allowed. The section referred to has reference to applications to dissolve made by a party."

But while we are inclined to agree with the court in the case above cited, we are of the opinion that the part of the bill of exceptions above quoted leaves no room, in the case at bar, for the said contention of appellant. It is there stipulated that "the entire matter should be submitted to the court as a whole-pleadings, motions, orders, and the evidence." This was a clear submission by the parties of all matters involved in the case, including among the "orders" the one granting the preliminary injunction.

The order appealed from is affirmed.

Henshaw, J., and Lorigan, J., concurred.

[S. F. No. 4646. In Bank.-December 7, 1906.]

THE TITLE AND DOCUMENT RESTORATION COMPANY, Petitioner, v. HON. FRANK H. KERRIGAN, Judge of the Superior Court in and for the City and County of San Francisco, Respondent.

ACT TO ESTABLISH LAND TITLES - Loss OF RECORDS - PURPOSE OF STATUTE.-The act of June 16, 1906, providing "for the establishment and quieting of title to real property in case of the loss or destruction of records," was intended to provide a method whereby owners in possession of real estate in counties where the records are destroyed to such an extent as to make it impossible to trace a title of record may secure a decree which shall furnish a publicly authenticated title.

ID. NECESSITY FOR TITLE OF RECORD.-It is practically essential, under our system of registration, to the security of ownership in real property that there should exist some method by which the title may be made clear of record, since a title which cannot be traced and established by some form of public record is practically unmerchantable.

ID.-JUDICIAL NOTICE-RELIANCE UPON RECORDS.-In this country the system of registration has become so completely established that the courts can take judicial notice that in the great majority of cases parties dealing with real estate rely for proof of their titles upon the chain of title that will be disclosed by an examination CL Cal.-19

of the records, and in a small degree, if at all, upon the possession of the original instruments composing that chain.

ID. COMMON KNOWLEDGE AS TO LOSS OF RECORDS IN SAN FRANCISCONECESSITY TO SECURE EVIDENCE OF TITLE.-It is matter of common knowledge that in the city and county of San Francisco there has been so great a destruction of the public records as to make it impossible to trace any title with completeness or certainty. Some provision was clearly necessary to enable holders and owners of real estate in this city to secure such evidence of title as would enable them to defend their possession and to enjoy the equally important right of disposition.

ID. CONSTITUTIONALITY OF ACT-CONSIDERATIONS EMPHASIZING PRESUMPTION OF VALIDITY.-Considerations as to the real scope and purpose of the act, though not affording any ground for disregarding constitutional provisions, yet serve to emphasize the rule that in passing upon the constitutionality of a law every presumption and intendment in favor of the validity of the enactment are to be given effect.

ID.-DUE PROCESS OF LAW-PROCEEDING IN REM OR QUASI IN REM.-The act in question does not deprive any person of property without due process of law. The action does not differ in character from the action to determine heirship, which is a proceeding in rem. In any view the proceeding contemplated by the act is quasi in rem, merely to affect the interest of the defendant in specific real property within the state which has at the outset of the proceeding been brought within the control of the court. The constitutional requirement as to such action is satisfied by a substituted service of summons as to defendants not found within the state.

ID. DUE PROCESS IN ACTION TO QUIET TITLE JURISDICTION OF CHANCERY IN PERSONAM-POWER OF LEGISLATURE.-While in the exercise of its inherent equity jurisdiction in an action to quiet title a court of chancery acts only in personam, it is competent for the legislature, so far as the constitutional provision regarding due process of law is concerned, to confer upon courts of equity an extended power, so as to permit the court to bind the interest of persons in real property so far as that property alone is concerned, even though the defendant may not have been personally served with process within the state.

ID.-DUE PROCESS AS TO KNOWN CLAIMANTS. So far as the rights of known claimants are concerned, who cannot be personally served with summons by reason of non-residence, the service by posting, publication, and mailing, and the naming of them in the memorandum appended to the summons, and in the affidavit required by the act to be served upon them, and notifying them when to appear, constitute due process of law; and the fact that they are not named in the complaint and body of the summons is immaterial.

