1 i:^U(^-^^^^ STUDIES IN CONSTITUTIONAL LAW DUE PROCESS OF LAW UNDER THE Federal Constitution BY LUCIUS POLK McGEHEE PROFESSOR OF LAW IN THE UNIVERSITY OF NORTH CAROLINA; LATELY ASSOCIATE EDITOR OF THE AMERICAN AND ENGLISH ENCYCLOPAEDIA OF LAW, SECOND EDITION EDWARD THOMPSON COMPANY NORTHPORT, LONG ISLAND, N. Y. 1906 Copyright 1906 by Edward Thompson Company All rights reserved PREFACE The plan of tlie series to which this volume belongs offers a happy opportunity to trace the application of certain fundamental ideas throughout the extended field of American law. By isolating '' due process of law " and devoting to it a separate N " study " the history and elements of the concep- ^ tion, its relation to other constitutional guaranties, ^ and the part it has performed and is still perform- J»\n ing in the upbuilding of a system of individual rights should emerge more clearly than is possible in a general treatise on constitutional law. If I have failed to effect in some measure these objects, the \), fault is wholly my own. No richer or more inter- im esting field could offer itself to the student or practitioner. / The object of this study is to present the views of the subject entertained by the United States Supreme Court, upon which devolves the final de- p cision of questions of due process both in proceed- v^ ings by the federal authorities and in those by the state. According!}^, the material of this volume is primarily the decisions of that court. An effort has been made to include all the decisions of the court through 199 U. S. Decisions of other jurisdictions have been used only as far as seemed necessary to round out, to the best of my judgment, the discus- sions of the questions involved from an historical or logical point of view. PREFACE ^ Due process of law, under the shaping influence of the decisions of the Supreme Court of the United States, is in course of active growth. Not that the conception is receiving new elements, but its applica- tion is being delimited by the gradual " process of judicial inclusion and exclusion." And this process demands the consideration of far-reaching principles whose estimation is difficult in proportion to their very comprehensiveness. Contemporary public opinion as reflected with more or less exact- ness in the minds and opinions of the judges; the views entertained on economic and moral questions, on the functions of the central government in respect of the states, on the duties of all government with regard to its citizens — all these things tend to be woven into the precedents of our jurisprudence. As yet the decisions on this subject under the National Constitution extend over hardly more than a genera- tion. It will be seen that the task of mapping out the field presented for study is full of difficulty. I have tried constantly to emphasize the general prin- ciples involved in the discussion, and as far as possi- ble to state the views of the court in its own lan- guage. By this course I hope the reader may have at hand the means of weighing and checking the statements made. Owing to complications which could not be fore- seen or avoided, the printing of this volume has been considerably delayed. In the meantime a decision of far-reaching importance on a subject falling within its scope has been rendered by the Federal Supreme Court, — Haddock v. Haddock. 201 U. S. 562. In the Haddock case, by the decision of a bare PREFACE majority of the court, against the dissent of Harlan, Brewer, Brown, and Holmes, JJ., it was finally decided that a decree for divorce rendered in a state other than that of the matrimonial domicil of the parties at the suit of a husband bona fide domiciled in the state of the forum, against the wife who re- mained a resident of the state of the matrimonial domicil, is not a decree in rem. It is, therefore, not a proceeding in which constructive service by pub- lication, in accordance with the law of the forum, against the nonresident defendant imparts any validity to the decree as against her; and such a decree is not, when brought in question outside the state where it is rendered, within the protection of the full faith and credit clause of the United States Constitution. The interesting correlative question of the effect of such a decree within the state of the forum is not examined. Is it valid there as against both parties? This would contradict the reasoning of Pennoyer v. Neff, 95 U. S. 714. Is it valid as to the plaintiff and not against the defendant? This would explode the principle stated by the court in Atherton v. Atherton, 181 U. S. 155, that a wife without a husband or a husband without a wife is '^ unknown to the law; " and would be as if, the relative position of the objects A and B being the question, the position of A with respect to B could be changed without affecting the position of B with re- spect to A. It has been said that the states are still at liberty, upon principles of international comity, to recognize the divorce decrees of sister states, ren- dered under the circumstances of the Haddock case, if they choose to do so. But it would seem that such a recognition, while not affected by the full faith and PREFACE credit clause of the Constitution, must involve a determination by the state of the federal question of what amounts to due process of law under the Fourteenth Amendment. In the view of the writer, the opinions of the dissenting justices embody the correct view of the matters decided, and the holding is to be earnestly regretted. It illustrates strikingly the presence of some of the formative influences above mentioned. L. P. McG. University of North Carolina, Chapel Hill, N. C, July, 1906. vi TABLE OF CONTENTS. CHAPTER I. THE HISTORY AND SCOPE OF THE CONSTITUTIONAL GUAR- ANTY OF DUE PROCESS OF LAW. PAGE Introductory 1 History of the Phrase 3 In English Law Before the Revolution 3 In American Constitutions 17 " Due Process " in the Federal Constitution 17 In the Fifth Amendment 17 In the Fourteenth Amendment 19 Equivalent Phrases in State Constitutions 23 Scope of the Guaranty in English and American Law 24 The English Guaranty No Bar on Parliament 24 American Guaranty Restrains All Governmental Activity. .. 26 Due Process in the Fourteenth and in the Fifth Amendments Compared 3" Relation of Federal Government Toward Due Process by the States 35 Supervisory Powers of the Supreme Court of the United States 35 Direct Enforcement of Due Process by Congress 42 CHAPTER II. '. THE ELEMENTS OF DUE PROCESS. Definitions Collected and Their Relations Shown 49 How the Presence of Due Process Is Tested 53 Historical Test — Positive and Inclusive 53 Intrinsic Test — Both Inclusive and Exclusive 56 Some Fundamental Requisites 58 Equality and Generality of the Law 60 The Requirement Stated and Explained 60 Confiscatory Legislation 64 Confusing Functions of Different Departments of Govern- ment "° Notice and Hearing '3 The Requirement of Notice and Hearing Generally 73 What It Includes under Our Constitutional Guaranties 76 Notice and Hearing Must Be Required, Not Matters of Grace ^^ vii Vlll TABLE OF CONTENTS. CHAPTER III. JURISDICTION AND DUE PROCESS. PAGE Tbe General Requirement of Jurisdiction 85 Judgments in Personam 89 Judgments Against Nonresident Joint Debtors, etc 93 Jurisdiction Over Foreign Corporations 100 Extraterritorial Control in Equity Over Property and Rights of Action 105 Judgments in Rem 107 Extension of Conception of Proceedings In Rem 112 Situs of Personal and Intangible Property as AflFecting Juris- diction 118 Divorce Decrees 122 Bankrupt and Insolvent Laws 130 Jurisdiction as to Crimes and Penalties 133 CHAPTER IV. THE RIGHTS PROTECTED BY DUE PROCESS OF LAW. Life, Liberty, and Property 138 Vested Rights and Due Process of Law 142 Vested Rights and Other Constitutional Guaranties 145 Ex Post Facto Laws and Bills of Attainder 146 Laws Impairing the Obligation of Contracts 148 All Laws Impairing Vested Rights Condemned by Due Process. . 153 What Rights Are Vested or Otherwise 155 Expectancies and Mere Contingencies 157 Curative Acts 158 Procedure 159 What the Term Covers 159 Tribunal Before Which Trial Is Had 162 Procedure in Criminal Cases 164 Proceedings for Contempt 169 Statutes of Limitations 171 Remedies 174 Laws Annexing Conditions or Penalties to Rights of Action or Prosecution 178 Evidence and the Creation of Presumptions 180 CHAPTER V. THE PERSONS PROTECTED BY DUE PROCESS. Corporations 189 Aliens — Immigration Laws 190 Inhabitants of Acquired Territory 197 TABLE OF CONTENTS. ix CHAPTER VI. PAGE THE PARA^IOUNT RIGHTS OF THE STATE AND DUE PROCESS 201 CHAPTER VII. TAXATION. The Taxing Power and Its Extent 208 Limitations on the Taxing Power 215 Property Taxed Must Be Within Jurisdiction 218 Assessment of Property Lying Partly in Several Jurisdictions. 223 Exemptions from Taxation 226 The Public Purpose of the Tax 228 Summary Proceedings for Collection 232 Notice and Hearing 235 The Hearing Actually Provided 242 Local Assessments 246 CHAPTER VIII. THE EMINENT DOMAIN. Its General Nature and Limitations 253 Tlie Public Purpose or Use 255 Various Public Uses Enumerated 256 The Criterion of a Public Use 262 The Necessity of Taking or Appropriation 272 Compensation 278 Necessity for Compensation 278 Property for Which Compensation Must Be Provided 283 Amount of Compensation and Provision for Payment 289 What Amounts to a Taking of Property 291 Notice and Hearing 296 CHAPTER IX. THE POLICE POWER. Characteristics and Limitations 300 Its Exercise Must Be Reasonable 306 Police Power or Eminent Domain as Dependent on Reason- ableness 309 Classification 311 Business Affected with a Public Interest 314 Regulation of Rates 318 Deprivation of Property 328 Private Rights Must Be Involved 328 TABLE OF CONTENTS. PAGE Professions and Offices as Property 333 Limiting the Enjoyment of Property 336 Confiscation of Property 337 Conseqn-ential Damage from Police Regulation 338 Imposition of Expense Connected with Police Regulation 330 Creation of Liabilities Connected with Enjoyment of Property or Occupation 342 Deprivation of Liberty 343 Freedom of Contract and Business 345 I Regulated for Public Morals, Health, or Safety 345 I Business Affected with Public Interest 349 Regulation in the Interest of Certain Classes — to Prevent Oppression 353 Regulation in the Interest of Economic Prosperity and Gen- eral Welfare 357 Exaction of Licenses 363 Committing Legislative or Judicial Functions to Executive .... 365 Notice and Hearing 370 Due Process Does Not Require Jury, and May Be Executive. . . 371 Right to Destroy Before Hearing Limited by Necessity 372 Definition. DUE PROCESS OF LAW. CHAPTER I. THE HISTORY AND SCOPE OF THE CONSTITU- TIONAL GUARANTY OF DUE PROCESS OF LAW. INTRODUCTORY. DUE PROCESS OF LAW, as the meaning of the chapter words has been developed in American de- '■ — cisions, implies the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing.* The phrase is and has long been exactly equivalent to and convertible with the older expression ''the law of the land." 2 1 In effect, this description agrees with that given by the court in Chicago, etc., R. Co. v. Chicago, 166 U. S. 226. 2 See infra, p. 16. We shall see that " due process of law " appears in English law at least as early as 1354, when we find it used in an Act of Parlia- ment, 28 Edw. Ill, c. 3, and in a petition to Parliament by the Earl of Arundell for the removal of the attaint on his father, 2 Rot. Pari. 256, 257. See infra, pp. 9, 65. It is perhaps worth noticing that the writ of novel disseisin, in use since about A. D. 1166, charged the tenant with having disseised the demandant " unjustly and without a judgment," in juste et sine judicio. Glanville, lib. xiii, c. 33. " As to the words sine judicio, which are equivalent to the absque ordine judiciario of the canonists, we may translate them by ' without process of law.' " 2 Poll, and M. Hist. 52. For earlier uses of these phrases in English and canon law, see 2 Poll, and M. Hist. 47, note 4. Among other instances is DUE PROCESS OF LAW Chapter The basis of due process, orderly proceedings '■ — and an opportunity to defend, must be inherent in In various legal terns. ie"glfsy°s"^ every body of law or custom as soon as it advances beyond the stage of uncontrolled vengeance. In- deed, the emphasis placed on a literal adherence to customary rules of procedure is one of the most marked features of primitive law, and, with the ad- vance of civilization and the application of rejflection to old collections of custom, the principle of notice and an opportunity to defend would take its place as a part of the jus gentium, to become later the law of nature,^ or the law of God.-* The idea was familiar to the Jewish law,^ and in the Roman law may be discovered underlying the conception of ''justice," as ''the steadfast and continued disposition to render to every man his rights,"*^ while two lines from Seneca, " Qui statuit aliquid, parte inaudita altera, Aequum licet statuerit, baud aequum f uerit," ' have become, through Lord Coke,^ a maxim of Eng- cited Leges Benrici, 74, 1 (about A. D. 1115), where, in connection with homicide, occurs qui injuste vel sme judicio occisi. 3 Y. B. 9 Edw. IV, 14, pi. 9. 4 Rex V. Cambridge University, 1 Stra. 558, 567. 5 " Doth our law judge any man before it hear him and know what he doeth?" John vi. 51. « The opening words of the Institutes are : Justitia est constans et perpettia voluntas jus suum cuique trihuere. " Due process of law," says Mr. Justice Matthews, " in spite of the absolutism of Continental governments, is not alien to that code which survived the Roman Empire as the foundation of modern civilization in Eu- rope, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere." Hurtado v. California, 110 U, S. 516. 1 Seneca, Medea, 199, 200. The lines may be rendered: Who hath adjudged of aught, one side unheard. Just though the judgment, were himself unjust. sBagg's Case, 11 Coke 99n.. DUE PROCESS OF LAW lish law,^ the aphoristic expression of the soul of Chapter due process. '- But whatever may be the case in other systems, due process is fundamental in American law, and under the Constitution of the United States, as under the constitutions of the individual States, no person can be deprived of life, liberty, or property without due process of law, or except by the law of the land. This book is confined to an investigation of the vo"iumef°* requirements of due process in the Constitution of the United States, and the treatment of similar clauses in State constitutions will be incidental merely. As we shall see, several of the elements of this general characterization have been developed by the courts, in seeking the real content of due process of law as the phrase was adopted in our constitutions from the English law. But there the same exigency for determining the latent meaning of the words did not exist. It was used as equivalent to the law of the land, and imported every due and regular proceeding in a cause in accordance with statute or common law, implying notice and hearing. HISTORY OF THE PHEASE. In English Laiv Before the Revolution. The 39th chapter of the Magna Carta of King ^^agn^ John^ provides that ''No freeman shall be taken, ''•^'' 94 Bl. Com. 282; Broom's Legal Maxims, 8th Am. ed., 113; Bona- ker V. Evans, 16 Q. B. 162, 71 E. C. L. 162; Hovey v. Elliott, 167 U. S. 409. 1 Magna Carta, 17 John, 1215, e. 39. The translation is that of ' Bishop Stubbs, 1 Const. Hist. Eng. 577. DUE PROCESS OF LAW C?hapter or imprisoned, or disseised, or outlawed, or exiled, '■ — or any wise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of The confusion running through many modern commentators and writers as to the form and numbering of this provision of Magna Carta justifies a few words of explanation. The substance of the provision forms chapter 29 of the Articles of the Barons, which was a memorandum of the heads of the agreement between John and the Barons, from which the Great Charter was afterwards reduced to formal shape. In this instrument the chapter stood : " Ne corpus liberi hominis capiatur, nee imprisonetur, nee dissaisietur, nee utla- getur, nee exuletur, nee aliquo modo destruatur, nee rex eat vel mittat super eum vi, nisi per juditium parium suorum vel per legem terrae." The same provision forms in the reissues of the Great Charter by Henry III, c. 32 in the first reissue, 1 Hen. Ill, 1216; c. 35 in the second reissue, 2 Hen. Ill, 1217; c. 29 in the third reissue, 9 Hen. Ill, 1225. The Charter was originally issued without division into chapters or paragraphs, though the Articles of the Barons was divided into separate paragraphs unnumbered. The division into numbered paragraphs was introduced in the statute books for convenience of reference. Thompson, Magna Carta, 159, 445. To a comparatively recent period, the only copy of the Charter printed in the statutes was that of 9 Henry III, and this was the copy printed and commented on in the Second Institute by Lord Coke. Consequently, it is easy to understand how this provision of Magna Carta was usually referred to as chapter 29. In more mod- ern times, and especially since the beautiful edition of the Great Charter in all its various forms prepared by Blackstone from a careful collation of the manuscripts available to him and issued by the Clarendon Press in 1759, the practice of referring to the original Charter has become usual. The amount of confusion on these matters in quarters where it would least be expected is surprising. See Cooley's Const. Limit., 6th ed., 429, and the address of Chief Judge Parker, of the New York Court of Appeals, before the Bar Association of Georgia, re- printed in the American Law Review for 1903. 37 Am. Law Rev. 643, It may be added that the clause " nulli vendemus, nulli negabi- mus, aut differamus, rectum aut justicium," which immediately fol- lows in the Great Charter, is numbered as a separate chapter in the earlier issues (e, 40, 17 John; c, 33, 1 Hen, III; c, 36, 2 Hen. Ill), and its equivalent in the words " ne jus vendatur vel diflferatur vel velitum sit" is chapter 30 of the Articles of the Barons, In the third reissue of Henry III, this provision forms a part of chapter 29. DUE PROCESS OF LAW his peers' orjby the law of the land." This provi- Chapter sion appears in the reissues of the Great Charter, '■ — with the insertion in the second (2 Hen. Ill, A. D. 1217) and third (9 Hen. Ill, A. D. 1225) charters, of Henry III of the words, "of his freehold or liberties, or free customs," so that the clause in its final form is: "No freeman shall be taken or im- prisoned or disseised of his freehold, or liberties, or free customs, or outlawed, or exiled," etc.