1.044 KELSO V: BUSH. [191 KELSO V. BUSH. 4-4190 OPinion 'delivered December 23, 1935... 1. CONSTITUTIONAL LAW—VALIDITY OF ACTS.—Statutes are presumed to . be constitutional, and all doubts -must be resolved in favor of their validity. 2. CONSTITUTIONAL LAW—SERVICE ON NONRESIDENT MOTORIST.—Acts 1933, • No. 29, authorizing serVice of process on the Secretary of State. against • nonresident motorists in d'ctions : growing out of any accident or collision in which sUch nonresident •owners may be involved, held not unconstitutional as denying ,due, process or equal protection, since the• act provides for probable actual notice to such motorists. • . • 3. CONSTITUTIONAL LAW-L EQUAL , ileoTEthaoN.—The guaranty 'of equal -protection of'the lativs in th6 Fourteenth • Aniendment does not prevent a State from adjusting its legislation to differences . in situations nor forbid classification to that end, but only 'yequires that such classific i a o t n . .be not arbitrary and be pertinent to the subject of classification. Prohibition to ,Clark , Circuit Court ; p;ter ..13Nsh, Judge ; writ . denied. . . , . . Buzbee, Harrison, Puzbee & W g ri ht, for petitioner. • J. H. 4.-ookadoo and Joseph Callaway, for re, spondent. JOHNSON, C. J. This is an original proceeding in prohibition, instituted by Mrs.- R. M. Kelso against respondent,. Dexter Busb, circuit. judge, to yestrain proceedings in a certain action pending in the Clark County Circuit Court. The pending action 'sought to be restrained .. is for damages for personal injuries sustained in an.autmomobile collision which occurred upon , a State . highway in Clark County and in which petitioner's auto-- mobile participated.
ARK.] 11:ELSO_ v. BUSH.; 1045 Petitioner is a nonresident of the State, and service of process was . had-upon her in the action pending in the Clark County • Circuit Court as •prescribed by .§ La act 39 of 1933. The question presented for consideration in this proceeding is the 'constitutionality .of said act, .Section 1 provides: . . . „ . . • "Section 1. From and after:the passage and-ap,-- proval of this act, the acceptance Aby.a nonresident owner, chauffeur, operator, driver of any motor vehicle, .except such nonresident owners as may have a designated agent, or agents, within this State upon whom valid and binding service of process may be had Under the lawS of this State; of the rights and ,i)rivileges conferred by the lawS of the State of Arkansas te drive or opefnte . or permit or Cause to. be operated or driVen a metor : vehicle Upon the public highways Of said State 'evidenced by his or its operating or cansing or Pernaitting a'. motor vehicle to be operated or driven thereOn Or, the operatiOn . . by "a nonresident oWner or the causing or perinitting by such nonresident Owner of .a motor . vebicle to' 'be operated on such highways in . the State of 'Arkansas' shall be deemed equivalent 'to the appointment by-suell nonresi dent owner whether sta nontesident'oWner be- an indi•- vidual, firm or corporation, of the•Secretary of , the State of Arkansas or his successor in .office.to be the true and lawful attorney and agent of such nonresident: owner • • upon whom may be served all lawful process in any , . action Or proceeding against hini oiagaihst anY. SUCliper-s6n, 'firm or corporation grOwing '64 'of tMY 'accident' Or collision in. Which said nonresident oWtier. or 'any agent, serVant or employee of any such nonresident owner may be involved while Operating 'a motor . vehicle 'on 'such a way, , and said acceptanee or operation Shall 'be a sigr. nification of the agreeMent Of any 'Stich 'PerSon', -firm or corporation which is -so served 'shall ,be . of' the same legal force and validity as if serVed on.sUch person, firm or corporation personally.: . Service of.such process shall . be made by serving a• copy of the process on . the Said Secretary of State, and such service -shall be sufficient servico_upon the nonresident owner, provided that no— tice of such service and a copy Of Ahe,process: are forth-:
1046 KELSO. v. BUSH. [191 with sent by • registered mail by the plaintiff or his attorney to the defendant at his last known address, and the defendant's return • receipt or the affidavit of the plaintiff- or his attorney of compliance herewith are • appended to the writ or process and entered and filed in the office of the clerk of the court wherein said cause is. brought. The court in which the action is pending 'May order such Continuance as may be necessary to afford the defendant or defendants • reasonable opportunity to defend the action." In consideration of the contention urged, it is a cardinal rule of construction that . all legislative enactments are presumed to be constitutional and valid. Patterson V. Temple, 27 Ark. 202 ; Leach v. Smith, 25 Ark. 46. And that all doubts- in reference to the constitutionality of statutes must be resolved in favor of validity. Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 7 ;- Graham v. Nix, 102 Ark: 277, 144 S. W. 214 ; Ark. L. d G. Ry. Co. v. Kennedy, 84 Ark. 364, 105 S. W. 885 ; Duke v. State, 56 Ark. 485, 20 S. W. 600 ; Carson v. St..Francis Levee Dist., 59 Ark. 513, 27 S. W. 590 ; Leep v. Railway Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St. Rep. 109. The first contention is that § 1 denies to petitioner due process of law under the- State and Federal Constitutions. The constitutionality of a State statute almost identical in terms to that Of § 1 of act 39 of 1933 ,was sustained by the Supreme Judicial Court of Massachusetts in Pawloski v. Hess, 253 Mass. 478, 149 N. E. 122, and that it afforded due process of law to the nonresident defendant was sustained by the Supreme Court of the United States in Hess y. Pawioski, .274 U. S. 352, 47 S. Ct. 632. Petitioner, recognizing the force of the opinion just cited, contends that § 1 of act 39, supra, differs from this legislative enactment in that the Massachusetts statute provides that notice to the nonresident defendant must be sent by registered mail and the Arkansas statute re- • quires only that such notice be sent to the "last known address" of such nonresident defendant ; also that the
AnK.] KELO V. Busti. 1047 Massachusetts statute requires the nonresident defend-• ant's return receipt whereas the.Arkansas statute is satisfied with the nonresident defendant's return receipt or the affidavit of the plaintiff or bis attorney of compliance. That this difference of phraseology is of sUbstance we are cited the case of W ye/der v. Pizzuti, 276 U. S. 13, 48 S. Ct. 259. The last-cited ease arose under a statute of New Jersey, and the court there stated the pertinent inquiry to be, " The question made in the - present case is whether a statute making the Secretary of State the person -to receive the process must, in order to be valid, contain:a provision making it reasonably probable that notice of the service on the secretary will be communicated to the nonresident defendant who is sued. Section 232 of the Laws of 1924 makes no such requirethent, and welave not been shown anY provision in any applicable statute . of the State of New Jersey requiring such communication." The court then disposed of the inquiry by saying : "We think that a law with the effect of this one should make a reasonable proviSion for . such probable . communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a nonresident in using the highways of another State may be properly declared to be an agreement to accept service of summons in h. suit growing out of the use of the highway by the owner, but the enforced acceptance of the service of -process on a State officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice. Otherwise, where the service of summons is limited .to a service on the Secretary of State or some officer of the . State,.without more, it will be entirely po s. sible for a person injured to sue any nonresident he chooses, and through service upon the State official obtain a default judgment against a nonresident who had never been in the State, who had nothing to do with the accident,.or whose automobile having been in the State has never injured anybody. "
1048 KELSO v. BUSH. [191 The language of the opinion quoted does not justify petitioner's position that an enactment which does not require a receipt -from the nonresident defendant does not afford due process of law. 'AF; we view, the opinion, the pertinent inquiry is : does . the enactment require "such written communication so as to make it reasonably probable that he (the nonresident defendant) will receive actual notice" of the pendency of the suit? In other words if actual notice to the nonresident defendant is provided for with •reasonable certainty in the enactment, it will suffice to afford due process. This conclusion is made certain when We consider other language in the opinion where the court was considering the sufficiency of all 'legislation imposed against all nonresident automobile owners as follows : "Every statute of this kind therefore should require the :plaintiff bringing the suit to shOw in the sUmmons to .be served, the postoffice or residence . of the defendant being sued, and should impoSe either on the plaintiff himself or upon the official receiving service or some other, the . duty of communication bY mail or otherwiSe with the defendant." This language,in Our opinion, demonstrates that the court did not intend . to restrict all State legislation against nonresident own6rs of automobiles operated op the highways of the respective . States to such only as might sign a receipt showing actual knowledge . of the pendency of the suit, but that such actual knowledge or notice. might be shown by such receipt or by written communication transmitted . by 'the plaintiff in the suit or by some other method equally effectual. It must be remembered that the New Jersey Act condemned by the court provided no method or means by which actual notice was required to the nonresident car owners, and in thi respect act 39 of 1933 is substanially and materially different. In act 39 of 1983 the evidence of actual notice to the nonresident car owner is expressly provided for either by the receipt of the car owner or by the written affidavit of the . plaintiff or his attorney of record. Admittedly the notice provided for in act 39 of 1933 may be sent to the last known address of the nonresident car owner, but this does not militate against
ARK.] KELSO V. Busa. 1040 actual notice to him. It is a rule of uniVersal application that, when a: letter addressed to the last known address of a persoh, properly stamped, is not returned in response to a return direction; it is presumed that-it was received by the addressee.. See 22 C,, J.; p. 101., .§ 43, and cases cited in note 35. The Supreme Coart of New Hampshire in Poti v. New Elkolaud Road Machivory Co., 83 N. II. 232, 440 A. 587, approved and .beld, constitutional against •constitutional attack a statute almost identical with § 1 of . act 39 of 1933: The court in the body of the opinion states the substance of. this act as follows : "that, a nonresident's operation of a motor vehicle on any highwaY within the State shall be deemed equivalent to- the appointment .of the commissioner of motor, Vehicles„as his, agent, upon, whom may be served process in any action arising out of any accident in which he may be involved , while tbus operating Ms motor, vehicle,, and that sach opOration nifies his agreement that such process so served -shall amount to personal service on him within the State,. pro,. vided the commissioner mails him notice of it." It will be especially observed that the New Hampshire statutes only require that the notice of the pendency of the suit be mailed to the nonresident car owner defendant, whereas our statute requires either a return . receipt from the.nonresident car owner defendant or an affidavit of the.plaintiff or his attorhey showing. that such notice has,•been forthwith sent by' registered mail to such • nonresident owner, or to bis last known place of address. • • • • Under a Pennsylvania : statute substantially ,similar to the Massachusetts statute and More hearly• identical with § 1 of act 39 of 1.933 in that it direeted :notice of the pendency of the.suit to the. `,`last known: address" of the nonresident car owaer •defendant, the, Federal district court of Pennsylvania. in Carr. v. Tennis', 4 F. Sapp , : 142, held the statute valid• as -against cmistitutional attack grounded 'upon denial of..due process.. The third . head- • note of the opinion reads:: statute. authorizing service on nonresident motor vehicle owners in accident cases by serving secretary of revenue and _sending a copy of process to defendant's. last known address. by
1050 KELSO V. BUSH. [191 registered mail held not denial of due process (75PS., Pa., § 1201 et seq.; Const. Amend. 14)." A statute of Minnesota almost identical in terms with the Pennsylvania. and Arkansas statutes was held- valid against constitutional attack in Jones v. Paxton, 27 F. (2d) 364. The subject under consideration and related subjects are exhaustively treated in the case notes appended to State v. Davison, 96 A. L. R. 589, and the curious are referred thereto. • 'We conclude that § 1 of act 39 of 1933 provides for probable actual notice to nonresident car . owner defendants of pending suits in this • State, and therefore does not deny to such defendants due process of law under State or Federal Constitutions. Next petitioner urges that § 2 of said act, which confers upon any of the courts of this State, where service of process is obtained in the manner provided in § 1 of said act, is repugnant to the equal protection afforded by the Fourteenth Amendment to the Constitution of the United States. 'Powers Manufacturing Co. v. Saun-ders, 274 U. S. 490, 47 S. Ct. 678, is cited as decisive of this contention. In the case last cited this court and the Supreme Court of the United States were dealing with a foreign corporation doing business in this State by express statutory authority. In conformity to and compliance with State law, the appellant designated an agent at Stuttgart in Arkansas County for , service of legal process and its principal and only place of business in this State was there located. The suit was instituted at Benton in Saline County against said foreign corporation and service of process was had in Arkansas County. To justify this service of process in the litigation, § 1829 of Craw-ford & Moses ' Digest, as then existing was relied upon. This statute* provided for the service of process upon the designated agent of the foreign corporation and after such service conferred jurisdiction upon any court of the State to try and determine the controversy. At that time State statutes did not permit domestic corporations to be sued in. a county in which it did no business and had
