323 F. Supp. 1321

VAN PELT, Senior District Judge
(dissenting):
It is with regret that I conclude that I cannot join in the opinion adopted by my esteemed colleagues in this case. It is my conclusion that in reaching the proper decision in this controversy we should await the action of the state courts and a final decision in the Supreme Court of the State of Nebraska as to Section 76-402 of the Nebraska Revised Statutes.
I cannot agree that under the guise of police power a state may discriminate against non-resident aliens of countries with whom we are not at war, and deny them due process as required by the Fourteenth Amendment. If the Nebraska court, in the pending state court litigation, would hold that a non-resident alien is entitled to compensation for the property which escheats to the state then he has had due process under the Fourteenth Amendment. If the statute is so interpreted as to escheat his property without compensation then I think the statute unconstitutional. My reasons cannot be set forth as briefly as I had hoped.
ABSTENTION
In Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the Court discussed the rules pertaining to the judicially created doctrine of abstention, first laid down by the Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In Reetz, the Court said:
“[The abstention doctrine] should be applied only where ‘the issue of state law is uncertain.’ Harman v. Forssenius, 380 U.S. 528, 534 [85 S.Ct. 1177, 14 L.Ed.2d 50], Moreover, we said in Zwiekler v. Koota, 389 U.S. 241, 248, [88 S.Ct. 391, 19 L.Ed.2d 444] that abstention was applicable ‘only in narrowly limited “special circumstances,” ’ citing Propper v. Clark, 337 U.S. 472, 492 [69 S.Ct. 1333, 93 L.Ed. 1480], In Zwiekler, a state statute was attacked on the ground that on its face it was repugnant to the First Amendment; and it was conceded that state court construction could not render unnecessary a decision of the First Amendment question. 389 U.S., at 520 [88 S.Ct., at 396]. A state court decision here, however, could conceivably avoid any decision under the Fourteenth Amendment, and would avoid any possible irritant in the federal-state relationship.”
I consider the abstention doctrine applicable in this case, for as I read the Nebraska cases the state supreme court has never passed on the question of whether a non-resident alien is entitled to compensation. I would, therefore, afford the Nebraska courts the opportunity to pass upon the state statutes here involved. It is not unlikely that this controversy could thus end in the state courts without our interference.
Even assuming the abstention doctrine is not applicable, I would dissent from the proposed disposition of this case, and reject the holding in Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 (1923). In my view that case was wrongly decided and should not control the outcome of this controversy. While I agree that the police power of the state is an important constitutional grant, and is not diminished in stature or importance by the Fourteenth Amendment, I cannot agree that a state may discriminate against aliens and deny them due process, as required by the Fourteenth Amendment, under the guise of the police power. The focal point of my differences with the proposed opinion is Neb.Rev.Stat. § 76-402 (Reissue 1966).
To me there are three issues in this case which are inextricably bound together and to which there are no clear-cut answers. Perhaps the primary issue to be decided is whether a non-resident alien has standing to raise the argument that he has been deprived of his property located in this country without due process of law. Secondly, assuming he does have such standing, does the alien in fact have any “property” which has been taken by the state. Finally, assuming the alien has both standing and property, is the statute consistent with the Fourteenth Amendment on the basis that the statutory scheme provides compensation to those persons who would have been entitled to the property save for the operation of § 76-402?
STANDING
The issue of whether a non-resident alien has standing to raise the due process argument, if he is physically absent from this country but allegedly has property here which provides a basis for jurisdiction is not considered by the proposed opinion. Instead the opinion concludes that the statutes in question do not violate the due process clause in any event. The former issue has never been decided by the United States Supreme Court, although there have been lower court pronouncements on this issue. See, e. g., Cermeno-Cerna v. Farrell, 291 F.Supp. 521 (C.D.Cal.1968); contra, Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 (2nd Cir. 1966).
