69, 53 Pac. 421; Bear Lake County v. Budge, 9 Idaho, 203, 108 Am. St. Rep. 179, 75 Pac. 614; Hill v. Henry, 66 N. J. Eq. 150, 57 Atl. 554; Andrews v. Quayaquil etc. Ry. Co., (N. J. Eq.), 60 Atl. 568; Loring, J., in Tyler v. Court of Registration, 175 Mass. 71, 55 N. E. 812; Benedict's Admiralty, p. 384; Mankin v. Chandler, 2 Brock. 125, Fed. Cas. No. 9030; Cole v. The Brandt, 1 Betts, 361, Fed. Cas. No. 2978; The Heinrich Bjorn, 10 P. D. 44.) Holders of non-conflicting equitable titles cannot be divested of their rights except by a suit in personam. (Remer v. McKay, 54 Fed. 432.) In an action to establish and quiet title to land "due process of law" requires personal service of summons upon the defendants, if possible, with due diligence, and it is only in cases of necessity that constructive service by publication is permissible. (Bardwell v. Anderson, 44 Minn. 97, 20 Am. St. Rep. 547, 46 N. W. 315; Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557; Perkins v. Wakeham, 86 Cal. 580, 581, 21 Am. St. Rep. 67, 25 Pac. 51; Shepherd v. Ware, 46 Minn. 174, 24 Am. St. Rep. 212, 48 N. W. 773; State v. Guilbert, 56 Ohio St. 575, 60 Am. St. Rep. 756, 47 N. E. 551, 38 L. R. A. 519; Leigh v. Green, 64 Neb. 533, 101 Am. St. Rep. 592, 90 N. W. 255; People v. Simon, 176 Ill. 165, 68 Am. St. Rep. 175, 52 N. E. 910; Bear Lake County v. Badge, 9 Idaho, 703, 108 Am. St. Rep. 179, 75 Pac. 615; Brown v. Board of Levee Comrs., 50 Miss. 468; Tyler v. Court of Registration, 175 Mass. 71, 55 N. E. 812; Hill v. Henry, 66 N. J. Eq. 150, 57 Atl. 554; Andrews v. Quayaquil etc. Ry. Co., [N. J. Eq.], 60 Atl. 568.) The act in question requires no diligence to be shown by evidentiary facts, which showing is jurisdictional, and cannot be dispensed with. (Forbes v. Hyde, 31 Cal. 342, 349, 354.) The act contemplates an ex parte proceeding without controversy or the naming of any defendants, and is not a proper invocation of judicial power or jurisdiction. (Austin's Philosophy of Jurisprudence, sec. 1036; Miller on Constitution, 348; 3 Blackstone, 25, 66; Cashman v. Cashman's Heirs, 123 Mo. 549, 27 S. W. 549; Tregea v. Modesto, 164 U. S. 179, 17 Sup. Ct. 52; Reid v. Darby, 10 East. 143; Denny v. Bennett, 128 U. S. 489, 9 Sup. Ct. 34; Cushing v. Laird, 107 U. S. 69, 2 Sup. Ct. 196; Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773; Blagge v. Moore, 6 Tex. Civ. App. 359, 23 S. W. 470; Harvey v. Harvey, 73 N. H. 106, 59 Atl. 621; Rodley v. Curry, 120

