prevent a state from giving a like protection to its own citizens or residents who are interested in the surplus after payments of debts. All of which goes to show, what plaintiff in error in effect acknowledged when she brought her present action in a Kentucky court, that the Tennessee judg ments had no effect in rem upon the Kentucky assets now in controversy. She invokes the aid of those judgments as judgments in personam. But it is now too well settled to be open to further dispute that the "full faith and credit" clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound. This rule became established long before the adoption of the 14th Amendment, as a result of applying fundamental principles of justice and the rules of international law as they existed among the states at the inception of the government. Notwithstand. ing that Mills v. Duryee (1813) 7 Cranch, 481, 484, 3 L. ed. 411, 413,-where, as the opinion shows, the defendant had full notice of the suit, was arrested, and gave bail, was by some courts interpreted as holding that, irrespective of such notice, the act of Congress required a judgment under all circumstances to receive the same faith and credit in every other state that it had in the state of its origin (Field v. Gibbs (1815) Pet. C. C. 155, 158, Fed. Cas. No. 4,766; Com. v. Green (1822) 17 Mass. 515, 546), the view soon came to prevail in the state courts that the case was not authority for so broad a proposition, and that whenever a judgment of a state court was produced as evidence, the jurisdiction of the court rendering it was open to inquiry; and if it appeared that the court had no jurisdiction, the judgment was entitled to no faith or credit.1 Mr. Justice Story, who wrote the opinion in Mills v. Duryee, in his treatise on the Conflict of the Laws, published in 1834 (§ 609), declared that the "full faith and credit" clause and the act of Congress did not prevent an inquiry into the jurisdiction of the court to pronounce the judgment, and 1 Borden v. Fitch (1818) 15 Johns, 121, 143, 144, 8 Am. Dec. 225; Aldrich v. Kinney (1822) 4 Conn. 380, 383, 10 Am. Dec. 151; Hall v. Williams (1828) 6 Pick. 232, 242245, 17 Am. Dec. 356; Miller v. Miller (1829) 1 Bail. L. 242, 248; Hall v. Williams (1883) 10 Me. 278, 287; Wernwag v. Pawling (1833) 5 Gill & J. 500, 507, 25 Am. Dec. 317. See also Phelps v. Holker (1788) 1 Dall. 261, 264, 1 L. ed. 128, 129; Curtis v. Martin (1805) 2 N. J. L. 399, 405, 406e; this view was adopted and made the basis of decision by this court in D'Arcy v. Ketchum (1850) 11 How. 165, 13 L. ed. 648, which was followed by Thompson v. Whitman, 18 Wall. 457, 459, 21 L. ed. 897, with a review of many cases. During the same period, however, it occasionally was intimated, if not held, by some of the state courts, that a personal judgment, effective within the territory of the state, could be rendered against a nonresident defendant who did not appear and submit himself to the jurisdiction, provided notice of the suit had been served upon him in the state of his residence, or had been published in the state within which the court was situate, pursuant to the proa local statute. See Smith visions of v. Colloty, 69 N. J. L. 365, 371, 55 Atl. As was said by Mr. Justice Field, 805. speaking for this court in Pennoyer v. Neff, 95 U. S. 714, 732, 24 L. ed. 565, 572, it is difficult to see how such a judgment could legitimately have force even within the state. But until the adoption of the 14th Amendment (1868) this remained a question of state law; the effect of the "due process" clause of that amendment being, as was held in the case just mentioned, to establish it as the law for all the states that a judgment rendered against a nonresident who had neither been served with process nor appeared in the suit was devoid of validity within as well as without the territory of the state whose court had rendered it, and to make the assertion of its invalidity a matter of Federal right. The fundamental requisite of due process of law in judicial proceedings is the opportunity to be heard. Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 236, 44 L. ed. 747, 750, 20 Sup. Ct. Rep. 620; Simon v. Craft, 182 U. S. 427, 436, 45 L. ed. 1165, 1170, 21 Sup. Ct. Rep. 836; Grannis v. Ordean, 234 U. S. 385, 394, 58 L. ed. 1363, 1368, 34 Sup. Ct. Rep. 779. To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice. And to assume that a party resident beyond the confines of a state is required to come within its borders and submit his personal controversy to its Rogers v. Coleman (1808) Hardin (Ky.) 413, 415; Kilburn v. Woodworth (1809) 5 Johns. 37, 41, 4 Am. Dec. 321; Fenton v. Garlick (1811) 8 Johns. 