prehensive view in determining the necessity of a law, and the character of the purpose to be accomplished by it. A court, with any propriety, cannot arrogate to itself all power and wisdom in such matters; and if there be grave doubt as to the nature of the purpose, the doubt must always be solved in favor of the action of the legislature." 62 Ill. 273. In a previous case the court had said that "a proper respect for the legislative department requires us to regard its acts as prima facie constitutional." 42 Ill. 14.

We express no opinion as to what, in our judgment, is the true exposition of those parts of the Illinois Constitution to which reference has been made, or as to the wisdom or propriety of such legislation as that under examination.

Our purpose has been to ascertain what was the law of the State as expounded by its highest judicial tribunal. And while, perhaps, the judgment of the Circuit Court might, in view of our own decisions, be sustained upon other grounds, it is sufficient for the disposition of this case to say, that the adjudications of the State court do not show any such settled or uniform construction of the State Constitution upon the questions here involved as would justify us, with proper respect to the legislative department of Illinois, in holding that it had transgressed her fundamental law.

Judgment affirmed.

MоHR v. MANIERRE.

The statute of Wisconsin which provides for the sale of the real estate of a lunatic to pay his debts when his personal property is insufficient therefor, enacts that the order of the county court to show cause why the application of the guardian for a license to sell such real estate shall not be granted “shall be published at least four successive weeks in such newspaper as the court shall order, and a copy thereof shall be served personally on all persons interested in the estate and residing in the county in which such application is made, at least fourteen days before the day therein appointed for showing cause: provided however, if all persons interested in the estate shall signify in writing their assent to such . . . sale the notice may be dispensed with." It also enacts that the court "upon proof of the due service or publication of a 27

VOL. XI.

copy of the order, or upon filing the consent in writing to such sale, of all persons interested, shal; proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner and of all persons interested in the estate who shall think proper to oppose the application." A. was duly declared to be a lunatic and his lands in that State were on the petition of his guardian sold by order of the proper court. The sale was reported to the court and confirmed, and a deed made to the purchaser, against whom after the proceedings in lunacy were suspended, A. brought ejectment. He insisted that the court had no jurisdiction to make the order granting license to the guardian to sell, inasmuch as notice of the time and place of hearing the petition had not been published for the full period of four successive weeks. Held, 1. That the publication of notice of the hearing is only intended for the protection of parties having adversary interests in the property, and is not essential to the jurisdiction of the court. 2. That so far as the rights of the lunatic are concerned the jurisdiction of the court attached upon filing of the guardian's petition setting forth the facts required by the statute. 3. That as against the lunatic a license to sell is not rendered invalid by reason of an insufficient publication of notice of the hearing. 4. The rulings in Grignon's Lessee v. Astor (2 How. 319), and Comstock v. Crawford (3 Wall. 396), cited on this latter point.

ERROR to the Circuit Court of the United States, for the Eastern District of Wisconsin.

The facts are stated in the opinion of the court.

Mr. F. W. Cotzhausen and Mr. James G. Jenkins for the plaintiffs in error.

Mr. S. U. Pinney, contra.

MR. JUSTICE FIELD delivered the opinion of the court. This was an action for the possession of certain land in the county of Walworth, in the State of Wisconsin. It was commenced in one of the State courts, and on the application of the plaintiff was removed to the Circuit Court of the United States. It was there tried by the court, without the intervention of a jury, upon stipulation of the parties. The court was held by the circuit and district judges, and, as they were opposed in opinion, the case is brought here upon a certificate of the points upon which they differed.

The facts out of which this division arose are briefly these: The plaintiff Mohr, previously to the sale under which the defendant claims, was the owner of the premises in controversy. In 1869, he was, by legal proceedings in the county court of Walworth, adjudged to be a lunatic incapable of taking care of

himself and managing his property, and a guardian was appointed over him. In October, 1870, the guardian applied, by petition to the court, for license to sell the real estate of his ward for the purpose of paying his debts. The petition alleged that the goods, chattels, rights, and credits of the lunatic in the hands of the guardian were insufficient to pay such debts and the charges of managing his estate. It set forth the amount of the debts and charges, the extent to which they exceeded the personal estate of the lunatic, and his opinion as to the necessity of using the whole or the greater part of the estate to pay the indebtedness, accompanied by a certificate of the supervisors of the town to the same effect; and it gave a description of the real property. Upon being filed, an order was made by the court requiring the next of kin of the lunatic, and all persons interested in his estate, to appear before the court on a day named, and show cause why a license should not be granted for the sale of the estate as prayed; and that notice be given. by publication in a newspaper for four successive weeks prior to the day of hearing, and also by service upon certain persons named.