[150 Cal. Cal. 541, 52 Pac. 999; Third-St. etc. Ry. Co. v. Lewis, 173 U. S. 457, 19 Sup. Ct. 451; Attorney-General v. Avon, 3 DeG. J. & S. 637; Case of Prohibitions, 12 Coke, 63; Silver v. Schuylkill County, 32 Pa. St. 357; Bradstreet v. Neptune Ins. Co., 3 Sum. 600, Fed. Cas. No. 1793; Georgia v. Stanton, 6 Wall. 50; De Camp v. Archibald, 50 Ohio St. 618, 40 Am. St. Rep. 692, 35 N. E. 1056; In re Canadian Northern Ry. v. International Bridge Co., 7 Fed. 653; Brewington v. Lowe, 11 Ind. 21, 48 Am. Dec. 349; Fuller v. Colfax County, 14 Fed. 177, 178, 4 McCrary, 535; Lord v. Veazie, 8 How. 255, 12 L. ed. 1069; Livingston v. D'Orgenoy, 108 Fed. 469; Carroll v. Lessee, 16 How. 275, 286, 287; Dunne v. State, 163 Ind. 317, 71 N. E. 890; Taylor v. Place, 4 R. I. 324; In re Senate Resolution, 12 Colo. 466, 21 Pac. 478; State v. Fleming, 70 Neb. 523, 97 N. W. 1063; Ex parte County Council, 1 Q. B. 725; Schooner Tilton, 5 Mason, 465, 477, Fed. Cas. No. 14054.) The division of powers, under the constitution, requires the judicial power to be distinct, without encroachment of administrative function, and that it be construed in the light of the common law, which requires the judicial power to determine a present controversy between parties to an action. (State v. Harmon, 31 Ohio St. 250; Sweet v. Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289; Kilbourn v. Thompson, 103 U. S. 168, 190; Lady Langdale v. Briggs, 8 De G. M. & G. 391; Ferrand v. Wilson, 4 Hare, 385; Rooke v. Lord Kensington, 25 L. J. (N. S.) Ch. 795; Southern Ry. Co. v. State, 116 Ga. 276, 42 S. E. 508; Mayor of Edinburgh, 1 Macph. 887, 1 Sessions Cases, 3d series; Cashman v. Cashman's Heirs, 123 Mo. 647, 27 S. W. 549; Lathrop v. Stuart, 5 McLean, 167, Fed. Cas. No. 8113; Blagge v. Moore, 6 Tex. Civ. App. 359, 23 S. W. 470; Ellis v. Davis, 109 U. S. 486, 3 Sup. St. 327; Lloyd v. Wayne, Circuit Judge, 56 Mich. 236, 56 Am. St. Rep. 378, 23 N. W. 28; State v. Guinotte, 113 Mo. App. 399, 86 S. W. 884.) The act in question is void as being special legislation in matters of practice differing wholly from the practice required in civil actions, as to service by publication (Code Civ. Proc., secs. 413, 749), as to time for appearance (Code Civ. Proc., sec. 407), as to showing of diligence required for publication (Code Civ. Proc., secs. 412, 749), as to the index of actions. (Pol Code, sec. 4204), as to notice of lis pendens (Code Civ. Proc., sec. 409, 712), and as respects practice upon appeals,

no defendants being named who have a right of appeal upon the record, and the plaintiff himself having no power to serve any notice of appeal, since all facts conferring jurisdiction upon appeal must appear upon the record appealed from (In re Crooks' Estate, 125 Cal. 459, 58 Pac. 89; Constitution v. Woodworth, 2 Ill. (1 Scam.) 511; The Spark v. Lee Choy Chum, 1 Sawy. 713, Fed. Cas. No. 13206; Aiken v. Smith, 54 Fed. 894, 4 C. C. A. 652; Handley v. Anderson, 5 Ind. Tr. 186, 82 S. W. 716), and practically allowing a confiscation of property of a person having no reasonable notice of the proceedings. (In re Cook, 86 App. Div. 586, 83 N. Y. Supp. 1009, 1011.) Decrees entered under the act in question are commercially valueless. (Cella County Commrs. v. Bohlinger, 147 Fed. 419; Baart v. Martin (Dist. Court of Minn.), Minn. Journal, April 8, 1905, 108 N. W. 945.)

SLOSS, J.-In June, 1906, the legislature of this state, having been convened in extraordinary session to legislate concerning certain needs developed by the disaster of April 18, 1906, enacted, among other statutes, one entitled "An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records."