194, 197; Shumway v. Stillman (1825) 4 Cow. 292, 294, 15 Am. Dec. 374, (1831) 6 Wend. 447, 449, 453; Starbuck v. Murray (1830) 5 Wend. 148, 156, 21 Am. Dec. 172; Bissell v. Briggs (1813) 9 Mass. 462, 468, 6 Am. Dec. 88; Whittier v. Wendell (1834) 7 N. H. 257. tribunals upon receiving notice of the suit, entire personal estate as a unit may thus at the place of his residence is a futile at- be interfered with; but whatever incontempt to extend the authority and control of a state beyond its own territory. So far as the case for plaintiff in error depends upon the adjudication of domicil by the county court of Hardin county, Tennessee, for the mere purpose of appointing an administratrix, it is controlled by Thormann v. Frame, 176 U. S. 350, 44 L. ed. 500, 20 Sup. Ct. Rep. 446, and Overby v. Gordon, 177 U. S. 214, 227, 44 L. ed. 741, 746, 20 Sup. Ct. Rep. 603. But, it is pointed out, in this case the county court went beyond the bare appointment of an administratrix, and proceeded to a settlement and distribution of the estate. Moreover, plaintiff in error relies not merely upon this judgment, but upon the decree in the chancery court of the same county, which in form specifically determined her exclusive right to the Kentucky personalty. It results, however, from what we have already said, that this right could not be conclusively established by any Tennessee court as against a resident of Kentucky who was not served with process and did not appear therein, and that the Kentucky courts did not go counter to the Federal Constitution and the act of Congress in refusing to give faith and credit to the Tennessee judgments. venience may result is a necessary incident of the operation of the fundamental rule that a court of justice may not determine the personal rights of parties without giv ing them an opportunity to be heard. Judgment affirmed. CONSTITUTIONAL LAW 42-ORDINANCES 1. A gas-distributing company cannot assert that constitutional rights of a gasproducing and transporting company furnishing gas to the former company upon the basis of a percentage of meter readings will be infringed by a municipal ordinance fixing the gas rates which the distributing company may charge. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. 42.] CONSTITUTIONAL LAW 315-DUE PROCESS OF LAW — MUNICIPAL REGULATION OF GAS RATES. show the rate paid by the distributing to the producing company after the expira tion of such contract. 2. The property of a gas-distributing In many forms, and with much emphasis, company cannot be said to have been taken the plaintiff in error presses the argument without due process of law, contrary to U. ab inconvenienti. Starting from the propo- S. Const. 14th Amend., by a decree which sition that the entire personalty of an in- enforced, without prejudice to the right to testate decedent, wherever in fact located, apply thereafter for a modification, a muis a unit, having its legal situs at the nicipal ordinance fixing gas rates for five owner's domicil, and that its distribution years, where there was no claim that the ought to be in accordance with the law of company could not operate profitably under such ordinance so long as its contract that domicil, it is argued: How is it pos- with a producing gas company, under which sible to judicially determine that domicil the latter was to furnish gas to the former under the theory of the Kentucky court upon the basis of a percentage of meter of appeals in the case of an intestate readings, which had two or three years to entitled to personalty in several states hav-run when the suit was commenced, remained ing different laws of distribution, and within force, and no evidence was offered to parties claiming to be distributees residing in different jurisdictions? Assuming a law ful grant of administration in each state wherein part of the personalty is located and some of the possible distributees reside, how, it is asked, is any one of these administrators, or any one of the claimants of a share in the whole estate, to have the Argued December 4, 1916. place of the intestate's domicil settled authoritatively and the lawful distributees ascertained? The answer is clear: Unless all possible distributees can be brought within the jurisdiction of a single court having authority to pass upon the subject matter, either by service of process or by their voluntary appearance, it must in many cases be impossible to have a single controlling decision upon the question. In some cases, the ideal distribution of the [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 935, 937, 941, 947; Dec. Dig. 315.] [No. 232.] IN ary 8, 1917. Decided Janu N ERROR to the Supreme Court of the State of Ohio to review a decree which affirmed a decree of the Court of Appeals of Licking County, in that state, granting a mandatory injunction to enforce a municipal ordinance fixing gas rates. Affirmed. See same case below, 92 Ohio St. 393, 111 N. E. 150. The facts are stated in the opinion. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Messrs. Frank A. Bolton, Ralph Norpell, and Edward Kibler for defendant in error. Mr. Justice Pitney delivered the opinion of the court: based upon after for a modification was in accord with the action of this court in the Knoxville and Willcox Cases, 212 U. S. pp. 19, 55. Messrs. James R. Fitzgibbon, Eugene, concurring judgments were Mackey, S. M. Douglass, and Charles Mont- principles thoroughly established by repeatgomery for plaintiff in error. ed decisions of this court (Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578, 597, 598, 41 L. ed. 560, 566, 567, 17 Sup. Ct. Rep. 198; San Diego Land & Town Co. v. National City, 174 U. S. 739, 754, 43 L. ed. 1154, 1160, 19 Sup. Ct. Rep. 804; Knoxville v. Knoxville Water Co. 212 U. S. The question upon which our jurisdiction 1, 53 L. ed. 371, 29 Sup. Ct. Rep. 148; is here invoked is whether an ordinance of Willcox v. Consolidated Gas Co. 212 U. S. the city of Newark, Ohio, passed March 6, 19, 48, 53 L. ed. 382, 398, 48 L.R.A.(N.S.) 1911, fixing the maximum price that plain- 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. tiff in error might charge to consumers of 1034; Des Moines Gas Co. v. Des Moines, natural gas in that city for a period of 238 U. S. 153, 163, 59 L. ed. 1244, 1250, five years at 20 cents per thousand cubic P.U.R.1915D, 577, 35 Sup. Ct. Rep. 811), feet, with 10 per cent discount for prompt and the finding that there was no confiscapayment, a rate described as "18 cents tion is amply supported by the evidence. net,”—is confiscatory, and therefore in vio- | The reservation of the right to apply therelation of the "due process" clause of the 14th Amendment. Plaintiff in error operates under a franchise granted by a city ordinance passed February 21, 1898, for a term A distinction is sought to be based upon of twenty-five years, which permitted a rate the fact that two companies are necessarily of 25 cents per thousand for a period of ten affected by the rate,-a producing and a years from its passage, but within that distributing company; it being contended period the company voluntarily introduced that the state courts have ignored the cost a net rate of 18 cents and maintained it of production. It appears that after the for some years prior to the adoption of granting of the franchise of 1898, plaintiff the ordinance of 1911. The company re- in error, which theretofore had been both a fused to accept the provisions of the latter producer and a distributer of gas, sold all ordinance and notified its customers that it of its property to the stockholders of the would discontinue service unless the rate Logan Natural Gas & Fuel Company, and of 25 cents was paid. Thereupon the city thereafter confined its activities to distrifiled a petition in the court of common bution, the Logan Company being in conpleas of Licking county, praying a manda- trol of production and transportation; and tory injunction. The company answered that in 1904 the Logan Company entered that the ordinance provided no just com- into a contract with plaintiff in error to pensation for the use of its property and furnish the gas needed to supply the city therefore deprived it of its constitutional for a term of years, on the basis of a perrights. Voluminous evidence was taken up-centage of the aggregate readings of the on this issue, and the court found the defense to be unfounded in fact, and made a decree in favor of the city, but without prejudice to the right of the company to apply for a modification "if at any time it should appear that said rate of 18 cents net does not render an adequate return to said defendant company." An appeal was taken to the court of appeals and there heard upon the evidence taken in the court of common pleas and additional evidence, and the same decree was entered as in the court of common pleas. The supreme court of Ohio affirmed the decree (92 Ohio St. 393, 111 N. E. 150). consumers' meters, in the proportion of 70 per cent of the gross receipts for the Logan Company and 30 per cent for plaintiff in error. At the time the suit was commenced the contract had two or three years to run, while the limiting ordinance was to continue for five years. There is no contention that plaintiff in error could not operate profitably under the ordinance of 1911 so long as the contract remained in force; but it is said that, because of changed conditions, including the partial exhaustion of the gas-producing field, the contract was no longer profitable to the Logan Company under the rate permitted by the ordinance The opinions of the state courts show of 1911, the cost of production and transthat they gave careful consideration to the portation of natural gas alone being at that questions of the value of the property of time, as is asserted, as much as the entire plaintiff in error at the time of the inquiry, amount of the net rate of 18 cents allowed the total amount of net profits that could, by the ordinance. But plaintiff in error be earned under the rate fixed, and whether cannot be heard here to assert the constithis would be sufficient to provide a fair tutional rights of the Logan Company (Ply return on the value of the property. The mouth Coal Co. v. Pennsylvania, 232 U. S. nance. 