Perusal of the language contained in the Fourteenth Amendment reveals that there is an obvious distinction between the class of persons protected by the due process clause and the class of persons protected by the equal protection clause of that amendment, as the proposed opinion has pointed out. The equal protection clause extends its protection only to those persons within the jurisdiction of the state, but there is no comparable limitation in the language of the due process clause. See Township of River Vale v. Town of Orangetown, 403 F.2d 684 (2nd Cir. 1968). As I read the due process clause, it applies to any person, regardless of whether that person resides within the territorial jurisdiction of the United States, if that person can show some deprivation of life, liberty, or property within the territorial jurisdiction sufficient to give the judiciary power to act. No words of qualification or limitation appear. I submit that, for purposes of standing, there is no logical basis for asserting that the words do not mean precisely what they say, and therefore a non-resident, friendly alien alleging a deprivation of his property which is located within the territorial boundaries of this country would have standing to raise the due process argument.
In Cermeno-Cerna v. Farrell, supra, deportation proceedings were instituted against certain “commuter” aliens, pursuant to 8 C.F.R. § 211.1(b). Plaintiffs filed a declaratory judgment action to have the regulation declared invalid on the ground that it violated the Fourteenth Amendment. The regulation, in essence, prohibited these “commuter” aliens who entered the country on special entry forms, from returning to the United States if, prior to their departure or during their absence, the alien arranged to return for the purpose of accepting employment at a place where the Secretary of Labor had determined that a labor dispute existed. The court, in holding that the regulation did not call for court intervention, stated:
“The regulation thus classifies returning immigrants as:
1. Those returning to employers not certified by the Secretary of Labor who can use their 1-151 green card for entry; and
2. Those returning to employers certified by the Secretary of Labor who cannot use their 1-151 green card for entry.
“Certainly, without more, such a distinction is arbitrary and without rational basis when applied to immigrants admitted for permanent residence to the United States who are exercising a privilege to travel to and from their native land to their adopted one. Such a distinction cannot stand within the rationale of Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Recognizing that aliens outside the United States cannot complain of a lack of due process or equal protection of the law, it is clear that aliens residing or present within the United States must be afforded both procedural and substantive due process and equal protection. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954).” Id. 291 F.Supp. at 528 (emphasis added).
The court cites Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), for the proposition that residing in this country entitles an alien to invoke the protection of the due process and equal protection clauses. That case cannot, however, be cited for the proposition that residing outside the territorial boundaries prohibits an alien from invoking the protection of the due process clause when the alien has allegedly been deprived of his property located within the boundaries of this country. With all due respect, I feel constrained tq reject the proposition that aliens outside of the United States are not entitled to the protection of the due process clause if they have property in this country. The very words of the Fourteenth Amendment refute such a conclusion. Judge Friendly has perhaps expressed this view most succinctly:
“The Government’s second answer that ‘The Constitution of the United States confers no rights on non-resident aliens’ is so patently erroneous in a case involving property in the United States that we are surprised it was made. Throughout our history the guarantees of the Constitution have been considered applicable to all actions of the Government within our borders — and even to some without. Cf. Reid v. Covert, 354 U.S. 1, 5, 8, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). * * * This country’s present economic position is due in no small part to European investors who placed their funds at risk in its development, rightly believing, they were protected by constitutional guarantees; today, for other reasons, we are still eager to attract foreign funds. In Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 491-492, 51 S.Ct. 229, 75 L.Ed. 473 (1931), the Court squarely held that an alien friend is entitled to the protection of the Fifth Amendment’s prohibition of taking without just compensation — even when his government was no longer recognized by this country. And the Court has declared unequivocally, with respect to non-resident aliens owning property within the United States, that they ‘as well as citizens are entitled to the protection of the Fifth Amendment.’ United States v. Pink, 315 U.S. 203, 228, 62 S.Ct. 552, 564, 86 L.Ed. 796 (1942). See also Guessefeldt v. McGrath, 342 U.S. 308, 317-319, 72 S.Ct. 338, 96 L.Ed. 342 (1952).
“It does not follow, however, that in dealing with the property of an alien the United States must be blind to the acts of the, country of which he is a national; the Constitution protects the alien from arbitrary action by our government but not from reasonable response to such action by his own.”
Sardino v. Federal Reserve Bank of New York, 361 F.2d 106, 111 (2nd Cir. 1966) (footnote omitted) (emphasis added).
