(dissenting). — This case is so important in its results that, while I am not prepared to dissent from the final conclusion in so far as this particular case is concerned, I am very doubtful about the argument used in support of the opinion and fearful of the results which may follow. The majority hold that in no case can an absent defendant be brought into court and personal judgment rendered against him, no-matter what his residence or domicile. Again, the majority hold, as I understand it, that an original notice under our practice is in the nature of -process, and that it is of no efficacy if served outside the state. If this be true, then service outside the state is of no efficacy whatever, even where the court has jurisdiction of the res. In such cases some sort of notice to the defendant must be given to constitute due process of law, and if the majority opinion is to prevail, no judgment heretofore rendered in attachment, divorce, and other .proceedings in rent, where service was made outside the state, is of any validity, for process outside the state is ineffective for any- purpose whatever. We have several times held that an original notice is not a process of court. Nichols v. Burlington Road Co., 4 G. Greene, 42.; Klingel v. Palmer, 42 Iowa, 166. If this be not true, then it follows that there can never be personal service of notice without the state. I am aware that as a matter of first impression nearly every lawyer will say that no personal judgment can be rendered upon service by publication, or any other form of constructive service, and such - w*as my view when the case was first stated; but in' looking up the authorities I found it' necessary to modify my views, and I am now of opinion that the majority are carrying the rule too far and that there is no necessity for déclaring'three "separate statutes of *534this state, some of which have been in effect for more than fifty years, unconstitutional and void. The majority will concede, I think, that the opinion adopted by them entirely nullifies and renders void paragraph 7 of section 3534, sections 3537 and 3800, of the Code. These sections read as follows:
“Service may be made by publication, when an affidavit is filed that personal service can not be made on the defendant, within this state, in either of the following cases:
“7. In all actions where the defendant, being a resident of the state, has departed therefrom, or from the county of his residence,' with intent to delay or defraud his creditors, or to avoid the service of a notice, or keeps himself concealed therein with like intent.” Code, section 3534.
“Actual personal service of the notice within or without the state supersedes the necessity of publication.” Code, section 3537.
“No personal judgment shall be rendered against a defendant served by publication 'only who has not made an appearance; but a personal judgment may be rendered against a defendant whether he appears or not, who has been served in any mode provided in this Code other than by publication, whether • served within or without this state, if such defendant is a resident of the state.” Code, section 3800.
Courts should hesitate long before declaring any statute unconstitutional. Such power is a delicate one and should never be exercised, except where no doubt exists as to the excess of legislative authority. The simple question, as 1 view it, is this: Can the Legislature provide for constructive or substituted service of notice upon a resident of this state, who is temporarily absent therefrom, of a purely personal action? With the “full faith and credit” clause of the federal Constitution (article 4) *535we have nothing to do at this time. The only question is, Is it competent for the Legislature to provide for constructive or substituted service of notice upon a resident of the state, who is temporarily absent, of purely personal actions? If it may, then there is due process of law, and the majority are wrong in their conclusions. My doubts of the correctness of the majority opinion first arose when I called to mind the rule everywhere prevailing that the state has plenary power to prescribe how its citizens and residents shall be brought into its courts. It may undoubtedly provide for posting of notices, notice by registered letter, notice by publication, or other form of constructive service upon residents of. the