
198 U.S. 458 (1905)
CUNNIUS, NOW SMITH,
v.
READING SCHOOL DISTRICT.
No. 165.
Supreme Court of United States.
Argued March 6, 1905.
Decided May 29, 1905.
ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.
*462 Mr. Caleb J. Bieber for plaintiff in error.
Mr. Frederick W. Nicolls, by special leave of court, with whom Mr. William Rick was on the brief, for defendant in error.
*467 MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
In their ultimate aspect the assignments of error and the propositions based on them all rest on the assumption that the State of Pennsylvania had no jurisdiction over the person or property of the absentee, and therefore the proceedings for the appointment of the administrator and all acts done by him were void and subject to collateral attack. But to uphold this contention, in a broad sense, would be to deny the possession by the various States of powers which they obviously have the right to exert. That the debt due the absentee by the School District, resulting from the establishment of her dower, was within the jurisdiction of the state authority, is clear. It would undoubtedly have been subject to administration under the laws of Pennsylvania had the absentee been in fact dead. Wyman v. Halsted, Administrator, 109 U.S. 654, 656; Sayre v. Helme, 61 Pa. St. 299; Mansfield v. McFarland, 202 Pa. St. 173, 174. The debt was certainly subject to taxation, and, being so subject, had it been taxed, the State would have had power to provide remedial process for the collection of the tax. Savings Society v. Multnomah County 169 U.S. 421, 428; Bristol v. Washington County, 177 U.S. 133. Moreover it would have been in the power of the State to subject the debt to attachment at the instance of a creditor of the absentee. Harris v. Balk, 198 U.S. 215. And that the law *468 of Pennsylvania would have authorized such an attachment is also clear. Furness v. Smith, 30 Pa. St. 520, 522. It may not also be doubted that the State of Pennsylvania had authority to enact an applicable statute of limitations.
Shrinking from the conclusion to which the assertion of the want of jurisdiction in the State over the debt logically leads, the foregoing propositions are not seriously disputed. It is, however, insisted that they are not determinative of the power of the State to provide for the administration of the property of a person who, having been domiciled in the State, has absented himself for an unreasonable time, leaving no trace of his whereabouts. The contentions on this subject are thus stated in the brief of counsel:
"In a word, the case before the court is one in which the private property of one person was, without her knowledge or consent, transferred to another who in reality had no shadow of a right to it, by virtue of an ex parte proceeding of which the owner had no lawful notice. Is it possible that such a manifest infringement of the fundamental and inherent rights which belong to every person in the use and enjoyment of his private property can be construed to be due process of law?"
Again:
"If the plaintiff's departure from Pennsylvania and her omission to demand her arrearages for the period of eleven years, work an injury to any one, it was to herself alone and not to any public right such as would bring this case within the police power of the State. Plaintiff was under no legal obligation to remain in Reading."
It will be observed that the propositions challenge the authority of the State to enact the statute which formed the basis of the proceedings, not only because it is insisted that there was a complete want of power to do so, but also because, even if the State had power, the method of procedure which the statute authorized was so wanting in notice as not to constitute due process of law. We shall consider these objections separately:
*469 1st. Was the state statute providing for the administration of the property of an absentee under the circumstances contemplated by the statute so beyond the scope of the State's authority as to constitute a want of due process of law within the intendment of the Fourteenth Amendment? That the Amendment does not deprive the States of their police power over subjects within their jurisdiction is elementary. The question then is, not the wisdom of the statute, but whether it was so beyond the scope of municipal government as to amount to a want of due process of law. The solution of this inquiry leads us therefore to consider the general power of government to provide for the administration of the estates of absentees under the conditions enumerated in the Pennsylvania law. We do not pause to demonstrate, by original reasoning, that the right to regulate concerning the estate or property of absentees is an attribute, which, in its very essence, must belong to all governments, to the end that they may be able to perform the purposes for which government exists. This is not done, because we propose rather to test the question by ascertaining how far such authority has been deemed a proper governmental attribute in all times and under all conditions. If it be found that an authority of that character has ever been treated as belonging to government and embraced in the right to protect and foster the well-being and order of society, it must follow that that which has at all times been conceded to be within the power of government, cannot, in reason, be said to be so beyond the scope of governmental authority that the exertion of such a power must be held to be a want of