the property, Except in cases affecting the personal status of the plaintiff and cases in which that mode of service may be
was invalid. considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process
by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought
against nonresidents, is effectual only where, in connection with process against the person for commencing
In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action of debt was brought in New York upon a personal
the action, property in the State is brought under the control of the court, and subjected to its disposition by
judgment recovered in Massachusetts. The defendant in that judgment was not served with process, and the
process adapted to that purpose, or where the judgment is sought as a means of reaching such property or
affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As
stated by Cooley in his Treatise on Constitutional Limitations 405, for any other purpose than to subject the
property of a nonresident to valid claims against
Page 95 U. S. 734
him in the State, "due process of law would require appearance or personal service before the defendant
could be personally bound by any judgment rendered."
It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object
the disposition of the property, without reference to the title of individual claimants; but, in a larger and more
general sense, the terms are applied to actions between parties where the direct object is to reach and
dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment
against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So
far as they affect property in the State, they are substantially proceedings in rem in the broader sense which
we have mentioned.
It is hardly necessary to observe that, in all we have said, we have had reference to proceedings in courts of
first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of
such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the
tribunal may provide. They are considered as rather a continuation of the original litigation than the
commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195.
It follows from the views expressed that the personal judgment recovered in the State court of Oregon against
the plaintiff herein, then a nonresident of the State, was without any validity, and did not authorize a sale of the
property in controversy.
To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not
mean to assert by anything we have said that a State may not authorize proceedings to determine the status
of one of its citizens towards a nonresident which would be binding within the State, though made without
service of process or personal notice to the nonresident. The jurisdiction which every State possesses to
determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on
which proceedings affecting them may be commenced and carried on within its territory. The State, for
example, has absolute
Page 95 U. S. 735
right to prescribe the conditions upon which the marriage relation between its own citizens shall be created,
and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the
State, a dissolution may be granted may have removed to a State where no dissolution is permitted. The
complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application
could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there
instituted without personal service of process or personal notice to the offending party, the injured citizen
would be without redress. Bish. Marr. and Div., sect. 156.
Neither do we mean to assert that a State may not require a nonresident entering into a partnership or
association within its limits, or making contracts enforceable there, to appoint an agent or representative in the
State to receive service of process and notice in legal proceedings instituted with respect to such partnership,
association, or contracts, or to designate a place where such service may be made and notice given, and
provide, upon their failure, to make such appointment or to designate such place that service may be made
upon a public officer designated for that purpose, or in some other prescribed way, and that judgments
rendered upon such service may not be binding upon the nonresidents both within and without the State. As
was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290,
"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."
See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual
Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating corporations or other
institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be
investigated, their obligations enforced, or their charters revoked, which shall require other than personal
service upon their officers or members. Parties becoming members of such corporations or institutions would
hold their
Page 95 U. S. 736
interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345.
In the present case, there is no feature of this kind, and consequently no consideration of what would be the
effect of such legislation in enforcing the contract of a nonresident can arise. The question here respects only
the validity of a money judgment rendered in one State in an action upon a simple contract against the
resident of another without service of process upon him or his appearance therein.
Judgment affirmed.
MR. JUSTICE HUNT dissenting.
I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to
be important, I take leave to record my views upon it.
The judgment of the court below was placed upon the ground that the provisions of the statute were not
complied with. This is of comparatively little importance, as it affects the present case only. The judgment of
this Court is based upon the theory that the legislature had no power to pass the law in question; that the
principle of the statute is vicious, and every proceeding under it void. It, therefore, affects all like cases, past
and future, and in every State.
The precise case is this: a statute of Oregon authorizes suits to be commenced by the service of a summons.
In the case of a nonresident of the State, it authorizes the service of the summons to be made by publication
for not less than six weeks, in a newspaper published in the county where the action is commenced. A copy of
the summons must also be sent by mail, directed to the defendant at his place of residence, unless it be
shown that the residence is not known and cannot be ascertained. It authorizes a judgment and execution to
be obtained in such proceeding. Judgment in a suit commenced by one Mitchell in the Circuit Court of
Multnomah County, where the summons was thus served, was obtained against Neff, the present plaintiff, and
the land in question, situate in Multnomah County, was bought by the defendant Pennoyer at a sale upon the
judgment in such suit. This court now holds that, by reason of the absence of a personal service of
Page 95 U. S. 737
the summons on the defendant, the Circuit Court of Oregon had no jurisdiction, its judgment could not
authorize the sale of land in said county, and, as a necessary result, a purchaser of land under it obtained no
title; that, as to the former owner, it is a case of depriving a person of his property without due process of law.
In my opinion, this decision is at variance with the long established practice under the statutes of the States of
this Union, is unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in
titles which have been obtained under similar statutes in existence for nearly a century; it invites litigation and
strife, and overthrows a well settled rule of property.
The result of the authorities on the subject, and the sound conclusions to be drawn from the principles which
should govern the decision, as I shall endeavor to show, are these:--
1. A sovereign State must necessarily have such control over the real and personal property actually being
within its limits, as that it may subject the same to the payment of debts justly due to its citizens.
2. This result is not altered by the circumstance that the owner of the property is nonresident, and so absent
from the State that legal process cannot be served upon him personally.
3. Personal notice of a proceeding by which title to property is passed is not indispensable; it is competent to
the State to authorize substituted service by publication or otherwise, as the commencement of a suit against
nonresidents, the judgment in which will authorize the sale of property in such State.
4. It belongs to the legislative power of the State to determine what shall be the modes and means proper to
be adopted to give notice to an absent defendant of the commencement of a suit; and if they are such as are
reasonably likely to communicate to him information of the proceeding against him, and are in good faith
designed to give him such information, and an opportunity to defend is provided for him in the event of his
appearance in the suit, it is not competent to the judiciary to declare that such proceeding is void as not being
by due process of law.
5. Whether the property of such nonresident shall be seized
Page 95 U. S. 738
upon attachment as the commencement of a suit which shall be carried into judgment and execution, upon
which it shall then be sold, or whether it shall be sold upon an execution and judgment without such
preliminary seizure, is a matter not of constitutional power, but of municipal regulation only.
To say that a sovereign State has the power to ordain that the property of nonresidents within its territory may
be subjected to the payment of debts due to its citizens, if the property is levied upon at the commencement of
a suit, but that it has not such power if the property is levied upon at the end of the suit, is a refinement and a
depreciation of a great general principle that, in my judgment, cannot be sustained.
A reference to the statutes of the different States, and to the statutes of the United States, and to the decided
cases, and a consideration of the principles on which they stand, will more clearly exhibit my view of the
question.
The statutes are of two classes: first, those which authorize the commencement of actions by publication,
accompanied by an attachment which is levied upon property, more or less, of an absent debtor; second,
those giving the like mode of commencing a suit without an attachment.
The statute of Oregon relating to publication of summons, supra, p. 95 U. S. 718, under which the question
arises, is nearly a transcript of a series of provisions contained in the New York statute, adopted thirty years
since. The latter authorizes the commencement of a suit against a nonresident by the publication of an order
for his appearance, for a time not less than six weeks, in such newspapers as shall be most likely to give
notice to him, and the deposit of a copy of the summons and complaint in the post office, directed to him at his
residence, if it can be ascertained; and provides for the allowance to defend the action before judgment, and
within seven years after its rendition, upon good cause shown, and that, if the defence be successful,
restitution shall be ordered. It then declares: "But the title to property sold under such judgment to a purchaser
in good faith shall not be thereby affected." Code, sects. 34, 35; 5 Edm.Rev.Stat. of N.Y., pp. 37-39.
Provisions similar in their effect, in authorizing the commencement of suits by attachment against absent
debtors, in
Page 95 U. S. 739
which all of the property of the absent debtor, real and personal, not merely that seized upon the attachment,
is placed under the control of trustees, who sell it for the benefit of all the creditors, and make just distribution
thereof, conveying absolute title to the property sold have been upon the statute book of New York for more
than sixty years. 2 id., p. 2 and following; 1 Rev.Laws, 1813, p. 157.
The statute of New York, before the Code, respecting proceedings in chancery where absent debtors are
parties, had long been in use in that State, and was adopted in all cases of chancery jurisdiction. Whenever a
defendant resided out of the State, his appearance might be compelled by publication in the manner pointed
out. A decree might pass against him, and performance be compelled by sequestration of his real or personal
property, or by causing possession of specific property to be delivered, where that relief is sought. T he relief
was not confined to cases of mortgage foreclosure, or where there was a specific claim upon the property, but
included cases requiring the payment of money as well. 2 Edm.Rev.Stat. N.Y., pp. 193-195; 186, m.
I doubt not that many valuable titles are now held by virtue of the provisions of these statutes.
The statute of California authorizes the service of a summons on a nonresident defendant by publication,
permitting him to come in and defend upon the merits within one year after the entry of judgment. Code, sects.
10,412, 10,473. In its general character, it is like the statutes of Oregon and New York already referred to.
The Code of Iowa, sect. 2618, that of Nevada, sect. 1093, and that of Wisconsin, are to the same general
effect. The Revised Statutes of Ohio, sects. 70, 75, 2 Swan & Critchfield, provide for a similar publication, and
that the defendant may come in to defend within five years after the entry of the judgment, but that the title to
property held by any purchaser in good faith under the judgment shall not be affected thereby.
The attachment laws of New Jersey, Nixon Dig. (4th ed.), p. 55, are like those of New York already quoted, by
which title may be transferred to all the property of a nonresident debtor. And the provisions of the
Pennsylvania statute regulating
Page 95 U. S. 740
proceedings in equity, Brightly's Purden's Dig., p. 5988, sects. 51, 52, give the same authority in substance,
and the same result is produced as under the New York statute.
Without going into a wearisome detail of the statutes of the various States, it is safe to say that nearly every
State in the Union provides a process by which the lands and other property of a nonresident debtor may be
subjected to the payment of his debts, through a judgment or decree against the owner, obtained upon a
substituted service of the summons or writ commencing the action.
The principle of substituted service is also a rule of property under the statutes of the United States.
The act of Congress "to amend the law of the District of Columbia in relation to judicial proceedings therein,"
approved Feb. 23, 1867, 14 Stat. 403, contains the same general provisions. It enacts (sect. 7) that publication
may be substituted for personal service when the defendant cannot be found in suits for partition, divorce, by
attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens
and all other liens against real or personal property, and in all actions at law or in equity having for their
immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real
or personal property within the jurisdiction of the court.
A following section points out the mode of proceeding, and closes in these words:
"The decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's
demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and
that he may have execution thereof as at law."
Sect. 10.
A formal judgment against the debtor is thus authorized by means of which any other property of the
defendant within the jurisdiction of the court, in addition to that which is the subject of the lien, may be sold,
and the title transferred to the purchaser.
All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of
the value
Page 95 U. S. 741
of the paper on which they are recorded, except where a preliminary attachment was issued.
Some of the statutes and several of the authorities I cite go further than the present case requires. In this case,
property lying in the State where the suit was brought, owned by the nonresident debtor, was sold upon the
judgment against him, and it is on the title to that property that the controversy turns.
The question whether, in a suit commenced like the present one, a judgment can be obtained which, if sued
upon in another State, will be conclusive against the debtor, is not before us; nor does the question arise as to
the faith and credit to be given in one State to a judgment recovered in another. The learning on that subject is
not applicable. The point is simply whether land lying in the same State may be subjected to process at the
end of a suit thus commenced.
It is here necessary only to maintain the principle laid down by Judge Cooley in his work on Constitutional
Limitations, p. 404, and cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer 93, in these words:
"The fact that process was not personally served is a conclusive objection to the judgment as a personal
claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a
party has property in a State, and resides elsewhere, his property is justly subject to all valid claims that may
exist against him there; but, beyond this, due process of law would require appearance or personal service
before the defendant could be personally bound by any judgment rendered."
The learned author does not make it a condition that there should be a preliminary seizure of the property by
attachment; he lays down the rule that all a person's property in a State may be subjected to all valid claims
there existing against him.
The objection now made that suits commenced by substituted service, as by publication, and judgments
obtained without actual notice to the debtor, are in violation of that constitutional provision that no man shall be
deprived of his property "without due process of law," has often been presented.
In Matter of the Empire City Bank, 18 N.Y. 199, which
Page 95 U. S. 742
was a statutory proceeding to establish and to enforce the responsibility of the stockholders of a banking
corporation, and the proceedings in which resulted in a personal judgment against the stockholders for the
amount found due, the eminent and learned Judge Denio, speaking as the organ of the Court of Appeals,
says:
"The notice of hearing is to be personal, or by service at the residence of the parties who live in the county, or
by advertisement as to others. It may therefore happen that some of the persons who are made liable will not
have received actual notice, and the question is whether personal service of process or actual notice to the
party is essential to constitute due process of law. We have not been referred to any adjudication holding that
no man's right of property can be affected by judicial proceedings unless he have personal notice. It may be
admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a
purely ex parte proceeding, without a pretence of notice or any provision for defending, would be a violation of
the Constitution, and be void; but where the legislature has prescribed a kind of notice by which it is
reasonably probable that the party proceeded against will be apprised of what is going on against him, and an
opportunity is afforded him to defend, I am of the opinion that the courts have not the power to pronounce the
proceeding illegal. The legislature has uniformly acted upon that understanding of the Constitution."
Numerous provisions of the statutes of the State are commented upon, after which he proceeds:
"Various prudential regulations are made with respect to these remedies; but it may possibly happen,
notwithstanding all these precautions, that a citizen who owes nothing, and has done none of the acts
mentioned in the statute, may be deprived of his estate without any actual knowledge of the process by which
it has been taken from him. If we hold, as we must in order to sustain this legislation, that the Constitution
does not positively require personal notice in order to constitute a legal proceeding due process of law, it then
belongs to the legislature to determine whether the case calls for this kind of exceptional legislation, and what
manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal
steps which are taken against him. "
Page 95 U. S. 743
In Happy v. Mosher, 48 id. 313, the court say:
"An approved definition of due process of law is 'law in its regular administration through courts of justice.' 2
Kent Com. 13. It need not be a legal proceeding according to the course of the common law, neither must
there be personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided
by which it is reasonably probable that the party proceeded against will be apprised of what is going on
against him, and an opportunity afforded him to defend."
The same language is used in Westervelt v. Gregg, 12 id. 202, and in Campbell v. Evans, 45 id. 356.Campbell
v. Evans and The Empire City Bank are cases not of proceedings against property to enforce a lien or claim,
but, in each of them, a personal judgment in damages was rendered against the party complaining.
It is undoubtedly true, that, in many cases where the question respecting due process of law has arisen, the
case in hand was that of a proceeding in rem. It is true also, as is asserted, that the process of a State cannot
be supposed to run beyond its own territory. It is equally true, however, that, in every instance where the
question has been presented, the validity of substituted service, which is used to subject property within the
State belonging to a nonresident to a judgment obtained by means thereof has been sustained. I have found
no case in which it is adjudged that a statute must require a preliminary seizure of such property as necessary
to the validity of the proceeding against it, or that there must have been a previous specific lien upon it; that is,
I have found no case where such has been the judgment of the court upon facts making necessary the
decision of the point. On the contrary, in the case of the attachment laws of New York and of New Jersey,
which distribute all of the nonresident's property, not merely that levied on by the attachment, and in several of
the reported cases already referred to, where the judgment was sustained, neither of these preliminary facts
existed.
The case of Galpin v. Page, reported in 18 Wall. 350 and again in 3 Sawyer 93, is cited in hostility to the views
I have expressed. There may be general expressions which will justify
Page 95 U. S. 744
State, and the judgments under which the lands were sold were rendered by the commissioners for their own
services under the act.
The court found abundant reasons, six in number, for refusing to sustain the title thus obtained. The act was
apparently an attempt dishonestly to obtain the Indian title, and not intended to give a substitution for a
personal service which would be likely, or was reasonably designed, to reach the persons to be affected.
The case of Voorhees v. Jackson, 10 Pet. 449, affirmed the title levied under the attachment laws of Ohio, and
laid down the principle of assuming that all had been rightly done by a court having general jurisdiction of the
subject matter.

this suggestion, but the judgment is in harmony with those principles. In the case as reported in this Court, it
was held that the title of the purchaser under a decree against a nonresident infant was invalid, for two
reasons: 1st, that there was no jurisdiction of the proceeding under the statute of California, on account of the
entire absence of an affidavit of nonresidence, and of diligent inquiry for the residence of the debtor; 2d, the
absence of any order for publication in Eaton's case -- both of which are conditions precedent to the
jurisdiction of the court to take any action on the subject. The title was held void, also, for the reason that the
decree under which it was obtained had been reversed in the State court, and the title was not taken at the
sale, nor held then by a purchaser in good faith, the purchase being made by one of the attorneys in the suit,
and the title being transferred to his law partner after the reversal of the decree. The court held that there was
a failure of jurisdiction in the court under which the plaintiff claimed title, and that he could not recover. The
learned justice who delivered the opinion in the Circuit Court and in this Court expressly affirms the authority of
a State over persons not only, but property as well, within its limits, and this by means of a substituted service.
The judgment so obtained, he insists, can properly be used as a means of reaching property within the State,
which is thus brought under the control of the court and subjected to its judgment. This is the precise point in
controversy in the present action.
The case of Cooper v. Reynolds, 10 Wall. 308, is cited for the same purpose. There, the judgment of the court
below, refusing to give effect to a judgment obtained upon an order of publication against a nonresident, was
reversed in this Court. The suit was commenced, or immediately accompanied (it is not clear which), by an
attachment which was levied upon the real estate sold, and for the recovery of which this action was brought.
This Court sustained the title founded upon the suit commenced against the nonresident by attachment. In the
opinion delivered in that case, there may be remarks, by way of argument or illustration, tending to show that a
judgment obtained in a suit not commenced by the levy of an attachment will not give title to land purchased
under it. They are,
Page 95 U. S. 745
In Cooper v. Smith, 25 Iowa, 269, it is said that where no process is served on the defendant, nor property
attached, nor garnishee charged, nor appearance entered, a judgment based
Page 95 U. S. 746
on a publication of the pendency of the suit will be void, and may be impeached, collaterally or otherwise, and
forms no bar to a recovery in opposition to it, nor any foundation for a title claimed under it. The language is
very general, and goes much beyond the requirement of the case, which was an appeal from a personal
judgment obtained by publication against the defendant, and where, as the court say, the petition was not
properly verified. All that the court decided was that this judgment should be reversed. This is quite a different
question from the one before us. Titles obtained by purchase at a sale upon an erroneous judgment are
generally good, although the judgment itself be afterwards reversed. McGoon v. Scales, 9 Wall. 311.
In Darrance v. Preston, 18 Iowa, 396, the distinction is pointed out between the validity of a judgment as to the
amount realized from the sale of property within the jurisdiction of the court and its validity beyond that
amount. Picquet v. Swan, 5 Mas. 35; Bissell v. Briggs, 9 Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are
cited, but neither of them in its facts touches the question before us.
In Drake on Attachment, the rule is laid down in very general language; but none of the cases cited by him will
control the present case. They are the following:--
Eaton v. Bridger, 33 N. H. 228, was decided upon the peculiar terms of the New Hampshire statute, which
forbids the entry of a judgment unless the debtor was served with process, or actually appeared and answered
in the suit. The court say the judgment was "not only unauthorized by law, but rendered in violation of its
express provisions."

however, extrajudicial, the decision itself sustaining the judgment obtained under the State statute by
Johnson v. Dodge was a proceeding in the same action to obtain a reversal on appeal of the general
publication.
judgment, and did not arise upon a contest for property sold under the judgment. Carleton v. Washington
Insurance Co., 35 id. 162, and Bruce v. Cloutman, 45 id. 37, are to the same effect and upon the same statute.
Webster v. Reid, 11 How. 437, is also cited. There, the action involved the title to certain lands in the State of
Iowa, being lands formerly belonging to the half-breeds of the Sac and Fox tribes; and title was claimed
Smith v. McCutchen, 38 Mo. 415, was a motion in the former suit to set aside the execution by a garnishee,
against the Indian right under the statutes of June 2, 1838, and January, 1839. By these statutes,
and it was held that the statute was intended to extend to that class of cases. Abbott v. Shepard, 44 id. 273, is
commissioners were appointed who were authorized to hear claims for accounts against the Indians, and
to the same effect, and is based upon Smith v. McCutchen, supra.
commence actions for the same, giving a notice thereof of eight weeks in the Iowa "Territorial Gazette," and to
enter up judgments which should be a lien on the lands. It was provided that it should not be necessary to
name the defendants in the suits, but the words "owners of the half-breed lands lying in Lee County" should be Page 95 U. S. 747
a sufficient designation of the defendants in such suits; and it provided that the trials should be by the court,
and not by a jury. It will be observed that the lands were not only within the limits of the territory of Iowa, but
So, in Eastman v. Wadleigh, 65 Me. 251, the question arose in debt on the judgment, not upon a holding of
that all the Indians who were made defendants under the name mentioned were also residents of Iowa, and,
land purchased under the judgment. It was decided upon the express language of the statute of Maine,
for aught that appears to the contrary, of the very county of Lee in which the proceeding was taken.
strongly implying the power of the legislature to make it otherwise, had they so chosen.
Nonresidence was not a fact in the case. Moreover, they were Indians, and, presumptively, not citizens of any
It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs APPEAL FROM THE SUPREME COURT OF WASHINGTON
from that where the property is seized at the end of the action, in this: in the first case, the property is
supposed to be so near to its owner that, if seizure is made of it, he will be aware of the fact, and have his
Syllabus
opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and
of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that
means receive notice. Adopted as a means of communicating it, and although a very good means, it is not the Activities within a State of salesmen in the employ of a foreign corporation, exhibiting samples of merchandise
only one, nor necessarily better than a publication of the pendency of the suit, made with an honest intention and soliciting orders from prospective buyers to be accepted or rejected by the corporation at a point outside
to reach the debtor. Who shall assume to say to the legislature that, if it authorizes a particular mode of giving the State, were systematic and continuous, and resulted in a large volume of interstate business. A statute of
notice to a debtor, its action may be sustained, but, if it adopts any or all others, its action is unconstitutional the State requires employers to pay into the state unemployment compensation fund a specified percentage of
and void? The rule is universal that modes, means, questions of expediency or necessity are exclusively within the wages paid for the services of employees within the State.
the judgment of the legislature, and that the judiciary cannot review them. This has been so held in relation to
a bank of the United States, to the legal tender act, and to cases arising under other provisions of the
Held:
Constitution.