jurisdiction. It may also provide for substituted service upon both residents and nonresidents, and as to residents such service is good, although the person to whom the notice is addressed may be temporarily absent from the state. The reason for this is that every subject or citizen of a country where legal proceedings are instituted owes allegiance to his country and submission to its laws. He impliedly consents to be bound by its laws so long as he remains a citizen and resident, and when, the state enacts a statute with reference to procedure every citizen of necessity consents thereto, and no matter where he may be does not change that assent until he renounces his former allegiance and in fact becomes a nonresident. These principles are, I think, fundamental. See McCauley D. Fulton, 44 Cal. 355; U. S. Trust Co. v. Ins. Co., 18 N. Y. 199; Barkman v. Hopkins, 11 Ark. 157; Betancourt v. Eberlin, 71 Ala. 461; Fleming v. West, 98 Ga. 778 (27 S. E. 157) ; Bickerdike v. Allen, 157 Ill. 95 (41 N. E. 740, 29 L. R. A. 782) ; Bardwell v. Anderson, 44 Minn. 97 (46 N. W. 315, 9 L. R. A. 152, 20 Am. St. Rep. 547),; Hunt v. Hunt, 72 N. Y. 217 (28 Am. Rep. 129) ; Sturgis v. Fay, 16 Neb. 429 (79 Am. Dec. 440) ; Hamill v. Talbott, 72 Mo. App. 22; Henderson v. Staniford, 105 Mass. *536504 (7 Am. Rep. 551) ; Martin v. Burns, 80 Tex. 676 (16 S. W. 1072) ; In re Denick, 92 Hun 161 (36 N. Y. Supp. 518); Ouseley v. Lehigh Valley Co. (C. C.) 84 Red. 602; Hinckley v. Kettle River Co., 70 Minn. 105 (72 N. W. 835); Bernhardt v. Brown, 118 N. C. 700 (24 S. E. 527, 36 L. R. A. 402) ; Cassidy v. Leitch, 2 Abb. N. C. (N. Y.) 315.
We have affirmed this doctrine in Lyman v. Plummer, 75 Iowa, 353, and Johnson v. Board, 148 Iowa, 539, recently decided by this court, and it is so fundamental that I need not take the time to cite other authorities. • Following this doctrine to its final conclusion it has been held in many cases that constructive or substituted service of notice upon a citizen and resident is sufficient basis for a personal judgment and constitutes due process of law, although at the time of service the defendant was temporarily out of the state. See Botna Valley Bank v. Silver City Bank, 87 Iowa, 479; Knowles v. Gaslight Co., 86 U. S. 58 (22 L. Ed. 70); Galvin v. Dailey, 109 Iowa, 332; Beard v. Beard, 21 Ind. 321; Thouvenin v. Rodrigues, 24 Tex. 468; Buford v. Kirkpatrick, 13 Ark. 33; Nunn v. Sturges, 22 Ark. 389; Mitchell v. Garrett, 5 Houst. (Del.) 34; Huntley v. Baker, 33 Hun (N. Y.) 578; Fernandez v. Casey (decided May 27, 1890) 77 Tex. 452 (14 S. W. 149) ; Harryman v. Roberts, 52 Md. 64.
The distinction between constructive and substituted service' upon residents and nonresidents is very fundamental. -In the one case the resident consents to the state law; is subject to-the jurisdiction of the. state and amenable to its laws, especially those relating to service of process. It becomes important then to determine what is due process of law. In settling this inquiry we should assume, .1 think, that if, before the adoption of the Constitution or before the adoption of the fourteenth amendment, we find that ■• personal judgment might have been *537rendered upon constructive or substituted service of notice upon a resident of a state or country while temporarily absent therefrom, and such judgment were regarded as binding not only by our own courts, but by the courts of England from time immemorial, then such service should be regarded as due process of law. With this in mind I have gone to the English cases and find that the English courts have sustained what were called the Scotch horning judgments, as in Douglass v. Forrest, 4 Brigh. 686, 1 Moore &*P. 663. That decision was pronounced in the year 1828. Again, in Becquet v. McCarthy, 2 Barn. & ’Ad. 951, decided in 1831,'the English court held: “That a law of a British colony requiring that in a suit instituted against an. absent.' party the process should be served upon the king’s attorney ‘general in the colony, it not being expressly provided that the attorney general should communicate with the absent defendant, was not so contrary to natural justice as to render void a judgment obtained against a party who had resided within the jurisdiction of the court at the time when the cause of action accrued, but had withdrawn ■ himself before the proceedings were commenced.”