^ The once prevalent view of this chapter w^s that it was in tended to be a ^aranty of trial bv -j]^rv and due process of hiw. We now Tmn w that histor- ically this view was incorrect, that the guaranty of "the lawful judgment of peers" referred only to a feudal right, to which trial by jury was utterly hos- tile ; ^ that the requirement of conformity to the "law 2 Chapter 29 stands then in the original text of 9 Hen. Ill: "Nullus liber homo capiatur vel imprisonetur aut disseisietur de libera tenemento suo vel lihertatihus, vel liberis consuetudinibus suis, aut utiagetur, aut exuletur, aut aliquo modo destruatur,- nee super eum ibim^jg^nec super eum mittemus, nisi per legale judicium parium suorum,fveI /per legem terrae." The words added in the second and third charters of Henry III are italicized. 3 For judicium parium, see 1 Stubbs' Const. Hist. 578, and note 1 ; 1 Poll. & M. Hist., 2d ed., 173 and note, 594; Pike, Const. Hist. House of Lords, 169; McKechnie, Magna Carta, 158, 438, et seq. " For a legal instrument to call the verdict of recognitors a judg- ment would have been as gross a blunder in 1215 as it would be at the present time." 1 Poll. & M. Hist., 173, note. For the identification of judicium parium with jury trial, see Bagg's Case as reported 1 Rolle's Rep. 225 (where it is said: "En cest case, Bagg nest disfranchise et ouste de son liberties per pares, hoc est, per jurie, nee per legem terrae " ) ; 3 How. St. Tr. 152 (quoted below, p. 15) ; 4 Blackst. Com. 349, etc. This old view, so universally repudiated by modern scholars, is reiterated in the opin- ions of the Supreme Court of the United States by Harlan, J., in Thompson v. Utah, 170 U. S. 349, and in Maxwell v. Dow, 176 U. S. 609. The true view was given long before by Matthews, J., in Hur- tado V. California, 110 U. S. 529. Heal judicium parium survived as DUE PROCESS OF LAW Chapter of the land" was intended as a guaranty against certain arbitrary proceedings on the part of the king, the enforcement of execution without any judg- ment, or after a mere pretext of judgment ; and that the most that was guaranteed was judgment by some of the known contemporary methods of trial, ordeal, battle, or compurgation.^ But Magna Carta came in after ages to be regarded with almost supersti- tious reverence. It was practically taken out of the category of statutes, in which class its place was technically fixed by the confirmatio cartarum of 1297, and became *'a sacred text, the nearest ap- proach to a 'fundamental statute' that England has ever had."^ Such a document, looked to by each succeeding generation as a living guaranty of rights, is naturally interpreted in each age according to the needs of the time. The broad construction which was given to the 39th chapter by the statesmen and lawyers of the seventeenth century during the con- stitutional struggles with the Stuarts, became fixed in the commentaries of Coke and subsequent writers, a privilege of the peers alone. 2 Coke's Inst. 48. At an earlier time it included all classes, except villains, even Jews and burgesses. 1 Poll & M. Hist., 2d ed., 173, note; McKechnie, Mag. Carta, 4.38, 448. 4 For per legem terrae, see Thayer, Prelim. Tr. on Evi., 199, 201; • McKechnie, Magna Carta, 442; Pike, Const. Hist. House Lords, 170. Bigelow, Hist. Proc, 155, note, says: "As to the expression per legem terrae, which has caused so much discussion in the law books, and generally been interpreted by the courts to mean that defendants in criminal courts must be tried by j ury upon presentment or indict- ment, it may be observed that jury trial in criminal cases had n ot come into use at this tirne , except as a matter of special grace on the part of the king. . . , The expression per legem terrae sim- ply required judicial proceedings, according to the nature of the case, the duel, ordeal, or compurgation in criminal cases, the duel, witnesses, charters, or recognition in property cases." 5 1 Poll. & M. Hist., 2d ed., 173. DUE PROCESS OF LAW and in the period of our Revolutionary War was Chapter woven into the very texture of American constitu- '■ — tional law. The materials on which the seventeenth century lawyers seized for their interpretation of the Char- ter take us back to the thirteenth century contests between the King's Council and Parliament. For a long period after 1215, the English Consti- be[wff!f^ tution was still in a fluid state, while governmental fnd'^™^°* powers and machinery were slowly evolving toward °""" * the familiar type of later times. By the fourteenth century, the King's Council, whose functions were chiefly executive and judicial, had become separated from Parliament. But the powers of each were ill- defined, and the Parliament throughout that century was continually petitioning against the vague and in- definite jurisdiction of the Council. With the acces- sion of the House of Lancaster at the end of the fourteenth century, both Parliament and the Coun- cil passed largely under the control of the leading nobles, and such protests became less common. Finally, with the coming of the Tudors, the loose ju- risdiction of the Council was in a measure defined and vested in a sort of committee, which became known as the Court of Star Chamber. ^ The later history of the Council does not concern us, but the petitions of the fourteenth century Parliaments, fSOO--^^^ which sometimes received the King's assent and so became laws, were seized on by the seventeenth cen- tury lawyers ns internrptations o f ^^Ipw nf t he land/ ' and ^^ due p rocess of law." "^ 6 See 1 Steph. Hist. Crim. Law, c. vi, p. 166; 1 Holdsworth, Hist. Eng. Law, c. vi, p. 264. 7 This series of statutes and petitions is quite fully given in the 8 DUE PROCESS OF LAW Chapter I. Fourteenth century statutes. With the lapse of a century after its passage, the 39th chapter of Magna Carta had lost the mean- ing it had for its contemporaries. The King's courts, administering the royal justice, had become the re- positories and guardians of the "common law;" their methods of procedure were standards, definite and fixed; and the people saw in the Charter a giiar- anty of those verv methods which the barons had infeiiided to curtail. It was natural then that in the complaints against the Council, the guaranty m this Charter of the "law of the land" should be continu- ally invoked. These complaints were founded on arbitrary im- prisonments, deprivations of property, or inter- ference with the ordinary administration of justice.* In 1331, there is an enactment (Stat. 5 Edw. Ill, c. 9) that "No man from henceforth shall be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seized into the King^s hands, against the form of the Great Charteriand the law of the land. ' ' Again, in 1350, the speech of Sir Edward Littleton before the House of Lords in the debates which followed the case of the Five Knights. See 3 How. St. Tr. 86-89, 122, 123. See, also, 2 Stubbs' Const. Hist. 637-639; 1 Holdsworth's Hist. Eng. Law, 267-269; 1 Steph. Hist. Crim. Law, 169 et seq. 8 The petition of 1368 recites : " that many of your commons are hurt and destroyed by false accusers, who make their accusations more for their revenge and particular gain than for the profit of the King, or of his people ; and those that are accused by them, soma are taken and others are pade to come before the King's Council by writ or other commandment of the King, upon grievous pains, con- trary to the law." 3 How St. Tr. 89, 122. In 1363, a statute, 37 Edw. Ill, c. 18, declared that divers people make false suggestions to the King himself, as well for malice as otherwise, whereat the King is often grieved and divers of the realm put in damage, against the form of the Great Charter. 3 How. St. Tr. 88. DUE PROCESS OF LAW Commons petition that "No freeman be put to an- Chapter swer for his freehold, nor for anything which touches life and member, fine or ransom by information be- fore the Council of our lord the King, nor before any of his ministers save by process of law used in that behalf in times past." The King grants the pe- tition and promises that proceedings shall be "by process of law ; ' ' but adds that in any matter which touches life or limb, contempt or excess, things shall be as has been customary.^ Statute 25 Edw. Ill, c. 4 (A. D. 1351), recites the provisions of "the Great Charter of the franchises of England that no free- man shall be imprisoned, nor put out of his freehold, nor free custom, unless it be by the law of the land," and enacts that "From henceforth none shall be taken by petition or suggestion made to our lord the King or his Council, unless it be by presentment or indictment of his good and lawful people of the same neighborhood, where such deeds be done, in due man- ner, or by process made by writ original at the com- mon law, nor that none be ousted of hisi franchises, nor of his freehold, unless he be duly brought in to answer and forejudged of the same by the course of the law." 1 Three years later, it is enacted (Stat. 28 Edw. Ill, c. 3), "That no man, of what state or condition soever he be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indict- ed, nor put to death, without he be brought in to an- swer by 4u^-p=rocess of law." In 1362, in a petition, the Commons recited the existing guaranties as fol- 9 2 Rot. Pari. 228. See also 1 Steph. Hist. Cr. Law, 169; I Holds. Hist. Eng. Law, 268; 3 Reeves' Hist. Eng, Law (Am, ed. 1880), 159. 1 Rot. Pari. 36 Edw. III. See 3 How. St. Tr. 88, 122. I. 10 DUE PROCESS OF LAW Chapter lows : ''Whereas it is contained in the Great Char- ter and other statutes that no man be taken or im- prisoned by special command without indictment and other process to be made by the law," etc.; ^ but the King only answered that he is pleased "if any man find himself grieved, that he come and make his com- plaint, and right shall be done unto him. ' ' A statute of the next year (Stat. 37 Edw. Ill, c. 18) recites the charter thus: "Though it be contained in the Great Charter that no man be taken or imprisoned, or put out of his freehold without process of law." ^ In 1368 the House of Commons prayed that no man be put to answer without presentment before jus- tices, or a matter of record, or by due process and original writ according to the ancient law of the land. The King granted the petition "because this article is an article of the Great Charter." Thus, in the statutes and petitions of the Parlia- ments of Edward III the phrases "process of law" or "due process of law" have come to be used as equivalent to "law of the land" in the Great Char- ter, or perhaps for the whole phrase per legale ju- dicium parium suorum vel per legem terrae^ In 2 See 3 Reeves, Hist. Eng. Law (Am. ed. 1880), 159. Of this statute Sir Edward Coke said: "For the true sense and exposition of these words [by the law of the land] see the statute 37 Edw. Ill, c. 8 [18], where the words 'by the law of the land' are rendered ' without due process of law.' " 2 Inst. 50, 3 2 Rot. Pari. 295, 42 Edw. Ill ; Stat. 42 Edw. Ill, c. 13. See 3 How. St. Tr. 89, 122. ♦ This is in agreement with the suggestion that the phrases of Magna Carta express one sinplo idea and not two district ones. " In mediaeval Latin, vel will often stand for and. . . . The wording of ithe clause leaves open the question wtiether a man can ever be imprisoned or disseised by the law of the land without having had the judgment of his peers." 1 Poll & M. Hist., 2d ed., 173. note. DUE PROCESS OF LAW 11 the earliest instances it is used in contradistinction Chapter to information, or includes both common-law x^rocess and indictment or presentment. Its wider meaning is apparent in the later instances. With Edward's reign did not cease the acts of Sfve — King and Council against which Parliament had m'^nt'with- • °"* cause. struggled.^ The parliamentary protests which con- tinued into the fifteenth century throw no further immediate light on "due process of law," but they are of interest in their bearing on the seventeenth century constitutional contests which finally settled the meaning of that phrase. In 1389 we find the King, in answer to a remonstrance of the Commons against writs quihusdam certis de causis, asserting his prerogative, ''as his progenitors had done be- fore him," to imprison subjects by force of his special mandate merely.^ Ten years later, a petition setting 13^*^ forth that cases are removed before the Council to be tried before enemies of the parties and praying that the practice may cease, receives the royal acquies- cence with the saving clause "unless one party is rich and the other poor so that justice can not otherwise be done."*^ In those rude days when "the good old rule, the simple plan" prevailed, the rights of the poor and weak against the rich and powerful needed greater powers for their enforcement than the ordi- nary courts had at their disposal, and after the troubles of the wars between the Houses of Lancas- 5 1 Holdsworth, Hist. Eng. Law, 269 ; 2 Stubbs' Const. Hist. 638. « 1 Holdsworth, Hist. Eng. Law, 269. 7 1 Steph. Hist. Crim. Law, 170. See also the petition of the Commons and the answer of the King, through his council, in 2 Rich. II, in Miss Schofield's Court of Star Chamber, xxvii (University of Chicago ) . 12 DUE PROCESS OF LAW Chapter ter and York, this branch of the Council's jurisdic- tion was exercised by Henry VII 's new Court of Star Chamber without protest. Nor did the prerog- ative of the King, exercised through his council, to imprison on special mandate only, bring forth any general protest, as it was used by the wise and mas- terful Tudor sovereigns, who knew well the point be- yond which the people would not bear interference with their rights, sfuarts With the breach between the Stuart kings and ment — '^' thc Parliament in the early seventeenth century, the "Due proc- ... . , fnter^"^"^ Crowu's prcrogativc to imprison by special mandate preted. becamc of vital importance, and was challenged as not in accordance with the law of the land or due process of law. Charles I, unable to obtain from Parliament the supplies needed for the jDrosecution of his disastrous Continental wars, resorted to the expedient of a forced loan. Some gentlemen, the historic ''five knights," who refused pa}^nent of this illegal exaction, were by the King's command, with- out further cause named in the writ, thrown into prison. The judges, upon habeas corpus brought to secure their release, refused to interfere,^ basing their action particularly on a precedent of Eliza- beth's reign, when such an imprisonment had been held not to be illegal.^ The attitude of the country, however, was very different when this prerogative was asserted in an isolated case by a strong and respected sovereign, and when it was employed as a means of enforcing a system of irresponsible government by a discredited king. These events 8 3 How. St. Tt. 151-159. "Resolution of Judges, Anderson 297. DUE PROCESS OF LAW 13 produced prolonged debates in Parliament "on the Chapter liberty of the subject," in which the whole mat- ter was thoroughly threshed over with a wealth of learning.^ The formation of the Petition of Right in the Commons under the leadership of Sir Edward Coke was the result, and that great constitutional document became a statute of the realm by the grudging assent of the King.^ This instrument re- cites various guaranties of the rights of the subject and acts of the King declared to be in violation there- of, which show the meaning given to the guaranties. Chapter 29 of the Magna Carta of 9 Hen. Ill, and Stat. 28 Edw. Ill, c. 3 (where the words "due process of law" are used) are recited and de- clared to be violated by imprisonment of subjects "without any cause showed," "but that they were detained by your Majesty's special command, signi- fied by the lords of your Privy Council;" Stat. 25 Edw. Ill, c. 4, is given, and declared to be infringed by commissions authorizing trial by martial law.^ 1 See 3 How. St. Tr. 1-234. The question of the personal rights of Englishmen was elaborately argued in conference with the House of Lords by a committee of the Commons composed of most eminent lawyers. The committee con- sisted of the ex-chief justice of the King's Bench, Sir Edward Coke; John Selden, the celebrated antiquary and profound lawyer; Edward Littleton afterwards Sir Edward, Chief Justice of the Common Pleas and Lord Keeper; and Sir Dudley Digges. The committee divided the argument among +hemselves, and the speeches of Little- ton and Selden are particularly valuable for an historical review of the statutes and casas. 3 How. St. Tr. 86-126. 2 Stat. 3 Car. I, c. 1 ; 5 Stat. Realm 23. 3 Judge Cooley, Const. Limit., 6th ed., 429, note, gives as a textual quotation from the body of the petition a sentence wherein the phrase " due process of law " is used. This is not found in the petition aa printed in the Statutes of the Realm. Mr. Guthrie follows him. Guthrie, Fourteenth Amendment, 69. 14 DUE PROCESS OF LAW Interpreta tion em- bodied in Coke's Second Institute. Chapter rpj^^ construction thus put upon these acts is con- firmed for the future by the King's assent to the prayer "that no freeman, in any such manner as is before mentioned, be imprisoned or detained,'* . . . and that the aforesaid commissions, for pro- ceeding by martial law, may be revoked and an- nulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or jDut to death contrary to the laws and franchises of the realm." The reasoning of the English statesmen of the seventeenth century about the use of the term ' ' due process of law," is contained in the hearing on ha- beas corpus of the Case of the Five Knights, and in the debates on the Petition of Right. In all the 4 " And whereas also by authority of Parliament in the five-and- twentieth year of King Edward III, it is declared and enacted, that no man shall be forejudged of life or limb against the form of the Great Charter and the law of the land; and by the said Great Char- ter and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the said realm or by Acts of Parliament; and whereas no offender of what kind soever is exempted from the proceedings to be used and punishments to be inflicted by the laws and statutes of this your realm ; nevertheless of late divers commissions under your Majesty's Great Seal have issued forth, by which certain persons have been assigned and appointed commis- sioners with power and authority to proceed within the land, accord- ing to the justice of martial law, against such soldiers and mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial." Petition of Right, 7. See McKechnie, Magna Carta, 442: The Story of Habeas Corpus, by Edward Jenks, 18 L. Quart. Rev. 75. DUE PROCESS OF LAW 15 proceeding to curb the irresponsible doings of Chapter Charles, Sir Edward Coke took a leading part, and the often-quoted passage of his Second Institute, subsequently published, commenting on per legem terrae, is but an abstract of the, views expressed by himself and his associates during that struggle and reflected in the Petition of Right. Coke says that by ''the law of the land" is meant "the common law, statute law, or custom of England, ' ' ^ and in an- other place he adopts the words of the statutes of 1362 and 1350: "For the true sense and exposition of these words [per legem terrae], see the statute 37 Edw. Ill, c. 8 [18], where the words 'by the law of the land' are rendered 'without due process of law,' for there it is said, though it be contained in the Great Charter, that no man be taken, impris- oned, or put out of his freehold without process of law ; that is [and he takes the explanation from Stat. 25 Edw. Ill, c. 4] by indictment or presentment of good and lawful men where such deeds be done, or by writ original of the common law."