1. In view of 26 U.S.C. 1606(a) , providing that no person shall be relieved from compliance with a state law
In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say:
requiring payments to an unemployment fund on the ground that he is engaged in interstate commerce, the
fact that the corporation is engaged in interstate commerce does not relieve it from liability for payments to the
"The essential fact on which the publication is made to depend is property of the defendant in the State, and state unemployment compensation fund. P. 326 U. S. 315.
not whether it has been attached. . . . There is no magic about the writ [of attachment] which should make it
the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it
2. The activities in behalf of the corporation render it amenable to suit in courts of the State to recover
shall have the same force and effect. The particular means to be used are always within the control of the
payments due to the state unemployment compensation fund. P. 326 U. S. 320.
legislature, so that the end be not beyond the scope of legislative power."

(a) The activities in question established between the State and the corporation sufficient contacts or ties to
If the legislature shall think that publication and deposit in the post office are likely to give the notice, there
make it reasonable and just, and in conformity to the due process requirements of the Fourteenth Amendment,
seems to be
for the State to enforce against the corporation an obligation arising out of such activities. P. 326 U. S. 320.

Page 95 U. S. 748
(b) In such a suit to recover payments due to the unemployment compensation fund, service of process upon
one of the corporation's salesmen within the State, and notice sent by registered mail to the corporation at its
nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be home office, satisfies the requirements of due process. P. 326 U. S. 320.
thus controlled.