due process of law, even although there is no constitutional limitation affecting the exercise of the power. Whilst it may be that under the Roman Law there was no complete and coherent system provided for the administration of the estate of an absentee, Toullier, title 1, No. 379; Duranton, title 1, No. 384, it is nevertheless certain that absence, without being heard from for a given length of time, authorized the appointment of a curator to protect and administer an *470 estate. See the references to the Roman Law on that subject in Domat, liv. 2, tit. 2, section 1, No. 13. That in the ancient law of France, under varying conditions, the same governmental right was recognized is also undoubted. Journal du Palais Rep. Verbo Absence, p. 20, from No. 9 to 25. In the Code Napoleon the subject is especially provided for under a title treating of absence, in which ample provision is made for the administration of the property of the absentee, the law providing for, first, the provisional and ultimately the final distribution of such property in accordance with the restrictions and regulations which the title provides. Code Nap. title 4, article 112 et seq. Demolombe, in generally treating upon the subject, thus expounds the fundamental conceptions from which the power of government on the subject is derived:
"Three characters of interest invoke a necessity for legislation concerning this difficult and important subject. First. The interest of the person himself who has disappeared. If it is true that generally speaking every person is held at his own peril to watch over his own property, nevertheless the law owes a duty to protect those who from incapacity are unable to direct their affairs. It is upon this principle of public order that the appointment of tutors to minors or curators to the insane rests. It is indeed natural to presume that a person who has disappeared, if he continues to exist, is prevented from returning by some obstacle stronger than his own will, and which, therefore, places him in the category of an incapable person, whose interest it is the duty of the law to protect. And it is for this reason that the provisions as to absence in the code are placed in the chapter treating of the status of persons because the absentee, in the legal sense, is a person occupying a peculiar legal status. Second. The duty of the lawmaker to consider the rights of third parties against the absentee, especially those who have rights which would depend upon the death of the absentee. Third. Finally, the general interest of society which may require that property *471 does not remain abandoned without some one representing it and without an owner. . . ."
And it may not be doubted that the power to deal with the estate of an absentee was recognized and exerted not only by the common law of Germany, but also by the codes of the various States of the continent of Europe. De Saint Joseph Concordance entre les Codes Civils Etrangers et le Code Napoleon, vol. 1, page 11.
Provisions similar in character to those of the Code Napoleon were incorporated in the Civil Code of Louisiana of 1808 under the head of absentees in book 1 of that code, defining the status of persons, and such provisions have been in force from that day to the present time. Louisiana Civil Code, article 47, et seq. The provisions of that code on the subject were referred to by this court in Scott v. McNeal, 154 U.S. 34, 41. Under the law of England, as stated in that case, a presumption of death arose from an absence of seven years without being heard from; and whilst it is true, as we shall hereafter have occasion to say, that such presumption was not conclusive and was rebuttable, nevertheless the very fact of the presumption occasioned by absence, irrespective of the force of the presumption, was a manifestation of the power to give legal effect to the status arising from absence.
As the preceding statement shows that the right to regulate the estates of absentees, both in the common and civil law, has ever been recognized as being within the scope of governmental authority, it must follow that the proposition that the State of Pennsylvania was wholly without power to legislate concerning the property of an absentee, is without merit, unless it be that the authority of a State over the subject is restrained by some constitutional limitation. That the constitution of Pennsylvania does not put such a restriction, is foreclosed by the decision of the Supreme Court of Pennsylvania in this case. But it is insisted, conceding that the State of Pennsylvania had power to provide for the administration of the property of an absentee, yet that authority could not *472 be exerted without violating the due process clause of the Fourteenth Amendment if the administrative proceeding, brought into play under the exercise of the authority, is made binding upon the absentee if it should subsequently develop that he was alive when the administration was initiated. To sustain this proposition numerous decisions of state courts of last resort are relied upon, which are enumerated in the margin,[1] and special reliance is placed upon the decision of this court in Scott v. McNeal, supra. We are of opinion, however, that the cases relied upon, with one or two exceptions hereafter to be noticed, are inapposite to this case. The leading cases were reviewed in Scott v. McNeal, and their inapplicability to the present case will therefore be demonstrated by a brief consideration of Scott v. McNeal.