In Schibsby v. Westenholz, L. R. 6 Q. B. 155 (24 T. N. S. 93, 19 Week. Rep. 58), the court said: “If the defendants had been at the time of the judgment subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the 'country, so as to-have the benefit of its laws protecting them, or as it is sometimes expressed, owing temporary allegiance to that country, we think that 'its laws would have bound them. If at the time when the obligation was contracted the defendants were within the .foreign country, but left it before the suit was instituted, we should be inclined to think the laws 'of that country bound them.” *538See, also, as . directly in point, Vallee v. Dumergue, 4 Exch. 290; Chopin v. Adamson, L. R. 9 Exch. 345; Bank of Australia v. Mas, 16 Q. C. 717 (15 Jur. 967).
In Chopin's case the court said: “It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.” This was said in a case where the matter of enforcing a French judgment was involved. In that case judgment had been rendered by a French court against a shareholder of a French company who was not a resident of nor domiciled in France, on process served in the manner prescribed by a French statute.
In' Bernhardt v. Brown, 118 N. C. 700 (24 S. E. 527, 36 L. R. A. 402), the Supreme Court of North Carolina said: “There can be no question that the state has the right to prescribe that service upon parties residing here can be made by publication when such parties can not, after due diligence, be found, not only in those cases in which it can be averred by affidavit that they have departed this state, or have concealed themselves herein, with intent to defraud creditors or avoid service of summons, but also in cases where such intent can not be averred.” See, also, cases cited in 2 Freeman on Judgments, section 589.
The Supreme Court of the United States has recognized the same doctrine in_ Grover Machine Co. v. Radcliffe, 137 U. S. 287 (11 Sup. Ct. 92, 34 L. Ed. 670). And upon the authority of that case a federal district court held a judgment against an absent defendant on constructive service good. See DuPont v. Abel (C. C.) 81 Fed. 534. I am also of opinion that the same doctrine is announced in York v. State of Texas, 137 U. S. 15 (11 Sup. Ct. 9, 34 L. Ed. 604). Sée, also, Mexican R. R. *539v. Pinkney, 149 U. S. 203 (13 Sup. Ct. 859, 37 L. Ed. 699); Kirkpatick v. Post, 53 N. J. Eq. 591 (32 Atl. 267) ; Goldey v. News Co., 156 U. S. 521 (15 Sup. Ct. 559, 39 L. Ed. 517). I admit; of course, that the mode of service upon absent citizens and residents must be reasonable and appropriate to the case, as is said in Betancourt v. Eberlin, 71 Ala. 461, and Harryman v. Roberts, 52 Md. 65. But if it is, then a judgment on constructive service against a citizen and resident, although at the time temporarily absent from the state, is due process of law. Hinckley v. Railroad Co., 70 Minn. 105 (72 N. W. 835) ; Bimeler v. Dawson, 5 Ill. 536 (39 Am. Dec. 430) ; Bickerdike v. Allen, 157 Ill. 95 (41 N. E. 740, 29 L. R. A. 782).
