The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-01-27

Use of In Valid Law-RecOm-
mends Care in Drafting Bill.
Attorney General Douglas declares
against the constitutionality of the
Torrens system of land titles in a COM
munication which he sent to the senate
yesterday, and which was ordered
printed in the journal. 1t emphasizes
the objection that the plan attempts to
confer judicial power upon county
recorder or registrar. He suggests,
however, that a modified system en-
bodying some of the advantages of the
Torrens plan might be passed. The
opinion is as follows:
In my opinion, the so-called Torrens system
of land titles in the form in which it was
originally adopted in Australia and later in
the provinces Of Ontario and Manitoba, would
clearly be unconstitutional under the system
of government In existence in the various
states of the United States.
modified system embodying most OF the
salient provisions of the so-called Torrens
land title system may be adopted in this state
and engrafted into it's Jurisprudence, in a
form which will not conflict with the const-
tuition of this state or of the United States.
The system has operated very satisfactorily
in Australia and the different provinces of
Canada, and resulted in simplifying not only
transfer OF property in, but also the forms of
conveyances, and the methods of marshall
So far as l am advised, three states only,
to w.t. Illinois, Ohio and Massachusetts,, have
adopted this system of registering land titles,
each of them with some special notifications
to procedure of a different nature.
Illinois and Ohio have very closely followed
the original Australian system and each act
has, by the court of last resort, been held as
an entirety, to be unconstitutional and void.
modified system was later enacted in Hill
nois. In June, 1897, the legislature of Massa-
chusetts authorized the appointment of a COM
IN md lhndx
ing the principles of the Torrens system, and
pursuant to the report submitted in June,
1888, enacted modified system of land trans
fers. The Massachusetts enactment is, in my
judgment, the more carefully prepared act
but drawn somewhat after the later Illinois
enactment. 1t has not as yet, received official
Interpretation by the courts of Massachu
setts
The second enactment in Illinois has re-
Gently been held to be constitutional by the
supreme court of that state, but rehearng
has been granted by the court which has, as
yet, been undetermined
The original. enactments in Illinois and
Ohio were attacked chiefly as being unc0n-
stitutional for the reanon
Flrst-That the acts attempted to authorize
the taking of private property by the state
for private use without compensation.
Second-Because they attempted to confer
judicial power upon county recorder or
registrar.
Third-Because the acts did not provide for
personal service upon all interested parties
who were within the Jurisdiction Of the court,
or could be located.
Fourth-Becauae the state has power to
accumulate and the indemnity funds pro-
vided by the act.
The second objection must clearly be sus-
tanned in this state as against any enactment
embodying all the principles of the Torrens
system. In Great Britain and her provinces
a constitution by way Of a limitation upon
the power CT parliament does not exist, and
all enactments of parliament are supreme,
while in the United States the various state
constitutions provide in substance that no
person shall be deprived of his
property except by due process of law" The
powers of government distributed be-
tween the executive, legislative and judicial
departments, and by the express terms of
our constitution it is provided that mo person
or persons belonging to or constituting one or
these departments shall exercise any of the
powers properly belonging to either OF the
others, except in the instances expressly pro
vided in this constitution.
II By due process of law" is meant con
fiscation or taking only after an ~adJudlca-
ton in the courts. To lawyers the bare state
nent even seems unnecessary.
1t follows therefore first, that any attempt
to vest in a registrar or recorder the power
to determine and certify title is an infringe
ment upon the judicial power OF the govern
ment the rights of the subjects of the state,
and therefore void; second, any provision by
which the title to private property Of any
person is certified by the state, except sub
sequent to a judicial determination by court
having jurisdiction of the parties and the
subject matter, must also be imperative.
In Illinois, by the act Of May l, 1897, the
chancery side of their circuit courts (cor-
responding in Minnesota to the district
COURTS, has been vested with jurisdiction
to hear adjudge and certify, under reasona-
Bile restrictions the question to owner
ship of legal and equitable titles, and
registrar is named in Illinois whose enumer-
ated powers are to record and certify titles
of lands brought under the provisions of the
act in question, as determined by the courts.
The indemnity feature of the Illinois act
was not determined by the supreme court in
its recent decision, but the court did hold
that the chief principles of the system could
stand in the absence of this feature.
In my judgment it is within the power
of the legislature of this state to enact
simplified system of recording, determining
and certifying land titles closely allied to
the so-called Torrens system, and embracing
its chief features, but only upon condition
that the power which determines the title,
either equitable or legal, shall be vested in
the district courts of the state.
Should it be deemed advisable to vest this
power in the probate courts of the state, for
the reason that a judge thereof is always
resident of each county, and the court in
session continuously, it will be necessary to
amend the constitution Of this state enlarg
ing the jurisdiction of probate courts, and
perhaps changing it's title.
l beg to suggest, further, that the simpli-
hcation of forms OF transfers, even if mod
flied system of land title akin to the Tor
rens system be not adopted is a matter
worthy of extended consideration.