In that case a probate court in the State of Washington had issued letters of administration upon the estate of a person who had disappeared, and proceeded to administer his estate as that of a dead person upon the presumption of death, which the court assumed had arisen from his absence. There was no statute of the State of Washington providing for an administration of the estate of an absentee as such, and creating rights and safeguards applicable to that situation, as distinct from the general law of the State, conferring upon courts of probate power to administer the estates of deceased persons. Referring to the presumption under the law of England of *473 death arising from absence, it was held that such presumption was not conclusive, and was absolutely rebutted by proof that the person who was presumed from the fact of absence to be dead was, in fact, alive. Having established this proposition, it was then held, as death was essential to confer jurisdiction on a probate court to administer an estate as such, the fact of life at the time the administration was initiated conclusively rebutted the presumption and caused the court to be wholly without jurisdiction to administer the estate of a person who was alive. This conclusion was abundantly sustained by a citation of the English and American adjudications, in none of which was the doctrine upon which the case proceeded more cogently stated than in the opinion of this court, speaking through Chief Justice Marshall, in Griffith v. Frazier, 8 Cr. 9, 23. That the opinion, however, in Scott v. McNeal was not intended to and did not imply that the States were wholly devoid of power to endow their courts with jurisdiction under proper conditions to administer upon the estates of absentees, even though they might be alive, by special and appropriate proceedings applicable to that condition as distinct from the general power to administer the estates of deceased persons, is conclusively shown by the opinion in Scott v. McNeal. Thus, the law of Louisiana, providing for the administration of the property of absentees, as distinct from the authority conferred to administer the estates of deceased persons, was approvingly referred to. And, moreover, as showing that it was deemed that the absence of legislation by the State of Washington of a similar character was the determinative factor in the case, the court said (p. 47):
"The local law on the subject, contained in the Code of 1881 of the Territory of Washington, in force at the time of the proceedings now in question, and since continued in force by article 27, section 2, of the constitution of the State, does not appear to us to warrant the conclusion that the probate court is authorized to conclusively decide, as against a living person, that he is dead, and his estate therefore *474 subject to be administered and disposed of by the probate court.
"On the contrary, that law, in its very terms, appears to us to recognize and assume the death of the owner to be a fundamental condition and prerequisite to the exercise by the probate court of jurisdiction to grant letters testamentary or of administration upon his estate, or to license any one to sell his lands for the payment of his debts."
After copiously reviewing the Washington statutes and pointing out that they dealt with the estates of deceased persons as such, the case was summed up in the following language:
"Under such a statute, according to the overwhelming weight of authority, as shown by the cases cited in the earlier part of this opinion, the jurisdiction of the court to which is committed the control and management of the estates of deceased persons, by whatever name it is called, ecclesiastical court, probate court, orphans' court, or court of the ordinary or the surrogate, does not exist or take effect before death. All proceedings of such courts in the probate of wills and the granting of administrations depend upon the fact that a person is dead, and are null and void if he is alive. Their jurisdiction in this respect being limited to the estates of deceased persons, they have no jurisdiction whatever to administer and dispose of the estates of living persons of full age and sound mind, or to determine that a living man is dead and thereupon undertake to dispose of his estate."
True it is that there are some general expressions found in the opinion (p. 50), which, if separated from the context of the opinion, might lead to the conclusion that it was held that a State was absolutely without power to provide by a special proceeding for the administration and care of the property of an absentee, and to confer jurisdiction on its courts to do so, irrespective of the fact of death. But these general expressions are necessarily controlled by the case which was before the court, and by the context of the opinion, which makes it *475 clear that it was alone decided that under a law giving jurisdiction to probate courts to administer the estates of deceased persons, even although a rebuttable presumption existed as to death after a certain time, that if such presumption was subsequently rebutted by the proof of the fact of life that the court, whose authority depended upon death, was devoid of jurisdiction.
We have said that two of the cases relied upon would be separately noticed. Those cases are Carr v. Brown, 20 R.I. 217, and Clapp v. Houg, 12 N. Dak. 600. In the first case there was a statute of Rhode Island providing for administration under the presumption of death after an absence of seven years, and it was decided that the statute was void. The opinion leads to the view that the conclusion of the court was primarily based upon the construction that the statute did not create a conclusive presumption conferring jurisdiction in the event the absentee was alive and not dead. In the second case there was also a statute of the State of North Dakota, but the court held it to be void, because of the inadequacy of the notice for which it provided. There are, in both of the cases, expressions tending to the view that the State was without power to provide by special legislation for the administration of the property of an absentee. In so far, of course, as these views were rested upon the state constitution, we are not concerned with them. In so far, however, as they intimate that by the operation of the Fourteenth Amendment the States are deprived of power to legislate concerning the estates of absentees, we do not approve them.
