| KF {| +765 i | LAW Books j°83 NASSAU § J $07 Stge pep = SNNOO © gr OER s From the Library of the Late ROBERTS WALKER Friend and Partner of Justin DuPratt White (Cornell ’90) Presented to Cornell University In Memory of That Relationship by MR. WALKER’S FAMILY Gurvell Lam School Library ROBERTS WALKER Scab NEW YORK nell Universi KF 4765. 124" “ina DATE DUE iy. 7 ve ua va DUE PROCESS of LAW | ROBERTS WALKER ue SCARSDALE, NEW YORK THE EQUAL PROTECTION of the LAWS A Treatise Based, in the Main, on the Cases in Which the Supreme Court of the United States Has Granted or Denied Relief upon the One Ground or the Other By HANNIS TAYLOR Hon. LL. D. of the Universities of Edinburgh and Dublin and of eight American Universities Author of ‘‘The Jurisdiction and Procedure of the Supreme Court of the United States’; “International Public Law’’; “‘The Science of Jurisprudence’? (Presented to the Institute of France, March 13, 1909); “‘The Origin and Growth of the English Constitution’’; ‘The Origin and Growth of the American Constitution’’; “Cicero, a Sketch of His Life and Works. A Commentary on the Roman Con- stitution and Roman Public Life.’? Sometime Minister Plenipo- tentiary of the United States to Spain. CHICAGO CALLAGHAN AND COMPANY 1917 KYPASS CopyricHt 1917 BY CALLAGHAN & COMPANY The author dedicates this book to bis son HANNIS: JOSEPH TAYLOR recently admitted to the bar, and through him to the new generation of American lawyers who will be called upon to defend the ancient constitutional guaranties imbedded in ‘‘the law of the land’’ against the persistent effort now in progress to sub- stitute for them a bureaucratic system based on the deadly assumption that this is no longer ‘‘a thorough government of law as contradistinguished to a gov- ernment of functionaries.’’ Quamquam te, Marce fili, . . . Cari sunt pa- rentes, cari liberi, propinqui, familiares, sed omnes omnium caritates patria una complexa est, pro qua quis bonus dubitet mortem oppetere, si ei sit pro- futurus? Cicero, De Officiis, I, 1, xvii. PREFACE The principles embodied in the constitutional formu- las—due process of law and the equal protection of the laws—are the ultimate outcome of the progressive history of the English and American peoples considered as one unbroken development. The basic conception, whether it be called ‘‘due process of law’’ or ‘‘the law of the land,”’’ is purely an English creation which has no prototype in the constitutional history of any other country. As Lieber has expressed it, ‘‘The guaranty of the suprem- acy of the law [due process] leads to a principle which, so far as I know, it has never been attempted to trans- plant from the soil inhabited by Anglican people, and which, nevertheless, has been, in our system of liberty, the natural production of a thorough government of law as contradistinguished to a government of functionaries.’’ Civil Liberty and Self-Government, 91. As thus defined, due process of law stands as the anti- pole of what the French jurists call droit administratif, which rests upon the assumption that in France the gov- ernment and each of its servants possess a body of special rights and privileges as against. private citizens to be fixed on principles different from those defining the legal rights and duties of one citizen towards another. Under that theory, speaking generally, the ordinary tribunals have no concern with administrative law (droit administratif) as applied by administrative courts (tri- bunaux administratifs), at the head of which stands the Council of State. Dalloz, Jurisprudence Générale, 1883, li, p. 212; iii, p. 94; 1884, i, p. 220; Aucoc, Droit Admin- v vi PREFACE istratif, ss, 24, 269-272; Vivien, Etudes Administratives, i, pp. 129, 140; M. F. Beeuf, Droit Administratif (4"° ed.), p. 11; Dicey, The Law of the Constitution, pp. 50, 252, 306- 332; Taylor, The Science of Jurisprudence, pp. 88-9. For example if a body of policemen in France, who have broken into a monastery, seized its property and expelled its inmates under an administrative order, are charged with what English lawyers would call trespass and assault, they would plead as an exemption the govern- ment’s mandate in the execution of its decrees dissolving certain religious societies. If the right to plead that exemption is questioned before an ordinary civil tribunal, a ‘‘conflict’’ arises which can not be settled by an ordi- nary judge under what we would call the law of the land. In that illustration we have a sharply defined distinction between ‘‘a thorough government of law as contradis- tinguished to a government of functionaries.’’ Mr. Dicey has said that ‘‘The words ‘administrative law,’ which are its most natural rendering, are unknown to English judges and counsel, and are in themselves hardly intelligible without further explanation. This absence from our language of any satisfactory equiva- lent for the expression droit administratif is significant ; the want of a name arises at bottom from our non-recog- nition of the thing itself. In England, and in countries which, like the United States, derive their civilization from English sources, the system of administrative law and the very principles on which it rests are in truth unknown. This absence from the institutions of the Union of anything answering to droit administratif arrested the observation of Tocqueville from the first moment when he began his investigations into the char- acter of American democracy. In 1831 he writes to an experienced judge (magistrat), Monsieur De Blosseville, to ask both for an explanation of the contrast in this mat- ter between French and American institutions, and also for an authoritative explanation of the general ideas (notions générales) governing the droit administratif of PREFACE vii his country.’? The Law of the Constitution, p. 307, citing Tocqueville, Hiuvres Completes, vii, p. 66. The first and only attempt ever made to induce the Supreme Court of the United States to recognize the existence in this country of a droit administratif occurred in the famous case of the United States v. Lee, 106 U. S. 196, involving the title to the Arlington estate, sold dur- ing the Civil war to the United States for taxes, the cer- tificate of sale being impeached because of the refusal of the commissioners to permit the owner to pay the tax, with interest and: costs, before the day of sale, by an agent, or in any other way than by payment in person. After the case, an action of ejectment, had been removed to the United States Circuit Court, the Attorney General challenged its jurisdiction, and denied its right to pro- ceed because ‘‘the property in controversy in this suit has been for more than ten years and now is held, occu- pied and possessed by the United States, through its off- cers and agents, charged in behalf of the Government of the United States with the control of the property, and who are in the actual possession thereof, as public prop- erty of the United States, for public uses, in the exercise of their sovereign and constitutional powers as a mili- tary station and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designed as the ‘Arlington Cemetery.’’’ Against that plea of droit administratif thus set up by the agents of the Government of the United States stood the conten- tion of the plaintiff that the property in question was his private property, and that it had been taken from him in violation of the constitutional provisions which guaranty due process of law, and that private property can not be taken for public use without just compensation. The issue so made up between the droit admmistratif and ‘‘the law of the land’’ was thus stated by the court itself: ‘ that ‘‘ Proceeding for the recovery of penalties under the Customs Act in the High Court of Justice may be commenced eithe by writ of subpena, or by writ of capias. . . . Tk writ of capias is issued by direction of the Attorney Ge eral and on the fiat of a judge. . . . The suit is s¢ down for hearing by the Crown. Notice of trial, whic must be given by the Crown, is ten days in all case and countermand of notice of trial must be given fou days before the time mentioned in the notice of tria unless short notice of trial has been given, when tw days are sufficient. The trial is usually before a judg and special jury, and the associate in all cases at ni: prwus is to take the verdict.’’ It thus appears that M: Justice Curtis was in the gravest possible error, so fa as the law of England is concerned, when he said ‘‘the probably there are few governments which do or ca 52—Treatise of the Law and Practice of Extents, ¢. 1. 53—Vol. X, under the title, ‘‘ Proceedings on the Revenue Side of tl King’s Bench Division”? % 54—P. 14. 55—P. 8. §100 FIFTH AMENDMENT—CONTINUED (1896-1917) 199 permit their claims for public taxes, either on the citizen or the officer employed for their collection or disburse- ment, to become subjects of judicial controversy, accord- ing to the course of the law of the land.’’ Upon the con- trary in England, ever since Chapters 9 and 39 of Magna Carta went into effect, most careful provision has been made for court procedure, including trial by jury ‘‘ac- cording to the course ‘of the law of the land,’’? whenever the Crown asserts ‘‘claims for public taxes, either on the citizen or the officer employed for their collection or disbursement.’’ Mr. Dicey, in expounding the doctrine of due process as it is understood in the English consti- tutional system, has said:°* ‘‘In England the idea of legal equality, or of the universal subjection of all classes, to the law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’’ The idea that a special class of persons, for example Crown debtors, could be exempt from the protection of a sys- tem whose’ main feature is its universal application to all classes, is an unthinkable solecism which no English judge could possibly embody in a judgment or decree. That solecism becomes still more pronounced when we remember that the protection of Crown debtors against execution before judgment was the leading motive that compelled the insertion of Chapter 39 of the Great Char- ter upon which due process is founded. In attempting to prove the existence of the special Exchequer rule or practice upon which alone he based the judgment of the court in the case in question, Mr. Justice Curtis not only ignored the general principle of due process in England, so luminously stated by Mr. Dicey, but, stranger still, he fell into hopeless confusion by mistaking a writ of extent for a writ of execution. It is undoubtedly true, as he says, that there was a timé when, in the event of 56—The Law of the Constitution, 183. 200 DUE PROCESS OF LAW § 100 defaults by collectors of the revenue, the balances against them were made up by auditors of the Exchequer. To use his own words, ‘‘these balances were found by audi- tors, the particular officers acting thereon have been, from time to time, varied by legislation and usage.”’ What was the effect of their findings? He gives us the answer. ‘‘By the statute 13 Eliz., ch. 4, balances due from receivers of the revenue and all other accountants of the Crown were placed on the same footing as debts acknowledged to be due by statute staple.’’ That is to say, a debt due upon open account was by the action of the auditors converted into a debt of record, upon which the writ of extent could be sued out. It could not be sued out at all until the debt was first made a matter of record. In the words of the learned Justice: ‘‘To authorize a writ of extent, however, the debt must be a matter of record in the King’s exchequer. The 33 Henry VIII, c. 39 sec. 50, made all specialty debts due to the King of the same force and effect as debts by statute staple, thus giving to such debts the effect of debts of record.’’ The fact is thus fixed that after the auditors of the Exchequer had converted the balance due on open account from a collector into a debt of record, a writ of extent could be issued for its collection; and a writ of extent was simply what American lawyers call an attach- ment, because its sole purpose was to give the Crown a preference lien upon the lands and goods of the debtor as against bona fide purchasers. Blackstone makes it all very plain when, in describing the writ of extent, he says: ®7 ‘The lands and goods may be taken by the proc- ess, usually called an extent, or extendi facias, because the sheriff is to cause the lands, etc., to be appraised to their full extended value, before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be paid; . . . so that, if such officer of the Crown aliens for a value consideration, the land shall be liable to the sovereign’s debt even in the hands of a 57—3 Bl. Com. 424-5, §100 FIFTH AMENDMENT—CONTINUED (1896-1917) 201 bona fide purchaser, though the debt to the Crown was contracted by the vendor many years after the aliena- tion.’’ Thus we know for certain that the writ of extent that went into the hands of the sheriffs, at the suit of the Crown, to collect its debt of record, was not an execution, as Mr. Justice Curtis erroneously supposed, ending a litigation, but an attachment beginning one. Before the writ could be issued the Crown had first to satisfy the jury on the first inquisition that the circumstances jus- tified its issue. Then followed the trial on the merits upon every defense the Crown debtor saw fit to impose, as explained heretofore by the opinion of the Exchequer judges in Rex v. Hornblower, and in Regina v. Ryle. No trained lawyer who will read the perfectly clear history of the processes provided by English law for the collection of debts due to the Crown since the violent methods of John, based on the ‘‘grantings of writs of execution without trial in the courts,’’ were abolished by Chapters 9 and 39 of the Great Charter, can doubt for a moment that the single ground upon which the judg- ment in Murray v. Hoboken Land & Improvement Com- pany was based is absolutely foundationless. The entire history, illuminated as it is by the Exchequer reports, West’s Treatise, and the recent restatement of the whole matter by the Earl of Halsbury in ‘‘The Laws of Eng- land,’’ annihilates the assumption that, even in the dark- est days of the Tudor despotism, auditors of the Ex- chequer, without notice or hearing, could enter up a balance against a collector of the revenue as a final judg- ment upon which execution could issue. As no such rule or practice ever existed in England at any time, the Act of Congress of May 15, 1820, authorizing ministerial officers of the Treasury of the United States, armed with no judicial powers whatever, to do such a thing here was of course grossly unconstitutional because forbidden by the due process clause of ‘the Fifth Amendment, which denies, when properly interpreted, that claims against collectors of the revenue can ever cease to be ‘‘subjects 202 DUE PROCESS OF LAW § 100 of judicial controversy according to the course of the law of the land.”’ It is equally impossible to defend the judgment of the court in the case in question, even if we admit for the sake of the argument, the existence in England of the special rule or practice which is its sole and only basis, for the simple and conclusive reason that the entire fabric of despotic law, generally known as Star Chamber law, built up during the Tudor period, was swept away by the Revolutions of 1640 and 1688. The English con- stitutional law that passed into our first state consti- tutions, and thence into the first eight amendments to the Federal Constitution, was drawn from the reformed Eng- lish system as Blackstone defined it in 1758, and not from the unreformed system as Coke described it in 1632, with the Star Chamber and High Commission intact. That vital historical fact was first accepted by the Su- preme Court of the United States.in Hurtado v. Califor- nia 8 when, in openly repudiating the definition of due process contained in Murray v. Hoboken Land & Im- provement Company, it said: ‘‘It is urged upon us, how- ever, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray v. Hoboken Land & Improvement Com- pany, 18 How. 272. . . . The point in th'e case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: however exceptional it may be, as tested by defini- tions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land and, therefore, is due process of law. But to hold that such a characteristic is essential to due proc- ess of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improve- ment. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians. This would be all the more singular and sur- 58—110 U. 8. 528. §100 FIFTH AMENDMENT—CONTINUED (1896-1917) 203 prising in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions, the words of Magna Carta stood for very different things at the time of the separation of the American colonies from what they represented orig- inally.”” The good work thus begun by Mr. Justice Matthews was continued in Twining v. New Jersey ® when the court, speaking through Mr. Justice Moody, in repudiating the definition of due process in question for a second time, said: ‘‘What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. This test was adopted by the court, speaking through Mr. Justice Cur- tis, in Den ex dem. Murray v. Hoboken Land & Improve- ment Company, 18 How. 272. . . . Of course, the part of the constitution then before the court was the Fifth Amendment.’’ After approving Mr. Justice Matthew’s repudiation in Hurtado v. California, Mr. Justice Moody added: ‘‘It does not follow, however, that a procedure settled in English law at the time of the emigration and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudenec like a straight jacket, only to be unloosed by a constitu- tional amendment.’’ And yet, despite these emphatic repudiations of the unhistorical and misleading definition of due process contained in the case in question, its tap-root remains unbroken. The tap-root consists of the entirely un- founded assumption that there were in England a certain class of Crown or government cases, which were imme- morially excluded by a special rule or practice of the 59—211 U. 8. 78, 204 DUE PROCESS OF LAW § 100 Court of Exchequer from the protection of due process or the law of the land, because, as Mr. Justice Curtis expressed it, no government can allow certain matters ‘‘to become subjects of judicial controversy according to the course of the law of the land.’’ The earnest pur- pose of the author is to demonstrate, first that no such principle ever existed or could exist in the English con- stitutional system; second, that no such special rule or practice of the Court of Exchequer as Mr. Justice Curtis put forward, ever did or does exist in England; third, that the deadly doctrine drawn from that indefensible assumption is eating like a canker sore into the vitals of American constitutional law. As a striking illustra- tion, reference may be made to the case of United States v. Ju Toy,® in which it is said: ‘‘It is unnecessary to repeat the often-quoted remarks of Mr. Justice Curtis, speaking for the whole court in Den ex dem. Murray v. Hoboken Land & Improvement Company, 18 How. 272, 280, to show that the requirement of a judicial trial does not prevail in every case. Lem Moon Sing v. United States, 158 U.S. 538, 546, 547; Japanese Immigrant Case (Yamataya v. Fisher), 189 U. S. 100; Public Clearing House v. Coyne, 194 U.S. 497, 508, 509.’’ In the second case cited, the court, after referring to Murray v. Hobo- ken Land & Improvement Company by name and saying that ‘‘it was decided in that case [upon the false assump- tion that has been herein exposed] to be consistent with due process of law for Congress to provide summary means to compel revenue officers and, in case of default, their sureties to pay such balances of the public money as might be in their hands,’’ added: ‘Now, it has been settled that the power to exclude or expel aliens belonged to the political department of the government, and that the order of an executive officer invested with the power to determine finally the facts upon which an alien’s right to enter this country, or remain in it, depended, was ‘due process of law,’ and no other tribunal, unless ex- 60—198 U. 8. 253. §100 FIFTH AMENDMENT—CONTINUED (1896-1917) 205 pressly authorized to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its suffi- ciency.’’*! But unfortunately that deadly and entirely unsupported doctrine has by no means been limited to cases involving the expulsion of aliens. The last case cited, Public Clearing House v. Coyne, involved the regu- lation of the mails, and even as to that sacred subject the court said: ‘‘It is too late to argue that due process of law is denied whenever the disposition of property is affected by the order of an executive department. . . . The action of the department is accepted as final by the courts, and even when involving questions of law this action is attended by a strong presumption of its correct- ness. Bates & G. Company v. Payne, 194 U. S. 106, ante 894, That due process of law does not necessarily require the interference of the judicial power is laid down in many cases and by many eminent writers upon the sub- ject of constitutional limitations. Den ex dem. Murray v. Hoboken Land & Improvement Company, 18 How. 272, 280.’ The regulation of the mails, including the free- dom of the press, has thus passed under the autocratic control of an administrative system whose authority rests now upon the judicial finding by our highest court that under the American constitution there is a widening cir- cle of governmental cases not protected by the law of the land, because certain matters can not be suffered by gov- ernment ‘‘to become subjects of judicial controversy according to the course of the law of the land.’’ No such rule of law ever existed in England in the past or present. It finds its only parallel in the administrative law (droit administratif) of France, a term for which there is no equivalent in English legal phraseology for the reason that among Anglican peoples ‘the thing itself does not exist. It has been defined to be ‘‘that portion of French law which determines (i) the position and liabilities of all state officials, and (ii) the civil rights and liabilities of private individuals in their dealings as representa- 61—Ekiu v. United States, 142 U. 8. 651, and other cases cited. 206 DUE PROCESS OF LAW § 100 tives of the state, and (ili) the procedure by which these rights and liabilities are enforced.’’ Droit administratif has no right to exist in a country in which there is due process of law or the law of the land, because it assumes that the ordinary courts have no jurisdiction to admin- ister it. Such law is administered by administrative courts (tribunaux administratifs), at the head of which stands in France the Council of State. Under the fatal exception to the law of the land, born of a lamentable misapprehension in Murray v. Hoboken Land & Improve- ment Company, we are rapidly building up a droit admin- istratif in the United States, despite the noble effort made in the historic case of United States v. Lee, 106 U.S. 196, to make such a result impossible, CHAPTER IV FEDERAL POWER OF EMINENT DOMAIN AND DUE PROCESS § 101. Power of eminent domain vested in all states, federal as well as single. The term seems to have orig- inated with Grotius. De Jure Belli et Pacis, i, 3, 6, ii, 14, 7. See Bynkershoek Questiones I, p. ii, 15. As it is employed by Vattel, it was probably imported into the English language through the Translation of 1760. See Holland, Jurisprudence, p. 377, note I. In Gardner v. Newburg, 2 Johns., c. 162, Chancellor Kent says: ‘‘Gro- tius, Puffendorf and Bynkershoek, when speaking of the eminent domain of the sovereign, admit that private property may be taken for public uses, when public neces- sity or utility require it.’’ See also Thayer Cas. Const. Law, 945, 947. In Kohl v. United States, 91 U. S. 367, the Court said: ‘‘The powers vested by the Constitution in the General Government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories and arsenals, for navy yards and light-houses, for custom houses, postoffices, and court houses, and for other public uses. The right is the off- spring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. Vatt. ch. 20, 34; Bynk.,, lib. 2, ch. 15; Kent, Com. 338-340; Cooley, Const. Lim., 584, et seq. But it is no more neces- sary for the exercise of the powers of a state government than it is for the exercise of the conceded powers of the Federal Government. That Government is a sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are com- mitted to it; but its power over those subjects is as full and complete as is the power of the states over the sub- 207 208 DUE PROCESS OF LAW §101 jects to which their sovereignty extends. The power is not changed by its transfer to another holder.’’ In Fletcher v. Peck, 6 Cranch 87, Mr. Justice Johnson, in defining the right of eminent domain, said: ‘‘A right which a magnanimous and just government will never exercise without amply indemnifying the individuals, and which perhaps amounts to nothing more than the power | to oblige him to sell and convey, when the public neces- sities require it.’?? In the United States v. Jones, 109 U. 8. 513, it was held that as the right is an incident of sovereignty, it requires no constitutional recognition. See also, Calder v. Bull, 3 Dall. 386; Charles River Bridge v. Warren Bridge, 11 Pet. 420. § 102. The eminent domain vested in Federal Govern- ment paramount. In Cherokee Nation v. Southern Kan- sas R. Co., 185 U. S. 661, the Court said: ‘‘As was said by Mr. Justice Bradley in Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9,19: ‘The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, can not avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than the states, in order . that it may fully carry out the objects and purposes of the Constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postu- late of the Constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.’ It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of emi- nent domain in the several states, and could not exercise §103 FEDERAL POWER OF EMINENT’ DOMAIN 209 the same power in a territory occupied by an Indian tribe or nation.’?’ The paramount right of eminent domain vested in the Federal Government, so far as it effects public waters, was reasserted with great emphasis in the recent case of Greenleaf Lumber Co. v. Garrison, 237 U. 8. 251, in which the Court, after a careful review of the authorities, said: ‘‘We have recognized that the states have a certain control and management over the navigable streams within their territory, but subject to be superseded by the interference of Congress. Gilman v. Philadelphia, supra; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678. When Congress acts, necessarily its power extends to the whole expanse of the stream, and it is not dependent upon the depth or shallowness of the water. To recognize such distinc- tion would be to limit the power when and where its exercise might be most needed. In Scranton v. Wheeler, 179 U. 8. 141, the water was very shallow between the high land and the pier erected in the river by the author- ity of Congress and which it was contended cut off access to navigability.’’ § 103. Paramount right of eminent domain limited by due process. Over and above the paramount right of eminent domain vested in the Federal Government sits the restraining power of the due process clause of the Fifth Amendment, which provides that ‘‘No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’’ If the last em- phasizing clause had been omitted, the right to compen- sation for the taking of private property for a public use would have been complete under the due process clause alone. In construing the North Carolina consti- tution, which contained no specific provision for compen- sation, the Court, in Raleigh, etc. R. Co. v. Davis, 2 Dev. & B. L. 451, after referring to the guaranty of ‘‘the law of the land,’’ said: ‘‘Under the guaranty of this article, Due Proecess—14 210 DUE PROCESS OF LAW § 103 it has been held, and in our opinion properly held, that private property is protected from the arbitrary power of transfer by one person to another We doubt not that it is also protected from the power of despotic resumption, upon a legislative declaration of forfeiture, or merely to deprive the owner of it, or to enrich the treasury, unless as a pecuniary contribution by way of tax. Though not so obvious, it may also be true that the clause under consideration is restrictive of the right of the public to the use of private property, and impliedly forbids it, without compensation.’? In Monongahela Nav- igation Co. v. United States, 148 U. S. 12, a higher court said: ‘‘In the case of Sinnickson v. Johnson, 17 N. J. L. 129, 145, cited in the case of Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 178, it was said that ‘this power to take private property reaches back of all con- stitutional provisions; and it seems to have been consid- - ered a settled principle of universal law that the right to compensation is an incident to the exercise of that power; that the one is so inseparably connected with the other that they may be said to exist not as separate and dis- tinct principles, but as parts of one and the same prin- ciple.’? And in Gardner v. Newburg, 2 Johns., ch. 162, Chancellor Kent affirmed substantially the same doctrine. In Bauman v. Ross, 167 U. 8. 574, the Court said: ‘‘In the 5th article of the earliest Amendments to the con- stitution of the United States, in the nature of a bill of rights, the inherent and necessary power of the govern- ment to appropriate property to the public use is recog- nized, and the rights of private owners are secured by the declaration, ‘nor shall private property be taken for public use without just compensation.’ The right of emi- nent domain, as was said by this court, speaking through the Chief Justice, in a recent case, ‘is the offspring of political necessity, and is inseparable from sovereignty unless denied to it by the fundamental law. It can not be exercised, except upon condition that just compensa- tion shall be made to the owner; and it is the duty of §104 FEDERAL POWER OF EMINENT DOMAIN 211 the state, in the conduct of the inquest by which the com- pensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.’ Searl v. Lake County School Dist. No. 2, 183 U. 8. 553, 562. The just compen- sation required by the constitution to be made to the owner is to be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public.’? See Wilson v. Lambert, 168 U. S. 611; Greenleaf Lumber Co. v. Garrison, 237 U. 8. 251. | § 104. The taking must be for a public use. In Wil- kinson v. Leland, 2 Pet. 627, it was held that under the right of eminent domain private property can only be taken for a public use, upon the payment of just com- pensation; the right can not be asserted for the purpose of taking private property for private purposes. West River Bridge Co. v. Dix, 6 How. 507; Cole v. La Grange, 113 U. S. 1. The taking must be for some of the recog- nized necessities of government, such as the construction of arsenals, forts, armories, navy yards, light-houses, custom houses, postoffices, court houses, highways, rail- ways, canals, bridges, wharves, parks for public use and recreation and the like. See Kohl v. United States, 91 U. S. 367; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525; Shoemaker v. United States, 147 U. S. 282; Chap- pell v. United States, 160 U. 8. 499; Wilson v. Lambert, 168 U. S. 611. In United States v. Gettysburg Electric R. Co., 160 U. S. 668, the Court, in giving perhaps the widest possible extension to the right of eminent domain, said: ‘‘The really important question to be determined in these proceedings is whether the use to which the petitioner desires to put the land described in the peti- tions is that kind of public use for which the government of the United States is authorized to condemn land. It 212 DUE PROCESS OF LAW § 104 has authority to do so whenever it is necessary or appro- priate to use the land in the execution of any of the powers granted to it by the Constitution. Kohl v. United States, 91 U. S. 367; Cherokee Nation v. Southern Kan- sas R. Co., 135 U. S. 641-656; Chappell v. United States, 160 U. S. 499. Is the proposed use to which this land is to be put a public use within the limitation? The purpose of the use is stated in the first act of Congress. The appropriation act of August 18, 1894, also contained the following: ‘For continuing the work of surveying, locating, and preserving the lines of battle at Gettysburg, Pa., and for purchasing, opening, constructing, and im- proving avenues along the portions occupied by the various commands of the Armies of the Potomac and Northern Virginia on that field, . . . Any act of Con- gress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, and which is germane to and intimately connected with and appropriate to the exercise of some one or all of the powers granted by Congress must be valid. This proposed use comes within such description. The provision comes within the rule laid down by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 421, in these words: ‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adequate to that end, which are not prohibited, but consistent with the letter and spirit of me constitution, are constitu- tional.’ ”’ § 105. Right of legislature to determine what is a public use. There can be no doubt that the right to deter- mine whether or no an appropriation of private property to a particular use, because of its public character, is justifiable, is vested primarily in the legislature. It is equally clear that after it has acted, stating its reasons thereof, the power of review is vested in the judiciary,— §106 FEDERAL POWER OF EMINENT DOMAIN 213 to that department belongs the ultimate right to deter- mine whether or no the use in question is in contempla- tion of law, a public use. A vivid illustration of the relations actually existing between the two departments is to be found in the foregoing case of United States v. Gettysburg Electric R. Co., 160 U. S. 668, in which the Court said: ‘‘In examining an act of Congress it has been frequently said that every intendment is in favor of its constitutionality. Such act is presumed to be valid unless its invalidity is plain and apparent; no pre- sumption of invalidity can be indulged in; it must be shown clearly and unmistakably.’’ That is to say that in reviewing the legislative declaration of a public use, the courts will permit it to prevail unless it is manifestly erroneous when measured by legal standards. ‘‘The judi- cial function is merely that of fixing the outside border of reasonable legislative action, the boundary beyond which the taxing power, the power of eminent domain, police power, and legislative power in general can not go without violating the prohibitions of the constitution, or crossing the line of its grants.’’ Prof. J. B. Thayer, 7 Harvard Law Rev. 148. In Shoemaker v. United States, 147 U.S. 282, it was held that land in a city, appropriated by law for public parks and squares, is taken for a public use, no matter whether advantageous to the public, for recreation, health or business. § 106. What constitutes a taking. That a physical invasion and actual ouster of possession is necessary, at least such a serious interruption to the necessary and common use as Will be equivalent to a taking, is explained in Pumpelly v. Canal Co., 13 Wall. 166, in which the Court said: ‘‘But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary use of property may be, in the language of Mr. Angell, in his work on water courses, equivalent to the taking of it, and that under the constitu- tional provisions it is not necessary that the land should 214 DUE PROCESS OF LAW § 106 be absolutely taken. Ang. Wat. Sec. 465, a; Hooker v. N. Haven and Northampton Co., 14 Conn. 146; Rowe v. Granite Bridge Co., 21 Pick. 344; Canal Appraisers v. People, 17 Wend. 604; Lackland v. North Mo. R. R. Co., 31 Mo. 180; Stevens v. Prop. of Middlesex Canal, 12 Mass. 466. And perhaps no state court has given more frequent utterance to the doctrine that overflowing land by backing water on it for dams built below is within the constitutional provision, than that of Wisconsin.’’ See Head v. Amoskeag M. Co., 113 U. 8S. 26; Pennsyl- vania R. Co. v. Miller, 132 U. S. 83; United States v. Alexander, 148 U. S. 187. In United States v. Lynah, 188 U. S. 445, in which it was held that there was a tak- ing of land within the meaning of the Fifth Amendment,— by the turning of a valuable rice plantation into an irre- claimable bog as the necessary result of an improvement in navigation by the Federal Government,—the Court said: ‘‘But if any one provision can be considered as settled by the decisions of this court, it is that, although in the discharge of its duties the government may appro- priate property, it can not do so without being liable to the obligation cast by the 5th Amendment of paying just compensation.’’ And yet where acts are done in the proper exercise of governmental power, not directly en- croaching upon private property, although their conse- quences may injure its use, they do not entitle the owner to compensation. Northern Transp. Co. v. Chicago, 99 U.S. 635. See also, Montana Co. v. St. Louis Min., etce., Co., 152 U. S. 160. In Gibson v. United States, 166 U. S. 269, where the riparian owner was deprived during a greater part of the season of access to his landing by the construction of a dike by the Federal Government in the improvement of a navigable stream,—the Court said: ‘‘The 5th Amendment to the Constitution of the United States provides that private property shall not be taken for public use without just compensation. Here, how- ever, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, §107 FEDERAL POWER OF EMINENT DOMAIN 215 whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.’’ In Scranton v. Wheeler, 179 U. S. 141, it was held that there was no violation of the Fifth Amendment, although a pier erected by the Federal Government on land submerged under navigable waters permanently destroyed access to such waters upon the part of a riparian proprietor own- ing the title, when the act complained of was merely for the improvement of navigation. It was said that no mat- ter whether the title to the land was owned by a riparian proprietor or the state, it was acquired subject to the rights which the public have in the navigation of such waters. In Bedford v. United States, 192 U. S. 217, compensation was denied where damage to land was the consequence of flooding resulting from the construction of revetments by the United States. The Court said: “In the case at bar the damage was strictly consequen- tial. It was the result of the action of the river through a course of years. The case at bar, therefore, is distin- guishable from the Lynah Case [188 U. S. 445] in the cause and manner of the injury. In the Lynah Case the works were constructed in the bed of the river, obstructed the natural flow of its water, and were held to have caused, as a direct consequence, the overflow of Lynah’s plantation. In the case at bar the works were constructed along the banks of the river, and their effect was to resist erosion of the banks by the waters of the river. There was no other interference with natural conditions.’’ See also Manigault v. Springs, 199 U. S. 473; Union Bridge Co. v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177; Jackson v. United States, 230 U. S. 1; Peabody v. United States, 231 U. S. 530; Richards v. Washington Terminal Co., 233 U. S. 546; Greenleaf Lumber Co. v. Garrison, 237 U. 8S. 267. § 107. Necessity that justifies the taking. In Missis- sippi & Rum River Boom Co. v. Patterson, 98 U. 8. 403, 216 DUE PROCESS OF LAW § 107 the Court said: ‘‘The right of eminent domain, that is the right to take private property for public uses, apper- tains to every independent government. It requires no constitutional recognition; it is an attribute of sov- ereignty. The clause found in the constitutions of the several states providing for just compensation for prop- erty taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expe- diency of appropriating any particular property is not a subject of judicial cognizance.’’ In Shoemaker v. United States, 147 U. S. 282, the Court said: ‘‘The adjudicated cases likewise establish the proposition that while the courts have power to determine the use for which private property is authorized by the legislature to be taken is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative dis- cretion, subject only to the restraint that just compensa- tion must be made.’’ See also, Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159, 160. In Backus v. Fort Street Union Depot Co., 169 U. 8S. 568, the Court said: ‘‘Neither can it be said that there is any funda- mental right secured by the Constitution of the United States to have the questions of compensation and neces- sity both passed upon by one and the same jury. In many states the question of necessity is never submitted to the jury which passes upon the question of compensa- tion. It is either settled affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by condemnation. The ques- tion of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 402, 406; United States v. Jones, 109 U.S. 513; Cherokee Nation v. Southern Kansas Rail- way, supra.’’ In Northern Pacific R. Co. v. Smith, 171 U.S. 270, the Court said: ‘‘By granting a right of way §108 FEDERAL POWER OF EMINENT DOMAIN 217 400 feet in width, Congress must be understood to have conclusively determined that a strip of that width was necessary for a public work of such importance, and it was not competent for a court at the suit of a private party, to adjudge that only 25 feet thereof were occupied for railroad purposes.’’ See also Northern Pac. R. Co. v. Townsend, 190 U.S. 267, 272. In the light of the fore- going cases it is hard to challenge the fact that ‘‘The general principle is now well settled that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used and the extent to which such right shall be delegated are questions appertaining to the political and legislative branches of the government.’’ Matter of Niagara Falls, ete., R. Co., 108 N. Y. 375, 383. § 108. Necessity for compensation. If the legislative power is the judge of the necessity which authorizes the taking of private property, it is under a double necessity to provide for the payment of just compensation. As heretofore pointed out, the guaranty of due process of law alone obliges a sovereign to compensate the owner whose property is taken by its authority. The express constitutional guaranties, state and Federal, simply restate and intensify that primary obligation. When Grotius defined the right of eminent domain, he coupled with it the right of the party deprived of his property to receive its value from the public treasury. That right to compensation, founded on a ‘‘clear principle of natural equity’? (Monongahela Nav. Co. v. United States, 148 U. S. 312) has been reaffirmed in express terms in most of the state constitutions, and in the constitution of the United States. Such provisions are limitations upon the right of eminent domain, the conditions upon which it must be exercised. United States v. Jones, 109 U. 8. 513; Pumpelly v. Green Bay & M. Canal Co., 13 218 DUE PROCESS OF LAW § 108 Wall. 166; Hot Springs R. Co. v. Williamson, 136 U. 8. 121. Only upon condition that just compensation shall be made to the owner—compensation just not only to the individual whose property is taken, but to the public charged with its payment—can the right of eminent do- main be exercised. Searl v. School Dist. No. 2, 183 U.S. 553. The statute granting the right of eminent domain must provide for reasonable compensation to the owner as a condition precedent to the exercise of the right. Sweet v. Rechel, 159 U. 8S. 380. Even when the Federal Government, in the exercise of its supreme control over the regulation of commerce, can take private property, it can do so only on payment of just compensation. Monongahela Nav. Co. v. United States, 148 U. 8. 312. Whenever private property is thus taken for public pur- poses it must be after full compensation to the owner. United States v. Russell, 13 Wall. 623. There is no authority to enter upon the property of an individual or of a state and appropriate it without just compensa- tion, under a Federal franchise to a corporation, state or national, to establish interstate communication. Rich-— mond v. Southern Bell Teleph. & Teleg. Co., 174 U. S. 761. In the absence of an express provision requiring it, it is not necessary that compensation be made in advance of the taking. The constitutional guaranty that private property can not be taken for public use without just compensation is satisfied, provided provision is made for compensation at once certain and adequate. Chero- kee Nation v. Southern Kansas R. Co., 135 U. S. 641; Sweet v. Rechel, 159 U. S. 380. In condemnation cases the sovereign may authorize the taking of possession prior to the final adjudication of the amount of compen- sation and the payment of the same. Backus v. Fort Street Union Depot Co., 169 U. S. 557. § 109. What kind of property may be taken. The power of eminent domain extends to all kinds of prop- §110 FEDERAL POWER OF EMINENT DOMAIN 219 erty, real and personal, including franchises, easements and incorporeal hereditaments. Richmond, F. & P. RB. Co. v. Louisa R.’Co., 13 How. 71. In West River Bridge Co. v. Dix, 6 How. 507, it was held that the power of eminent domain extends over all private rights vested under the government, including those held by charter or other contracts. In New Orleans Gaslight Co. v. Lou- isiana Light & Heat Prod. and Mfg. Co., 115 U. 8S. 650, it was held that under the power of eminent domain, and upon the payment of just compensation, rights and privileges which had become vested. upon the faith of contracts made by the state could be taken away. See Stone v. Southern Illinois & M. Bridge Co., 206 U. S. 267. A bridge possessed by an incorporated company chartered by a state may be condemned and taken as a part of a public road, under the laws of such state. West River Bridge Co. v. Dix, 6 How. 507. A water supply system may be condemned under the power of eminent domain. Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685. The absence of a non-resident owner of real estate from the state in which the property is situ- ated, can not, in that way, prevent the exercise over it of the power of eminent domain. Huling v. Kaw Valley R. and Improv. Co., 180 U. 8. 559. In Western U. Teleg. Co. v. Penn. R. Co., 195 U. S 570-574, the Court said: ‘‘A railroad’s right of way has, therefore, the substan- tiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its use. It can not be invaded without the guilt of trespass. . . . It follows from these views that the act of 1866 does not grant the right to telegraph companies to enter upon and occupy the rights of way of railroad companies, except with the consent of the latter, or grant the power of eminent domain.’’ See also Spokane Falls & N. BR. Co. v. Zeigler, 167 U.S. 65. § 110. As the question of compensation is a judicial one, a competent tribunal necessary. As the question 220 DUE PROCESS OF LAW § 110 of compensation is a judicial one, it must be determined by some kind of a tribunal capable of making a decision after notice and hearing. In United States v. Jones, 109 U.S. 513, the Court said: ‘‘The proceeding for the ascer- tainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the inter- vention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an Act of Congress, or one already established by the states shall be adopted for the occasion, is a mere matter of legislative discretion.’? In Bauman v. Ross, 167 U. S. 593, the Court said: ‘‘By the constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury; but may be intrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury. Curtiss v. Georgetown & A. Turnp. P. Co., 6 Cranch 233; Secombe v. Milwaukee & St. P. R. Co., 23 Wall. 108, 117, 118; United States v. Jones, 109 U. S. 513, 519; Shoe- maker v. United States, 147 U. S. 282, 300, 301; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685.’’ While the proceeding for the condemnation of land is a judicial proceeding, it does not include the right to trial by jury as a constitutional right. Kohl v. United States, 91 U. S. 367. See Chappell v. United States, 160 U. S. 499. In Backus v. Fort Street Union Depot Co., 169 U. S. 568-569, the Court said: ‘‘Neither can it be said that there is any fundamental right secured by the Constitu- tion of the United States to have the questions of com- pensation and necessity passed upon by one and the same §111 FEDERAL POWER OF EMINENT DOMAIN 221 jury. In many states the question of necessity is never submitted to the jury which passes on the question of com- pensation. It is either settled affirmatively by the legis- lature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. Mississippi River Boom Co. v. Patterson, 98 U. S. 402, 404; United States v. Jones, 109 U.S. 513; Cherokee Nation v. Southern Kansas Rail- way Company, supra. All that is essential is that in some appropriate way, before some properly constituted tri- bunal, inquiry shall be made as to the amount of com- pensation, and when this has been provided there is that due process of law which is required by the Federal Con- stitution. Bauman v. Ross, 167 U. S. 548, 593.’’ See Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290; District of Columbia v. Lynchburg Invest. Corpora- tion, 236 U. S. 692. § 111. Right of Congress to legislate against laches. In Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254, the Court said: ‘‘Congress was not obliged to keep the act of 1875 (admitting the liability of the United States to pay for property taken for a public use) in operation forever, and reasonable opportunity having been afforded to the plaintiffs in error to obtain compensation for the damages sustained by the con- struction of the improvement, we think they must be deemed to have waived their right to them. Where a statute for the condemnation of lands provides a definite and complete remedy for obtaining compensation, this remedy is exclusive; the common law remedy or pro- ceeding is superseded by the statute, and the owner must pursue the course pointed out by it. Mills, Eminent Domain, 87, 88. It is true that if the statutory remedy be incomplete or imperfect, the owner is not thereby debarred from his common law remedy and may recover 222 DUE PROCESS OF LAW §111 his damages in an action of trespass or ejectment. But it does not follow even from this that he has a right, especially after acquiescing in the appropriation of his land for a number of years, to take the law into his own hands, and, manu fortz, repossess himself of his own.’’ PART II DUE PROCESS AS A LIMITATION ON STATE POWER CHAPTER V THE NEW NATIONAL CITIZENSHIP § 112. Interstate citizenship created by Articles of Con- federation. The one particular in which our first Federal Constitution rose above the older Teutonic leagues, after which it was patterned, was embodied in the new princi- ple of interstate citizenship it originated. That principle infused itself neither into the constitution of the old Ger- man Empire, nor of Switzerland, nor of Holland. Sec- tion 1 of Article IV of the Articles of Confederation provided that ‘‘the better to secure and perpetuate mutual friendship and intercourse among the people of different states in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens of the several states.’’ Apart from that invention of an interstate citizenship American statesmen in their first effort exhibited no fer- tility of resource whatever in the making of Federal constitutions. The Articles of Confederation simply em- bodied the old story of a federal league, with the federal power vested in a single assembly, without an executive head and without a judiciary, operating only on the states as corporations. § 113. Developed by our second Federal Constitution of 1789. In the words of Tocqueville, our second Federal constitution of 1789 is based ‘‘upon a wholly novel theory which may be considered a great discovery in modern political science.’? That ‘‘novel theory’’ embodies (1) a federal government with the independent power of taxa- tion; (2) the division of the federal head into three 225 Due Process—15 226 DUE PROCESS OF LAW § 118 departments, legislative, executive, and judicial; (3) the division of the federal legislature into two chambers; (4) a federal government with delegated powers, the. residuum of power remaining in the states; (5) a federal government operating not upon states in their corporate | capacity, but directly on individuals as such. If the basic principle last stated had been carried at the outset, to its logical conclusion, it would have been settled from the beginning that the individuals upon whom the new and unique creation acts are primarily its own citizens. But at the time of the drafting of our existing constitution the sense of nationality had not sufficiently advanced to permit the statement of the ultimate and inevitable conclusion, that every citizen of the Union is primarily a citizen of the United States, and not merely of one of the states which com- pose them. The thought of the Federal Convention of 1787 upon this vitally important subject was embodied in Section 2 of Article IV, which provides that ‘‘the citi- zens of each state shall be entitled to all privileges and immunities of citizens in the several states.’? Beyond that point the framers of the more perfect union were not prepared to go. They did not attempt to do more than establish an interstate citizenship to which they imparted the qualities of uniformity and equality by denying to every state the right to discriminate in favor of its own citizens as against those of any other state. In the absence of any positive assertion by federal authority of any such thing as 2 primary citizenship of the United States as such, there was really no substan- tial basis upon which to maintain its existence. The better view is that prior to the adoption of the 14th Amendment a man was a citizen of the United States only by virtue of his citizenship in one of the states com- posing the Union. If any such thing as a federal or national citizenship then existed at all, it was nothing more than a secondary and dependent relation, § 114 THE NEW NATIONAL CITIZENSHIP 227 § 114. The grand inquest in the Dred Scott Case. An account has been given already of the grand inquest held in the Dred Scott Case, 19 How. 393, in order to ascer- tain whether or no such a thing existed as a citizenship of the United States, defined as such by its Constitution and laws, independent of state citizenship. The most earnest seeker for such a citizenship was Mr. Justice Curtis, who was in the highest degree qualified to ascer- tain it, if it existed at all. His conclusion was that there was no such thing, at that time, as a citizenship of the United States, as a substantive thing independent of state citizenship. He said: ‘‘I can find nothing in the Constitution, which, proprio vigore, deprives of their cit- izenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native born citizens of any state after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any state, and entitled to citizenship of such state by its constitution and laws. And my opinions that, under the Constitution of the United States, every free person born on the soil of a state, who is a citizen of that state by force of its constitution or laws, is also a citizen of the United States. . . . That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several states, shall or shall not be citizens of the United States, will not be pretended. It contains no such dec- laration.’’ Even if the learned Justice was right in his assumption that Sandford’s plea to the jurisdiction was baseless, and that Scott had the right to sue because ‘every such citizen, residing in any state, has the right to sue, and is liable to be sued in the federal courts, as a citi- zen of that state in which he resides,’’ it appears that such citizenship of the United States as Scott was thus supposed to possess was nothing more than a secondary and dependent relation resulting from his state citizen- ship. 228 DUE PROCESS OF LAW §115 ° § 115. Section 1 of the Fourteenth Amendment and its scope. ‘To fill the vacuum disclosed by the grand inquest held in the Dred Scott Case, 19 How. 393, was adopted the first section of the Fourteenth Amendment, which, without making any direct reference to the question of race at all, contains the first positive definition ever given of citizenship of the United States as a primary and sub- stantive thing, independent of state citizenship. It pro- vides that ‘‘ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citi- zens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any per- son of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’’ An account has hereto- fore been given of the historical side of the constitutional revolution through which the creation of the new citizen- ship shifted the center of gravity of the composite struc- ture, partly national and partly federal, from the states to the nation, thus nationalizing for the first time the entire sphere of civil liberty. It was then ascertained that as the Amendment made no direct reference to the question of race, it was severed from its history and given a construction as broad as the unqualified terms that appear upon its face, thus settling the fact that the new national citizenship was not created for the exclusive benefit of the colored race, not limited to their protection. § 116. The new citizenship as defined in the Slaughter House Cases. The sequel of the Dred Scott Case, 19 How. 393, is to be found in the Slaughter House Cases (1872), 16 Wall. 36, in which another grand inquest was held in order to ascertain the nature of the new citizen- ship brought into existence by Section 1 of the Fourteenth Amendment. The case for the plaintiffs in error was presented in a far-reaching argument by the Hon. John § 116 THE NEW NATIONAL CITIZENSHIP 229 A. Campbell, who had sat as one of the Justices in the Dred Scott Case. The Court, speaking through Mr. Jus- tice Miller, declared: (1) ‘‘The first section of the Four- teenth Article, to which our attention is more specially invited, opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the states. No such definition was previously found in the Constitution, nor had any attempt been made to define it by Act of Congress. It had been the occasion of much discussion in the courts, by the executive depart- ments and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the states composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the territories, though within the United States, were not citizens. Whether this proposition was sound or not, had never been judicially decided. But it had been held by this Court, in the celebrated Dred Scott Case, only a few years before the outbreak of the Civil War, that a man of African descent, whether a slave or not, was not and could not be a citizen of a state or of the United States. This decision, while it met with the con- demnation of some of the ablest statesmen and consti- tutional lawyers of the country, had never been over- ruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution;”’ (2) “tit (Section 1 of Article XIV) declares that persons may be citizens of the United States without regard to their citizenship in a particular state, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt;’’ (3) ‘‘the distinction between citizenship of the 230 DUE PROCESS OF LAW § 116 United States and citizenship of a state is clearly ree- ognized and established. Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union;’’ (4) ‘‘there is a citizenship of the United States and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the indi- vidual;’’ (5) ‘‘privileges and immunities of the citizens of the United States are placed by this clause under the protection of the Federal Constitution, and that the lat- ter, whatever they may be, are not intended to have any additional protection by this paragraph of the Amend- ment. If then there is a difference between the privileges and immunities belong to a citizen of the United States as such, the latter must rest for their security and pro- tection where they have heretofore rested, for they are not embraced in this paragraph of the Amendment;”’ (6) ‘‘having shown that the privileges and immunities relied on in the argument are those which belong to citi- zens of the states as such, and that they are left to the state governments for security and protection, and not by this article placed under the special care of the Fed- eral Government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no state can abridge, until some case involving these privileges make it necessary to do so. But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal Government, its national character, its Constitution, or its laws. One of these is well described in the case of Crandall v. Ne- vada, 6 Wall. 36. It is said to be the right of the citizen of this great country, protected by implied guaranties § 117 THE NEW NATIONAL CITIZENSHIP 231 of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its pro- tection, to share its offices, to engage in administering its functions. He has the right to free access to its sea- ports, through which all operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several states.’ . . . Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his char- acter as a citizen of the United States. The right to peaceably assemble and petition for redress of griev- ances, the privileges of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Consti- tution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several states, and all rights secured to our citizens by treaties with foreign nations, are dependent upon citi- zenship of the United States, and not citizenship of the state.”’ § 117. Question of birth as settled in U. S. v. Wong Kim Ark. Twenty-six years passed by before the orig- inal definition of the new citizenship given in the Slaugh- ter House Cases, 16 Wall. 36 (1872), was rounded out in United States v. Wong Kim Ark, 169 U. S. 649 (1898) by an exposition of the phrase, ‘‘All persons born or naturalized in the United States, and subject to the juris- diction thereof.’’ Where the parents of a child born in the United States were citizens, there could be no diffi- culty as to its nationality; but the status of a child born in the United States of Indian, or of Chinese, or other alien parentage was quite another matter. In the case of Elk v. Wilkins, 112 U. S. 94, 98, it was held that an Indian born a member of one of the Indian tribes still 232 DUE PROCESS OF LAW §117 recognized as such—although he had voluntarily sepa- rated himself from his tribe and taken up his residence among the white people, but without being naturalized or taxed—was born ‘‘subject to the jurisdiction”’ of his tribe. Therefore he was not a citizen of the United States, because not born ‘‘subject to the jurisdiction’’ thereof. Such was the prelude to the great case in which was settled the legal status of all persons born in the United States of alien parentage. In the case of Wong Kim Ark it was held that a child born in the United States of parents of Chinese descent—who at the time of his birth are subjects of the Emperor of China, but have a permanent domicile and residence in this country, and are carrying on business here, and not employed in any diplomatic or official capacity under the Emperor of China—becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Four- teenth Amendment. Here the rule of the civil law as to the allegiance of the parents was set aside in favor of the common law rule of locality of birth, under which it has been long held that every child born in England of alien parents is a natural born subject, unless the child of a diplomatic representative of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. In tracing that principle, with its qualifications, back to the leading case known as Calvin’s Case, 7 Co. Rep. 1, or the case of the Postnati, decided in 1608, the court, speaking through Mr. Justice Gray, said that the Constitution of the United States must. be interpreted in the light of the common law. The inter- pretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. 124 U.S. 478. “‘The fundamental principle of the common law with regard to English nationality was birth within the alle- giance, also called ‘ligealty,’? ‘obedience,’ ‘faith,’ or ‘power’ of the King. The principle embraced all persons § 118 THE NEW NATIONAL CITIZENSHIP 233 born within the King’s allegiance and subject to his pro- ‘tection.’? See Keck v. United States, 172 U. 8. 446, where it is said: ‘‘These conclusions arising from a consideration of the text of the statute are rendered yet clearer by taking into view the definite legal meaning of the word smuggling. That term had a well understood import at common law, and, in the absence of a particu- larized definition of its significance in the statute creating it, resort may be had to the common law for the purpose of arriving at the meaning of the word. Sweringen v. United States, 161 U. S. 446; United States v. Wong Kim Ark, 169 U. S. 649.”’ § 118. Aliens, resident and nonresident. While aliens are undoubtedly entitled to due process, the distinction must be clearly drawn between such as are resident and such as are nonresident. Every sovereign state has an inherent right to forbid the entrance of foreigners within its limits, or to admit them only upon such conditions as its sovereign will may impose. As the exercise of that power belongs to the political department of the government, Congress may so legislate as to provide for the exclusion of aliens, fixing the conditions on which they may be admitted, and the regulations under which they may be deported in the event they have entered contrary to law. It may also entrust the enforcement of such regulations to executive officers. In United States ex rel. Turner v. Williams, 194 U. 8. 279, the Court said: “Tt is contended that the act of March 3, 1903, is uncon- stitutional because in contravention of the 1st, 5th and 6th articles of amendment of the Constitution, and of 1 of article 3 of that instrument; and because no power ‘is delegated by the Constitution to the general govern- ment over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, sojourners, or aliens, or over the freedom of speech or of the press.’ Repeated decisions of this court have determined that Congress has the © 234 . DUE PROCESS OF LAW § 118 power to exclude aliens from the United States; to pre- scribe the terms and conditions on which they may come’ in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regula- tions to executive officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the constitution securing the right of trial by jury have no application. Chae Chan Ping v. United States, 130 U. 8.581; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. 8. 5388; Wong Wing v. United States, 163 U. S. 228; Fok Yung Yo v. United States, 185 U. S. 296; Japanese Immigration Case, 189 U. 8. 86; Chin Bak Kan v. United States, 186 U. S. 193; United States v. Sing Tuck, 194 U. 8. 161.’’ Thus it seems to be settled that the order of an executive officer excluding aliens, if made in accord- ance with statutory authority, is necessarily due process. In the cases of Nishimura Ekiu v. United States, and Fong Yue Ting v. United States, just cited, it was held that though Congress may, if it pleases, authorize the courts to investigate and ascertain the facts upon which the right of an alien to land is made by the statutes to depend, still it may commit the final determination of such facts to an administrative officer. In that event his order or determination is due process, and no other tribunal, not expressly authorized by law to do so, has the jurisdiction to examine the evidence upon which he acted or to question its sufficiency. It was said, how- ever, in a later case that ‘‘This court has never held, nor must we now be understood as holding, that admin- istrative officers, when executing the provisions of a stat- ute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the constitution. One of these principles is that no person § 118 THE NEW NATIONAL CITIZENSHIP 235 shall be deprived of his liberty without opportunity at some time to be heard before such officers in respect of the matters upon which that liberty depends—not neces- sarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contem- plated by Congress, and as the same time be appropriate to the nature of the case upon which officers are required to act.”? Japanese Immigrant Case, 189 U. S. 86. See also U. S. v. Sing Tuck, 194 U. 8S. 161; and U. S. v. Ju Toy, 198 U. S. 253, specially dissenting opinions in that case of Justices Brewer and Peckham. An yet, no matter how absolute or arbitrary the right of exclusion may be, after an alien has once been admit- ted according to law, he becomes entitled at once to the protection due to a native or naturalized citizen of the country, to whom belongs all the guaranties of life, lib- erty and property secured by the constitution to all per- sons within the jurisdiction of the United States. He is entitled to the regular course of judicial proceedings accorded to all other citizens when his life and liberty are involved; he can not be deprived of either upon a mere executive hearing. It follows, therefore, that the exclusion laws can not be applied either to citizens of the United States, nor to any other person who is not in strictness an alien, although he may not be a full citi- zen. Such equality of right is not to be acquired, how- ever, by a clandestine entry and residence for a period too brief to make the alien a part of the population. The act of Congress fixing the period of one year after the landing of such an alien, as the time within which he may be deported on the order of the appropriate execu- tive officer, is constitutional. While temporary confine- ment or detention may be prescribed as a means of giving effect to the exclusion acts, an infamous punishment can not be inflicted without a judicial trial to fix the guilt of the accused. Congress can not declare that the offense of unlawful residence by an alien is an infamous crime 236 DUE PROCESS OF LAW § 118 punishable by imprisonment or at hard labor or by con- fiscation of property upon a summary hearing. As to the right to determine the status of a person entering the country, it was held in 1895, in the case of an admitted alien, that, under the act of Congress of August 18, 1894, . the holding of the immigration commissioner was conclu- sive of the alien’s right to enter ‘‘by virtue of some law or treaty.’’ Three years later the decision of an admin- istrative officer excluding an alien was reversed on habeas corpus when the facts appeared by the government’s admission that the excluded person was a citizen of the United States. When as a consequence of that decision many claims of citizenship were set up by excluded aliens in order to oust the jurisdiction of the immigration officer, the Supreme Court in 1902 held (189 U. S. 86) that the mere claim of citizenship did not affect the jurisdic- tion of the immigration officer; that ‘‘the facts on which such claim is rested must be made.to appear.’’ The equality acquired by a resident alien, except as to his property remaining here, is lost by a departure from the country even for a temporary purpose. When he at- tempts to return, after such an absence, he is subject to the jurisdiction of the administrative official to the same extent as upon his original entry. ‘‘He can not by reason merely of his domicil in the United States for purposes of business demand that his claim to re-enter this country by virtue of some statute or treaty shall be determined ulti- mately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of Congress with the duty of executing the will of the politi- cal department of the government in respect of a matter wholly political in its character.’? Lem Moon Sing v. U. S., 158 U. S. 538, 548. In a case of Chin Bak Kan v. United States, 186 U. S. 193, just cited, the court said: ‘‘It is impossible for us to hold that it is not compe- tent for Congress to empower a United States commis- sioner to determine the various facts on which citizenship § 119 THE NEW NATIONAL CITIZENSHIP 237 depends ;’’ and two years later it was held that when a claim to citizenship is decided adversity by an immigra- tion inspector there is no immediate right of recourse to the courts; that an appeal, according to the procedure defined by the statute, must first be taken to the secretary of the treasury, as an indispensable prerequisite of an appeal to the courts by habeas corpus. (U. S. v. Sing Tuck, 194 U. 8. 161.) When in 1905 a person claim- ing citizenship was denied the right of entry ty the collector of the port of San Francisco, and an appeal was taken to the Secretary of Commerce and Labor, by whom the ruling was confirmed, an application was made for a habeas corpus to the District Court which held, ‘seemingly on new evidence,’’ that the applicant was a native born citizen of the United States. That decision was reversed by the Supreme Court upon the ground that the District Court should have disposed of the ques- tion presented by the writ without the hearing of new evidence as to citizenship, as there was no proof tend- ing to show an abuse of discretion on the part of the administrative officer, in the absence of which the decision of the Secretary of Commerce and Labor was conclusive, even upon the question of citizenship. The Court speak- ing through Mr. Justice Holmes said: ‘‘If, for the purpose of argument, we assume that the Fifth Amend- ment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him, due process of law does not require judicial trial. That is the result of the cases which we have cited, and the almost necessary result of the power of Congress to pass exclusion laws.”’ U.S. v. Ju Toy, 198 U. S. 253. § 119. Right to due process in unincorporated territory. After commenting in another work, upon the case of Fleming v. Page, 9 How. 603, the author said: ‘‘By that time (1850) the following propositions had become firmly settled in the constitutional law of this country: (1) That 238 DUE PROCESS OF LAW $119 when territory is subdued by the armies of the United States, it passes under the despotic power of the Presi- dent, as commander-in-chief, who, in the exercise of that power, is unrestrained by the Constitution and laws of the United States; (2) that when territory is thus acquired by conquest, its holding is a mere military occu- pation until, by a treaty of peace, the acquisition is confirmed; (3) that when the new acquisition passes into a ferditorial condition, the despotic war power vested in the President, as commandendn-chiot, is superseded by the power of Conerese, which is equally unlimited, except as to such constitutional ‘provisions as go to the very root of the power of Congress to act at all, irrespective of time or place;’ (4) that until the ceded territory is admitted as a state, it is not drawn within the circle of constitutional guarantees which apply in their entirety to states alone.’’? Origin and Growth of the Am. Const., p. 387. Prior to incorporation by act of Congress, ‘‘the territory is to be governed under the power existing in Congress to make laws for such territories, and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation.’’ So long as held in that way such territory is subject to the will of Congress as the supreme law subject only to certain ‘‘fundamental limitations in favor of personal rights,”’ imbedded rather in the spirit than the letter of the Con- stitution. While bills of attainder and ex post facto laws could not be applied by Congress to such territory it has been held that.the right to a jury trial, and the right to indictment by a grand jury, as provided for in the Fifth and Sixth Articles of Amendment, are not included among the rights to which the inhabitants of unincorpo- rated territory are entitled. Downes v. Bidwell, 182 U.S. 244, Are the inhabitants of such unincorporated territory entitled, as a fundamental right, to due process of law? That question was answered in the affirmative in Ochoa v. Hernandez, 230 U. 8. 139, where the Court, speaking through Mr. Justice Pitney, said: ‘‘The court below held § 120 THE NEW NATIONAL CITIZENSHIP 239 (5 Porto Rico Fed. Rep. 463) that, assuming General Henry possessed all the legislative power that is pos- sessed by Congress under the Constitution, he was still necessarily subject (as Congress would be) to the due process of law clause of the Fifth Amendment. And since his judicial order, because of its retroactive clause, by its terms covered the present case, where the real owners of the land were infants and unable to protect themselves, and where they still had, under the mortgage law as it stood, nearly twelve years in which to attain maturity and contest the possession and right of Morales, and since the order shortened the period of limitation to six years, which period in their case had already elapsed, the order at the same time contained no provision for saving exist- ing rights or giving to them or to others in like situation any opportunity to assert their rights,—it was the same in effect as taking their property without due process of law. Under all the circumstances we deem it clear that the governor was without authority from the Presi- dent to make any order, judicial in its nature, that would have the effect of depriving any person of his property without due process of law. . . . Without, the guaranty of ‘due process’ the right of private property can not be said to exist, in the sense in which it is known to our laws. The principle, known to the common law before Magna Carta, was embodied in that Charter (2 Coke, Inst. 45, 50), and has been recognized since the Revolu- tion as among the safest foundations of our institutions. Whatever else may be uncertain about the definition of the term ‘due process of law,’ all authorities agree that it inhibits the taking of one man’s property and giving it to another, contrary to settled usages and modes of procedure, and without notice or an opportunity for a hearing.’’ § 120. Right to due process in incorporated territory. After territory has been ‘‘incorporated into the United States,’’ it is subject to its Constitution, and its inhabi- 240 DUE PROCESS OF LAW § 120 tants are then entitled to all the guaranties of life, liherty, and property contained in the national bill of rights embodied in the first eight articles of Amendment. Such incorporation may result from the terms of the treaty of session through which the United States acquires it from the sovereign ceding it, and from the legislation of Congress enacted after its acquisition. Subject to the rights thus acquired Congress must legislate for all the territories, including Alaska and Hawaii. Like restrictions rest upon Congress when legislating for all places acquired by the United States within the several states for forts, arsenals, and the like, and for the Dis- trict of Columbia. In Callan v. Wilson, 127 U.S. 540, the Court said: ‘‘There is nothing in the history of the Con- stitution or of the original amendments, to justify the assertion that the people of this District (of Columbia) may be lawfully deprived of the benefit of any of the constitutional guaranties of life, liberty, and property— especially of the privilege of trial by jury in criminal cases.’’? It was held however in Capital Traction Co. v. Hof, 174 U. S. 1, that a trial by a jury of twelve men before a justice of the peace, having been unknown in England or America before the Declaration of Inde- pendence, is not a trial by jury within the Seventh Article of Amendments to the Constitution of the United States. § 121. A corporation a person within the meaning of Section 1. The Fifth as well as the Fourteenth Amend- ment uses the word ‘‘person’’ to describe those who are entitled to the protection of due process of law, that term embracing all within the territory of the United States, regardless of differences of nationality, race or color. Wong Wing v. U. S., 163 U. S. 236; Yick Wo v. Hopkins, 118 U. S. 369. Not until the case of Santa Clara Oo. v. Southern Pacific Railroad, 118 U. S. 394 (1886) was it definitely held for the first time that a corporation is a person within the meaning of the section in question. Then followed the cases of Minn. Ry. Co. v. Beckwith, 129 § 122 THE NEW NATIONAL CITIZENSHIP 241 U.S. 26; Covington & L. Turnp. Road Co. v. Sandford, 164 U.S. 578; and Smyth v. Ames, 169 U. S. 466, in which “if is now settled that corporatidns are persons within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law as well as the denial of the equal protection of the laws.”’ Thus it was settled that corporations are ‘‘persons’’ but not citizens entitled to the ‘‘privileges or immunities of citizens of the United States.’’ As the Santa Clara case involved a domestic corporation it was afterwards held in Philadelphia Fire Ass’n. v. New York, 119 U.S. 110, that a state could prescribe whatever condition it saw fit for permitting a foreign insurance company to transact business within its limits even to the extent of total exclusion although it could not exclude an indi- vidual. Such power of exclusion can not be applied, however, to corporations engaged in interstate com- merce, or to agencies of the General Government. ‘‘The only limitation upon this power of the state to exclude a foreign corporation from doing business within its limits, or hiring officers for that purpose, or to exact con- ditions for allowing the corporation to do business or hire officers there, arises where the corporation is in the employ of the Federal Government, or where its business is strictly commerce, interstate or foreign. The control of such commerce, being in the Federal Government, is not to be restricted by state authority.”’ § 122. Two bulwarks against the unlawful or unequal exercise of state power. Due consideration has now been given to the creative part of Section 1, which pro- vides that ‘‘ All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’? What remains is the protective part which declares that ‘‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive Due Process—16 242 DUE PROCESS OF LAW. § 122 any person of life, liberty or property, without due process of law; nor deny to any person within its juris- diction the equal protection of the laws.’’? As explained heretofore the final clause guaranteeing the equal pro- tection of the laws is an American invention that originated with the framers of the Fourteenth Amend- ment, and therefore stands entirely apart from the due process clause which came to us from the mother country. The equal protection clause will therefore be made the subject of Part III, where it will be treated entirely apart from the due process clause, which is the subject of Part II. The two clauses have, however, one motive in com- mon that must never for a moment be lost sight of. Prior to the adoption of the Fourteenth Amendment the citi- zens of a state could rely for due process, or for protection against unequal laws upon the institutions of the state alone. When such protection was denied the Federal Government had no right whatever to interfere. Section 1 was intended to fill that vacuum by imposing two limitations universal in their appli- cation. In the words of the Court in the Civil Rights Cases, 109 U. S. 3. ‘‘It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the Amend- ment. It has a deeper and broader scope. It nullifies and makes all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the Amendment invests Congress with power to enforce it by appropriate legislation.’’ To quote again the words of the Court in Hibben v. Smith, 191 U. S. 310: “The Fourteenth Amendment, it has been held, legiti- mately operates to extend to the citizens and residents of the states the same protection against arbitrary state § 123 THE NEW NATIONAL CITIZENSHIP 243 legislation affecting life, liberty, and property as is offered by the Fifth Amendment against similar legisla- tion by Congress.’’ § 123. Due process clauses of Fifth and Fourteenth amendments should receive identical construction. There is no foundation for the idea that the ancient English formula of due process of law—thus expressed in the Fifth Amendment, ‘‘No person shall be deprived of life, liberty, or property, without due process of law;’’ and thus expressed in the Fourteenth Amendment, ‘‘nor shall any state deprive any person of life, liberty, or property, without due process of law—’’ should not receive an identical construction, regardless of the part of the constitution in which it is contained. The fact that the formula passed first into the Fifth Amendment, and thence into the Fourteenth only strengthens the idea that it should have the same meaning in both. It is not likely that any doubt would ever have been entertained as to a truth so obvious had it not have been for the grave mistake made in the definition first given of due process as contained in the Fifth Amendment in the case of Murray v. Hoboken Land and Improvement Co., 18 How. 272, heretofore examined at great length. The fact was then emphasized that the unsound definition thus given was formally repudiated, first in Hurtado v. Cali- fornia, 110 U.S. 516, and then in Twining v. New Jersey, 211 U.S. 78. In the case last cited the Court said: ‘‘Of course, the part of the Constitution then before the Court was the Fifth Amendment. If any different mean- ing of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision.’’ And yet something like a doubt had been expressed in the earlier case of Carroll v. Greenwich Ins. Co., 199 U. S. 401, where it was said that ‘‘ While we need not affirm that in no instance could a distinction be taken, ordinarily if an act of Congress is valid under the Fifth Amendment it would be hard to say that a state 244. DUE PROCESS OF LAW § 123 law in like terms was void under the Fourteenth. It is true that, by the provision in the body of the instru- ment, Congress has power to regulate commerce, and- that the act of Congress referred to in the cases cited was passed in pursuance of that power. But even if the Fifth Amendment were read as contemporaneous with the original Constitution, the power given in the com- merce clause would not be taken to override it so far as’ the Fifth Amendment protects fundamental personal rights. Itis only on the ground that the right to combine at willis a fundamental personal right that it can be held to be protected by the Fourteenth Amendment, from any abridgement by the states.’’ If that statement was really intended to express a doubt as to the question at issue, it was removed by the subsequent and emphatic declara- tion that ‘‘If any different meaning of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision.”’ § 124. Only national citizenship as such protected against state action by the due process clause of Section 1. In the Slaughter House Cases, 16 Wall. 36, these dec- larations were made: ‘‘It is quite clear, then, that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual. . . . If, then, there is a difference be- tween the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the state as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the Amendment. . . . Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the United States as such, and that they are left to the state governments for security and protection, and not by this article placed under the special care of the Federal Government, we may hold ourselves § 124 THE NEW NATIONAL CITIZENSHIP 245 excused from defining the privileges and immunities of citizens of the United States which no state can abridge, until some case involving these privileges may make it necessary todoso. . . . But itis useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the Fourteenth Amendment under considera- tion.’? That case grew out of an attempt upon the part of the butchers of New Orleans to induce the Supreme Court of the United States to annul an act of the state legislature creating a certain monopoly, because, they said, that it abridged their privileges and immunities as citizens of the United States of property rights without due process of law, contrary to Section 1 of the Four- teenth Amendment. The Court denied relief upon the ground that whatever rights had been violated, if any, belonged to ‘‘citizens of the states as such,’’ and not to citizens of the United States as such. In other words that the subject matter was one entirely under the control of the police power of the State of Louisiana whose Supreme Court had approved of the manner in which it had been exercised in that particular case. In order to guarantee to the states as great a latitude as possible in the regulation of their systems of interior law, it was likewise held in Hurtado v. California, 110 U.S. 516, that they are under no obligation to perpetuate the grand jury as a means of presentment even in a case of murder; that a conviction for murder in the first degree and a sentence of death, where the prosecution was begun by information, is not illegal by reason of con- flict with the due process of law clause of the Fourteenth Amendment. The Court said: ‘‘We are to construe this phrase (due process of law) in the Fourteenth Amend- ment by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes specific and express provision for per- 246 DUE PROCESS OF LAW § 124 — petuating the institution of the grand jury, so far as relates to prosecutions, for the more aggravated crimes under the laws of the United States. It declares that ‘No person shall be held to answer for a capital or other- wise infamous crime, unless on a presentment or indict- ment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy © of life or limb; nor shall he be compelled in any criminal ease to be a witness against himself.’ It then imme- diately adds: ‘nor be deprived of life, liberty or property, without due process of law.’ According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume without clear reason to the contrary, that any part of this most important Amendment is superfluous. The natural and obvious inference is, that in the sense of the Constitution, ‘due process of law’ was not meant or intended to include, ex vi termint, the insti- tution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that Amendment it had been part of its pur- pose to perpetuate the institution of the grand jury in all the states, it would have embodied,:as did the Fifth Amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land, which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein pre- scribed, and interpreted according to the principles of the common Jaw. In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each state, which derives its authority from the inherent and reserved powers of the state, exerted within the limits of § 124 THE NEW NATIONAL CITIZENSHIP 247 those fundaimental principles of liberty and justice which lie at the base of all of our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. ‘The Fourteenth Amendment,’ as was said by Mr. Justice Bradley in Mo. v. Lewis [101 U. S. 22], ‘does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury and on the other side no such right. Each state pre- scribes its own modes of judicial proceeding.’ ”’ The same line of reasoning induced the Court, in Twin- ing v. New Jersey, 211 U. 8. 78, to hold that -while an exemption from self-incrimination is guaranteed as against the action of the Federal Government by the Fifth Amendment, such exemption is not such a funda- mental right of national citizenship as to be included among the privileges and immunities of citizens of the United States which the state governments are forbidden to abridge by the Fourteenth Amendment. Before reach- ing the conclusion that exemption from self-incrimination is not guaranteed by the due process clause of that Amendment, the Court said: ‘‘But assuming it to be true that the exemption from self incrimination is not, as a fundamental right of national citizenship, included in the privileges and immunities of citizens of the United States, counsel insist that, as a right specifically granted or secured by the Federal Constitution, it is included in them.’’? In rejecting that contention the Court said: “‘In Maxwell v. Dow, 176 U. S. 581, where the plaintiff. in error had been convicted in a state court of a felony upon an information, and by a jury of eight persons, it was held that the indictment, made indispensable by the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment, were not privileges and immuni- ties of citizens of the United States, as those words were 248 DUE PROCESS OF LAW § 124 used in the Fourteenth Amendment. The discussion in that case ought not to be repeated. All the arguments for the other view were considered and answered, the authorities were examined and analyzed, and the decision rested upon the ground that this clause of the Fourteenth Amendment did not forbid the states to abridge the personal rights enumerated in the first eight Amendments, because those rights were not within the meaning of the clause ‘privileges and immunities of citizens of the United States.’ If it be possible to render the principle which governed the decision more clear, it is done so by the dissent of Mr. Justice Harlan. We conclude, therefore, that the exemption from compulsory self-incrimination is not a privilege or immunity of national citizenship guaranteed by this clause of the Fourteenth Amendment against abridgement by the states.’ CHAPTER VI GENERAL SCOPE OF THE GUARANTY OF DUE PROCESS § 125. The guaranty in English law. It has ever been an elementary principle of American constitutional law that every state legislature is endowed by its very nature with the omnipotence of the English Parliament, save so far as that omnipotence is restrained by express consti- tutional limitations. That invention embodies the funda- mental difference that divides two kindred political systems, the one resting on the sovereignty of the people as expressed in written constitutions, the other on the sovereignty of Parliament. All of the national move- ments in England through which the charters were won were directed against the crown and not against the parliament. ‘‘It is easy to see,’’ says Mr. Justice Miller in Davidson v. New Orleans, 96 U. S. 97, ‘‘that when the great Barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by ‘law of the land’ the ancient and customary laws of the English people, or laws enacted by the parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Par- liament of England.’’? The only suggestion ever made in England that a limitation could be put by law upon the omnipotent Parliament is that contained in Bonham’s Case, 8 Coke 118a, where Coke says: ‘‘And it appears in our books, that in many cases, the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is 249 250 DUE PROCESS OF LAW § 125 against common right and reason, or repugnant or im- possible to be performed, the common law will control it and adjudge such act to be void.’’ A’ closet speculation equally valueless was indulged in by Blackstone (i, p. 40) who says that ‘‘the law of nature being coeval with man- kind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.’’ In com- menting upon that declaration Mr. Dicey has said that ‘“‘expressions are sometimes used by modern judges which imply that the courts might refuse to enforce statutes going beyond the proper limits (internationally speaking) of parliamentary authority. But to words such as those of Blackstone, and to the obiter dicta of the Bench, we must give a very qualified interpretation. There is no legal basis for: the theory, that judges, as exponents of morality, may overrule acts of parliament. Language which might seem to imply this amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the mean- ing to be affixed to an act of parliament, will presume that parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be con- sistent with the doctrines both of private and of inter- national morality.’? The Law of the Constitution, pp. 59-60. Despite Austin’s empty contention that an act af parliament, which violates fundamental principles, though legal and binding, may still be unconstitutional, (Province of Jurisprudence, Vol. VI) the fact is and has always been that the English Parliament is legally omnipotent. Burke did not go too far when he said that the ‘‘Parliament of Great Britain sits at the head of her extensive empire in two capacities. One, as the local legislature of this island, §126 SCOPE OF GUARANTY OF DUE PROCESS 251 providing for all things at home immediately, and by no other instrument than the executive power. The other, and I think her nobler capacity, is what I call her imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any.’’ Works, 4th ed. Vol. ii, p. 75. While no limitation could restrain the omnipotent parliament, even when it saw fit to pass bills of attainder and other statutes providing for punishment without trial, it was a recognized principle that, as against the King and those who acted under his authority, the person and property of the subject were protected by ‘‘the law of the land,’’ including of course a jury in a proper case. When therefore Henry VI granted to a London corpora- tion of dyers the power to search for cloth, coupled with the power to forfeit it when it was found to be dyed with logwood, it was held that a charter granting such a right of forfeiture was against the law of the land, because no forfeiture can grow by letters patent. 2 Inst. 47, stated in London’s Case, 8 Coke 125a. In the same way it was held in Bagg’s Case, 11 Coke 100, that the law of the land afforded protection against any unjust or arbitrary action upon the part of a municipal corporation, because, in the words of Lord Coke, such corporations ‘‘derive their authority from the King.’’ In that case it was held that unless a city or borough had express authority to do so by its charter or by prescription, it could not disfranchise from the corporation any freeman of such- city or borough. In the absence of express authority it was the right of such freeman, under the provision of the Great Charter, to be convicted before removal by due process of law. Reference is also made by Coke to a case in which it was adjudged that a custom in a city was void because ‘‘against the law of the land.’’ 2 Inst. 46. See McGehee, p. 24 sq. § 126. The guaranty in American law. Why does the guaranty of due process, which in English law extends 252 DUE PROCESS OF LAW § 126 only to executive action, extend in American law to the three departments of power, executive, legislative and judicial? The answer must be found in the history of the process through which American constitutions, state and federal came into existence. When the tie of political dependence that bound the colonies to the mother country was severed, the English provinces in America rose to the full statute of sovereign states. ‘‘When the Revo- lution took place the people of each state became them- selves sovereign.’’ And as soon as they ‘‘took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the Parliament became immediately and rightfully vested in the state.’? Martin v. Lessee of Waddell, 16 Pet. 410 sq. On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independ- ent governments ‘‘for the maintenance of internal peace and the defense of their lives, liberties, and properties.’ Before the end of the year in which the recommendation was made, by far the greater part of the colonies had adopted written constitutions in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that mar- velous process of growth through which the English colonies in America were rapidly developed into a group of independent commonwealths in which each individual member was, in its organic structure, a substantial repro- duction of the English kingdom. With the adoption of the written constitutions of 1776, the typical English state in America reached its full growth. In coming into existence the typical American state gave birth to the idea of constitutional limitations on all state powers, executive, legislative, and judicial, a purely American invention without a precedent in history. Such limitations, of which the European world knew nothing, grew naturally out of the process through which Amer- ican legislatures were organized. From the very begin- §126 SCOPE OF GUARANTY OF DUE PROCESS 253 ning the powers of the colonial assemblies were more or less limited through the terms of the characters by which such assemblies were either created or recognized. Even in colonial times ‘‘questions sometimes arose whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found in excess, they were held invalid by the courts this is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.’’ The colonial charter embodied a sys- tem of government established by a superior authority creating a subordinate law-making body that could do everything except violate the terms and transcend the powers of the instrument to which it owed its existence. So long as the colony remained under the English crown the superior authority which could amend or remake the system of government was the English crown or Parliament. When the tie binding the colonies to the mother country was severed, that authority passed over, not to the state legislature, which remained limited, as it always has been, but to the people 6fthe independent commonwealth, whose will speaks through what is now the state constitution, acting upon every department of state power, executive, legislative and judicial, just as the will of the crown or Parliament had spoken through the charters of 1628 and 1691. As Mr. Justice Matthews has well said in Hurtado v. California, 110 U. S. 516, “Tn this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Carta were incorporated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, there- fore, that as these broad and general maxims of liberty and justice held in our system a different place and per- formed a different function from their position and office in English constitutional history and law, they would 254 DUE PROCESS OF LAW § 126 receive and justify a corresponding and more compre- hensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legis- lation ; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particu- lar forms of procedure, but the very substance of individual rights to life, liberty and property. Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injuri- ous when imposed on the just necessary discretion of legislative power, and, while in every instance, laws, that violated express and specific injunctions and prohibitions, might without embarrassment, be judicially declared to be void, yet, any general principle or maxim founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as insti- tuted by popular consent and for the general goad, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and. modes of attainment. Such regulations, to adopt a sentence of Burke’s ‘may alter the mode of application but have no power over the substance of original justice.’ Tract on the Property Laws, 6 Burke’s Works, ed. Little and Brown, 323.”’ While, as a general rule, the colonies, after being trans- formed into independent states, adopted new constitu- tions, the charter granted to Connecticut in 1662 was continued as her organic law until 1818; and that granted to Rhode Island in 1663 was continued as her organic law until 1842. And it is certainly worthy of note, as hereto- fore pointed out, that one of the first cases, if not the very first, in which a legislative enactment was declared uncon- stitutional and void, on the ground of conflict with the constitution of a state, was decided under the charter last named. But what is far more important is the fact that this novel and supreme power of declaring an act of the g§126 SCOPE OF GUARANTY OF DUE PROCESS 255 legislature void was assumed by the state courts, as a creation of judge-made law, without a line or word of authority on the subject in the state constitutions. The state judges simply reasoned out the right on abstract principles. As an illustration, reference may be made to the words of Wythe, J., who, in the case of Com. v. Caton, 4 Call, 5, said: Nay, more, if the whole legisla- ture, an event to be deprecated, should attempt to over- leap the bounds prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, point- ing to the constitution, will say to them, here is the limit of your authority; and hither shall you go, but no farther.’? When the new system of limitations, thus developed in the states, was lifted into a higher sphere through its application to the legislative power vested in the unique federal republic created by the constitution of 1787, the inevitable outcome was the Supreme Court of the United States, the only court in history that has ever assumed the right to pass on the validity of a national law. As there is no line or word in the federal constitu- tion intimating directly the existence of such a right, it was there reasoned out, as in the states, as a matter of judge-made law. Not until thirteen years after the organization of the Supreme Court was the first attempt made, in the case of Marbury v. Madison, 1 Cranch 137 (1803), to put the stamp of nullity upon a national law; and not until twenty years after its organization was the first attempt made, in the case of Fletcher v. Peck, 6 Cranch, 87, (1810), to put the stamp of nullity upon a state law—in both instances by reason of repugnancy to the Federal constitution. Thus, by means of judicial logic, and not by the authority of an express constitu- tional provision, was the Supreme Court of the United States able to maintain its right to put the stamp of nullity upon a law, state or federal. The limitation imposed upon, the powers of a state for- bidding it to deprive any person of life, liberty or prop- 256 DUE PROCESS OF LAW § 126 erty, without due process of law, extends to the exercise of executive, legislative or judicial power, no matter by what officers or agent, or agency it be exercised, so it be by state authority. In that way is included the action of any subordinate division of a state, such as a municipal cor- poration. After referring to the words of Section I, of the Fourteenth Amendment the Supreme Court in Ex parte Virginia, 100 U. S. 339, said: ‘‘They have reference to the actions of the political body denominated the state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its executive or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public positions under a state government, deprives another of property, life or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the con- stitutional inhibition; and as he acts in the name of and for the state, and is clothed with the state’s power, his act is that of the state. This must be so or the constitu- tional inhibition has no meaning. Then the state has clothed one of its agents with power to annul or to evade it.’’ The wrongful acts or proceedings of individuals sim- ply constitute private wrongs, or crimes of individuals. Such acts when unsupported by state authority, do not fall within the purview of the amendment. In the case of Yick Wo v. Hopkins, 118 U. 8. 356, involving the valid- ity of a municipal ordinance of the City and County of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits ‘‘without having first obtained the con- sent of the board of supervisors, except the same be located in a building construed either of brick or stone,’’ it was held that ‘‘Though the law itself be fair on its face §127 SCOPE OF GUARANTY OF DUE PROCESS 257 and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum- stances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor, ete, of New York, 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; Ex parte Va., 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crowley.’’ [113 U.S. 703.] § 127. Supreme Court of the United States as a super- vising and annulling tribunal. An effort has been made heretofore to emphasize the fact that prior to the adop- tion of the Fourteenth Amendment the citizens of a state could rely for due process of law on the institutions of the state alone; and when such protection was denied the Federal Government had no right whatever to inter- fere. The original constitution guaranteed nothing more than a republican form of government in each state, and the right of the citizens of each state to all the privileges and immunities of citizens of the several states, a state of things in which private property might have been confis- cated and vested rights divested by the states without the possibility of intervention by the Federal courts. Such courts possessed no authority to interfere with state action, executive, legislative or judicial, except in the case of bills of attainder or laws impairing the obligation of contract. The prohibition against ex post facto laws was limited strictly to criminal cases. In the words of Mr. Justice Field, employed in Bartemeyer v. Iowa, 18 Wall. 129, ‘‘Before this amendment (14) and the Thirteenth Amendment were adopted, the states had supreme authority over all these matters, and the National Government, except in a few particulars, could afford no protection to the individual against arbitrary and oppressive legislation. After the Civil war had Due Process—17 258 DUE PROCESS OF LAW § 127 closed, the same authority was asserted, and, in the states recently in insurrection, was exercised to the oppression of the freemen; and towards the citizens of the North seeking residence there, or citizens resident there who had maintained their loyalty during the war for nation- ality, a feeling of jealousy and dislike existed which could not fail soon to find expression in discriminating and hostile legislation. It was to prevent the possibility of such legislation in future, and its enforcement where already adopted, that the Fourteenth Amendment was directed. It grew out of the feeling that a Union which had been maintained by such costly sacrifices was, after all, worthless if a citizen could not be protected in all his fundamental rights everywhere—North and South, East and West—throughout the limits of the Republic. The amendment was not, as held in the opinion of the major- ity, primarily intended to confer citizenship on the negro race. It had a much broader purpose; it was. intended to justify legislation, extending the protection of the National Government over the common rights of all citi- zens of the United States, and thus obviate objections to the legislation adopted for the protection of the emanci- pated race. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It, therefore, recog- nized, if it did not create, a national citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government; and declared that their privileges and immunities, which embraced the fundamental rights belonging to citizens of all free governments, should not be abridged by any state.’’ In order to fill the vacuum thus described, as existing under the original constitution, was adopted the amend- ment in question which in the language of the Supreme Court (Hibben v. Smith, 191 U.S. 310, 325), ‘legitimately operates to extend to the citizens and residents of the §127 SCOPE OF GUARANTY OF DUE PROCESS 209 states the same protection against arbitrary state legisla- tion affecting life, liberty and property as if offered by the Fifth Amendment against similar legislation by Con- gress.’’ The result is that if the state fails to guarantee due process of law and the equal protection of the laws to citizens of the United States, as such, the Federal judi- ciary can supervise the performance of that duty in such a way as to vest the ultimate decision of every question, involving due process of law and the equal protection of the laws, in the Federal courts. But in the particular case the Federal court can only determine whether the state has failed in that duty; and, in that event, it can only declare the proceedings void. The vital question therefore in every case is whether or no the person who complains has been deprived by official state action of some right or immunity guaranteed to him by virtue of his national citizenship, considered as a thing separate and apart from his state citizenship, because it was settled at the outset ‘‘that there is a citizenship of the United States and a citizenship of the state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual.’’ Only the privileges and immunities that belong to a citizen of the United States as such are placed by the amendment under its protection; those belonging to the citizen of the states as such ‘‘must rest for their security and protec- tion where they have heretofore rested; for they are not embraced by this paragraph of the amendment.’’ The majority of the court who determined in the Slaughter House Cases, 16 Wall. 36, to confine the amendment within the narrowest possible limits determined so to limit the revolution wrought by it as to prevent a radical change of the whole theory of the relations of the state and federal governments to each other, and of both gov- ernments to the people. It was therefore held in United States v. Cruikshank, 92 U.S. 542, that ‘‘The Fourteenth Amendment prohibits a state from depriving any person of life, liberty or property without due process of law; 260 DUE PROCESS OF LAW § 127 but this adds nothing to the rights of one citizen as against another. It simply furnished an additional guar- anty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society.’’ And so it was said in Re Kemmler, 136 U. S. 486, that ‘‘The Fourteenth Amendment did not radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of the state. Protection to life, liberty, and property rests, primarily with the states, and the amendment fur- nishes an additional guaranty against any encroachment upon those fundamental rights which belong to citizen- ship, and which the state governments were created to se- cure.’? The internal sovereignty of the state thus re- mained so unimpaired that it could still exercise the sovereign rights of taxation, eminent domain, the police power, the administration of justice, in civil and criminal cases, with no restraint whatever so long as the guaran- tees in favor of the new national citizenship were not vio- lated. It was also considered necessary so to limit the scope of the amendment as to prevent the Federal courts from being submerged under a mass of new litigation in- volving a review of nearly every transaction between the state and its citizens. Its framers had no idea of convert- ing the Supreme Court of the United States into a general court of appeal with jurisdiction so wide and plenary as to enable it to review all cases involving the taking away of life, liberty and property when only questions of equitable consideration or broad ideas of justice are involved. That court remains as before a court not of general but special appeal with power to supervise under the amendment in question only when the official action of the state has violated either its provisions or those of some act of Congress passed in pursuance of it. When the question involves only the conformity of the act with the constitution of a state, the decision of its §127 SCOPE OF GUARANTY OF DUE PROCESS 261 highest court is final no matter how harsh or oppressive the act may be. In Kirtland v. Hotchkiss, 100 U. 8S. 491, involving the state power of taxation, the Court said: “‘Tt may therefore, be regarded as the established doctrine of this court, that so long as the state, by its system of taxation does not intrench upon the legitimate authority of the Union, or violate any right recognized or secured to the citizen by the constitution of the United States, this court as between the citizen and his state, can afford no relief against state taxation, however unjust, oppressive or onerous.’’? The Federal courts have nothing whatever to do with the policy or expediency of state laws, nor is the hardship or injustice of such laws necessarily an objection against their constitutional validity. ‘‘The rule, briefly stated, is that whenever an act of the legislature is challenged in court the inquiry is limited to the ques- tion of power, and does not extend to the matter of expe- diency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act. This principle rests upon the independence of the legislature as one of the co-ordinate departments of the government.’’ Angle v. Chicago, St. Paul, etc., Rail- way, 151 U.S.1. There is no denial of due process when the law is executed according to the established forms and usages of a particular state, provided they embody the fundamentals, no matter how much they may differ in form from the laws of another state. As Mr. Justice Bradley said in a leading case: ‘‘The Fourteenth Amend- ment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several states without violating the equality clause in the Four- teenth Amendment, there is no solid reason why there 262 DUE PROCESS OF LAW § 127 may not be such diversities in different parts of the same state.’’ Bowman v. Lewis, 101 U. 8. 22. As the Court well said in a kindred case, involving the presence of due process in a proceeding for the collection of state taxes, it is always necessary ‘‘to distinguish between the essentials of due process of law under the Fourteenth Amendment and matters which may or may not be essential under the terms of a state assessing or taxing law. The two are neither correlative nor coterminous. The first, due process of law, must be found in the state statute and can not be departed from without violat- ing the constitution of the United States. The other depends on the law-making power of the states, and, as it is solely the result of such authority, may vary or change as the legislative will of the state may see fit to ordain. It follows that to determine the existence of one (due process of law) is the final province of this court, while the ascertainment of the other (that is, what is merely essential under the state statute) is a state question within the final jurisdiction of the courts of last resort in the several states. When, then, a state court decides that a particular formality was or was not essential under the state statute, such decision presents no federal question, providing always the statute, as thus construed, does not violate the constitution of the United States by depriving of property without due process of law. This paramount requirement being fulfilled, as to other mat- ters, the state’s interpretation of its own laws is con- trolling and decisive.’’ Castello v. McConnico, 168 U. 8. 674. In upholding the validity of a state statute limit- ing the hours of labor in mines, the Court, in Holden v. Hardy, 169 U. S. 366, said: ‘‘We have no disposi- tion to criticise the many authorities which hold that state statutes restricting the hours of labor are uncon- stitutional. Indeed, we are not called upon to express an opinion upon this subject. It is sufficient to say of them that they have no application to cases where the legis- lature had adjudged that a limitation is necessary for the §127 SCOPE OF GUARANTY OF DUE PROCESS 263 preservation of the health of employees, and there are reasonable grounds for believing that such determination is supported by the facts. The question in each case is whether the legislature has adopted the statute in exer- cise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppres- sion, or spoliation of a particular case. The distinction between these two different classes of enactments can not be better stated than by a comparison of the views of this court found in the opinion in Barbier v. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703, with those later expressed in Yick Wo v. Hopkins, 118 U.S. 356.’ Mere errors and irregularities in the decision of a state court acting within its jurisdiction, do not involve a denial of due process, so long as the funda- mentals are observed. In Arrowsmith v. Harmoning, 118 U.S. 194, a case in which a minor complained that he had been deprived of due process in a sale of his estate by his guardian under a judicial order, the court said: ‘‘The bond in question was a matter of procedure only, and if it ought to have been required the court erred in order- ing a sale without having first caused it to be filed and approved. At most, this was an error of judgment in the court. The constitutional provision is, ‘Nor shall any state deprive any person of life, liberty or property with- out due process of law.’ Certainly a state can not be deemed guilty of a violation of this constitutional obli- gation simply because one of its courts, while acting within its jurisdiction, has made an erroneous decision.’’ In Iowa Central Railroad Co. v. Iowa, 160 U. S. 389, wherein it was held that the refusal of a jury trial is not a denial of a right protected by the Federal constitution, even though it may have been clearly erroneous to construe the laws of the state as justifying the refusal,—the Court said: ‘‘As said by this court, speaking through Mr. Chief Justice Fuller, in Leeper v. Texas, 139 U. S. 462, 468: ‘Law in its regular course of administration through courts of justice is due process, and when secured by the 264 DUE PROCESS OF LAW § 127 law of the state the constitutional requirement is satis- fied.’ There was a ‘regular course of administration’ in the case at bar, as that term was employed in the case cited. It is manifest that it was never contemplated by the framers of the constitution that this court should sit in review, as an appellate court, of such a question as that presented by the record in the case at bar, Viz, whether or not the highest court of a state erred in hold- ing that it could rightfully determine from the statements in the pleadings filed by both parties to a controversy pending before it, that the averments of an answer set forth no defense to the claim of the plaintiff.’’ But while it is thus settled that erroneous decisions of a state court do not deny due process so long’as they are limited to questions involving conformity with the constitution and laws of the state, the fact remains that such decisions must not deprive a person of those funda- mental rights which the Federal constitution guarantees. Such rights must not be abridged either by the law which the court is administering or by the conduct of the court itself while acting under it. In United States v. Walker, 109 U. 8. 258, the Court said: ‘‘In the case of Windsor v. McVeigh, 93 U. 8. 274, Mr. Justice Field, after a review of the cases bearing upon this subject, announces their result as follows: ‘The doctrine invoked by counsel, that when a court has once acquired jurisdiction it has a right to decide every question which arises in the case, and its judgment, however erroneous, can not be collaterally assailed, is undoubtedly correct as a general proposition, but is subject to many qualifications in its application. It is only correct when the court proceeds, after acquir- ing jurisdiction of the cause, according to established modes governing the class to which the case belongs, and does not, transcend, in the extent or character of its judg- ment, the law which is applicable to it.’’’ Such was the basic principle of the decision in Wetmore v. Karrick, 205 U. S. 141, in which the Court said: ‘‘To sanction a proceeding rendering a new judgment without notice at a §127 SCOPE OF GUARANTY OF DUE PROCESS |. 265 subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate the fundamental principles of due process of law as we understand them, and do violence to that requirement of every system of enlightened juris- prudence which judges after it hears, and condemns only after a party has had an opportunity to present his defense. By the amendment and new judgment the pro- ceedings are given an effect against the defendant in error which they did not have when he was discharged from them by the judgment of dismissal. By the judg- ment of dismissal the court lost jurisdiction of the cause and of the person of the defendant. A new judgment im personam could not be rendered against the defendant until, by voluntary appearance or due service of process, the court had again acquired jurisdiction over him. As a matter of common right, before such action could be taken he should have an opportunity to be heard and present objections to the rendition of a new judgment, if such existed.’’ In Wood v. Chesborough, 228 U. 8. 672, the court reiterated the long established doctrine so clearly announced in West Chicago Street R. Co. v. Ili- nois, 201 U. 8. 506, to the effect that ‘(A state court can not, by resting its judgment upon some ground of local or general Jaw, defeat the appellate jurisdiction of the Supreme Court of the United States, if a Federal right or immunity was specially set up or claimed which, if recognized and enforced, would require a different judg- ment.’’ In restating that rule in Wood v. Chesborough the Court said ‘‘that the sufficiency of the Federal right set up can not be evaded if necessary to the determina- tion of the case, and, it may be admitted, that of such necessity this court must in each instance decide. : To the extent necessary to do so the power exists as a necessary incident to a decision upon the claim of denial of the Federal right.’? In Chapman v. Goodnow, 123 U. 8S. 540, it was held that ‘‘If a Federal question is fairly presented by the record and its decision is actually necessary to 266 DUE PROCESS OF LAW § 127 the determination of the case, a judgment, which rejects the claim, but avoids all reference to it, is as much against the right, within the meaning of Section 709 of the Re- vised Statutes, as if it had been specifically referred to and the right directly refused.’’ § 128. Congress as a protecting and enforcing body. It was the manifest purpose of the far-sighted framers of the Fourteenth Amendment not only to arm the Fed- eral judiciary with the negative power to annul all state action, executive, legislative and judicial, when in deroga- tion of the rights possessed by national citizens as such, but also to arm the Congress with the positive power to protect and enforce such rights by direct legislation. Sec- tion 5 of the amendment provides that ‘‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’’ In Holden v. Hardy, 169 U. S. 366, the Court said: ‘‘The Fourteenth Amend- ment, which was finally adopted July 28, 1868, largely expanded the power of the Federal courts and Congress, and for the first time authorized the former to declare invalid all laws and judicial decisions of the states abridg- ing the rights of citizens or denying them the benefit of due process of law.’’ In view of the fact that Congress had already, first, such express power to legislate for the protection of all rights as is given it by the direct grant contained in the constitution; second, that it had already the implied power or duty to protect its citizens in the enjoyment of all rights conferred on them, as a correla- tive to the grant of such rights,—it is not strange that the fresh grant of legislative power contained in Section 5 of the amendment in question should have suggested to some minds the thought that Congress had been thereby armed with an express power to enact a code of munici- pal law for the states, providing, among other things, for the enjoyment of due process by citizens of the several states. The first answer to be found to that alarming and far-reaching suggestion was embodied in a reductio §128 SCOPE OF GUARANTY OF DUE PROCESS 267 ad horible, which maintained that the admission of the existence of such a new power in Congress would mean a radical change in the whole theory of the relations of the state and Federal governments to each other and of both governments to the people, a result which the Su- preme Court, in the Slaughter House Cases, 16 Wall. 36, declared was not intended. When the momentous question was presented in the case of the United States v. Cruikshank, 92 U. S. 542, the Court said: ‘‘We have in our political system a gov- ernment of the United States and a government of the several states. Each one of these governments is dis- tinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its juris- diction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a state, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter House Cases, 16 Wall. 74. * * * The Fourteenth Amendment prohibits a state from deny- ing to any person within its jurisdiction the equal protec- tion of the laws; but this provision does not, any more than the one which precedes it and which we have just considered add anything to the rights which one citizen has under the constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the states; and it still remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, ‘but no more. The power of the National Government is limited to the enforcement of this guaranty.’’ Such was the prelude to the Civil Rights Cases, 109 U. S. 3, in which the court, speaking through Mr. Justice Bradley, said: ‘‘The 1st section of the Fourteenth Amendment, which is the one relied on, after declaring who shall be 268 DUE PROCESS OF LAW § 128 citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state de- prive any person of life, liberty or property without due process of law; nor deny to any person within its juris- diction the equal protection of the laws.’ It is state action of a particular character that is prohibited. Indi- vidual invasion of individual rights is not the subject- matter of the amendment. In has a deeper and broader scope. It nullifies and makes void all state legislation and state action of every kind, which impairs the priv- ileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutwm fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibi- tion. To adopt appropriate legislation for correcting the effects of such prohibited state laws and state acts, and thus to render them effectually null, void and innocu- ous. This is the legislative power conferred upon Con- gress and thus is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation or state action, of the kind referred to. Jt does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against state laws and state proceedings §128 SCOPE OF GUARANTY OF DUE PROCESS 269 affecting those rights and privileges, and power given Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must, neces- sarily, be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be found in United States v. Cruikshank, 92 U. S. 542; Va. v. Rives, 100 U. S. 313, and Ex parte Va., 100 U. S. 339.”’ After it had been thus firmly settled that the amend- ment in question ‘‘does not invest Congress with power to legislate upon subjects which are within the domain of state legislation,’’ it was necessarily held in Presser v. Illinois, 116 U. S. 252, that a state statute prohibiting independent military companies from drilling and parad- ing, unless licensed by the governor, does not deprive a citizen of any rights guaranteed by the Federal consti- tution; In re Kemmler, 136 U.S. 436, that a state statute is valid providing for the electrocution of criminals; and in Leeper v. Texas, 139 U. 8S. 462, ‘‘That by the Four- teenth Amendment the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons, or classes of per- sons of equal and impartial justice under the law; that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied; and .that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice. Hurtado v. California, 110 U. S. 516, 535, and cases cited.’’ By that luminous statement the truth was emphasized that the amendment in question did not take away from any state the inherent sovereign right, pos- sessed by it, before the Union was formed, to regulate its interior life by a system of law deemed by it necessary to advance its special local wants and peculiar interests and 270 DUE PROCESS OF LAW § 128 traditions. The amendment in question does not require any state to mould legal procedure in strict compliance with the technical rules of the common law, nor does it deny to any state the right to regulate in any reasonable way its system of police and internal order. And yet the fact remains that with the adoption of the Fourteenth Amendment the exercise of every state power passed under the yoke of its paramount authority. Every state can perform every function precisely as it did before, pro- vided that its performance does not violate the mandate: ‘“‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws.’’ Any exhaustive treatment of the subject must therefore involve; first, a classification of the various subject-matters upon which state power oper- ates; second, an examination of the sphere within which such power may be exercised in each particular case, with- out an infraction of the limitations which the amendment imposes. § 129. Due process the common heritage of all the states. An effort has heretofore been made to emphasize the all important fact that the constitutional principle embodied in the phrase, ‘‘due process of law,’’ a purely English invention, is the common heritage of all the states, and drawn from a single source—chapter 39 of the Great Charter of 1215. Within narrow limits the history has been unfolded of the famous formula from its advent in the Great Charter down to its embodiment in the American state constitutions adopted in 1776 or shortly thereafter. Emphasis was then given, first, to the fact that during the five hundred and sixty-one years interven- ing between those dates the meaning of the formula varied from age to age, each generation perceiving in it its own peculiar conception of civil liberty and law; second, to the §129 SCOPE OF GUARANTY QF DUE PROCESS 271 fact that our American states adopted it with the mean- ing attached to it in England, not at the time of the emi- gration, but at the time of the severance from the mother country in 1776. The first notable extension given to the old formula in the new land was that which resulted from its application to all three departments of state power, including of course the legislative. The founders of our state systems were careful to abolish the idea of an omnipotent parliament and the possible spoliation or arbitrary denial of personal rights upon the part of the executive under the maxim that ‘‘the King can do no wrong.’’ In the words of: a great jurist: ‘‘In this country written constitutions were deemed essential to protect the rights of the people against the encroach- ments of power delegated to their governments, and the provisions of Magna Carta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative, as well as executive and judicial. In the Fourteenth Amendment, by parity of rea- son, it (due process) refers to that law of the land in each state, which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.’? Hurtado v. California, 110 U. 8S. 516. And yet despite the fact that all of the states drew the famous formula from a common source; that all of them accepted it with the meaning attached to it in the mother country in 1776; that all of them so expanded it as to embrace all three departments of state power, it never has secured to all persons the benefit of the same laws and same remedies in every state. As each state has always possessed the power to give local color to its own conception of ‘‘due process,’’ no violation of the formula occurs so long as the law of a particular state is executed according to its customary forms or 272 DUE PROCESS OF LAW § 129 established usages. Therefore the Court said in Bowman v. Lewis, 101 U. 8. 22: ‘‘The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same reme- dies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line may be a right of trial by jury, and the other side no such right. Hach state prescribes its own modes of judicial proceeding.’’ In the prior case of Walker v. Sauvinet, 92 U. S. 90, the Court had said: ‘‘The states, so far as this amendment (Art. VII) is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship, which the states are forbidden by the Fourteenth Amendment to abridge. A state can not deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met, if the trial is had according to the settled course of judi- cial proceedings. Murray v. Hoboken Land & I. Co., 18 How. 280. Due process of law is process according to the law of the state. This process in the state is regu- lated by the law of the state. Our power over the law is only to determine whether it is in conflict with the supreme law of the land; that is to say, with the constitution and laws of the United States made in pursuance thereof, or with any treaty made under the authority of the United States.’? In Davidson v. New Orleans, 96 U. 8. 97, the Court said: ‘‘it is not possible to hold that where by the laws of the state the party aggrieved has, as regards the issues affecting his property, a fair trial in a court of justice, according to the modes of proceeding applicable to such case, that he has been deprived of that property without due process of law.’? In Kennard v. Louisiana, 92 U. S. 480, where the question was. whether a mode of trying the title to an office, in which there was no pro- §129 SCOPE OF GUARANTY OF DUE PROCESS 273 vision for a jury, was due process of law, its validity was affirmed. The Court said: ‘‘From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the state, and for hearing and judg- ment there. A mere statement of the facts carries with it a complete answer to all the constitutional objec- tions urged against the validity of the act.’’ And yet the fact that due process of law is process according to the system of law obtaining in each state, and not according to any general law of the United States, does not imply that the right of a state to prescribe its own laws and procedure is without limitations. In Hurtado v. Califor- nia, 110 U. S. 516, the Court said: ‘‘But it is not to be supposed that these (state) legislative powers are abso- lute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. * * * The Supreme Court of Mississippi, in a well considered case of Brown v. Comrs., 50 Miss. 468, speaking of the meaning of the phrase ‘due process of law,’ says: ‘The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty or property, then the deprivation has not been by ‘due process of law.’ ‘It must be conceded,’ said this Court, speaking through Mr. Justice Miller, in Loan Ass’n v. Topeka, 20 Wall. Due Process—18 274 DUE PROCESS OF LAW § 129 655-662, ‘that there are such rights in every free govern- ment beyond the control of the state.’’’ In emphasizing the.same principle the Court said in Wynehamer v. The People, 138 N. Y. 378: ‘‘To say, as has been suggested, that ‘the law of the land,’ or ‘due process of law,’ may mean the very act of legislation which deprives the citizen of his rights, privileges or property, leads to a simple absurdity. The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away. . . . Where rights of property are admitted to exist, the legislature can not say they shall exist no longer; nor will it make any difference, although a process and a tribunal are appointed to execute the sentence. If this is the ‘law of the land,’ and ‘due process of law,’ within the meaning of the constitution, then the legislature is omnipotent. It may, under the same interpretation, pass a law to take away liberty or life without a pre-existing cause, appointing judicial and executive agencies to exe- cute its will. Property is placed by the constitution in the same category with liberty and life.’’ Thus it appears that while each state is given a wide latitude and broad discretion as to the forms and modes in which it may regulate judicial procedure and the rights of property within its limits, all such state regulation offends against the Federal constitution when it fails to provide due process by ignoring ‘‘certain fundamental rights which that system of jurisprudence, of which ours is a deriva- tive, has always recognized.’’ § 130. Notable attempts to define due process. The gravest desideratum in English and American law is and has ever been a clear, comprehensive and authoritative definition of the elements which, under all circumstances and conditions, constitute due process of law, as a guar- anty of ‘‘certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always §130 SCOPE OF GUARANTY OF DUE PROCESS 275 recognized.’’ The mother country, from which the doc- trine of due process was drawn, furnished no such defini- tion to the colonies; and, after they were transformed into sovereign states, each armed with a wide discretion as to the form in which and the extent to which due process should be recognized, they naturally failed to evolve a definition sufficiently authoritative to win the acceptance of all. Not until the guaranty of due process passed into the Federal constitution, first, in the Fifth Amendment as a limitation on the powers of the Federal government; second, in the Fourteenth Amendment, as a limitation on the powers of the state governments,—did the hope arise of an authoritative definition from a single tribunal armed with the power to enforce its mandates. The good work began in earnest when in the Dartmouth College case, 4 Wheat. 518, involving the validity of an act of a state legislature taking away franchises and rights vested in the college by a prior charter, the contention was made that such act violated that provision of the New Hamp- shire constitution which declared that no one shall be deprived of ‘‘property, privileges or immunities but by the judgment of his peers or the law of the land.’’ Mr. Webster, in defining the term due process in its rela- tion to substantive rights as well as procedure, in a case in which the act, in the nature of a judgment operating on rights already acquired, was directed against a single corporation, and passed without giving to it a legal opportunity to defend, said: ‘‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be consid- ered the law of the land. If this act were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring 276 DUE PROCESS OF LAW § 130 one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest impor- tance completely inoperative and void. It would tend directly to establish the union of all powers in the legis- lature. There would be no general permanent law for courts to administer or men to live under.’’ The famous case in question was decided at the February term, 1819, and at that term was also decided Bank of Columbia v. Okely, 4 Wheat. 235, involving the validity of the act of the Assembly of Maryland of 1793, incorporating the bank, and giving to it a summary process by execution, in the nature of an attachment, against its debtors who had, by express consent, in writing, made the bonds, bills, or notes, by them drawn or indorsed, negotiable at the bank. In holding that the act in question was not repug- nant to the Constitution of the United States or to that of Maryland the Court said: ‘‘That this view of the subject is giving full effect to the Seventh Amendment of the Con- stitution, is not only deducible from the general intent, but from the express wording of the article referred to. Had the terms been, that ‘the trial by jury shall be pre- served,’ it might have been contended that they were imperative, and could not be dispensed with. But the words are, that the right of trial by jury shall be pre- served, which places it on the foot of a lex pro se intro-. ducta, and the benefit of it may therefore be relinquished. As to the words from Magna Carta, incorporated into the constitution of Maryland, after volumes spoken and writ- ten with a view to their exposition, the good sense of mankind at length settled down to this: that they were intended to secure the individual from the arbitrary exercises of the powers of government, unrestrained by the established principles of private rights and distribu- tive justice.’’ After that definition of the ‘‘law of the land’’ by Mr. Justice Johnson, quoted in many cases, and ranked with that of Webster, the subject was involved in §130 SCOPE OF GUARANTY OF DUE PROCESS 277 serious confusion by the indefensible decision rendered by Mr. Justice Curtis in Murray v. Hoboken Land and Improvement Co., 18 How. 272, in which the court under- took to define, for the first time, the term ‘‘due process of law’’ as contained in the Fifth Amendment, and to adjudge that such due process had not been denied Samuel Swartwout in a case in which his land had been sold under a warrant issued by the solicitor of the treasury under an act of Congress of May 15, 1820, authorizing the issuance of such warrant. It was admitted by the Court that the proceedings fixing the sum of $1,374,119.65 as a lien on the land of Swartwout were purely ex parte; that he had no notice from or hearing before the purely min- isterial officers by whom that so-called judgment was rendered; and that the purely ministerial officers who attempted to render the so-called judgment had no judi- cial powers whatever. The definition given of due process in that case is this: ‘‘The words ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words ‘by the law of the land,’ in Magna Carta. Lord Coke, in his commentary on these words (21 inst. 50), says they mean due process of law. The constitu- tions which had been adopted by the several states before the foundation of the Federal constitution, following the language of the Great Charter more closely, generally contained the words, ‘but by the judgment of his peers, or the law of the land.’ ’’ Nothing need be added here to the demonstration heretofore made that the deadly origi- nal sin embodied in that definition consisted of the refusal to accept the vital historical fact that the English con- stitutional law that passed into our first state constitu- tions, and thence into the first eight amendments to the Federal constitution, was drawn from the reformed English system as Blackstone defined it in 1758, and not from the unreformed system as Coke described it in 1632, when the Star Chamber and High Commission were intact. In openly repudiating the definition of due process contained in the case in question, the Court, in Hurtado 278 DUE PROCESS OF LAW § 130 v. California, 110 U. 8S. 516, said: ‘‘It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray v. Hoboken Land and Improvement Company, 18 How. 272. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land and, therefore, is due process of law. But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchange- ableness attributed to the laws of the Medes and Per- sians, This would be all the more singular and surpris- ing, in this quick and active age, when we consider that owing to the progressive development of legal ideas and institutions, the words of Magna Carta stood for very different things at the time of the separation of the Amer- ican colonies from what they represented originally.”’ Turning from the definitions given of the due process clause as contained in the Fifth Amendment to like defini- tions, often mere descriptions of due process, as embod- ied in the Fourteenth, we find the Court saying in Ken- nard v. Louisiana, 92 U.S. 480, that, ‘‘It is substantially admitted by counsel in the argument that such is not the ease (denial of due process) if it has been done ‘In the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights.’ From this it appears that ample pro- vision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court, and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation of the court; for an appeal §130 SCOPE OF GUARANTY OF DUE PROCESS 279 from this judgment to the highest court of the state, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the consti- tutional objections urged against the validity of the act.’’ In Pennoyer v. Neff, 95 U.S. 714, the Court said: ‘‘What- ever difficulty may be experienced in giving to those terms (due process clause of Fourteenth Amendment) a defini- tion which will embrace every possible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to Judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance.’’ In Ex parte Wall, 107 U. S. 265, the Court said: ‘‘It is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where prop- erty or personal rights are involved. The important right of personal liberty is generally determined by a single judge, on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be established. Assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way. Conflicting claims of creditors, amounting to thousands of dollars, are often settled by the courts on affidavits or depositions alone. And courts of chancery, bankruptcy, probate and admiralty admin- ister immense fields of jurisprudence without trial by jury. In all cases, that kind of procedure is due process of law, which is suitable and proper to the nature of the case, and sanctioned by the established customs and 280 DUE PROCESS OF LAW § 130 usages of the courts.’? In Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, the Court said: ‘‘It is sufficient to observe here, that by ‘due process’ is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, there- fore, that there can be no proceeding against life, liberty or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights.’’ In Freeland v. Williams, 131 U. S. 405, the Court said ‘‘that the remedy provided by the Constitu- tion of the State, as carried out by the ancient proceed- ing of a bill in a court of equity, was not void for want of due process of law, nor in conflict with the Consti- tution of the United States.’ In Bell’s Gap Railroad Co. v. Penn., 1384 U. S. 232, the Court said: ‘‘The process of taxation does not require the same kind of notice as is required in a suit at law, or even in pro- ceedings for taking private property under the power of eminent domain. It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the princi- ples which underlie them.’’ In Caldwell v. Texas, 137 U.S. 692, the Court said: ‘‘Law, in its regular course of administration through courts of justice, is due process, _ and when secured by the law of the state, the constitu- tional requisition is satisfied. 2 Kent, Com. 13. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the estab- lished principles of private right and distributive justice. Bank of Columbia v. Okely, 4 Wheat. 235.’’ In Hallinger v. Davis, 146 U. S. 314, in which it was held that trials §130 SCOPE OF GUARANTY OF DUE PROCESS 281 had under the New Jersey statute authorizing persons indicted for murder to plead guilty and submit the degree of their guilt to the determination of the court, are due process—the Court said: ‘‘In Re Kemmler, 136 U. S. 436, a fruitless effort was made to induce this Court to hold that a statute of the State of New York, providing that punishment of death should be inflicted by an elec- trical apparatus, was void under the Fourteenth Amend- ment, and it was said: ‘The enactment of this statute was in itself within the legitimate sphere of the legislative power of the state and in the observance of those general rules prescribed by our system of jurisprudence; and the Legislature of the State of New York determined that it did not inflict cruel and unusual punishment, and its courts have sustained that determination. We can not perceive that the state has thereby abridged the privi- leges or immunities of the petitioner, or deprived him of due process of law.’ Applying the principles of these decisions to the case before us we are readily brought to the conclusion that the appellant, in voluntarily availing himself of the provisions of the statute and electing to plead guilty, was deprived of no right or privilege within the protection of the Fourteenth Amendment.’’ In Giozza v. Tiernan, 148 U. S. 657, the Court said: ‘‘The amendment does not take from the states these powers of police that were reserved at the time the original consti- tution was adopted. Undoubtedly it forbids any arbi- trary deprivation of life, liberty, or property, and secures equal protection to all under like circumstances in the enjoyment of their rights; but it was not designed to interfere with the power of the state to protect the lives, liberty, and property of its citizens, and to promote their health, morals, education, and good order. Barbier v. Connolly, 113 U. S. 27, 31; Re Kemmler, 136 U. S. 436. Nor in respect of taxation was the amendment intended to compel the state to adopt an iron rule of equality; to prevent the classification of property for taxation at dif- ferent rates; or to prohibit legislation in that regard, 282 DUE PROCESS OF LAW § 130 special either in the extent of which it operates or the objects sought to be obtained by it. It is enough that there is no discrimination in favor of one against another of the same class. In Scott v. McNeal, 154 U.S. 34, in which it was held that ‘‘No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party’’—the Court reaffirmed the definition of ‘‘due process of law’’ as given by Mr. Justice Field in Penoyer v. Neff, 95 U. S. 714. In Holden v. Hardy, 169 U. S. 366, it was held that a state statute limiting the period of employment of working men in underground mines, or in the smelt- ing, reduction, or refining of ores or metals, to eight hours a day and making its violation a misdemeanor, is a constitutional exercise of the police power—the Court said: ‘‘This Court has never attempted to de- fine with precision the words ‘due process of law,’ nor is it necessary to do so in this case. It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his defense.’’ In Reetz v. Michigan, 188 U. S. 505, in which it was held that due process requires no special provision for grant- ing a hearing to applicants for registration by the board of registration in medicine when provision is made for meetings of the board at specified times at the state capi- tol—the Court, adopting the language of Mr. Justice Matthews in Hurtado v. California, 110 U. S. 516, said: “* «Tt follows that any legal proceeding enforced by public authority, whether sanctified by age and custom, or newly devised in the discretion of the legislative power, in fur- therance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.’ Neither is the right of appeal essential to due process of law. In nearly every state are statutes giving, in criminal cases of a minor §130 SCOPE OF GUARANTY OF DUE PROCESS 283 nature, a single trial, without any right of review.’’ In the recent and important case of Ochoa v. Hernandez, 230 U. S. 139, in which the construction of the due process clause of the Fifth Amendment was involved the Court, speaking through Mr. Justice Pitney, said: ‘‘Without the guaranty of ‘due process’ the right of private property can not be said to exist, in the sense in which it is known to our laws. The principle, known to the common law before Magna Carta, was embodied in that Charter (2 Coke, Inst. 45, 50), and has been recognized since the Revolution as among the safest foundations of our insti- tutions. Whatever else may be uncertain about the defini- tion of the term ‘due process of law,’ all authorities agree that it inhibits the taking of one man’s property and giving it to another, contrary to settled usages and modes of procedure, and without notice or an opportunity for a hearing.’’ This long procession of definitions, or rather descriptions of the elements that constitute due process, will end with definitions of due process given by three famous text writers which have received general approval. Mr. Justice Story in his Commentary on the Constitution (5 ed. 1945), has said: ‘‘Due process in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one being dealt with belongs.’’? Kent, in his Commentaties (II, 3) says: ‘‘It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseised of his freehold, or liberties, or estates, or exiled or con- demned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, by the law of the land, as used in Magna Carta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the 284 DUE PROCESS OF LAW § 130 true sense and exposition of those words.’’ Judge Cooley in his Constitutional Limitations (354-55) says: ‘‘Per- haps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case [4 Wheat. 518]: ‘By the law of the land is most clearly intended the general law: A law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold life, liberty, property, and immunities, under the protec- tion of the general rules which govern society. Every- thing which may pass under the form of an enactment is not, therefore to be considered the law of the land.’ .. . While every man has a right to require that his own con- troversies shall be judged by the same rules which are applied in the controversies of his neighbors, the whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its opera- tion. It is not the partial nature of the rule, so much as its arbitrary and unusual character, that condemns it as unknown to the law of the land.’’ § 131. Difficulties in the way of a complete and authori- tative definition—The rule of inclusion and exclusion. No critical mind can examine the foregoing definitions of due process, if such they may be called, without being impressed with the fact that the basic difficulty in the way of a complete and authoritative definition applicable to all cases consists of the radical differences existing between the many subject-matters to which it must be _ applied. A proceeding in which the taking is enforced by the sovereignty of a state through the power of taxa- tion, or through that of eminent domain, where the process does not require the same kind of a tribunal or the same kind of a notice as is required in a suit at law, certainly differs very widely from a litigation between private individuals in a court whose jurisdiction §131 SCOPE OF GUARANTY OF DUE PROCESS 285 must be perfect, and in which equal law must be admin- istered after adequate legal notice and a hearing con- ducted according to traditional law. In the words of Mr. Justice Bradley, in two notable cases: ‘‘In judging what is ‘due process of law’ respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and, if found to be suitable or admissible in the special case, it will be adjudged to be ‘due process of law;’ but, if found to be arbitrary, oppressive, and unjust, it may be declared to be not ‘due process of law.’ ’’ Davidson v. New Orleans, 96 U. 8. 97. Concurring opinion. Again: “The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceed- ings for taking private property under the power of eminent domain. It involves no violation of due process of law, when it is executed according to customary forms and established usages, or in subordination to the princi- ples which underlie them.’’ Bell’s Gap R. Co. v. Penn- sylvania, 134 U. S. 232. In the presence of such diffi- culties rendering impossible any comprehensive and explicit definition equally applicable to an ever changing series of widely different subject-matters, the Court, in Davidson v. New Orleans, 96 U. S. 97, wisely resolved to adopt, as the only practical expedient, the rule of inclu- sion and exclusion, stated in the following form: ‘‘But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, compre- hensive and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.’’ In other words, when a given case is presented, it must first be classified, before the question can be asked whether or no due process has been denied when the deprivation is 286 DUE PROCESS OF LAW § 131 tested by the special standard appropriate to such a sub- ject-matter. Thus under the rule of inclusion and excelu- sion the mental process involves, first, a classification of the particular subject-matter; second, a selection of the standard of due process applicable to it; third, the appli- cation of that standard to the subject-matter as classified. So in the last analysis the real duty imposed upon the text writer is that of offering to the practitioner the rules which, under the decided cases, will best enable him, first, to classify the subject-matter of his suit; second, to deter- mine what are the essential elements of due process when such a subject-matter is involved. § 132. Fundamental requisites of due process—Notice. All the authorities agree that the fundamental requisites of due process are, first, adequate notice; second, a hear- ing; third, the application of equal laws; fourth, jurisdic- tion, when proceedings before a regularly constituted court are in question. Of each in its order. A certain kind of notice is required in judicial proceedings before courts strictly organized; another in proceedings before admin- istrative boards and officers; another in the levy and col- lection of taxes ; and still another in cases involving public improvements. In all cases, it must be remembered, that the reasonableness of the notice required under a state statute involves a vital element of due process, and that the decision of a state court on that question is not binding on the Federal Supreme Court. In Scott v. McNeal, 154 U.S. 34, the Court said: ‘‘Upon a writ of error to review the judgment of the highest court of a state upon the ground that the judgment was against a right claimed under the Constitution of the United States, this court is no more bound by that court’s construction of a statute of the territory, or of the state, when the question is whether the statute provided for the notice required to constitute due process of law, than when the question is whether the statute created a contract which has been impaired by a subsequent law of the state, or whether §132 SCOPE OF GUARANTY OF DUE PROCESS 287 the original liability created by the statute was such that a judgment upon it has not been given due faith and credit in the courts of another state. In every such case, this court must decide for itself the true construction of the statute. Huntington v. Atbull, 146 U. S. 657, 683, 684; Mobile and O. R. Co. v. Tennessee, 153 U. 8. 486. No judgment of a court is due process of law, if rendered without jurisdiction, or without notice to the party.’’ In Roller v. Holly, 176 U. 8. 398, the Court said: ‘The question in dispute, then, is whether a notice served upon the plaintiff in Rockingham county, Virginia, December 30, 1890, to appear in Limestone county, Texas, on Janu- ary 5, 1891, to answer the foreclosure suit is due process of law within the meaning of the Fourteenth Amend- ment? Without undertaking to determine what is a rea- sonable notice to non-residents, we are of opinion, under the circumstances of this case, and considering the dis- tance between the place of service and the place of return, that five days was not a reasonable notice, or due process of law; that the judgment obtained upon such notice was not binding upon the defendant Roller, and constitutes no bar to the prosecution of this action.’’ But as the power to prescribe the length of the notice is vested in the legis- lature, a very clear case of unreasonableness must be made out before the courts will interfere. In the case of Bellingham Bay, etc., R. Co. v. New Whatcom, 172 U.S. 314, in which a railroad company complained that a reas- sessment against its property for the cost of a local improvement was wanting in due process, because the notice was not reasonable, the Court said: ‘‘The fact that the owner after being notified is required to appear and file his objections within ten days, is thus the sole ground of complaint. But how many days can the courts fix as a minimum? How much time ean be adjudged necessary as a matter of law for preparing and filing objections? How many and intricate and difficult are the questions involved? Regard must always be had to the probable necessities of ordinary cases. No hardship to 288 DUE PROCESS OF LAW § 132 a particular individual can invalidate a general rule.’’ As a general rule it may be said that the notice is suffi- cient when the person who is to be deprived of life, liberty, or property has at some stage of the proceedings an opportunity to present objections to the action pro- posed against him to a court having authority to give effect to such objections, provided it considers them valid. Wilson v. Standerfer, 184 U. S. 399, 415. It has even been held that, after judgment in a suit, a rule to show cause why he should not be compelled to pay the amount of it against a person not a party was sufficient; and that the same was due process when followed by a hearing wherein an opportunity to defend was given. Louisville, ete., R. Co. v. Schmidt, 177 U. S. 230. See also, Simon v. Craft, 182 U. 8. 