Going to the text-books, I find that there is perfect unanimity of opinion upon this matter. Mr. Ereeman, in the fourth edition of his work on Judgments, says (section 570) : “In relation to the extraterritorial effect of a judgment procured against a person in the state of his domicile, in an action in which he entered no appearance; and in which the process was served constructively, in accordance with the laws of the state, radical and irreconcilable differences of opinion exist. In one case the court said: ‘We will treat the judgment not as void, nor as conclusive, but simply as prima facie.’ This is a kind of middle ground, or compromise treatment of the question; and, like most compromises, is probably less defensible, upon principle, than either of the extremes between which it is placed. The position, however, which seems to be the best sustained, both by reason and by precedents, is that each state has the authority to provide the means by which its own citizens may be brought before its court; that the courts of other states have no authority to disregard the means thus provided; and finally, that every judgment or decree obtained in a state against some of its citizens, by virtue of a lawful, though eon*540structive, service of process, should - be as obligatory upon such citizens in every other state as it is in the state whence it is taken. Nor is it destructive of the extraterritorial effect of a judgment based on constructive service that the defendant, being a citizen of the state, was temporarily absent therefrom. It is sufficient that he was, at the time, subject to the laws of the state and to the territorial authority of the court. Thus in a recent Massachusetts case, in which a judgment rendered in California was called in question, Wells, J., delivering the opinion of the Supreme Judicial Court, said: “The defendant was not in California when the suit was commenced against him there, nor at any time during its pendence. No service of process or notice was ever made upon him personally. He ' did not appear by counsel, or otherwise, nor assent to the judgment, which was rendered upon his default of appearance. But’he had been for a long time before that a citizen of California; the contract was made there; and that continued to be his legal domicile when the judgment was rendered. He was therefore, upon principles of international right, subject to the laws and to the jurisdiction of the courts of that state.” And in section 127, he says: “The service of process need not be personal. To require it to be personal in all instances would be to deny justice in all cases where the party from whom it was due absented or concealed himself, or otherwise eluded the agents of the law. Each state may, doubtless, provide the mode in which the process of its courts may be served, provided the parties against whom it issues are not deprived of (an opportunity to be heard respecting the justice of the judgment sought.’ Therefore citizens and residents of' a state may, if its laws so provide, be served with -process by the publication thereof, or by leaving it at their usual place of abode, or in such other mode as the Legisláture deems proper- under the circumstances of the ’ case, - if it' appears- "probable that - it will advise’ *541them of the proceedings against them and afford them an opportunity to defend. It is true that on such service no personal judgment can be rendered against one not a citizen or a resident of the state; but this result does not follow from the mode of serving process, but from the fact that he is not personally within the jurisdiction of the state, 'and can not by any means be required to appear in the courts.”
Mr. Black, in his work on Judgments, says, (section 227) : “It is a principle of law, too well settled to require the citation of authorities in its support, that the sovereignty of a state or country, for the. judicial as well as other purposes, extends only to its own citizens, or resident aliens, or persons temporarily within its borders, and to property within its territory, but not to absent nonresidents. In many of our states, .however, there' are statutes authorizing the commencement of certain classes of - actions by a merely constructive service of process, and these acts apply almost exclusively to proceedings against nonresidents. The validity of judgments rendered under them has been much in question before the courts, and principally in cases where a judgment so given in one state has been sought 'to be enforced in another. This aspect of the subject will be fully considered in fhe chapter on judgments of a sister state, to which the reader is referred. But there are certain divisions of the topic which must be. treatéd in this connection. And first, -a distinction must be carefully noted between the jurisdiction over the state’s own citizens and that over aliens. Every sovereignty has plenary control over its own subjects, and it may authorize a judgment to be rendered against one of its citizens, upon a constructive notice only, and although he is temporarily absent from its dominions, and such a judgment must be everywhere recognized as valid and of binding force and effect. This much being premised, the contrary rule may be stated, viz., that a personal judgment (as *542distinguished from an adjudication upon status or an adjudication which is substantially in rem) rendered against a nonresident upon a species of contractive service only, in an action to which he did not appear, is limited in its effects to the state or country where rendered, and elsewhere is a mere nullity. For example, while tax assessments may be enforced against the property liable, without regard to the residence of the owner, yet a statute attempting to make a nonresident property owner personally liable for assessments for local improvements is an attempt to take property without due process of law, and a personal judgment against such owner would be void. Again, in a suit to foreclose a mortgage or vendor’s lien, where the defendant is a nonresident and is cited by publication only and does not enter an appearance, the court has no jurisdiction to render a personal judgment against him. And where, in an action for the specific performance of a contract for the conveyance of lands, defendant is served only by publication, the plaintiff can not recover damages for breach of the contract. Nor can a personal judgment for costs he rendered in an action for partition, as against nonresidents who were not served with process, except constructively, and who did not voluntarily appear. But if a nonresident defendant, being within the state, is there personally served with process, or if he appears in the action hy a duly authorized attorney, in either case the court has jurisdiction over him and the subsequent judgment is universally to be regarded as valid.” Section 907: ■ “Each state has the right to prescribe by law how its citizens shall be brought into its court. And whatever conflict there may he in some of the earlier cases on the subject, we think it is now well settled that if process be served upon the defendant according to the laws of the state of which he is a resident, and judgment be afterwards rendered against him, such a judgment is as binding between the parties, in this state, when relied on as a bar to the *543prosecution of a second suit, upon- the same cause of action, as it is in the state where it was rendered.” Consequently, if the defendant was subject to the jurisdiction of the state where the action was brought, and process was served upon him in accordance with its laws, as, by leaving a copy of the summons at his usual residence, the judgment is presumably valid, although he was in fact temporarily absent from the state. But it has also been held that the judgment is liable to be impeached in another state by proof that the defendant was not domiciled in the state where it was rendered, nor subject to its laws, or that the judgment is not valid according to those laws. And some few cases, in opposition' to the view of the majority, hold that, even in the case of its own citizens or residents, a state can not rightly substitute a merely constructive service for actual personal citation.