ID.-DUE PROCESS AS TO UNKNOWN CLAIMANTS.-The notice to unknown elaimants, by posting the summons describing the nature of the

action, the property involved, the name of the plaintiff, the relief sought upon the property, and its publication in a newspaper for two months, and the record of the notice of lis pendens, is as complete and full as from the nature of the case could reasonably be expected, and constitutes due process of law as to them. 1D.-METHOD OF PROCEDURE AS TO UNKNOWN CLAIMANTS-COMMON LAW -POWER OF LEGISLATURE.-The fact that the procedure known to the common law cuts off the rights of unknown claimants only by failure to assert them within a limited period is not a sufficient objection to the procedure prescribed by the act as to unknown claimants. The legislature may prescribe novel and unprecedented methods of procedure, provided they afford the parties affected substantial securities against arbitrary and unjust spoliation, which are embraced within the system of jurisprudence prevailing throughout the land.

ID. NECESSITY OF SETTLING TITLES AS TO UNKNOWN CLAIMANTS.-The power of the state to settle titles within its borders and to allow a substituted service should not be limited to known claimants who cannot be served; but in order to exercise this power to the fullest extent it is necessary that it should be made to operate on all interests, known and unknown. A proceeding to settle titles against all the world necessarily involves getting rid of unknown claimants, and such claimants cannot be dealt with by personal service. ID. CONSTRUCTION OF STATUTE-REASONABLE DILIGENCE REQUIRED TO DISCOVER ADVERSE CLAIMANTS-MEANS OF KNOWLEDGE.-The statute must be construed as requiring the exercise of reasonable diligence on the part of the plaintiff to discover adverse claimants, and when discovered to make them parties defendant; and the means of knowledge in this respect must be deemed equivalent to actual knowledge. The plaintiff is under the duty of inquiry as to the names and residences of all persons who may claim an adverse interest. So construed, the statute does not, nor can an action prosecuted under it, deprive any person of his property without due process of law.

ID.-PROCEEDINGS JUDICIAL AND NOT ADMINISTRATIVE.-The proceeding to establish title of record under the act is judicial, and not administrative, in its nature. Whenever the law confers a right and authorizes an application to a court of justice to enforce that right, the proceedings upon the application are judicial in their nature; and it is immaterial whether, in response to the notice given to all claimants, known and unknown, there is or is not any appearance to contest the right.

ID. SPECIAL LEGISLATION-REGULATING PRACTICE OF COURTS.-The fact that the act in controversy makes provisions regulating the practice in the actions therein provided for, which are not to be found in other judicial proceedings, does not necessarily make it special legislation forbidden by subdivision 3 of section 25 of article IV of the constitution, prohibiting the passage of special laws "regulating the

practice of courts of justice." The proceeding created by the act is sufficiently distinct and different from ordinary civil actions covered by the general rules of the code to justify the creation of a class of actions characterized by the special rules of procedure provided for in the act.

ID.-DESTRUCTIVE AGENCY SPECIFIED.-The statute is not special legislation merely because it enumerates destruction of records by earthquake, fire, or flood. The three agencies named are those which are most likely to occur in this state, and are the only ones which, so far as we know, have caused any considerable destruction of public records. These facts furnish ample ground for limiting the operation of the act to the cases to which it has been made applicable. ID. SUFFICIENCY OF TITLE.-The title of the act sufficiently complies with section 24 of article IV of the constitution.

PETITION for Writ of Mandate to the Superior Court of the City and County of San Francisco. Frank H. Kerrigan, Judge.

The facts are stated in the opinion of the court.

Garret W. McEnerney, Walter Rothchild, Joseph H. Mayer, Joseph Hutchinson, James S. Hutchinson, Chas. S. Wheeler, Amicus Curia, and J. F. Bowie, Van Fleet & Mastick, William H. H. Hart, and Bishop & Hoefler, Amici Curia, for Petitioner.

The state may, as sovereign over lands situated within it, provide for an adjudication of title, in a proceeding in rem or in the nature of a proceeding in rem, which shall be binding upon all persons known and unknown. (State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Perkins v. Wakeham, 86 Cal. 580, 21 Am. St. Rep. 67, 25 Pac. 51; McLaughlin v. McCrory, 55 Ark. 442, 29 Am. St. Rep. 56, 18 S. W. 762; Hall v. Meloin, 62 Ark. 439, 54 Am. St. Rep. 301, 35 S. W. 1109; McMahon v. Smith, 69 Ark. 591, 65 S. W. 459; Hanscom v. Hanscom, 6 Colo. App. 97, 39 Pac. 885; Harris v. Palmore, 74 Ga. 273; People's Nat. Bank v. Cleveland, 117 Ga. 908, 44 S. E. 20; Pile v. McBratney, 15 Ill. 314; Smith v. Stevens, 82 Ill. 554; Bertrand v. Taylor, 87 Ill. 235; Mulvey v. Gibbons, 87 Ill. 367; Thornton v. Houtze, 91 Ill. 199; Heacock v. Lubuke, 107 Ill. 396; Heacock v. Hosmer, 109 Ill. 245; Gage v. Caraher, 125 Ill. 447, 17 N. E. 777; Harding v. Fuller, 141 Ill. 308, 30 N. E. 1053; Burton v. Perry, 146 Ill. 71, 34 N. E. 60; People v.