436; Hooker v. Los Angeles, 188 U.S. 314, 318. The proceeding may constitute due process when a remedy is given by motion in a state court which gives notice and affords an opportunity to be heard. Iowa C. R. Co. v. Iowa, 160 U. 8. 389. But due process did not exist when a court, acting under the erroneous belief that no action had been taken in the case for a year rendered a judgment of dismissal, then set aside such judgment after the term, or the rule day which, under the local practice, is equivalent to the end of the term, without motion or proceedings to vacate the judgment, and without notice, proceeded to render a personal judgment against the defendant. Wetmore v. Karrick, 205 U. 8.141. A person was not deprived of liberty without due process of law in a trial of the issue of lunacy under the Code of Ala., pro- viding that the sheriff may take possession of the person ‘and, if consistent with his health or safety have him present at the place of trial,’’ when notice of the inquisi- tion was served on the lunatic, who was not personally present because after an examination by a physician, it was deemed to be inconsistent with her health and safety that the sheriff should produce her on the trial. Simon v. Craft, 182 U. S. 427. In Chaloner v. Sherman, 242 U.S. 455, the Court said: ‘‘The proceedings were held §132 SCOPE OF GUARANTY OF DUE PROCESS 289 in New York City where much of plaintiff’s property was located. For over two years prior to the entry of the earlier order plaintiff had been an inmate of Blooming- dale, a private hospital near that city. At each stage of the proceedings leading up to the order of June 23, he [Chaloner] was personally served there with notice and was given an opportunity to be heard. Thus he had notice of the motion, on May 19, to appoint the commis- sion de lunatico inquirendo; of the inquisition of June 12; and of the motion to confirm the inquisition and for the appointment of a committee on June 23.... At the inquisition the commission and the jury after hearing witnesses, concluded that his attendance was unnecessary and did not require him to attend. There was evidence that his enforced attendance would be detrimental to his mental health. As the plaintiff had notice and oppor- tunity to be heard at each stage of these proceedings the essential elements of due process of law were fully met, and the court had jurisdiction to enter the order. It is not open to collateral attack, although plaintiff was then under commitment at Bloomingdale. See Simon v. Craft, 182 U. S. 427.’’ When due process is wanting in a proceeding in which judgment is taken in a state court under a warrant of attorney annexed to a promissory note, authorizing confession of judgment ‘‘in favor of the holder,’’ when the party in whose favor the judgment was rendered has ceased, before the beginning of the suit, to be the owner of the note, is settled in National Exch. Bank v. Wiley, 195 U. S. 257. For fur- ther illustrations of this branch of the subject, see Old Wayne Mut. L. Ass’n v. McDonough, 204 U. 8S. 8; Han- over Nat. Bank v. Moyses, 186 U. S. 181; Hamilton v. Brown, 161 U.S. 256; Cunnius v. Reading School District, 198 U.S. 458; Rothschild v. Knight, 184 U. 8. 334; Leigh v. Green, 193 U. S. 79; Johnson v. Chicago & P. Elevator Co., 119 U. S. 388; St. Mary’s Franco-American Petro- leum Co. v. West Virginia, 203 U. S. 183; Lynde v. Lynde, 181 U.S. 183; Louisville & N. R. Co. v. Schmidt, 177 U. S. Due Process—19 290 DUE PROCESS OF LAW § 132 230; Laurg v. Rigney, 160 U. S. 531; Kauffman v. Wool- ers, 1388 U. S. 285; Pittsburg, C., C. and St. L. R. Co. v. Backus, 154 U. 8S. 421; Central of Georgia R. Co. v. Wright, 207 U. S. 127; Longyear v. Toolan, 209 U.S. 414; Home Teleph. and Teleg. Co. v. Los Angeles, 211 U. S. 265; Ontario Land Co. v. Yordy, 212 U. S. 152; North American Storage Co. v. Chicago, 211 U. 8. 306; Watson v. Maryland, 218 U. S. 173; Kentucky Union Co. v. Ken- tucky, 219 U. S. 140; Washington ex rel. Oregon R. and Nav. Co. v. Fairchild, 224 U. 8S. 510; Ross v. Stewart, 227 U.S. 530; Clement Nat. Bank v. Vermont, 231 U. 8S. 120. Turning next to proceedings before boards and officers special reference must be made to Chicago, M. and 8. P. R. Co. v. Minnesota, 134 U. 8. 418, in which it was held that there was not the semblance of due process where neither summons or notice to a carrier, nor hearing was provided for, before a railroad commission ascertained and declared what it was to declare, without opportunity provided for the company to introduce witnesses before it. In San Diego Land and Town Co. v. National City, 174 U.S. 739, it was held that in as much as the constitu- tion of California gives notice of the fact that ordinances will be passed annually in February to take effect on July 1st next, with certain other details, it is not necessary to due process that formal notice be given as to the precise day upon which water rates will be fixed by ordinance. In Reetz v. Michigan, 188 U. S. 505, the, Court said: ‘“When a statute fixes the time and place of meeting of any board or tribunal, no special notice to parties inter- ested is required. The statute is itself sufficient notice. If the plaintiff in error has applied at any meeting for a hearing, the board would have been compelled to grant it, and if on such hearing his offer of or demand for testi- mony had been refused, the question might have been fairly presented to the state courts, to what extent the action of the board had deprived him of his rights.’’ See also, Buttfield v. Stranahan, 192 U. S. 470; Passavant v. United States, 148 U. S. 214; United States v. Heinszen, §132 SCOPE OF GUARANTY OF DUE PROCESS + 291 206 U. 8. 370; Public Clearing House v. Coyne, 194 U. 8. 497; Williams v. Eggleston, 170 U. S. 304; Chicago, B. and Q. R. Co. v. Nebraska ex rel. Omaha, 170 U. S. 57; Interstate Commerce Com. v. Illinois C. R. Co., 215 U.S. 452; Monongahela Bridge Co. v. United States, 216 U. S. 177; Reaves v. Ainsworth, 219 U. S. 296; Ochoa v. Her- nandez, 230 U. 8S. 1389; United States ex rel. Brown v. Lane, 232 U.S. 598. In considering cases involving public improvements prominence should be given to Hagar v. Reclamation Dis- trict No. 108, 111 U. S. 701, in which it was held that the judgment did not deprive the owner of his property with- out due process, when by the laws of the state a tax, assessment, servitude or other burden is imposed upon property for the public use, and provision made for notice to the person taxed, and opportunity given for con- testing the charge thus imposed in the ordinary courts of justice. In Paulsen v. Portland, 149 U. S. 30, it was held that when the charter of a city grants power to construct sewers, the validity of such a grant does not depend upon an explicit statement either of the necessity or the time and manner of notice to the taxpayer of an assessment for the construction of a sewer. In Bauman v. Ross, 167 U.S. 548, it was held that a landowner’s property was not taken without due process where the legislature, in taxing lands benefited by a highway or other public improve- ment, made provision for a notice to each landowner and for hearing him. In Hibben v. Smith, 191 U. S. 310, it was held that even where the judgment of the local body making the assessment is conclusive, due process is not denied the owner of the property assessed for a local improvement where an opportunity is given him to be heard before the body making the assessment. In Ballard v. Hunter, 204 U. 8. 241, it was held that due process may exist even when the nonresident owners of land ‘‘within a levee district did not have personal notice of the pend- ency of a suit to collect the levee taxes assessed on their lands.’’ See also, Fallbrook Irrig. District v. Bradley, 292 DUE PROCESS OF LAW § 132 164 U. 8. 112; Detroit v. Parker, 181 U. S. 399; Parsons v. District of Columbia, 170 U. S. 45; Voight v. Detroit, 184 U. 8. 115; Goodrich v. Detroit, 184 U. 8. 432; Carson v. Sewer Com’rs, 182 U. S. 398; Spencer v. Merchant, 125 U. S. 345; Bellingham Bay and B. C. R. Co. v. New Whatcom, 172 U. S. 314; Weyerhaueser v. Minnesota, 176 U. S. 550; Londoner v. Denver, 210 U. S. 373; Cleve- land, C., C. and St. L. R. Co. v. Porter, 210 U. 8. 177; District of Columbia v. Brooke, 214 U. 8. 188; Briscoe v. Rudolph, 221 U. S. 547; Soliah v. Heskin, 222 U. 8. 522; United States ex rel. Turner v. Fisher, 222 U. S. 204; Reitler v. Harris, 223 U. 8. 437; McGovern v. New York, 229 U. S. 363; Ettor v. Tacoma, 228 U. S. 148; Richards v. Washington Terminal Co., 233 U. 8. 546; Kryder v. Wil- son, 242 U.S. 171; Vandalia Railroad Co. v. Public Service Commission, 242 U. 8. 255. The question of the sufficiency of notice in tax cases will be specially considered hereafter under that head. § 133. Fundamental requisites of due process—Hear- ing. Text writers and digest makers usually link to- gether ‘‘Notice and hearing’? as one phrase for the reason, no doubt, that the two distinct rights are so inter- laced that it is practically impossible to consider the one without reference to the other. Mr. Justice Earl well said in Stuart v. Palmer, 74 N. Y. 183, 188, that ‘‘It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice and give them the right to a hearing and an opportunity to be heard. It matters not upon the question of the constitutionality of such a law, that the assessment has in fact been fairly apportioned. The con- stitutional validity of law is to be tested not by what was done under it, but by what may by its authority be done.’’ The difficulty is to determine whether or no in a particu- lar case there has been such a hearing as the constitu- tional guaranty contemplates. In tax proceedings, and in certain summary processes before administrative officers, §133 SCOPE OF GUARANTY OF DUE PROCESS 293 while the right to a hearing has been invariably recog- nized, the formalities attending it have been reduced to the minimum. In the State Railroad Tax Cases, 92 U.S. 575, involving the validity of a state law providing for the assessment of railroad property by a state board of equalization, setting at a time and place designed, and fix- ing the assessments by the aid of a schedule of such prop- erty made by its own officers, the Court said: ‘‘The main function of this board is to equalize these assessments over the whole state. If they find that a county has had its property assessed too high in reference to the general standard, they may reduce its valuation; if it has been fixed too low, they raise it to that standard. When they raise it in any county they necessarily raise it on the prop- erty of every individual who owns any in that county. Must each one of these have notice and a separate hear- ing? If a railroad company is by law entitled to such notice, surely every individual is equally entitled to it. Yet if this be so, the expense of giving notice, the delay of hearing each individual, would render the exercise of the main function of the Board impossible. The very moment you come to apply to the individual the right claimed by the corporation in this case, its absurdity is apparent. Nor is there any hardship in the matter. This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of anyone before it to assert a right or redress a wrong; and, in the business of assessing taxes, this is all that can be reasonably asked.’’ In perfect harmony with the fore- going are the Kentucky Railroad Tax Cases, 115 U. S. 321, in which the Court said: ‘‘And if the plaintiffs in error have the constitutional right to such hearing, for which they contend, the statute is properly to be con- strued so as to recognize and respect it, and not to deny it. The Constitution and the statute will be construed together as one law. This was the principle of construc- tion applied by this court, following the decisions of the state court, in Neal v. Delaware, 103 U. S. 370, where 294. DUE PROCESS OF LAW § 133 words, denying the right, were regarded as stricken out of the state constitution and statutes, by the controlling language of the Constitution of the United States; and in the case of Cooper v. The Wandworth Board of Works, 14 C. B. N. S. 180, 194, in a case where a hearing was deemed essential, it was said by Willes, J., ‘that although there are positive words in a statute requiring that a party shall be heard, yet the justice of the Common law will supply the omission of the Legislature.’ ’’ Thus it was held that the defendant could not contend that the hearing was a mere matter of grace and favor, because when the statute was construed as one law with the con- stitution, notice and hearing, actually had, were really provided for as due process of law. In Central of Georgia R. Co. v. Wright, 207 U. 8. 127, in which the sufficiency of the provisions of the Georgia Political Code, as to notice and hearing in tax proceedings were in question, the Court said: ‘‘Reluctant as we are to interfere with the enforcement of the tax laws of a state, we are constrained to the conclusion that this system does not afford that due process of law which adjudges upon notice and oppor- tunity to be heard, which it was the intention of the Four- teenth Amendment to protect against impairment by state action.’’ See also, Longyear v. Toolan, 209 U. 8. 414. In Londoner v. Denver, 210 U. 8S. 373, the Court said: ‘‘In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the states. In the enforcement of such restrictions as the Constitution does impose, this court has regarded sub- stance, and not form. But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, §133 SCOPE OF GUARANTY OF DUE PROCESS 295 either personal, by publication, or by a law fixing the time and place of the hearing. . . . If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in this case. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing, in its very essence, de- mands that he who is entitled to it shall have the right to support his allegations by argument, however brief; and, if need be, by proof, however informal. Pittsburg, C., C. and St. L. R. Co. v. Backus, 154 U. S. 421, 426; Fall- brook Irrig. District v. Bradley, 164 U.S. 112.’’ See also, Cleveland, C., C. & St. L. R. Co. v. Porter, 210 U. S. 177; Home Teleph. & Teleg. Co. v. Los Angeles, 211 U.S. 265; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320; North American Cold Storage Co. v. Chicago, 211 U.S. 306; Smith v. Hitchcock, 226 U. 8S. 53; Clement Nat. Bank v. Vermont, 231 U.S. 120. In the recent case of Coe v. Armour Fertilizer Works, 237 U.S. 413, the Court, in declaring what kind of a hear- ing is necessary to constitute due process of law, said: ‘““To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits. Rees v. Watertown, 19 Wall. 107, 113. Nor can extra official or casual notice, or a hearing granted as a matter of favor or discretion, be deemed a substantial substitute for the due process of law that the Constitution requires. In Stuart v. Palmer, 74 N. Y. 183, 188, which involved the validity of a statute providing for assessing the expenses of a local improvement upon the lands bene- fited, but without notice to the owner, the Court said: ‘It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. 296 DUE PROCESS OF LAW § 133 The law must require notice to them, and give them the right to a hearing and an opportunity to be heard.’ The soundness of this doctrine has repeatedly been recognized by this court. Thus in Security Trust Co. v. Lexington, 203 U. S. 323, 333, the court, by Mr. Justice Peckham, said, with respect to an assessment for back taxes: ‘if the statute did not provide for a notice, in any form, it is not material that as a matter of grace of favor notice may have been given of the proposed assessment. It is not what notice, uncalled for by the statute, the taxpayer may have received in a particular case that is material, but the question is, whether any notice is provided by the statute’ (citing the New York case). So, in Central of Georgia Ry. v. Wright, 207 U. 8. 127, 138, the Court said: ‘This notice must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace.’ In Roller v. Holly, 176 U. S. 398, 409, the Court declared: ‘The right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion.’ And in Louis. and Nash. R. R. v. Stock Yards Co., 212 U. S. 132, 144, it was said: ‘The law itself must save the parties’ rights, and not leave them to the discretion of the courts as such.’’ Special reference should also be made to the leading ease of Hovey v. Elliott, 167 U. S. 409, heretofore ex- amined, in which the right to a hearing under the due process clause of the Fifth Amendment, was given a notable exposition. The Court then said: ‘‘Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity of being heard, would it be pretended that such an enact- ment would not be violative of the constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and foundation of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be viola- §134 SCOPE OF GUARANTY OF DUE PROCESS 297 tive of the Constitution. . . . The decree therefore awards the property of the defendant to the complainant upon the hypothesis of fact that by contract the defendant had transferred the right to this property to the com- plainant. If the court had power to do this, by denying the right to be heard to the defendant, what plainer illus- tration could there be taking property of one and giving it to another without hearing or without process?”’ § 134. Fundamental requisites of due process—Gener- ality and equality of laws. In Caldwell v. Texas, 137 U.S. 691, the Court said: ‘‘By the Fourteenth Amend- ment the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the state, the constitutional requisition is satisfied. 2 Kent. Com. 13. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. Bank of Columbia v. Okely, 4 Wheat. 235, 244. The power of the state must be exerted within the limits of those principles, and its exertion can not be sustained when special, partial and arbitrary. Hurtado v. Califor- nia, 110 U. S. 516, 535. The same principles were re- stated with even greater emphasis in Leeper v. Texas, 139 U.S. 462. The conception thus expressed of the gen- erality and equality of laws, as a necessary part of due process, is purely an American creation. Even in Coke’s time the idea was in full force that the Parliament of Great Britain was a ‘‘High Court’’ armed with the power to make special decrees in individual cases in the form of acts of legislation. Coke says: ‘‘As every court of justice hath laws and customs for its direction,—some the civil and canon, some the common law, others their own pecu- 298 DUE PROCESS OF LAW § 134 liar laws and customs,—so the high court of parliament hath its own law, called the lex et consuetudo parlia- menti.”’ The author has attempted elsewhere (Origin and Growth Am. Const., p. 146) to emphasize the fact that no distinct or definite division of the powers of gov- ernment into executive, legislative and judicial ever existed in the English system, either in theory or in fact. In his Spirit of Laws (bk. xi., ch. 6) Montesquieu simply described the very imperfect division which he perceived in the English Constitution, and the political maxim usually attributed to him, that the three departments of power shall forever remain separate and distinct was adopted by the original thirteen states in the same quali- fied sense in which it was understood in the English sys- tem. Speaking of the constitution of the mother country, Madison said: ‘‘On the slightest view of the British con- stitution we must perceive that the legislative, executive, and judiciary departments are by no means totally sepa- rate and distinct from each other.’’ Speaking of the constitution of the state he said: ‘‘If we look into the con- stitutions of the several states, we find, that, notwith- standing the emphatical, and, in some instances, the unqualified terms in which the axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely sepa- rate and distinct.’? Federalist, No. xlvi, pp. 335, 337. Each state constitution, after stating the maxim in ques- tion in a far too absolute form, has made such a qualified division between the three powers as it deemed best for its own interests and convenience; and the Supreme Court has held that it will regard such a division as a matter of state law not within the purview of the due process clause of the Fourteenth Amendment. In Dreyer v. Illinois, 187 U. S. 71, 84, the Court said: ‘‘Whether the legislative, executive, and judicial powers (of a state) shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may in respect to some matters exert §184 SCOPE OF GUARANTY OF DUE PROCESS 299 powers which, strictly speaking, pertain to another de- partment of government, is for the determination of the state. And its determination one way or the other can not be an element in the inquiry, whether the due process of law prescribed by the Fourteenth Amendment has been respected by the state or its representatives, when dealing with matters involving life or liberty. ‘When we speak,’ said Story, ‘of a separation of the three departments of government, and maintain that separation is indispen- sable to public liberty, we are to understand this maxim in a limited sense.’ Story, Const. 5th ed. 393.’? In Liv- ingston v. Moore, 7 Pet. 546, the court speaking through Mr. Justice Johnson, said: ‘‘The objection made to the exercise of this power is, that it is one of a judicial char- acter, and could not exist.in the Legislature of a country having a constitution which distributes the powers of government into legislative, executive and judicial. . . . The power existing in every body politic is an absolute despotism ; in constituting a government, the body politic distributes that power as it pleases, and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries. The natural distribution and the necessary distribution to individual security, is into legislative, ex- ecutive and judicial; but it is obvious that every com- munity may make a perfect or imperfect separation and disposition of these powers at its will. It has pleased Pennsylvania, in her constitution, to make what most jurists would pronounce an imperfect separation of those powers.’’ See also, Kendall v. United States ex rel. Stokes, 12 Pet. 524; Watkins v. Holman, 16 Pet. 25; Os- born v. Bank of United States, 9 Wheat. 738; Wayman v. Southard, 10 Wheat. 1; Pennsylvania v. Wheeling & B. Bridge Co., 18 How. 421; Kilbourn v. Thompson, 103 U.S. 168. ’ The omnipotent Parliament of Great Britain, which claimed to be a ‘‘High Court”’ with a law of its own, pos- sessed not only the physical power but the theoretical right, to make all kinds of judicial decrees and to pass 300 DUE PROCESS OF LAW § 134 all kinds of special acts applicable to one individual or to any class of individuals which it might see fit to subject to its paramount authority. It is not therefore strange that from such a source should have flowed through many centuries the stream of ‘‘acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judg- ments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures,”’’ against which Webster thundered in the Dartmouth Col- lege Case, 4 Wheat. 518. And yet against such arbitrary enactments or decrees there was from the time of the Great Charter a spirit of opposition based on the con- sciousness that they were in violation of ‘‘the law of the land’’ which its vital chapter embodied. As early as the reign of Edward II, in which it was declared by statute that ‘‘the matters to be established for the estate of the king and his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, ac- eording as had been before accustomed,—’’ the disinher- itance and exile of the Despencers, decreed in an assembly of magnates irregularly summoned, was reversed in a later parliament on the ground that the ‘‘said award was made without calling them [the Despencers] to answer, and without the assent of the prelates, which are peers of the realm in parliament, and against the Great Charter of the franchises of England, which says that no freeman shall be banished or other way destroyed, but by lawful judgment of his peers or the law of the land, and for that they were not called in court to make answer, and for these errors and for that the causes im the said award were not duly proved.’’ When in 1330 the sentence against the Earl of Arundel was annulled, his son peti- tioned the king to consider how his father was taken, imprisoned, and put to death and his lands and chattels forfeited ‘‘against the law and custom of the country;’’ and the supplementary statute of 1354 was enacted on a §134 SCOPE OF GUARANTY OF DUE PROCESS 301 petition stating that there was no record or evidence of any just cause showing that said Earl ought to have been destroyed or put to death ‘‘without judgment and due process of law’’ (sanz juggement et due process de let). In the same year the attainder of Roger, Earl of Morti- mer, was reversed upon the petition of his heir, alleging that the record of the attainder was ‘‘erroneous and de- fective at all points, especially in so far as the said earl was put to death and disinherited without any accusation and without being put to judgment or to answer (sanz estre mesne en juggement ou en respons).’’? Proceedings against the Despencers, 1 How. S. Tr. 33; 2 Rot. Parl. 55, 4 Edw. III. A. D. 1330; 2 Rot. Parl. 256, 257, 28 Edw. ITI. A. D. 1354; 2 Rot. Parl. 256, 28 Edw. III. A. D. 1354. See McGehee, pp. 65-67. In another place the author has said: ‘‘In connection with the despotic practices which at this time pervaded the administration of justice in the ordinary tribunals, should also be noted the gravest of all judicial abuses which, during the reigns of Henry VI and Edward IV, recurred with shocking frequency in the proceedings of the high court of parliament itself. Although bills of attainder had been employed at a much earlier day, it was during the period of passion engendered by the civil war that the summary power to punish criminals by statute was for the first time perverted and abused. The calm and deliberate exercise of the judicial power of the whole parliament by process of impeachment, wherein the com- mons as the grand inquest of the realm were required to maintain their accusations by sufficient evidence adduced before the lords sitting as judges, but satisfied the neces- sities of a dynastic struggle in which the victors were ever eager for the heads of the vanquished. Far bet- ter adapted to this condition of things was the proceeding by bills of attainder, in which, if the parliament saw fit to refuse to hear the accused in his defense, the validity of the judgment could never be questioned in any court whatsoever. The accused, even under a bill of attainder, 302 DUE PROCESS OF LAW § 184 was, however, as a matter of grace, usually permitted to defend himself both by counsel and witnesses. ‘The pro- ceedings of parliament in passing bills of attainder, and of pains and penalties, do not vary from those adopted in regard to other bills. They may be introduced in either house, but ordinarily commence in the house of lords: they pass through the same stages; and when agreed to by both houses, they received the royal assent in the usual form. But the parties who are subjected to these pro- ceedings are admitted to defend themselves by counsel and witnesses, before both houses; and the solemnity of the proceedings would cause measures to be taken to en- force the attendance of members upon their service in parliament.’ ’’ Origin and Growth of the Eng. Const., i, pp. 582-3. It seems to be clear that during the reign of Henry VIII the practice was first established of condemning, without citation or opportunity to be heard, those who were ready to answer in the ordinary courts. The judges, after some hesitation, declared under pres- sure that while such a procedure was dangerous, if a bill of attainder was so passed its validity could not be ques- tioned at law. Against such an injustice, so contrary to ‘‘the law of the land,’’ public opinion naturally revolted, and to such an extent that earnest protestations were heard in the Commons upon the passage of such a bill against Lord Admiral Seymour in 1549. And yet such judicial legislation continued to be employed, whenever it became necessary for the crown to depart from the usual and orderly administration of justice, down to the bill presented against Queen Caroline in 1820. In the words of a great authority: ‘‘Bills of attainder were, in the reign of Henry VIII, used instead of impeachments; as for instance in the cases of Wolsey Thomas Cromwell, Queen Katherine Howard, the Duke of Norfolk, and the Earl of Surrey. They have occurred occasionally in our later history. The most memorable case is that of Lord Strafford. Other instances are those of Lord Danby, the Duke of Monmouth, and Sir John Fennick. As instances §134 SCOPE OF GUARANTY OF DUE PROCESS 303 of a bill of pains and penalties I may refer to the bill against Bishop Atterbury, and to the bill against Queen Caroline, which will probably long continue to be referred to as the last instance of such legislation.’’ Stephen, Hist. Crim. Law, i, p. 161. The primary purpose. of the framers of our original state constitutions,—prefaced by bills of rights epitomiz- ing the seminal principles of English constitutional law as it existed in 1776,—was to make impossible here all forms of arbitrary and confiscatory legislation, whether in the form of ex post facto laws, or laws lacking general- ity and equality, and ignoring the division between leg- islative and judicial power, under which could be confiscated or forfeited the life, liberty or property of a private citizen by a legislative edict passed in defiance of ‘‘the law of the land.’’ In the language of Cummings v. Missouri, 4 Wall. 277, 323: ‘‘If the punishment be less than death, the Act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder _ include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judges; it assumes, in the language of the text books, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the suff- ciency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.’’ The fact was also recognized that confiscatory legislation directed against private prop- erty is just as lacking in due process as legislative de- crees imposing penalties for crime. In Davidson v. New Orleans, 96 U. S. 97, the Court said: ‘‘But when, in the year of grace 1866, there is placed in the constitution of the United States a declaration that ‘No state shall de- prive any person of life, liberty, or property without due process of law,’ can a state make anything due process of law which, by its own legislation, it chooses to declare 804 DUE PROCESS OF LAW § 134 such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application where the invasion of private rights is affected under the forms of state legislation. It seems to us that a statute which declared in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A, shall be and is hereby vested in B, would, if effectual, deprive A of his property without due process of law, within the meaning of the constitutional provision.’’ In Van Horne v. Dorrance, 2 Dall. 304, in which it was held that the right of acquiring and holding property is not ex gratia from the Legislature, but ex debito from the con- stitution, the Court said: ‘‘If this be the Legislature of a republican government, in which the preservation of property is made sacred by the constitution, I ask, wherein it differs from the mandate of an Asiatic prince? Om- nipotence in legislation is despotism. According to the doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the Legis- lature.’’ The primary purpose of the founders of American con- stitutional law was to wipe out the entire system of legis- lative despotism over life, liberty and property, based in England not only upon a denial of the right to due process, but also upon the denial of the principles demanding gen- erality and equality in the laws. Their effort was, first, to subject all state power—executive, legislative and judicial —to the yoke of constitutional limitations consisting of epitomies of English constitutional law as it existed in 1776; second, to further limit the legislative power with the requirement that all laws must be equal and general. The end in view has been thus expressed in Sears v. Cot- trell, 5 Mich. 251: ‘‘By the law of the land we under- stand laws that are general in their operation, and that affect the rights of all alike, and not a special act of the legislature, passed to affect the rights of an individual against his will and in a way in which the same rights §134 SCOPE OF GUARANTY OF DUE PROCESS 305 of other persons are not affected by existing laws. Such an act, unless expressly authorized by the Constitution, or clearly coming within the general scope of legislative power, would be in conflict with this part of the Constitu- tion, and for that reason, if no other, be void.’’ In Giozza v. Tiernan, 148 U.S. 657, the Court said: ‘‘ And due proc- ess of law within the meaning of the amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of gov- ernment. Leeper v. Texas, 139 U.S. 462.’’ It was easy enough to give scientific definition to the new American ideal of equal laws; the practical difficulty has been to convert that ideal into a working rule capable of applica- tion to existing conditions. In practice it has been neces- sarily modified by two important exceptions, First, where the state constitution does not expressly limit the power of the legislature to pass special or local laws (See Waite v. Santa Cruz, 184 U. 8. 302), it may pass laws confined in their operation to particular localities without offending against the constitutional limitation in question; second, in the language of Giozza v. Tiernan, just cited, ‘‘Nor in respect of taxation was the amendment intended to com- pel the state to adopt an iron rule of equality; to prevent the classification of property for taxation at different rates; or to prohibit legislation in that regard, special either in the extent to which it operates or the objects sought to be obtained by it. It is enough that there is no discrimination in favor of one against another class. Bell’s Gap R. Co. v. Pennsylvania, 134 U. 8. 232; Home Ins. Co. v. New York, 134 U. 8. 594; Pacific Exp. Co. v. Seibert, 142 U. S. 339. And due process of law within the meaning of the amendment is secured if the laws operate on all alike and do not subject the individual to an arbi- trary exercise of the powers of government. Leeper v. Texas, 139 U. S. 462.’’ An elaborate exposition of this state right of classification is contained in State Rail- road Tax Cases, 92 U. S. 575, and Kentucky Railroad Cases, 115 U. S. 321, heretofore cited for another purpose. Due Process—20 306 DUE PROCESS OF LAW § 134 In Dow v. Beidelman, 125 U. S. 680, the Court said: ‘‘The Legislature, in the exercise of its power of regulating fares and freights, may classify the railroads according’ to the amount of the business which they have done or appear likely todo. . . . If the same rule is applied to all railroads of the same class, there is no violation of the constitutional provision securing to all the equal pro- tection of the laws. . . . It was proper, therefore, to provide in some way for an adaptation of the rates to the circumstances of the different roads; and the General Assembly, in the exercise of its legislative discretion, has seen fit to do this by a system of classification. Whether this was the best that could have been done is not for us to decide.’’? In Louisville and N. R. Co. v. Kentucky, 183 U.S. 503, it was held that the constitution and statutes of Kentucky giving to a railroad commission,—not a mere administrative body but a constitutional tribunal,—power to make exceptions in particular cases, after investigation, from the general prohibition of greater rates for shorter than for longer hauls, did not infringe the guaranty of due process contained in the Federal constitution. It is only necessary that the regulation in question shall operate uniformly on each class. Chicago R. Co. v. Iowa (4 U.S. 155). In harmony with that principle it was said in Adams v. New York, 192 U. S. 585,—in response to the contention ‘‘that the law of the state of New York (344b) which makes the possession by persons other than a public officer of papers or documents, being the record of chances or slips in what is commonly known as policy, or policy slips, or the possession of any paper, print, or writing commonly used in playing or promoting the game of pol- icy, presumption of possession thereof knowingly, in vio- lation of 344a, is a violation of the Fourteenth Amendment to the Constitution of the United States in that it deprives a citizen of his liberty and property without due process of law,—’’ that ‘‘It is argued, lastly, that § 344b is un- constitutional because the possession of the policy tickets is presumptive evidence against all except public officers, §135 SCOPE OF GUARANTY OF DUE PROCESS 307 and it is urged that public officials, from the governor to notaries public, would thus be excluded from the terms of the law which apply to all non-official persons. This provision was evidently put into the statute for the pur- pose of excluding the presumption raised by possession where such tickets or slips are seized and are in the cus- tody of officers of the law. This was the construction given to the act by the New York courts, and is the only one consistent with its purposes. The construction sug- gested would lead to a manifest absurdity, which has not received, and is not likely to receive judicial sanction.”’ Thus it was settled that the constitutional principle re- quiring a regulation to operate uniformly on each class was not violated by a law providing that the possession of policy slips ‘‘by any person than a public officer’’ shall be prima facie evidence that the possessor has them knowingly, simply by reason of the exception of public officers, when it is plain that the exception applies only to such public officers as have acquired possession of such slips in the performance of their official duties. Such then is the nature of the fundamental requisite of due process, so far as generality and equality of laws is concerned, which, with its inevitable exceptions, is an element inherent in due process inits American form. As such it existed long before the adoption of the Fourteenth Amendment, and is therefore something entirely separate and apart from the guaranty embodied in its provision that no state shall ‘‘deny to any person within its juris- diction the equal protection of the laws.’’ § 135. Fundamental requisites of due process—Juris- diction. The system of law by analogy, generally known as international law, rests upon the postulate that terri- tory and jurisdiction are co-extensive. ‘As a general rule a sovereign state has jurisdiction over all persons and things within its territorial limits, and in some instances such jurisdiction over both extends beyond its limits and thus becomes exterritorial. Jurisdiction is in fact an 308 DUE PROCESS OF LAW § 135 attribute inherent in sovereignty that follows it wherever it goes. As Chief Justice Marshall has expressed it: ‘‘The jurisdiction of the nation within its own territory is neces- sarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.’? The Schooner Ex- change v. McFaddon, 7 Cranch. 136. Or in the ampler phrase of Foelix ‘‘every state possesses the power of reg- ulating the conditions on which real or personal property, within its territory, may be held or transmitted; and of determining the state and capacity of all persons therein, as well as the validity of the contracts and other acts which arise there, and the rights and obligations which re- sult from them; and finally of prescribing the conditions on which suits at law may be commenced and carried on within its territory.’’ Droit Int. Prive, 9. From this gen- eral right of control results the exclusive power of every state to fix by legislation the personal and civil status of its citizens and the status and condition of all real and personal property situated within its limits whether be- longing to citizens or aliens. Under our Federal consti- tution the several states bear to each other the relations of independent sovereignties save so far as such sover- eignty is modified by its provisions, notable among which are those which declare first that ‘‘The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;’’ second, that ‘‘full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.’’ In Lafayette Ins. Co. v. French, 18 How. 404, the Court said: ‘‘The Act of May 26, 1790 (1 Stat. at L., 122), gives to a judgment rendered in any state such faith and credit as it had in the courts of the state where it was recovered. But this provision, though general in its terms, does not extend to judgment rendered against persons not amenable to the jurisdiction rendering the judgments. D’Arcy v. Ketchum, 11 How. 165. And con- sequently notwithstanding the Act of Congress, whenever an action is brought in one state on a judgment recovered ! §135 SCOPE OF GUARANTY OF DUE PROCESS 309 in another, it is not enough to show it to be valid in the state where it was rendered; it must also appear that the defendant was either personally within the jurisdiction of the state, or had legal notice of the suit, and was in “some way subject to its laws, so as to be bound to appear and contest the suit, or suffer judgment by default. In more general terms, the doctrine of this court, as well as the courts of many of the states, is that this Act of Con- gress was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result; nor those rules of public law which protect persons and property within one state from the exercise of jurisdic- tion over them by another.’’ As that decision was rendered in 1855, long before the adoption of the Fourteenth Amendment, the Federal courts had then no right to consider whether or no due process of law was guaranteed in the proceedings culmi- nating in judgments rendered in a state court against persons or property within its limits. In the leading case of Pennoyer v. Neff, 95 U.-S. 714, decided in 1877, after conditions had been changed by the adoption of the amendment in question, the Court said: ‘‘Since the adop- tion of the Fourteenth Amendment to the Federal Consti- tution, the validity of such judgments may be directly questioned, and théir enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court had no jurisdiction, do not consti- tute due process of law. Whatever difficulty may be expe- rienced in giving to those terms a definition which will embrace every possible exertion of power affecting pri- vate rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceed- ings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. To give 310 DUE PROCESS OF LAW § 135 such proceedings any validity there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit; and if that involves merely a determination of the per- sonal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. . . . To prevent any mis- application of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by any- thing we have said, that a state may not authorize pro- ceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the state, though made without service of process or per- sonal notice to the non-resident. The jurisdiction which every state possesses, to determine the civil status and capacities of all its inhabitants involves authority to pre- scribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. Neither do we mean to assert that a state may not require a non-resident entering into a partnership or association within its limits, or making contracts enforce- able there, to appoint an agent or representative in the state to receive service of process and notice in legal pro- ceedings instituted with respect to such partnership, asso- ciation, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the state. . . . Nor do we doubt that a state, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions §135 SCOPE OF GUARANTY OF DUE PROCESS 311 would hold their interest subject to the conditions pre- scribed by law. Copin v. Adamson, L. R., 9 Ex. 345.”’ During the period of nearly forty years that has elapsed since the decision in Pennoyer v. Neff, 95 U. S. 714, was rendered, quite a literature has developed along the lines it defined which can only be adequately examined in a separate chapter. CHAPTER VII DUE PROCESS AND JURISDICTION § 136. A competent tribunal and notice. As the right to notice and hearing constitutes the essence of due process of law neither element can exist in a judicial pro- ceeding in which there is a total absence of jurisdiction over the person or thing to be affected by the judgment. ‘“‘To give such proceedings any validity there must be a tribunal competent by its constitution—that is by the law of its creation—to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance.’’ Pennoyer v. Neff, 95 U. S. 714. In Windsor v. McVeigh, 93 U. 8. 274,—in which it was held that no sentence of a court is a judicial determination entitled to respect in any other court when it is pro- nounced against a party without adequate notice and with- out an opportunity to be heard,—the Court said: ‘‘That there must be notice to a party of some kind, actual or con- structive, to a valid judgment affecting his rights, is ad- mitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject- matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has anything to say why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive pro- 312 § 136 DUE PROCESS AND JURISDICTION 313° ceeding had better be omitted altogether. It would be like saying to a party: appear, and you shall be heard; and, when he has appeared, saying: your appearance shall not be recognized, and you shall not be heard. In the present case, the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was, in fact, a mere arbitrary edict, clothed in the form of a judicial sentence.’’ In Scott v. McNeal, 154 U.S. 34, the Court said: ‘‘No judgment of a court is due process of law, if rendered without juris- diction in the court, or without notice to the party. The words ‘due process of law,’ when applied to judicial pro- ceedings, as was said by Mr. Justice Field, speaking for this court, ‘mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity there must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit; and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance.’ Pennoyer v. Neff, 95 U. S. 714, 733.’’ See also, Hassell v. Wilcox, 130 U. S. 493; Hilton v. Guyot, 159 U.S. 167; Iowa C. R. Co. v. Iowa, 160 U. 8. 389; New Orleans Water Works v. New Orleans, 164 U. S. 480; Hovey v. Elliott, 167 U. S. 409; Blake v. McClung, 172 U.S. 230; Simon v. Craft, 182 U. S. 427; National Exch. Bank v. Wiley, 195 U. 8. 257; Old Wayne Unit. Ass’n v. McDonough, 204 U. S. 8; Wetmore v. Karrick, 205 U. S. 141; Bernheimer v. Converse, 206 U. S. 516; Longyear v. Toolan, 209 U. S. 414; Ontario Land Co. v. Yordy, 212 U. S. 152; Kentucky Union Co. v. Kentucky, 219 U. S. 140; McCaughey v. Lyall, 224 U. S. 558; Soliah v. Heskin, 222 U. S. 522; Blum v. Nelson, 222 U. S. 1; 314 DUE PROCESS OF LAW § 186 Jacob v. Roberts, 223 U. 8. 261; Michigan Trust Co. v. Ferry, 228 U. S. 346; Plymouth Coal Co. v. Pennsylvania, 232 U. 8. 531; Strauss v. Foxworth, 231 U. 8. 162; Sturges & Burn Mfg. Co. v. Beaucham, 231 U. S. 320; Miedreich v. Lauenstein, 232 U. S. 236; Herbert v. Bicknell, 233 U.S. 70; Grannis v. Ordean, 234 U. 8S. 385; Selig v. Hamilton, 234 U. S. 653; Western Life Indemnity Co. v. Rupp, 235 U.S. 261; Baltimore & O. R. Co. v. Hostetter, 240 U. S. 620; New York L. Ins. Co. v. Dunlevy, 241 U. 8. 518; G. & C. Merriam Co. v. Saalfield, 241 U. S, 22. § 137. Necessity of service to validity of judgment. The law of the land authorizes no court to render a judg- ment or decree against a person or his estate until he has been notified by service of process to appear and defend. Hollingsworth v. Barbour, 4 Pet. 466. A person who has not been served with process, actual or constructive, or who has had no notice of proceedings has had no day in court, and therefore can not be bound by a judgment im personam. Harris v. Hardeman, 14 How. 334. Until citation is issued and an opportunity to be heard given, no one can be said to have had his day in court. Mason v. Eldred, 6 Wall. 231. Unless a party voluntarily appears, or is found within the jurisdiction of the court, so as to be served with process, a court can not, in the ordinary administration of justice, render a judgment or decree against him. Cooper v. Reynolds, 10 Wall. 308; Philadelphia, W. & B. R. Co. v. Trumble, 10 Wall. 367. At common law a court can not exercise jurisdiction over a party, unless he voluntarily appears, or is served with process within the court’s territorial jurisdiction. Mexi- can C. R. Co. v. Pinkney, 149 U. S. 194. Unless a person has agreed in advance to accept, or does actually accept some other form of service as sufficient, the notice must be personally served upon him within the territorial juris- diction of the court by whose judgment his personal liabil- ity is to be ascertained. Wilson v. Seligman, 144 U.S. 41. Where there has been no service on the defendant, or § 137 DUE PROCESS AND JURISDICTION 315 appearance entered for him, and he is never in court, a proceeding to enforce a lien upon a mining claim can not work a transfer of title to such claim. Turner v. Sawyer, 150 U. S. 578. Unless process has been served upon a defendant who is an inhabitant of the district, or unless he waives the necessity for it by an appearance, no judg- ment can be rendered by a Federal Court against such a defendant. In the absence of such notice, or waiver, an original proceeding is not only voidable, but absolutely void. Walden v. Craig, 14 Pet. 147; Levy v. Fitzpatrick, 15 Pet. 167. A different rule applies to the decision of a collateral question, when the parties are already before the court. Walden v. Craig, 14 Pet. 147. Where there are several defendants, the judgment is a nullity as to the one not served with process, if he didnot appear. Shelton v. Tiffin, 6 How. 163. For a special application of the rule in a case in which only twenty out of sixty-four parties to a decree were served with process, or voluntarily appeared in the proceeding, see Godfrey v. Terry, 97 U. 8.171. A delivery of the summons at the, usual place of defendant’s abode, to his wife, in accordance with the procedure established by the court in question, was held to be a proper service of the process of the United States provisional court for Porto Rico. Santiago v. Nogueras, 214 U.S. 260. For the conditions under which substituted service will satisfy the requirements of due process, see Jacob v. Roberts, 223 U. 8. 261. As to service upon ‘‘unknown claimants of interests in the premises adverse to the plaintiff,’ see Priest v. Las Vegas, 232 U. S. 604. As to service in a proceeding culminating in the fore- closure of a mortgage wherein it was claimed that there was a lack of due process, despite the fact that the state had made provision for the service of process, and the original party in the foreclosure proceeding had done all the law required in the issue of and attempt to serve process, reported to the court by the sheriff, contrary to the fact, as duly made, see Miedreich v. Lauenstein, 232 U.S. 236. Where a party had actual knowledge of a suit 316 DUE PROCESS OF LAW § 187 before the time for suing out a writ of error had expired, and where he might have brought about a setting aside of the judgment and a retrial of the case, it was held that the principal defendant in a garnishment suit in a court having jurisdiction over small debts was not deprived of due process because a judgment by default was taken against him, after such service of process only as that provided by Hawaii Rev. Laws, 2114, 1. e., the leaving a copy of the summons at his last and usual place of abode. Herbert v. Bicknell, 233 U.S. 70. See Grannis v. Ordean, 234 U. 8. 385; Simon v. Southern R. Co., 236 U. 8. 115; Washington-Virginia R. Co. v. Real Estate Trust Co., 238 U.S. 185. § 138. Curing lack of notice or service by appearance. Defects in procedure waived by appearance, Penhallow v. Doane, 3 Dall. 54. All antecedent irregularity of service of process cured by defendant’s appearance by attorney, Knox v. Summers, 3 Cranch 496. Where the defendant has appeared and pleaded to the issue, no question on process can arise, Rhode Island v. Massachusetts, 12 Pet. 657. But an objection that goes to the power of the court over the subject-matter or parties is not waived by appearance and pleading to the issue. Ibid., 657. Asa corporation can only appear by attorney, such an appear- ance to plead to the jurisdiction of the court can not be a waiver of objection to the jurisdiction, Commercial & R. Bank v. Stocomb, 14 Pet. 60. When made by individ- ual defendants in a court of general jurisdiction, an appearance by attorney waives all objection to the court’s jurisdiction, Ibid., 60. A defendant may waive the per- sonal privilege of having a suit against him only in the district of which he is an inhabitant by pleading to the merits, St. Louis & 8. F. R. Co. v. McBride, 141 U. 8. 127. A waiver of the objection that he was not an inhabitant of the district or found therein is made by a defendant who appears without making an exception, Gracie v. Palmer, 8 Wheat. 699. Any right to challenge thereafter § 138 DUE PROCESS AND JURISDICTION 317 the jurisdiction of the court on the ground that the suit has not been brought in the proper district is waived by a party who, in the first instance, appears and pleads to the merits. St. Louis & 8S. F. R. Co. v. McBride, 141 U.S. 127. A nonresident waives his privilege and makes a voluntary appearance, when he appears by counsel and moves to dismiss the bill for want of jurisdiction and also for want of equity, Jones v. Andrews, 10 Wall. 327. When a defendant makes a special appearance in order to move that the service of process be set aside, any illegality in such service by which jurisdiction must be obtained, is not waived, even by an answer to the merits after such a motion is overruled, Harkness v. Hyde, 98 U. S. 476; Mexican C. R. Co. v. Pinkney, 149 U. S. 194. A proceed- ing in rem is converted into a proceeding in personam by the appearance of the defendant, Cooper v. Reynolds, 10 Wall. 308. See also, Creighton v. Kerr, 20 Wall. 8. It was held that a proceeding lacked due process when a judgment ,was taken in a state court under a warrant of attorney attached to a promissory note, directing a confession of judgment ‘‘in favor of the holder,’’ when the party in whose favor the judgment was rendered had ceased to own it, or to be entitled to receive the proceeds to his own use, before the commencement of the suit. National Exch. Bank v. Wiley, 195 U. 8S. 257. Since in such cases the consent of both parties can not confer jurisdiction, it was held that an objection to the jurisdic- tion based upon a total lack of any controversy of a Federal character was not waived by a general appear- ance of the plaintiff in a Federal circuit court after the case had been removed from a state court, Re Winn, 213 U. S. 458. When an appearance is entered for the sole purpose of presenting the question of jurisdiction and removing the cause from a state to a Federal court such an appearance does not amount to a general appearance in the suit, Commercial Mut. Accident Co. v. Davis, 213 U.S. 245. In passing upon the waiver of illegal service in a case removed from the state to the Federal court, the 318 DUE PROCESS OF LAW § 138 Supreme Court said: ‘‘Plaintiff further contends that, under the Mississippi Code, the filing of the petition for removal constitutes a general entry of appearance; that therefore, if 29 does not compel the removing party to plead to the declaration within thirty days, ‘then under 914, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 684, the ‘practice, pleadings, forms, and modes of proceeding’ in the state court adopted by the Federal court, would make the plea to the jurisdiction here in the district court a general entry of appearance, and would require a plea to the merits at the next term of the district court under the Code of the State,’ because ‘a special is a general entry of appearance under 3946, Code of 1906.’ The contention is untenable.’? Cain v. Com. Pub. Co., 232 U. S. 134, citing Goldey v. Morning News, 156 U. S. 518, and Me- chanical App. Co. v. Castleman, 215 U. S. 437. See also Arizona & New Mexico Ry. v. Clark, 235 U. 8. 669. § 139. Jurisdiction over nonresident persons. A state can not justly exercise jurisdiction over a person owing it no allegiance, simply because he is found within its limits. Mills v. Duryee, 7 Cranch 481. If service is made outside of its limits, a territorial court can have no juris- . diction to render a personal judgment against any one. Harkness v. Hyde, 98 U. 8. 476. And yet the mere fact that a defendant is without the jurisdiction of the court is not conclusive evidence that the judgment is void, because he may have authorized counsel to defend the suit in his absence. Landes v. Brant, 10 How. 348. Jurisdic- tion may be so acquired as to sustain a judgment against foreigners who have a storehouse and agent in the coun- try, and who have appeared and are engaged in litigation simply to prevent their property within the jurisdiction, but not in the custody of the court, from being seized to satisfy any judgment that might be rendered against them. Hilton v. Guyot, 159 U. 8. 113. It is elementary that a personal judgment against a nonresident is invalid in an ordinary civil case where the service of process has § 140 DUE PROCESS AND JURISDICTION 319 been by publication. In order to render the judgment or decree of the court effectual it must have jurisdiction of the subject-matter or the parties. A money judgment rendered against a nonresident defendant served only by the publication of process against him is without jurisdic- tion, and therefore lacking in due process of law. Pen- noyer v. Neff, 95 U. S. 714. In that case the Court said: ‘«The force and effect of judgments rendered against non- residents without personal service of process on them, or their voluntary appearance, have been the subject of fre- quent consideration in the courts of the United States and of the several states, as attempts have been made to enforce such judgments in states other than those in which they were rendered, under the provision of the con- stitution requiring that ‘Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state;? . . . Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.’’ See also, Cooper v. Reynolds, 10 Wall. 308; Brooklyn v. Etna L. Ins. Co., 99 U. S. 362; Empire Twp. v. Darlington, 101 U. S. 87; Grover & B. Sewing Mach. Co. v. Radcliffe, 137 U. S. 287; Standard Oil Co. v. United States, 221 U. S. 1; Jacob v. Roberts, 223 U. S. 261; Miedreich v. Lauenstein, 232 U.S. 236; Herbert v. Bicknell, 233 U. S. 70; Grannis v. Ordean, 234 U. 8S. 385; Mercelis v. Wilson, 235 U. S. 579; Simon v. Southern Railway, 236 U. S. 115. § 140. Jurisdiction over nonresident corporations. In the recent case of Riverside and Dan River Cotton Mills v. Menefee, 237 U. S. 189, it was held that a corporation, no more than an individual, is subject to be condemned without a hearing in violation of the due process clause; 320 DUE PROCESS OF LAW § 140 and the mere fact that one who is a director, but who is not a resident agent, of a foreign corporation resides within the state does not give the courts of that state jurisdiction over a corporation which is not doing busi- ness and has no resident agent therein. The Court speak- ing through Mr. Chief Justice White, said: ‘‘That to condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendment needs noth- ing but statement. Equally well settled is it that the courts of one state can not, without a violation of the due process clause, extend their authority beyond their juris- diction so as to condemn the resident of another state when neither his person nor his property is within the jurisdiction of the court rendering the judgment, since that doctrine was long ago established by the decision in Pennoyer v. Neff, 95 U. S. 714. . . . Whatever long ago may have been the difficulty in applying the princi- ples of Pennoyer v. Neff to corporations, that is, in deter- mining when, if at all, a corporation created by the laws of one state could be sued in the courts of another sov- ereignty, because of the conception that as an ideal being a corporation could not migrate and its officers in going into another sovereignty did not take with them their power to represent the corporation, such difficulty ceased to exist with the decision of this court rendered more than thirty years ago in St. Clair v, Cox, 106 U. S. 350, which, together with the leading cases which have followed, have been already referred to.’? The cases in question are, Freeman v. Alderson, 119 U. S. 185, Wilson v. Seligman, 144 U. S. 41; Scott v. McNeal, 154 U. S. 34; Caledonian Coal Co. v. Baker, 196 U. S. 482; Haddock v. Haddock, 201 U. S. 562; Clark v. Wells, 203 U. S. 164; Hunter v. Mutual Reserve Life Ins. Co., 218 U. 8. 573. In St. Clair v. Cox, the Court said: ‘‘A corporation of one state can not do business in another state without the latter’s con- sent, express or implied, and that consent may be accom- panied with such conditions as it may think proper to impose. As said by this court in Ins. Co. v. French, § 141 DUE PROCESS AND JURISDICTION 321 ‘These conditions must be deemed valid and effectual by other states and by this court, provided they are not repugnant to the Constitutions or laws of the United States nor inconsistent with those rules of public law which secure the jurisdiction and authority of each state from encroachment, by all others, or that principle of natural justice which forbids condemnation without opportunity for defense. 18 How. 407; Paul v. Virginia, 8 Wall. 181. The state may therefore, impose as a condi- tion upon which foreign corporation shall be permitted to do business within her limits, that it shall stipulate that, in any litigation arising out of its transactions in the state, it will accept as sufficient the service of process on its agents or persons specially designated; and the condition would be eminently fit and just. And such condition and stipulation may be implied as well as expressed. If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly denied representative of the foreign corporation. The decision we have already referred sustains these views.’’ See Simon v. Southern Railway, 236 U.S. 115. § 141. Proceedings in rem. In the leading case of Windsor v. MeVeigh, 93 U. 8. 279,—involving the validity of an act of Congress authorizing the confiscation of the property of rebels, in which the owner of the land seized appeared and filed an answer, stricken out by the trial Due Process—21 322 DUE PROCESS OF LAW § 141 court on the ground that it appeared from it that the owner was ‘‘within the Confederate lines and a rebel,—’’ the Supreme Court said: ‘‘The jurisdiction acquired by the seizure is not to pass upon the question of forfeiture absolutely, but to pass upon that question after oppor- tunity has been afforded to its owner and parties inter- ested to appear and be heard upon the charges. To this end, some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. Such notification is usually given by monition, public proclama- tion, or publication in some other form. The manner of the notification is immaterial.’’ In Roller v. Holly, 176 U.S. 398, it was held in a suit for the foreclosure of a lien upon land within the state that personal service on non- residents, beyond the jurisdiction of the court, may be sufficient. The Court said: ‘‘Without undertaking to de- termine what is a reasonable notice to nonresidents, we are of opinion, under the circumstances of this case, and considering the distance between the place of service and the place of return, that five days was not a reasonable notice, or due process of law; that the judgment obtained upon such notice was not binding upon the defendant Roller, and constitutes no bar to the prosecution of this action.’’ A creditor is not deprived of property without due process of law where debts to nonresident creditors are attached at the place of the debtor’s residence. Roths- child v. Knight, 184 U. S. 334. A nonresident defendant, who has no property within the jurisdiction of the court, is not deprived of his property without due process of law by the garnishment of a resident debtor to reach a debt due him. King v. Cross, 175 U. S. 396. Because there was no publication, under the act of June 30, 1902, against unknown heirs or next of kin, until after the verdict, no suggestion being made at any time that there were no such persons, the court will not at the instance of the caveator set aside probate proceedings in the District of Columbia in which a verdict sustaining the will had been § 142 DUE PROCESS AND JURISDICTION 323 rendered by a jury after a trial of the issues made up under a caveat. Lewis v. Luckett, 221 U. S. 554. In Michigan Trust Co. v. Ferry, 228 U. 8. 346, Edward P. Ferry was appointed executor by the Ottawa probate court, qualified and entered upon his duties. In 1878 he removed to Utah, and becoming incompetent, was put under guardianship of two sons. The Court said: ‘‘ Jurisdiction is power, and the power of the Michigan court was not affected by the insanity of Ferry. The authority of the state to remove him and to require his account to be settled at the same time remained, and therefore, subject to any restrictions that might be imposed by the Fourteenth Amendment, it was for the state to determine how he should be represented, and steps should be taken to protect his rights. As the juris- diction extended only to the cause, and not to any inde- pendent proceeding for guardianship, the orders made necessary were orders in the cause.’’ It is scarcely neces- sary to add here that in order to force all cases of valid service by construction or substitution within the class of proceedings in rem, the idea of the res has been extended to such intangible things as the probate of wills and the grant of letters of administration. ‘‘The decree of the court admitting the will to probate is in the nature of a judgment in rem which establishes the will against all the world.’” Bonnemot v. Gill, 167 Mass. 338. In Cunnius v. Reading School Dist., 198 U. S. 458,—in which the grant of letters of administration was treated in effect as a proceeding in rem,—the court held that the notice fixing the period of a person’s absence from his last domicil in the state was not so unreasonable as to render the statute in question repugnant to the due process of law clause of the Fourteenth Amendment. § 142. Divorce proceedings, strictly speaking, neither in rem nor in personam. An able text writer has said: ‘‘As preliminary to a discussion of the principles gov- erning the effect of foreign divorce, it is necessary to 324 DUE PROCESS OF LAW § 142 observe the important distinctions between judicial pro- ceedings im personam and in rem. The purpose of a pro- ceeding in personam is to impose, through the judgment or decree of the court whose aid is invoked, some respon- sibility or liability directly upon the person of the defend- ant. . . . Of this character are criminal prosecutions, suits to compel a defendant to perform some specific act or actions to fasten a general pecuniary liability upon him. A proceeding in rem, on the other hand, is aimed not at the person of the defendant, but at his property or some other thing within the power and jurisdiction of the court. Most important consequences flow from the distinction between these modes of procedure. The Four- teenth Amendment to the Federal constitution provides that no state shall deprive any person, life, liberty, or property without due process of law; that is, without notice and reasonable opportunity to be heard in his own behalf. But the notice required under this constitutional provision is very different in the two modes of procedure. In proceedings in personam, no judgment or decree against a defendant is valid unless he has been person- ally served with notice of the action or suit within the territorial limits of the court’s jurisdiction, or has volun- tarily appeared. This much is always required, and in some instances even more. But in proceedings in rem, if the res be within the court’s jurisdiction, due process of law does not demand that actual notice of the suit should be served upon the defendant personally. Even though he be a nonresident of the forum, the law pre- sumes that he keeps in touch with his property, wherever it is situated, and that he will be straightway informed if any peril threatens it. . . . Divorce causes being proceedings quasi in rem, it becomes important and neces- sary to determine what is the res, for the court’s jurisdic- tion in proceeding im rem depends upon its jurisdiction of the res. It is generally admitted that the res is the marriage status, which includes the status of both con- sorts, the situs of the status of each being his or her § 142 DUE PROCESS AND JURISDICTION 325 domicil. Strictly speaking, therefore, the jurisdiction of the status of the husband or wife belongs to the courts of his or her domicil, and to no other, because those courts alone have jurisdiction of the res. But in the case of marriage the status is double or correlative status. There can be no such thing as a husband without a wife, or a wife without a husband. Hence when a court assumes to pronounce a decree destroying the marriage status of one of the consorts, it must necessarily destroy so far as its decree has any effect at all, the status of the other consort also. If then the consorts are domiciled in different states, it is a matter of grave importance to ascertain how far the power of the courts of either of these domicils extends in dissolving the marital union.’’ Minor, Conflict of Laws, pp. 184 sq. Only with the foregoing principles clearly in view is it possible to understand and apply the decisions, not very numerous, in which the Supreme Court of the United States has expounded this abstruse subject of jurisdic- tion which, without exaggeration, may be said to embody the metaphysics of American law. In divorce cases the jurisdiction must depend upon the domicil of one or both of the parties, because every state claims, as a part of its sovereignty, the right to determine the status of its domi- ciled subjects or citizens. In Bell v. Bell, 181 U. S. 175, the Court said: ‘‘No valid divorce from the bond of matrimony can be decreed on constructive service by the courts of a state in which neither party is domiciled.”’ See also, Streitwolf v. Streitwolf, 181 U. S. 179; Winston v. Winston, 189 U. S. 507. The right of a state to deter- mine the status of its domiciled citizens necessary involves the res, because ‘‘the res is the marriage status, which includes the status of both consorts, the situs of the status of each being his or her domicil.’’ It is there- fore certain, first, that where neither party has a bona fide domicil in the state wherein the decree of divorce is rendered (a question not dependent entirely on local law) the decree, not binding in any other state, is not 326 DUE PROCESS OF LAW § 142 within the due faith and credit clause of the constitution (Bell v. Bell, 181 U. 8S. 175) ; second, that where both par- ties are domiciled in the state granting the divorce, by a decree made after proper service of process, it is within the full faith and credit clause of the Constitution, and valid everywhere (Atherton v. Atherton, 181 U. 8. 155) ; third, that the same conditions exist where one of the par- ties has voluntarily appeared, though not personally served with process within the state (Cheever v. Wilson, 9 Wall, 108; Lynde v. Lynde, 181 U. 8. 183). In Pennoyer v. Neff, 95 U. 8. 734, the Court, after explaining the rules as to the validity of state judgments im rem and in personam, was careful to say: ‘‘To prevent any mis- application of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything that we have said, that a state may not author- ize proceedings to determine the status of one of its citi- zens toward a nonresident, which would be binding within the state, though made without service of process or per- sonal notice to the nonresident. . . . One of the par- ties guilty of acts for which, by the law of the state, a dissolution may be granted, may have removed to a state where no dissolution is permitted. The complain- ing party would, therefore, fail if a divorce were sought in the state of the defendant; and if application could not be made to the tribunals of the complainant’s domicil in such case, and proceedings be there instituted without personal service of process, or personal notice to the offending party, the injured citizen would be without redress.’ Only when proceedings for divorce are regarded as quasi in rem, with the marriage status of the parties the res or subject-matter in dispute as the real ground of jurisdiction, is it possible to fix the extraterritoriality of divorce decrees upon a basis in harmony with general theory. And yet even then the extraterritoriality of such decrees can not so extend beyond the dissolution of the marriage status as to fix to such judgments the qualities § 142 DUE PROCESS AND JURISDICTION 327 of a judgment in personam. It can not draw after it the payment of alimony, unless it be decreed after the volun- tary appearance of the nonresident defendant. In Lynde v. Lynde, 181 U. S. 183, the Court said: ‘‘The husband, as the record shows, having appeared generally in answer to the petition for alimony in the court of chancery in New Jersey, the decree of that court for alimony was binding on him. Laing v. Rigney, 160 U. S. 531.’’ In the ease of Barber v. Barber, 21 How. 582, in which a decree for divorce and alimony was rendered, both parties being domiciled in New York, the court held that such a decree or judgment rendered in any state of the Union, the court having jurisdiction, will be carried into judgment in any other state, there to have the same effect that it has in the state in which rendered. See also, Cheever v. Wilson, 9 Wall. 108, in which the defendant made a voluntary appearance. While in Cheely v. Clayton, 110 U. 8. 701, @ divorce was held to be void because the court had not acquired jurisdiction in accordance with the local law, it wag said that ‘‘the courts of the state of the domicil of the parties doubtless have jurisdiction to decree a divorce, in accordance with its laws, for any cause allowed by those laws, without regard to the place of the marriage, or to that of the commission of the offense for which the divorce is granted; and a divorce so obtained is valid everywhere.”’ Reference must next be made to the notable case of Atherton v. Atherton, 181 U. 8. 155, decided in 1900, in which it appeared that ‘‘On October 17, 1888, the parties were married at Clinton, Oneida County, New York, the plaintiff being a resident of that place, and the defendant a resident of Louisville, Kentucky. Immediately after the marriage, the parties went to and resided at Louis- ville in the house with the defendant’s parents, had a child born to them on January 8, 1890, and there con- tinued to reside as husband and wife until October 3, 1891. Then, owning to his cruel and abusive treatment, without fault on her part, she left him, taking the child 328 DUE PROCESS OF LAW § 142 with her, and in a few days thereafter returned to her mother at Clinton, and has ever since resided there with her mother, and is a resident of and domiciled in the state of New York, and has not lived or cohabited with the defendant.’’ After the lapse of a sufficient time required by the laws of Kentucky the husband sued there for divorce on the ground of desertion, making affidavit under the local law as to defendant’s residence and postoffice. Thereupon an order was made warning the defendant to defend within sixty days, and appointing an attorney for such defendant, ‘‘whose duty it shall be to make diligent efforts to inform the defendant by mail concerning the pendency and nature of the action,’’ and report to the court. After a careful observance of all the requirements of the Kentucky law a decree of divorce was granted the husband. When the wife brought a subsequent action in New York for divorce on the ground of cruelty the court of that state, refusing to recognize the Kentucky decree as binding there, rendered a decree of divorce in the wife’s favor on the ground set up by her, it being dis- tinctly held that she had acquired a separate domicil in New York by reason of the husband’s cruelty. On that theory the New York court maintained its jurisdiction. Its decree was reversed by the Federal Supreme Court on the ground that the Kentucky court had acquired juris- diction of the case by the constructive service provided by the local law, and that its judgment was under the protec- tion of the full faith and credit clause of the Constitution, and therefore binding in all the states. It was careful, however, to say: ‘‘This case does not involve the validity of a divorce granted on constructive service, by the court of a state in which only one of the parties ever had a domicil; nor the question to what extent the good faith of the domicil may be afterwards inquired into. In this case, the divorce in Kentucky was by the court of the state which had always been the undoubted domicil of the husband and which was the only matrimonial domicil of the husband and wife. The single question to be decided § 142 DUE PROCESS AND JURISDICTION 329 is the validity of that divorce, granted after such notice had been given as was required by the statutes of Ken- tucky.’’ The court clearly admitted that the constructive service brought the res before the court, if not the non- resident wife. In speaking of the validity of the con- structive notice required by the Kentucky law it said: ‘“‘The undisputed facts show that such efforts were required by the statutes of Kentucky and were actually made, to give the wife actual notice of the suit in Ken- tucky, as to make the decree of the court there granting a divorce upon the ground that she had ‘abandoned her husband, as binding on her as if she had been served with notice in Kentucky, or had voluntarily appeared in the suit. Binding her to that full extent, it established, beyond contradiction, that she had abandoned her hus- band, and precludes her from asserting that she left him on account of his cruel treatment,’’ as asserted in her suit in New York. Certainly the decision in question clearly settled the fact that where reasonable efforts to give a nonresident defendant actual notice are required by the state law, and are actually made, actual notice of divorce proceedings is not required in the court of a state, which had always been the domicil of the plaintiff and the only matrimonial domicil of the consorts. It was held that as all the requirements of the local law were complied with, the decree for abandonment was as binding on the absent wife in a court of a state in which she resided as if she had been served with notice in Kentucky, or had entered a voluntary appearance there. The Court said: ‘‘The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of hus- band and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law.’’ In Haddock v. Haddock, 201 U. 8S. 562 (1905) the court by a majority of one (Brown, Harlan, Brewer and Holmes, 330 DUE PROCESS OF LAW § 142 JJ. dissenting) virtually reversed Atherton v. Atherton, 181 U. S. 155, in a decision holding that a decree against a nonresident defendant in a divorce proceeding, who did not appear and was only constructively served with notice of the pendency of the suit, is not enforceable in all the other states by virtue of the full faith and credit clause of the Federal constitution, because mere domicil within the state of one party to the marriage does not give the courts of that state jurisdiction to render such a decree. Mr. Justice Holmes in his dissenting opinion said: ‘‘It is important to bear in mind that the present decision purports to respect, and not to overrule, Ather- ton v. Atherton. For that reason, among others, I spend no time in justifying that case. And yet it appears to me that the whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover any- thing tending to show a distinction between that case and this.’? In Sistare v. Sistare, 218 U. 8.1, it was held that the protection of the full faith and credit clause of the Federal constitution can not be denied to the decrees of New York courts for the future payment of alimony through annulments or modifications by such courts as to overdue and unsatisfied instalments. In the recent case of Thompson v. Thompson, 226 U. S. 551, in which it was held that the courts of the state of the domicil of the husband, and the only matrimonial domicil, have jurisdiction to render a decree in his favor entitled to full faith and credit in the District of Colum- bia, despite the fact that the wife had left the jurisdiction, and could only be served by publication,—the Court said: ‘This subject, in its relation to actions for divorce, has been most exhaustively considered by this court in two recent cases: Atherton v. Atherton, 181 U.