That these learned text-writers were justified in stating these rules is apparent when we go to the authorities. I shall quote from a few of the opinions.
In Hamill v. Talbott, 72 Mo. App. 22, the court said: “Regarding the service as constructive or substituted service, it was a proceeding against a citizen of Ohio as the trial court has found and as the Ohio court must have adjudged, even though he was temporarily absent from Ohio at the time of service. Being a citizen of Ohio, that state had The right to prescribe by law how its citizens shall be. brought into its courts,’ it being now well settled that if process be served upon the defendant according to the laws of the state of which he ]s a resident and judgment be afterwards rendered against him, such judgment is as binding between the parties, in another state, when relied upon as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the state where it was rendered. Harryman v. Roberts, 52 Md. 64; 2 Black on Judgments, section 907; Gillespie v. Insurance Co,, 12 Gray (Mass.) 201 (71 Am. Dec. 743); *544Biesenthall: v. Williams, 1 Duv. (Ky.) 329 (85 Am. Dec. 629); Cassidy v. Leitch, 2 Abb. N. C. (N. Y.) 315; Huntley v. Baker, 33 Hun (N. Y.) 578; Beard v. Beard, 21 Ind. 321. In the two cases last cited the distinction as to the effect of judgments rendered on constructive or substituted service is pointed out. That distinction is that which arises from the citizenship of the party sought to be charged by the judgment. If he is, a citizen of the state at the time of the service he is amenable to the laws of such state. In Huntley v. Baker, it was said that it had been repeatedly held in England that the doctrine that judgments were without extraterritorial effect, except founded on personal service, is not applicable when the person so sought to be charged is a subject or citizen where and at the time the proceedings are taken, and when they are in conformity to the statute there, although the person may be then absent from the country, and that is put upon the ground that the person domiciled there owes allegiance to the country and submission to its laws. And therefore a judgment may in such case be rendered against and charge a defendant in personam without any personal service upon or actual notice to him, and in his absence from the country. But if the party sought to be charged was not a citizen of the state when the process upon which the judgment is founded is served, the rule just stated would not apply.”