The argument that Sardino is readily distinguishable from the instant ease has merit. In Sardino, a Cuban national challenged regulations issued by the Secretary of Treasury freezing all bank deposits of such individuals. The court upheld the regulations on the ground that it was a legitimate means of withholding dollar resources from a government engaged in activities inimical to our national welfare, and to compensate our citizens for wrongs done by that government. The “property” involved in that case, however, consisted of currency actually owned by the non-resident alien. Here, on the other hand, the “property” in question is not currency, but real estate. In Sardino there was no question as to the ownership of the money, but in this case there is a question as to the ownership of the real estate.
This then brings me to the second issue connected with this case, that is, whether the non-resident alien had any “property” which was in fact taken by the state. Obviously the due process clause would be of little consequence if he did not.
Arguably, the alien has no “property” in this state because the land escheats automatically to the state upon the failure of heirs, under Neb.Rev.Stat. § 76-401 (Reissue 1966), and there is a “failure of heirs” due to the operation of § 76-402 here under attack. An analogy may be drawn to a situation in which an alien is attempting to gain entrance into this country, so the argument runs, and as such he does not have any constitutional rights. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596-597, n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953). However, to say that the non-resident alien has no property presupposes the constitutional validity of the very statutes here under attack. It is the statutory operation of Neb.Rev.Stat. § 76-402 (Reissue 1966) which precludes the non-resident alien in this case from actually taking the property in his name and establishing title to it.
While I recognize the general presumption that a legislative enactment is constitutional, see, e. g., United States v. Powers, 307 U.S. 214, 59 S.Ct. 805, 83 L.Ed. 1245 (1939), rehearing denied, 308 U.S. 631, 60 S.Ct. 66, 84 L.Ed. 526 (1939). I fail to understand how that presumption can be raised as an impenetrable shield to foreclose an attack on constitutional grounds. To do so, it seems to me, forces the proponent of such an argument to advocate or engage in circuitous reasoning, and force everyone else into a game of semantics. The result is that the statute is left unscathed on the sole ground that the legislature presumably acted within constitutional limits, without ever having examined whether it did so in fact.
I am fully cognizant of the rule at common law that an alien was not entitled to hold real property in his own name. See, e. g., Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cr.) 603, 3 L.Ed. 453 (1813). He could take by act of the parties, but could not take by operation of law. At the same time I am aware that our Constitution is based on a considerable extent upon the common law. Nevertheless, I cannot discount the precise language of the due process clause and its logic. It commands with unmistakable clarity that no state shall deny any person the right to due process of law. The right is not limited solely to citizens or residents. Physical location or presence is not designated a ground for distinguishing between those who are entitled to its protection and those who are not, when there is some basis upon which the judiciary may act.
This is not to say, however, that nonresident aliens are given carte blanche under the Fourteenth Amendment. Although “the alien in several respects stands on an equal footing with citizens, * * * in others [he] has never been conceded legal parity with the citizen.” Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S.Ct. 512, 517, 96 L.Ed. 586 (1952).
“ ‘The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all “persons” and guard against any encroachment on those rights by federal or state authority.’ ” Kwong Hai Chew v. Colding, 344 U.S.. 590, 596-597, n. 5, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953), citing, Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 89 L.Ed. 2103 (concurring opinion).
The Court has been careful to explicate some of the limitations which must be observed in connection with aliens.
“[T]he Constitution assures [the alien] a large measure of equal economic opportunity, Yick Wo v. Hopkins, 118 U.S. 356, [6 S.Ct. 1064, 30 L.Ed. 220]; Truax v. Raich, 239 U.S. 33, [36 S.Ct. 7, 60 L.Ed. 131]; he may invoke the writ of habeas corpus to protect his personal liberty, Nishimura Ekiu v. United States, 142 U.S. 651, 660, [12 S.Ct. 336, 35 L.Ed. 1146] in criminal proceedings against him he must be accorded the protections of the Fifth and Sixth Amendments, Wong Wing v. United States, 163 U.S. 228, [16 S.Ct. 977, 41 L.Ed. 140]; and, unless he is an enemy alien, his property cannot be taken without just compensation. Russian Volunteer Fleet v. United States, 282 U.S. 481 [51 S.Ct. 229, 75 L.Ed. 473].” Harisiades v. Shaughnessy, supra, 342 U.S. at 586, n. 9, 72 S.Ct. at 517.
