McCarter v. McKelvey.

78 N. J. L.

formant as supporting his contention is Barker v. People, 3 Cow. 686. The question in that case was whether a statute for the suppression of duelling, which provided, as a punishment for sending a challenge, that the person so sending should, on conviction, be disqualified from holding public office, was constitutional. In the discussion contained in the opinion delivered by Chancellor Sanford it is declared that eligibility to office belongs equally to all persons whomsoever not excluded by the constitution; that the legislature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications which the constitution has not required. The explanation of this expression of view to be found in the later case of Rogers v. Buffalo, 123 N. Y. 173, makes it plain that it affords no support for the contention made by the attorney-general. Rogers v. Buffalo involved the question of the constitutionality of a statute very similar in its scope to those now before us. The conclusion reached by the New York Court of Appeals was that it was not unconstitutional because it contained a provision similar to that which we are now considering. Discussing the expression which has been quoted from the case of Barker v. People, Mr. Justice Peckham, who delivered the opinion, speaks as follows: "What the Chancellor meant by such expressions is rendered clear by the examples he gives. Legislation would be an infringement upon the constitution, he thought, which should enact that all physicians, or all persons of a particular religious sect should be ineligible to hold office, or that all persons not possessing a certain amount of property should be excluded, or that a member of assembly must be a freeholder, or any such regulation. But, in our judgment, legislation which creates a board of commissioners consisting of two or more persons, and which provides that not more than a certain proportion of the whole number of commissioners shall be taken from one party, does not amount to an arbitrary exclusion from office, nor a general regulation requiring qualifications not mentioned in the constitution. The 'qualifications' which were in the mind of the learned Chancellor were obviously

those which were, as he said, arbitrary, such as to exclude certain persons from eligibility under any circumstances. Thus a regulation excluding all physicians would be arbitrary. But would a regulation which created a board of health, and provided that not more than one physician from any particular school, or none but a physician, should be appointed thereon, be arbitrary or unconstitutional as an illegal exclusion from office? I think not. The purpose of the statute must be looked at and the practical results flowing from its enforcement. If it be obvious that its purpose is not to arbitrarily exclude any citizen of the state, but to provide that there shall be more than one party or interest represented, and if its provisions are apt for such purpose, it will be difficult to say what constitutional provision is violated, or wherein its spirit is set at naught."

We concur in the view expressed in Rogers v. Buffalo that a statute, the purpose of which is to secure the appointment of persons who are not all of the same political views, and thus provide for a representation in the body so appointed, of different and probably conflicting interests in the municipality, does not, because it carries such a purpose into execution, violate either the letter or the spirit of the constitution by reason of the fact that it prohibits the appointment to the board which it creates of more than a certain proportion of members of the same political party, and are entirely content to rest this conclusion upon the reasoning of Mr. Justice Peckham in the very elaborate and able opinion from which we have quoted.

The defendants are entitled to judgment upon their respective demurrers.

Patterson v. Taylor.

78 N. J. L.

MARTHA B. PATTERSON v. THOMAS H. TAYLOR.

Argued February 16, 1909-Decided June 14, 1909.

1. In an action upon a judgment recovered in a sister state the following facts appeared: (1) By a statute of that state the sheriff was required to make personal service of original process when that could be made by a reasonable effort, and a substituted service was permitted only when personal service could not be so made. (2) That the return to the writ showed a substituted service. but did not disclose that personal service could not have been made with reasonable effort. (3) That the return of the sheriff was not, under the law of that state. conclusive, but that the truth thereof could be inquired into by the court. (4) That the judgment record contained the following recital: "This case coming on to be heard the court finds that there was due and legal personal service upon the defendant."

2. Assuming that the return to the writ did not show that the court had obtained jurisdiction of the person of the defendant, because it contained no recital of a reasonable effort on the part of the sheriff to make personal service-Held, that the jurisdiction of the court did not depend upon the exhibition in the sheriff's return of a compliance with the statute, but upon the fact of such compliance. Held, further, that the recited statement in the judgment showed an investigation by the court into the method of service, and an adjudication by it that the service was in fact a personal and not a substituted one, and so, in compliance with the statutory requirement.

Case certified from Essex Circuit Court.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER.

For the plaintiff, Simeon H. Rollinson.

For the defendant, Alfred F. Skinner, and Herbert Noble and Massey Holmes of the New York bar.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. This action is brought to recover the amount alleged to be due upon five several judg

ments recovered by the Rochester Loan and Banking Company against the defendant and others in one of the County District Courts of the State of Nebraska, a court of general jurisdiction. The plaintiff is the holder of these judgments by assignment from the Loan and Banking company. In each of the Nebraska suits the sheriff's return of the original process showed a service upon the defendant Taylor by leaving a true and duly certified copy of the writ at his usual place of residence, but did not show that any effort had been made to serve him personally. The Nebraska statute relating to the service of process provides that "The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day," and that "In all cases the return must state the time and manner of service."

At the trial of the present cause it was contended on the part of the defendant that the Nebraska statute above set forth contemplates and requires a personal service, if the same can be secured by a reasonable effort, and that a substitutionary service can be justified only after such reasonable effort has been made; and, further, that in order for the Nebraska courts to have obtained jurisdiction over the defendant (he not having voluntarily appeared) it was essential that the return should show that the sheriff made reasonable effort to secure a personal service, and that the failure of his return to show that such reasonable effort was made left the Nebraska court without jurisdiction of the person of the defendant. The trial court being in doubt as to the soundness of these contentions has certified them to us for our advisory opinion.

Assuming that, by force of the Nebraska statute, there must be a personal service of process if it can be made by reasonable effort, we are of opinion that the existence of jurisdiction in the Nebraska court did not depend upon the exhibition in the sheriff's return of a compliance by him with the statutory requirement, but, rather, upon the fact whether or not the service had in truth been made in the manner directed by the statute. We base this conclusion upon the decision of

the Supreme Court of Nebraska in the case of Holliday v. Brown, 33 Neb. 657. In that case the return of the sheriff showed a personal service upon the defendant. The truth of this return was challenged, and it was shown by the sheriff's own testimony that, instead of making a personal service upon the defendant, he handed the copy of the summons to the defendant's husband, who was engaged at work in the yard in front of her residence, although the defendant herself was at that time in the house and visible to the sheriff through a window. The Nebraska court held the service void. It is manifest from this decision that, under the Nebraska law, the return of a sheriff endorsed upon a summons is not conclusive of the manner of service, but is open to challenge; and that the court out of which the writ issues has full power to investigate the truth of the return, and determine from evidence, ab extra, whether or not it was, in fact, served in such a manner as to confer jurisdiction of the defendant upon the court.

In the several cases in which the judgments, which are the foundation of the present action, were rendered, this power would seem to have been exercised by the court, for the judgment record in each case contains the following recital: "This cause coming on to be heard the court finds that there was due and legal personal service upon Thomas H. Taylor." As we read this excerpt it contains, by necessary implication, a statement that the actual method of service upon the defendant was made a subject of judicial investigation by the court, and an express adjudication that such service was made upon him personally, and not by leaving a copy of the writ at his usual place of residence as was stated in the sheriff's return. The effect of this adjudication is to overthrow the return, so far as it relates to the manner of service, to establish the fact that personal service was made upon the defendant, and, consequently, that he was legally brought into court in the manner prescribed by the Nebraska statute.

It is argued on behalf of the defendant that the view which we have expressed as to the effect of the recital in these judgments is opposed to that expressed by the Supreme Court