In Cassidy v. Leitch, 2 Abb. N. C. (N. Y.) 315, that court said: “The defendant, as has been said, was domiciled in Louisiana, and owed allegiance to that state, and submission to its laws. The manner of serving process must necessarily be regulated by every country for itself; and if a state permits process to be served upon one of its own citizens by the leaving of it in his absence at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it *545and treat a sentence founded on it as a nullity. 3 Burge, Foreign and Colonial Laws, 1056. ■ A foreign judgment, rendered against a citizen of the state in which it was pronounced, stands on a very different footing from a foreign judgment against one who owed no allegiance to and was not subject to the jurisdiction of the state in which it was rendered. The distinction is. perfectly well settled. In the case of Duflos v. Burlington, 34 Law Times Reports, 688, the defendant in an action on a French judgment, pleaded, as the defendant pleads in this suit, that he was not served with process, nor had he notice of the alleged action in France, or the opportunity of defending himself according to the rules and practice of the French courts. The plea was held bad by the Court of Queen’s Bench, because it did not show that the defendant was not a Frenchman, not domiciled in France. In Maubouquet v. Wyse, 1 Irish Reports (Common-Law Series) 471, in an action on a French judgment, the defendant pleaded that he was absent from France at the beginning and during the entire progress of the French suit, that he was never served with summons, and that he had no notice or knowledge of the suit or any of its proceedings. The court pronounced the plea to be bad, because the defendant might have been resident in France, or might have had property there, or might, through an agent, have been served with process. In Cowan v. Braidwood, 1 M. & F. 882, the defendant pleaded to an action on a Scotch judgment that he was not within the jurisdiction of the Scotch court at the commencement of the action nor afterwards, nor did he know of the proceedings, or any of them, so that he could employ an attorney, nor did he appear. The plea was held bad; Tindal, C. J., saying that the plea ought to have alleged that the defendant was not a resident of Scotland, or that he had no property in Scotland. Marsh, J., said that defendant ought to have alleged that the Scotch judgment was not binding in Scotland, or that it *546was against natural justice. To the same effect is Vallee v. Dumergue, 4 Ex. 290. In order to make the answer in this ease sufficient, there should be added to it allegations showing that the defendant was not domiciled in Louisiana or subject to the laws of that state, or that the judgment is not binding there, or that it is contrary to natural justice. As a plea in bar, the answer is fatally defective.”
In Harryman v. Roberts, 52 Md. 64, the Supreme Court said: “It is essential, of course, to the validity of every judgment, that the parties to be bound should have notice of some kind, either actual or constructive. Every one is entitled to his day in court, and to the right of being heard before a judgment of any kind is rendered against him. But it is not always necessary that personal process shall be served upon him. Each state has the right to prescribe by law how its citizens shall be brought into its courts. And whatever conflict there may be in some of the earlier cases on the subject, we think it is now well settled, that if process be served upon the defendant according to the laws of the state of which he is a resident, and judgment be- afterwards rendered against him, such a judgment is as binding between the parties, in this state, when relied on as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the state ’where it was rendered. Price v. Hickok, 39 Vt. 292; McRae v. Mattoon, 13 Pick. (Mass.) 53; Poorman v. Crane, Wright (Ohio) 347; Joiner v. Hill, S. C. 439; Hunt v. Lyle, 8 Yerg. (Tenn.) 142; Green v. Sarmiento, Pet. C. C. 74 (Fed. Cas. No. 5,760) ; Rangely v. Webster, 11 N. H. 299.”
In Biesenthall v. Williams, 1 Duv. (Ky.) 329, the court said:
The fight of each state to prescribe the manner and by what legal remedies its own citizens shall seek redress *547of their wrongs, is sovereign and unlimited, save by that clause of the national Constitution prohibiting the states from passing 'laws which may impair the obligation of contracts. The Legislature of this state, and perhaps of all the states of. the Union, have provided for the rendition of personal judgments without personal service of process in some special class of cases. A personal judgment may be rendered in behalf of the commonwealth on a recognizance upon the’ return of two notices, and a personal judgment may be rendered in behalf of a private person, 'in all that class of cases wherein judgment on motion is authorized by law, upon notice executed by leaving a true copy at the defendant’s usual place of abode, with a white member of his family over sixteen years of age residing with him, when the defendant is absent. The power to enact these laws, and to render judgment accordingly, has been so long acquiesced in without remonstrance or resistance by the entire profession and people of our state, as to indicate their universal assent to its constitutional existence. This court seemingly approved its existence in Williams v. Preston, 3 J. J. Marsh. (Ky.) 602 (20 Am. Dec. 179). And in Scott et al. v. Coleman, 5 Litt. (Ky.) 350 (15 Am. Dec. 71), it held that whilst the general principle of the common law is that process must be executed else the judgment would be invalid, yet to this rule there were many exceptions hy statutory or local regulations; and as the different state governments ‘may and do institute such proceedings, it is competent for them to make judgments rendered therein conditionally binding or conclusively final or incontestable.’