® In the de- bate in Parliament on the Petition of Right, to an argument of the attorney general "that per legem terrae in Magna Carta (which is the foundation of this question) can not be understood for process of law and original writs ; for that in all criminal pro- ceedings no original writs are used at all," and that ' ' the statute cited by the Commons makes process of law and writ original all one," the Managers for the Commons reply "that they do not intend original writs only by law of the land, but all other legal B2 Inst. 46. 8 2 Inst. 50. 16 DUE PROCESS OF LAW Other con ceptions gravitate to "due process." Chapter process, wliicli comprehends the whole proceedings of law upon cause, other than trial by jury, judicium parium, unto which it is opposed." Then follows an examination of the old statutes, and the conclu- sion is that the expressions in all of them ''import any due and regular proceedings of law upon a cause, other than the trial by jury. ' ' ^ The equivalence of the two phrases ''law of the land" and "due process of law," assumed by Coke and his associates from the old statutes of the four- teenth century, has been universally stated upon his authority by American courts, and has become an established rule of interpretation.^ While the constitutional conception of "law of the land" and "due process" was thus being built up, it was to a greater or less extent assimilating certain other fundamental ideas whose origin was widely different. Prominent among them was that of\notice and hearing before condemnation, which was said by the mediaeval chancellors to be required by "the law of nature," and has frequently siuce been based on the equivalent conceptions of the law of God or natural justice or reason.^ As early as the fourteenth century the idea was advanced, though only by the victims, that a bill of attainder without any opportunity for hearing granted to the person attainted was not in accordance with the law ' 3 How. St. Tr. 152. 8 Murray v. Hoboken Land, etc., Co., 18 How. (U. S.) 272; Davidson v. Xew Orleans, 96 U. S. 97; Greene r. Briggs, 1 Curt. (U. S.) 311; Normal School Dist. v. Blodgett, 15.5 111. 441. See the numerous additional citations in 10 Am. and Eng. Eneyc. of Law (2d ed.) 290. See infra, p. 73. DUE PROCESS OF LAW 17 of the land or due process of law.^ And in 1616, it Chapter was held that proceedings on the part of a munici- '■ — pality which deprived a freeman of the freedom of the city without hearing was open to this objection.^ In all these instances the wider generalization is gradually emerging that all purely arbitrary pro- ceedings whereby one is de^Drived of personal rights are contrary to the law of the land or due process. At this stage of its growth the conception was ^"^Am'e"?- adopted during the formative period of our history tuL'^ns"'"" into the Constitution of the United States and into the constitutions of the several States, where it has had a vigorous development, and the courts have from time to time added essential characteristics which they have held to be implied in the concep- tion itself. '^Due Process'* in the Federal Constitution. In the Fifth Amendment. In the Federal Constitution the words **due pro- S^piffh^" cess of law" occur in but two places. The first is in mSu"*^" the Fifth Amendment to the Constitution, one clause of which provides that no person shall ''be deprived of life, liberty or property without due process of law. ' ' The other provisions of this amendment guar- antee trial by jury in cases of capital or infamous crime, and forbid double jeopardy, compelling a per- son to be a witness against himself,/or the taking of private property for public use without just com- pensation. / , ; The first ten amendments to the Federal Constitu- 1 See infra, p. 65. sBagg's Case, 11 Coke 99a. See infra, p. 74. 2 18 DUE PROCESS OF LAW Chapter 1. Adoption of first ten amend- Scope of first ten amend- ments. tion were a concession to the fears of a generation which had taken part in the Revolution. The strug- gle with England for rights, held to be the sacred inheritance of all free English subjects, had left the States and the people of the country keenly alive to the value of liberty and profoundly jealous and dis- trustful of centralized power. The feeling was wide- spread that under the Constitution as proposed the States were weakened and a place left for encroach- ments which might in time end in their absorption into the Federal Government. Under these circum- stances ratification of the Constitution by the requi- site number of States was secured only by an understanding that amendments would be adopted declaring the rights of the people and restricting the powers of the general government. In pursuance of this understanding a proposition to amend the Con- stitution was brought forward by Mr. Madison in the First Congress, and the first ten amendments were framed, and ratified by the requisite number of States in December, 1791.^ These amendments do not affect the powers of the States in respect to their own people, but limit the powers of the general government alone.^ *'The Constitution," said Chief Justice Marshall in 1833, *'was ordained and established by the people of the United States for themselves, for their own govern- 3 See, for a sketch of the events leading to the adoption of the first ten amendments, Jackson v. Wood, 2 Cow. (N. Y. ) 819, note; O'Neil V. Vermont, 144 U. S. .323, per Field, J., dissenting, at p. 361. * Spies V. Illinois, 123 U. S. 131, 166 (1887). Perhaps the ear- liest adjudication to this effect was in 1824 in a nisi prius decision of the New York Supreme Court by Judge W^alworth, afterwards the Chancellor of the State. Jackson v. Wood, 2 Cow. (N. Y.) 819, note. DUE PROCESS OF LAW 19 ment, and not for the government of the individual ciiapter States. Each State established a constitution for itself, and in that constitution provided such limita- tions and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their inter- ests. The powers they conferred upon this govern- ment were to be exercised by itself; and the limita- tions on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by this instrument. They are limitations of power granted in the instrument it- self; not of distinct governments framed by differ- ent persons and for different purposes."^ This construction governs, of course, the applica- tion of the Fifth Amendment, and the provision for ''due process" which it contains.^ In the Fourteenth Amendment. In very different circumstances of our national p^^u'^r^te^th life, was adopted as a part of the Federal Constitu- m"n?ii" tion the Fourteenth Amendment, in which the phrase tioSf "due process of law" occurs again. This amend- ment belongs to the group, the Thirteenth, Four- teenth, and Fifteenth Amendments, by which the re- sults of the struggle of the Civil War were secured and rendered permanent. By the Thirteenth Amendment, which declares that "neither slavery 5 Barron v. Baltimore, 7 Pet. (U. S.) 243, 247. «Munn V. Illinois, 94 U. S. 123; Kelly v. Pittsburgh, 104 U. S. 78; Hallinger V. Davis, 146 U. S. 319; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. 20 DUE PROCESS OF LAW Chapter nor involuntary servitude, except as a punishment '■ — for crime where the party shall have been duly con- victed, shall exist within the United States, or in any place within its jurisdiction," the freedom of the negro race was assured, but their rights were still at the mercy of State legislation. Some of the former slave States passed laws especially directed against the negro race, and imposing various disa- bilities on former slaves. In some instances they were denied the right to appear in the towns, except in the capacity of menial servants. They were de- nied the right to purchase land. They were not per- mitted to testify in cases where a white man was a partyJ It was felt that national protection was nec- essary for the f reedmen, and^the Fourteenth Amend- ment was proposed to the States, and declared rati- j&ed in July, 1868. Its first section is as follows: *'A11 persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and 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 person of life, liberty or property with- 1 out due process of law ; nor deny to any person with- in its jurisdiction the equal protection of the laws.'f/ Thus it will be seen that the Fourteenth Amend- ment was broader in its scope than the wrongs by which it was occasioned. ''It had its origin in a purpose to secure the newly made citizens in the full Extends to all classes. t,.^7 SlaiifThter-House Cases, 16 Wall. (U. S.) 36, the court by Miller, J. See also Wilson, Hist. Am. People, vol. 5, p. 18 et seq.; Rhodes, Hist, U. S. from Compromise of 1850, vol. 5, p. 18. DUE PROCESS OF LAW 21 enjoyment of their freedom," said Mr. Justice Chapter Field, ^^but jt is in no respect limited in its operation to them^ It is universal in its application, extend-/ c^^ ing its protective force over all men, of every raceV V^Yt^ J, / •^ and color, within the jurisdiction of the States, ) T\ throughout the broad domain of the Republic."^ '^^ "All history," continued the learned justice, "shows that a particular grievance suffered by an individual or a class, from an oppressive or defective law, or the absence of any law touching the matter, is often the occasion of and cause for enactmelits, constitu- tional or legislative, general in their character, de- signed to cover cases not merely of the same, but all cases of a similar nature. ,, The wrongs which were supposed to be inflicted upon or threatened to citi- zens of the enfranchised race, by special legislation directed against them, moved the framers of the amendment to place in the fundamental law of the nation provisions not merely for the security of those citizens, but to insure to all men at all times and in all places due process of law and the equal protec- tion of the laws. Oppression of the person and spoliation of property by any State were thus for- bidden, and equality before the law was secured to all." S^ — ^ That "due process of law" under this amend- ' ment is a right of all classes of persons is now the veriest commonplace, but in the Slaughter-House Cases, in 1872, the first instance in which this amend- ment came before the Supreme Court, the majority of the court seemed inclined to give it a much nar- 8 Santa Clara County v. Southern Pac. R. Co., 18 Fed. Rep. 385, 399 (1883). 22 DUE PROCESS OF LAW i r ill MW >»IM. I | ^(|M i ,M il «M |ll W«l l * WM'''"« "i> 'W«'*' " *' '* «»*^-^''^ thC Fifth were not considered as includ ed in ''due process of ^^^^^"'^■ law" which is contained in the same list with them. One of these rights is indictment by a grand jury for capital or infamous crimes. In Hurtado v. California,'^ when the legality of a conviction of murder upon an information filed by the district attorney according to the constitution and laws of California was questioned upon the ground that the person convicted had been deprived of the due proc- ess of law to which he was entitled under the Four- teenth Amendment, the Supreme Court of the United States decided against this contention. ''AVe are to construe this phrase in the Fourteenth Amend- ment," said the court, "by the usiis loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes spe- cific and express provision for perpetuating the in- stitution of the grand jury so far as relates to prose- cutions for the more aggravated crimes, under the laws of the United States. . . . According to a recognized canon of interpretation, especially ap- plicable to formal and solemn instruments of consti- tutional law, we are forbidden to assume, withou t clear reaso ri in ihp. nnntrarv, thnt any part of this. most important ai" ^T^<^|ppTi+. is snnerflnnns. The nat- ural and obvious inference is, that in the sense of the Constitution, 'due process of law' was not meant 7 110 U. S. 516. 32 DUE PROCESS OF LAW Chapter or intended to include, ex vi termini, the institution 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 purpose 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." ^ro?ess" ^^^ identity of the meaning of the phrase in in^tiie''^^ the two amendments is here asserted for reasons Fourteenth whlch would sccm to exclude equally its extension Amend- ments? to any of the rights enumerated in the Fifth Amend- ment.^ This view of the effect of the Fourteenth Amendment is developed in a later case, when the court, after referring to Hurtado v. California as having pointed out that ''due process" was used in the same sense in both amendments and with no greater extent of meaning in the Fourteenth, pro- ceeded: ''As due process of law in the Fifth Amendment referred to that law of the land which derives its authority from the legislative powers con- ferred on Congress, by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the princi- ples of the common law, so in the Fourteenth Amend- ment, the same words refer to that law of the land in each State which derives its authority from the inherent and reserved powers of the State exerted 8 See dissenting opinions of Tlnrlnn, J., in Hnrtado V. California, 110 U. S. 538; and in Maxwell v. Dow, 176 U. S. 581. DUE PROCESS OF LAW within the limits of those fundamental principles of Chapter liberty and justice which lie at the base of all our civil and political institutions. ' ' ^ But in Chicago etc., R. Co. V. Chicago,^ decided in 1897, it was de- termined by the same court that due process of law does not i^ermit a State to approiDriate private prop- i t erty for a public use without just compensation, al- /jZi ^ thougli tile Fifth Amendment specifically provides -2^^^^ for compensation in such cases. The conclusion in this case (in which the opinion SfFjJ,*^"^ was rendered by Mr. Justice Harlan, who dissented Amend- in Hurtado v. California) seems to be opposed to the "oTdepend on prior reasoning quoted above, and in order to harmonize If^^^""^' the cases we are led to infer that the nature of the right denied,^ whether or not that right is guaran- teed by the Fifth or any other of the earlier amend- ments restraining federal action, determines whether due process is present as required by the Fourteenth Amendment. This inference is entirely in harmony with all that is said in Chicago, etc., R. Co. v. Chi- 9 In re Kemmler, 136 U. S. 436. 1 166 U. S. 226, followed in Norwood v. Baker, 172 U. S. 269, 277; San Diego Land, etc., Co. v. National City, 174 U. S. 754. In Fallbrook Irrigation Dist. V. Bradley, 164 U. S. 112, there is a dictum by Mr. Justice Peckham, who delivered the opinion of the court, which indicates that he considered the absence of compensa- tion could not be relied on as against the taking of private property by the State if the taking was for a public purpose. 2 In Dreyer r. Illinois, 187 U. S. 85, the question whether double jeopardy (which is forbidden by the Fifth Amendment) is prohibited by the due process clause of the Fourteenth Amendment, is raised but not determined. That the infliction of cruel and unusual pun- ishment, forbidden to the United States by the Eighth Amendment, is not forbidden to the States by this clause of the Fourteenth Amend- ment, provided equality of punishment is preserved, is inferable from In re Kemmler, 136 U. S. 436. 3 I 34 DUE PROCESS OF LAW ' Chapter 'cago, where the reasoning is as to the fundamental — ■ character of the right to compensation. That the specific mention of rights in the first eight amendments has no necessary connection with their inclusion in or exclusion from the first section of the Fourteenth Amendment appears also from a consideration of the course of decision with regard to the privileges and immunities of citizens of the United States, secured by the Fourteenth iVmend- ment against abridgment by the States. The argu- ment has frequently been advanced that the rights protected by the first eight amendments are such privileges and immunities ; ^ but though the view has had distinguished advocates,^ the court has held oth- erwise and has asserted the true criterion to be the fundamental character of the right for which pro- tection is claimed,' so that some of the rights enu- merated in the early amendments may be privileges and immunities of citizenship, while others are not.^ 3 Notably in Presser v. Illinois, 116 U. S. 252; and in Spies V. Illinois, 123 U. S. 131, by Mr. John Randolph Tucker. In both these cases the decision passed off on other points. * It is implied though not distinctly announced in Mr. Justice Harlan's dissenting opinion in Hurtado r. California, 110 U. S. 516, and is adopted by the dissenting justices in O'Neil V. Vermont, 144 U. S. 323. See the opinion of Field, J., at pp. 361, 363; of Harlan, J., at p. 370. It is strongly advocated by Mr. Guthrie in his book on the Fourteenth Amendment, which appeared before the decision in Maxwell v. Dow, 176 U. S. 581. Mr. Gutlvrie lays much stress on the opinions expressed in debate by the advocates of the amend- ment in Congress, an argument fully met in the case last cited. s Maxwell v. Dow, 176 U. S. 581, Harlan, J., dissenting at length on the ground inter alia indicated in the last note. The view stated in the text is necessarily involved also, as is pointed out in Maxwell V. Dow, in the holding in Hurtado v. California, 110 U. S. 516, and the line of cases which follow it. 6 In Adams r. New York, 192 U. S. 504, the question is raised, but its determination was not found necessary, whether the right DUE PROCESS OF LAW 35 In 1901, the court, having occasion to consider Chapter the meaning of due process in the Fifth and Four- identity of teenth Amendments, said: "While the language of meaning those amendments is the same, yet as they were en- grafted upon the Constitution at different times and. in widely different circmnstances of our national life, it may be that questions may arise in which dif- ferent constructions and applications of their pro- visions may be proper. ' ' But in the decision of the case before it, the court proceeded ''on the as- sumption that the legal import of the phrase, 'due process of law, ' is the same in both amendments. " '^ RELATION OF FEDEEAL GOVERISTMENT TOWARD DUE PROCESS BY THE STATES. Supervisory Powers of the Supreme Court of the United States. Before the passage of the Fourteenth Amendment 2" b'''^°'^" the security of the citizens of the several States for w and^' due process of law in proceedings by the State lay in fhe^Four- • • • • teenth its institutions alone. Even if due process was de- Amend- ^ ment. nied, the federal government had no right to inter- to be free from unreasonable searches and seizures (Const. U. S., Amend. IV) and ffom being compelled to testify against one's self (Const., Amend. V) are such privileges and immunities. See also In re Kemmler, 136 U. S. 436, that immunity from cruel and un- usual punishment is not an immunity of citizenship in the United States as against the States. 