On the day appointed, Jan. 2d, 1871, there being no appearance adverse to the application, and no objection interposed, the court made an order granting a license to the guardian to sell the lands. The order recited that pursuant to the order made on the 21st of November, 1870, the petition was heard and considered; that the affidavits of two persons, who were named, were filed, showing that the notice required had been duly published; that it appeared after full examination, that it was necessary, in order to pay the debts of the lunatic, that all his real estate should be sold; and that the supervisors of the town had certified to the judge of the court their approbation. of the proposed sale, and that they deemed it necessary. The order required the guardian, before the sale, to execute to the judge a bond in the sum of $15,000, conditioned that he would sell the property, and account for and dispose of the proceeds in the manner provided by law; also that he would take the oath required by statute; give notice of the terms and place of the sale, with a proper description of the property, by posting in three public places in the town where the property was

situated, and by publication for three weeks in a weekly news paper. It contained other directions not material to be mentioned, which were designed to secure a fair sale and a just price for the property; and it required the guardian to report his proceedings to the court. Under this license a sale was made, and a deed executed to the purchaser, and a report thereof made to the court, which was confirmed. The defendant claims under the purchase at this sale.

Subsequently the proceedings and commission in lunacy were superseded, and the plaintiff Mohr brought the present action to recover possession of the premises. After it was commenced a party to whom he had transferred an undivided interest was joined with him as co-plaintiff.

The case turns upon the validity of the sale in question. The order of the county court of Wisconsin, in granting the guardian license to sell the property, was assailed as having been made before notice of the time and place of hearing the petition of the guardian had been published for four successive weeks, as required by the court and the statute of the State. It is insisted that such notice was in the nature of process to bring the parties before the court, and its constructive service by publication for the period mentioned was essential to give the court jurisdiction. The order recited, as already stated, that by the affidavit of two persons named, the required publication was shown to have been made; but the judges certify that it appeared from one of the affidavits that the notice was not thus published. It is to be regretted that the two affidavits are not embodied in the record. We might differ from the judges in the conclusion reached by them. We might, perhaps, find that a publication was made once a week in four successive weeks, and hold that this was a sufficient compliance with the statute. Between the 21st of November, 1870, when the order for publication was made, and the 2d of January, 1871, when the petition was heard, more than four weeks had elapsed.

We shall assume, however, that the notice was not published for the full period prescribed, and the question for consideration is whether such omission, all other requisites of the statute having been complied with, rendered the order of the court

invalid as against the plaintiff Mohr,* the chen lunatic; or, in other words, whether such publication was essential to the jurisdiction of the court to grant the license to sell. The Supreme Court of the State, in a case brought by this plaintiff, -Mohr v. Tulip, --which came before it in 1876, affecting a part of the premises sold at the same guardian's sale, upon substantially the same proofs here presented, held that the sale was invalid for want of sufficient publication of such notice. On the other hand, the Supreme Court of the United States, in considering the validity of a sale of a decedent's estate under a statute in force in what was then the Territory of Wisconsin, requiring the county court, before passing upon the application for a license to sell, to order notice of its hearing to be given to all parties interested who did not signify their assent to the sale, had held, as far back as 1844, after deliberate consideration, that the absence of such notice from the record, or the fact that no such notice was given, did not affect the jurisdiction of the court, but was merely a matter of error, to be corrected by an appellate tribunal; and this decision has been repeatedly recognized as correctly marking the distinction between matters of error and matters of jurisdiction in proceedings for the sale of such estates. Grignon's Lessee v. Astor, 2 How. 319.

Under these circumstances the circuit and the district judge differed in opinion upon the following questions:

1st, Whether the county court had jurisdiction to make the order granting the license to sell; or whether the order was invalid by reason of the alleged defect in the publication of notice; and

2d, Whether, in view of the decision of the Supreme Court of the United States and the decision of the State Supreme Court in Mohr v. Tulip, the circuit court should follow the latter decision and hold the sale invalid.

The framers of the Constitution, in establishing the Federal judiciary, assumed that it would be governed in the administra tion of justice by those settled principles then in force in the several States, and prevailing in the jurisprudence of the country from which our institutions were principally derived. Among

The record says as against the defendant, which is the same thing, for no one disputes his title but the plaintiff.