Page 326 U. S. 311

That a State can subject land within its limits belonging to nonresident owners to debts due to its own citizens
as it can legislate upon all other local matters -- that it can prescribe the mode and process by which it is to be
3. The tax imposed by the state unemployment compensation statute -- construed by the state court, in its
reached -- seems to me very plain.
application to the corporation, as a tax on the privilege of employing salesmen within the State -- does not
violate the due process clause of the Fourteenth Amendment. P. 326 U. S. 321.
I am not willing to declare that a sovereign State cannot subject the land within its limits to the payment of
debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize
22 Wash.2d 146, 154 P.2d 801, affirmed.
the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail,
and I am of opinion that, if reasonable notice be given, with an opportunity to defend when appearance is
made, the question of power will be fully satisfied. APPEAL from a judgment upholding the constitutionality of a state unemployment compensation statute as
applied to the appellant corporation.
International Shoe v. State of Washington, 326 U.S. 310 (1945)
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
International Shoe v. State of Washington
The questions for decision are (1) whether, within the limitations of the due process clause of the Fourteenth
No. 107 Amendment, appellant, a Delaware corporation, has, by its activities in the State of Washington, rendered
itself amenable to proceedings in the courts of that state to recover unpaid contributions to the state
unemployment compensation fund exacted by state statutes, Washington Unemployment Compensation Act,
Argued November 14, 1945
Washington Revised Statutes, 9998-103a through 9998-123a, 1941 Supp., and (2) whether the state can
exact those contributions consistently with the due process clause of the Fourteenth Amendment.
Decided December 3, 1945
The statutes in question set up a comprehensive scheme of unemployment compensation, the costs of which
326 U.S. 310 are defrayed by contributions required to be made by employers to a state unemployment compensation fund.
Page 326 U. S. 312
The contributions are a specified percentage of the wages payable annually by each employer for his
employees' services in the state. The assessment and collection of the contributions and the fund are
administered by appellees. Section 14(c) of the Act (Wash.Rev.Stat., 1941 Supp., 9998-114c) authorizes
appellee Commissioner to issue an order and notice of assessment of delinquent contributions upon
prescribed personal service of the notice upon the employer if found within the state, or, if not so found, by
mailing the notice to the employer by registered mail at his last known address. That section also authorizes
the Commissioner to collect the assessment by distraint if it is not paid within ten days after service of the
notice. By 14e and 6b, the order of assessment may be administratively reviewed by an appeal tribunal
within the office of unemployment upon petition of the employer, and this determination is, by 6i, made
subject to judicial review on questions of law by the state Superior Court, with further right of appeal in the
state Supreme Court, as in other civil cases.
In this case, notice of assessment for the years in question was personally served upon a sales solicitor
employed by appellant in the State of Washington, and a copy of the notice was mailed by registered mail to
appellant at its address in St. Louis, Missouri. Appellant appeared specially before the office of unemployment,
and moved to set aside the order and notice of assessment on the ground that the service upon appellant's
salesman was not proper service upon appellant; that appellant was not a corporation of the State of
Washington, and was not doing business within the state; that it had no agent within the state upon whom
service could be made; and that appellant is not an employer, and does not furnish employment within the
meaning of the statute.
The motion was heard on evidence and a stipulation of facts by the appeal tribunal, which denied the motion
Page 326 U. S. 313
and ruled that appellee Commissioner was entitled to recover the unpaid contributions. That action was
affirmed by the Commissioner; both the Superior Court and the Supreme Court affirmed. 22 Wash.2d 146, 154
P.2d 801. Appellant in each of these courts assailed the statute as applied, as a violation of the due process
clause of the Fourteenth Amendment, and as imposing a constitutionally prohibited burden on interstate
commerce. The cause comes here on appeal under 237(a) of the Judicial Code, 28 U.S.C. 344(a),
appellant assigning as error that the challenged statutes, as applied, infringe the due process clause of the
Fourteenth Amendment and the commerce clause.
The facts, as found by the appeal tribunal and accepted by the state Superior Court and Supreme Court, are
not in dispute. Appellant is a Delaware corporation, having its principal place of business in St. Louis, Missouri,
and is engaged in the manufacture and sale of shoes and other footwear. It maintains places of business in
several states other than Washington, at which its manufacturing is carried on and from which its merchandise
is distributed interstate through several sales units or branches located outside the State of Washington.
Appellant has no office in Washington, and makes no contracts either for sale or purchase of merchandise
there. It maintains no stock of merchandise in that state, and makes there no deliveries of goods in intrastate
commerce. During the years from 1937 to 1940, now in question, appellant employed eleven to thirteen
salesmen under direct supervision and control of sales managers located in St. Louis. These salesmen
resided in Washington; their principal activities were confined to that state, and they were compensated by
commissions based upon the amount of their sales. The commissions for each year totaled more than
$31,000. Appellant supplies its salesmen with a line of samples, each consisting of one shoe of a pair, which
Page 326 U. S. 314
they display to prospective purchasers. On occasion, they rent permanent sample rooms, for exhibiting
samples, in business buildings, or rent rooms in hotels or business buildings temporarily for that purpose. The
cost of such rentals is reimbursed by appellant.
The authority of the salesmen is limited to exhibiting their samples and soliciting orders from prospective
buyers, at prices and on terms fixed by appellant. The salesmen transmit the orders to appellant's office in St.
Louis for acceptance or rejection, and, when accepted, the merchandise for filling the orders is shipped f.o.b.
from points outside Washington to the purchasers within the state. All the merchandise shipped into
Washington is invoiced at the place of shipment, from which collections are made. No salesman has authority
to enter into contracts or to make collections.
The Supreme Court of Washington was of opinion that the regular and systematic solicitation of orders in the
state by appellant's salesmen, resulting in a continuous flow of appellant's product into the state, was sufficient
to constitute doing business in the state so as to make appellant amenable to suit in its courts. But it was also
of opinion that there were sufficient additional activities shown to bring the case within the rule, frequently
stated, that solicitation within a state by the agents of a foreign corporation plus some additional activities
there are sufficient to render the corporation amenable to suit brought in the courts of the state to enforce an
obligation arising out of its activities there. International Harvester Co. v. Kentucky, 234 U. S. 579, 234 U. S.
587; People's Tobacco Co. v. American Tobacco Co., 246 U. S. 79, 246 U. S. 87; Frene v. Louisville Cement
Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516. The court found such additional activities in the salesmen's
display of samples sometimes in permanent display rooms, and the salesmen's residence within the state,
continued over a period of years, all resulting in a
Page 326 U. S. 315
substantial volume of merchandise regularly shipped by appellant to purchasers within the state. The court
also held that the statute, as applied, did not invade the constitutional power of Congress to regulate interstate
commerce, and did not impose a prohibited burden on such commerce.
Appellant's argument, renewed here, that the statute imposes an unconstitutional burden on interstate
commerce need not detain us. For 53 Stat. 1391, 26 U.S.C. 1606(a) provides that
"No person required under a State law to make payments to an unemployment fund shall be relieved from
compliance therewith on the ground that he is engaged in interstate or foreign commerce, or that the State law
does not distinguish between employees engaged in interstate or foreign commerce and those engaged in
intrastate commerce."
It is no longer debatable that Congress, in the exercise of the commerce power, may authorize the states, in
specified ways, to regulate interstate commerce or impose burdens upon it. Kentucky Whip & Collar Co. v.
Illinois Central R. Co., 299 U. S. 334; Perkins v. Pennsylvania, 314 U.S. 586; Standard Dredging Corp. v.
Murphy, 319 U. S. 306, 319 U. S. 308; Hooven & Allison Co. v. Evatt, 324 U. S. 652, 324 U. S. 679; Southern
Pacific Co. v. Arizona, 325 U. S. 761, 325 U. S. 769.
Appellant also insists that its activities within the state were not sufficient to manifest its "presence" there, and
that, in its absence, the state courts were without jurisdiction, that, consequently, it was a denial of due
process for the state to subject appellant to suit. It refers to those cases in which it was said that the mere
solicitation of orders for the purchase of goods within a state, to be accepted without the state and filled by
shipment of the purchased goods interstate, does not render the corporation seller amenable to suit within the
state. See Green v. Chicago, B. & Q. R. Co., 205 U. S. 530,205 U. S. 533; International Harvester Co. v.
Kentucky, supra, 234 U. S. 586-587; Philadelphia
Page 326 U. S. 316
& Reading R. Co. v. McKibbin, 243 U. S. 264, 243 U. S. 268; People's Tobacco Co. v. American Tobacco Co.,
supra, 246 U. S. 87. And appellant further argues that, since it was not present within the state, it is a denial of
due process to subject it to taxation or other money exaction. It thus denies the power of the state to lay the
tax or to subject appellant to a suit for its collection.
Historically, the jurisdiction of courts to render judgment in personam is grounded on their de facto power over
the defendant's person. Hence, his presence within the territorial jurisdiction of a court was prerequisite to its
rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U. S. 714,95 U. S. 733. But now that
the capias ad respondendum has given way to personal service of summons or other form of notice, due
process requires only that, in order to subject a defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit
does not offend "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U. S. 457, 311 U.
S. 463. See Holmes, J., in McDonald v. Mabee,243 U. S. 90, 243 U. S. 91. Compare Hoopeston Canning Co.
v. Cullen, 318 U. S. 313, 318 U. S. 316, 318 U. S. 319. See Blackmer v. United States, 284 U. S. 421; Hess v.
Pawloski, 274 U. S. 352; Young v. Masci, 289 U. S. 253. ,
Since the corporate personality is a fiction, although a fiction intended to be acted upon as though it were a
fact, Klein v. Board of Supervisors, 282 U. S. 19, 282 U. S. 24, it is clear that, unlike an individual, its
"presence" without, as well as within, the state of its origin can be manifested only by activities carried on in its
behalf by those who are authorized to act for it. To say that the corporation is so far "present" there as to
satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts
of the state, is to beg the question to be decided. For the terms "present" or "presence" are
Page 326 U. S. 317
used merely to symbolize those activities of the corporation's agent within the state which courts will deem to
be sufficient to satisfy the demands of due process. L. Hand, J., in Hutchinson v. Chase & Gilbert, 45 F.2d 139,
141. Those demands may be met by such contacts of the corporation with the state of the forum as make it
reasonable, in the context of our federal system of government, to require the corporation to defend the
particular suit which is brought there. An "estimate of the inconveniences" which would result to the
corporation from a trial away from its "home" or principal place of business is relevant in this
connection. Hutchinson v. Chase & Gilbert, supra, 141.
"Presence" in the state in this sense has never been doubted when the activities of the corporation there have
not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent
to be sued or authorization to an agent to accept service of process has been given. St. Clair v. Cox, 106 U. S.
350, 106 U. S. 355; Connecticut Mutual Co. v. Spratley, 172 U. S. 602, 172 U. S. 610-611; Pennsylvania
Lumbermen's Ins. Co. v. Meyer, 197 U. S. 407, 197 U. S. 414-415; Commercial Mutual Co. v. Davis, 213 U. S.
245, 213 U. S. 255-256; International Harvester Co. v. Kentucky, supra; cf. St. Louis S.W. R. Co. v.
Alexander, 227 U. S. 218. Conversely, it has been generally recognized that the casual presence of the
corporate agent, or even his conduct of single or isolated items of activities in a state in the corporation's
behalf, are not enough to subject it to suit on causes of action unconnected with the activities there. St. Clair v.
Cox, supra, 106 U. S. 359, 106 U. S. 360; Old Wayne Life Assn. v. McDonough, 204 U. S. 8, 204 U. S.
21; Frene v. Louisville Cement Co., supra, 515, and cases cited. To require the corporation in such
circumstances to defend the suit away from its home or other jurisdiction where it carries on more substantial
activities has been thought to lay too great and unreasonable a burden on the corporation to comport with due
process.
Page 326 U. S. 318
While it has been held, in cases on which appellant relies, that continuous activity of some sorts within a state
is not enough to support the demand that the corporation be amenable to suits unrelated to that activity, Old
Wayne Life Assn. v. McDonough, supra; Green v. Chicago, B. & Q. R. Co., supra; Simon v. Southern R.
Co., 236 U. S. 115; People's Tobacco Co. v. American Tobacco Co., supra; cf. Davis v. Farmers Co-operative
Co., 262 U. S. 312, 262 U. S. 317, there have been instances in which the continuous corporate operations
within a state were thought so substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities.See Missouri, K. & T. R. Co. v. Reynolds, 255 U.S.
565; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. St. Louis S.W. R. Co. v. Alexander,
supra.
Finally, although the commission of some single or occasional acts of the corporate agent in a state sufficient
to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to
enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516, other such acts, because of their nature
and quality and the circumstances of their commission, may be deemed sufficient to render the corporation
liable to suit. Cf. Kane v. New Jersey, 242 U. S. 160; Hess v. Pawloski, supra; Young v. Masci, supra. True,
some of the decisions holding the corporation amenable to suit have been supported by resort to the legal
fiction that it has given its consent to service and suit, consent being implied from its presence in the state
through the acts of its authorized agents.Lafayette Insurance Co. v. French, 18 How. 404, 59 U. S. 407; St.
Clair v. Cox, supra, 106 U. S. 356; Commercial Mutual Co. v. Davis, supra, 213 U. S. 254; Washington v.
Superior Court, 289 U. S. 361, 289 U. S. 364-365. But, more realistically, it may be said that those authorized
acts were of such a nature as to justify the fiction. Smolik v. Philadelphia &
Page 326 U. S. 319
Reading Co., 222 F. 148, 151. Henderson, The Position of Foreign Corporations in American Constitutional
Law, 94-95.
It is evident that the criteria by which we mark the boundary line between those activities which justify the
subjection of a corporation to suit and those which do not cannot be simply mechanical or quantitative. The
test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit
to procure through its agents in another state, is a little more or a little less.St. Louis S.W. R. Co. v. Alexander,
supra, 227 U. S. 228; International Harvester Co. v. Kentucky, supra, 234 U. S. 587. Whether due process is
satisfied must depend, rather, upon the quality and nature of the activity in relation to the fair and orderly
administration of the laws which it was the purpose of the due process clause to insure. That clause does not
contemplate that a state may make binding a judgment in personam against an individual or corporate
defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, supra; Minnesota
Commercial Assn. v. Benn, 261 U. S. 140.
But, to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the
benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and,
so far as those obligations arise out of or are connected with the activities within the state, a procedure which
requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to
be undue. Compare International Harvester Co. v. Kentucky, supra, with Green v. Chicago, B. & Q. R. Co.,
supra, and People's Tobacco Co. v. American Tobacco Co., supra. Compare Connecticut Mutual Co. v.
Spratley, supra, 172 U. S. 619, 172 U. S. 620, and Commercial Mutual Co. v. Davis, supra, with Old Wayne
Life Assn. v. McDonough, supra. See 29 Columbia Law Review, 187-195.
Page 326 U. S. 320
Applying these standards, the activities carried on in behalf of appellant in the State of Washington were
neither irregular nor casual. They were systematic and continuous throughout the years in question. They
resulted in a large volume of interstate business, in the course of which appellant received the benefits and
protection of the laws of the state, including the right to resort to the courts for the enforcement of its rights.
The obligation which is here sued upon arose out of those very activities. It is evident that these operations
establish sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our
traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which
appellant has incurred there. Hence, we cannot say that the maintenance of the present suit in the State of
Washington involves an unreasonable or undue procedure.
We are likewise unable to conclude that the service of the process within the state upon an agent whose
activities establish appellant's "presence" there was not sufficient notice of the suit, or that the suit was so
unrelated to those activities as to make the agent an inappropriate vehicle for communicating the notice. It is
enough that appellant has established such contacts with the state that the particular form of substituted
service adopted there gives reasonable assurance that the notice will be actual. Connecticut Mutual Co. v.
Spratley, supra, 172 U. S. 618, 172 U. S. 619; Board of Trade v. Hammond Elevator Co., 198 U. S. 424, 198
U. S. 437-438; Commercial Mutual Co. v. Davis, supra,213 U. S. 254-255. Cf. Riverside Mills v. Menefee, 237
U. S. 189, 237 U. S. 194, 237 U. S. 195; See Knowles v. Gaslight & Coke Co., 19 Wall. 58, 86 U. S.
61; McDonald v. Mabee, supra; Milliken v. Meyer, supra. Nor can we say that the mailing of the notice of suit to
appellant by registered mail at its home office was not reasonably calculated to apprise appellant of the
suit. Compare Hess v. Pawloski, supra, with McDonald v. Mabee, supra,
Page 326 U. S. 321
243 U. S. 92, and Wuchter v. Pizzutti, 276 U. S. 13, 276 U. S. 19, 276 U. S. 24; cf. Becquet v. MacCarthy, 2 B.
& Ad. 951; Maubourquet v. Wyse, 1 Ir.Rep.C.L. 471. See Washington v. Superior Court, supra, 289 U. S. 365.
Only a word need be said of appellant's liability for the demanded contributions to the state unemployment
fund. The Supreme Court of Washington, construing and applying the statute, has held that it imposes a tax on
the privilege of employing appellant's salesmen within the state measured by a percentage of the wages, here,
the commissions payable to the salesmen. This construction we accept for purposes of determining the
constitutional validity of the statute. The right to employ labor has been deemed an appropriate subject of
taxation in this country and England, both before and since the adoption of the Constitution. Steward Machine
Co. v. Davis, 301 U. S. 548,301 U. S. 579, et seq. And such a tax imposed upon the employer for
unemployment benefits is within the constitutional power of the states. Carmichael v. Southern Coal Co., 301
U. S. 495, 301 U. S. 508, et seq.
Appellant having rendered itself amenable to suit upon obligations arising out of the activities of its salesmen
in Washington, the state may maintain the present suit in personam to collect the tax laid upon the exercise of
the privilege of employing appellant's salesmen within the state. For Washington has made one of those
activities which, taken together, establish appellant's "presence" there for purposes of suit the taxable event by
which the state brings appellant within the reach of its taxing power. The state thus has constitutional power to
lay the tax and to subject appellant to a suit to recover it. The activities which establish its "presence" subject it
alike to taxation by the state and to suit to recover the tax. Equitable Life Society v. Pennsylvania, 238 U. S.
143, 238 U. S. 146; cf. International Harvester Co. v. Department of Taxation, 322 U. S. 435, 322 U. S. 442, et
seq.; Hoopeston Canning Co. v. Cullen,
Page 326 U. S. 322
supra, 318 U. S. 316-319; see General Trading Co. v. Tax Comm'n, 322 U. S. 335.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE BLACK delivered the following opinion.
Congress, pursuant to its constitutional power to regulate commerce, has expressly provided that a State shall
not be prohibited from levying the kind of unemployment compensation tax here challenged. 26 U.S.C. 1600.
We have twice decided that this Congressional consent is an adequate answer to a claim that imposition of the
tax violates the Commerce Clause. Perkins v. Pennsylvania, 314 U.S. 586, affirming 342 Pa. 529; Standard
Dredging Corp. v. Murphy, 319 U. S. 306, 319 U. S. 308. Two determinations by this Court of an issue so
palpably without merit are sufficient. Consequently, that part of this appeal which again seeks to raise the
question seems so patently frivolous as to make the case a fit candidate for dismissal. Fay v. Crozer, 217 U. S.
455. Nor is the further ground advanced on this appeal, that the State of Washington has denied appellant due
process of law, any less devoid of substance. It is my view, therefore, that we should dismiss the appeal as
unsubstantial, [Footnote 1] Seaboard Air Line R. Co. v. Watson, 287 U. S. 86, 287 U. S. 90, 287 U. S. 92, and
decline the invitation to formulate broad rules as to the meaning of due process, which here would amount to
deciding a constitutional question "in advance of the necessity for its decision." Federation of Labor v.
McAdory, 325 U. S. 450, 325 U. S. 461.
Page 326 U. S. 323
Certainly appellant cannot, in the light of our past decisions, meritoriously claim that notice by registered mail
and by personal service on its sales solicitors in Washington did not meet the requirements of procedural due
process. And the due process clause is not brought in issue any more by appellant's further conceptualistic
contention that Washington could not levy a tax or bring suit against the corporation because it did not honor
that State with its mystical "presence." For it is unthinkable that the vague due process clause was ever
intended to prohibit a State from regulating or taxing a business carried on within its boundaries simply
because this is done by agents of a corporation organized and having its headquarters elsewhere. To read this
into the due process clause would, in fact, result in depriving a State's citizens of due process by taking from
the State the power to protect them in their business dealings within its boundaries with representatives of a
foreign corporation. Nothing could be more irrational, or more designed to defeat the function of our federative
system of government. Certainly a State, at the very least, has power to tax and sue those dealing with its
citizens within its boundaries, as we have held before. Hoopeston Canning Co. v. Cullen,318 U. S. 313. Were
the Court to follow this principle, it would provide a workable standard for cases where, as here, no other
questions are involved. The Court has not chosen to do so, but instead has engaged in an unnecessary
discussion, in the course of which it has announced vague Constitutional criteria applied for the first time to the
issue before us. It has thus introduced uncertain elements confusing the simple pattern and tending to curtail
the exercise of State powers to an extent not justified by the Constitution.
The criteria adopted, insofar as they can be identified, read as follows: Due Process does permit State courts
to "enforce the obligations which appellant has incurred" if
Page 326 U. S. 324
it be found "reasonable and just according to our traditional conception of fair play and substantial justice." And
this, in turn, means that we will "permit" the State to act if, upon
"an 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or
principal place of business,"
we conclude that it is "reasonable" to subject it to suit in a State where it is doing business.
It is true that this Court did use the terms "fair play" and "substantial justice" in explaining the philosophy
underlying the holding that it could not be "due process of law" to render a personal judgment against a
defendant without notice and an opportunity to be heard. Milliken v. Meyer, 311 U. S. 457. In McDonald v.
Mabee, 243 U. S. 90, 243 U. S. 91, cited in the Milliken, case, Mr. Justice Holmes, speaking for the Court,
warned against judicial curtailment of this opportunity to be heard, and referred to such a curtailment as a
denial of "fair play," which even the common law would have deemed "contrary to natural justice." And
previous cases had indicated that the ancient rule against judgments without notice had stemmed from
"natural justice" concepts. These cases, while giving additional reasons why notice under particular
circumstances is inadequate, did not mean thereby that all legislative enactments which this Court might deem
to be contrary to natural justice ought to be held invalid under the due process clause. None of the cases
purport to support or could support a holding that a State can tax and sue corporations only if its action
comports with this Court's notions of "natural justice." I should have thought the Tenth Amendment settled that.
I believe that the Federal Constitution leaves to each State, without any "ifs" or "buts," a power to tax and to
open the doors of its courts for its citizens to sue corporations whose agents do business in those States.
Believing that the Constitution gave the States that power, I think it a judicial deprivation to condition its
exercise upon this
Page 326 U. S. 325
Court's notion of "fair play," however appealing that term may be. Nor can I stretch the meaning of due process
so far as to authorize this Court to deprive a State of the right to afford judicial protection to its citizens on the
ground that it would be more "convenient" for the corporation to be sued somewhere else.
There is a strong emotional appeal in the words "fair play," "justice," and "reasonableness." But they were not
chosen by those who wrote the original Constitution or the Fourteenth Amendment as a measuring rod for this
Court to use in invalidating State or Federal laws passed by elected legislative representatives. No one, not
even those who most feared a democratic government, ever formally proposed that courts should be given
power to invalidate legislation under any such elastic standards. Express prohibitions against certain types of
legislation are found in the Constitution, and, under the long-settled practice, courts invalidate laws found to
conflict with them. This requires interpretation, and interpretation, it is true, may result in extension of the
Constitution's purpose. But that is no reason for reading the due process clause so as to restrict a State's
power to tax and sue those whose activities affect persons and businesses within the State, provided proper
service can be had. Superimposing the natural justice concept on the Constitution's specific prohibitions could
operate as a drastic abridgment of democratic safeguards they embody, such as freedom of speech, press
and religion, [Footnote 2] and the right to counsel. This
Page 326 U. S. 326
has already happened. Betts v. Brady, 316 U. S. 455. Compare Feldman v. United States, 322 U. S. 487,322
U. S. 494-503. For application of this natural law concept, whether under the terms "reasonableness,"
"justice," or "fair play," makes judges the supreme arbiters of the country's laws and practices. Polk Co. v.
Glover, 305 U. S. 5, 305 U. S. 17-18; Federal Power Commission v. Natural Gas Pipeline Co., 315 U. S.
575, 315 U. S. 600, n. 4. This result, I believe, alters the form of government our Constitution provides. I
cannot agree.
True, the State's power is here upheld. But the rule announced means that tomorrow's judgment may strike
down a State or Federal enactment on the ground that it does not conform to this Court's idea of natural
justice. I therefore find myself moved by the same fears that caused Mr. Justice Holmes to say in 1930:
"I have not yet adequately expressed the more than anxiety that I feel at the ever-increasing scope given to
the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the
decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike
a majority of this Court as for any reason undesirable."
Baldwin v. Missouri, 281 U. S. 586, 281 U. S. 595.
[Footnote 1]
This Court has, on several occasions, pointed out the undesirable consequences of a failure to dismiss
frivolous appeals. Salinger v. United States, 272 U. S. 542, 272 U. S. 544; United Surety Co. v. American Fruit
Product Co., 238 U. S. 140; De Bearn v. Safe Deposit & Trust Co., 233 U. S. 24, 233 U. S. 33-34.
[Footnote 2]
These First Amendment liberties -- freedom of speech, press and religion -- provide a graphic illustration of the
potential restrictive capacity of a rule under which they are protected at a particular time only because the
Court, as then constituted, believes them to be a requirement of fundamental justice. Consequently, under the
same rule, another Court, with a different belief as to fundamental justice, could, at least as against State
action, completely or partially withdraw Constitutional protection from these basic freedoms, just as though the
First Amendment had never been written.
Primary Holding
Personal jurisdiction is constitutionally permissible when a defendant has minimum contacts with the state
where a lawsuit is brought such that notions of fair play and substantial justice would not be offended.
Facts
International Shoe Co. was a business incorporated in Delaware with its principal place of business in
Missouri. It employed about a dozen salesmen in the state of Washington, who were residents of that state
paid by commissions on their sales. International Shoe did not own any property or have a permanent location
in Washington, since the salesmen used hotels and rented spaces to interact with potential clients. This
system was designed to restrict the company's location to Missouri, although the business earned about
$30,000 annually from customers in Washington.
The state enacted a tax on companies doing business there that functioned as a mandatory contribution to its
Unemployment Compensation Fund. When International Shoe failed to comply with the tax, the state of
Washington served a notice of assessment on one of the resident salesmen and sent a letter by registered
mail to the company's Missouri headquarters. International Shoe tried to forestall the case at the outset by
moving that it be dismissed for a lack of personal jurisdiction. This argument failed at every level of the state
court system.
Opinions
Majority
Harlan Fiske Stone (Author)
Stanley Forman Reed
Felix Frankfurter
William Orville Douglas
Frank Murphy
John Rutledge
Harold Hitz Burton
Analyzing the level of contact between International Shoe and the state of Washington, Stone found that due
process was satisfied by personal service on the salesman and mailing the registered letter to the corporate
headquarters. He felt that the tax was constitutional and the interstate nature of International Shoe's
operations did not exempt it from contributions. The opinion articulated the standard of "minimum contacts"
that gave rise to much modern jurisprudence in the area of personal jurisdiction. Stone ruled that a forum is
proper if establishing jurisdiction over the defendant there would not offend traditional notions of fair play and
substantial justice.
He also divided types of contact into systematic and continuous contact as opposed to casual contact. In the
former situation, any type of claim may be brought against a defendant. In the latter situation, only claims
related to the contact with the state can be brought there.
Concurrence
Hugo Lafayette Black (Author)
Black argued that the majority did not go far enough in giving states the ability to claim jurisdiction over
corporate defendants from outside their borders.
Recused
Robert Houghwout Jackson (Author)
Case Commentary
Traditionally, non-foreign corporations could be brought into a court only by consent, by being present in a
state through doing business there, or a combination. These theories became outdated as interstate
commerce grew, and this decision shows that corporations can be sued in many states in a broad range of
situations. States now have long arm statutes that have codified this type of jurisdiction, which may be
essential in view of the increasingly fluid economy and the tendency of corporations to do business
nationwide.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
Mullane v. Central Hanover Bank & Trust Co.
No. 378
Argued February &, 1950
Decided April 24, 1950
339 U.S. 306
APPEAL FROM THE COURT OF APPEALS OF NEW YORK
Syllabus
A trust company in New York which had exclusive management and control of a common trust fund
established by it under 100-c of the New York Banking Law petitioned under that section for a judicial
settlement of accounts which would be binding and conclusive as to any matter set forth therein upon
everyone having any interest in the common fund or in any participating trust. In this common fund, the trust
company had invested assets of numerous small trusts of which it was trustee and of which some of the
beneficiaries were residents, and some nonresidents, of the State. The only notice of this petition given
beneficiaries was by publication in a local newspaper pursuant to 100-c(12).
Held:
1. Whether such a proceeding for settlement of accounts be technically in personam, in rem, or quasi in
rem, the interest of each state in providing means to close trusts that exist by the grace of its laws and are
administered under the supervision of its courts is such as to establish beyond doubt the right of its courts to
determine the interests of all claimants, resident or nonresident, provided its procedure accords full opportunity
to appear and be heard. Pp. 339 U. S. 311-313.
2. The statutory notice by publication is sufficient as to any beneficiaries whose interests or addresses are
unknown to the trustee, since there are no other means of giving them notice which are both practicable and
more effective. Pp. 339 U. S. 313-318.
3. Such notice by publication is not sufficient under the Fourteenth Amendment as a basis for adjudication
depriving of substantial property rights known persons whose whereabouts are also known, since it is not
impracticable to make serious efforts to notify them at least by ordinary mail to their addresses on record with
the trust company. Pp. 339 U. S. 318-320.
299 N.Y. 697, 87 N.E.2d 73, reversed.
Overruling objections to the statutory notice to beneficiaries by publication authorized by 100-c of the New
York Banking Law, a New York Surrogate's Court entered a final decree accepting an accounting of the trustee
of
Page 339 U. S. 307
a common trust fund established pursuant to that section. 75 N.Y.S.2d 397. This decree was affirmed by the
Appellate Division of the Supreme Court of New York (see 274 App.Div. 772, 80 N.Y.S.2d 127), and the Court
of Appeals of New York (229 N.Y. 697, 87 N.E.2d 73). On appeal to this Court, reversed, p. 339 U. S. 320.
Mr. Justice JACKSON delivered the opinion of the Court.
This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of
accounts by the trustee of a common trust fund established under the New York Banking Law, Consol.Laws, c.
2. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes
requirements of the Fourteenth Amendment, and that, by allowance of the account, beneficiaries were
deprived of property without due process of law. 299 N.Y. 697, 87 N.E.2d 73. The case is here on appeal
under 28 U.S.C. 1257.
Common trust fund legislation is addressed to a problem appropriate for state action. Mounting overheads
have made administration of small trusts undesirable to corporate trustees. In order that donors and testators
of moderately sized trusts may not be denied the service of corporate fiduciaries, the District of Columbia and
some
Page 339 U. S. 308
thirty states other than New York have permitted pooling small trust estates into one fund for investment
administration. * The income, capital gains, losses and expenses of the collective trust are shared by the
constituent trusts in proportion to their contribution. By this plan, diversification of risk and economy of
management can be extended to those whose capital standing alone would not obtain such advantage.
Statutory authorization for the establishment of such common trust funds is provided in the New York Banking
Law, 100-c, c. 687, L.1937, as amended by c. 602, L.1943 and c. 158, L.1944. Under this Act, a trust
company may, with approval of the State Banking Board, establish a common fund and, within prescribed
limits,
Page 339 U. S. 309
invest therein the assets of an unlimited number of estates, trusts or other funds of which it is trustee. Each
participating trust shares ratably in the common fund, but exclusive management and control is in the trust
company as trustee, and neither a fiduciary nor any beneficiary of a participating trust is deemed to have
ownership in any particular asset or investment of this common fund. The trust company must keep fund
assets separate from its own, and, in its fiduciary capacity, may not deal with itself or any affiliate. Provisions
are made for accountings twelve to fifteen months after the establishment of a fund, and triennially thereafter.
The decree, in each such judicial settlement of accounts, is made binding and conclusive as to any matter set
forth in the account upon everyone having any interest in the common fund or in any participating estate, trust
or fund.
In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in accordance
with these provisions, and, in March, 1947, it petitioned the Surrogate's Court for settlement of its first account
as common trustee. During the accounting period, a total of 113 trusts, approximately half inter vivos and half
testamentary, participated in the common trust fund, the gross capital of which was nearly three million dollars.
The record does not show the number or residence of the beneficiaries, but they were many, and it is clear
that some of them were not residents of the State of New York.
The only notice given beneficiaries of this specific application was by publication in a local newspaper in strict
compliance with the minimum requirements of N.Y.Banking Law 100-c(12):
"After filing such petition [for judicial settlement of its account], the petitioner shall cause to be issued by the
court in which the petition is filed and shall publish not less than once in each week
Page 339 U. S. 310
for four successive weeks in a newspaper to be designated by the court, a notice or citation addressed
generally, without naming them, to all parties interested in such common trust fund and in such estates, trusts
or funds mentioned in the petition, all of which may be described in the notice or citation only in the manner set
forth in said petition and without setting forth the residence of any such decedent or donor of any such estate,
trust or fund."
Thus, the only notice required, and the only one given, was by newspaper publication setting forth merely the
name and address of the trust company, the name and the date of establishment of the common trust fund,
and a list of all participating estates, trusts or funds.
At the time the first investment in the common fund was made on behalf of each participating estate; however,
the trust company, pursuant to the requirements of 100-c(9), had notified by mail each person of full age and
sound mind whose name and address was then known to it and who was
"entitled to share in the income therefrom . . . (or) . . . who would be entitled to share in the principal if the
event upon which such estate, trust or fund will become distributable should have occurred at the time of
sending such notice."
Included in the notice was a copy of those provisions of the Act relating to the sending of the notice itself and
to the judicial settlement of common trust fund accounts.
Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court pursuant to
100-c(12), appointed special guardian and attorney for all persons known or unknown not otherwise appearing
who had or might thereafter have any interest in the income of the common trust fund, and appellee Vaughan
was appointed to represent those similarly interested in the principal. There were no other appearances on
behalf of anyone interested in either interest or principal.
Page 339 U. S. 311
Appellant appeared specially, objecting that notice and the statutory provisions for notice to beneficiaries were
inadequate to afford due process under the Fourteenth Amendment, and therefore that the court was without
jurisdiction to render a final and binding decree. Appellant's objections were entertained and overruled, the
Surrogate holding that the notice required and given was sufficient. 75 N.Y.S.2d 397. A final decree accepting
the accounts has been entered, affirmed by the Appellate Division of the Supreme Court, In re Central
Hanover Bank & Trust Co., 275 App.Div. 769, 88 N.Y.S.2d 907, and by the Court of Appeals of the State of
New York, 299 N.Y. 697, 87 N.E.2d 73.
The effect of this decree, as held below, is to settle "all questions respecting the management of the common
fund." We understand that every right which beneficiaries would otherwise have against the trust company,
either as trustee of the common fund or as trustee of any individual trust, for improper management of the
common trust fund during the period covered by the accounting is sealed and wholly terminated by the
decree. See Matter of Hoaglund's Estate, 194 Misc. 803, 811-812, 74 N.Y.S.2d 156, 164, affirmed, 272
App.Div. 1040, 74 N.Y.S.2d 911, affirmed, 297 N.Y. 920, 79 N.E.2d 746; Matter of Bank of New York, 189 Misc.
459, 470, 67 N.Y.S.2d 444, 453; Matter of Security Trust Co. of Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d
260, 271; Matter of Continental Bank & Trust Co., 189 Misc. 795, 797, 67 N.Y.S.2d 806, 807-808.
We are met at the outset with a challenge to the power of the State -- the right of its courts to adjudicate at all
as against those beneficiaries who reside without the State of New York. It is contended that the proceeding is
one in personam, in that the decree affects neither title to nor possession of any res, but adjudges only
personal rights of the beneficiaries to surcharge their trustee for negligence or breach of trust. Accordingly, it is
said, under the strict doctrine of Pennoyer v. Neff, 95 U. S. 714, the Surrogate
Page 339 U. S. 312
is without jurisdiction as to nonresidents upon whom personal service of process was not made.
Distinctions between actions in rem and those in personam are ancient, and originally expressed in procedural
terms what seems really to have been a distinction in the substantive law of property under a system quite
unlike our own. Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of Roman Law
and Their Relation to Modern Law, 298. The legal recognition and rise in economic importance of incorporeal
or intangible forms of property have upset the ancient simplicity of property law and the clarity of its
distinctions, while new forms of proceedings have confused the old procedural classification. American courts
have sometimes classed certain actions as in rem because personal service of process was not required, and,
at other times, have held personal service of process not required because the action was in rem. See cases
collected in Freeman on Judgments, 1517 et seq. (5th ed.).
Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or, more
indefinitely, quasi in rem, or more vaguely still, "in the nature of a proceeding in rem." It is not readily apparent
how the courts of New York did or would classify the present proceeding, which has some characteristics, and
is wanting in some features of, proceedings both in rem and in personam. But, in any event, we think that the
requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for
which the standards are so elusive and confused generally, and which, being primarily for state courts to
define, may and do vary from state to state. Without disparaging the usefulness of distinctions between
actions in rem and those in personam in many branches of law, or on other issues, or the reasoning which
underlies them, we do not rest the power of the State to resort to constructive service in this proceeding
Page 339 U. S. 313
upon how its courts or this Court may regard this historic antithesis. It is sufficient to observe that, whatever "The criterion is not the possibility of conceivable injury, but the just and reasonable character of the
the technical definition of its chosen procedure, the interest of each state in providing means to close trusts requirements, having reference to the subject with which the statute deals."
that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and
rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants,
American Land Co. v. Zeiss, 219 U. S. 47, 219 U. S. 67, and see Blinn v. Nelson, 222 U. S. 1, 222 U. S. 7.
resident or nonresident, provided its procedure accords full opportunity to appear and be heard.