7 French v. Barber Asphalt Paving Co., 181 U. S. 324. " The Fourteenth Amendment," it has been held, " legitimately operates to extend to the citizens and residents of the States the same protection against arbitrary State legislation affecting life, liberty and property as is offered by the Fifth Amendment against similar legislation by Congress." Hibben v. Smith, 191 U. S. 310, 325. 36 DUE PROCESS OF LAW Chapter fere. The Fourteenth Amendment changed this con- dition of affairs. It made it a matter of national concern that the State should not deny due process to its citizens and to others. It gave to the United States the right to supervise the performance of this duty, and transferred from the State to the Federal Supreme Court the ultimate decision on the question of the presence of due process in all proceedings affecting life, liberty, and property. But under the amendment the authority of the federal court is merely to determine whether the State by some offi- cial action has provided due process or has failed in that duty ; and if a denial of due process appears, it can only pronounce the proceedings void. The power of the federal government ordinarily ends with that act. Thus the primary duty of providing for the protection of life, liberty, and property by due process of law rests still with the States, and the Fourteenth Amendment operates merely as a guar- anty additional to the State constitutions against encroachments on the part of the States upon funda- mental rights, which their governments were created to secure. It did not radically change the whole theory of the relations of the State and federal gov- ernments to each other and of both governments to the people.^ It has not had the effect of converting the national Supreme Court into a general court of appeal, where decisions of the State courts, involv- ing merely questions of general justice and equitable 8U. S. V. Cruikshank, 92 U. S. 542; Slaughter-House Cases, 16 Wall. (U. S.) 36; In re Kemmler, 136 U. S. 436; Orr v. Oilman, 183 U. S. 278, 286; U. S. v. Moore, 129 Fed. Rep. 630; Ex p. Rig- gins, 134 Fed. Rep. 404. DUE PROCESS OF LAW 37 considerations in the taking of life or property, may chapter be reviewed.^ In exerting its supervisory jurisdiction, the sole ""^[^^X question before the court is whether the State's act £1!'°" has infringed the provision of the Fourteenth Amendment or some valid act of Congress made in pursuance thereof.^ Upon all questions involving merely the conformity of the act with the constitu- tion of the State, the decision of the highest State court is final and conclusive, however unjust, op- pressive, or harsh an act may have been upheld by it.^ But when the State's decision is against the validity of a right claimed under the federal Con- stitution or laws, the denial of due process under the national Constitution becomes a question.^ Within these principles, the presence of the es- fssaPS"'^' sential features of due process is always a federal with°™'^ question, which the United States Supreme Court procedure, will decide for itself r/but due process, so far as mere procedure not affecting fundamental rights is con- cerned, is process due according to the law of the State,'* and the determination of the State is con- 9 Davidson v. New Orleans, 96 U. S. 97, 104; Missouri Pae. R. Co. V. Humes, 115 U. S. 512, 520; New York, etc., R. Co. v. Bristol, 151 U. S. 556; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. 1 Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. 2Kirtland v. Hotchkiss, 100 U. S. 491; Missouri Pae. R. Co. v. Humes, 115 U. S. 512, 520; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112; French v. Barber Asphalt Paving Co., 181 U. S. 324; Hibben v. Smith, 191 U. S. 310; Olsen v. Smith, 195 U.S. 332; Na- tional Cotton Oil Co. V. Texas, 197 U. S. 130, 131. When the interpretation in a particular way of a State law by the State court was unnecessary to the determination of the case, the Federal Supreme Court need not pass on the validity of the State's interpretation. King v. Mullins, 171 U. S. 404. 3 Green Bay, etc.. Canal Co. v. Patten Paper Co., 172 U. S. 58. 4 Walker v. Sauvinet, 92 U. S. 90, Q i2 J a L? ^J O T u o 38 DUE PROCESS OF LAW Chapter clusivG as to wliat the state law requires,^ however '■ — much the requirements may differ among the several States. While the cardinal principles of justice are immutable, the methods by which justice is admin- istered are subject to constant change in conformity to the wishes of the citizens of the different States, and the course of legislation has already produced great divergencies in respect to form. / On one side of a State line there may be a right to trial by jury and on the other side no such right may exist; but the orderly procedure laid down in each State is due process of law ; for the Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies.® In a case which involved the presence of due process in a proceeding for the collection of taxes, the Supreme Court observed: ''The vice which underlies the entire argument of the plaintiff in error arises from a failure to distinguish between the essentials of due process of law under the Four- teenth 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 /. "Law in its regular administration through courts of justice is due process, and, when secured by the law of the State, the consti- tutional requisition is satisfied," Caldwell v. Texas, 137 U. S. 692. 5 Caldwell V. Texas, 137 U. S. 692; Iowa Cent. R. Co. v. Iowa, 160 U. S. 389 ; In re Krug, 79 Fed. Rep. 308. When the construction of a statute by the State court is such that due process of law exists in the statute as construed, the con- struction is conclusive. Baltimore Traction Co. v. Belt R. Co., 151 U. S. 138. c Missouri v. Lewis, 101 U. S. 22, 31; Holden v. Hardy, 169 U. S. 366. DUE PROCESS OF LAW 39 from without violating the Constitution of the United Chapter States. The other depends on the law-making power of the State, 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 detennine 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 of 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 Con- stitution of the United States by depriving of prop- erty without due process of law. This paramount requirement being fulfilled, as to other matters, the State's interpretation of its own laws is controlling and decisive. ' ' "^ Always must the court look beyond the form {^Xs'to of the question presented, to its substance to deter- ^"''stance. mine whether an essential of due process is involved.^ Thus the question of the reasonableness of the no- tice required under a State statute involves a vital element of due process, and the decision of the State court on this question is not binding on the Federal Supreme Court.^ On the other hand, methods of 7 Castillo V. McComiico, 168 U. S. 674; French v. Taylor, 199 U. S. 274. See also Iowa Cent. R. Co. v. Iowa, 160 U. S. 389 ; Allen. V. Georgia, 166 U. S. 138. 8 Simon v. Craft, 182 U. S. 436; Louisville, etc., R. Co. v. Schmidt, 177 U. S. 230. 9 Scott V. McNeal, 154 U. S. 34, 35; Roller v. Holly, 176 U. S. 398. 40 DUE PROCESS OF LAW Chapter procedure popularly regarded as most .fundamental and necessary safeguards to the rights of the citizen, Irregulari- ties and errors in State court. such as indictment by a grand jury or trial by jury, are within the power of the State and may be granted or taken away, without infringing the Fourteenth Amendment.^ As it is preeminently and exclusively the duty of the State courts to construe the statutes of the State, irregularities in proceedings or errors in con- struction of statutes on the part of State courts act- ing within their jurisdiction will not constitute a denial of due process so long as the fundamental requisites thereof are present,^ In a case where an infant contended that he was deprived of due process of law by his guardian's sale of his real property under an order of court, but without giv- ing bond as required by statute, the court said: ''The statute under which the court acted would, if followed, have given Arrowsmith all the protection which had been guaranteed to him by the Constitu- tion of the United States. The bond in question was a matter of procedure only, and if it ought to have been required the court erred in ordering a sale without having first caused it to be filed and ap- proved. At most, this was an error of judgment 1 See Holden v. Hardy. 169 U. S. 366. 3/n re Converse, 137 U. S. 631; Bergemann v. Backer, 1.57 U. S. 655; Central Land Co. v. Laidley. 159 U. S. 103; Iowa Cent. R. Co. ,r. Iowa, 160 U. S. 389; National Cotton Oil Co. v. Texas, 197 U. S. 115, 130, 131. As has been seen, supra, p. 27, judicial action is as much within the Fourteenth Amendment as legislative action, and therefore if a State judgment in terms or by its necessary operation deprives a party of due process, it is reviewable. See Lehigh Water Co. v. Easton, 121 U. S. 388, 392. DUE PROCESS OF LAW 41 in the court. The constitutional provision is, 'Nor chapter shall any State deprive any person of life, liberty or '■ — property without due process of law.' Certainly a State can not be deemed guilty of a violation of this constitutional obligation simply because one of its courts, while acting within its jurisdiction, has made an erroneous decision. The legislature of a State performs its whole duty under the Constitution in this particular, when it provides a law for the govern- ment of its conrts, while exercising their respective jurisdictions, which, if followed, will furnish the par- ties the necessary constitutional protection. All after that pertains to the courts, and the parties are left to their appropriate remedies for the correction of errors in judicial proceedings."* Nor can the denial of the right of trial by jury, though it is clearly erroneous to construe the laws of the State as justifying the refusal, work a deprivation of due process.^ But the principle that erroneous deci- sions of State courts do not work a denial of due process is to be limited to questions involving con- formity with the State constitution and laws, mat- ters upon which the decision of the State courts is final, and even in such a case the decision must not deprive a person of those fundamental rights guar- anteed by the Constitution, which may be infringed by the conduct of the court in its administration of the law as well as by the law itself under which the court is proceeding. * Arrowsmith v. Harmoning, 118 U. S. 194. 5 Iowa Cent. E. Co. v. Iowa, 160 U. S. 389. Chapter I. 42 DUE PROCESS OF LAW Direct Enforcement of Due Process by Congress. Legislative So far the function of the national government &ongrls°s. under the Fourteenth Amendment has been consid- ered only in its supervisory and, so to say, negative aspect. May Congress in addition by direct legisla- tion provide for the enjoyment of due process by citizens of the several States? Congress, first, has such power to legislate in protection of rights as is given it by direct grant in the Constitution, and sec- ond, the power to protect and enforce every right created by, arising under, or dependent upon the Constitution of the United States. The second or implied power may be based on the duty of the gov- ernment to protect its citizens in the enjoyment of the rights conferred on them, which is correlative to the grant of such rights ; or it may be found in the general power '^ ' ' to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."^ Each of the Thirteenth, Fourteenth, and Fifteenth Amendments contains the specific declaration that ''Congress shall have power to enforce this provi- sion by appropriate legislation." By this declara- tion, ''some legislation," said the Supreme Court, "is contemplated to make the amendments fully ef- fective. AYhatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission 7 Const. U. S.. Art. I, § 8, U 18. 8U. S. V. Cruikshank, 1 Woods (U. S.) 308; Logan v. U. S., 144 U. S. 263. process; DUE PROCESS OF LAW 43 to the prohibitions they contain, and to secure to all chapter persons the enjoyment of the perfect equality of '■ — civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of Congressional power. ' ' ^ The object of the Fourteenth Amendment, as has ^ram'to''* been declared in repeated decisions, is not to confer due"'^ the rights enumerated in its first section directly on any one, but to guarantee all citizens or persons against being deprived of those rights by State action. The enumerated rights are recognized as preexisting and fundamental, not created by nor de- pendent on the Constitution, and the only right con- ferred by that instrument is the right of exemption from the prohibited denial by the States or their agencies.! ' ' It [the Fourteenth Amendment] , ' ' said Mr. Justice Bradley, in the United States Circuit Court in a case affirmed by the Supreme Oourt,^ "is a guaranty of protection against the acts of the State government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the State, not a guaranty against the commission of individual offenses; and the power of Congress, whether express or implied, to legislate for the en- forcement of such a guaranty does not extend to the passage of laws for the suppression of crime within 9 Ex p. Virginia, 100 U. S. 339. lU. S. r. Cruikshank, 92 U. S. 542, affirming 1 Woods (U. S.) 308; Virginia v. Rives, 100 U. S. 313; Ese p. Virginia, lOOU. S. 339; U. S. V. Harris, 106 U. S. 620; Civil Rights Cases, 109 U. S. 3; [Ex p. Yarbrough, 110 U. S. 651; Logan r. U. S., 144 U. S. 263; James v. Bowman, 190 U. S. 127. 2U. S. V. Cruikshank, 1 Woods (U. S.) 308, affirmed 92 U. S. 542. 44 DUE PEOCESS OF LAW Chapter the States. The enforcement of the guaranty does not require or authorize Congress to perform 'the duty that the g-uaranty itself supposes it to be the duty of the State to perform, and which it requires the State to perform. ' " ^ Evidently, therefore, this grant of power confers on Congress no authority to legislate with respect to these rights except as to their denial by the States, and it can not, solely by virtue of the clause conferring power to enforce by appropriate legislation, pass acts to secure, as against individuals, the affirmative enforcement of the rights specified. So far as this provision goes, the duty of legislation with regard to the individual enjoyment of due process rests still with the State.-^ There being no direct grant, we turn to the im- plied power of Congress. But this extends only to protect rights arising under or dependent on the Federal Constitution; and not due process of law, but only the exemption from its denial by the State, is included iu that category. Therefore, it would seem plain that Congress has no power to legislate directly to protect the citizen in the enjoyment of this right as against the acts of individuals depriv- ing or tending to deprive him thereof. Nor has it attempted to do so by providing^ that "if two or 3 Quoted and approved in U. S. v. Harris, 106 U. S. 629. See also Civil Rights Cases, 109 U. S. 3. * See cases cited in the last three notes. BRev. Stat. U. S., §5508; 1 Fed. Stat. Annot. 802. This statute is constitutional, but applies only to rights secured by the Constitution and laws of the United States. For instance, the right to be protected from violence while in the custody of a United States marshal awaiting trial imder indictment in a federal court, is a right, the enforcement of which devolves on the national government under its Constituti^m and laws. If a person in this plied power. contrary. DUE PROCESS OF LAW 45 more persons conspire to injure, oppress, threaten chapter or intimidate any citizen in the free exercise or en- joyment of any right or privilege secured to him by the Constitution or laws of the United States, or be- cause of his having so exercised the same," they shall be severely punished ; for due process of law is not included among these rights and privileges. These propositions would seem to be clearly de- ^"fe""*^ ducible from the decisions of the Supreme Court as to the general scope of the Fourteenth Amendment and as to the clause therein guaranteeing the equal protection of the laws, which is entirely parallel with that securing due process of law. But recently the Circuit Court of the United States in Alabama has reached very different conclusions.'^ A negro who was under indictment for murder in the courts of Alabama was forcibly taken from the State au- thorities and murdered by a mob. Individuals ac- cused of taking part in the murder were arrested and indicted under sections 5508 and 5509 of the Re- vised Statutes of the United States for conspiring to deprive a citizen of rights and privileges secured by the Constitution and laws of the United States. The indictment alleged the right and privilege to be tried by due process of law. The court upon habeas corpus brought by one of the prisoners held the indictment to be good and refused to discharge the petitioner. The court distinguished the nature of the right arising under the due process clause of the Fourteenth Amendment from that arising under the situation is lynched, the perpetrators of the crime may be indicted and pimished under this section. Logan V. U. S., 144 U. S. 263. 6 Ex p. Riggins, 134 Fed. Rep. 404. 