private property shall not be taken for public use without just compensation." The very restriction upon the exercise of the absolute power to take implies its existence. This principle of ultimate ownership is the basis for what is known as the right of escheat. The right is absolute, but the sovereign will not exercise it except in the absence of other owner claimants.
There can be no question of the possession by Pennsylvania of the so called "right of escheat." The limitation of which we have spoken exists because every sovereign is bound by the necessities of the case to restrict the exercise of his sovereign powers to his own domains. If he did not there would be trouble. He is assumed to so agree. Pennsylvania would not, for illustration, assert the power to escheat property in New Jersey. Why? Because New Jersey is also a sovereign power with the right to escheat property within its domain. In no other way can a clash be avoided. Precisely the same principle applies to the United States. It is likewise a sovereign.
Out of this situation a conflict of rival claims might arise, the discussion provoked by which would be very interesting. Into this as yet we see no reason to go. The question before us is a narrower one.
There is a distinction between "escheatable" and "escheated." The Pennsylvania Acts of Assembly recognize this and indeed use these very phrases. The title of Pennsylvania to any property subject to escheat is not because the property is "escheatable," but because it has been escheated. We can award moneys under the control and disposition of the court only to those who establish title thereto. The act of Congress (28 U.S.C.A. § 852) which makes these moneys subject to the award of this court does so only in favor of "any person or persons, corporation or company" who can lay successful claim of ownership thereto. Assuming arguendo the state to be within this act, it is able as yet to show no title to these moneys. Under the facts it may or may not be able to secure a judgment of escheat, but it has not done so. Counsel for petitioner recognizes this, and hence ask this court to enter such a judgment. Have we the jurisdictional power to so do? The touchstone of the answer to this question is to ask another. Had the petitioner gone into one of the several courts of common pleas, the orphans' court, or the municipal court of Philadelphia, to ask it for such judgment or decree, and the like question of power had been raised, how would it be answerable? The answer would be some cited act of Assembly had conferred the power. Where does this court get its power? The answer given us, and it is the only answer which could be given, is "from the same Acts of Assembly." This answer is not convincing for it encounters the principle that an act of Assembly of the state can neither confer jurisdictional powers upon this court nor abridge those which we possess as courts of the United States.
Some minor procedural difficulties have been suggested. Some of this money is or was subject to the jurisdiction of the court of equity; some of the admiralty court; and some of the bankruptcy court. We see no importance in these distinctions of jurisdiction and of powers. However the different funds were raised when they had been paid into the registry of the court or had been turned into the Treasury of the United States, the act of Congress empowers the District Court to decree, on the application of a claimant, to whom the moneys belong. This means title. Evidence that money is "escheatable" is no evidence that it has been escheated, and the state has no title until there has been an escheat. The state statutes make this clear. The real position of the petitioner is that the state statutes have conferred jurisdiction upon no state court to enter judgment to escheat these moneys, but they have conferred it upon this court. This they cannot do, and we in consequence have no such power. Our powers are those conferred by Congress, and Congress has restricted us to awarding the fund to the one who has title to it. Congress has passed no general escheat statute. The state has and no title by escheat can be acquired otherwise than by a compliance with those statutes. When the petitioner is able to show title to these moneys, it will then be our duty to pass judgment upon the title set up. Then, but not until then, will the very interesting questions discussed arise. If we are now asked to award these moneys to the state under the authority of the cited act of Congress, we answer that it empowers us to make the award only to those who prove title, and the state has assyet no title. If we are asked to confer title by entering a judgment of escheat in favor of the state and thus give it title, our answer is that we have no jurisdictional power to so do.
The prayers of the petitioner are denied, and the petitions dismissed.
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