Quite different from the question of a state's power to discharge trustees is that of the opportunity it must give
beneficiaries to contest. Many controversies have raged about the cryptic and abstract words of the Due
Process Clause, but there can be no doubt that, at a minimum, they require that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the
case.
In two ways, this proceeding does or may deprive beneficiaries of property. It may cut off their rights to have
the trustee answer for negligent or illegal impairments of their interests. Also, their interests are presumably
subject to diminution in the proceeding by allowance of fees and expenses to one who, in their names but
without their knowledge, may conduct a fruitless or uncompensatory contest. Certainly the proceeding is one
in which they may be deprived of property rights and hence notice and hearing must measure up to the
standards of due process.
Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any
type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries to a final
settlement can be served only if interests or claims of individuals who are outside of the State can somehow
be determined. A construction of the Due Process Clause which
But when notice is a person's due, process which is a mere gesture is not due process. The means employed
must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The
reasonableness, and hence the constitutional validity of, any chosen method may be defended on the ground
that it is, in itself, reasonably certain to inform those affected, compare Hess v. Pawloski, 274 U. S. 352, with
Wuchter v. Pizzutti, 276 U. S. 13, or, where conditions do not reasonably permit such notice, that the form
chosen is not substantially less likely to bring home notice than other of the feasible and customary
substitutes.
It would be idle to pretend that publication alone, as prescribed here, is a reliable means of acquainting
interested parties of the fact that their rights are before the courts. It is not an accident that the greater number
of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded
on process constructively served through local newspapers. Chance alone brings to the attention of even a
local resident an advertisement in small type inserted in the back pages of a newspaper, and, if he makes his
home outside the area of the newspaper's normal circulation, the odds that the information will never reach
him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does
not even name those whose attention it is supposed to attract, and does not inform acquaintances who might
call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to
regard this as more than a feint.

Page 339 U. S. 314 Page 339 U. S. 316

would place impossible or impractical obstacles in the way could not be justified.
Against this interest of the State, we must balance the individual interest sought to be protected by the
Fourteenth Amendment. This is defined by our holding that "[t]he fundamental requisite of due process of law
is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394. This right to be heard has
little reality or worth unless one is informed that the matter is pending and can choose for himself whether to
appear or default, acquiesce or contest.
The Court has not committed itself to any formula achieving a balance between these interests in a particular
proceeding or determining when constructive notice may be utilized, or what test it must meet. Personal
service has not, in all circumstances, been regarded as indispensable to the process due to residents, and it
has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these
subjects. No decision constitutes a controlling, or even a very illuminating, precedent for the case before us.
But a few general principles stand out in the books.
Nor is publication here reinforced by steps likely to attract the parties' attention to the proceeding. It is true that
publication traditionally has been acceptable as notification supplemental to other action which, in itself, may
reasonably be expected to convey a warning. The ways of an owner with tangible property are such that he
usually arranges means to learn of any direct attack upon his possessory or proprietary rights. Hence, libel of
a ship, attachment of a chattel or entry upon real estate in the name of law may reasonably be expected to
come promptly to the owner's attention. When the state within which the owner has located such property
seizes it for some reason, publication or posting affords an additional measure of notification. A state may
indulge the assumption that one who has left tangible property in the state either has abandoned it, in which
case proceedings against it deprive him of nothing, cf. Anderson National Bank v. Luckett, 321 U. S.
233; Security Savings Bank v. California,263 U. S. 282, or that he has left some caretaker under a duty to let
him know that it is being jeopardized. Ballard v. Hunter, 204 U. S. 241; Huling v. Kaw Valley R. Co., 130 U. S.
559,. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch 126, 13 U. S. 144,
"It is the part of common prudence for all those who have any interest in [a thing] to guard that interest by
persons who are in a situation to protect it."

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality
In the case before us, there is, of course, no abandonment. On the other hand, these beneficiaries do have a
is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of
resident fiduciary as caretaker of their interest in this property. But it is their caretaker who, in the accounting,
the action and afford them an opportunity to present their objections.Milliken v. Meyer, 311 U. S. 457; Grannis
becomes their adversary. Their trustee is released from giving notice of jeopardy, and no one else is expected
v. Ordean, 234 U. S. 385; Priest v. Las Vegas, 232 U. S. 604; Roller v. Holly, 176 U. S. 398. The notice must
to do so. Not even the special guardian is required or apparently expected to communicate with his ward and
be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must
client, and, of course, if such a duty were merely transferred
afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich
v. Ferris, 214 U. S. 71. But if, with due regard for the practicalities and peculiarities of the case, these
conditions Page 339 U. S. 317

Page 339 U. S. 315 from the trustee to the guardian, economy would not be served and more likely the cost would be increased.

are reasonably met, the constitutional requirements are satisfied.

This Court has not hesitated to approve of resort to publication as a customary substitute in another class of
cases where it is not reasonably possible or practicable to give more adequate warning. Thus, it has been
recognized that, in the case of persons missing or unknown, employment of an indirect, and even a probably
futile, means of notification is all that the situation permits, and creates no constitutional bar to a final decree
foreclosing their rights. Cunnius v. Reading School District, 198 U. S. 458; Blinn v. Nelson, 222 U. S. 1; and
see Jacob v. Roberts, 223 U. S. 261.
circumstances. This type of trust presupposes a large number of small interests. The individual interest does
not stand alone, but is identical with that of a class. The rights of each in the integrity of the fund, and the
fidelity of the trustee, are shared by many other beneficiaries. Therefore, notice reasonably certain to reach
most of those interested in objecting is likely to safeguard the interests of all, since any objections sustained
would inure to the benefit of all. We think that, under such circumstances, reasonable risks that notice might
not actually reach every beneficiary are justifiable.

Those beneficiaries represented by appellant whose interests or whereabouts could not, with due diligence, be "Now and then, an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to
ascertained come clearly within this category. As to them, the statutory notice is sufficient. However great the take some chances, and, in the great majority of instances, no doubt, justice will be done."
odds that publication will never reach the eyes of such unknown parties, it is not in the typical case, much
more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice
Blinn v. Nelson, at 222 U. S. 7.
practicable.

The statutory notice to known beneficiaries is inadequate not because, in fact, it fails to reach everyone, but
Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries
because, under the circumstances, it is not reasonably calculated to reach those who could easily be informed
whose interests are either conjectural or future or, although they could be discovered upon investigation, do
by other means at hand. However it may have been in former times, the mails today are recognized as an
not, in due course of business, come to knowledge of the common trustee. Whatever searches might be
efficient and inexpensive means of communication. Moreover, the fact that the trust company has been able to
required in another situation under ordinary standards of diligence, in view of the character of the proceedings
give mailed notice to known beneficiaries at the time the common trust fund was established is persuasive that
and the nature of the interests here involved, we think them unnecessary. We recognize the practical
postal notification at the time of accounting would not seriously burden the plan.
difficulties and costs that would be attendant on frequent investigations into the status of great numbers of
beneficiaries, many of whose interests in the common fund are so remote as to be ephemeral, and we have
no doubt that such impracticable and extended searches are not required in the In some situations, the law requires greater precautions in its proceedings than the business world accepts for
its own purposes. In few, if any, will it be satisfied with
Page 339 U. S. 318
Page 339 U. S. 320
name of due process. The expense of keeping informed from day to day of substitutions among even current
income beneficiaries and presumptive remaindermen, to say nothing of the far greater number of contingent less. Certainly it is instructive, in determining the reasonableness of the impersonal broadcast notification here
beneficiaries, would impose a severe burden on the plan, and would likely dissipate its advantages. These are used, to ask whether it would satisfy a prudent man of business, counting his pennies but finding it in his
practical matters in which we should be reluctant to disturb the judgment of the state authorities. interest to convey information to many persons whose names and addresses are in his files. We are not
satisfied that it would. Publication may theoretically be available for all the world to see, but it is too much, in
our day, to suppose that each or any individual beneficiary does or could examine all that is published to see if
Accordingly we overrule appellant's constitutional objections to published notice insofar as they are urged on
something may be tucked away in it that affects his property interests. We have before indicated, in reference
behalf of any beneficiaries whose interests or addresses are unknown to the trustee.
to notice by publication, that "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." McDonald v. Mabee, 243 U. S. 90, 243 U. S. 91.
As to known present beneficiaries of known place of residence, however, notice by publication stands on a
different footing. Exceptions in the name of necessity do not sweep away the rule that, within the limits of
We hold the notice of judicial settlement of accounts required by the New York Banking Law 100-c(12) is
practicability, notice must be such as is reasonably calculated to reach interested parties. Where the names
incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known
and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to
persons whose whereabouts are also known of substantial property rights. Accordingly, the judgment is
means less likely than the mails to apprise them of its pendency.
reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

The trustee has on its books the names and addresses of the income beneficiaries represented by appellant,
Reversed.
and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting,
at least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti, supra. Certainly sending them a copy
of the statute months, and perhaps years, in advance does not answer this purpose. The trustee periodically G.R. No. 47517 June 27, 1941
remits their income to them, and we think that they might reasonably expect that, with or apart from their
remittances, word might come to them personally that steps were being taken affecting their interests.
IDONAH SLADE PERKINS, petitioner,
vs.
We need not weigh contentions that a requirement of personal service of citation on even the large number of MAMERTO ROXAS, ET AL., respondents.
known resident or nonresident beneficiaries would, by
Alva J. Hill for petitioner.
DeWitt, Perkins & Ponce Enrile for respondent Judge and respondent Perkins.
Page 339 U. S. 319 Ross, Lawrence, Selph & Carrascoso, Jr., for respondent Benguet Consolidated Mining Co.