‘S. 155; Had- dock v. Haddock, 201 U. S. 562. In the Atherton case the matrimonial domicil was in Kentucky, which was also the domicil of the husband. The wife left him there and . returned to the home of her mother in the state of New § 142 DUE PROCESS AND JURISDICTION 331 York. He began suit in Kentucky for a divorce a vinculo matrimonu because of his abandonment, which was a cause of divorce by the laws of Kentucky, and took such proceedings to give her notice as the laws of that state required, which included mailing of notice to the post- office nearest her residence in New York. No response or appearance having been made by her, the Kentucky court proceeded to take evidence and grant to the husband an absolute decree of divorce. It was held that this decree was entitled to full faith and credit in the courts of New York. In the Haddock case, the husband and wife were domiciled in New York, and the husband left her there, and after some years, acquired a domicil in Connecticut, and obtained in that state, and in accordance with its laws, a judgment of divorce, based upon constructive, and not actual service, service of process on the wife, she hav- ing meanwhile retained her domicil in New York, and having made no appearance in the action. The wife afterwards sued for divorce in New York, and obtained personal service in that state upon the husband. The New York court refused to give credit to the Connecticut judgment, and this court held that there was no violation of the full faith and credit clause in the refusal, and this because there was not at any time a matrimonial domicil in the state of Connecticut, and therefore the res—the marriage status—was not within the sweep of the judicial power of that state. In the present case it appears that the parties were married in the state of Virginia, and had a matrimonial domicil there, and not in the District of Columbia or elsewhere. The husband had his actual domicil in that state at all times until and after the conclusion of the litigation. It is clear, therefore, under the decision in the Atherton case and the principles upon which it rests, that the state of Virginia had jurisdiction over the marriage relation, and the proper courts of that state could proceed to adjudicate respecting it upon grounds recognized by the laws of that state, although the wife had left the jurisdiction and could not be reached 332 DUE PROCESS OF LAW § 142 by formal process. But in order to make a divorce valid, even when granted by the courts of the state of the mat- rimonial domicil, there must be notice to the defendant, either by service of process, or (if the defendant be a nonresident) by such publication or other constructive notice as is required by the law of the state. Cheely v. Clayton, 110 U. S. 701; Atherton v. Atherton, 181 U. 8. 155. In Cheely v. Clayton, because the notice was pub- lished against the defendant without making such effort as the local law required to serve process upon her within the state, this court held, following repeated decisions of the state court, that the decree of divorce was wholly void for want of jurisdiction in the court that granted it; and that the liberty conferred by the local statute upon a de- fendant on whom constructive service only had been. made, to apply within three years to set the decree aside, did not make it valid when the constructive service was so defective.’’ The lucid exposition made in this recon- ciling opinion may be regarded as the existing law on this difficult subject. § 143. When judgments are subject to collateral attack. In considering, as was necessary in the preceding section, the full faith and credit clause of the Federal constitution as to judgments of sister states, it is necessary to remem- ber that it has no reference to judgments rendered with- out jurisdiction. As the fact of jurisdiction is always open to inquiry, the record of a judgment rendered in a sister state may be attacked collaterally as to the existence of the jurisdictional facts involved in it. In Hanley v. Donoghue, 116 U. S. 4, the Court said: ‘‘Judgments re- covered in one state of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examined upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdic- tion of the cause and the parties. Buckner v. Finley, 2 Pet. 586; McElmoyle v. Cohen, 13 Pet. 312, 324; D’Arcy § 143 DUE PROCESS AND JURISDICTION 333 v. Ketchum, 11 How. 165, 176; Christmas v. Russell, 5 Wall. :290, 305; Thompson v. Whitman, 18 Wall. 457.’’ The proceedings are not merely voidable but void, and may be rejected when collaterally attacked, if there is a total want of jurisdiction. Rose v. Himely, 4 Cranch 241; Griffith v. Frazier, 8 Cranch 9; Elliot v. Piersol, 1 Pet. 328; Shriver v. Lynn, 2 How. 43; Williamson v. Berry, 8 How. 495. A judgment is void and subject to collateral attack when rendered without jurisdiction of the defendant. No error can be considered that does not show want of jurisdiction in the court that rendered the judgment condemning the property, where confiscation proceedings are brought before the court collaterally as the foundation of the defendant’s title. Tyler v. Defrees, 11 Wall. 331. In the leading case of Scott v. McNeal, 154 U. S. 34, in which the Court said: ‘‘The fundamental question in this case is whether letters of administration upon the estate of a person who is in fact alive have any validity or effect against him;’’ and in which the plain- tiff claimed ‘‘that to give effect to the probate proceed- ings under the circumstances would be to deprive him of his property without due process of law,’’—it was held that ‘‘No judgment of a court is due process of law, if rendered without jurisdiction in the court, and without notice to the party.’’ Approved in Hilton v. Guyot, 159 U.S. 164; New Orleans Water Works Co. v. New Orleans, 164 U. S. 480, and distinguished in Hamilton v. Brown, 161 U.S. 274, wherein it was held that a judgment in an escheat proceeding is conclusive against all having con- structive notice by publication. The judgment of a court which has once acquired jurisdiction is unassailable col- laterally only when after acquiring jurisdiction, it pro- ceeds according to established modes governing the class to which the particular case belongs. When it transcends, in the extent and character of its judgment, the law ap- plicable to it, its judgment is not only erroneous but void. Windsor v. McVeigh, 93 U. S. 274. See also, United States v. Walker, 109 U. S. 258. A judgment is not only 334 DUE PROCESS OF LAW § 143 voidable but void and subject to collateral attack when rendered in excess of jurisdiction. Re Terry, 128 U. 8. 289. In United States v. Morse, 218 U. S. 493, in which the Supreme Court of the District of Columbia had jurisdic- tion over the res and the parties, in a proceeding for the sale of an infant’s real estate for purposes of investment, it was held that the decree was not open to collateral attack, despite the error of the court in holding that a case had been made either under its statutory authority, or under its inherent power as a court of equity. In Bris- coe v. Rudolph, 221 U. 8S. 547—upon an objection chal- lenging an assessment as excessive, and asserting that a second jury should have been called under the local code, —it was held that a judgment of the Supreme Court of the District, confirming a special assessment for benefits resulting from a street extension, can not be attacked collaterally, since the matter complained of was, at best, only an error reviewable on appeal. See also, Johannes- sen v. United States, 225 U.S. 227; Herbert v. Crawford, 228 U. S. 204; Thompson v. Thompson, 226 U. S. 551; Priest v. Board of Trustees, 232 U. S. 604; Magruder v. Drury, 235 U. 8. 106; Simon v. Southern Railway, 236 U.S. 115. Special reference should be made in this con- nection to Riverside Mills v. Menefee, 237 U. S. 189, in which it was held: first, that due process of law can not be denied in fixing, by judgment, against one beyond the jurisdiction of the court, an amount due, even though the enforcement of the judgment be postponed until execu- tion issue; second, that the fact that a judgment rendered without due process of law may not, under the full faith and credit clause, be enforced in another state, affords no ground for the court entering a judgment without juris- diction in violation of due process of law. In reaching those conclusions the Court said: ‘‘It is self-evident that the application of these settled principles establishes the error of the decision of the court below unless it be that the distinction upon which the court acted be well founded, § 143 DUE PROCESS AND JURISDICTION 335 that is, that the enforcement of due process under the Fourteenth Amendment was without influence upon the power to render the judgment since that limitation was pertinent only to the determination of when and how the judgment after it was rendered could be enforced. But this doctrine while admitting the operation of the due process clause, simply declines to make it effective. That is to say, it recognizes the right to invoke the protection of the clause but denies its remedial efficiency by postpon- ing its operation and thus permitting that to be done which if the constitutional guaranty were applied would be absolutely prohibited. But the obvious answer to the proposition is that wherever a provision of the Constitu- tion is applicable, the duty to enforce it is imperative and all embracing, and no act which it forbids may therefore be permitted.’’? See also, Doran v. Kennedy, 237 U. 8. 362. CHAPTER VIII STATE POWER OF TAXATION AND DUE PROCESS § 144. Taxing power of the Imperial Parliament. The charters under which our colonial governments were or- ganized were royal grants; they were not concessions from the English legislature. In contemplation of English law the whole group of colonial governments in America, created or confirmed by royal charters, were mere cor- porations created by the King and subject, like all others of their kind, to his visitorial power, and to the power of his courts, to dissolve them in a proper case presented for the purpose. But until some cause of forfeiture arose, the grant, as between the crown and the patentees, was irrevocable,—it being the settled doctrine of English law that after a grant of corporate power made by the Crown had been once accepted, the Crown could not re- sume the grant without the consent of those in whom its privileges had been vested. The irrevocable rights thus acquired by the colonists as against the Crown were revocable, however, at the hands of the Parliament. Un- der the theory of the English Constitution, then, as now, ““Its power is, legally speaking, illimitable. It may create and abolish and change, at its pleasure, with or without the assent of the people or corporation to be thereby affected.’’ Dillon, Municipal Corporations, i, 109, 2d ed., and cases cited. In the hands of a tax-loving statesman like Grenville that imperial theory was not confined to mere supervision; in such hands it was held to mean that the Imperial Parliament could at any moment override the acts of the colonial assemblies, without consulting their wishes at all, and tax and legislate for the people of 336 § 146 STATE POWER OF TAXATION 337 Massachusetts and Virginia just as it could for the people of Kent and Middlesex. § 145. Extension of parliamentary control over the colonies. At the outset the English colonies in America, created by the Crown on land considered as terra regis, were not subjected to the control of Parliament. The earliest form of direct legislative control to which any of the colonists were subjected, in the form of ordinances or instructions for their government, emanated, not from the law-making power of the King in Parliament, but from the King in Council. With the founding of the colonies, and with the organization of their political systems, the Crown had everything to do, the Parliament practically nothing. Apart from the control which had existed from the beginning over their external affairs in matters of trade and navigation, the colonies, prior to the latter part of the eighteenth century, had not been drawn within the widening circle of its imperial authority. In their local legislatures the colonists had learned how to tax them- selves, and how to regulate their home affairs through laws of their own making. Losing sight of the fact that England had grown into an empire since the work of col- onization began, the colonists clave to the earlier concep- tion which regarded the home Parliament simply as the legislative organ of the United Kingdom. As such, they held that it had no right to invade the jurisdictions of their colonial assemblies in order to legislate directly upon their internal concerns. § 146. Colonies transformed into sovereign states. When the tie of political dependence that bound the colo- nies to the mother country was severed, the English prov- inces in America rose to the full statute of sovereign states. ‘‘When the Revolution took place the people of each state became themselves sovereign.’’ And so soon as they ‘‘took into their own hands the powers of sov- ereignty the prerogatives and regalities which before Due Process—22 338 DUE PROCESS OF LAW § 146 belonged either to the Crown or the Parliament became immediately and rightfully vested in the state.’’ Martin v. The Lessee of Waddell, 16 Pet. 410, 416. On the 10th of May, 1776, the Continental Congress recommended to the several conventions and assemblies of the colonies the establishment of independent governments ‘‘for main- tenance of internal peace and the defence of their lives, liberties, and properties.’’ Before the end of the year in which the recommendation was made, by far the greater part of the colonies had adopted written constitutions in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvelous process of growth through which the English colonies in America were rapidly developed into a group of independent commonwealths in which each was, in its organic structure, a substantial reproduc-. tion of the English Kingdom. § 147. Constitutional limitations an American inven- tion. Subject to a grave limitation, the unlimited taxing power of the omnipotent Parliament passed at its birth into every American state legislature. It has ever been an elementary principle of American constitutional law that every state legislature is endowed by its very nature with the omnipotence of the English Parliament, save so far as that omnipotence is restrained by express constitu- tional limitations. Such limitations, of which the Euro- pean world knew nothing, grew naturally out of the process through which American legislatures came into existence. From the very beginning the powers of the colonial assemblies were more or less limited through the terms of the charters by which such assemblies were either created or recognized. Even in colonial times ‘‘questions sometimes arose . . . whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found in excess, they were held invalid by the courts, that is to say, in the first instance, by the colonial courts, or, if the matter § 148 STATE POWER OF TAXATION 339 was carried to England by the Privy Council.’’? Bryce, The Am. Commonw., i, 243. While, as a general rule, the colonies, after being transformed into independent states, adopted new constitutions, the charter granted to Connecticut in 1662 was continued as her organic law until 1818; and that granted to Rhode Island in 1663 was continued as her organic law until 1842. It is worthy of note that one of the first cases, if not the very first, in which a legislative enactment was declared uncon- stitutional and void, on the ground of conflict with the constitution of a state, was decided under the charter last named. But what is far more important is the fact that this novel and supreme power of declaring an act of the legislature void was assumed by the state courts, as a matter of judge made law, without a line or word on the subject in any state constitution. And here may be quoted the words of Wythe, J., who, in Com. v. Caton, 4 Call (Va.), 5, said: ‘‘Nay, more, if the whole legislature, an event to be deprecated, should attempt to overleap the bounds prescribed to them by the people, I, in adminis- trating the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, Here is the limit of your authority; and hither shall you go, but no further.’’ § 148. Nature and extent of limitations on state taxing power—Exemption of governmental agencies. Passing from generals to particulars it now becomes necessary to indicate the nature and extent of the limitations imposed upon the taxing power of a state, first, by the peculiar structure of our dual system of government; second, by the fundamental principles of judicial administration em- bodied in the American theory of due process of law. The idea of an indestructible Union of indestructible states rests necessarily upon the principle that neither the state nor Federal Government may tax the property, the agencies, or operations of the other, for the conclusive reason that the power to tax carries with it the power to 340 DUE PROCESS OF LAW § 148 destroy. In the leading case of McCulloch v. Maryland, 4 Wheat. 316, in which it was settled that the banks of the United States had the constitutional right to establish its branches within any state; and that the state within which such branches may be established, can not, without violating the constitution, tax that branch,—the Court said: ‘‘If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail, they may tax the mint, they may tax patent- rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. . . . the states have no power, by taxation or otherwise, to retard, impeach, burden, or in any manner control the opera- tions of the constitutional laws enacted by Congress to carry into execution the powers vested in the general gov- ernment.’’ As illustrations of the application of this principle, see Weston v. Charleston, 2 Pet. 466; Bank of Commerce v. New York City, 2 Black 732; Van Allen v. Assessors, 3 Wall. 590; Collector v. Day, 11 Wall. 118; Ward v. Maryland, 12 Wall. 418; Van Rocklin v. Tennes- see, 117 U. S. 151; United States v. Baltimore Electric Railroad Co., 17 Wall. 322; Wisconsin Central Railroad Co. v. Price County, 133 U. 8. 496; Pollock v. Farmers’ Loan, etc., Co., 157 U. S. 429; United States v. Richart, 188 U. 8. 438; United States v. Hvoslef, 237 U. 8. 1;. Thames and Mersey Ins. Co. v. United States, 237 BeSe19, § 149. Federal power to regulate interstate commerce not to be hampered by state taxation. While the instru- mentalities of interstate commerce if within a state, may be subjected to taxation by it, the exercise of the power to regulate interstate commerce, which is vested solely in § 150 STATE POWER OF TAXATION 341 the national government, can not be hampered by the imposition of a state tax upon the privilege of transacting such commerce. Leloup v. Port of Mobile, 127 U. S. 640; Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18; Adams Express Co. v. Ohio State Auditor, 165 U. S. 194; Atlantic & P. Tel. Co. v. Philadelphia, 190 U. S. 160; Allen v. Pullman’s Palace Car Co., 191 U. S. 171; Keprer v. Stewart, 197 U. S. 60; Chicago, B. & Q. R. Co. v. Babcock, 204 U. 8. 585; Pullman Co. v. Knott, 235 U.S. 23; Cornell Steamboat Co. v. Sohmer, 235 U. S. 549; Hendrick v. Maryland, 235 U. S. 610; Heyman v. Hays, 236 U.S. 178. § 150. State can only tax property within its jurisdic- tion. Due process of law is denied to the owner of property when it is taxed by a state in defiance of the rule which provides that its taxes, no matter what their form, may be levied only on property, persons, and busi- ness within its jurisdiction. When real property or tan- gible personal property is in question jurisdiction depends not upon the domicil of the owner but upon the actual situs of the thing to be taxed. In Dewey v. Des Moines, 173 U. S. 193, the Court said: ‘‘The jurisdiction to tax exists only in regard to persons and property or upon the business done within the state, and such jurisdiction can not be enlarged by reason of a statute which assumes to make a nonresident personally liable to pay a tax of the nature of the one in question. All subjects over which the sovereign power of the state extends are objects of taxation. Cooley’s Taxation, 1st ed., pp. 3,4; Borroughs, Taxation, sec. 6. The power of the state to tax extends to all objects within the sovereignty of the state. Per Mr. Justice Clifford, in Hamilton Mfg. Company v. Massa- chusetts, 6 Wall. 632, 639. The power to tax is, however, limited to persons, property and business within the state, and it can not reach the person of a nonresident. Case of the State Tax on Foreign-held Bonds, 15 Wall. 300, 319. In Cooley’s Taxation, 1st ed., p. 121, it is said that ‘a state 342 DUE PROCESS OF LAW § 150 can no more subject to its power a single person or a single article of property whose residence or legal situs is in another state than it can subject all the citizens or all the property of such other state to its power.’’’ See Louisville, ete., Ferry Co. v. Kentucky, 188 U. 8. 385; Delaware, etc., R. Co. v. Pennsylvania, 198 U. S. 341; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194; Cornell Steamboat Co. v. Sohmer, 235 U. S. 549; Wright v. Central of Georgia Ry., 236 U. S. 674; Wilson Cypress Co. v. Del Poyo, 236 U. 8S. 635; Heyman v. Hays, 236 U. S. 178; Bothwell v. Bingham County, 237 U. 8. 642; Equitable Life Society v. Pennsylvania, 238 U. S. 143. § 151. Taxation of corporate property situated in sev- eral states. In taxing corporations two things are to be considered; first, the four elements to be taxed—capital stock in the hands of the corporation; shares of the capi- tal stock in the hands of the individual ‘stockholders; cor- porate property; corporate franchises; (Tennessee v. Whiteworth, 117 U. S. 129) second, that when the corpo- ration has property in more than one state each state in taxing its portion must exclude the value of the portions situated beyond its limits. Western Union Tel. Co. v. Atty. Gen., 125 U. S. 530; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. 8. 18; Fargo v. Hart, 193 U.S. 490; Delaware, ete., R. Co. v. Pennsylvania, 198 U.S. 341. In the case last cited—in which it was held that a domestic corporation was deprived of its property without due process of law by an appraisement of its capital stock, which included the value of coal mined by it within the state, but situated in other states, where it was awaiting sale when the appraisement was made—the Court said: ‘‘Tt is plain that in the case at bar the coal had lost its situs in Pennsylvania by being transported from that state to foreign states for the purposes of sale, with no intention that it should ever return to its state of origin. It was, therefore, as much outside the jurisdiction of the § 15la STATE POWER OF TAXATION 343 state of Pennsylvania to tax it as was the Indiana fran- chise in the case just cited, and it has been taxed just as directly and specifically under the facts stated in this case as was the Indiana franchise taxed in Kentucky by the valuation of the Kentucky franchise, which value was in- creased by the value of the franchise created by Indiana.’’ See also, Pullman Co. v. Knott, 235 U. 8. 23. In Wright v. Louis. and Nash. R. R., 236 U. 8S. 690, the Court said: “The railroads not being domiciled in Georgia are not taxable there for stock and bonds of other companies merely appearing to be owned by them.’’ In Equitable Life Society v. Pennsylvania, 238 U. S. 143, it was held that as a state has the right to tax life insurance com- panies upon business done within the state, measuring the tax upon the premiums on policies of residents of the state, such companies are not deprived of their property without due process of law because, in estimating the amount of premiums, those paid by the residents of for- elgn insurance companies outside of the state are in- cluded. The Court said: ‘‘The only question concerns the mode of measuring the tax. Flint v. Stone Tracy Co., 220 U. S. 107, 162, 163. As to that a certain latitude must be allowed. It is obvious that many incidents of the con- tract are likely to be attended to in Pennsylvania, such as payment of dividends when received in cash, sending an adjuster into the state in case of dispute, or making proof of death. See Connecticut Mutual Life Insurance Co. v. Spratley, 172 U. 8. 602, 611; Pennsylvania Lumbermen’s Mutual Fire Insurance Co. v. Meyer, 197 U. S. 407, 415.”’ § 151a. Due process not denied by state statute impos- ing annual franchise tax on a consolidated railway cor- poration. In Kansas City M. & B. R. Co. v. Stiles, 242 U. S. 111, it was held that neither the due process, com- merce, or equal protection of the laws clauses of the Federal constitution were violated by an Alabama statute imposing the annual franchise tax exacted from domestic corporations upon a consolidated railway corporation ex- 344 DUE PROCESS OF LAW § ldla isting by virtue of the consolidation under concurrent acts of the states of Alabama, Mississippi and Tennessee, of three independent and distinct railroad corporations created by and formerly operating solely within the re- spective states named, and in measuring such tax by the entire capital stock of the consolidated corporation, in- stead of measuring it by the amount of capital employed in the state, as is done in the case of foreign corporations, where the consolidating statute expressly provided that the consolidated corporation shall be subject in all re- spects to the laws of the state as a domestic corporation. The Court said: ‘‘The Alabama supreme court has held that the railroad company is a corporation organized under the laws of that state, and, as such, subject to the franchise tax imposed by that section of the statute. . When the companies comprised in this consolida- tion sought to avail themselves of the laws of Alabama, they were asking a privilege and right which, subject to the limitations of the Federal Constitution, was within the authority of the state. This principle was succinctly stated in Ashley v. Ryan, 153 U. 8. 486, 442. . . . This doctrine has been affirmed since: Louisville & N. RB. Co. v. Kentucky, 161 U. S. 677, 703, and previous cases in this court therein cited; Interstate Consol. Street R. Co. v. Massachusetts, 207 U. S. 79, 84. The railroads com- prising this consolidation entered upon it with the Ala bama statute before them and under its conditions, and, subject to constitutional objections as to its enforcement, they can not be heard to complain of the terms under which they voluntarily invoked and received the grant of corporate existence from the state of Alabama.”’ § 152. Taxation of tangible personal property. Until it passes beyond its limits and becomes subject to federal regulation as an export or as having actually entered into commerce between the states, the state possesses the power to tax all tangible personal property within its jurisdiction. When in Brown v. Maryland, 12 Wheat. 419, § 152 STATE POWER OF TAXATION 345 the question arose whether a state could limit the right of Congress to regulate foreign commerce by requiring the importer of foreign articles to take out a license from the state before being permitted to sell a bale or package so imported, the Court said: ‘‘There is no difference in the effect between a power to prohibit the sale of an article, and the power to prohibit its introduction into the coun- try. . . . Itis sufficient for the present to say, generally that when the importer has so acted upon the thing im- ported that it has become incorporated and mixed up with the mass of property in the county, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state.’” While remaining in the original package ‘‘a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution.’’ In Coe v. Errol, 116 U. S. 517, the Court said: ‘‘But no definite rule has been adopted with regard to the point of time at which the taxing power of the state ceases as to goods exported to a foreign country or to another state. What we have. already said, however, in relation to the products of a state intended for exportation to another state will indicate the view which seems to us the sound one on that subject, namely: that such goods do not cease to be part of the general mass of the property in the state, subject, as such, to its jurisdiction and to taxation in the usual way until they have been shipped or entered with a common carrier for transportation to another state or have been started upon such transportation in a continu- ous route or journey.’’ When such property thus trans- ported reaches its destination it mingles with the general mass of property of the state into which it is received and there becomes subject to taxation., Brown v. Houston, -114U. S. 622; Pittsburgh Coal Co. v. Bates, 156 U.S. 577. In American Refrigerator Transit Co. v. Hall, 174 U.S. 70—in which it was held that where refrigerator cars are employed as vehicles of transportation in the interchange of interstate commerce, the state may tax the average number of such cars used by railroads within the state, 346 DUE PROCESS OF LAW § 152 but owned by a foreign corporation which has no office or place of business within the state—the Court suid: ‘‘It having been settled, as we have seen, that where a corpo- ration of one state brings into another, to use and employ, a portion of its movable personal property, itis legitimate for the latter to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon similar property used in like way by its own citizens, we think that such a tax may be properly assessed and collected, in cases like the present, where the specific and individual items of property so used and em- ployed were not continuously the same but were constantly changing according to the exigencies of the business and that the tax may be fixed by an appraisement and valua- tion of the average amount of property thus habitually used and employed. Nor would the’ fact that such cars were employed as vehicles of transportation in the inter- change of interstate commerce render their taxation invalid. Marye v. Baltimore & Ohio R. R. Co., 127 U. 8. 123; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. 8. 18.’? While property thus at rest may be taxed by a state, property in transit from one state to another can not be. In Kelly v. Rhoades, 188 U. S. 1, the Court said: ‘The question to be determined then is whether the stock of the plaintiff (a flock of 10,000 sheep, which was being driven from Utah by direct route across Wyoming to Nebraska at the rate of about 9 miles a day) was brought into the state for the purpose of being grazed at the time it was assessed for taxation. . . . The substance of these cases is that, while the property is at rest for an indefinite time awaiting transportation, or awaiting a sale at its place of destination, or at an intermediate point, it is subject to taxation. But if it be actually in transit to» another state, it becomes the subject of interstate com- merce, and is exempt from local assessment.’’ See also, Diamond Match Co. v. Ontonagon, 188 U. 8. 82, 95. In Cornell Steamboat Co. v. Sohmer, 235 U. 8. 549, the Court said: ‘‘But transportation between the parts of a § 153 STATE POWER OF TAXATION 347 state is not interstate commerce, excluded from the taxing power of the state, because as to a part of the journey the course is over the territory of another state. Lehigh Valley R. R. v. Pennsylvania, 145 U. 8. 192; Ewing v. City of Leavenworth, 226 U. S. 464; and see Cincinnati Packet Co. v. Bay, 200 U. S. 179, 183.”’ § 153. Taxation of intangible personal property. An able text writer, in considering the situs of debts for the purpose of taxation, has said: ‘‘The general practice is to treat debts as located, for purposes of taxation, at the creditor’s domicil, and there is no doubt that they may have their situs there for that purpose. On the other hand, it would seem that, if the creditor were domiciled in one state and the debtor in another, there should be no reason why the latter state (which is the situs of the obli- gation and the actual situs of the debt) can not lay a tax upon the creditor’s property actually situated there, namely, the debtor’s obligation to pay, provided in so doing, it does not impair the obligation of contracts. And some courts have upheld such taxation.’? Minor, Con- flict of Laws, p. 281, citing Bridges v. Griffin, 33 Ga. 113; Railroad Co. v. Collector, 100 U. 8. 595; United States v. R. R. Co., 106 U. 8. 327; Finch v. York County, 19 Neb. 50. The same author then adds: ‘‘But, strangely enough, the general trend of judicial opinion seems to be in the direction of regarding such taxation as unlawful, upon the ground that the debtor has no property in the debt which can be taxed,’’ citing State Tax on Foreign-held Bonds, 15 Wall. 300, 319, 320, involving the right to tax bonds held by nonresidents and secured by state mort- gages. In that notable case the maxim, mobilia sequun- tur personam was fully and emphatically recognized. In announcing the principle that debts can have no situs apart from the residence of the creditor, the Court said: “Tt is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicil of its owner, will in many cases, deter- 348 DUE PROCESS OF LAW § 153 mine the state in which it may be taxed. The same thing is true of public securities consisting of state bonds and bonds of municipal bodies, and circulating notes of bank- ing institutions; the former, by general usage have acquired the character of and are treated as property, in the place where they are found, though removed from the domicil of the owner; the latter are treated and pass as money wherever they are. But other personal property, consisting of bonds, mortgages, and debts generally, has no situs independent of the domicil of the owner, and certainly can have none where the instruments, as in the present case, constituting the evidences of debt, are not separated from the possession of the owners.’’ The prin- ciple thus broadly stated was soon modified in Tappan v. Merchants Nat. Bank, 19 Wall. 490, wherein it was held that personal property; for the purposes of taxation, may be separated from the person of the owner, and he may be taxed on its own account at the place where it is actu- ally located; that shares of stock in a national bank, being personal property, may be separated by the law which creates them from the person of the owner, and a situs of their own given them for the purposes of taxation. See also, State Railroad Tax Cases, 92 U. S. 607; Pullman’s Palace Car Co. v. Pennsylvania, 141 U. 8. 18; Corry v. Baltimore, 196 U. 8. 466. In Blackstone v. Miller, 188 U.S. 206, the Court said: ‘‘There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign-held Bonds, 15 Wall. 300. The taxation in that case was on the interest on bonds held out of the state. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337. Therefore, considering only the place of the property, it was held that bonds held out of the state could not be reached. The decision has been cut down to its precise point by later cases. Savings & Loan Soe. v. Multnomah § 154 STATE POWER OF TAXATION 349 County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U.S. 309, 319, 320.’ In Liverpool & L. & G. Ins. Co. v. Board of Assessors, 221 U.S. 346, the Court said: ‘‘The legal fiction expressed in the maxim mobilia sequuntur personam yields to the fact of actual control elsewhere. And in the case of credits, though intangible, arising as did those in the present instance, the control adequate to confer jurisdiction may be found in the sovereignty of the debtor’s domicil. The debt, of course, is not property in the hands of the debtor; but it is an obligation of the debtor, and is of value to the creditor, because he may be compelled to pay; and power over the debtor at his domicil is control of the ordinary means of enforcement. Blackstone v. Miller, 180 U. 8S. 205, 206. Tested by the criteria afforded by the authorities we have cited, Louisi- ana must be deemd to have had jurisdiction to impose the tax.’’? See Orient Ins. Co. v. Board of Assessors, 221 U.S. 358; Southern P. Co. v. Kentucky ex rel. Alexander, 222 U. S. 63. § 154. Exemptions from taxation strictly construed. It is well settled that a state, acting through its legis- lature, may exempt the property of particular persons, or particular parcels of property from taxation, perpetu- ally or for a specified period, unless restrained by an ex- press constitutional limitation. In Mobile and Ohio Railroad Company v. Tennessee, 153 U. S. 486, it was held that an exemption from taxation was granted for the purposes and to the extent stated by a provision in the charter of that company declaring that ‘‘no tax shall ever be laid on said road or its fixtures which shall reduce the dividends below 8 per cent.’’ As early as Piqua Branch of State Bank v. Knoop, 16 How. 369, it was held that a state had the constitutional power to make a binding con- tract, imposing a specific tax on a bank in lieu of all other taxes. It was also held at a very early day that unless a state has manifested a deliberate purpose to abandon its taxing power, no such intention will be presumed. In Ne 350 DUE PROCESS OF LAW § 154 Providence Bank v. Billings, 4 Pet. 514, the Court said: “Tt would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it; that a consideration sufficiently valu- able to induce a partial release of it may not exist; but as the whole community is interested in retaining it undi- minished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.’’ Unless its intention to do so has been declared in positive and unmistakable terms, the legislature can not be presumed to have intended to surrender the taxing power. New Orleans City & L. R. Co. v. New Orleans, 143 U.S. 192. An exemption from taxation must appear with absolute distinctness as the taxing power is neces- sary to the very existence of government. Wilmington & W. R. Co. v. Alsbrook, 146 U. 8S. 279; Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174. In Wells v. Savan- nah, 181 U. S. 531, 539, the Court said: ‘‘The payment of taxes on account of property otherwise liable to taxa- tion can only be avoided by clear proof of a valid contract of exemption from such payment, and the validity of such contract presupposes a good consideration therefor. If the property be in its nature taxable, the contract exempt- ing it from taxation must, as we have said, be clearly proved. It will not be inferred from facts which do not lead irresistibly and necessarily to the existence of the contract.’? Every reasonable doubt must be resolved against the existence of a contract involving an exemption from taxation. Tucker v. Ferguson, 22 Wall. 527. As such exemptions are in derogation of the common right as well as that of the sovereign, they are not to be extended beyond the express and necessary requirements of the language, construed strictissimi juris. Yazoo & M. Valley R. Co. v. Thomas, 132 U. 8. 174. In New York ex rel. Metropolitan Street R. R. Co. v. State Board of Tax Commissioners, 199 U. S. 1, a serious attempt was made to draw under the protection of the due § 154 STATE POWER OF TAXATION 351 process clause of the Fourteenth Amendment exemptions from taxation claimed by public service corporations operating street railways, which had paid already a lump sum, or were paying annually specific amounts or a fixed percentage of receipts for the privilege of occupying the streets. It was contended that there was an impairment of the obligation of contracts and a denial of due process of law by a state statute imposing a subsequent tax on the franchises of such corporations, despite the fact that such taxing statute provided for the deduction from the tax levied of sums being paid by the corporations for the use of the streets. In overruling such contentions the Court said: ‘‘We are of opinion that no contract right of the relator was impaired by the legislation in question. It is further insisted that the special franchise tax law denies the relator the equal protection of the laws and due process in three separate and distinct aspects, namely: (1) in that it adds to the obligations of their various con- tracts while preserving all the burdens of those contracts; (2) in that it provides for the deduction of annual pay- ments covered by existing contracts for the amount of tax levied, by reason of which deduction those who agreed to pay for their franchise, lump sums or annual amounts less than the net tax are discriminated against; and (3) in that it discriminates against them and subjects them to taxation, while their competitors, operating under the surfaces of many of the same streets, are to be exempted. The first specification is answered by the conclusion that we have reached in respect to the claim of an impairment of contract obligations; for if there was no such impair- ment, the fact that the companies have escaped the burden for these many years is their good fortune, and in no man- ner discharges them from the ordinary burdens of taxa- tion which the present law imposes. With respect to the second, it may be observed that the lump sum is so obviously a payment for the franchise that it can not be considered in any just sense as possessing the nature of a tax. It is not even rental. It is like money paid for a 302 DUE PROCESS OF LAW § 154 tract of land,—part of the purchase price. It does not, like a percentage of the gross receipts, vary with the changes of business, has no resemblance to a continuing discharge of the obligation which property is under for contribution to the support of the government. Further, this whole matter of allowing a reduction on account of that which is spoken of as ‘in the nature of a tax,’ isa matter of grace on the part of the legislature. The fran- chises granted were, as we have held, subject to taxation, and the fact that upon equitable considerations, the state has consented that a certain reduction shall, in some cases, be made, does not entitle every holder of a franchise to a like reduction. It is akin to an exemption, and there is nothing in the Federal Constitution to prevent a state from granting exemptions from taxation. Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. 8. 232.’’ § 155. Taxation must be for a public purpose. A state commits an act of confiscation and deprives the citizen of due process of law when a contribution is levied upon his property in violation of the fundamental principle which demands that the taxing power of a constitutional government can only be exercised for the public use and benefit. In the leading case of Citizens’ Sav. and L. Ass’n v. Topeka, 20 Wall. 655, the Court said: ‘‘The power to tax is, therefore, the strongest, the most pervad- ing of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall in the case of McCulloch v. Md., 4 Wheat. 431, that the power to tax is the power to de- stroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent. imposed by the United States on the circulation of all other banks than the National Banks, drove out of ex- istence every state bank of circulation within a year or two after its passage. This power can as readily be em- ployed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited f § 155 STATE POWER OF TAXATION 353 wealth and prosperity to the other, if there is no implied limitation of the uses for which power may be exercised. To lay, with one hand, the power of the government on the property of the citizen, and with the other bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the form of law and is called taxation. This is not legislation. It is a decree under legislative forms, . . . We have established, we think, beyond cavil, that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.’’ The duty rests primarily with the legislature of course to determine what is or is not such a public use as will authorize the employ- ment of the taxing power. In the words of the Court, in the case just cited, ‘‘It is undoubtedly the duty of the legislature, which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which taxes are assessed falls upon one side or the other of the line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legis- lation levied, what objects or purposes have been consid- ered necessary to the support and for the proper use of the government, whether state or municipal.’’ There is however a Federal power which sits above the state power and determines for itself what is or is not a public use, regardless of the decisions of state courts. In Fallbrook Irrigation District v. Bradley, 164 U. S. 112, it was held that when the taking for any other than a public use is alleged to be a deprivation of private property without due process of law, the question whether the tak- ing was for any other than a public use is a Federal ques- Due Process—23 354 DUE PROCESS OF LAW § 155 tion, despite the absence of any prohibition in the Federal Constitution acting upon the states, and denying their right to take private property for any but a public use. In that case the Court said: ‘‘If the act of the state legis- lature as construed by its highest court conflicts with the Federal Constitution or with any valid act of Congress, it is the duty of the circuit court and of this court to so decide, and to thus enforce the provision of the Federal Constitution. The following are some of the numerous cases in which this principle has been announced and car- ried into effect: Shelby v. Guy, 11 Wheat. 361; Nesmith v. Sheldon, 7 How. 812; Van Rensselaer v. Kearney, 11 How. 297; Webster v. Cooper, 14 How. 488; Leffingwell v. Warren, 2 Black. 599; Hagar v. Reclamation District 107, 111 U.S. 701, 704; Detroit v. Osborne, 135 U. 8. 492. We should not be justified in holding the act to be in violation of the state constitution in the face of clear and repeated decisions of the highest court of the state to the contrary under the pretext that we were deciding principles of gen- eral constitutional law. If the act violates any provision, expressed or properly implied or the Federal Constitu- tion, it is our duty to so declare it, but if it do not, there is no justification for the Federal courts to run counter to the decisions of the highest state courts upon questions involving the construction of state statutes or constitu- tions, on any alleged ground that such decisions are in conflict with sound principles or general constitutional law. The contrary has not been held in this court by the case of Citizens’ Sav. & L. Ass’n v. Topeka, 20 Wall. 655.”’ Hither general or local taxation may be authorized by the legislature, after the fact has been settled that the use to which the tax is to be applied is a public one. In the ease of Mobile County v. Kimball, 102 U. S. 691,— where a tax was levied upon the people of that county for a harbor improvement for the special benefit of the county and the general benefit of the whole state,—the court, in upholding an act authorizing the issue of bonds to meet the expenses, held that it was not a taking of § 155 STATE POWER OF TAXATION 355 private property for public use within the meaning of the constitutional clause. The Court said: ‘‘It was the loan of the credit of the county for a work public in its char- acter, designed to be of general benefit to the state, but more especially and immediately to the county. The expenses of the work were of course to be ultimately defrayed by taxation upon the property and people of the county.’? Approved in Washer v. Bullitt Co., 110 U. S. 564; Spencer v. Merchant, 125 U. 8. 355; Charlotte, etc., R. R. v. Gibbes, 142 U. S. 395; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 151; Bauman v. Ross, 167 U. S. 589; Norwood v. Baker, 172 U. S. 278. Thus it has been settled that after a public work has been properly author- ized, the legislature, in the absence of an express consti- tutional restraint, may determine the manner in which the taxation necessary to defray the expense may be imposed. See Hagar v. Reclamation District, 111 U.S. 705. In the case of Wilson v. Lambert, 168 U.S. 611, in which it was held that special assessments on property in the District of Columbia for a public park in that District for the benefit of the entire people of the United States were not unconstitutional, as a deprivation of property without due process of law, the Court said: ‘‘The residents and property holders of the District of Columbia must be regarded as coming within the class of beneficiaries; and, so far from being injured by the declaration that the park shall also have a national character, it is apparent that thereby the welfare of the inhabitants of the District will be promoted.’? Emphasis must however be given here to the fact that if the purpose for which a tax is levied is purely local, its burdens can not be imposed upon another community or upon other property in no way benefited by its proceeds. Speaking on that subject in Morford v. Muger, 8 Iowa 82, the Court said: ‘‘There must be some limit to this legislative discretion; which, in the absence of any other criterion, is held to consist in the discrimination to be made between what may reasonably be deemed a just tax, for which a just compensation is 306 DUE PROCESS OF LAW § 155 provided in the object to which it is devoted, and that which is palpably not a tax, but which, under the form of a tax, is the taking of private property for public use without just compensation. If there be such a flagrant and palpable departure from equality in the burden imposed; if it be imposed for the benefit of others, and for purposes in which those objecting have no interest, and are, therefore, not bound to contribute, it is no matter in what form the power is exercised—whether in the unequal levy of the tax, or in the regulation of the bounda- ries of the local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the constitution designed to protect private rights against aggression, however made, and whether under the color of recognized power or not.’’ Unless however there is a clear abuse of the legislative discretion, unless the object of the tax is palpably of no benefit to the particular community or dis- trict taxed, or to the property taxed, it will be sustained under a construction based upon the presumption that such legislation is valid. See Wilson v. Lambert, 168 U.S. 611; Henderson Bridge Co. v. Henderson, 173 U. 8. 592; Booth v. Woodburg, 32 Conn. 128. § 156. Legislature may act directly or delegate its func- tions to local authorities. In dealing with that question in Spencer v. Merchant, 125 U. 8S. 345,—in which it was held that while a state legislature may commit the ascer- tainment of a sum to be raised by taxation, and of the benefited district to commissioners, it is not bound to do so;—the Court said: ‘‘The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby, and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion. Willard v. Presburg, 14 Wall. 676; § 156 STATE POWER OF TAXATION 307 Davidson v. New Orleans, 96 U. S. 97; Mobile County v. Kimball, 102 U. 8S. 691; Hagar v. Reclamation District, 111 U. S. 701. If the legislature provides for notice to and hearing of each proprietor, at some stage of the pro- ceedings, upon the question what proportion of the tax shall be assessed upon his land, there is no taking of his property without due process. McMillen v. Anderson, 95 U. 8. 37; Davidson v. New Orleans and Hagar v. Recla- mation District, above cited.’? In Walston v. Nevin, 128 U.S. 578,—in which it was held that the definition of the taxing district and the method of the apportionment are all within the legislative power,—the Court said: ‘‘And whenever the law operates alike on all persons and prop- erty, similarly situated, equal protection can not be said to be denied. Wurts v. Hoagland, 114 U. 8. 606; Rich- mond, F. & P. R. Co. v. Richmond, 96 U. 8. 529.’? See also, Paulsen v. Portland, 149 U. 8. 30; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112; Bauman v. Ross, 167 U.S. 548; Parsons v. District of Columbia, 170 U.S. 45; French v. Barber Asphalt Paving Co., 181 U. S. 324; Louisville, etc., R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430; Galveston, Harrisburg & San Antonio Ry. v. Texas, 210 U.S. 217, 221; Willoughby v. Chicago, 235 U.S. 45; Choc- taw & Gulf R. R. v. Harrison, 235 U. 8. 298; Yost v. Dallas County, 236 U. S. 50; Equitable Life Society v. Pennsyl- vania, 238 U. S. 143. In the case of Bauman v. Ross, above quoted, the Court said that ‘‘the legislature in the exercise of the right of taxation has the authority to direct the whole or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading or the repair of a street, to be assessed upon the owners of lands benefited thereby. The rule of apportionment among the parcels of land benefited also rests within the discretion of the legis- lature, and may be directed to be in proportion to the position, the frontage, the area, or the market value of the lands, or in proportion to the benefits as estimated by commissioners.’’ See also, Mattingly v. District of Co- 358 DUE PROCESS OF LAW § 156 lumbia, 97 U. 8S. 687, 692; King v. Portland, 184 U. S. 161; Chadwick v. Kelly, 187 U. 8. 540; Seattle v. Kelleher, 195 U.S. 351. There are however some states in which it has been held that the legislature exceeds its powers in making statutory rules fixing absolutely the proportion of ex- pense to be borne by abutting owners, or which fail to provide for the indemnification of the land owner sub- jected to the operation of the law, in the event the cost of the improvements shall exceed the benefits conferred. See State v. Newark, 37 N. J. L. 415; Tide Water Co. v. Coster, 18 N. J. Eq. 518; and Provident Sav. Inst. v. Jersey City, 113 U.S. 506, all quoted by McGehee, Due Process of Law, p. 249. These cases contend that there is no longer a rightful exercise of the taxing power but an unconstitu- tional employment of the power of eminent domain when a rule of apportionment is adopted by the legislature that fails to provide for the equalizing of benefits to burdens in individual cases, for the reason that, if the method of apportionment is fixed absolutely by the legislature, the burden in individual cases may exceed the benefits, thus involving the taking of private property for a public use without compensation. § 157. Due process requires compensation to owner when property is taken by state for public use. In the notable case of Norwood v. Baker, 172 U. S. 269, it was held: first, that no matter whether private property is taken by the state directly, or under its authority due process requires compensation to be made or secured to the owner; second, that there is a taking, under the form of taxation, of private property for public use without compensation, when there is an exaction from the owner of such property of the cost of a public improvement in substantial excess of the special benefits accruing to him; that to the extent of such excess the taking is illegal; third, that there is a taking of private property for public use without compensation when there is a special assess- § 157 STATE POWER OF TAXATION 359 ment upon abutting property by the front foot that does not take into account special benefits for the entire cost and expense of opening a street, including not only the amount to be paid for the land, but the cost and expense of the proceedings. The Court said: ‘‘But the power of the legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go con- sistently with the citizen’s right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improve- ment. But the guaranties for the protection of private property would be seriously impaired, if it were estab- lished as a rule of constitutional law, that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improve- ments, could not be questioned by him in the courts of the country. It is one thing for the legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been spe- cially benefited by such improvement, and therefore should specially contribute to the cost incurred by the public. It is quite a different thing to lay it down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an assessment of that kind is made, or is about to be made, that the sum so fixed is in excess of the benefits received. In our judg- ment the exaction from the owner-of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking under the guise of taxation of pri- 360 DUE PROCESS OF LAW § 157 vate property for public use without compensation. We say ‘substantial excess’ because exact equality of taxa- tion is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a mate- rial character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforce- ment of a special asséssment.”’ The foregoing case, which seems to condemn the front foot rule when applied absolutely without any provisicn for a preliminary hearing upon benefits conferred, and to establish the rule that special assessments must be so limited by the benefits received that there shall be no taking in ‘‘substantial excess’’ of such benefits, must be read in connection with a series of qualifying cases decided in 1901, as follows: French v. Barber Asphalt Paving Co., 181 U. 8. 324; Wight v. Davidson, 181 U. S. 371; Tonawanda v. liven, 181 U. 8. 389; Webster v. Fargo, 181 U.S. 394; Cass Farm Co. v. Detroit, 181 U.S. 396; Detroit v. Parker, 181 U. S. 399; Wormley v. Dis- trict of Columbia, 181 U. S. 402; Sinmats v. Herman, 181 U. 8S. 402; Farrell v. West Chicago Park Commis- sioners, 181 U. 8. 404. In French v. Barber Asphalt Paving Co., it was held that there was no taking of pri- vate property for a public use without due process of law when the apportionment of the entire cost of a street pavement upon the abutting lots according to their front- age was authorized by the legislature without any pre- liminary hearing as to benefits. The Court said: ‘‘But we agree with the supreme court of Missouri, in its view that such is not the necessary legal import of the decision in Norwood v. Baker [172 U. S. 269]. That was a case where, by a village ordinance apparently aimed at a single person a portion of whose property was condemned for a street, the entire cost of opening the street, including not only the full amount paid for the strip condemned, but the cost and expenses of the condemnation proceed- ings was thrown upon the abutting property of the person whose land was condemned. This appeared both to the § 158 STATE POWER OF TAXATION 361 court below and to a majority of the judges of this court, to be an abuse of law, an act of confiscation, and not a valid exercise of the taxing power. . . . That this decision did not go to the extent claimed by the plaintiff in error in this case is evident, because in the opinion of the majority it is expressly said that the decision was not inconsistent with our decisions in Parsons v. District of Columbia, 170 U. 8. 45, 56; and in Spencer v. Merchant, 125 U. 8. 345, 357.’? In Tonawanda v. Lyon, 181 U. S. 389, the Court said: ‘‘It was not the intention of the court, in that case (Norwood v. Baker, 172 U. 8. 269), to hold that the general and special taxing systems of the states, however long existing and sustained as valid by their courts, have been subverted by the Fourteenth Amendment of the Constitution of the United States. The purpose of that amendment is to extend to the citi- zens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property, as is afforded by the Fifth Amendment against similar legislation by Congress. The case of Norwood v. Baker presented, as the judge in the court in the present case well said, ‘considerations of peculiar and extraordinary hardship,’ amounting, in the opinion of a majority of the judges of this court, to actual confisca- tion of private property to public use, and bringing the ease fairly within the reach of the Fourteenth Amend- ment.’’ See King v. Portland, 184 U. 8. 61; Voigt v. Detroit, 184 U. S. 115; Chadwick v. Kelly, 187 U. S. 540; Hibben v. Smith, 191 U. 8. 310; Seattle v. Kelleher, 195 U. S. 351; Willoughby v. Chicago, 235 U. S. 45. § 158. Collection of taxes by summary proceedings. How far the summary methods of seizure and sale neces- sarily employed in the collection of taxes are consistent with the principles involved in due process of law is a question which has given rise to grave discussion in both the state and Federal courts. It has been held in several states that a forfeiture of lands can not be declared by 362 DUE PROCESS OF LAW § 158 the state as a penalty for the nonpayment of taxes with- out adequate provision for some procedure in which the owner may have the opportunity upon notice to defend against such forfeiture. See Marshall v. McDaniel, 12 Bush 378; Griffin v. Mixon, 38 Miss. 424; Parish v. Hast Coast Cedar Co., 183 N. Car. 478. In other states abso- lute forfeiture have been held to be constitutional. Wild v. Serpell, 10 Gratt. 405; Levasser v. Washburn, 11 Gratt. 572; McClure v. Maitland, 24 W. Va. 561; Holly River Coal Co. v. Howell, 36 W. Va. 486. When in McMillen v. Anderson, 95 U. 8. 37, the Supreme Court of the United States was called upon to deal with the subject under the Fourteenth Amendment, it was held that it does not re- quire that taxes shall be collected through a judicial pro- ceeding; neither does it require that the person taxed by a state law shall be present or have an opportunity to be present when the tax is assessed against him. The Court said: ‘‘The mode of assessing tax in the states by the Federal Government, and by all governments, is neces- sarily summary, that it may be speedy and effectual. By summary is not meant arbitrary, or unequal, or illegal. It must, under our Constitution, be lawfully done. But that does not mean, nor does the phrase ‘due process of law’ mean by a judicial proceeding. The Nation from whom we. inherit the phrase ‘due process of law’ has never relied upon the courts of justice for the collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation. We need not here go into the literature of that constitutional pro- vision, because, in any view that can be taken of it, the statute under consideration does not violate it.’’ In 1898 was decided the case of King v. Mullins, 171 U.S. 404, in which the Court said: ‘‘The question of con- stitutional law thus presented is one of unusual gravity. On the one hand, it must not be forgotten that the clause in the national Constitution which this court is now asked to interpret is a part of the supreme law of the land, and that it must be given full force and effect throughout the § 158 STATE POWER OF TAXATION 363 entire Union. The due process of law enjoined by the Fourteenth Amendment must mean the same thing in all the states. On the other hand, a decision of this court declaring that that amendment forbids a state, by force alone of its Constitution or statutes, and without inquisi- tion or inquiry in any form, to take to itself the absolute title to lands of the citizen because of his failure to put them on record for taxation or to pay the taxes, might greatly disturb the land titles of two states, under a sys- tem which has long been upheld and enforced by their respective legislatures and courts. Under these circum- stances, our duty is not to go beyond what is necessary to the decision of the particular case before us. If the rights of the parties in this case can be fully determined without passing upon the general question whether the clause of the West Virginia Constitution in question, alone considered, is consistent with the national Consti- tution, that question may properly be left for examina- tion until it arises in some case in which it must be decided.’’ While thus postponing the decision of the vital question, the court declared that where the conten- tion is made that a state constitution provides for a forfeiture of property for nonpayment of taxes without due process of law, it. will examine the statutes of the state in connection with the constitution as a connected whole in order to determine whether a system of taxation exists which in its especial features is consistent with due process of law. The end was not reached until the deci- sion made in 1909 in King v. West Virginia, 216 U. S. 92, the author being of counsel, in which the court assumed that the vital question it had declined in express terms to pass upon in King v. Mullins, had been actually decided in that case. The language used is this: ‘‘The only serious question in the case, if we assume that King saved it, is whether the West Virginia Constitution and statute are consistent with the Fourteenth Amendment. But that question was answered in King v. Mullins, 171 U.S. 404. The construction of the state constitution by the state 364 DUE PROCESS OF LAW § 158 court as not confined in its operation to the title vested and remaining in the state when the Constitution went into effect (which, of course, is final) is the only natural con- struction and was to be expected. . . . The question is not open and we shall discuss it no more.’’ Thus, by an unprecedented method of reasoning, the conclusion was finally reached that a state constitution which pro- vides absolutely that lands shall be forfeited for nonpay- ment of taxes and a failure for five years in succession to place them on the land books, guarantees due process of law, provided the legislature subsequently passes statutes affording an opportunity to be heard which the constitu- tion itself expressly denied. See to the same effect Ken- tucky Union Co. v. Kentucky, 219 U. S. 140, in which the Court said: ‘‘The state of West Virginia, by its Consti- tution, in 1872, inaugurated a system of forfeiture of lands for nonpayment of taxes in some respects analo- gous to the one now under consideration. . . . Inthe present case the statute does not undertake to forfeit the lands for the failure to register them and pay the taxes upon them for the years stated without a judicial pro- ceeding by which the owner of the title may have the taxes assessed, and, upon payment thereof the forfeiture avoided; and the forfeiture is declared only after a judi- cial proceeding instituted by the commonwealth’s attor- ney, in which there is opportunity for a hearing and after which the forfeiture may be declared. The case of King v. Mullins, supra, was followed and approved in this court in King v. West Virginia, 216 U. S. 92, and in Fay v. Crozier, 217 U. 8. 455.’ § 159. Notice and hearing in tax proceedings. Even in the most summary proceedings for the collection of taxes, including such as the West Virginia and Kentucky tax cases just cited, involving a forfeiture of the title to the land itself, the courts always recognize the principle that the legislature must afford to the taxpayer notice of some kind and a hearing, or an opportunity to be heard. As § 159 STATE POWER OF TAXATION 365 the character of the notice and the nature of the hearing differ widely according to the subject-matters involved, nothing like precise definitions of either can be attempted. It is only possible to reproduce the more notable indica- tions given by the Supreme Court as to what will or will not be considered by it as adequate notice and hearing in certain classes of cases. The right in question practically disappears when the legislature itself levies directly gen- eral taxes, in the form of an annual levy, a fixed time being given within which the assessment shall be made, a fixed time and place being set for the equalization of the assessment and the levy of the tax. In Turpin v. Lemon, 187 U.S. 58, the Court said: ‘‘Exactly what due process of law requires in the assessment and collection of gen- eral taxes has never yet been decided by this court, although we have had frequent occasion to hold that, in proceedings for the condemnation of land under the laws of eminent domain or for the imposition of special taxes for local improvements, notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential. Spencer v. Merchant, 125 U. S. 345; Huling v. Kaw Valley R. R. & Improv. Co., 130 U. S. 559; Hagar > v. Reclamation Dist. No. 108, 111 U. S. 701; Paulsen v. Portland, 149 U. S. 30. But laws for the assessment of general taxes stand upon a somewhat different footing and are construed with the utmost liberality sometimes even to the extent of holding that no notice whatever is necessary. Due process of law was well defined by Mr. Justice Field in Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, in the following words: ‘It is sufficient to observe here that by ‘due process’ is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever it is necessary for the protection of the parties it must give them an opportunity to be heard respecting the justice of the judgment sought.’’’ Proceedings for the assessment 366 DUE PROCESS OF LAW § 159° and collection of taxes are so far similar to proceedings in rem that notice by publication has been held sufficient to confer jurisdiction. Lent v. Tillson, 140 U. S. 316; Paulsen v. Portland, 149 U. S. 30; Merchants’ Bank v. Pennsylvania, 167 U. S. 461; Bellingham Bay R. Co. v. New Whatcom, 152 U. S. 318. In Glidden v. Harrington, 189 U. S. 255, the Court, in upholding an assessment of ‘‘the ordinary annual tax upon personal property,’’—said: ‘‘These proceedings are sufficient to constitute due process of law. Although, with respect to this class of taxes, we have never had occasion to determine exactly what the Fourteenth Amendment required, we have held that the proceedings should be construed with the utmost liberality, and, while a notice may be required at some stage of the proceedings, such notice need not be personal, but may be given by publication or by posting notices in public places. It can only be said that such notices shall be given as are suit- able in a given case, and it is only where proceedings are arbitrary, oppressive, or unjust that they are declared to be not due process of law.’’ See cases there cited. Here the distinction must be carefully drawn between specific and ad valorem taxes, because by the selection of one or the other form the right of the individual to notice and hearing may be narrowed or widened by the legis- lature. In Hagar v. Reclamation District, No. 108, 111 U.S. 709, the Court said: ‘‘Of the different kind of taxes which the state may impose there is a vast number of which, from their nature, no notice can be given to the taxpayer, nor would notice be of any possible advantage to him, such as poll taxes, license taxes (not dependent upon the extent of his business), and generally specific taxes on things, persons or occupations. In such cases the legislature, in authorizing the tax, fixes its amounts, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold and be thus deprived of his property. Yet there can be no question, that the proceeding is due process of law, as there is no § 159 STATE POWER OF TAXATION 367 inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. . . . But where a taxis levied on prop- erty, not specifically but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judi- cially, and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valua- tion is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent’s property, is due process of law.’’ Thus the distinction is clearly drawn between those cases in which the legislature has nothing to do but to fix the rate of taxation upon property of a definite and certain value, such as money, the face value of securities, the interest on bonds and the like (Dollar Sav. Bank v. United States, 19 Wall. 240; United States v. Philadelphia R. Co., 123 U. S. 118; Bell’s Gap R. Co. v. Pennsylvania, 134 U. 8. 232), and those in which the tax is levied ‘‘on property, not specifically but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain,’’ through a quasi judicial proceeding. When the legis- lature selects the specific instead of the ad valorem method, it may become necessary for it to make a direct adjudication without notice or hearing of the amount due from the individual taxpayer. In Hodge v. Muscatine County, 196 U. S. 276,—involving the validity of an Iowa statute imposing an annual charge upon cigarette dealers and, ‘‘upon the real property and the owner thereof,’’— the Court said: ‘‘Coming now to the provisions for its enforcement, it is clear that, as to the person actually carrying on the business, no notice of the assessment or 368 DUE PROCESS OF LAW § 159 levy of the tax is necessary. If the person carries on the business, the imposition of the tax follows as a matter of course. There is no discretion as to the amount. McMil- len v. Anderson, 95 U. 8. 37; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Turpin v. Lemon, 187 U. S. 51; Re Smith, 104 Iowa 199.’’ As each of the original states developed its own theory of due process as a part of its state system, including of course its own peculiar proceedings for the assessment and collection of taxes, long prior to the adoption of the existing Federal Constitution, there has always been a disposition to consider whether a given proceeding for the assessment and collection of taxes is in accordance with the due process doctrine existing in that state. It was therefore said in Bell’s Gap R. Co. v. Pennsylvania, 134 U.S. 232: ‘The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain. It involves no violation of due process of law when it is executed according to cus- tomary forms and established usages, or in subordination to the principles which underlie them’’; and in Turpin v. Lemon, 187 U. S. 57: ‘‘and it would appear that the Fourteenth Amendment would be satisfied by show- ing that the usual course prescribed by the state laws required notice to the taxpayer and was in conformity with natural justice.’? The most complete definition, however, as to the sufficiency of notice in tax proceedings is that given by the court in Davidson v. New Orleans, 96 U.S. 97,—a case in which the plaintiff in error resisted an assessment of his, real estate in the City of New Orleans for draining the swamps of that city. The Court said: ‘‘That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole state or of some more limited portion of the community, and those laws provide for a mode of con- firming or contesting the charge thus imposed, in the § 159 STATE POWER OF TAXATION 369 ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appro- priate to the nature of the case, the judgment in such proceedings can not be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.’? In the Kentucky Rail- road Tax Cases, 115 U. 8S. 336, the Court—after approv- ing the rules as to notice laid down in Davidson v. New Orleans, 96 U. 8. 97, and Hagar v. Reclamation District No. 108, 111 U.S. 701, said, in special reference to the case last named: ‘‘In that case the statute of California, which conferred the jurisdiction, authorized any defense, going either to the validity or to the amount of the tax assessed, to be pleaded. What inquiries may be per- mitted in such cases, of course, is a matter that depends upon the particular provisions of ‘the law of the jurisdic- tion. In the absence of such provisions, and as a princi- ple of general jurisprudence, it is safe to say that any defense is admissible which establishes the illegality of the proceeding, resulting in the alleged assessment, whether because it is in violation of the local law which is relied on as conferring the authority upon which it is based or because it constitutes a denial of a right secured to the party complaining, by the Constitution of the United States.”’ From the foregoing authorities it clearly appears that when in proceedings for the assessment and collection of taxes notice is necessary at all, it need not, as a general rule, be personal notice. And yet no personal judgment against a nonresident owner in a proceeding strictly against property to enforce by sale a lien for unpaid taxes is valid unless he has been personally served with notice, or has voluntarily appeared. In Dewey v. Des Moines, 173 U. S. 203, the Court said: ‘‘A judgment without personal service against a nonresident is only good so far as it affects the property which is taken or brought under the control of the court or other tribunal in an ordinary action to enforce a personal liability, and Due Process—24 370 DUE PROCESS OF LAW § 159 no jurisdiction is thereby acquired over the person of a nonresident further than respects the property so taken. The jurisdiction to tax exists only in regard to persons and property or upon business done within the state, and such jurisdiction can not be enlarged by reason of a statute which assumed to make a nonresident per- sonally liable to pay a tax of the nature of the one in question. . . . The power to tax is, however, limited to persons, property and business within the state, and it can not reach the person of a nonresident. Case of the State Tax on Foreign-held Bonds, 15 Wall. 300, 319.’’ While it is not necessary that the property owner should be present when his property is assessed, he must at some stage of the proceedings be given an opportunity to be heard as to the amount of the tax, before some kind of a board of equalization or review constituted for that pur- pose. McMillen v. Anderson, 95 U. S. 88; Spencer v. Merchant, 125 U. S. 345; Palmer v. McMahon, 133 U. 8. 669; Paulsen v. Portland, 149 U. S. 30; Pittsburgh R. Co. v. Board of Public Works, 172 U.S. 45; Gallup v. Schmidt, 183 U. 8. 301, 307; Voigt v. Detroit, 184 U. S. 115; Hodge v. Muscatine County, 196 U. S. 276. And so it has been settled that an importer can not demand the right to be present throughout the appraise- ment, when the collection of duties on imported mer- chandise is in question. He can not demand the right to be confronted by the witnesses or to cross-examine them. Auffmordt v. Hedden, 137 U. S. 310. If the appraisers do not exceed their statutory powers, and have not pro- ceeded contrary to law, the values fixed by them, in the absence of fraud, are conclusive. Passavant v. United States, 148 U. 8. 214; Origet v. Hedden, 155 U. S. 228. As the appraisers are quasi judicial officers their ascer- tainment of values, through summary, constitute due process of law. In Hilton v. Merrit, 110 U. S. 97, the Court said: ‘‘Plaintiffs in error contend further, that a denial of the right to bring an action at law to recover duties paid under an alleged excessive valuation of dutia- § 160 STATE POWER OF TAXATION 371 ble merchandise is depriving the importer of his property without due process of law and is therefore forbidden by the Constitution of the United States. The cases of Murray’s Lessee v. Hoboken L. & I. Co., 18 How. 272, and Springer v. United States, 102 U. S. 586, are conclusive on this point against the plaintiffs in error.’’ See also, Earnshaw v. United States, 146 U. S. 60; Passavant v. United States, 148 U.S. 214. § 160. Residuum of taxing power remaining in the state. Early in this chapter the observation was made that every state legislature is endowed with all the omnipotence of the English parliament save so far as that omnipotence is restrained: first, by the limitations imposed by our dual system of Federal Government; second, by the limitations imposed by the constitution of the state itself. An attempt was then made to indicate, in a somewhat systematic way, just what those limitations, Federal and state really are. After the areas covered by such limitations have been deducted, the remainder repre- sents the residuum of taxing power still vested in a state legislature. That such residuum is very large no one can doubt after an examination of the notable exposition con- tained in McCulloch v. Maryland, 4 Wheat. 316, in which the Court speaking through Chief Justice Marshall, said: ‘‘Whether the state of Maryland may without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. . . . The argu- ment on the part of the state of Maryland is not that the states may directly resist the law of Congress, but that they may exercise their acknowledged powers upon it, and the constitution leaves them this right in confidence that they will not abuse it. Before we proceed to exam- ine this argument and to subject it to the test of the con- 372 DUE PROCESS OF LAW § 160 stitution, we must be permitted to bestow a few considera- tions on the nature and extent of the original right of taxation, which is acknowledged to remain in the states. It is admitted that the power of taxing the people and their property is essential to the very existence of gov- ernment, and may be legitimately exercised on the sub- jects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppres- sive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property and as the exigencies of government can not be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislators and on the influence. of the constituents over their repre- sentatives, to guard them against its abuse. . . . All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pro- nounced self-evident. The sovereignty of a state extends to everything which exists by its authority or is intro- duced by its permission ; but does it extend to those means which are employed by Congress to carry into execu- tion—powers conferred on that body by the people of the United States? . . . If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the § 160 STATE POWER OF TAXATION 3873 government of the Union, and all those means which are given for the purpose of carrying those powers into execution.’’ The famous and luminous dictum thus pronounced by the great Chief Justice is generally cited to maintain the proposition that a state, apart from constitutional limita- tions, may exercise its taxing power on all the objects to which it extends—persons, property, and occupations— to the utmost limit to which it may choose to carry it,— the remedy for any abuse of such power being political not judicial. That principle is a part of the English inheritance equally applicable to the Federal and state governments. Heine v. Levee Commissioners, 19 Wall. 655, 660; State Railroad Tax Cases, 92 U. S. 575, 615; Palmer v. McMahon, 133 U. S. 660, 669. In Meriwether v. Garrett, 102 U. S. 472, the Court said: ‘‘The levying of taxes is not a judicial act. It has no elements of one. It is a high act of sovereignty to be performed only by the legislature upon considerations of policy, necessity, and the public welfare. . . . Having the sole power to authorize the tax, it (the legislative power) must equally possess the sole power to prescribe the means by which the tax shall be collected, and to designate the officers through whom its will shall be enforced.’? And so it has been held that the amount of the tax to be levied is exclusively within the discretion of the legislature. Spencer v. Merchant, 123 U. S. 355; New Orleans v. Dun- can, 2 La. Ann. 186; People v. Fitch, 148 N. Y. 78. An inseparable incident to the power of taxation is that of apportionment. In People v. Brooklyn, 4 N. Y. 419, it was said: ‘‘The power of taxing and the power of appor- tioning taxation are identical and inseparable. Taxes can not be laid without apportionment, and the power of apportionment is therefore unlimited, unless it be restrained as a part of the power of taxation.’’