Simon, 176 Ill. 165, 68 Am. St. Rep. 175, 52 N. E. 910, 44 L. R. A. 801; Unknown Heirs v. Kimball, 4 Ind. 546, 58 Am. Dec. 638; State v. Scanlon, 2 Ind. App. 320, 28 N. E. 426; Quarl v. Abbett, 102 Ind. 233, 52 Am. Rep. 662; Otis v. De Boer, 116 Ind. 531, 19 N. E. 317; Mason v. Messenger, 17 Iowa, 264; Guise v. Early, 72 Iowa, 283, 33 N. W. 683; Williams v. Westcott, 77 Iowa, 332, 14 Am. St. Rep. 287, 42 N. W. 314; Ruppin v. McLaughlin, 122 Iowa, 343, 98 N. W. 153, 154; Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, 1 Am. St. Rep. 262; Dillon v. Heller, 39 Kan. 599, 18 Pac. 693; Covington etc. R. R. Co. v. Bowler, 9 Bush (Ky.) 468; Blight v. Banks, 6 Mon. T. B. (Ky.) 192, 220, 17 Am. Dec. 136; Benningfield v. Reed, 8 B. Mon. (Ky.) 102; Wuntzel v. Landry, 39 La. Ann. 312, 1 South. 893; Young v. Upshur, 42 La. Ann. 362, 21 Am. St. Rep. 381, 7 South. 557; Coombs v. Persons Unknown, 82 Me. 326, 19 Atl. 826; Loring v. Hildreth, 170 Mass. 328, 64 Am. St. Rep. 301, 49 N. E. 652, 40 L. R. A. 127; Tyler v. Court of Registration, 175 Mass. 71, 55 N. E. 812, 51 L. R. A. 433; Lane v. Innis, 43 Minn. 137, 45 N. W. 4; Cousins v. Alworth, 44 Minn. 505, 47 N. W. 169, 10 L. R. A. 504; Ware v. Easton, 46 Minn. 180, 48 N. W. 775; Shepherd v. Ware, 46 Minn. 174, 48 N. W. 773, 24 Am. St. Rep. 212; Inglee v. Weller, 53 Minn. 197, 55 N. W. 117; Corson v. Shoemaker, 55 Minn. 386, 57 N. W. 134; McClymond v. Noble, 84 Minn. 329, 87 Am. St. Rep. 354, 87 N. W. 838; State v. Westfall, 85 Minn. 437, 89 Am. St. Rep. 571, 89 N. W. 175, 57 L. R. A. 297; Dewey v. Kimball, 89 Minn. 454, 95 N. W. 317, 895, 96 N. W. 704; Belcher v. Mhoon, 47 Miss. 613; Brown v. Levee Commissioners, 50 Miss. 468; State v. Staley, 76 Mo. 158; Charles v. Morrow, 99 Mo. 638, 12 S. W. 903; Coombs v. Crabtree, 105 Mo. 292, 16 S. W. 830; Meyers v. McRay, 114 Mo. 377, 21 S. W. 730; Rohrer v. Ader, 124 Mo. 24, 27 S. W. 606; Peters v. Dunnells, 5 Neb. 460; Keene v. Sallenbach, 15 Neb. 200, 18 N. W. 75; Watson v. Ulbrich, 18 Neb. 186, 24 N. W. 732; Lantry v. Parker, 37 Neb. 353, 55 N. W. 962; Scarborough v. Myrick, 47 Neb. 795, 66 N. W. 867; Fowler v. Brown, 51 Neb. 414, 71 N. W. 54; Allen v. Allen, 11 How. Pr. 277; Wheeler v. Scully, 50 N. Y. 667; Abbott v. Curran, 98 N. Y. 665; Moran v. Conoma, 13 N. Y. Supp. 625; Guyer v. Raymond, 29 N. Y. Supp. 395, 8 Misc. Rep. 606; People v. Ryder, 65 Hun, 175, 19 N. Y. Supp. 977; Sandiford v. Town of Hempstead, 90