Most cases in which aliens are involved afford as a basis for jurisdiction the alien’s physical presence within the state’s boundaries, “and [in those cases] the civil and property rights of immigrants or transients of foreign nationality so nearly approach equivalence to those of citizens,” there is little need to inquire whether the individual is citizen or alien. Johnson v. Eisentrager, 339 U.S. 763, 771, 70 S.Ct. 936, 940, 94 L.Ed. 1255 (1950). The courts have further recognized the power of the government to terminate the hospitality extended to aliens, and to distinguish between those declared friendly and those declared enemy aliens. “War, of course, is the most usual occasion for extensive resort to [this] power.” Harisiades v. Shaughnessy, supra, 342 U.S. at 587, 70 S.Ct. at 517.
Nothing in this record indicates that plaintiffs are non-resident enemy aliens. It has been held that an alien friend is entitled to the protection of the Fifth Amendment, Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473 (1931), and to the Fourteenth Amendment, Kwong Hai Chew v. Colding, supra. His property cannot be taken without just compensation. I would conclude in this case that the alien does have property in this state, and proceed on that basis to analyze the statute.
This brings me to the third issue connected with this case, that is, whether the Nebraska statutory scheme provides for compensation to these aliens who would have been entitled to the land but for the operation of § 76-402. The majority opinion does not address itself to this issue, which could be the key to whether the statute conforms to the requirements of due process. If the statutory scheme provides for compensation, it is difficult to conceive how plaintiffs were denied any rights under the Fourteenth Amendment. If, on the other hand, these plaintiffs are not to be compensated, I conclude that the statute violates the due process clause.
As originally enacted the alien land law provided in pertinent part:
“Section 1. Non-resident aliens and corporations not incorporated under the laws of the state of Nebraska, are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase or otherwise, only as hereinafter provided, except that the widow and heirs of aliens who have heretofore acquired lands in this state under the laws thereof, may hold such lands by devise or descent for a period of ten (10) years and no longer, and if at the end of such time herein limited such lands so acquired have not been sold to a bona fide purchaser for value, or such alien heirs have not become residents of this state, such lands shall revert and escheat to the state of Nebraska, and it shall be the duty of the county attorney in the counties where such lands are situated to enforce forfeitures of all such lands as provided by this act.
See. 2. Whenever any such lands shall revert and escheat to the state of Nebraska as provided in this act, it shall be the duty of the county attorney of the county in which such lands are situated to proceed against such alien in the district court of the county where the land is situated, for the purpose of having such forfeiture declared. Service of summons may be had upon the non-resident alien defendants by publication as provided in the Statutes of Nebraska for the service of summons by publication in cases of foreclosure of mortgages, and the court shall have power to hear and determine the questions presented in such cases and to declare such lands escheated to the state; and when such forfeiture shall be declared by the district court it shall be the duty of the clerk of the court to notify the governor of the state that the title to such lands is vested in the state by the decree of the said court, and the clerk of the court shall present the auditor of public accounts with the bill of costs incurred by the county in prosecuting such case, who shall issue a warrant to the clerk of the court on the state treasurer to repay the county for such costs incurred.
The heirs or persons who would have been entitled to such lands, shall be paid by the state of Nebraska the full value thereof, as ascertained by appraisement upon the oaths of the judge, treasurer and clerk of the county where such lands lie, and such lands shall then become subject to the law, and shall be disposed of as other lands belonging to the state; Provided, That the expense of the appraisement shall be deducted from the appraised value of the land.” Laws 1889, c. 58, §§ 1-2, pp. 483-485.
It is readily apparent that the statute applied only to non-resident aliens, and provided for full compensation to any person "who would have been entitled to such lands.” R.S.1913 shows that the original act was subdivided into specific statutory sections. Section 2 of the original act, covering the escheat and compensation provisions was amended in 1911, adding a second proviso not here relevant.