reasons of delay, if not of expense, seriously interfere with the proper administration of the fund. Of course, LAUREL, J.:
personal service, even without the jurisdiction of the issuing authority, serves the end of actual and personal
notice, whatever power of compulsion it might lack. However, no such service is required under the
On July 5, 1938, the respondent Eugene Arthur Perkins, filed a complaint in the Court of First Instance of
Manila against the Benguet Consolidated Mining Company for the recovery of the sum of P71,379.90,
consisting of dividends which have been declared and made payable on 52,874 shares of stock registered in
his name, payment of which was being withheld by the company, and for the recognition of his right to the
control and disposal of said shares, to the exclusion of all others. To the complaint, the company filed its
answer, alleging, by way of defense, that the withholding of plaintiff's right to the disposal and control of the
shares was due to certain demands made with respect to said shares by the petitioner herein. Idonah Slade
Perkins, and by one George H. Engelhard. The answer prays that the adverse claimants be made parties to
the action and served with notice thereof by publication, and that thereafter all such parties be required to
interplead and settle the rights among themselves.
On September 5, 1938, the trial court ordered the respondent, Eugene Arthur Perkins, to include in his
complaint as parties defendants petitioner, Idonah Slade Perkins, and George H. Engelhard. The complaint
was accordingly amended and in addition to the relief prayed for in the original complaint, respondent Perkins
prayed that petitioner Idonah Slade Perkins and George H. Engelhard be adjudged without interest in the
shares of stock in question and excluded from any claim they assert thereon. Thereafter, summons by
publication were served upon the non-resident defendants, Idonah Slade Perkins and George H. Engelhard,
pursuant to the order of the trial court. On December 9, 1938, Engelhard filed his answer to the amended
complaint, and on January 8, 1940, petitioner's objection to the court's jurisdiction over her person having
been overruled by the trial court and by this court in G. R. No. 46831, petitioner filed her answer with a cross-
complaint in which she sets up a judgment allegedly obtained by her against respondent, Eugene Arthur
Perkins, from the Supreme Court of the State of New York, wherein it is declared that she is the sole legal
owner and entitled to the possession and control of the shares of stock in question together with all the cash
dividends declared thereon by the Benguet Consolidated Mining Company, and prays for various affirmative
reliefs against the respondent. To the answer and cross-complaint thus filed, the respondent, Eugene Arthur
Perkins, filed a reply and an answer in which he sets up several defenses to the enforcement in this
jurisdiction of the judgment of the Supreme Court of the State of New York above alluded to. Instead of
demurring to the reply on either of the two grounds specified in section 100 of the Code of Civil Procedure,
petitioner, Idonah Slade Perkins, on June 5, 1940, filed a demurrer thereto on the ground that "the court has
no jurisdiction of the subject of the action," because the alleged judgment of the Supreme Court of the State of
New York is res judicata.
Petitioner's demurrer having been overruled, she now filed in this court a petition entitled "Certiorari,
Prohibition and Mandamus," alleging that "the respondent judge is about to and will render judgment in the
above-mentioned case disregarding the constitutional rights of this petitioner; contrary to and annulling the
final, subsisting, valid judgment rendered and entered in this petitioner's favor by the courts of the State of
New York, ... which decision is res judicata on all the questions constituting the subject matter of civil case No.
53317, of the Court of First Instance of Manila; and which New York judgment the Court of First Instance of
Manila is without jurisdiction to annul, amend, reverse, or modify in any respect whatsoever"; and praying that
the order of the respondent judge overruling the demurrer be annulled, and that he and his successors be
permanently prohibited from taking any action on the case, except to dismiss the same.
The only question here to be determined, therefore, is whether or not, in view of the alleged judgment entered
in favor of the petitioner by the Supreme Court of New York, and which is claimed by her to be res judicata on
all questions raised by the respondent, Eugene Arthur Perkins, in civil case No. 53317 of the Court of First
Instace of Manila, the local court has jurisdiction over the subject matter of the action in the said case. By
jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought, and this
is conferred by the sovereign authority which organizes the court, and is to be sought for in general nature of
its powers, or in authority specially conferred. In the present case, the amended complaint filed by the
respondent, Eugene Arthur Perkins, in the court below alleged the ownership in himself of the conjugal
partnership between him and his wife, Idonah Slade Perkins; that the petitioner, Idonah Slade Perkins, and
George H. Engelhard assert claims to and interests in the said stock adverse to Eugene Arthur Perkins; that
such claims are invalid, unfounded, and made only for the purpose of vexing, hindering and delaying Eugene
Arthur Perkins in the exercise of the lawful control over and use of said shares and dividends accorded to him
and by law and by previous orders and decrees of this court; and the said amended complaint prays, inter alia,
"that defendant Benguet Consolidated Mining Company be required and ordered to recognize the right of the
plaintiff to the control and disposal of said shares so standing in his name to the exclusion of all others; that
the additional defendants, Idonah Slade Perkins and George H. Engelhard, be each held to have no interest or
claim in the subject matter of the controversy between plaintiff and defendant Benguet Consolidated Mining
Company, or in or under the judgment to be rendered herein and that by said judgment they, and each of them
be excluded therefrom; and that the plaintiff be awarded the costs of this suit and general relief." The
respondent's action, therefore, calls for the adjudication of title to certain shares of stock of the Benguet
Consolidated Mining Company, and the granting of affirmative reliefs, which fall within the general jurisdiction
of the Court of First Instance of Manila. (Vide: sec. 146, et seq., Adm. Code, as amended by Commonwealth
Act No. 145; sec. 56, Act No. 136, as amended by Act No. 400.)
Similarly, the Court of First Instance of Manila is empowered to adjudicate the several demands contained in
petitioner's cross-complaint. The cross-complaint sets up a judgment allegedly recovered by Idonah Slade
Perkins against Eugene Arthur Perkins in the Supreme Court of New York and by way of relief prays:
(1) Judgment against the plaintiff Eugene Arthur Perkins in the sum of one hundred eighty-five
thousand and four hundred dollars ($185,400), representing cash dividends paid to him by
defendant Benguet Consolidated Mining Co. from February, 1930, up to and including the dividend
of March 30, 1937.
(2) That plaintiff Eugene Arthur Perkins be required to deliver to this defendant the certificates
representing the 48,000 shares of capital stock of Benguet Consolidated Mining Co. issued as a
stock dividend on the 24,000 shares owned by this defendant as described in the judgment Exhibit
1-A.
(3) That this defendant recover under that judgment Exhibit 1-A interest upon the amount of each
cash dividend referred to in that judgment received by plaintiff Eugene Arthur Perkins from
February, 1930, to and including the dividend of March 30, 1937, from the date of payment of each
of such dividends at the rate of 7 per cent per annum until paid.
(4) That this defendant recover of plaintiff her costs and disbursements in that New York action
amounting to the sum of one thousand five hundred eighty-four and 20/00 dollars ($1,584.20), and
the further sum of two thousand dollars ($2,000) granted her in that judgment Exhibit 1-A as an
extra allowance, together with interest.
(5) For an order directing an execution to be issued in favor of this defendant and against the
plaintiff for amounts sufficient to satisfy the New York judgment Exhibit 1-A in its entirety, and
against the plaintiff and the defendant Benguet Consolidated Mining Co. for such other amounts
prayed for herein as this court may find to be due and payable by each of them; and ordering them
to comply with all other orders which this court may issue in favor of the defendant in this case.
(6) For the costs of this action, and
(7) For such other relief as may be appropriate and proper in the premises.
In other words, Idonah Slade Perkins in her cross-complaint brought suit against Eugene Arthur Perkins and
the Benguet Consolidated Mining Company upon the alleged judgment of the Supreme Court of the State of
New York and asked the court below to render judgment enforcing that New York judgment, and to issue
execution thereon. This is a form of action recognized by section 309 of the Code of Civil Procedure (now
section 47, Rule 39, Rules of Court) and which falls within the general jurisdiction of the Court of First Instance
of Manila, to adjudicate, settled and determine.
The petitioner expresses the fear that the respondent judge may render judgment "annulling the final,
subsisting, valid judgment rendered and entered in this petitioner's favor by the courts of the State of New
York, ... which decision is res judicata on all the questions constituting the subject matter of civil case No.
53317," and argues on the assumption that the respondent judge is without jurisdiction to take cognizance of
the cause. Whether or not the respondent judge in the course of the proceedings will give validity and efficacy
to the New York judgment set up by the petitioner in her cross-complaint is a question that goes to the merits
of the controversy and relates to the rights of the parties as between each other, and not to the jurisdiction or
power of the court. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry,
not whether its conclusion in the course of it is right or wrong. If its decision is erroneous, its judgment case be
reversed on appeal; but its determination of the question, which the petitioner here anticipates and seeks to
prevent, is the exercise by that court and the rightful exercise of its jurisdiction.
The petition is, therefore, hereby denied, with costs against the petitioner. So ordered.
 634 F. Supp. 842 (1986)
In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER,
1984.
Misc. No. 21-38 (JFK).
United States District Court, S.D. New York.
May 12, 1986.
As Amended June 10, 1986.
*843 Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V. Ciresi, Bruce A. Finzen, Roberta B. Walburn,
D.S. Sastri of counsel. Barrett, Smith, Schapiro, Simon & Armstrong, New York City, Gerald A. Novack, of
counsel, for the Union of India.
Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, Stanley M. Chesley, Phillip B. Allen, Jan
Levien, of counsel, Bailey & Broder, New York City, F. Lee Bailey, Michael C. Zwal, of counsel, for individual
plaintiffs.
Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, Jack S. Hoffinger, of counsel, Liaison
Counsel.
Kelley Drye & Warren, New York City, Bud G. Holman, William A. Krohley, Lisa E. Cleary, of counsel, for
defendant.
Christic Institute, Washington, D.C., Rob Hager, Shelley D. Hayes, of counsel, for Amicus Curiae.
*844 OPINION and ORDER
KEENAN, District Judge:
FACTUAL BACKGROUND
On the night of December 2-3, 1984 the most tragic industrial disaster in history occurred in the city of Bhopal,
state of Madhya Pradesh, Union of India. Located there was a chemical plant owned and operated by Union
Carbide India Limited ("UCIL"). The plant, situated in the northern sector of the city, had numerous hutments
adjacent to it on its southern side which were occupied by impoverished squatters. UCIL manufactured the
pesticides Sevin and Temik at the Bhopal plant at the request of, and with the approval of, the Government of
India. (Affidavit of John MacDonald ("MacDonald Aff.") at 2). UCIL was incorporated under Indian law in 1934.
50.9% of its stock is owned by the defendant, Union Carbide Corporation, a New York corporation.
(MacDonald Aff. at 1). Methyl isocyanate (MIC), a highly toxic gas, is an ingredient in the production of both
Sevin and Temik. On the night of the tragedy MIC leaked from the plant in substantial quantities for reasons
not yet determined.
The prevailing winds on the early morning of December 3, 1984 were from Northwest to Southeast. They blew
the deadly gas into the overpopulated hutments adjacent to the plant and into the most densely occupied parts
of the city. The results were horrendous. Estimates of deaths directly attributable to the leak range as high as
2,100. No one is sure exactly how many perished. Over 200,000 people suffered injuriessome serious and
permanent some mild and temporary. Livestock were killed and crops damaged. Businesses were interrupted.
On December 7, 1984 the first lawsuit was filed by American lawyers in the United States on behalf of
thousands of Indians. Dawani et al. v. Union Carbide Corp., S.D.W.Va. (84-2479). Since then 144 additional
actions have been commenced in federal courts in the United States. The actions have all been joined and
assigned by the Judicial Panel on Multidistrict Litigation to the Southern District of New York by order of
February 6, 1985, 601 F. Supp. 1035.
The individual federal court complaints have been superseded by a consolidated complaint filed on June 28,
1985.
The Indian Government on March 29, 1985 enacted legislation, the Bhopal Gas Leak Disaster (Processing of
Claims) Act (21 of 1985) ("Bhopal Act"), providing that the Government of India has the exclusive right to
represent Indian plaintiffs in India and elsewhere in connection with the tragedy. Pursuant to the Bhopal Act,
the Union of India, on April 8, 1985, filed a complaint with this Court setting forth claims for relief similar to
those in the consolidated complaint of June 28, 1985.
By order of April 25, 1985 this Court established a Plaintiffs' Executive Committee, comprised of F. Lee Bailey
and Stanley M. Chesley, Esqs., who represented individual plaintiffs and Michael V. Ciresi, Esq., whose firm
represents the Union of India. Jack S. Hoffinger, Esq., who represents individual plaintiffs, was appointed
liaison counsel for the Plaintiffs' Executive Committee.[1]
On September 24, 1985, pursuant to the Bhopal Act, the Central Government of India framed a "scheme" for
the Registration and Processing of Claims arising out of the disaster. According to the Union of
India's *845 counsel, over 487,000 claims have been filed in India pursuant to the "scheme."
There presently are 145 actions filed in the United States District Court for the Southern District of New York
under the Judicial Panel for Multidistrict Litigation's order of February 6, 1985, involving approximately 200,000
plaintiffs.
Before this Court is a motion by the defendant Union Carbide Corporation ("Union Carbide") to dismiss the
consolidated action on the grounds of forum non conveniens.
DISCUSSION
The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is
authorized by a general venue statute. In support of its position that the consolidated action before the Court
should be transferred to a more convenient forum within the Union of India pursuant to this doctrine, Union
Carbide relies on the United States Supreme Court's decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.
Ct. 839, 91 L. Ed. 1055 (1947) and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419
(1981). The plaintiffs cite numerous other lower United States federal court cases in their briefs and seek to
distinguish the Supreme Court's decisions from this case. Of course, Gilbert and Piper are the touchstones in
sorting out and examining the contentions of both sides to this motion on the various factors bearing on
convenience.
Piper teaches a straightforward formulation of the doctrine of forum non conveniens. A district court is advised
to determine first whether the proposed alternative forum is "adequate." This inquiry should proceed in the
order followed below. Then, as a matter within its "sound discretion," Piper at 257, 102 S. Ct. at 266, the
district court should consider relevant public and private interest factors, and reasonably balance those
factors, in order to determine whether dismissal is favored. This Court will approach the various concerns in
the same direct manner in which Piper and Gilbert set them out.
At this juncture, it would be appropriate to discuss the presumptions on a forum non conveniensmotion.
In Piper, the Court discussed its earlier finding in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518,
67 S. Ct. 828, 91 L. Ed. 1067 (1947), which suggested that a plaintiff's choice of forum was entitled to great
deference when the forum chosen was the home of the plaintiff. This presumption was based on the fact that
the choice of the home forum indicated a reasonable assumption that the choice was convenient. Koster at
524, 67 S. Ct. at 831. Conversely, the Piper Court found:
When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose
of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice
deserves less deference.
Piper 454 U.S. at 256, 102 S. Ct. at 266 (footnote omitted).
In the case now before the Court, in which the plaintiffs, including the Union of India, are foreign, and share a
home forum which is not the instant forum, the assumption that this forum is convenient is not completely
reasonable. The foreign plaintiffs' choice of the United States forum "deserves less deference" than would be
accorded a United States citizen's choice. This Court will apply the presumption in favor of plaintiffs' choice of
forum with "less than maximum force." Piper at 261, 102 S. Ct. at 268. See note 23 at 864, infra.
1. Preliminary Considerations.
"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an
alternative forum." Piper at 254, n. 22, 102 S. Ct. at 265, n. 22. The elements of that inquiry are set forth
in Piper. First, the Court said, "[o]rdinarily, this requirement will be satisfied when the defendant is `amenable
to process' in the other jurisdiction." Piper at 254, n. 22, *846 102 S. Ct. at 265, n. 22, quoting Gilbert 330 U.S.
at 506-507, 67 S. Ct. at 842. Gilbert states that the doctrine of forum non conveniens "presupposes at least
two forums in which the defendant is amenable to process."
Extending the limited inquiry of Gilbert, the Piper Court delved into the relevance of the substantive and
procedural differences in law which would be applied in the event a case was transferred on the grounds
of forum non conveniens. The Piper Court determined that it was theoretically inconsistent with the underlying
doctrine of forum non conveniens, as well as grossly impractical, to consider the impact of the putative
transferee forum's law on the plaintiff in its decision on a forum non conveniensmotion: "[I]f conclusive or
substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would
become virtually useless." Piper 454 U.S. at 250, 102 S. Ct. at 263.[2]
The Court listed numerous practical considerations which led to its conclusion that an unfavorable change in
law for plaintiff was not a relevant factor in the forum analysis. First, the Court observed that if the chance of a
change in law were given substantial weight, choice of law questions would "become extremely
important." Piper at 251, 102 S. Ct. at 263. U.S. courts would "have to compare the rights, remedies, and
procedures available" within the two proposed alternative forums, to determine whether a disadvantageous
change in law would occur upon transfer. Id. Since "[t]he doctrine of forum non conveniens, however, is
designed in part to help courts avoid conducting complex exercises in comparative law," the change in law
analysis would subvert the doctrine itself. Id. Thus, a court engaged in the inquiry regarding the existence and
adequacy of an alternative forum should not hinge its decision on an unfavorable change in law. [3]
Another practical concern relating to the "change in law" inquiry was discussed by the Piper court. Based on
the liberality of United States federal law as compared to much foreign law with respect to availability of strict
liability for tort, malleable and diverse choice of law rules among the 50 states, availability of jury trials,
contingent fee arrangements and extensive discovery provisions, the Court observed that a change of forum
might frequently involve an unfavorable change of law for foreign plaintiffs suing American defendants. Piper at
252, n. 18, 102 S. Ct. at 264, n. 18. Consequently, if the unfavorable change in law were a major factor in the
analysis:
[T]he American courts, which are already extremely attractive to foreign plaintiffs, would become even more
attractive. The flow of litigation into the United States would increase and further congest already crowded
courts.
Piper at 252, 102 S. Ct. at 264 (footnotes omitted).
At the point, however, where the possible change in law would provide "no remedy at all" to plaintiff, a court
may conclude that no adequate alternative exists. As the Piper Court observed, it did not hold that:
[T]he possibility of an unfavorable change in law should never be a relevant consideration in a forum non
conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the
district court may conclude that dismissal would not be in the interests of justice.
Piper at 254, 102 S. Ct. at 265 (emphasis in original) (footnote omitted). Thus, while it *847 is not a "major
factor" in the analysis, a court must at least consider the effect on plaintiffs of a change in law upon transfer.
To a great extent, the plaintiffs in this case argue that Indian courts do not offer an adequate forum for this
litigation by virtue of the relative "procedural and discovery deficiencies [which] would thwart the victims' quest
for" justice. (Memorandum in Opposition by Plaintiffs' Executive Committee ("Memo in Opp.") at 2). The
defendant disputes this contention.
Plaintiffs' preliminary concern, regarding defendant's amenability to process in the alternative forum, is more
than sufficiently met in the instant case. Union Carbide has unequivocally acknowledged that it is subject to
the jurisdiction of the courts of India (Defendant's Memorandum in Reply filed December 20, 1985 ("Reply
Memo") at 8); (oral argument January 3, 1986, transcript at 29, comment of Bud Holman, counsel for Union
Carbide). Union Carbide is definitely amenable to process in India.
Beyond this initial test, plaintiffs and amicus curiae[4] argue that the Indian legal system is inadequate to handle
the Bhopal litigation. In support of this position, plaintiffs have submitted the affidavit of Professor Marc S.
Galanter of the University of Wisconsin Law School. Professor Galanter's credentials are impressive; he was a
Fulbright Scholar at the Faculty of Law of Delhi University and specializes in South Asian Studies at the
University of Wisconsin Law School. He is not, however, admitted to practice in India and the Court views his
opinions concerning the Indian legal system, its judiciary and bar as far less persuasive than those of N.A.
Palkhivala and J.B. Dadachanji, each of whom has been admitted to practice in India for over 40 years. Both
are Senior Advocates before the Supreme Court of India. Mr. Palkhivala served as Indian Ambassador to the
United States from 1977 to 1979, and has represented the Indian government on three occasions before
international tribunals.
Although the outcome of this analysis, given the rule of Piper regarding change in law, seems self-evident, the
Court will review plaintiffs' argument on the inadequacy of the Indian forum out of deference to the plaintiffs.
A. Innovation in the Indian Judicial System.
Professor Galanter describes the Indian common law legal system, inherited from the British, in terms of its
similarity to that of other common law systems. He compares the system favorably to that of the United States
or Great Britain in terms of the appellate structure, the rule of stare decisis, the role of the judiciary as
"guardian of [India's] democratic structure and protector of citizens' rights." (Galanter Aff., at 6-12) before
pointing to its ostensible deficiencies. According to Professor Galanter, India's legal system "was imposed on
it" during the period of colonial rule. (Galanter Aff. at 11). Galanter argues that "Indian legal institutions still
reflect their colonial origins," (Galanter Aff. at 12), in terms of the lack of broadbased legislative activity,
inaccessibility of legal information and legal services, burdensome court filing fees and limited innovativeness
with reference to legal practice and education. (Galanter Aff. at 12).
On the question of innovativeness, Mr. Palkhivala responds with numerous examples of novel treatment of
complex legal issues by the Indian Judiciary.[5] In the words of the former ambassador of India to the United
States, "a legal system is not *848 a structure of fossils but is a living organism which grows through the
judicial process and statutory enactments." (Palkhavala Aff. at 3). The examples cited by defendant's experts
suggest a developed and independent judiciary. Plaintiffs present no evidence to bolster their contention that
the Indian legal system has not sufficiently emerged from its colonial heritage to display the innovativeness
which the Bhopal litigation would demand. Their claim in this regard is not compelling.
B. Endemic Delays in the Indian Legal System.
Galanter discusses the problems of delay and backlog in Indian courts. Indeed, it appears that India has
approximately one-tenth the number of judges, per citizen, as the United States, [6] and that postponements
and high caseloads are widespread. Galanter urges that the backlog is a result of Indian procedural law, which
allows for adjournments in mid-hearing, and for multiple interlocutory and final appeals. Numerous appeals
and "[c]onsiderable delay [are] caused by the tendency of courts to avoid the decision of all the matters in
issue in a suit, on the ground that the suit could be disposed of on a preliminary point." (Galanter Aff. at 17; 18-
20, 21, quoting Indian Law Commission, 54th Report (1973) pp. 12-13).
This Court acknowledges that delays and backlog exist in Indian courts, but United States courts are subject to
delays and backlog, too. See Remarks of Honorable Warren E. Burger, Chief Justice, Supreme Court of the
United States, 100 F.R.D. 499, 534 (1983).
However, as Mr. Palkhivala states, while delays in the Indian legal system are a fact of judicial life in the
proposed alternative forum, there is no reason to assume that the Bhopal litigation will be treated in ordinary
fashion.
The Bhopal tragedy has already been approached with imagination in India. Demonstrating the creativity and
flexibility of the Indian system, the Parliament of India has passed the Bhopal Act in order to deal with the
cases arising from the sad events of December 3, 1984. The Bhopal Act permits the cases to be treated
"speedily, effectively, equitably and to the best advantage of the claimants." (Palkhivala Aff. at 11).
Mr. Dadachanji refers to another Indian case which arose from a gas leak in New Delhi. The Chief Justice and
another Justice of the Supreme Court of India ordered the presiding court to expedite adjudication of
claims. MC Mehta v. Union of India. (Dadachanji Aff. at 11 and Annexure A thereto). In another instance, the
Indian Supreme Court directed the High Court to hear a given matter on a daily basis, and set a deadline for
delivering judgment (Dadachanji Aff. at 11 and Annexure B thereto). Other means of coping with delay are
appointment of special tribunals by the Government of India (Dadachanji Aff. at 12 and Annexure C thereto),
and assignment of daily hearing duties to a single special judge, otherwise unburdened, to hear a special
matter. (Dadachanji Aff. at 11). This Court is persuaded, by the example of the Bhopal Act itself and other
cases where special measures to expedite were taken by the Indian judiciary, that the most significant, urgent
and extensive litigation ever to arise from a single event could be handled through special judicial
accommodation in India, if required.
C. Procedural and Practical Capacity of Indian Courts.
Plaintiffs contend that the Indian legal system lacks the wherewithal to allow it "to deal effectively and
expeditiously" with the issues raised in this lawsuit. (Memo in Opp. p. 53).
Plaintiffs urge that Indian practitioners emphasize oral skills rather than written briefs. They allegedly lack
specialization, practical investigative techniques and coordination into partnerships. These factors, *849 it is
argued, limit the Indian bar's ability to handle the Bhopal litigation. As Mr. Dadachanji indicates, Indian lawyers
have competently dealt with complex technology transfers, suggesting capability within the technological and
scientific areas of legal practice, if not "specialization." (Dadachanji Aff. at 8). Moreover, Indian attorneys use
experts, when necessary. As to investigative ability, Mr. Dadachanji persuasively points out that the Central
Bureau of Investigation ("CBI") of the Union of India is well equipped to handle factual inquiry, as is the
Commission of Enquiry constituted by the state of Madhya Pradesh. (Dadachanji Aff. at 8). While Indian
attorneys may not customarily join into large law firms, and as Mr. Palkhivala states, are limited by present
Indian law to partnerships of no more than twenty, this alone or even in concert with other factors does not
establish the inadequacy of the Indian legal system. (Palkhivala Aff. at 8). There is no reason the Indian
legislature could not provide for the expansion of lawfirms, if such a choice is required. In any event, this Court
is not convinced that the size of a law firm has that much to do with the quality of legal service provided. Many
small firms in this country perform work at least on a par with the largest firms. Bigger is not necessarily better.
Moreover, since the Union of India purports to represent all the claimants, it is likely that if the case were
transferred to India, the Attorney General or Solicitor General of India and the Advocate General of Madhya
Pradesh, with attendant staffs, would represent the claimants. The Indian bar appears more than capable of
shouldering the litigation if it should be transferred to India. (Palkhivala Aff. at 9).
Next, plaintiffs and Professor Galanter argue that the substantive tort law of India is not sufficiently developed
to accommodate the Bhopal claims. Plaintiffs trace the lack of sophistication in Indian tort law to the presence
of court fees for litigants as inhibiting the filing of civil suits. Though the filing fees may have had historical
significance, they are irrelevant here. Professor Galanter acknowledges that court fees may be waived for
"poor parties or for specific classes of litigants." (Galanter Aff. at 28). In fact, filing fees have been waived for
claimants in India in the Bhopal litigation already begun there.
Professor Galanter asserts that India lacks codified tort law, has little reported case law in the tort field to serve
as precedent, and has no tort law relating to disputes arising out of complex product or design liability.
(Galanter Aff. at 30-36). As an illustration of the paucity of Indian tort law, Professor Galanter states that a
search through the All-India Reports for the span from 1914 to 1965 revealed only 613 tort cases reported.
(Galanter Aff. at 32). Mr. Dadachanji responds that tort law is sparsely reported in India due to frequent
settlement of such cases, lack of appeal to higher courts, and the publication of tort cases in specialized
journals other than the All-India Reports. (Dadachanji Aff. at 16-17; Palkhivala Aff. at 10). In addition, tort law
has been codified in numerous Indian statutes. (Dadachanji Aff. at 16-17).
As Professor Galanter himself states, "the major categories of tort, their elements, the [theories] of liability,
defenses, respondeat superior, the theories of damagesare all familiar." (Galanter Aff. at 37). What is different,
Galanter asserts, is the complete absence of tort law relating to high technology or complex manufacturing
processes. This is of no moment with respect to the adequacy of the Indian courts. With the groundwork of tort
doctrine adopted from the common law and the precedential weight awarded British cases, as well as Indian
ones, it is obvious that a well-developed base of tort doctrine exists to provide a guide to Indian courts
presiding over the Bhopal litigation. In any event, much tort law applied in American cases involving complex
technology has its source in legal principles first enunciated in Victorian England. See, e.g., Rylands v.
Fletcher, 1868, L.R. 3 H.L. 330. As Mr. Palkhivala stated in his affidavit:
*850 The plant itself was the product of highly complex technology, but complexity of the technology cannot be
equated with complexity of legal issues. The principles of liability and damages involved in the Bhopal cases
are all well established in India. The complexity is not in the nature or determination of legal issues but in the
application of the law to the events which took place in Bhopal. Well settled law is to be applied to an unusual
occurrence.
(Palkhivala Aff. at 7).
Plaintiffs next assert that India lacks certain procedural devices which are essential to the adjudication of
complex cases, the absence of which prevent India from providing an adequate alternative forum. They urge
that Indian pre-trial discovery is inadequate and that therefore India is an inadequate alternative forum.
Professor Galanter states that the only forms of discovery available in India are written interrogatories,
inspection of documents, and requests for admissions. Parties alone are subject to discovery. Third-party
witnesses need not submit to discovery. Discovery may be directed to admissible evidence only, not material
likely to lead to relevant or admissible material, as in the courts of the United States. Parties are not compelled
to provide what will be actual proof at trial as part of discovery.
These limits on discovery are adopted from the British system. Similar discovery tools are used in Great
Britain today. This Court finds that their application would perhaps, however, limit the victims' access to
sources of proof. Therefore, pursuant to its equitable powers, the Court directs that the defendant consent to
submit to the broad discovery afforded by the United States Federal Rules of Civil Procedure if or when an
Indian court sits in judgment or presides over pretrial proceedings in the Bhopal litigation. [7] Any dismissal of
the action now before this Court is thus conditioned on defendant's consent to submit to discovery on the
American model, even after transfer to another jurisdiction.
The ostensible lack of devices for third-party impleader or for organizing complex cases under the law of the
state of Madhya Pradesh are two other procedural deficiencies which plaintiffs assert preclude a finding that
India offers an adequate alternative forum. Assuming for the moment that, upon appropriate transfer, the
Bhopal litigation would be adjudicated by the local district court in Bhopal, and that the law of Madhya Pradesh
would be applied, this Court is still not moved by plaintiffs' argument regarding impleader or complex litigation.
Although no specific provision in the Indian Code of Civil Procedure permits the impleading of third-parties
from whom contribution is sought, other provisions in the Code do provide for impleader. As both parties to this
motion state, Order 1, Rule 10(2) of the Indian Code of Civil Procedure "allows the court to add additional
parties if the presence of those parties is `necessary in order to enable the Court effectively and completely to
adjudicate upon and settle all questions involved in the suit.'" (Galanter Aff. at 60; Dadachanji Aff. at 18).
Professor Galanter posits that a joint tortfeasor would not be considered a necessary party, and would not be
joined. Defendant's expert, conversely, asserts that a party can be added to prevent multiplicity of suits and
conflicts of decisions. Thus, Mr. Dadachanji argues, defendants would be able to seek contribution from third-
parties if joinder would prevent repetitive litigation or inconsistency. Moreover, the broad provision of inherent
powers to aid the ends of justice, as codified at Section 151 of the Indian Code of Civil Procedure would
prevent an ultimate miscarriage of *851 justice in the area of impleader. (Dadachanji Aff. at 19).[8]
The absence of procedures or mechanisms within the Indian judiciary to handle complex litigation is presented
as support for plaintiffs' position regarding the non-existence of an adequate alternative forum. Professor
Galanter asserts, for example, that Indian judges do not promote settlements. The point is wholly irrelevant to
the question of whether an adequate alternative forum exists. In any event, this Court has labored hard and
long to promote settlement between the parties for over a year, to no avail. It would appear that settlement,
although desirable for many reasons, including conservation of attorneys' fees and costs of litigation,
preservation of judicial resources, and speed of resolution, is unlikely regardless of the level of activism of the
presiding judge.
Plaintiffs' next contention is that since no class action procedure exists in India expeditious litigation of the
Bhopal suits would be impossible. As with all of plaintiffs' other arguments, this purported deficiency does not
constitute "no remedy" at all. Professor Galanter himself acknowledges that Order 1, Rule 8 of the Indian Code
of Civil Procedure provides a mechanism for "representative" suits, "where there are numerous persons
having the same interest in one suit." (Galanter Aff. at 54). Even if the current state of Indian law regarding
"representative" suits involves application of the mechanism to pre-existing groups such as religious sects or
associations, there is no reason to conclude that the Indian legislature, capable of enacting the Bhopal Act,
would not see its way to enacting a specific law for class actions. In addition, it does not appear on the face of
Order 1, Rule 8 that the "representative" suit is expressly limited to preexisting groups. The Indian district court
could adopt the rule for use in a newly created class of injured, whose members all have "the same interest" in
establishing the liability of the defendant. An Indian court has law available to create a representative class, or
perhaps a few different representative classes. The "scheme" for registration and processing of claims, see
supra, at 4, could perform the task of evaluating the specific amounts of claims. Moreover, Mr. Dadachanji
gives at least three examples where Indian courts have consolidated suits pursuant to their inherent power
under Section 151 of the Indian Code of Civil Procedure. In at least one case, such consolidation allegedly
occurred without consent of the parties. (Dadachanji Aff. at 9). The absence of a rule for class actions which is
identical to the American rule does not lead to the conclusion that India is not an adequate alternative forum.
Final points regarding the asserted inadequacies of Indian procedure involve unavailability of juries or
contingent fee arrangements in India. Plaintiffs do not press these arguments, but Mr. Palkhivala touches upon
them. They are easily disposed of. The absence of juries in civil cases is a feature of many civil law
jurisdictions, and of the United Kingdom. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18 and citations therein.
Furthermore, contingency fees are not found in most foreign jurisdictions. Piper at 252, n. 18, 102 S. Ct. at
264, n. 18. In any event, the lack of contingency fees is not an insurmountable barrier to filing claims in India,
as demonstrated by the fact that more than 4,000 suits have been filed by victims of the Bhopal gas leak in
India, already. According to Mr. Palkhivala, moreover, well-known lawyers have been known to serve clients
without charging any fees. (Palkhivala Aff. at 8).
Plaintiffs' final contention as to the inadequacy of the Indian forum is that a judgment rendered by an Indian
court cannot be enforced in the United States without *852 resort to further extensive litigation. Conversely,
plaintiffs assert, Indian law provides res judicata effect to foreign judgments, and precludes plaintiffs from
bringing a suit on the same cause of action in India. (Galanter Aff. at 63-65). Mr. Dadachanji disputes this
description of the Indian law of res judicata. He asserts that the pendency, or even final disposition, of an
action in a foreign court does not prevent plaintiffs from suing in India upon the original cause of action.
Plaintiffs would not be limited, Mr. Dadachanji argues, to an Indian action to enforce the foreign judgment.
(Dadachanji Aff. at 19-20). In addition, he states that an Indian court, before ordering that a foreign judgment
be given effect, would seek to establish whether the foreign court had failed to apply Indian law, or misapplied
Indian law. (Dadachanji Aff. at 20).
The possibility of non-enforcement of a foreign judgment by courts of either country leads this Court to
conclude that the issue must be addressed at this time. Since it is defendant Union Carbide which, perhaps
ironically, argues for the sophistication of the Indian legal system in seeking a dismissal on grounds of forum
non conveniens, and plaintiffs, including the Indian Government, which state a strong preference for the
American legal system, it would appear that both parties have indicated a willingness to abide by a judgment
of the foreign nation whose forum each seeks to visit. Thus, this Court conditions the grant of a dismissal
on forum non conveniens grounds on Union Carbide's agreement to be bound by the judgment of its preferred
tribunal, located in India, and to satisfy any judgment rendered by the Indian court, and affirmed on appeal in
India. Absent such consent to abide by and to "make good" on a foreign judgment, without challenge except
for concerns relating to minimal due process, the motion to dismiss now under consideration will not be
granted. The preference of both parties to play ball on a distant field will be taken to its limit, with each party
being ordered to be bound by the decision of the respective foreign referees.
To sum up the discussion to this point, the Court determines that the Indian legal system provides an adequate
alternative forum for the Bhopal litigation. Far from exhibiting a tendency to be so "inadequate or
unsatisfactory" as to provide "no remedy at all," the courts of India appear to be well up to the task of handling
this case. Any unfavorable change in law for plaintiffs which might be suffered upon transfer to the Indian
courts, will, by the rule of Piper, not be given "substantial weight." Differences between the two legal systems,
even if they inure to plaintiffs' detriment, do not suggest that India is not an adequate alternative forum. As Mr.
Palkhivala asserts with some dignity, "[w]hile it is true to say that the Indian system today is different in some
respects from the American system, it is wholly untrue to say that it is deficient or inadequate. Difference is not
to be equated with deficiency." (Palkhivala Aff. at 4). Piper at 254, 102 S. Ct. at 265. The inquiry now turns to a
weighing of the public and private interest factors.
2. Private Interest Concerns.
The Gilbert Court set forth a list of considerations which affect the interests of the specific litigants to an action,
and which should be weighed in making a forum non conveniens determination. The so-called private interest
factors, along with public interest factors discussed below, were not intended to be rigidly applied. As the Court
stated in Piper,
"[E]ach case turns on its facts." If central emphasis were placed on any one factor, the forum non
conveniens doctrine would lose much of the flexibility that makes it so valuable.
Piper at 249-50, 102 S. Ct. at 263. Recognizing that "[p]articularly with respect to the question of relative ease
of access to sources of proof," "the private interests point in both directions," the Supreme Court nevertheless
upheld a district court's decision to dismiss a case in favor of the relative convenience of a forum in
Scotland. Piper at 257, 102 S. Ct. at 267. By contrast, this Court finds that the private interests *853 point
strongly one way. As in Piper, it appears that the burdensome effect of a trial in this forum supports a finding
that the private interest factors in this case weigh strongly in favor of dismissal.
A. Sources of Proof.
The first example of a private interest consideration discussed in Gilbert is "relative ease of access to sources
of proof." As stated, the analysis of this issue must hinge on the facts. Limited discovery on the issue of forum
non conveniens has taken place, pursuant to the Court's order of August 14, 1985. [9]The Court can therefore
proceed to discuss this question.
Union Carbide argues that virtually all of the evidence which will be relevant at a trial in this case is located in
India. Union Carbide's position is that almost all records relating to liability, and without exception, all records
relevant to damages, are to be found in and around Bhopal. On the liability question Union Carbide asserts
that the Bhopal plant was managed and operated entirely by Indian nationals, who were employed by UCIL.
(Affidavit of Warren J. Woomer, formerly Works Manager of the Bhopal plant ("Woomer Aff.") at 2). Defendant
asserts that the Bhopal plant is part of UCIL's Agricultural Products Division, which has been a separate
division of UCIL for at least 15 years, and that the plant had "limited contact" with UCIL's Bombay
headquarters, and almost no contact with the United States. (Woomer Aff. at 4, 32). Woomer claims to have
been the last American employed by UCIL. He departed from Bhopal in 1982. (Woomer Aff. at 2).
Woomer describes the structure and organization of the Bhopal facility at the time of the accident. The plant
had seven operating units, each headed by a manager or department head, each an Indian national. [10] The
managers or department heads each reported either directly to the plant's General Works Manager, or to one
of three Assistant Works Managers. (Woomer Aff. at 6). Each of these is also an Indian national. Three of the
operating units which at this very early stage of inquiry into liability appear to have been potentially involved in
the MIC leak are the Carbon Monoxide, MIC/Phosgene and Carbamoylation units. (Woomer Aff. at 7-10). The
Carbon Monoxide and MIC/Phosgene units together employed 63 employees, all Indian nationals. (Woomer
Aff. at 9). The Carbamoylation unit employed 99 Indian nationals. (Woomer Aff. at 10). Mr. Woomer states that
an inquiry into the cause of the accident would require interviews with at least those employees who were on
duty at the Bhopal facility "immediately prior or after the accident;" Mr. Woomer asserts that there are 193
employees, all Indians, who must be interviewed. (Woomer Aff. at 58). [11]
In addition to the seven operating units, the Bhopal plant contained seven functional departments which
serviced operations.[12] The seven heads of the units reported within the plant much as the department heads
did.
The maintenance unit was apparently subdivided into departments including Instrumentation, Mechanical
Maintenance, both part of the Agricultural Chemical Maintenance unit, which employed 171 people in total,
and Plant Engineering and Formulation Maintenance, which employed 46 people. (Woomer Aff. at 11-12).
In *854 addition, the Utilities and Electrical department employed 195 people. (Woomer Aff. at 13). According
to Mr. Woomer, the various maintenance organizations performed repairs on equipment, provided engineering
support, fabricated certain equipment, salvaged other portions, and controlled utilities, temperatures and
pressures throughout the plant. (Woomer Aff. at 11-14).
Moreover, according to Mr. Woomer, these UCIL departments also kept daily, weekly and monthly records of
plant operations, many of which were purportedly seized by the CBI and selected for copying by CBI
immediately after the accident.[13] The records and reports of the various maintenance units would likely be
relevant to the question of liability at trial.
Of the additional functional units, it is possible that Quality Control, with 54 employees, Purchasing, with 53, or
Stores may have been directly involved in the disaster by virtue of their participation in analyzing plant output,
procuring raw materials for the chemical processes of the plant, and maintaining spare parts and certain
chemicals. (Woomer Aff. at 14-19). Thus, the records and reports of these three departments may be
necessary to an investigation of liability. While examination of members of the Works Office department and
Industrial Relations department would likely be less directly useful, information regarding plant budgets and
employee histories might be of relevance. Of great importance are the records and reports of the
Safety/Medical department, which was responsible for daily auditing of safety performance in all departments,
training and testing on safety rules, maintaining safety statistics and planning and implementing safety drills.
(Woomer Aff. at 22-23). The 31 Indian employees of this department worked with the Central Safety
Committee of the plant, whose members were drawn from plant management, and the Departmental Safety
Committees. Operating units were required to monitor plant safety mechanisms weekly, and to keep monthly
checklists. (Holman Aff. # 2 at 9). The Central Safety Committee met monthly, as did the Departmental Safety
Committees. (Woomer Aff. at 39). The MIC Unit held monthly safety committee meetings, for example, and
issued monthly reports. (Woomer Aff. at 41). Quarterly "Measures of Performance" reviews also covered
safety issues, and were required of each operating unit. (Woomer Aff. at 40). Certainly, interviews of the plant
personnel involved in safety reports and audits would be particularly relevant to the investigation of the
disaster.
Plaintiffs refer to three occasions upon which Union Carbide, not UCIL, employees conducted safety audits at
the Bhopal plant. As defendant correctly argues, these three events constitute a very small fraction of the
thousands of safety audits conducted at the Bhopal facility. The three audits, moreover, were conducted in
1979, the fall of 1980 and in May of 1982, many years prior to the accident which is the subject of this lawsuit.
(Plaintiffs' Memo in Opp. at 25).[14]
Plaintiffs and defendant agree that in 1973 Union Carbide entered into two agreements with UCIL which were
entitled "Design Transfer Agreement" and "Technical Service Agreement." According to plaintiffs, Union
Carbide, pursuant to the Design Transfer Agreement, provided a process design to UCIL, the "detailing [of
which] was undertaken in India." (Memo in Opp. at 17). The process design package consisted of the basic
plan of the factory, which was to be fleshed out in the detailing phase. Plaintiffs state that at least nine Union
Carbide technicians travelled to India to monitor the progress of the project. Union Carbide also allegedly
assigned a "key engineer," John Couvaras, to serve as UCIL Bhopal project manager. Mr. Couvaras allegedly
"assumed responsibility for virtually every aspect of the detailing of the process design," and approved detail
reports of "not only UCIL but also independent contractors, including Humphreys & Glasgow Consultants
Private Ltd. and Power Gas Limited" of Bombay, India. (Memo in Opp. at 17-20). [15]
Plaintiffs also claim that "[n]o change of any substance was made from Union Carbide's design during the
detailing phase." Plaintiffs note that only "one portion" of the process design work provided to UCIL by Union
Carbide was not used. (Memo in Opp. at 20). In effect, plaintiffs seek to establish that Union Carbide was the
creator of the design used in the Bhopal plant, and directed UCIL's relatively minor detailing program. They
urge that for the most *856 part relevant proof on this point is located in the United States.
Defendant seeks to refute this contention, with notable success. Turning first to the affidavit of Robert C.
Brown, who describes himself as "chief negotiator for Union Carbide Corporation in connection with the two
agreements it entered into with ... UCIL in November, 1973," the Court is struck by the assertion that the two
agreements were negotiated at "arms-length" pursuant to Union Carbide corporate policy, and that the Union
of India mandated that the Government retain "specific control over the terms of any agreements UCIL made
with foreign companies such as Union Carbide Corporation." (Brown Aff. at 3-4). [16]