531, 544, 58 L. ed. 713, 719, 34 Sup. Ct. Rep. 359), and the pertinent question is what plaintiff in error would probably have to pay for gas during the life of the ordiThe contract measured this so long as it continued in effect. And, although it expired some time before the closing of the evidence in the court of appeals, as the supreme court pointed out, no evidence was offered to show the rate paid by the Newark Company to the Logan Company after its expiration. The ordinance specified a period of five years; but, by the decree, this was made subject to the provision giving a right to plaintiff in error to apply for relief if it should appear that the 18-cent rate did not render an adequate return. Plaintiff in error has failed to show that the ordinance has the effect of depriving across the Ohio river, when erected in accordance with the requirements of those acts, should be a lawful structure, and be recognized and known as a post route, was River and Harbor Act of March 3, 1899 impliedly repealed by the provisions of the (30 Stat. at L. 1121, chap. 425, Comp. Stat. 1913, § 9970), § 18, that whenever the Secretary of War finds any bridge theretofore or thereafter constructed over any of the navigable waterways of the United States to be an unreasonable obstruction to free navigation it shall be his duty, after moval or alteration of the bridge, so as to hearing, to take action looking to the rerender navigation reasonably free, easy, and unobstructed. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 74-83; Dec. Dig. 20(2).] [No. 540.] it of property without due process of law Argued December 8 and 11, 1916. Decided within the meaning of the 14th Amendment, and the judgment under review is affirmed. January 8, 1917. PPEAL from the District Court of the LOUISVILLE BRIDGE COMPANY, Appt., of Kentucky to review a decree restraining V. UNITED STATES. a bridge company from reconstructing the superstructure of its bridge, contrary to the NAVIGABLE WATERS 20(6) FEDERAL provisions of an order of the Secretary of War. Affirmed. REQUIRING CONTROL OF NAVIGATION See same case below, 233 Fed. 270. The facts are stated in the opinion. Messrs. William W. Crawford, Lawrence Maxwell, and Charles H. Gibson for appellant. Assistant Attorney General Wallace for appellee. Mr. Justice Pitney delivered the opinion of the court: 1. A bridge company which has erected a bridge over the Ohio river, in accordance with the requirements of the Acts of July 14, 1862 (12 Stat. at L. 569, chap. 167), and February 17, 1865 (13 Stat. at L. 431, chap. 38), each of which declared that a bridge erected under its provisions shall be a lawful structure and be recognized and known as a post route, and neither of which contains any reservation of the right the Ohio river at Louisville, Kentucky, Appellant is the owner of a bridge across to alter, amend, or revoke the franchise, was given no irrepealable franchise to maintain known as the "Ohio Falls bridge," which its bridge precisely as it was originally conwas built under an act of Congress approved structed, and no vested right entitling the February 17, 1865 (chap. 38, 13 Stat. at bridge company to compensation under U. L. 431), supplementary to an act approved S. Const. 5th Amend., in case Congress July 14, 1862 (chap. 167, 12 Stat. at L. should thereafter, in the exercise of its 569). The 1862 Act, as amended, allowed power to regulate commerce, require changes to be made in the interest of navi- the bridge to be built under one of several gation, but the authority of Congress to compel changes was precisely the same as if the bridge had been constructed under state legislation without license from Congress, or had been constructed under congressional consent or usage, coupled with an express reservation of the right of revo cation or amendment. plans detailed, and with a prescribed minimum width for spans and a minimum clearance height above the water. This act, in its 5th section, declared: "That any bridge or bridges erected under the provisions of this act shall be lawful structures, and shall be recognized and known as post routes, and the officers and crews [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. § 91; Dec. Dig. 20(6).] of all vessels, boats, or rafts navigating the NAVIGABLE WATERS 20(2) BRIDGE said Ohio river are required to regulate the OVER NAVIGABLE WATERWAY-COMPEL- use of the said vessels and of any pipes LING ALTERATIONS-IMPLIED REPEAL OF or chimneys belonging thereto, so A SPECIAL FRANCHISE. 