46 DUE PROCESS OF LAW Chapter equal iDrotection of the laws clause of the same amendment, and this distinction was necessary be- cause the Supreme Court had declared unconstitu- tional an Act of Congress to punish a conspiracy to deprive any person of the equal protection of the lawsJ The equal protection of the laws is secured, it is said, by legislation establishing joroper laws, and *'no act of a private citizen can defeat the enjoy- ment of this status ;" ^ the due process clause, on the other hand, makes it the duty of the State to render to every person accused of crime due process of law, which includes not only proper legislation but the orderly and undisturbed working of the machinery of justice. "Until it has done its perfect work, the administration of due process, which in a case like this can not be enjoyed except by the regular and or- derly working of judicial procedure, is not afforded by the State." ^ "The very words of the Four- teenth Amendment inevitably utter a command that the State shall afford due process to the citizen," and the right or privilege so guaranteed "necessa- rily carries with it and includes in it the right, priv- ilege or immunity to enjoy freedom, exemption from lawless assault, which supervenes between the State and the performance of its duty, and by such violent interference prevents the citizen having, when the State is endeavoring to afford it, due process at the TU. S. V. Harris, 106 U, S, 629, holding Rev. Stat. U. S., § 5519, not warranted by the Constitution. See 1 Fed. Stat. Annot. 805. 8 A modern " gunpowder plot " to prevent the passage of a law enforcing equal rights would s-eem not to have occurred to the court. 6 Ex p. Riggins, 134 Fed. Rep. 416-419. DUE PROCESS OF LAW 47 hands of the State. "^ Two stages of the State's chapter duty are distinguished: the first involves only the passing of proper laws and the appointment of prop- er officers to execute them, and is owing to the whole public; the second stage ''includes the obliga- tion, in many instances, to administer judicial pro- cedure in the individual case, and is due to a par- ticular person." TH'e^performance by the State of the duty 4B9plied' in the second stage can only be prevented when ^ some proceeding has been begun creating the d"dfy toward a particular person. When that stage is reached^ as it was in the case under dis- cussion^t is "resistance to the efforts of the State's officers to perform their duty, preventing them from doing the things which the law requires them to do, which defeats the State's discharge of the duty of rendering due process of law, and thereby assaults the enjoyment of the privilege or immunity of the citizen to have due process at the hands of the State. "2 The cardinal fallacy, if there be a fallacy, in this J[^^S. reasoning, is finding in the Fourteenth Amendment any positive duty on the part of the State to ren- der due process to any one. The words of the amendment are guarded and negative: *'Nor shall any State deprive any person of life," etc., ''with- out due process of law." After thus finding the 1 134 Fed. Rep. 412, 413. 2 134 Fed. Rep. 413, 414. Ab appeal from this decision was taken to the United States Supreme Court, but that court, holding simply that habeas corpus was not the correct way under the cir- cumstances to test the sufficiency of the indictment, remanded the case with directions to quash the writ. Riggins v. U. S., 199 U. S. 647. 48 DUE PROCESS OF LAW Chapter guaranty of the performance of a positive duty, in ■ '■ — place of a merely negative one, on the part of the State, the other steps taken by the court are com- paratively easy. CHAPTER II. THE ELEMENTS OF DUE PROCESS. DEFINITIONS COLLECTED AND THEIR RELATIONS SHOWN". A T the beginning of this book, due process of Chapter law or law of the land was said to imply '■ — the administration of equal laws according to SPwnceJ" established rules, not violative of the fundamental "ai" ^"^^ principles of private right, by a competent tribu* nal having jurisdiction of the case and proceed- ing upon notice and hearing. The several distinct elements whose presence is necessary to constitute due process as thus characterized have grouped themselves around that phrase at various times and under the exigency of various circumstances. Most of them had a distinct legal history before they were associated in one of their aspects as constituting due process. As one or another of the principles involved in due process has been prominent in the minds of judges and jurists, definitions of the ''law of the land" and ''due process of law" have been framed wherein specific aspects of the conception have occupied the centre of the mental picture. Each embodies a true but partial view of due process. Some of the best known of these are given here. One of the most famous and perhaps the most Webster's -^ cefinition, oft quoted definition is that of Daniel Webster in his f^Pgen^r- speech in the Dartmouth College Case. His argu- ^^"^' 4 49 50 DUE PROCESS OF LAW Chapter ment was addressed to the point that the act of a State legislature which took away rights and fran- chises acquired by the college in virtue of a prior charter, was violative of the provision of the New Hampshire constitution which declares that no one shall be deprived of "property, privileges or im- munities but by the judgment of his peers or the law of the land." He had in mind, then, a legislative act, partaking of the character of a judgment in that it operated on rights already acquired, and was di- rected against a single corporation, but which was passed without legal opportunity to defend. The definition emphasized, therefore, the necessity of generality or equality in the law and notice and '-^ hearing. He 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 mean- ing 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 considered the law of the land. If this were so, 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, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general peimanent DUE PROCESS OF LAW 51 law for courts to administer or men to live under." ^ Chapter The same conception of general law combined with '■ — established modes of procedure appears in the char- acterization of due process in a case contemporary with the last, where the court said:^ ''As to the ^5^5"^,^?'^ words from Magna Carta incorporated into the Oon- ^°'^' ^" stitution of Maryland, after volumes spoken and written witli a view to their exposition, the good sense of mankind has at leng*th settled down to this, — that they were intended to secure the individual from the arbitrary exercise of the powers of govern- ment, unrestrained by the established principles of private rights and distributive justice. ' ' ^ When the point at issue was whether in the J^p^^^Jf^'^^ enforcement of general or equal laws, methods of proc°e'durl^ procedure which protected fundamental rights were observed, descriptions which laid stress on methods in settled use were framed. Such are: "By due 13rocess of law is meant one [process] which, follow- ing the forms of law, is appropriate to the case and just to the parties to be affected;" ^ "due process of 1 Dartmouth College V. Woodward, 4 Wheat. (U. S.) 518. The first sentence of this extract is quoted in Ex p. Wall, 107 U. S. 289; Hovey r. Elliott, 167 U. S. 409. 2 Columbia Bank v. Okely, 4 Wheat. (U. S.) 235, per Johnson, J., quoted in U. S. r. Cruikshank, 92 U. S. 554; Scott v. McNeal, 154 U. S. 45. 3 " Distributive justice " is one of the divisions of justice discussed by the old writers on the law of nature. Pufendorf defines it in effect as that species of justice which is exercised by one who gives to each member of society the rights due under the social contract, i. e., his " perfect rights." Law of Nature and Nations, lib. 1, c. 7, § 9. The idea is evidently derived from the definition of justice with which the Institutes of Justinian opens: Justitia est consta7is et perpetua voluntas jus suum cuique tribuere. Mr. Justice Matthews, in Hur- tado V. California, 110 U. S. 516, refers to "that fundamental maxim of distributive justice, suum cuique tribuere." *Hagar v. Reclamation Dist. No. 108, 111 U. S. 701. 52 DUE PROCESS OF LAW Chapter II. Emphasis on pres- ence of jurisdic- tion. Judicial process not usually- essential. law means law in its regular course of administra- tion through courts of justice."^ When the facts require no more, it is defined as a trial according to the ''course, mode and usages of the common law." ^ As applied to judicial proceedings, the words ''due process of law" have been held to 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 en- forcement of private rights. To give such proceed- ings any validity, there must be a tribunal compe- tent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit."^ But neither proceedings according to common law, nor judicial proceedings in a formal court for the trial of actions, are essential to due process. "Though it generally implies and includes actor, reus, judex, regular allegations, opportunity to an- swer, and a trial according to some settled course of judicial proceedings, yet this is not universally true." ^ Summary administrative process has from time immemorial been sanctioned in the collection of taxes and in other cases ;^ although when life and 6 2 Kent Com. 13, quoted in Caldwell v. Texas, 137 U. S. 692. 6 Hoke V. Henderson, 4 Dev. L. (15 N. Car.) 1. TPennoyer v. Neff, 95 U. S. 714, per Field, J., quoted in Scott v. McNeal, 154 U. S. 46. 8 Murray v. Hoboken Land, etc., Co., 18 How. (U. S.) 272, per Curtis, J. " It is a mistaken idea that due process of law requires a plenary suit and a trial by jury in all cases where property or personal rights are involved." Ex p. Wall, 107 U. S. 265, 288. "Due process is not necessarily judicial process." Reetz v. Michi- gan, 188 U. S. 505, 507. » Murray v. Hoboken Land, etc., Co., 18 How. (U. S.) 272; Wei- mer v. Bunbury, 30 Mich. 201. DUE PROCESS OF LAW 53 liberty or the title or possession of property are Chapter involved, due process has been said to require that there be a regular course of judicial proceedings,^ though not trial by jury.^ HOW THE PRESENCE OF DUE PROCESS IS TESTED. Historical Test — Positive and Inclusive. When a particular law or procedure is drawn in question on the ground that it is wanting in due process of law, upon what principle is its validity to be tested? The first inquiry must be, of course, whether it conflicts with any provision of the Con- stitution itself. If it is not found to do so, we must examine the connotation of the phrase at the time of its adoption into the Constitution of the United States. For this purpose we must determine ** those settled usages and modes of proceeding ex- isting in the common and statute law of England, be- fore the emigration of our ancestors, and which are 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."^ In a later case, this test was somewhat enlarged, the court saying that that was due process of law which was ''in substantial accord with the law and usage in England before the Declaration of Independence, iHagar v. Reclamation Dist, No. 108, 111 U. S. 701. This state- ment requires limitation. See infra, p. 80. "^Ex p. Wall, 107 U. S. 288, the court saying: "The important right of personal liberty is generally determined by a single judge, on a writ of habeas corpus, using affidavits and depositions for proofs, when facts are to be established." 3 Murray v. Hoboken Land, etc., Co., 18 How. (U. S.) 272. 54 DUE PROCESS OF LAW Chapter II. Failure of historical test. Progres- sive nature of law. and in this country since it became a nation, in similar cases." ^ If a particular procedure is found to have been sanctioned by English practice and adopted as suited to the conditions in this country, it measures up to the requisites of due process ; but if the inquiry has only negative results, we must not immediately con- clude that due process is wanting. For the test proposed, though sufficient for the purposes of the cases in which it was announced, is only positive and inclusive, not negative and exclu- sive. To hold every procedure not fulfilling these requirements to be a deprivation of due process, ^' would be to deny every quality of the law but its age, and to render it incapable of progress or im- provement. It would be to stamp upon our juris- prudence the unchangeableness attributed to the laws of the Medes and Persians.'"^ The Supreme Court ''has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that in some of the States, methods of procedure which, at the time the Constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary. Even before the adoption of the Constitution, much had been done toward mitigating the severity of the common *Lowe V. Kansas, 163 U. S. 81. For other cases wherein pro- ceedings sanctioned by immemorial usage have been held to be " due process of law," see Ex p. Wall, 107 U. S. 265; Eilenbecker v. Dis- trict Ct., 1.34 U. S. 31. Where a United States court is proceeding in impaneling a jury by a method different from that prescribed by the State statute, the procedure " must not conflict with or abridge the right as it exists at common law." Lewis v. U. S., 146 U. S. 377. oHurtado v. California, 110 U. S. 516. DUE PROCESS OF LAW 55 law, particularly in the administration of its crimi- Chapter nal branch. The number of capital crimes, in this country at least, had been largely decreased. Trial by ordeal and by battle had never existed here, and had fallen into disuse in England. The earlier practice of the common law, which denied the benefit of witnesses to a person accused of felony, had been abolished by statute, though so far as it deprived him of the assistance of counsel and compulsory process for the attendance of his witnesses, it had not been changed in England. But to the credit of her American colonies, let it be said that so op- pressive a doctrine had never obtained a foothold there. The present century has originated legal re- forms of no less importance. The whole fabric of special pleading once thought to be necessary to the elimination of the real issue between the parties has crumbled to pieces. The ancient tenures of real estate have been largely swept away, and land is now transferred almost as easily and cheaply as personal property. Married women have been emancipated from the control of their husbands, and placed upon a practical equality with them, with respect to the acquisition, possession and transmission of property. Imprisonment for debt has been abolished. Exemptions from execution have been largely added to, and in most of the States homesteads are rendered incapable of seizure and sale upon forced process. Witnesses are no longer incompetent by reason of interest, even though they be parties to the litigation. Indictments have been simplified, and an indictment for the most serious of crimes is now the simplest of all. In several of 56 DUE PROCESS OF LAW Chapter the States grand juries, formerly the only safeguard '■ — against a malicious prosecution, have been largely abolished; and in others the rule of unanimity, so far as applied to civil cases, has given way to ver- dicts by a three-fourths majority."^ Intrinsic Test — Both Inclusive and Exclusive. In view of all these instances, say the courts, the probability of further changes to adapt the law to new conditions of society must be recognized. It is, then, of the utmost importance that the adoption of such future changes as experience shall commend should not be hampered by a narrow interpretation of due process. Lest these results should follow, a definition of due process which should be complete both in what it includes and in what it excludes has never been attempted, and the court has preferred the wiser and more conservative course of ascertain- ing the intent and application of the phrase "by the gradual process of judicial inclusion and exclu- sion, as the cases presented for decision shall re- quire, with the reasoning on which such decisions may be founded." ''' But the reasoning of the cases must recognize some test, however vague, and this test is declared to lie in the fact that the provision questioned does not involve an infringement of ''certain fundamental rights, which that system of jurisprudence, of which ours is a derivative, has always recognized;"^ or it must observe ''those eHolden v. Hardy, 169 U. S. 366. 7 Davidson v. New Orleans, 96 U. S. 97; Holden v. Hardy, 169 U. S. 366; Orient Ins. Co. v. Daggs, 172 U. S. 563. 8 Brown v. Levee Comrs., 60 Miss. 468, quoted in Hurtado V. California, 110 U. S. 536. common DUE PROCESS OF LAW 57 general rules established in our system of jurispru- Chapter dence for the security of private rights ; " '^ or the '■ — act must not overstep "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." ^ The pursuit of the ''fundamental principles of fJsTor^' liberty and justice" would seem to throw us hope- faw.' lessly into the fields of speculation cultivated by writers on the law of nature and the nebulous natu- ral rights of man. But in the recognition of "fun- damental principles" apart from constitutional pro- visions, the courts, true to the method which has built up the common law, base their decisions less on deductive reasoning from a priori assumptions, than on the recognition of rights which have been asserted at a definite time and place against particu- lar acts of tyranny and have become embedded in our law. This tendency toward cautious conserva- tism is well illustrated by the remarks of a New Jersey judge, Mr. Justice Van Syckel, discussing an analogous point. He recognizes but two classes of rights "for which immunity against the encroach- ments of the lawmaker can be claimed." The first includes those for which constitutional protection is especially provided; the other class, not shielded by such express provision, "is, I think, limited to two or three instances." They are, the right to private property, to notice and a hearing before judgment, and the principle that a man shall not be made a »Hagar v. Eeclamation Dist. No. 108, 111 U. S. 701, 709. iHurtado v. California, 110 U. S. 535. 58 DUE PROCESS OF LAW Chapter judge in his own case.^ As regards the last point, the United States Supreme Court has held, while distinguishing the case from that of a judge of a court acting in a matter in which he was personally interested, that the qualification or disqualification for interest of the members of the board of assess- ors for a municipal tax was a question of local law for the decision of the State courts, not involving due process under the Fourteenth Amendment.^ dameinT Amoug matters held fundamental and essential requisites, -g ^^^ preseucc of notice and hearing which is of the very essence of due process."* The possession of jurisdiction by the tribunal passing upon rights of life, liberty, or property,' the necessity of com- pensation when property is taken for a public pur- pose,® have each been recognized as fundamental in due process under the Fourteenth Amendment; while the right of a person accused of felony to be present in the trial court during the trial is essen- tial at least to due process under the Fifth Amend- ments But whether exemption from double jeop- ardy, or the right not to be compelled to give evi- dence against one's self,^ is included in this category 2 Moore v. State, 43 X. J. L. 203, 243, 244. These remarks are found in a dissenting opinion. 