The San Francisco call., 1906-08-07
Validity of Title
Renewing Law
Discussed.
CASE PRESENTED
IN ALL PHASES
Question of Serv-
ing Notice Is
Main One.
REGIMENTS were presented to

~ the Supreme Court yesterday
~ for and against the constitu-
tionality of the McEnerney act,
which provides for the restoration OF
titles to land by actions in rem. Garrett
w. McEnerney defended the act, while
Judge John CARRIER, acting as attorney
for the California Title Insurance Com
pany. representing the title Insurance.
companies, endeavored to show that IL
was in conflict with the fourteenth
amendment of the constitution OF the
United States. and criticised II in va
rious other ways.
The question before the Supreme
Court was whether this act, recently
passed by the Legislature for the es-
tabliShment Of land titles in San Fran
cisco. was constitutional Inasmuch as
practically all the record evidence OF
title was destroyed by the recent con-
hagration. a proceeding was necessary
whereby titles could be judiciaIly es-
tablished- The Legislature at its re-
cent extraordinary session passed a law
to accomplish this purpose. Under pres
ent conditions it is impossible for an
owner of property to convey a mar
ketable title thereto. or to negotiate
any loan thereon. as it is impossible to
whether title is valid
The Governor. In his cali convening
the Legislature in extraordinary ses-
sion. directed legislation to be had on
this subject. and in response thereto
the Legislature passed the law which
preme Court
This law substantially provides thaa
the owner OF property may maintain
a suit to have determined all claims
and interests thereto. A scheme is
provided whereby all persons known
TO have any claims are required per-
sonally to be served with summons.
persons. A Judgment in the case. after
due and proper proceedings adjudicat-
ing title in the plaintir. bars the en-
tire world.
IS SIMPLY TEST CASE.
The case came up before the SUI
preme Court yesterday in the proceeds
ing entitled The Title and Document
Restoration Company. a corporation.
petitioner, VS.. Hon. Frank H. Kerri-
gan, Judge Of the Superior Court OF
the State Of California in and for
the city and county Of San Francisco,
respondent" 1t was purely test case.
The petitioner had applied to Judgs
Kerrigan for an order directing a
newspaper to be designated in which
the summons might be published.
Without argument or discussion. and
to enable the matter to reach the Su-
preme Court expeditiously. he refused
TO make an order and formally held
the law to be Unconstitutional
1t is probable that in all the history
Of the California Supreme Court there
has never been another case receiving
so much attention from the legal fra
ternity as that OF yesterday. when tha
validity OF the emergency law was
argued by as good legal talent as the
State affords.
Attorney McEnerney opened the dis
cussion by telling how the city rec
ords were destroyed by the big nrs.
Of how the future progress OF San
Francisco depended upon the estab-
lishment Of unquestionable titles to the
land. and OF how. prompted by dire
necessity, the Legislature was con-
vened in extraordinary session to pass
law that would enable property own
ers to establish their legal rights to
their land In the preparation OF tha
law that had been passed for this pur-
pose, he stated that court records had
been searched for decisions on which
desirable law could be based.
The speaker drew an analogy be-
tween the law he was discussing and
that which forever settles the title to
property left by a deceased person. and
he stated that IL the one is unconsti-
tutional the other must be.
PRESENTS TECHNICALLY.
Judge CARRIER argued that although
the Legislature designated the act to
be a proceeding In rem. it was in na-
ture a proceeding in persona, and as
such it is contrary to the fourteenth
amendment to the constitution OF the
United States. which provides that no
man can be deprived of his property
without "due process OF law"
To make himself clear. the speaker
explained that IL was provided in the
McEnerney act that the claimant
would be the plaintiff in case and
the entire world would be the defend
ant. and thus it did not provides that
personal service against the defendant