The San Francisco call., 1906-12-28
ANOTHER TEST OF.
NJ 'ENERNEY ACT
Attorneys File Petition
With Supreme Court for
Rehearing of the Case
PRESENT NEW POINTS

A petition for rehearing of the case
involving the validity of the McEnerney
act was fled yesterday in the Supreme
Court by Page, McCutchen & Knight
attorneys acting as amici curiae, ana
as result the fling of suits for the
restoration Of land titles in San Fran
cisco will probably be delayed for an
indefinite period The rehearing is
asked for on the ground that some i'm
portant arguments, not previously
mentioned, should be heard by the
court
Among the important arguments of
the petitioners are the following; Ihat
the recent decision of the Supreme
Court is judicial legislation; that, &C
cording to a decision of December 6,
1906. in the United States Court of Ap-
peals for the Eighth District, in the
case Of the Celia Commission Company
versus Bohlinger, the act is void IN
toto; that the McEnerney act provides
only for suits in rem, and that holders
of non-conf1icting equitable title can
not be deprived of their rights except
BY suits in personam.
That the McEnerney act deprives
aliens and citizens of other States of
their constitutional right to an adjudi-
cation of their claims by the Federal
courts, in which, by the theory and
practice of our system, local prejudice
ana experiences nave lO 4OLNC- 4AoN
the notice of suit as provided by the
AIcEnerney act is neither justified by
history nor by reason.
VARIOUS CASES CITED
Various cases are cited to prove the
arguments contained in the petition.
The major argument is that concerning
the rights of aliens and citizens of
other States. and the larger part of the
petition is devoted to it In explana-
tion of the failure to include this argu-
ment in their original brief on the sub
ject the petitioners make the following
statement:
IN the Torrens case, submitted aft
erward but before the decision of this
case, we did argue and illustrate the
point. and we further called the courts
attention to our desire that such argu-
ment be considered also with reference
TO the McEnerney case.
'aOf course under such circumstances
we have no technical right to a re-
hearing on this ground Nevertheless
the fact remains that II, upon this or
any other ground, the decision hereto
fore rendered in this case should fail
TO stand. the people of San Francisco,
by reason of their reliance on the de-
cision. viii be put to the futile ex-
penditure Of millions of dollars and
the courts of the State overwhelmed
with ITU1l16SS LllSdllOn. lulS COuI(
will not, il is submitted, on any techni-
cal ground refuse to consider the point
TO be herein suggested, for though we
agree that no suggestion of expediency
can be heard to justify an invasion of
fundamental rights, yet it cannot be
doubted that a detail of procedure or
the convenience of the court should
not weigh against a serious damage
and inconvenience to the community.
To any intimation that we should have
raised the point sooner. 1T is a suf-
fcient reply to say that the effects
Of the McEnerney act cannot at one
glance be foreseen or comprehended."
INDICATES DECISION
The long and exhaustive decision re-
Gently rendered by the Supreme Court
establishing the validity of the Nc
Enerney act was concurred in by each
member of the court, and this lack Of
a dissenting opinion is taken as a sign
that further efforts on the part of the
opponents of the law, who comprise
the title guaranty companies, will not
meet with success. In this decision it
tial to meet the unusual conditions re-
sulting from the earthquake and fire.
From high legal authority ii was
recently learned that the case in which
the Supreme Court upheld the validity
of the act could not be appealed to
the United States court, as it involves
no particular instance in which any
person has been deprived of his rights
contrary to the Federal constitution.
In new form. however, il is possible
the law will go through all the courts
once more until it reaches the highest
court of the land for final decision.