The reasoning of the court is so potent in Huntley v. Baker, 33 Hun (N. Y.) 578, that although this decision was hy a supreme court, I here quote what was said in the opinion:
■ It will be observed that the summons was not served on the defendant personally. And it appears that at the time of the constructive service (and is so found by the referee) he was not in the state of Wisconsin, nor was he afterward in. that state until after the judgment was rendered, and had no actual knowledge of the action or of *548the judgment until, about the time this action was commenced, the latter part of December, 1881. It does, however, appear that constructive service of the summons, as evidenced by the return in the record, was in accordance with the direction of the statute of that state. It is clear' that unless some relation of the defendant to the state of Wisconsin rendered such constructive service of the summons effectual to permit a judgment against him in personam, the judgment rendered there must be deemed without jurisdiction and void, for it seems repugnant to the first principles of justice to charge a party personally with, a judgment, rendered without any actual notice to him or appearance on his part. Kilburn v. Woodworth, 5 Johns. 37 (4 Am. Dec. 321); Robinson v. Ward, 8 Johns. 90 (5 Am. Dec. 327) ; Borden v. Fitch, 15 Johns. 121, 142 (8 Am. Dec. 225) ; Noyes v. Butler, 6 Barb. 613, 617; Phelps v. Baker, 60 Barb. 107; Ferguson v. Crawford, 70 N. Y. 261 (26 Am. Rep. 589). The courts of any state or country can have no extraterritorial jurisdiction so as to give notice, serve process, or charge persons or property beyond their respective boundaries. And when thus unable to acquire jurisdiction of the person against whom legal proceedings are by statute authorized, and nominally taken without actual service on him, the proceedings can be treated as in rem only in respect to property within the jurisdiction. But it has been repeatedly held in England that this doctrine is not applicable when the jDcrson so sought to he charged by judgment is a subject or citizen of the country where and at the time the proceedings are taken, and when they are in conformity to the statute there, although the person be then absent from the country, and that is put upon the ground that the person domiciled there' owes allegiance to the country and submission to its laws. Douglass v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Ad. 941; Bank of Australasia v. Nias, 16 Q. B. (Ad. & Ell.) 717; Same v. Harding, 9 C. B. (M., G. & S.) 661; Vallee v. Dumergue, 4 Exch. 290; Meeus v. Thellusson, 8 Exch. 638; Copin v. Adamson, L. R. 9 Exch. 345, s. c. 10 Moak, 492. And therefore a judgment may in such case be rendered against and charge a defendant in personam, without any personal service upon or actual notice to him, and in his absence *549from the country. There are only a few reported cases in this country where that proposition has been considered. In the United States Supreme Court a question somewhat analogous was decided in like manner as applied to the United States. Lafayette Insurance Company v. French, 18 How. 404 (15 L. Ed. 451), approved in St. Clair v. Cox, 106 U. S. 356 (1 Sup. Ct. 354, 27 L. Ed. 222) ; Pennoyer v. Neff, 95 U. S. 714, 722, 735 (24 L. Ed. 565). And in this state this proposition is stated, and the English cases cited with apparent approval. Gibbs v. Queen Ins. Co., 63 N. Y. 114, 126 (20 Am. Rep. 513); Hunt v. Hunt, 72 N. Y. 218, 238 (28 Am. Rep. 129) ; Cassidy v. Leetch, 53 How. Prac. 108, 109. Without stating the principle more at length, it may be assumed that by reason of the relation between the state and its citizen, which affords protection to him and his property and imposes upon him duties as such, he may be charged by judgment in personam, binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the state, prescribing a method of service which is not personal and which, in fact, may not become actual notice to him. And this may be accomplished in his lawful absence from the state. It therefore becomes important to inquire whether the state of Wisconsin was the domicile of the defendant at the time the constructive service of the summons was made there, because it is upon domicile that his civil status depended. Udny v. Udny, L. R. 1 H. L. (Scotch and Divorce App. Cases) 441; Abington v. N. Bridgewater, 23 Pick. (Mass.) 176.
