CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1911

BLINN, RECEIVER OF ALLEN, AN ABSENTEE, v. NELSON.

ERROR TO THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS.

No. 5. Argued April 10, 1911.-Decided October 23, 1911.

A state statute of limitations allowing only a little more than a year for the institution of a suit to recover his personal property by a party who has not been heard from for fourteen years and for whose property a receiver has been appointed is not unconstitutional as depriving him of his property without due process of law; and so held as to the provisions to that effect of the Revised Laws of Massachusetts, c. 144, for distribution of estates of persons not heard of for fourteen years and presumably dead.

Constitutional law, like other mortal contrivances, has to take some chances of occasionally inflicting injustice in extraordinary cases. 197 Massachusetts, 279, affirmed.

THE facts are stated in the opinion.

Mr. George R. Blinn, receiver, plaintiff in error, pro se, submitted:

Even if the statute is constitutional as to provisions

VOL. CCXXII-1

(1)

Argument for Plaintiff in Error.

222 U.S.

for receivership and care of property of an absentee under Cunnius v. Reading School District, 198 U. S. 458, it is unconstitutional as to the provisions barring the absentee from recovering property after the expiration of fourteen years from the disappearance; the provisions as to the disposition of such property are unconstitutional, in that the notice which is required as the prerequisite to the proceedings is inadequate; the safeguards affecting the rights of the absentee in the distribution of the property are inadequate; and the time within which distribution may be made is arbitrary and unreasonable.

The statute, which is the subject of construction in this case, is different in many essentials from the Pennsylvania statute sustained in Cunnius v. Reading School District, supra.

A minimum constructive notice of thirty days is all that is required by the Massachusetts statute-only onefifth as long as the notice required by the Pennsylvania statute.

The rights of absentees are not properly safeguarded by the Massachusetts statute in case of a distribution. They are absolutely barred at the expiration of fourteen years from the date of disappearance or at the expiration of one year after the appointment of a receiver in the event that such appointment is made more than thirteen years after the date of disappearance. The Pennsylvania statute leaves a discretion with the court which may carefully protect the rights of the absentee regardless of length of absence.

The Massachusetts statute can only be defended as a statute of limitations, and if the time within which the statute is to take effect is unreasonably short, it is unconstitutional. The consideration of what constitutes a reasonable or unreasonable length of time for such a statute to operate depends upon the circumstances of the class

222 U.S.

Argument for Defendants in Error.

of cases which it affects. The time which is reasonable for one class of cases may be unreasonable for another class of cases and all classes of cases may be affected in times of a public emergency, Am. Land Co. v. Zeiss, 219 U. S. 47; Wilson v. Iseminger, 185 U. S. 55; in that event it would not be a statute of limitations but an unlawful attempt to arbitrarily extinguish rights. Sturges v. Crowninshield, 4 Wheat. 122, 207; In re Brown, 135 U. S. 701, 707.

The time within which distribution may be made is arbitrary and unreasonable. That portion of the statute which provides for the distribution of the property of an absentee is unconstitutional and void, because it operates as a statute of limitations, the time of which is unreasonably short and is measured by the wrong standard, to wit: the duration of the absence instead of the duration of the abandonment of the property to be distributed. Although that part of the statute providing for final distribution of the property is void, the provisions for appointment of the receiver and care and management of the property, etc., are valid. These two parts are entirely distinct and separable, and in no way dependent upon each other. Each part might well have been enacted alone without any provision for distribution. Commonwealth v. Hitchings, 5 Gray, 482, 485; Commonwealth v. Petranich, 183 Massachusetts, 217, 220; Edwards v. Bruorton, 185 Massachusetts, 529, 530; Commonwealth v. Anselvich, 186 Massachusetts, 376, 379; Commonwealth v. Cadwell, 190 Massachusetts, 355, 358; Cooley's Const. Lim. (7th ed.), p. 246, etc.

Mr. Amos L. Taylor, with whom Mr. Hollis R. Bailey was on the brief, for defendants in error:

All the provisions of the statute as to receivership and care of property are constitutional. Cunnius v. Reading School District, 198 U. S. 458; Nelson v. Blinn, 197 Mas

Argument for Defendants in Error.

222 U.S.

sachusetts, 279; Attorney General v. Provident Institution, 201 Massachusetts, 23.

The provisions of the statute as to final distribution after fourteen years are also constitutional.

The only material difference between the Pennsylvania statute and the Massachusetts statute is that the former seems to leave the matter of final distribution to the discretion of the court and provides for security for its repayment unless the court decrees its ultimate distribution to the persons entitled thereto, while the latter statute provides that the property shall never be repaid after the expiration of fourteen years and creates a new statute of limitations.

It is within the power of a State to enact reasonable statutes of limitations and establish a time after which no action can be brought. This power is legislative and not judicial. Am. Land Co. v. Zeiss, 219 U. S. 47, 70; Kentucky Union Co. v. Kentucky, 219 U. S. 156; Missouri v. Illinois, 200 U. S. 496; Davis v. Mills, 194 U. S. 451; Soper v. Lawrence Bros. Co., 201 U. S. 359, aff'g 98 Maine, 268; Tioga Railroad v. Blossburg & Corning Railroad, 20 Wall. 137, 150; Metcalf v. Watertown, 153 U. S. 671. For specific instances, see McElmoyle v. Cohen, 13 Pet. 312, 327 (five years allowed); Wheeler v. Jackson, 137 U. S. 245 (six months allowed); Turner v. New York, 168 U. S. 90, aff'g 145 N. Y. 451 (six months allowed). See also Saranac Land & Timber Co. v. New York, 177 U. S. 318; Terry v. Anderson, 95 U. S. 628 (nine months and seven days allowed); Jackson v. Lamphire, 3 Pet. 280 (two years allowed); Sohn v. Waterson, 17 Wall. 596 (two years allowed); Hawkins v. Barney, 5 Pet. 456, holding Kentucky's Seven Years' Possession Law valid.

Local conditions must govern.

The fact that there may be a distribution one year after the appointment of a receiver is not unreasonable, especially when taken in connection with the absence of