Mr. Brown alleges that the Letter of Intent issued by the Union of India in March 1972, pursuant to which
Two accidents which occurred previously at the Bhopal plant might also be of relevance to the liability inquiry
construction and design of the plant were allowed to ensue provided, inter alia, that:
in this litigation. On December 24, 1981, a phosgene gas leak killed a UCIL maintenance worker. *855 Reports
of the fatality were sent to Union Carbide management in the United States. (Woomer Deposition, Exs. 30 and
31). Plaintiffs assert that the accident report called for increased training in Bhopal by United States
employees of Union Carbide's Institute, West Virginia, plant. Defendant states that the responsibility for
remedying problems in the Bhopal plant rested with the plant itself, and that Union Carbide did not make any (2) [F]oreign collaboration and import of equipment be settled to the satisfaction of the Government.
recommendations, and was involved only to the extent of receiving a copy of the report which called for its
involvement in further training. (Woomer Aff. at 41). Mr. Brown claims, on personal information, that UCIL told him that Union Carbide would not be allowed to be
involved in the Bhopal project beyond the provision of process design packages. (Brown Aff. at 5). The Design
The second accident at Bhopal prior to the disaster of December, 1984 took place on February 9, 1982, when Transfer Agreement indicates that Union Carbide's duty under the Agreement was to provide process design
a pump seal, perhaps improperly used, failed. (Memo in Opp. at 24; Woomer Aff. at 41). Many employees packages, and that UCIL, not Union Carbide, would be responsible to "detail design, erect and commission the
were injured, and at least 25 were hospitalized. Plaintiffs discuss the fact that Robert Oldford, president of plant." (Defendant's Ex. 4, 4.1). Union Carbide, accordingly, issued limiting warranties with respect to the
Union Carbide Agricultural Products Company ("UCAPC") a wholly-owned subsidiary of Union Carbide design packages, detailing of which it would not be involved with. (Brown Aff. at 7, Ex. 4, 4.1, 12.3).
headquartered in the United States, was in Bhopal at the time of the February 1982 leak. (Memo in Opp. at
24). Union Carbide asserts that Mr. Oldford was visiting UCIL's Research and Development Centre, located The nature of UCIL's detail design work is discussed in the affidavit of Ranjit K. Dutta, who has held various
several miles from the Bhopal plant for an unrelated purpose, and was only coincidentally in Bhopal when the positions at UCIL and UCAPC. From 1973 through 1976, Mr. Dutta was employed as General Manager of the
leak occurred. To the extent that this presence in India in 1982 has any significance, Mr. Oldford, and any Agricultural Products Division of UCIL. (Dutta Aff. at 2).
other United States employees of Union Carbide who conducted safety audits in Bhopal or were present when
accidents occurred there, may be flown to Bhopal for testimony or discovery.
Mr. Dutta asserts that the Bhopal facility was built by UCIL over the eight years from 1972 to 1980. (Dutta Aff.
at 8). He asserts that Union Carbide's role in the project was "narrow", and limited to providing "certain
In addition to safety data, two other types of proof may be relevant to a trial of this case on the merits. process design packages for certain parts of the plant." (Dutta Aff. at 9). He continues, stating:
Information regarding plant design, commissioning and start-up may bear upon the liability question.
Information pertinent to employee training should also have significance.