These same principles are announced in many of the other cases cited by Black and Freeman, but as they all proceed upon the same theory no further quotations are deemed necessary. See, however, Happy v. Mosher, 48 N. Y. 313; Orcutt v. Ranney, 10 Cush. (Mass.) 183; McRae v. Mattoon, 13 Pick. (Mass.) 53; Holt v. Alloway, 2 Blackf. (Ind.) 108.
Without reference to the merits of the particular case now before us, I think I am justified in expressing the gravest doubts regarding the conclusions of the majority, *550that no personal judgment can be rendered against a citizen and resident of this state temporarily absent therefrom, although that absence be for the very purpose of avoiding service unless he be personally served with notice, and that this service must be within the limits of the state. I am sure that no case cited by the majority so holds, and am very certain that Pennoyer v. Neff, so strongly relied upon by the majority, announces no such doctrine. Everything said by the majority in that case which in any manner so indicates is purely dictum, as I think the majority of this court now admit. I am not convinced by the majority opinion of this court that -the various statutes of this state providing for constructive or substituted service upon citizens and residents of this state, but temporarily absent therefrom, are each and all- unconstitutional- and void. The tenor of all the authorities,. as I read them, and so far as I have had opportunity to consult them, is the other way. I concede that the question is a nice one and that as a mátter of first impression most lawyers would say these statutes are perhaps unconstitutional, but I am nevertheless constrained, after an examination of the question in the light of all the authorities at hand, to say there is so much doubt about the matter that the quesiton should be left to the final arbiter in such matters, to wit, the Supreme Court of the United States. I am very firmly of opinion that in any event we should save that section of the statute relating to personal service upon nonresidents in actions in rem or quasi in rem. Of course, if notice under our system of procedure is, as the majority say, process which can not run into another state, then notices so served in proceedings in rem or quasi in rem are' of no' validity whatever, and countless judgments in this state must be held invalid and absolutely void for want of jurisdiction in the court rendering them. I am quite persuaded, too, that the statute allowing service by publication upon residents of this *551state, who absent themselves for the - very purpose of avoiding service and defeating and defrauding creditors, should be sustained. I believe, too, that personal judgment obtained against one absent from the state who is notified by substituted service., as upon a'member of his family, is good and that to this extent, at least, section 3800 should be preserved. It is singular that no one has thought to challenge these sections until this late day. They have passed through the hands of three code commissions, each of which was composed of able lawyers and judges, and no one of these has ever suggested any trouble with them.
As already suggested, I am not objecting to the final conclusion. Indeed, I think I see a way in which the same result can be reached without overturning the statutes in question. As I can not make my Brethren see it in this light, I am doubtless wrong, and I may also be entirely wrong in my doubts regarding the unconstitutionality of the acts in question. Buty, however, seems to call for an expression of individual opinion on the matter, and in view of what has been said by courts and text-writers, I am constrained to put these doubts in writing, to the end that the full effect of the decision of the majority may not be overlooked. I make bold to do this for the reason that no court, so far as I have been able to find, has gone to the extent which the majority find it necessary to go in this case. I shall not advert to the supposed hardship arising or which may arise from an opinion upholding the statutes in question, for I think the results of the majority opinion may be quite as harmful as a contrary conclusion. The majority opinion points out' the way whereby a resident of the state, having no real property therein, may go to another state for the purpose of avoiding service,' taking his personalty with him, and thus defeat his creditors by finally pleading the statute of limitations. It is well known, of course, that if defendant be *552a resident of tbe state, bis temporary absence therefrom does not toll tbe statute of limitations.
Tbis opinion bas already outgrown proper limits, and I conclude by saying that I am in so much doubt about •tbe correctness of the majority opinion that I can not at-this time join with my Brethren in bolding tbe statutes in question unconstitutional.
I am authorized to say that Mr. Chief Justice Sherwin joins in tbis dissent.