2. The declaration by Congress in the Acts of July 14, 1862 (12 Stat. at L. 569, chap. 167), and February 17, 1865 (13 Stat. at L. 431, chap. 38), that a bridge as not to interfere with the elevation, construction, or use of any of the bridges erected or legalized under the provisions of this act." The 1st section of the 1865 Act con For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes tained a proviso "that said bridge and, work of renewal at once. Shortly theredraws shall be so constructed as not to after the Attorney General filed a bill interrupt the navigation of the Ohio river;" for an injunction in the district court; the 2d section declared "that the bridge appellant answered, setting up its claims erected under the provisions of this act as above indicated; and the case was shall be a lawful structure, and shall be brought to a hearing upon stipulated facts recognized and known as a post route." presenting, as the sole question to be The Ohio Falls bridge was built in all determined,-the legality of the order of respects in accordance with the require- the Secretary of War as applied to the ments of these acts, except that, instead of bridge in question. A final decree was the minimum channel span of 300 feet pre-made restraining appellant from reconscribed, the builders made spans of 380 structing the superstructure of the bridge feet and 352 feet respectively, and exceed-in a manner inconsistent with the provisions ed the clearance height of the highest of of the Secretary's order (233 Fed. 270), and the authorized plans, thus expending $150,- the case comes here by direct appeal, as 000 more than was necessary to comply with permitted by § 18 of the 1899 Act. the letter of the law. The bridge was completed in the year 1870, and since then has been continuously in use as a railroad bridge, furnishing one of the principal thoroughfares across the Ohio river from north to south. Its superstructure now requires renewal, but this can be done without obstructing navigation any further than the bridge does at present and has done ever since its construction. Concisely stated, the position of appellant is that the Ohio Falls bridge was constructed under an irrevocable franchise, and became upon its completion a lawful structure and the private property of appellant; that Congress had no power to require its removal except in the exercise of the Federal authority to regulate commerce, and subject to the provision of the 5th Amendment that private property shall not be taken for public use without just compensation; and that the Act of 1899, being a general act, does not, by fair construction, operate to repeal the special franchise conferred by the Acts of 1862 and 1865, and, if it does, it is unconstitutional because it fails to make provision for com In the year 1914 the Secretary of War, proceeding under § 18 of an act of Congress approved March 3, 1899 (chap. 425, 30 Stat. at L. 1121, 1153, Comp. Stat. 1913, § 9970), gave notice to appellant that he had good reason to believe the bridge was an obstruction to navigation because of insufficient horizontal clearance of the chan-pensation. nel span crossing the main navigable chan- The first and fundamental contention is nel of the river, and insufficient width of opening in the existing swing span crossing the Louisville & Portland Canal, and appointed a time and place for a hearing upon this question. Appellant introduced no evidence at the hearing, but filed a protest against any action by the Secretary under the Act of 1899, on the ground that this act did not affect bridges constructed under the Acts of 1862 and 1865, or that, if it attempted to do so, it was unconstitutional. After the hearing the Secretary made an order notifying appellant to alter the bridge within three years, so as to provide an enlarged horizontal opening for the main navigable channel, and to change the swing span across the channel to a lift span having a prescribed horizontal clearance, and a prescribed vertical clearance when open. A further hearing and some correspondence having led to no result, ap pellant notified the Secretary of War in writing that it insisted on the right to renew its superstructure on the existing masonry without changing the length of any of the existing spans, "so that when fact that neither the original nor the supcompleted it will not interfere with navi-plemental acts contained any reservation gation any more than it does now," of the right to alter, or amend, or revoke and that it intended to commence the the franchise. rested in part upon facts of which we may take judicial notice, that when the Acts of 1862 and 1865 were passed the Civil War was in progress, and there was urgent need of a bridge over the Ohio river west of the Big Sandy (the eastern boundary of Kentucky) to provide for the transfer of troops and supplies from the North to the South; that there were no bridges crossing the Ohio at either of the cities of Cincinnati or Louisville, or at any point west of them, and that the movement of troops and supplies was thereby greatly hampered; that the river at Louisville is approximately a mile wide, the current quite rapid on account of the Falls, and in winter frequently filled with ice, so as to render a bridge a pressing necessity; and that the war had disturbed somewhat the finances of the country, and capital for large undertakings was difficult to secure. But the argument lays especial stress upon the declaration that the bridge in question should be a lawful structure and recognized and known as a post route, and the |