In Toop v. Ulysses Land Co., 237 U.S. 580, 35 S.Ct. 739, 59 L.Ed. 1127 (1915), the United States Supreme Court dismissed for want of jurisdiction a challenge to the statute in its original form. In doing so, the Court stated:
“[The] contention that the state statute forbidding ownership of real property by aliens was repugnant to the Fourteenth Amendment, * * * we think also too frivolous to afford a basis for jurisdiction * * *.” Id. at 582-583, 35 S.Ct. at 740.
In Toop it was clear, however, that the statutory scheme provided compensation to those heirs who would have been entitled to the land. It obviously could not be said, therefore, that the statute “deprived] any person of * * * [their] property without due process of law; * * *»
In 1921, Section 1 of the original act, R.S.1913 § 6273, was amended, inter alia, to eliminate the statutory distinction between resident and non-resident aliens. The newly amended statute, eliminating the term “non-resident” thus applied to all aliens. This amended statute appeared in Comp.Stat.1922 § 5687. Comp.Stat.1922 § 5688, providing for compensation to the heirs who would have been entitled to the lands, remained unchanged.
In Nelson v. Nielson, 113 Neb. 453, 203 N.W. 640 (1925), a naturalized United States citizen residing in Nebraska died, leaving a wife, daughter, and brother residing in this country. The state brought an action to quiet title to land owned by the decedent, asserting that none of the relatives could take the land. In the course of its opinion, the court construed § 5688 relating to compensation and stated: “[I]f by our law the * * * [property] is ever escheated to the state it must be by appropriate proceedings and upon full compensation.” Id. at 459, 203 N.W. at 642 (emphasis added). It was further clarified by the court that the alien was to be compensated even though he could not hold the property.
Comp.Stat.1922 § 5687 became Comp. Stat.1929 § 76-502. In 1939, the statute was amended by the legislature. When the statutes were revised in 1943, the Revisor of Statutes divided the amended § 76-502 into what is now §§ 76-402, 76-403, 76-404, 76-405, 76-406, 76-407, 76-412, 76-413, and 76-414. Comp.Stat. 1929 § 76-503 was inserted as § 76-408 in the 1943 Revision.
Before the 1943 revision, the statute provided in part:
“Whenever any such lands shall revert and escheat to the State of Nebraska, as provided in this article, it shall be the duty of the county attorney [to bring escheat proceedings in the county court.] * * * The heirs or persons who would have been entitled to such lands shall be paid by the State of Nebraska the full value thereof, * * * ”
The Revisor eliminated the phrase “this article” and substituted “sections 76-403, 76-405 and 76-411.” The Revisor’s notes indicate that the phrase “this article has reference to the provisions of those sections providing that lands shall escheat to the State of Nebraska and has been changed to ‘sections 76-403, 76-405, and 76-411’ for definiteness.”
In Semrad v. Semrad, 170 Neb. 911, 104 N.W.2d 338 (1960), the Nebraska Supreme Court was confronted with an interpretation of this change in language by the Revisor. In that case the deceased left land owned by him in Nebraska to a number of surviving heirs residing in Czechoslovakia. The ,State filed a petition of intervention, asserting a reversion of the land to the State. The petition was subsequently withdrawn. It was immediately re-filed. The district court ruled that the State had waived its right to an escheat by intervening and then withdrawing, but the State Supreme Court reversed and remanded the case to the district court. In the course of argument the appellees asserted that the Revisor had changed the meaning of the statute by replacing the words “this article” with specific section numbers of the statues. In response, the court stated:
“The meaning of the act was not changed. To hold otherwise would render section 76-401 * * * a meaningless provision. The acts governing escheats must be construed together and effect given to each provision if it is possible to do so. Section 76-408 * * * clearly refers to the exceptions and provisos of sections 76-403, 76-405, and 76-411 * * * and not to section 76-401 * * * which provides for the vesting of title in the state without legal action. In any event, the Legislature reenacted section 76-408 * * * in its present form when it adopted and included the questioned language in a general revision of the statutes.” Id. at 917, 104 N.W.2d at 342
It is to be noted that no reference is made to § 76-402 which is involved in this ease along with § 76-401. The focal point in Semrad, however, is significantly different than in the instant case. There the question was whether proceedings in escheat under § 76-401 had to be instituted by the county attorney when there was a failure of heirs under § 76-402, or whether the escheat occurred automatically. The court did not state in its opinion whether compensation must be paid for the land which escheats to the state to those who would have been entitled to the land, save for the operation of § 76-402.