ARK.] KELSO v. Bust" 1051 no office, officer or agent, neither did State statutes permit a natural person to be sued in a county in which he did not reside or was not found for service of process. State-wide venue against foreign corporation as conferred by § 1829 of Crawford & Moses' Digest was condemned because arbitrary and unreasonable when applied against foreign corporation doing business in this State upon the theory that natural persous and domestic corporations were not similarly burdened. . The difference between petitioner's status and that of appellant in Powers Manufacturing Company v. Sawnders, supra, is that petitioner has no place of business or domicile in this State at which to fix local venue or by which to compare her status with that of a domestic corporation or a natural person, and we believe that this difference is substantial . and controlling. Petitioper by entry into this State driving an automobile. upon its highways impliedly consented that she might be sued in any of the courts pf this State as prescribed by act 39, supra, and, since she occupied no status localizing venue, as applied to domestic corporations or natural persons domiciled here, she is not denied equal protection of the law as prescribed by the Fourteenth Amendment to the Constitution of the United States. . Tbe Fourteenth Amendment to . the United States Constitution, as construed bY the Supreme Court 'of the United States, does not prevent or restrict a State from adjusting its legislation to differences in situations, neither does it forbid classification to that end, but only requires that such classification be not arbitrary. •Traux v. Corriga,n, 274 U. S. 337, 42 S. Ct. 124; Gulf, Colo. & Sante Fe Ry. Co. v. Ellis, 271 U. S.'155, 17 S. Ct..255; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337. The necessary requirement is that the classification be pertinent to the subject of classificatiOn. ‘ As we have heretofore pointed out, petitioner 'does not oecupy the status of a foreign corporation doing business in this State with a local domicile or place of business, and she does not occupy the status of a domestic corporation or natural person domiciled in this State, therefore she is subject to a separate classification as to venue in the
1052 KET. O V. BUSH. [191 courts of . this State, and such classification does not offend against the Fourteenth Amendment or deny her equal protection of the law, as it is . not arbitrary or without substance. Moreover, venue statutes of the Commonwealth of Massachusetts in force at the time of the rendition of the opinion in Hess v. Pawloski; supt'a, required that all transitory actions against residents of that State shoukl be brought and maintained in the county . where one of the parties lives or . has his usual place of business or where one of the defendants lives or has his usual place of business or by actual service of •process upon a nonresident defendant. See chapter 223, volume 2, Massachusetts General Laws of 1932. The constitutional question Whether the MassachnSetts .statute approved by the Supreme Court of the United States in the case referred to, supra,: offended' against the Fourteenth Amendinent by denying equal protection of the law' to the nonresident car . owner 'defendants raised itself in 'said 'litigation and the court, bY approving the statute as otherwise constitutional and valid, iinpliedly determined that it did not Offend 'the Fourteenth Amendment. At lea st;. this is a cogent circumstance tending to 'show that the court did not conceive the question of vital importance. The reaSoning heretofore set out is applicable to and disposes of petitioner's contention that act 39 of 1933 is' violative of § 18 of art. 2 of the Constitution of Arkansas. See also Siaie :17 . Johnson, 172 Ark. 866, 291 S. W. 89... We conclude, therefore, that act 39 of 1933 is consti-. tntionar and valid, and that the Service of process upon petitioner in confOrmity therewith gave . 'to - the circuit court of Clark . County juriSdiction over the .person of. the petitioner, and for these reasons the writ of ProhibitiOn will be denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.