3 Lent V. Tillson, 140 U. S. 316; Hibben i\ Smith, 191 U.S. 310. Making an interested party judge was taken as the extreme instance of an act contrary to natural right in old cases. " Even an Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself." Day r. Savadge, Hob. 87. See also Bonham's Case, 8 Coke 118a; Smith v. Hancock, Style 138. 4 See infra, p. 73. 6 See infra, p. 85. 6 See infra, p. 278. 7 See infra, p. 165. 8 Adams v. New York, 192 U. S. 585. DUE PROCESS OF LAW 59 is not determined. And the ajrantins: or withhold- Chapter II mg of rights once considered peculiarly fundamental '■ — has been held to be wholly within the domain of the States.9 Finally the subject-matter of the case and the |S*" nature of the proceeding in which due process of iTrTg.""^' law is involved must always be considered in deter- mining whether the taking is warranted by constitu- tional provision.^ The requirement of due process as affecting judicial proceedings has been declared to be well settled, however undetermined the mean- ing may be in other connections. ^ Where it is sought to justify the taking as an JJlS""' exercise of the sovereignty of the State, especially *''°"*^" may the requirements of due process be modified. ''In judging what is 'due process of law,' " said Mr. Justice Bradley,^ "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 ad- missible in the special case, it will be adjudged to be 'due process of law;' but, if found to be arbi- trary, oppressive, and unjust, it may be declared to be not 'due process of law.' " In a later case, the same judge, speaking for 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 9 Such are the right to accusation by a grand jury, Hurtado v. California, 110 U. S. 575; and the right to trial by jury itself, Max- well V. Dow, 176 U. S. 581. 1 Ex p. Wall, 107 U. S. 288. 2 Pennoyer v. Neflf, 95 U. S. 714. s Concurring opinion in Davidson v. New Orleans. 96 U. S. 97. 60 DUE PROCESS OF LAW Chapter 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 customary forms and established usages, or in sub- ordination to the principles which underlie them." ^ The general principle is that when the state is acting in its sovereign capacity, its acts are for the good of the whole community, and private rights and in- terests must yield to this paramount object. But to this matter we shall return at a later stage of the discussion. It is necessary now to examine in detail some of the leading elements of due process. The require- ment, first, of general and equal laws; second, of notice and hearing; and, third, of the presence of jurisdiction, will be taken up. Equality and Generality of the Law. There- The conceptiou of law is opposed to all merely quirements -^ -^ -^ ^ fxi\a\ncd. arbitrary or capricious action on the part of the state depriving individuals of life, liberty, or prop- erty. Early in English history an appeal was made to this conception in petitioning Parliament for a reversal of a bill of attainder, but, according to the British Constitution, the authority of Parliament is absolute, and the idea of the intrinsic necessity of equality or generality could not be developed as applied to acts of Parliament, although in substance it was employed to restrain the quasi-legislative activity of municipal bodies. Law must Under the American theory of constitutional operate on all alike. govcmment, m which constitutions are a restraint 4 Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232. DUE PROCESS OF I^WV 61 II. even on the legislature, the idea has had a more fruit- chapter ful development. Purely arbitrary decrees or en- actments of the legislature directed against indi- viduals or classes are held not to be ''the law of the land," or to conform to ''due process of law." The conception comes clearly to the front in Mr. Webster's definition of "law of the land," which has been already quoted, and it has been frequently repeated by the courts. "Due process of law within the meaning of the [Fourteenth] Amendment," said the Federal Supreme Court, "is secured if the laws operate on all alike, and do not subject the indi- vidual to an arbitrary exercise of the powers of government." 6 ''By the law of the land," said the Michigan court, "we understand laws that are gen- eral in their operation, and that affect the rights of all alike, and not a special act of the legislature, passed to afflect the rights of an individual against his will and in a way in which the same rights of other persons are not affected by existing laws. Such an act, unless expressly authorized by the Con- stitution, or clearly coming within the general scope of legislative power, would be in conflict with this part of the Constitution, and for that reason, if no other, be void. " "^ " The clause ' law of the land, ' ' ' said Mr. Justice Catron, when a member of the Su- preme Court of Tennessee, "means a general and public law, equally binding upon every member of eGiozza v. Turaan, 148 U. S. 657, 662. See also Yick Wo v. Hopkins, 118 U. S. 356; Dent V. West Virginia, 129 U. S. 114; Leeper V. Texas, 139 U. S. 462; Yesler v. Washington Harbor Line Com'rs, 146 U. S. 646; Dunean v. Missouri, 152 U. S. 377; Orr v. Oilman, 183 U. S. 278, 287. 7 Sears v. Cottrell, 5 Mich. 251. See also Millett v. People, 117 ni. 294, 57 Am. Rep. 869. 62 DUE PROCESS OF LAW Chapter ^he Community."^ In a later case, the same court, in order to bring out the constitutionality of legis- lative classification, preferred to define the phrase as meaning a law ''which embraces all persons who are or may come into like situation and circum- stances."^ o'naw"^ But the necessity of emphasis on this aspect of due process is less necessary because the Fourteenth Amendment of the Constitution of the United States, and many State constitutions as well, con- tain clauses especially directed against legislation lacking the character of generality. The Federal Constitution provides specifically for the equal pro- tection of the laws, and many State constitutions carefully limit the power of the legislature to pass local or special laws.^ Kestraints on arbitrary leg- islation may result from the clauses in some consti- tutions prohibiting "exclusive or separate emolu- ments" and ''perpetuities and monopolies. "^ ciassifica- The requirement does not, in the absence of some tion per- mitted, specific constitutional provision, prevent the legis- lature from passing a law which is confined in its operation to a particular locality,^ or which embraces sVanzant i\ Waddel, 2 Yerg. (Tenn.) 260. 9 Stratton r. Morris, 89 Tenn. 497, citing many earjier cases from the same court. This is the same test adopted by the federal Su- preme Court for conformity with the " equal protection of the laws " clause of the Fourteenth Amendment; viz., that the statute be gen- eral, embracing all persons under substantially like circumstances, and not an arbitrary exercise of power. Jones v. Brim, 16.5 U. S. 180; Lowe V. Kansas, 16.3 U. S. 81; Duncan V. Missouri, 152 U. S. 377; Hayes v. Missouri, 120 U. S. 68. 1 See, for instance, Waite r. Santa Cruz, 184 U. S. 302, constru- ing the constitution of California. 2 State V. Moore, 104 N. Car. 714. 3 State V. Moore, 104 N. Car. 714. DUE PROCESS OF LAW 63 the whole of a class, however few the individuals chapter who compose it may be, provided the classification of persons upon which the law rests is natural and not founded on arbitrary caprice,^ or, in more accu- rate language perhaps, provided the ostensible pur- pose of the law is not seen to be a mere cover for carrying out purposes having no relation to the classification adopted.^ Thus it is no objection to the validity of a law providing for the taxation of railroads, that the method of assessing railroads diifers from the method provided for all other prop- erty, in that railroads are assessed by a State board while all other property in the State is assessed by county ofiicials.^ Nor is a statute regulating rail- road rates wanting in due process of law because it classifies the rates which the railroads may charge on some natural basis. ''Whether the classification shall be according to the amount of passengers and freight carried, or of gross or net earnings, during a previous year, or according to the simpler or more constant test of the length of the line of the railroad, is a matter within the discretion of the legislature.""^ That the regulation adopted shall operate uniformly on each class is all that the con- stitution requires.^ Nor does a law providing that the possession of policy slips "by any person other than a public officer" shall be prima facie evidence *Budd V. state, 3 Humph. (Tenn.) 483, 39 Am. Dec. 189; Strat- ton V. Morris, 89 Tenn. 497, 521. 5 Lochner v. New York, 198 U. S. 45. estate Railroad Tax Cases, 92 U. S. 575; Kentucky Railroad Tax Cases, 115 U. S. 321; Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 421. TDow r. Beidelman, 125 U. S. 680, 691. s Chicago, etc., R. Co. v. Iowa, 94 U. S. 155. 64 DUE PROCESS OF LAW Chapter that the possessor has them knowingly, become in valid by reason of the exception of public ofiQcers, since the exception clearly applies to those public officers only who have possession in the performance of their public duties.^ Confiscatory Legislation. Extreme instances of laws lacking in generality are acts which forfeit or confiscate the life, liberty, or property of a private citizen, or citizens, by the mere edict of the legislature. **In these cases," said the United States Supreme Court, ''the legisla- tive body, in addition to its legitimate functions, ex- ercises the powers and office of judge; it assumes, in the language of the text-books, judicial magis- tracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial ; it determines the sufficiency of the proofs produced, whether conformable to the rules of e\ddence or otherwise ; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense." ^ Bills of Acts of attainder, bills of pains and penalties, etc.-^his- which are a species of acts of attainder inflicting punishment less than death,^ acts of confiscation, and the like, all fall within this prohibition. The feeling that such proceedings were contrary to the law of the land, although in a technical sense legal, may be traced to the fourteenth century when the » Adams v. New York, 192 U. S. 585, afflrming 170 N. Y. 351. iCiimmings r. Missouri. 4 Wall. (U. S.) 277. 32.S. zCumminsrs v. Missouri, 4 Wall. (U. S.) 277, 323; Doe v. Buford, 1 Dana (Ky.) 510. tory. DUE PROCESS OF LAW 65 conception of ''law of the land" was taking its Chapter modern meaning. In the reign of Edward II, the exile and disinheritance of the Despencers passed by an assembly of magnates hostile to the Crown and not properly smnmoned as a Parliament, 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 Par- liament, and against the Great Charter of the fran- chises of England, which says 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 an- swer, and for these errors and for that the causes in the said award were not duly proved. " ^ On similar grounds were placed the act annulling the sentence against the Earl of Arundel in 1330 ; ^ and the supplementary statute of 1354, enacted on a petition which states that there is no record or evi- dence of any just cause wherefore the Earl of Arun- del ought to have been destroyed or put to death ''without judgment and due process of law {sam juggement et due process de lei).''''^ In the same year the attainder of Roger, Earl of Mortimer, was reversed upon the petition of his heir, who alleged that the record of his attainder was "erroneous and defective at all points, especially in so far as the 3 Proceedingrs against the Despencers, 1 How. St. Tr. 33. 4 The Earl's son petitions that it may please our lord the King to consider how Esmon, his father. Earl of Arundel, was taken, imprisoned, and put to death, and his lands and chattels forfeited "against the law and custom of the country." 2 Rot. Pari. 55, 4 Edw. ITI, A. D. 1330. 5 2 Rot. Pari. 256, 257, 28 Edw. Ill, A. D. 1354. 5 Q6 DUE PROCESS OF LAW Chapter g^id earl was put to death and disinlierited without any accusation and without being put to judgment or to answer {sanz estre mesne en juggement ou en respons).''^ ^ These were, however, only instances of attainders reversed when the opposite party came into power. Bills of attainder passed with apparent or real regularity were common enough in the mid- dle ages,"^ and were sometimes passed even after the death of the person attainted.^ Against Henry VIII is said to have been the first sover- persons •^ sfand trial, elgu to lutroducc the practice of bills of attainder without citation or opportunity to defend against persons who were ready to answer in a regular court of justice. The judges who were consulted on the legality of such an act, answered at first that it was a dangerous question, that Parliament ought to give an example of justice to inferior courts, that no inferior courts could act in that arbitrary way, and they thought no Parliament ever would. But, on further pressure, they answered that if a bill of attainder were so passed, its validity could not be brought in question at law. Accordingly proceed- ings were had in this manner against the Countess of Salisbury and others less distinguished.^ But 6 2 Rot. Pari. 256, 28 Edw. Ill, A. D. 1354. 7 Attainders of treason in the fourteenth eentiiry were an ordinary device of the dominant faction to secure the forfeiture of estates. 1 Pike, Hist. Cr. in Eng. 228. 8 See the oases of the Duke of Glouopster in 1397, 1 How. St. Tr. 130, and of Cromwell and other regicides after the Restoration. 1 Pike, Hist. Cr. in Eng. 406. " The most remarkable instance of a mediaeval punishment reappearing almost within living memory is the Act of Attainder passed [by the Irish Parliament] in 1798 against Lord Edward Fitzgerald and others after death." 2 Pike, Hist. Cr. in Eng. 380. »4 Reeves, Hist. Eng. Law (Am. ed., 1880) 555, 550. See also DUE PROCESS OF LAW 67 opposition to the injustice of acts of attainder Chapter was beginning to affect public opinion, and there '■ — were protests and much hesitation in the House of Commons upon the passage of the bill against the Lord Admiral Seymour in 1549.^ A century and a half later, in the case of Sir John Fenwick, the act of attainder was passed by a majority of only six in the Lords and thirty-three in the House, and against very spirited opposition in both bodies.^ Such judicial legislation continued to be resorted to whenever the occasion seemed to require a departure from the usual and orderly forms of administering justice through the courts.^ Sentences of this char- acter are, however, utterly opposed to the modem spirit of justice and gradually ceased to be resorted to. ''The bill [of pains and penalties] against Queen Caroline," says Sir J. F. Stephen, ''will prob- ably long continue to be referred to as the last in- stance of such legislation. ' ' ^ Legislation of this character, as well as ex post Spedai ' '- constitu- facto laws generally, is by special constitutional hibiuons?" provision placed beyond the competency of both the 1 How. St, Tt. 481, extract from Burnet's Hist, Reformation. The illegality of these bills was argued again on the act of attainder against Sir John Fenwick in 1696, 13 How, St, Tr, 633, 1 1 How St. Tr, 494, and 2 Burnet's Reform, 99, quoted in note. 2 13 How, St. Tr. 538, A, D. 1696. This method of procedure was resorted to because one of the two witnesses, necessary to con- vict of treason, having disappeared, escape was inevitable on an ordinary prosecution, 2 Pike, Hist. Cr. in Eng. 325. 3 1 Steph. Hist. Cr. Law, 161; Pike, Hist. Cr. in Eng., passim; 4 Reeves Hist. Eng. Law (Am. ed., 1880) 554; Cummings v. Missouri, 4 Wall. (U. S.) 277, quoting Story on the Constitution, § 1344. A notable instance of a bill of pains and penalties was the act against Bishop Atterbury in 1723. 16 How. St. Tr, 323. The bill is at p. 644. 4 1 Steph. Hist. Cr. Law, 161, 68 DUE PROCESS OF LAW Chapter national^ and State legislatures,*^ by clauses in the Federal Constitution; and State constitutions limit the power of the legislatures by like provisions." fory^dvTi Confiscatoiy legislation of a civil character is as legislation, jjjy^,}^ opposcd to duc proccss of law as judgments of the legislature imposing penalties for crime. ' ' 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 j^rocess of law within the meaning of the constitutional provision."® For ** where rights of property are admitted to exist, the legislature can not say they shall exist no longer."^ The prohibition equally extends to a taking by the State for a public purpose, unless just compen- sation is made to the owner.^ Confusing Functions of Different Departments of Government. One of the objections urged against arbitrary and confiscatory legislation is, as has been seen, 5 Const. U. S., Art. I, § 9, H 3 ; 8 Fed. Stat. Annot. 695. 6 Const. U. S., Art. I, § 10, H 1; 8 Fed. Stat. Annot. 713. 7 See 12 Am. & Eng. Encyc. Law (2d ed.) 527, and note 6. 8 Davidson v. New Orleans, 96 U. S. 97, 102; Missouri Pac. R. Co. V. Nebraska, 164 U. S. 403, 417; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 236; Zeigler v. South, etc., Alabama R. Co., 58 Ala. 594; Davis r. State, 68 Ala. 58, 63, 44 Am. Rep. 128; Wynehamer V. People, 13 N. Y. 378; Taylor v. Porter, 4 Hill (N. Y.) 145; Hoke V. Henderson, 4 Dev. ( 15 N. Car. ) 15 ; Norman v. Heist, 5 W. & S. (Pa.) 171; Boggs V. Com., 76 Va. 989. » Wynehamer r. People, 13 N. Y. 378, 393, per Comstock, J. 1 Davidson v. New Orleans, 96 U. S. .97, per Bradley, J., concur- ring; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 236. And see imfra, p. 278. DUE PROCESS OF LAW 69 that it obliterates those lines of separation between Chapter the different departments of government whose ex- '■ — istence is firmly embedded in the substance of our institutions,^ and forms, according to publicists and judges, so important a safeguard to the rights of the citizen.^ The constitutions of the Federal Union and of ^emJ^of nearly all the separate States declare that the pow- men""" ers of the government shall be distributed among three branches; the legislative, the executive, and the judicial.^ The legislative department makes, the executive executes, and the judiciary construes the law.^ But though the idea which lies at the basis of the division is clear, and the importance of preserving broad lines of separation is admitted by the courts, the application of the principle in detail is difficult.^ The functions of government are necessarily J/J^"'*^ complex, and its activities may assume a doubtful "'^''^^^'°''- aspect and partake to such an extent of the duties of more than one department as to render proper classification, in the absence of distinct constitu- 2 The American constitutions are supposed to have derived the principle from Montesquieu. Crane V. Meginnis, 1 Gill & J. (Md.) 476, 19 Am. Dee. 237. See Montesquieu, Spirit of Laws, 1. 