The present proceeding is an application for a writ of mandate. The petitioner herein filed a complaint, as provided by the act above referred to, and applied to the respondent, judge of the superior court in which its complaint had been filed, for an order for publication of summons. The respondent declined to make the order upon the ground that the act in question violated certain provisions of both the federal and state constitutions. The purpose of this proceeding being to compel the judge of the lower court to make the order for publication, as requested, the real, and substantially the only, question herein involved is whether or not the abovementioned act is a valid exercise of legislative power. The facts alleged in the petition are not denied, and the matter now comes before the court upon a demurrer to the petition. In order to properly state and discuss the constitutional points made in support of the demurrer, it will be well to give a somewhat full statement of the provisions of the act in question.

The act provides that whenever the public records in the office of a county recorder are lost or destroyed, in whole or in any material part, by flood, fire, or earthquake, any person who claims an estate of inheritance or for life in, and who is by himself or his tenant or other person in the actual and peaceable possession of any real property in such county, may bring and maintain "an action in rem against all the world" in the superior court of the county where the land is situate "to establish his title to such property and to determine all adverse claims thereto." (Sec. 1.) The action is commenced by the filing of a verified complaint in which the party commencing the same is named as plaintiff, and the defendants are described as "all persons claiming any interest in or lien upon the real property herein described, or any part thereof." The complaint is to contain a statement of the facts enumerated in section 1 of the act, together with a particular description of the real property, and a specification of the estate or interest of the plaintiff therein. (Sec. 2.) The act provides for the issuing of a summons upon the filing of the complaint. The summons is directed to "all persons claiming an interest in or lien upon the real property herein described, or any part thereof," and requires them to appear within three months after the first publication of the summons, and to set forth what interest or lien, if any, they have upon the real property in question, a description of which is to be contained in the summons. At the time of the filing of the complaint the plaintiff must file with the same his affidavit fully and explicitly setting forth and showing: 1. The character of his interest, the duration of its existence, and from whom it was obtained; 2. Whether or not he has ever made any conveyance affecting the property, and if so, when and to whom, and a statement of any and all subsisting mortgages, deeds of trust, and other liens thereon; 3. That he does not know and has never been informed of any other person who claims or may claim any interest in or lien upon the property adversely to him, or if he does know and has been informed of any such person, then the name and address of such person. If the plaintiff is unable to state one or more of the matters required, he shall set forth and show fully and explicitly the reasons for such inability. This affidavit is

made to constitute a part of the judgment-roll. (Sec. 5.) The summons is required to be published in a newspaper of general circulation published in the county in which the action is brought, the particular newspaper to be designated by an order of the court or a judge thereof. The summons is to be published at least once a week for a period of two months and to each publication there must be appended a memorandum giving the date of the first publication of the summons. There must also be appended to the summons a memorandum giving the names of any persons who are known to the plaintiff to claim any interest in the property adversely to the plaintiff, if the names of such persons appear in the affidavit filed with the complaint. (Sec. 4.) If the affidavit discloses the name of any person claiming any interest adversely to the plaintiffs, the summons must be personally served upon such person, if he can be found within the state, together with a copy of the complaint and a copy of the affidavit and memoranda provided for in section 4, and if the person disclosed by the affidavit resides out of the state, a copy of the summons, memoranda, complaint, and affidavit must be sent to him by mail within fifteen days after the first publication of the summons. If he resides within the state and cannot with due diligence be found therein before the expiration of the period of the publication of summons, then the copies shall be mailed to him forthwith upon the expiration of the period of publication. (Sec. 6.) In addition to the service by publication and the personal service and mailing above spoken of, the act provides that a copy of the summons and of the memoranda referred to shall be posted in a conspicuous place on each separate parcel of the property described in the complaint within fifteen days after the first publication of the summons. (Sec. 4.) Upon the completion of the publication and posting of the summons and its service upon and mailing to the persons, if any, upon whom it is directed to be personally served "the court shall have full and complete jurisdiction over the plaintiff and the said property and of the person of every one having or claiming any estate, right, title or interest in or to, or lien upon, said property or any part thereof, and shall be deemed to have obtained the possession and control of such property