The error underlying the argument of the plaintiff in error consists in treating as one two distinct things, the want of power in a State to administer the property of a person who is alive, under its general authority to provide for the settlement of the estates of deceased persons, and the power of the State to provide for the administration of the estates of persons who are absent for an unreasonable time, and to enact reasonable regulations on that subject. The distinction between the *476 two is well illustrated in Pennsylvania, for in that State, prior to the enactment of the statute in question, it had been expressly decided that a court of probate as such was absolutely wanting in jurisdiction to administer the estate of a person who was alive simply because there existed a presumption which was rebuttable as to the fact of death. This is also aptly illustrated by the law of Louisiana. In that State, as we have seen, provisions have existed from the beginning for the administration of the estates of absentees as distinct from the power conferred upon the courts of probate to administer the estates of deceased persons. In this condition of the law, under an averment of death an estate was opened in a probate court of Louisiana and administered upon. A question as to the validity of that administration subsequently arose in Burns v. Van Loan, 29 La. Ann. 560, 563. As the proceedings were probate proceedings not taken under the statute providing for the administration of the estates of absentees, the Supreme Court of the State of Louisiana declared them to be absolutely void. As it cannot be denied that in substance the Pennsylvania statute is a special proceeding for the administration of the estates of absentees distinct from the general law of that State providing for the settlement of the estates of deceased persons, and as by the express terms of the statute jurisdiction was conferred upon the proper court to grant the administration, it follows that the Supreme Court of Pennsylvania, did not deprive the plaintiff in error of due process of law within the intendment of the Fourteenth Amendment.
2d. It remains only to consider the contention that even although there was power to enact the statute, it is nevertheless repugnant to the Fourteenth Amendment, because it fails to provide notice as a prerequisite to the administration which the statute authorizes and because of the absence from the statute of essential safeguards for the protection of the property of the absentee which is to be administered. Let it be conceded, as we think it must be, that the creation by a state law of an arbitrary and unreasonable presumption of death *477 resulting from absence for a brief period, would be a want of due process of law, and therefore repugnant to the Fourteenth Amendment. Let it be further conceded, as we also think is essential, that a state law which did not provide adequate notice as prerequisite to the proceedings for the administration of the estate of an absentee would also be repugnant to the Fourteenth Amendment. Again, let it be conceded that if a state law, in providing for the administration of the estate of an absentee, contained no adequate safeguards concerning property, and amounted therefore simply to authorizing the transfer of the property of the absentee to others, that such a law would be repugnant to the Fourteenth Amendment. We think none of these concessions are controling in this case. So far as the period of absence provided by the statute in question, it certainly cannot be said to be unreasonable. So far as the notices which it directs to be issued, we think they were reasonable. As concerns the safeguards which the statute creates for the protection of the interest of the absentee in case he should return, we content ourselves with saying that we think, as construed by the Supreme Court of Pennsylvania, the provisions of the statute do not conflict with the Fourteenth Amendment.
Affirmed.
NOTES
[1]  French v. Frazier's Adm'r, (1832) 7 J.J. Marsh, 425, 432; State v. White, (1846) 7 Ired. 116; Duncan v. Stewart, (1854) 25 Alabama, 408, 414; Moore v. Smith, (1858) 11 Rich. (Law) 569; Jochumsen v. Suffolk Savings Bank, (1861) 3 Allen, 87; Morgan v. Dodge, (1862) 44 N.H. 255, 259; Withers v. Patterson, (1864) 27 Texas, 491, 498; Quidort's Adm'r v. Pergeaux, (1867) 3 C.E. Green, (18 N.J. Eq.) 472, 477; Melia v. Simmons, (1878) 45 Wisconsin, 334, 337; D'Arusment v. Jones, (1880) 4 Lea (72 Tenn.), 251; Devlin v. Commonwealth, (1882) 101 Pa. St. 273; Stevenson v. Superior Court, (1882) 62 California, 60, 65; Thomas v. The People, (1883) 107 Illinois, 517; Perry, Adm'r, v. St. Joseph & W.R. Co., (1883) 29 Kansas, 420, 423; Epping v. Robinson, (1884) 21 Florida, 36, 49; Martin v. Robinson, (1887) 67 Texas, 368; Springer v. Shavender, (1895) 116 N. Car. 12; S.C., 118 N. Car. 33; Carr v. Brown, (1897) 20 R.I. 215; Clapp v. Houg, (1904) 12 N. Dak. 600.