11, c. 6. 3 Some recent writers regard the theory of the separation of powers as discredited. See Goodnow, Comparative Administrative Law, 20. But it would not seem to affect the practical value of the principle that lines of demarkation between the different branches of government do not admit of being drawn with mathematical ex- actness, or that the separation as actually provided in various con- stitutions must have more or less of an arbitrary nature about it. 4 See Bondy, The Separation of Governmental Pawers (Columbia University Studies) 17. sWayman v. Southard, 10 Wheat. (U. S.) 1, 46. 6 See Kilbourn v. Thompson, 103 U. S. 168; Story on Const., 5th ed., 393, 395; Bondy, Sep. Gov. Powers, 69. 70 DUE PROCESS OF LAW Chapter tional provisions, largely a matter of the point of -; view from which the particular activity exercised is observed. As has been well said, "While it is true that the executive, legislative and supreme judi- cial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one; therefore, while each [department] should firmly maintain the pow- ers belonging to it, it can not be forgotten that the three coordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a 'common be- cause of vicinage, ' bordering the domains of each." ^ ^f"cou?fs -^^ ^^^ presence of such a state of things the p°robiem. courts arc reluctant to pronounce acts of the legis- lative department void, because it may have as- sumed, in their opinion, powers belonging to another branch, or have confused the functions of the execu- tive and the judiciary.^ Yet in some cases stat- utes conferring on one department of government powers which belong to another have been pro- nounced void as denying due process of law.^* Thus where a statute declared that it should be the duty of every landowner to clean out streams flowing through his land, and that in case of failure to do so, the tax assessor should note the fact and the county clerk should, thereupon, add a specified drainage tax to the assessment of such landowner, it was held that the statute was void as conferring judicial powers on ministerial officers and amount- 7 Brown v. Turner, 70 N. Car. 102. sWayman V. Southard. 10 Wheat. (U. S.) 1, 46. 8* See infra, pp. 1G4, 3G5 et seq. DUE PROCESS OF LAW 71 ing to a taxing of property without due process of Chapter law.^ A New York court has held that a statute in which the legislature assumed judicial powers and took from the judges discretion in certain cases amounted to a denial of due process.^ While the several States started with the same J^anS^ theory of the division of powers, constitutional pro- decision. visions and the natural growth in a living body of law have led to differences in the practical distribu- tion of duties among the departments of the govern- ment. In each State the location of lines of de- markation between the three powers must depend upon its own constitution and laws as interpreted by its highest court.^ The Federal Supreme Court has, therefore, held the separation of powers to be in general a matter of local law not cognizable under the due process clause of the Fourteenth Amend- ment. ** Whether the legislative, executive, and judicial powers [of a State]," said the Supreme Court, ''shall be kept altogether distinct and sepa- rate, or whether persons or collections of persons belonging to one department may in respect to some matters exert powers which, strictly sj^eaking, per- tain to another department of government, is for the determination of the State. And its determina- tion one way or the other cannot be an element in the inquiry, whether the due process of law pre- scribed by the Fourteenth Amendment has been re- 9 Cleveland, etc., R. Co. v. People, 212 111. 638. This holding, which is undoubtedly correct, would perhaps have been better put on the ground that the statute provided no hearing for the land- owner. iRiglander V. Star Co., 98 N. Y. App. Div. 101. 2 See People v. Hurlbut, 24 Mich. 63. 72 DUE PROCESS OF LAW Chapter II. Judicial "function- of execu- tive offi- Presump- tion as to discharge of duties. spected by the State or its representatives, when dealing with matters involving life or liberty. ' ' ^ The functions committed to executive officers by the laws may involve decisions of questions of fact which concern the private rights of individuals and which might, if the legislature so directed, be made the subject of actions in formal courts. Questions of this character are administrative in so far that it is competent for the legislature to commit their decision to administrative officials,'* but are judicial or quasi- judicial in so far that the power to decide arbitrarily does not exist, and notice and a hearing are necessary to constitute due process of law. The decision of administrative officials may in the ab- sence of constitutional restriction be made final by the legislature, or it may be reviewable in the courts ; but, if notice and an opportunity to be heard are present, in neither case is the constitutional guaranty infringed.^ In this way the legislature has intrusted general or local administrative officials with judicial func- tions in respect to the assessment or collection of taxes, the power of eminent domain, and the police power, using the last phrase in its widest extent.'' When the authority to decide questions involving private rights and to hear complaints is conferred on administrative bodies, ''their duties are judicial sDreyer v. Illinoi.s, 187 U. S. 71, 84. See also Ohio v. Dollison, 194 U. S. 445, where, in a liquor law, the absence of due process was claimed because the legislature failed to define " wholesale " and " retail " and left the amount of fine or penalty to the court. 4 Murray v. Hoboken Land, etc.. Co., 18 How. (U. S.) 272. oHibben r. Smith, 191 U. S. 310. « These matters are treated in subsequent chapters. See pp. 159, 189, 208, 253. DUE PROCESS OF LAW 73 in their nature and they are bound in morals and in Chapter law to exercise an honest judgment as to all matters '■ — submitted for their official determination. It is not to be presumed that they will act otherwise than according to this rule," and there is no deprivation of due process of lawJ In such a case if the admin- istrative board refuse to hear the person entitled to be heard, he may compel a hearing by mandamus or injunction, but he can not waive his remedy and then assert the denial of a hearing as a defense to an action to enforce the board's decision.^ Notice and Hearing. Justice requires that a hearing and an oppor- f^^^^^f^ tunity to present defenses must precede condemna- °^"^^"''^- tion. Around this ideal of justice has grown up the constitutional conception of ''the law of the land" or "due process of law," but the ideal was not confined to one system of jurisprudence, and was common to thoughtful men everywhere.^ Such a principle would obviously, when the conception of a law of nature had emerged, be referred to that head, and thus it is classed in an early reference by the English Court of Chancery. A Year Book of Edward IV records that, "In Chancery it was ob- served by the chancellor that a man shall not be prejudiced by mispleader or for default of form but according to the truth of his matter, and we T Spring Valley Water Works v. Schottler, 110 U. S. 347, 354; Hibben v. Smith, 191 U. S. 322; Lieberman r. Van De Carr, 199 U. S. 552, affirming 175 N. Y. 440. 8 Reetz V. Michigan, 188 U. S. 505, 509 ; Shank v. Smith 157 Ind. 401, cited in Hibben V. Smith, 191 U. S. 321. 9 See supra, p. 3. 74 DUE PROCESS OF LAW Chapter have to judge secundum conscientiam et non secun- dum allegata, for if a man by bill suggests that one has done wrong to liim, and the defendant says noth- ing and we have knowledge that he has not done wrong to the plaintiff, he shall recover nothing. And there are two kinds of powers and processes, namely, potentia ordinata et potentia ahsoluta: or- dinata is where a certain order is observed, as in positive law, but the law of nature non habet certum ordinem, but by whatever means the truth may be known, etc., ideo dicitur processus ahsolutus. In the law of nature it is required that the parties should be present, or that they should be absent through contumacy, that is to say, that they are summoned and make default, et examinatio veritatis." ^ •'•li^w'of '" Early in the seventeenth century, this require- ment of the law of nature is said by the Court of King's Bench to be implied in "the law of the land" as used in Magna Carta. In Bagg's Case,^ it was detennined that an alderman of a city could not be deprived of the freedom of the city contrary to the due course of law as required by the Great Charter, and in illustration of the proposition it is said that, though lawful cause of his removal exists, yet if "it appears by the return that they [the municipal au- thorities] have proceeded against him without hear- ing his answer to what was objected, or that he was not reasonably warned, such removing of him is void, and shall not bind the party, quia, quicunque aliquid statuerit, parte inaudita altera, aequiim licet statuerit, hand aequus fiierit,^ and such removing is 1 Y. B. 9 Edw. IV, 14, pi. 9. 2 11 Coke 99a (A. D. 1G16). 8 As to these verses, see supra, p. 2. the land." common DUE PROCESS OF LAW 75 against justice and right." Other cases afterwards Chapter decided dwell on the necessity for hearing in similar circumstances,'* and in Br. Bently's Case, Fortes- cue, J., quaintly remarks: *'The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a very learned man upon such an oc- casion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defense. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also." ^ Tliis doctrine was adopted into American juris- fuftii"" prudence to the fullest extent, and was referred to LT' the principles either of natural justice,*^ of interna- tional law,'^ or of the common law.^ ' ' It is a rule, ' ' said Mr. Justice Story, ''founded in the first princi- ples of natural justice, that a party shall have an opportunity to be heard in his defense before his property is condemned." And of a foreign judg- ment which violated this rule, he proceeded : ' ' Upon * Rex V. Mayor of Oxford, Palmer 453 ; Protector v. Colchester, Style 447; Le>Roy r. Campion, 1 Sid. 14, 2 Sid. 97; Capel v. Child, 2 Cromp. & J. 558; Bonaker V. Evans, 16 Q. B. 162, 71 E. C. L. 162. In the case from Style, in 1655, Rolle, C. J., said: "He ought to be heard what he could say for himself, else how could it be known whether there were just cause to remove him or no, and it is very hard to deprive one of his freehold without hearing him. . . . You ought to have convented him before you put him out." And Glyn, C. J., said : " You ought not to proceed against him and never hear him, though the crime objected against him be true." 5 Rex V. Cambridge University, 1 Stra. 558, 567. 6 Lafayette Ins. Co. v. French, 18 How. (U. S.') 404. 7D'Arcy r. Ketchum, 11 How. (U. S.) 165. 8 Picquet v. Swan, 5 Mason (U. S.) 35, per Story, J. 76 DUE PROCESS OF LAW Chapter the eternal principles of justice it ought to have ^ — no binding obligation upon the rights or property Notice and hearing requisite under con- stitutions. of the subjects of other nations, for it tramples under foot all the doctrines of international law."^ *'It is a rule as old as the law," the Supreme Court has said, "and never more to be respected than now, that no one shall be personally bound until he has had his day in court; by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judg- ment without such citation and opportunity wants all the attributes of a judicial determination. It is judicial usurpation and oppression, and never can be upheld where justice is justly administered."^ What It Includes under Our Constitutional Guaranties. The clauses in our constitutions guaranteeing "the law of the land" and "due process of law," have always been held to include the opportunity to present any defenses which might affect the decision of the court or tribunal. The opportunity to defend implies notice of an official inquiry into the facts, and "notice and hearing" are necessary to due process of law; are, indeed, "the essential elements" thereof.2 The notice and hearing requisite are present generally when the person whose life, lib- erty, or property is to be taken has, upon reasonable oBradstreet v. Neptune Ins. Co., 3 Sumn. (U. S.) GOO. And see Windsor v. McVeiorh, 93 U. S. 274. iGalpin v. Page, 18 Wall. (U. S.) 3.50; Hovey v. Elliott, 167 U. S. 400. 2 Simon v. Craft, 182 U. S. 436; Hooker v. Los Angeles, 188 U. S. 314, 318. DUE PROCESS OF LAW 77 notice, at some stage of the proceedings, an oppor- chapter tunity to present objections to the proposed action before a tribunal authorized to give effect to the ob- jections, if it regards them as valid.^ Thus, after judgment in a suit, a rule against a person not a party thereto to show cause why he should not be compelled to pay the amount of the judgment has been held to be sufficient notice and, if followed by a hearing wherein opportunity to defend was al- lowed, to constitute due process of law.^ An opportunity to defend does not in all cases in- volve the presence of the party during the trial.'^ Thus, in a trial of the issue of lunacy in a State court, it was held not essential that the alleged luna- tic be personally present, when notice of the inquisi- tion was personally served on her, and her interests were represented at the hearing by a guardian ad litem, the sheriff having returned as required by statute that it was not consistent with her health or safety to be present in person, and the statute war- ranting her absence in such a case.® The notice of a proposed course of action which will result in a taking of life, liberty or property must, in order to be due process, be reasonable in time, so as to give a real opportunity to present defenses. The authority to prescribe the time of notice resides in the legislature, and the courts will require a very clear case before interfering on this ground. In a case wherein a railroad company con- 3 Wilson V. Standefer, 184 U. S. 399, 415. 4 Louisville, etc., E. Co. v. Schmidt, 177 U. S. 230. 5 As to the necessity of presence of the accused during the trial of grave criminal charges, see infra, p. 165. 6 Simon r. Craft, 182 U. S. 436. Presence not essen- tial. Notice must be reasonable. 78 DUE PROCESS OF LAW Chapter tended that a reassessment against its property for the cost of a local improvement was a deprivation without due process because the notice of the reas- sessment was insufficient, it appeared that the law under which the reassessment was had prescribed three successive publications in a newspaper stating a time when the council would consider the reassess- ment, and that the owner of property reassessed was given ten days from the last publication to file objections. This virtually amounted to ten days' notice after the last publication. The Supreme Court, in holding that the notice could not be pro- nounced insufficient, said : "It may be that the au- thority of the legislature to prescribe the length of notice is not absolute and beyond review, but it is certain that only in a clear case will a notice author- ized by the legislature be set aside as wholly inef- fectual on account of the shortness of the time. The purpose of notice is to secure to the owner the op- portunity to protect his property from the lien of the proposed tax or some part thereof. In order to be effectual it should be so full and clear as to disclose to persons of ordinary intelligence in a gen- eral way what is proposed. If service is made only by publication, that publication must be of such a character as to create a reasonable presumption that the owner, if present and taking ordinary care of his property, will receive the information of what is proposed and when and where he may be heard. And the time and place must be such that with rea- sonable effort he will be enabled to attend and pre- sent his objections. . . . The fact that the owner after being notified is required to appear and file his DUE PROCESS OF LAW 79 objections within ten days, is thus the sole ground chapter of complaint. But how many days can the courts fix as a minimum? How much time can be ad- judged necessary as 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 ordi- nary- cases. No hardship to a particular individual can invalidate a general rule. ' ' "^ A clear case presenting the question of the suffi- of'Stfce?^ ciency of notice arose in Roller v. Holly,^ wherein, as to nonresidents, a statute of Texas requiring ap- pearance on five days ' notice was held not to be due process of law. *'For aught that appears here,'* said the court, ''parties may be called from the ut- termost parts of the earth to come to Texas and de- fend suits against them within five days from the day the notice is served upon them. ' ' Under the Texas statutes, judgment by default could only be entered on the fifth day of the term, but a nonresident could not be required to know this and was entitled to construe the notice as it read on its face. "Very probably, too," continued the court, ''the court which rendered the judgment would have set the same aside, and permitted him to come in and de- fend; but that would be a matter of discretion, a contingency which he was not bound to contemplate. The right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion." Since the constitutional requirement regards the T Bellingham Bay, etc., R. Co. v. New Whatcom, 172 U. S. 318. 8 176 U. S. 398. 80 DUE PROCESS OF LAW Chapter II. Depend on nature of the case. Dispensed with in some cases. reason of the thing and looks to substance rather than to fomi, notice and hearing depend on the na- ture of the case and must be adapted to the class to which it belongs.^ Thus due process does not ex vi termini require proceedings in a court of justice.^ In many cases a hearing before an executive or ad- ministrative board has been held sufficient to legal- ize the taking of the property of the citizen,^ but it has been said that he may be deprived of life or lib- erty only after a regular trial in due form in a court of justice.^ This, however, was but a dictum, and in view of later decisions is to be received with caution.^ In some special cases neither notice nor a trial is requisite to constitute due process of law. In cases of direct contempt committed in its presence, the court in the exercise of a power which is inherent and necessary to the existence of its authority to protect the rights of the citizen may punish the of- fender directly, and it is within its discretion to do so without notice to him or giving him an opportu- nity to purge himself of the contempt.