Leaving aside the question of whether the Government of India or UCIL chose the site and product of the Once it did that, it had no further design or engineering role,
Bhopal plant, the Court will evaluate the facts which bear on the issue of relevant records. The findings below
concern the location of proof only, and bear solely upon the forum non conveniensmotion. The Court expressly and that:
declines to make findings as to actual liability at this stage of the litigation.
[T]he process design packages which Union Carbide Corporation provided are nothing more than summary
design starting points.... They set forth only the general parameters.... A plant cannot be constructed from a
process design package. The detail design comprises approximately 80 percent of the sum of the man hours
involved in the design of any project and transposes the general process design parameters into an actual
design which can be used for purchasing equipment and actual construction.
(Dutta Aff. at 9-12). (emphasis omitted).
According to Mr. Dutta, during the five years between the date upon which Union Carbide submitted process
designs, and the date upon which the plant started-up, there were only four visits to Bhopal by Union Carbide
process design engineers. (Dutta Aff. at 14). In contrast, he asserts that ten to fifteen UCIL engineers, working
primarily out of Bombay, were involved in design detailing. (Dutta Aff. at 16). These UCIL engineers oversaw
the 55 to 60 Indian engineers *857 employed by the Bombay engineering firm which performed the detail
design work. This firm, Humphreys and Glasgow, submitted designs and drawings to the UCIL engineers for
approval. Corrected drawings were returned by UCIL to Humphreys and Glasgow for changes, and sent back
to UCIL for final approval. (Dutta Aff. at 19-24).[17] Mr. Dutta alleges that "at no time were Union Carbide
Corporation engineering personnel from the United States involved in approving the detail design or drawings
prepared upon which construction was based. Nor did they receive notices of changes made." (Dutta Aff. at
24).
Mr. Dutta expressly states that the MIC storage tank and monitoring instrumentation were fabricated or
supplied by two named Indian sub-contractors. The vent gas scrubber is alleged to have been fabricated in the
Bhopal plant shop. (Dutta Aff. at 25).
Of the 12,000 pages of documents purportedly seized by the CBI regarding design and construction of the
Bhopal plant, an asserted 2,000 are design reports of Humphreys and Glasgow, UCIL or other contractors.
Defendant claims that blueprints and calculations comprise another 1,700 pages of documents held by the
CBI. Five thousand pages of contractors' files, including specifications and contracts are asserted to be in
India. In addition, Union Carbide claims that blueprints and diagrams may not reflect final design changes as
incorporated into the actual plant, and that the detail design engineers' testimony will be needed to determine
the configuration of the actual plant. [18] (Holman Aff. # 2 at 15-16).
One final point bearing on the information regarding liability is contained in the affidavit of Edward Munoz, at a
relevant time the General Manager of UCIL's Agricultural Products Division. He later acted as Managing
Director of UCIL. Mr. Munoz has submitted an affidavit in which he states that Union Carbide decided to store
MIC in large quantities at the Bhopal plant, despite Mr. Munoz' warnings that MIC should be stored only in
small amounts because of safety. (Memo in Opp. at 15-16; Munoz Aff.). Mr. Dutta, for defendant, asserts that
there was never any issue of token storage of MIC at Bhopal, as Mr. Munoz states, and that there is no truth to
Mr. Munoz' assertion that he was involved in the storage issue. (Dutta Aff. at 30). [19]*858 The Court cannot
make any determination as to the conflicting affidavits before it. This question, which involves credibility
concerns, is left for later in the litigation. To the extent that this particular matter bears upon the relative ease of
access to sources of proof, Mr. Munoz and Mr. Dutta both may be called to testify at trial or discovery. Mr.
Dutta's home is in Bhopal. (Dutta Aff. at 1). The Court is not aware of the whereabouts of Mr. Munoz at this
time. Either of the two could travel to either alternative forum.
In addition to design and safety records, material regarding training of Bhopal personnel is likely to be relevant
to the question of liability. Plaintiffs state that Warren Woomer supervised the training of UCIL personnel at
Union Carbide's Institute, West Virginia plant. According to plaintiffs, 40 UCIL employees were transported to
Institute's MIC facility for lengthy training. (Memo in Opp. at 22). Mr. Woomer states in reply that the 40
employees thus trained represented a fraction of the over 1,000 employees who were trained exclusively in
Bhopal. (Woomer Aff. at 43). In addition, Mr. Woomer asserts that the training at Institute was pursuant to an
arms-length agreement, that UCIL selected the parties to be trained, and that UCIL paid Union Carbide for the
training. (Woomer Aff. at 43). Moreover, Mr. Woomer's description of the training provided at Bhopal suggests
that each of the plant's employees had lengthy cumulative training, of which the Institute training was but a
very small portion. (Woomer Aff. at 46). Personnel records, in any event, are located in Bhopal. (Holman Aff. #
2 at 4).
The briefs and affidavits contain considerable discussion on the matter of commissioning and start-up of the
Bhopal plant. The Court need not resolve the question of who was responsible for these aspects of plant
operation. However, the Court determines that the manual regarding start-up was prepared by Indian nationals
employed by UCIL. (Woomer Aff. at 48).
In the aggregate, it appears to the Court that most of the documentary evidence concerning design, training,
safety and start-up, in other words, matters bearing on liability, is to be found in India. Much of the material
may be held by the Indian CBI. Material located in this country, such as process design packages and training
records of the 40 UCIL employees trained at Institute, constitutes a smaller portion of the bulk of the pertinent
data than that found in India. Moreover, while records in this country are in English, a language understood in
the courts of India, certain of the records in India are in Hindi or other Indian languages, as well as in English.
(Holman Aff. # 2 at 12). The Indian language documents would have to be translated to be of use in the United
States. The reverse is not true. It is evident to the Court that records concerning the design, manufacture and
operation of the Bhopal plant are relatively more accessible in India than in the United States, and that fewer
translation problems would face an Indian court than an American court. Since Union Carbide has been
directed to submit to discovery in India pursuant to the liberal grant of the American Federal Rules of Civil
Procedure, and this opinion is conditioned upon such submission, any records sought by plaintiffs must be
made available to them in India. The private interest factor of relative ease of access to sources of proof
bearing on liability favors dismissal of the consolidated case. [20] The Indian *859Government is asserted to
have been involved in safety, licensing and other matters relating to liability. Records relating thereto are
located in India, as are the records seized by the CBI. Although plaintiffs state that all such records could and
would be made available to this Court, it would be easier to review them in India. Transmittal and translation
problems would thereby be avoided.
B. Access to Witnesses.
Gilbert teaches a second important consideration under the heading of private interests, the "availability of
compulsory process for attendance of willing, and the cost of obtaining attendance of unwilling,
witnesses." Gilbert, 330 U.S. at 508, 67 S. Ct. at 843. As discussed in detail above, most witnesses whose
testimony would relate to questions of causation and liability are in India. Engineers from UCIL and
Humphreys and Glasgow and other subcontractors, of whom there are hundreds, are located in India. Shift
employees from the possibly malfunctioning units, safety monitoring personnel, those responsible for training,
safety auditing, procurement, compliance with regulations and other operations might be required to testify.
More than likely, many of these potential witnesses do not speak English, and would require translators. Many
of the witnesses are not parties to this litigation. Therefore, as the Court of Appeals for the Second Circuit has
stated in the context of a forum non conveniens motion:
In fact, the plaintiffs' cases on liability will depend in large measure upon the knowledge and activities of such
witnesses as the employees of [companies] who are not parties to this litigation, but who directly participated
in the events which gave rise to it. The United States District Court in New York, however, has no power to
subpoena any of these witnesses. It is unlikely that many would be willing to travel to New York to testify; and
the cost, in any event, would be prohibitively great.
Fitzgerald v. Texaco, 521 F.2d 448, 451-52 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed.
2d 641 (1976) (footnote omitted). In contrast, the relatively few witnesses who reside in the United States are
primarily employed by Union Carbide. As employees of a party they would probably be subject to the
subpoena power of Indian courts. Transportation costs would also be lower, since fewer people would have to
make the journey to testify.
The presence of the Indian Government in this action is also of critical importance on this motion. Plaintiffs
assert that "all necessary officials and employees of the Central Government will voluntarily comply with
requests to attend trial." (Memo in Opp. at 70; Answer to No. 124 of Defendant's First Requests for Admission,
Exhibit 55). This statement does not provide for attendance by officials of Madhya Pradesh or the Bhopal
municipality, whom Union Carbide indicates might be impleaded as third-party defendants. As witnesses only,
these officials would not be subject to this Court's subpoena power. As third-party defendants, they might be
immune from suit in the United States by the terms of the Foreign Sovereign Immunities Act, 28 U.S.C.
1602 et seq. State and city officials might also lack sufficient contacts with this district to allow this Court to
exercise personal jurisdiction over them.
While Union Carbide might be deprived of testimony of witnesses or even potential third-parties if this action
were to proceed in this forum, no such problem would exist if litigation went forward in India.
The unavailability of compulsory process for Indian non-party witnesses, of whom *860 there are many, such
as would ensure their presence at a trial in this country, the high cost of transporting the large number of
Indian nationals to the United States, as well as the need to translate their testimony should they appear, all
support the argument favoring dismissal of this action on forum non conveniens grounds. The private interest
concerns regarding witnesses emphasize the logic of defendant's position. Relatively fewer witnesses reside
in the United States than in India. Almost all of the witnesses located in this country are employees of
defendant, and would be subject to compulsory process in India as a result. Transportation costs for the
relative few would not compare to the alternate costs of transporting hundreds of Indian witnesses. Since
English is widely spoken in India, less translation would be required for foreign witnesses in India than in the
converse situation. Should this case be tried in India, fewer obstacles to calling state and local officials as
witnesses or parties would face the defendant. The Court determines that this private interest factor weighs in
favor of dismissal.
C. Possibility of View.
The third private interest factor articulated in Gilbert is the ease of arranging for a view of the premises around
which the litigation centers. Plaintiffs assert that the notion that a jury view of the plant and environs is
necessary is "simply preposterous." (Memo in Opp. at 71). Plaintiffs note that a viewing of the premises is
rarely conducted in products liability cases, since videotapes, pictures, diagrams, schematics and models are
more instructive than an actual view. (Memo in Opp. at 71). A viewing of the plant and hutments would
probably not be of utmost importance in determining liability, and this consideration is not afforded great weight
on this motion.
However, the instant case is not identical to the product design defect case cited by plaintiffs, in which a district
court judge determined that "the present appearance of the defendants' facilities may or may not be relevant to
production which occurred" in the period in which the allegedly violative manufacture occurred. Hodson v. A.H.
Robins Co., Inc., 528 F. Supp. 809, 822 (E.D.Va.1981), aff'd, 715 F.2d 142 (4th Cir. 1983). In the instant case,
the site of the accident was sealed after the leak, and the present condition of the plant might be relevant to a
finding of liability. A viewing may not be necessary, but conceivably could be called for later in the litigation. An
Indian court is in a far better position than this Court to direct and supervise such a viewing should one ever be
required. This consideration, though minor, also weighs in favor of dismissal.
In summary, then, the private interest factors weigh greatly in favor of dismissal on grounds of forum non
conveniens. Since the "balance is strongly in favor of the defendant" and foreign plaintiffs' choice of a foreign
forum is given less than maximum deference, the Court determines that dismissal is favored at this point in the
inquiry. Gilbert 330 U.S. at 508, 67 S. Ct. at 843.
3. Public Interest Concerns.
The Gilbert Court articulated certain factors which affected the interests of non-parties to a litigation to be
considered in the context of the doctrine of forum non conveniens. These public interest concerns were held to
be relevant to a court's determination of whether to dismiss on these grounds. The Supreme Court expressly
identified a few factors:
Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being
handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which
has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding
the trial in their view and reach rather than in remote parts of the country where they can learn of it by report
only. There is a local interest in having localized controversies decided at home. There is an appropriateness,
too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the
case, rather than *861 having a court in some other forum untangle problems in conflict of laws, and in law
foreign to itself.
Gilbert at 508-09, 67 S. Ct. at 843. The Court will consider these various factors in turn, as well as others
discussed by the parties and amicus curiae.
A. Administrative Difficulties.
As is evident from the discussion thus far, the mere size of the Bhopal case, with its multitude of witnesses
and documents to be transported and translated, obviously creates administrative problems.
There can be no doubt that the Bhopal litigation will take its toll on any court which sits in judgment on it. This
Court sits in one of the busiest districts in the country, and finds, as a matter within its experience, that this is a
"congested center" of litigation as described in Gilbert at 508. The burden which would be imposed should
litigation continue here was aptly described by the Court of Appeals for the Second Circuit in Schertenlieb v.
Traum, 589 F.2d 1156 (2d Cir.1978). Reviewing a district judge's ruling for dismissal on the grounds of forum
non conveniens, the Second Circuit observed that "were it not for the somewhat unusual fact that it is the
forum resident who seeks dismissal, we would have to say very little regarding the exercise of Judge
Metzner's discretion in dismissing this case." Schertenlieb at 1164. In affirming the ruling for dismissal, the
Court of Appeals asked the rhetorical question:
If litigation is in a clearly inconvenient forum, why should defendant and the court be burdened with its
continuing there, if an alternative forum now exists so that plaintiff will not be without a remedy?
Schertenlieb at 1163.
This Court has already determined that because of the location of the preponderance of the evidence in India,
and the difficulty of transporting documents and witnesses to this forum, this district is clearly an inconvenient
forum for the litigation. An alternative forum is seen to exist in India. This Court feels that the answer to
the Schertenlieb question is clear.
A district judge in this district, in Domingo v. States Marine Lines, 340 F. Supp. 811 (S.D.N.Y.1972) evaluated
the administrative concerns of the Southern District of New York, relevant to this Court today, a full fourteen
years later. The Domingo court stated:

It is scarcely necessary to dwell on the fact that this Court is the most heavily burdened Federal District Court
in the country. The Civil Calendar grows more congested all the time. The priority now properly given to the
disposition of criminal cases tends to increase this congestion.
******
I see no reason why this Court, with its heavy burdens and responsibilities, should be burdened with cases like
these which, from every point of view, should be tried in the courts of the nation where all the relevant events
occurred and whose citizens are primarily involved. Certainly, this district and the Metropolitan area in which it
is situated have no conceivable relation to this litigation except for the fact that the defendant happens to be
doing business here.
Domingo at 816.
The defendant in this case, involved as it appears to have been in the process design phase of the plant's
construction, may have a slightly less tenuous connection to this forum than a corporation which is merely
doing business here. Certain business conducted in New York, or in corporate headquarters in Danbury,
Connecticut, may have been directly related to development or operation of the UCIL facility in Bhopal.
However, almost "all the relevant events" leading to and following from the accident occurred in India. Indian
citizens are primarily involved in the case, both as witnesses and claimants. The substantial administrative
weight of this case should be centered on a court with the most significant contacts with the event. Thus, a
court in Bhopal, rather than New York, should bear the load.
*862 In addition to the burden on the court system, continuation of this litigation in this forum would tax the
time and resources of citizens directly. Trial in this case will no doubt be lengthy. An assigned jury would be
compelled to sit for many months of proof. Because of the large number of Indian language-speaking
witnesses, the jurors would be required to endure continual translations which would double the length of trial.
The burden on the jurors themselves, and on their families, employers and communities would be
considerable. The need for translation would be avoided if trial were to be held in Bhopal.
Clearly, the administrative costs of this litigation are astounding and significant. Despite its deep concern for
the victims of the tragedy, this Court is persuaded by a recent relevant decision of the New York State Court of
Appeals. In the opinion in Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d
245 (1984), cert. denied, ___ U.S. ___, 105 S. Ct. 783, 83 L. Ed. 2d 778 (1985), with reference to a decision
discussing actions brought in New York by the Iranian Government against the Shah and his wife, the Court of
Appeals stated that:
[T]he taxpayers of this State should not be compelled to assume the heavy financial burden attributable to the
cost of administering the litigation contemplated when their interest in the suit and the connection of its subject
matter ... is so ephemeral.
Islamic Republic at 483, 478 N.Y.S.2d 597, 467 N.E.2d 245 (citations omitted). Administrative concerns weigh
against retention of this case.
B. The Interests of India and the United States.
Plaintiffs, and especially amicus curiae emphasize this point of argument in opposition to the motion to
dismiss. Concerned with the asserted possibility of developing a "double-standard" of liability for multinational
corporations, plaintiffs urge that American courts should administer justice to the victims of the Bhopal disaster
as they would to potential American victims of industrial accidents. The public interest is served, plaintiffs
and amicus argue, when United States corporations assume responsibility for accidents occurring on foreign
soil. "To abandon that responsibility," amicus asserts, "would both injure our standing in the world community
and betray the spirit of fairness inherent in the American character." (Amicus Brief at 4). The specific American
interests allegedly to be served by this Court's retention of the case include the opportunity of creating
precedent which will "bind all American multinationals henceforward," (Amicus Brief at 20); promotion of
"international cooperation," (Amicus Brief at 22-23); avoidance of an asserted "double standard" of liability, and
the prevention of "economic blackmail of hazardous industries which would extract concessions on health and
environmental standards as the price of continuing operations in the United States." (Amicus Brief at 20). An
additional American public interest ostensibly to be served by retention of the litigation in this forum is
advanced by plaintiffs themselves. They assert that the deterrent effect of this case can be distinguished from
the situation in Piper, where the Court rejected the argument that "American citizens have an interest in
ensuring that American manufacturers are deterred from producing defective products, and that additional
deterrence might be obtained if Piper and [its co-defendant] were tried in the United States, where they could
be sued on the basis of both negligence and strict liability." Piper 454 U.S. at 260, 102 S. Ct. at 268. The Court
stated that:
[T]he incremental deterrence that would be gained if this trial were held in an American court is likely to be
insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment
of judicial time and resources that would inevitably be required if the case were to be tried here.
Piper at 260-61, 102 S. Ct. at 268. According to plaintiffs, the potential for greater deterrence in this case is
"self-evident."
*863 The opposing interest of India is argued to be ill-served by sending this litigation to India. Pointing to the
fact that the Union of India chose this forum, plaintiffs state that there can be "no question as to the public
interest of India." (Memo in Opp. at 91). Union Carbide's statements regarding the interests of India in this
litigation are summarily dismissed by the plaintiffs, who state that "Union Carbide, whose actions caused the
suffering of an entire city, has no standing to assert this belated concern for the welfare of the Indian
populace." (Memo in Opp. at 91).
Union Carbide, not surprisingly, argues that the public interest of the United States in this litigation is very
slight, and that India's interest is great. In the main, the Court agrees with the defendant.
As noted, Robert C. Brown states in his affidavit on behalf of Union Carbide that the Indian Government
preserved the right to approve foreign collaboration and import of equipment to be used in connection with the
plant. See supra at 856. In addition, Mr. Brown quoted excerpts from the 1972 Letter of Intent entered into by
the Union of India and UCIL, one term of which required that "the purchase of only such design and
consultancy services from abroad as are not available within the country" would be allowed. (Brown Aff. at 6).
Ranjit K. Dutta states that the Indian Government, in a process of "Indianization," restricted the amount of
foreign materials and foreign consultants' time which could be contributed to the project, and mandated the
use of Indian materials and experts whenever possible. (Dutta Aff. at 35). In an alleged ongoing attempt to
minimize foreign exchange losses through imports, the Union of India insisted on approving equipment to be
purchased abroad, through the mechanism of a "capital goods license." (Dutta Aff. at 48-50).
The Indian Government, through its Ministry of Petroleum and Chemicals, allegedly required information from
UCIL regarding all aspects of the Bhopal facility during construction in 1972 and 1973, including "information
on toxicity" of chemicals. (Dutta Aff. at 44). The Ministry required progress reports throughout the course of the
construction project. These reports were required by the Secretariat for Industrial Approvals, the Director
General of Technical Development and the Director of Industries of Madhya Pradesh. (Dutta Aff. at 45).
Moreover, UCIL was ultimately required to obtain numerous licenses during development, construction and
operation of the facility. (Dutta Aff. at 46). The list of licenses obtained fills five pages. [21]
The Indian Government regulated the Bhopal plant indirectly under a series of environmental laws, enforced
by numerous agencies, much as the Occupational Safety and Health Administration, the Environmental
Protection Agency and state and local agencies regulate the chemical industry in the United States. (Dutta Aff.
at 53-56). Emissions from the facility were monitored by a state water pollution board, for example. (Dutta Aff.
at 64). In addition, state officials periodically inspected the fully-constructed plant. [22] (Dutta Aff. at 56). A
detailed inquiry into the plant's operations was conducted by the Indian Government in the aftermath of the
December, 1981 fatality at the MIC unit and the February, 1982 incident involving a pump seal. (Dutta Aff. at
58-62). Numerous federal, state and local commissions, obviously, investigated the most tragic incident of all,
the MIC leak of December, 1984.
The recital above demonstrates the immense interest of various Indian governmental agencies in the creation,
operation, *864 licensing and regulation, and investigation of the plant. Thus, regardless of the extent of Union
Carbide's own involvement in the UCIL plant in Bhopal, or even of its asserted "control" over the plant, the
facility was within the sphere of regulation of Indian laws and agencies, at all levels. The comments of the
Court of Appeals for the Sixth Circuit with respect to its decision to dismiss a products liability action on forum
non conveniens grounds seem particularly apposite. In In re Richardson-Merrell, Inc., 545 F. Supp.
1130 (S.D.Ohio 1982), modified sub. nom. Dowling v. Richardson-Merrell Inc., 727 F.2d 608 (6th Cir.1984), the
court reviewed a dismissal involving an action brought by a number of plaintiffs, all of whom were citizens of
Great Britain.[23] Defendant in the action was a drug company which had developed and tested a drug in the
United States which was manufactured and marketed in England. The suit was brought against the American
parent, not the British subsidiary, for injuries allegedly resulting from ingestion of the offending drug in England
and Scotland. The district court, in dismissing the case, stated that:
This action involves the safety of drugs manufactured in the United Kingdom and sold to its citizens pursuant
to licenses issued by that government. The interest of the United Kingdom is overwhelmingly apparent. New
York, and Ohio [the United States forums] for that matter, have a minimal interest in the safety of products
which are manufactured, regulated and sold abroad by foreign entities, even though development or testing
occurred in this country.
In re Richardson-Merrell, Inc., 545 F. Supp. at 1135 (footnote omitted). The Sixth Circuit confirmed this view of
the public interests, stating:
The interest of the United Kingdom in this litigation is great. The drug was manufactured under a British
license by British companies and was marketed and prescribed in the United Kingdom. The alleged injuries
took place in England and Scotland and the plaintiffs are citizens and residents of those countries. When a
regulated industry, such as pharmaceuticals in this case and passenger aircraft operations in Piper Aircraft, is
involved, the country where the injury occurs has a particularly strong interest in product liability litigation....
Though no single factor should be determinative in ruling on a forum non conveniens motion, the nature of the
product and its status as regulated or not must be considered.
Dowling, 727 F.2d at 616.
The Indian government, which regulated the Bhopal facility, has an extensive and deep interest in ensuring
that its standards for safety are complied with. As regulators, the Indian government and individual citizens
even have an interest in knowing whether extant regulations are adequate. This Court, sitting in a foreign
country, has considered the extent of regulation by Indian agencies of the Bhopal plant. It finds that this is not
the appropriate tribunal to determine whether the Indian regulations were breached, or whether the laws
themselves were sufficient to protect Indian citizens from harm. It would be sadly paternalistic, if not
misguided, of this Court to attempt to evaluate the regulations and standards imposed in a foreign country. As
another district court stated in the context of a drug product liability action brought by foreign plaintiffs in this
country,
*865 Each government must weigh the merits of permitting the drug's use.... Each makes its own
determination as to the standards of degree of safety and duty of care.... This balancing of the overall benefits
to be derived from a product's use with the risk of harm associated with that use is peculiarly suited to a forum
of the country in which the product is to be used.... The United States should not impose its own view of the
safety, warning, and duty of care required of drugs sold in the United States upon a foreign country when
those same drugs are sold in that country.
Harrison v. Wyeth Laboratories, 510 F. Supp. 1, 4 (E.D.Pa.1980), aff'd mem., 676 F.2d 685 (3d Cir.1982). India
no doubt evaluated its need for a pesticide plant against the risks inherent in such development. Its
conclusions regarding "[q]uestions as to the safety of [products] marketed" or manufactured in India were
"properly the concern of that country." Harrison at 4 (emphasis omitted). This is particularly true where, as
here, the interests of the regulators were possibly drastically different from concerns of American regulators.
The Court is well aware of the moral danger of creating the "double-standard" feared by plaintiffs and amicus
curiae. However, when an industry is as regulated as the chemical industry is in India, the failure to
acknowledge inherent differences in the aims and concerns of Indian, as compared to American citizens would
be naive, and unfair to defendant. The district court in Harrison considered the hypothetical instance in which a
products liability action arising out of an Indian accident would be brought in the United States. The court
speculated as follows:
The impropriety of [applying American standards of product safety and care] would be even more clearly seen
if the foreign country involved was, for example, India, a country with a vastly different standard of living,
wealth, resources, level of health care and services, values, morals and beliefs than our own. Most
significantly, our two societies must deal with entirely different and highly complex problems of population
growth and control. Faced with different needs, problems and resources in our example India may, in
balancing the pros and cons ... give different weight to various factors than would our society.... Should we
impose our standards upon them in spite of such differences? We think not.
Harrison at 4-5. This Court, too, thinks that it should avoid imposing characteristically American values on
Indian concerns.
The Indian interest in creating standards of care, enforcing them or even extending them, and of protecting its
citizens from ill-use is significantly stronger than the local interest in deterring multinationals from exporting
allegedly dangerous technology. The supposed "blackmail" effect of dismissal by which plaintiffs are troubled
is not a significant interest of the American population, either. Surely, there will be no relaxing of regulatory
standards by the responsible legislators of the United States as a response to lower standards abroad.
[24]
Other concerns than bald fear of potential liability, such as convenience or tax benefits, bear on decisions
regarding where to locate a plant. Moreover, the purported public interest of seizing this chance to create new
law is no real interest at all. This Court would exceed its authority were it to rule otherwise when restraint was
in order.
The Court concludes that the public interest of India in this litigation far outweighs the public interest of the
United States. This litigation offers a developing nation the opportunity to vindicate the suffering of its own
people within the framework of *866 a legitimate legal system. This interest is of paramount importance. [25]
C. The Applicable Law. Plaintiffs, including the Union of India, have argued that the courts of India are not up to the task of conducting
Gilbert and Piper explicitly acknowledge that the need of an American court to apply foreign law is an the Bhopal litigation. They assert that the Indian judiciary has yet to reach full maturity due to the restraints
appropriate concern on a forum non conveniens motion, and can in fact point toward dismissal. Gilbert,330 placed upon it by British colonial rulers who shaped the Indian legal system to meet their own ends. Plaintiffs
U.S. at 509, 67 S. Ct. at 843; Piper, 454 U.S. at 260, 102 S. Ct. at 268. Especially when, as here, all other allege that the Indian justice system has not yet cast off the burden of colonialism to meet the emerging needs
factors favor dismissal, the need to apply foreign law is a significant consideration on this type of of a democratic people.
motion. Piper at 260, n. 29, 102 S. Ct. at 268, n. 29. A federal court is bound to apply the choice of law rules of
the state in which an action was originally brought; even upon transfer to a different district, "the transferee
The Court thus finds itself faced with a paradox. In the Court's view, to retain the litigation in this forum, as
district court must be obligated to apply the state law that would have been applied if there had been no
plaintiffs request, would be yet another example of imperialism, another situation in which an established
change of venue." Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 821, 11 L. Ed. 2d 945 (1964).
sovereign inflicted its rules, its standards and values on a developing nation. This Court declines to play such
Thus, this Court, sitting over a multidistrict litigation, must apply the various choice of law rules of the states in
a role. The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair
which the actions now consolidated before it were brought. [26] Rather than undertake the task of evaluating the
and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass
choice of law rules of each state separately, the Court will treat the choice of law doctrine in toto. The
judgment on behalf of its own people would be to revive a history of subservience and subjugation from which
"governmental interest" analysis, employed by many jurisdictions, requires a court to look to the question of
India has emerged. India and its people can and must vindicate their claims before the independent and
which state has the most compelling interest in the outcome of the case. India's interest in the outcome of the
legitimate judiciary created there since the Independence of 1947.
litigation exceeds America's, see supra at 44-58. The lex loci delicti analysis used in other jurisdictions
indicates that the law of the state where the tort occurred should be applied. The place in which the tort
occurred was, to a very great extent, India. Other states apply the "most significant relationship" test, or This Court defers to the adequacy and ability of the courts of India. Their interest in the sad events of
"weight of contacts" test, which evaluate in which state most of the events constituting the tort occurred. The December 2-3, 1984 at the UCIL plant in the City of Bhopal, State of Madhya Pradesh, Union of India, is not
contacts with India with respect to all phases of plant construction, operation, malfunction and subsequent subject to question or challenge. The availability of the probative, relevant, material and necessary evidence to
injuries are greater in number than those with the United States. Thus, under any one of these three doctrines, Indian courts is obvious and has been demonstrated in this opinion.
it is likely that Indian law will emerge as the operative law. An Indian court, therefore, would be better able to
apply the controlling law than would this United States Court, or a jury working with it. This public interest
Therefore, the consolidated case is dismissed on the grounds of forum non conveniens under the following
factor also weighs in favor of dismissal on the grounds of forum non conveniens.
conditions:

CONCLUSION
It is difficult to imagine how a greater tragedy could occur to a peacetime population than the deadly gas leak
in Bhopal on the night of December 2-3, 1984. The survivors of the dead victims, the injured and others who
suffered, or may in the future suffer due to the disaster, are entitled to compensation. This Court is firmly
convinced that the Indian legal system is in a far better position than the American courts to determine the
cause of the tragic event and thereby fix liability. Further, the Indian courts have greater access to all the
information needed to arrive at the amount of the compensation to be awarded the victims.
1. Union Carbide shall consent to submit to the jurisdiction of the courts of India, and shall continue to waive
defenses based upon the statute of limitations;
2. Union Carbide shall agree to satisfy any judgment rendered against it by an Indian court, and if applicable,
upheld by an appellate court in that country, where such judgment and affirmance comport with the minimal
requirements of due process;

The presence in India of the overwhelming majority of the witnesses and evidence, both documentary and
real, would by itself suggest that India is the most convenient forum for this consolidated case. The additional
presence in India of all but the less than handful of claimants underscores the convenience of holding trial in 3. Union Carbide shall be subject to discovery under the model of the United States Federal Rules of Civil
India. All of the private interest factors described in Piper and Gilbertweigh heavily toward *867 dismissal of Procedure after appropriate demand by plaintiffs.
this case on the grounds of forum non conveniens.
SO ORDERED.

The public interest factors set forth in Piper and Gilbert also favor dismissal. The administrative burden of this
immense litigation would unfairly tax this or any American tribunal. The cost to American taxpayers of G.R. No. L-32636 March 17, 1930
supporting the litigation in the United States would be excessive. When another, adequate and more
convenient forum so clearly exists, there is no reason to press the United States judiciary to the limits of its In the matter Estate of Edward Randolph Hix, deceased.
capacity. No American interest in the outcome of this litigation outweighs the interest of India in applying Indian A.W. FLUEMER, petitioner-appellant,
law and Indian values to the task of resolving this case. vs.
ANNIE COUSHING HIX, oppositor-appellee.

The Bhopal plant was regulated by Indian agencies. The Union of India has a very strong interest in the
aftermath of the accident which affected its citizens on its own soil. Perhaps Indian regulations were ignored or C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
contravened. India may wish to determine whether the regulations imposed on the chemical industry within its
boundaries were sufficiently stringent. The Indian interests far outweigh the interests of citizens of the United
States in the litigation. MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First
Instance Tuason denying the probate of the document alleged to by the last will and testament of the
deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who
appears to have been the moving party in these proceedings, was a "person interested in the allowance or
disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the Supreme Court
from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon
[1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925,
by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by
Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National Library. But this was
far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. the
courts of the Philippine Islands are not authorized to take American Union. Such laws must be proved as facts.
(In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
was printed or published under the authority of the State of West Virginia, as provided in section 300 of the
Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having
charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of
Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in
force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on this point is to be found in
the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by
the testator in the presence of two competent witnesses, of that these witnesses subscribed the will in the
presence of the testator and of each other as the law of West Virginia seems to require. On the supposition
that the witnesses to the will reside without the Philippine Islands, it would then the duty of the petitioner to
prove execution by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not
establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in
beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own theory
by attempting to have the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an unverified
petition asking the court to accept as part of the evidence the documents attached to the petition. One of these
documents discloses that a paper writing purporting to be the was presented for probate on June 8, 1929, to
the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the oaths of Dana
Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be recorded and filed. It
was shown by another document that, in vacation, on June 8, 1929, the clerk of court of Randolph Country,
West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the estate of
Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the
will in the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have
been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the Philippines the
principal administration and West Virginia the ancillary administration. However this may be, no attempt has
been made to comply with Civil Procedure, for no hearing on the question of the allowance of a will said to
have been proved and allowed in West Virginia has been requested. There is no showing that the deceased
left any property at any place other than the Philippine Islands and no contention that he left any in West
Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix
from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or
validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the
appellant.
[G.R. No. L-12105. January 30, 1960.]
TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor and appellee, v.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositors and
appellants.
Jose D. Cortes for Appellants.
Ohnick, Velilla & Balonkita for Appellee.
SYLLABUS
1. WILLS; TESTAMENTARY DISPOSITIONS, WHAT LAW GOVERNS; APPROVAL OF PROJECT OF
PARTITION. Article 10 of the old Civil Code (Article 16, new Civil Code) provides that the validity of
testamentary dispositions are to be governed by the national law of the person whose succession is in
question. In case at bar, the testator was a citizen of the State of Nevada. Since the laws of said state allow
the testator to dispose of all his property according to his will, his testamentary dispositions depriving his wife
and children of what should be their legitimes under the laws of the Philippines, should be respected and the
project of partition made in accordance with his testamentary dispositions should be approved.
2. ID.; ID.; JUDICIAL NOTICE OF FOREIGN LAW IF INTRODUCED IN EVIDENCE. The pertinent law of
the state of the testator may be taken judicial notice of without proof of such law having been offered at the
hearing of the project of partition where it appears that said law was admitted by the court as exhibit during the
probate of the will; that the same was introduced as evidence of a motion of one of the appellants for
withdrawal of a certain sum of money; and that the other appellants do not dispute the said law.
DECISION
LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding, dismissing
the objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the project of partition
submitted by the executor and approving the said project.
On April 24, 1950, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to probate a
last will and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the said order, the
court made the following findings:jgc:chanrobles.com.ph
"According to the evidence of the opponents the testator was born in Nebraska and therefore a citizen of that
state, or at least a citizen of California where some of his properties are located. This contention is untenable.
Notwithstanding the long residence of the decedent in the Philippines, his stay here was merely temporary,
and he continued and remained to be a citizen of the United States and of the state of his particular choice,
which is Nevada, as stated in his will. He had planned to spend the rest of his days in that state. His
permanent residence or domicile in the United States depended upon his personal intent or desire, and he
selected Nevada as his domicile and therefore at the time of his death, he was a citizen of that state. Nobody
can choose his domicile or permanent residence for him. That is his exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen of the United
States and of the State of Nevada and declares that his will and testament, Exhibit A, is fully in accordance
with the laws of the state of Nevada and admits the same to probate. Accordingly, the Philippine Trust
Company, named as the executor of the will, is hereby appointed to such executor and upon the filing of a
bond in the sum of P10,000.00, let letters testamentary be issued and after taking the prescribed oath, it may
enter upon the execution and performance of its trust." (pp. 26-27, R.O.A.)
It does not appear that the order granting probate was ever questioned on appeal. The executor filed a project
of partition dated January 24, 1956, making, in accordance with the provisions of the will, the following
adjudications: (1) one-half of the residuary estate, to the Farmers and Merchants National Bank of Los
Angeles, California, U.S.A. in trust only for the benefit of testators grandson Edward George Bohanan, which
consists of P90,819.67 in cash and one-half in shares of stock of several mining companies; (2) the other half
of the residuary estate to the testators brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and
share alike. This consists in the same amount of cash and of shares of mining stock similar to those given to
testators grandson; (3) legacies of P6,000 each to his (testator) son, Edward Gilbert Bohanan, and his
daughter, Mary Lydia Bohanan, to be paid in three yearly installments; (4) legacies to Clara Daen, in the
amount of P10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting administration expenses) of "SEC. 41. Proof of public or official record. An official record or an entry therein, when admissible for any
P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of all shares of stock of several purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the
mining companies and to his brother and sister the same amount. To his children he gave a legacy of only legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with
P6,000 each, or a total of P12,000. a certificate that such officer has the custody.." . . (Rule 123)

The wife Magdalena C. Bohanan and her two children question the validity of the testamentary provisions
disposing of the estate in the manner above indicated, claiming that they have been deprived of the legitime
that the laws of the forum concede to them.
The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be entitled to
receive. The will has not given her any share in the estate left by the testator. It is argued that it was error for
the trial court to have recognized the Reno divorce secured by the testator from his Filipino wife Magdalena C.
Bohanan, and that said divorce should be declared a nullity in this jurisdiction, citing the cases of Querubin v.
Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12) 315, Cousins Hiz v. Fluemer, 55 Phil., 851, Ramirez v. Gmur,
42 Phil., 855 and Gorayeb v. Hashim, 50 Phil., 22. The court below refused to recognize the claim of the
widow on the ground that the laws of Nevada, of which the deceased was a citizen, allow him to dispose of all
of his properties without requiring him to leave any portion of his estate to his wife. Section 9905 of Nevada
Compiled Laws of 1925 provides:jgc:chanrobles.com.ph
"Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his or her estate,
real and personal, the same being chargeable with the payment of the testators debts."cralaw virtua1aw
library
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testators estate
had already been passed upon adversely against her in an order dated June 18, 1955, (pp. 155- 159, Vol. II
Records, Court of First Instance), which had become final, as Magdalena C. Bohanan does not appear to
have appealed therefrom to question its validity. On December 16, 1953, the said former wife filed a motion to
withdraw the sum of P20,000 from the funds of the estate, chargeable against her share in the conjugal
property, (See pp. 294-297, Vol. I, Record, Court of First Instance), and the court in its said error found that
there exists no community property owned by the decedent and his former wife at the time the decree of
divorce was issued. As already adverted to, the decision of the court had become final and Magdalena C.
Bohanan may no longer question the fact contained therein, i.e. that there was no community property
acquired by the testator and Magdalena C. Bohanan during their coverture.
We have, however, consulted the records of the case in the court below and we have found that during the
hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as her share,
the foreign law, especially Section 9905, Compiled Nevada Laws, was introduced in evidence by appellants
(herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and t.s.n. pp. 24-44, Records, Court of First Instance).
Again said law was presented by the counsel for the executor and admitted by the Court as Exhibit "B" during
the hearing of the case on January 23, 1950 before Judge Rafael Amparo (see Records, Court of First
Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of the laws
of the State of Nevada. Under all the above circumstances, we are constrained to hold that the pertinent law of
Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial notice of by us,
without proof of such law having been offered at the hearing of the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it has been decided and it is not disputed that the national
law of the testator is that of the State of Nevada, already indicated above, which allows a testator to dispose of
all his property according to his will, as in the case at bar, the order of the court approving the project of
partition made in accordance with the testamentary provisions, must be, as it is hereby affirmed, with costs
against appellants.

Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on January
30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in 1925, Magdalena C.
Bohanan married Carl Aaron and this marriage was subsisting at the time of the death of the testator. Since no
right to share in the inheritance in favor of a divorced wife exists in the State of Nevada and since the court
below had already found that there was no conjugal property between the testator and Magdalena C.
Bohanan, the latter can now have no legal claim to any portion of the estate left by the testator.

The most important issue is the claim of the testators children, Edward and Mary Lydia, who had received
legacies in the amount of P6,000 each only, and, therefore, have not been given their shares in the estate
which, in accordance with the laws of the forum, should be two-thirds of the estate left by the testator. Is the
failure of the testator to give his children two-thirds of the estate left by him at the time of his death, in
accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides that
successional rights to personal property are to be governed by the national law of the person whose
succession is in question. Says the law on this point:jgc:chanrobles.com.ph

"Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the
extent of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national
law of the person whose succession is in question, whatever may be the nature of the property and the
country in which it is found." (par. 2, Art. 10, old Civil Code, which is the same as par. 2 Art. 16, new Civil
Code.)

In the proceedings for the probate of the will, it was found out and it was decided that the testator was a citizen
of the State of Nevada because he had selected this as his domicile and his permanent residence. (See
Decision dated April 24, 1950, supra). So the question at issue is whether the testamentary dispositions,
especially those for the children which are short of the legitime given them by the Civil Code of the Philippines,
are valid. It is not disputed that the laws of Nevada allow a testator to dispose of all his properties by will (Sec.
9905, Compiled Nevada Laws of 1925, supra). It does not appear that at the time of the hearing of the project
of partition, the above-quoted provision was introduced in evidence, as it was the executors duty to do. The
law of Nevada, being a foreign law, can only be proved in our courts in the form and manner provided for by
our Rules, which are as follows:jgc:chanrobles.com.ph