The court’s decision in Semrad results in a paradox. If in fact the Revisor did not change the meaning of § 76-402 by substituting specific statutory sections for the phrase “this article", which is seemingly correct in light of the Revisor’s notes, then clearly compensation must be paid, even though § 76-402 is not specified in § 76-408. If, on the other hand, the exceptions and provisos enumerated do not impliedly encompass § 76— 402, and no compensation is to be paid, then the meaning of the former statute was changed by the Revisor’s substitution. If no compensation is to be paid, the statute amounts to a pure and simple confiscation of the property. In this connection, it must be pointed out that there is no indication in Semrad that compensation is not to be paid. This issue was argued and briefed to the State Supreme Court in Semrad, but the court did not answer this question in the course of its opinion.
I submit that the proper reading of the legislative history of the escheat provisions indicates that the intent was to provide compensation to those persons who would have been entitled to the land, and that the Revisor of Statutes did not intentionally alter this meaning in 1943. Concededly, the statute does not provide for compensation when land escheats under §§ 76-401, -402, and arguably by adopting the proposed change the legislature changed the requirement. If this is in fact true, then the statute here primarily under attack, § 76-402, constitutes a deprivation of property without compensation, one of the most elementary ingredients of due process, and is unconstitutional. It is more probable that the meaning of the statute was inadvertently changed in 1943, and that under the present scheme no compensation is to be paid. On that ground I would declare the statute invalid.
As indicated at the beginning of this opinion, I think the case now pending in the state courts should be continued and the Nebraska Supreme Court afforded the opportunity of interpreting the Nebraska statutes. I would withhold final disposition of this case awaiting such decision.
For the reasons given I cannot agree with the majority opinion in denying these non-resident aliens, with whose country the United States is not at war, the property or compensation therefor, which their American citizen relative desired'them to have.
. “Aliens and corporations not incorporated under the laws of the State of Nebraska are prohibited from acquiring title to or taking or holding any land, or real estate, or any leasehold interest extending for a period for more than five years or any other greater interest less than fee in any land, or real estate in this state by descent, devise, purchase or otherwise, except as provided in sections 76-403 to 76-405.”
. There have been numerous statements by the Court, however, in other contexts which ultimately conclude that the Bill of Rights is properly extended to resident aliens who are physically present in this country. See, e. g., Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952) ; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) ; Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948) ; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). In Johnson v. Eisentrager, supra, the Court stated that “it was the alien’s presence within [the state’s] territorial jurisdiction that gave the Judiciary power to act.” Id. 339 U.S. at 771, 70 S.Ct. at 940. The Court has never considered whether an in rem basis of jurisdiction would similarly suffice to give the Judiciary power to act.
. “Upon the failure of heirs, the title shall vest at once in the state, without an inquest or other proceedings in the nature of office found.”
. A personal note must be here added. Perhaps it accounts for my feeling that I cannot adopt the majority opinion and thus bar the plaintiffs from their inheritance. Walter D. James, now deceased, was the Revisor of the 1943 statutes. He asked Paul Boslaugh, later a Justice of the Nebraska Supreme Court, and now deceased, and me, to serve without compensation as advisors to the Re-visor. We did. Mr. James was Supreme Court Reporter when the Semrad opinion was filed and Volume 170 bears his name. The quoted statement that the meaning of the act was not changed is thus of great significance. It has not only the stamp of authority of Justice Boslaugh’s concurrence and Mr. James’ reporting but I too know that it was not intended in the revision to change the law as it then existed, and bar non-resident aliens from compensation even though § 76-402 is not specified in § 76 — 408. The Revisors, and I include myself in the term, erred in their enumeration of ex ceptions and provisos. Therefore, I cannot stand by without protest and let plaintiffs’ inheritance be taken away without compensation.
. It is upon this basis that I feel the abstention doctrine should be applied in this case.

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