^ Again, when the defendant on trial for felony voluntarily pleads guilty, the necessity of a trial is dispensed with and Davidson r. New Orleans, 96 U. S. 97, 107; Palmer v. Me- Mahon, 133 U. S. 009; Glidden v. Harrington, 189 U. S. 258. 1 McMillen r. Anderson, 95 U. S. 41; Public Clearing House v. Coyne, 194 U. S. 497, 508. 2 See supra, p. 72. sHagar v. Reclamation Dist. No. 108, 111 U. S. 701. 4 See Caldwell v. Texas, 137 U. S. 692; In re Converse, 137 U. S. 624; Leeper v. Texas, 139 U. S. 462; Reetz v. Michigan. 188 U. S. 507. The first three cases show how reluctant the Supreme Court of the United States is to interfere with State courts acting in ac- cordance with general laws in their own jurisdiction; the last, the wide freedom which the legislature has in conferring jurisdiction upon bodies other than established courts. e Ex p. Terry, 128 U. S. 289. See further infra, p. 1G9. DUE PROCESS OF LAW 81 the court may pronounce even the sentence of death chapter upon him without depriving him of due process of law.^ Provided the essentials of a fair hearing on no- ^eS'not tice are jDresent, due process of law does not demand *^^^"*'^^- that machinery to review the result of the hearing or to correct errors therein be provided. ''One hearing," the Supreme Court has said, "if ample, before judgment satisfies the demand of the Consti- tution in this respect," and "if a single hearing is not due process doubling it will not make it so."^ This rule of course holds as to all questions of mere fact involved.^ When the decision of any subordi- nate court, tribunal, or oflScer is made final on points of la'w upon which the jurisdiction may depend, the distribution of the powers of the government under the Constitution may be involved.^ The Federal Su- preme Court generally regards such questions, when arising on error to the State courts, as matter of local law.i It has gone far in upholding the validity of Acts of Congress vesting in merely administrative tribunals the final determination of questions in- volving their own jurisdiction.^ eHallinger v. Davis, 146 U. S. 314. 7 Pittsburg, etc., R. Co. V. Backus, 154 U. S. 426, 427. See also McKane v. Durston, 153 U. S. 684, 687; Reetz v. Michigan, 188 U. S. 508; Hibben v. Smith, 191 U. S. 322. And see infra, p. 159. 8 Long Island Water Supply Co. r. Brooklyn, 166 U. S. 683, 695. » See supra, Confusion of Different Departments of Government, p. 68. 1 See supra, p. 71. 2 See infra, The Persons Protected — Aliens, p. 190, and the sec- tions on tiotice and Hearing under Eminent Domain and Police Power, pp. 296, 370. 82 DUE PROCESS OF LAW Chapter II. More than hearing ex gratia re- quired. Notice pro- vided by implica- tion. Notice and Hearing Must Be Required, Not Matters of Grace. If notice and hearing are essential, tliey must be required by law. In a leading New York case it is observed: ''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 to them 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 ap- portioned. The constitutional validity of law is to be tested not by what has been done under it, but by what may by its authority be done. ' ' ^ But a stat- ute is to be construed as one law with the Constitu- tion, and, therefore, where notice and a hearing were actually had, and due process was required, not only by the federal but by the State constitution, it was not open to the defendant to object that the hearing was merely ex gratia.'* Similarly the powers granted by a municipal charter must be exercised subject to all the restric- tions imposed by constitutional provisions, and a clause therein granting local taxing power to a city need not expressly require notice. But an ordi- nance which attempts to exercise the power by pro- viding for a special assessment must require notice either expressly or by implication. In a case com- ing to the Supreme Court from Oregon a local as- 3 Stuart V. Palmer, 74 N. Y. 183, 188, by Earl, J., for the court. See also Rees r. Watertown, 19 Wall. (U. S.) 107; Louisville, etc., R. Co. V. Schmidt. 177 U. S. 230. ♦ Kentucky Railroad Tax Cases. 115 U. S. 334. DUE PROCESS OF LAW 83 sessment, levied for the cost of a sewer, was con- chapter tested on the ground that no notice was provided for either in the city charter or in the ordinance requiring the construction of the sewer. The ordi- nance did, in fact, in accordance with the charter name ''three disinterested persons" as viewers and direct that ''said viewers shall hold stated meet- ings" in a specified place, "and all persons inter- ested may appear before said viewers and be heard in the matter of making said estimate," The view- ers, immediately upon their appointment, gave no- tice of their first meeting. In the State court, Strahan, J., had said: "I think it would be a rea- sonable construction of this ordinance to hold that the right to be heard implies that notice shall be given, and, if this be so, the ordinance does provide for notice by necessary implication. That which is implied in a statute is as much a part of it as what is expressed."^ The Supreme Court approved this ruling, saying it was not a strained construction that the ordinance provided for notice.*^ It appears that a public sitting after due notice J;j^'^^f4'J- implies the opportunity to be heard. In State Rail- pifeshe^r- road Tax Cases, which involved the validity of a law of Illinois for assessing railroads, the statute pro- vided that railroad property should be assessed by the State board of equalization sitting at a time and place designated, and fixing the assessment with a schedule of the railroad's property, made by its own officers, before it. The method of assessment was held not to be open to objection. The court, by Mr. 5 Paulson V. Portland, 16 Oregon 450, 464. 6 Paulsen v. Portland, 149 U. S. 30, 40. 84 DUE PROCESS OF LAW Chapter Justice Miller, said: ''This board has its time of sitting fixed by law. Its sessions are not secret. No obstruction exists to the appearance of any one 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 a later case involv- ing the validity of a similar law in Kentucky, the court, after quoting Mr. Justice Miller's remark • above, said: ''In the proceedings questioned in these cases, there was in fact and in law notice and a hearing." It laid stress on the return of the cor- poration through its officers, which constituted a statement of its own case and formed the matter on which the board was to act.^ A like holding has been made with respect to a hearing before a State medical board for license to practice medicine. The statute made no special provision for notice, or hearing, or authority to summon witnesses or com- pel them to testify, but it provided for meetings at specified times and a specified place. ""When a statute," said the court, ''fixes the time and place of meeting of any board or tribunal, no special notice to parties interested is required. The stat- ute is itself sufficient notice. If the plaintiff in error had 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 testimony 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. "» T state Railroad Tax Cases. 92 U. S. fllO. «Kpntucky Railroad Tax Cases. 115 U. S. 332. 9 Reetz V. Michigan, 188 U. S. 505, 50!). A CHAPTER in. JUEISDICTION AND DUE PROCESS. THE GENERAL REQUIREMENT OF JURISDICTION". TOTAL want of jurisdiction over the person Chapter or thing to be affected by a judgment renders ■ the judgment void, and the proceedings in dicuon^ which it was obtained are obnoxious to the consti- '^o''"- tutional guaranty of due process of law.^ This principle was deduced from the natural right to notice and a hearing. The acquisition of jurisdic- tion depends on bringing home notice in some form to the person whose life, liberty or property is to be affected by the judgment, and jurisdiction, though acquired, is subject to the limitation that it must be lawfully pursued and validates judgment only after hearing or an opportunity to defend.^ "What is 1 Pennoyer v. Neff, 95 U. S. 733. 2 Windsor v. McVeigh, 93 U. S. 274; Hassell v. Wilcox, 130 U.S. 493; Hovey V. Elliott, 167 U. S. 409; Bradstreet v. Neptune Ins. Co., 3 Sumn. (U. S.) 600; China Mut. Ins. Co. v. Force, 142 N. Y. 95; Woodruff V. Taylor, 20 Vt. 65; Boggs r. Com., 76 Va. 989. The principle of the common law which forbade judgment against any one until he had appeared, 2 Poll. & M. Hist. 592, since it ex- isted in very primitive times, could not have been founded con- sciously on theories of justice and the law of nature. There was a time when the blood-feud was the only redress for a person injured. The blood-feud was replaced by a voluntary reference to an arbitra- tor, who awarded damages to the person injured. Jenks, Law and Politics in the Middle Ages, 100 et seq.; Maine, Ancient Law (3d Am. ed.) 364; Holmes, Com. Law, 3. The voluntary nature of this pro- ceeding was a most marked feature, and impressed its character bo deeply that traces survive in the procedure of courts long after the 86 DUE PROCESS OF LAW Chapter III. Sister-state judgments. absolutely indispensable [to jurisdiction] is," said the United States Circuit Court for New York, ''unless he [the person whose life, liberty or property is involved] has consented to the act of deprivation, that he shall have notice of the proceeding, either actual or, in proper cases, constructive, by publication, or by seizure of the thing itself; and that he shall have an opportu- nity to be heard in defense of his right or title. If the proceeding is wanting in these essentials, then by the principles of the common law, what- ever force and effect the judgment may otherwise have, it can not bind him; he is not and can not be treated as a party to the judgment without a vio- lation of what is regarded as a fundamental rule of natural justice. This rule of the common law is ob- viously intimately connected with the constitutional prohibition upon the States and the general govern- ment, forbidding them to deprive any person of his property without 'due process of law.' " ^ The clause of the Constitution guaranteeing full faith and credit to the judgments of sister States, has no application to judgments rendered without jurisdiction. The fact of jurisdiction is always open to inquiry, and the record of a judgment rendered state had undertaken the administration of justice in regular tribu- nals. The defendant must consent to the jurisdiction, and his appearance in private actions is consent. The state exhausts itself in efforts in civil cases to make him appear, by the issuance of process leading at last to outlawry, 3 Bl. Com., ch. xix; in criminal cases, to make him submit to the jurisdiction and plead, by the pein-e fo)-te et dure, 4 Bl. Com. .341; Carter, Outlines Eng. Leg. Hist. ISO. But it was ages before the last traces of the primitive conception were outgrown, and the obstinacy of the defendant was simply ignored. 3Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. (U. S.) 1, per Choate, D. J. DUE PROCESS OF LAW 87 in another State may be contradicted as to the Chapter existence of the jurisdictional facts recited in it.^ ''Judgments recovered in one State of the Union," says Mr. Justice Gray, "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-examinable upon the merits, nor impeach- able for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties."^ Speaking generally, jurisdiction extends to all j-^"!*-^^ persons and things lying within the territory of the tl^on'or •, . I • -1 persons State, and to neither persons nor thmgs lymg be- and things. yond those limits.^ The jurisdiction of a State, then, is based on the presence either of the person or of the res within its limits ; it is either jurisdiction of the person or jurisdiction of the subject-matter. When a person is within the State, he is subject to the process of its courts, and is personally bound by a judgment against him after the service of such process. When he is not within the State, jurisdic- tion can be acquired without his consent only through, and to the extent of, property within the State belonging to him, by a proceeding in which that property, the res, is brought within the grasp of the court."^ If a fact or proceeding is jurisdictional in its 4 Thompson v. Whitman, 18 Wall. (U. S.) 457 (the leading case on this proposition) ; Cole v. Cunningham, 133 U. S. 107; Thormann V. Frame, 176 U. S. 350; National Exch, Bank V. Wiley, 195 U. S. 257. BHanley t*. Donoghue, 116 U. S. 4. 6 Story, Confl. Laws, 539. Galpin v. Page, 18 Wall. (U. S.) 350. TBoswell V. Otis, 9 How. (U. S.) 336; Cooper v. Reynolds, 10 Wall. (U. S.) 316, 317; Picquet v. Swan, 5 Mason (U. S.) 35. DUE PROCESS OF LAW Chapter nature, that is, if it must exist or be performed as a condition to jurisdiction attaching or continuing, of ju^Hs''-^ a judgment rendered without the presence of such dictional facts. fact is necessarily void and subject to collateral at- tack.^ Upon this ground the issuance of letters of administration upon the estate of a person whose continued absence has raised the presumption that he is dead, is, if he is subsequently proved to have been alive at the date of issuance, absolutely void, as are all proceedings thereunder. The jurisdiction to grant such letters is dependent upon the very fact of death, and any notice required to be given is like- wise based on the same fact, and is not addressed to or intended to warn him upon whose estate let- ters are issued.^ But a statute authorizing admin- istration on the estates of persons who have disap- peared for a period of seven years or more and who consequently are presumed dead, may be valid, if it is based on the principle that mere absence for the period mentioned gives jurisdiction to grant letters of administration, provided that reasonable provision for notice is made in the event that the absentee may be alive, and that property rights are adequately safeguarded.^ 8 Instances and illustrations are found in Wise v. Withers, 3 Cranch (U. S.) 331; Rose i'. Himely, 4 Cranch (U. S.) 241; Wis- consin r. Pelican Ins. Co., 127 U. S, 265; Andrews t'. Andrews, 188 U. S. 14; and other cases cited in the prior notes to this chapter, » Scott V. McXeal, 154 U. S. 34; Lavin v. Emigrant Industrial Sav. Bank, 18 Blatchf. (U. S.) 1, a full and able consideration of the question by Choate, D. J. Contra is Roderigas f. East River Sav. Inst., 63 >3". Y. 4G0, which is somewhat shaken in Roderigas r. East River Sav. Inst., 76 N. Y. 316. 1 Cunnius v. Reading School Dist., 198 U. S. 458, affirming 206 Pa. St. 409. Upon the latter point the Pennsylvania statute upTield provided DUE PROCESS OF LAW 89 When jurisdiction has once attached, errors upon Chapter questions of mere procedure, or in the rulings of the '— court or tribunal, will not have the effect of oust- procJId" ing the jurisdiction, or render a judgment or decree '"^'' pronounced after such error subject to collateral attack; the proper and only way to correct errors not affecting the jurisdiction is by writ of error or by appeal.2 JUDGMENTS IN PERSONAM. When a proceeding is strictly in personam, s^/rvlcfo; brought to determine the personal rights and obli- esSa". gations of the parties, personal service within the State or a voluntary appearance in the cause is es- sential to the acquisition of jurisdiction.^ The same rule obtains in a proceeding qua^i in rem as to the validity of a personal judgment attempting to deter- mine the obligations of the defendant except as to the disposition of the resJ The invalidity of judg- that, if the absentee is proved to be alive, all powers conferred by the letters cease, the administrator must account to date, but all receipts or disbursements remain valid, provided that no title to property received as heir, next of kin, etc., is valid, but such prop- erty may be recovered. No property is to be paid to any one by the administrator unless the person receiving it gives security to return it in the event of the supposed decedent returning. 2Grignon v. Astor, 2 How. (U. S.) 319; McNitt v. Turner, 16 Wall, (U. S.) 366; Mohr v. Manierre, 101 U. S. 417; Thaw v. Pvitchie, 136 U. S. 519; Simmons v. Saul, 138 U. S. 439; Reinach v. Atlantic, etc., R. Co., 58 Fed. Rep. 43. sD'Arcy v. Ketchum, 11 How. (U. S.) 174; Webster v. Reid, 11 How. (U. S.) 437; Cooper v. Reynolds, 10 Wall. (U. S.) 316; Pennoyer v. Neff, 95 U. S. 714; St. Clair v. Cox, 106 U. S. 353; Pana v. Bowler, 107 U. S. 529; Hart v. Hansom, 110 U. S. 151; Grover, etc., Sewing Mach. Co. v. Radcliffe, 137 U. S. 294; Wilson v. Seligman, 144 U. S. 41. 4Picquet v. Swan, 5 Mason (U. S.) 35; Boswell v. Otis, 9 How. (U. S.) 348; Freeman v. Alderson, 119 U. S. 185. 90 DUE PKOCESS OF LAW Chapter ments without service results as well from the prin- ciples of international law as from those of due process of law. The rule that the jurisdiction of a State is confined to persons and things within its territorial limits belongs to international law, and the principle of the law of nature or natural justice, which requires notice and a hearing or opportunity to be heard before condemnation, is as essential in international law as in due process.^ Personal Before the passage of the Fourteenth Amend- statlT ment, the Supreme Court pronounced void personal judgments of any State obtained on constructive service only against a nonresident, whenever called in question beyond the limits of the State of the forum. In so holding the general doctrines of inter- national law were applied; for the members of the Union, save as restricted by the Constitution, possess and exercise the authority of independent states.^ Nor is the application of this principle affected by Article IV, Section 1, of the Federal Constitution, which provides that ''full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State," or by the Acts of Congress passed in pursuance thereof. ''The Act of May 26, 1790 «* (1 Statutes at Large, 122)," said the court, "gives to a judgment ren- dered 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 judgments rendered against persons not amenable to the jurisdiction rendering the judg- cPennoyer v. Ncflf, 95 U. S. 715. ePennoyer v. Neff, 95 U. S. 715. 0* Rev. Stat. U. S., sec. 905; 3 Fed. Stat. Annot. 37. DUE PROCESS OF LAW 91 mentsJ . . . The doctrine of this court as well Chapter as of the courts of many of the States is, that this Act of Congress 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 jurisdiction over them by an- other." ^ As the Constitution then stood, the federal gov- fjdlme°nt ernment had no concern with the presence of due o" forum. process of law in, and the consequent validity of, judgments rendered in a State against persons or property within its own limits; and, although such judgments rendered contrary to the first principles of justice ought to have been held void by the State courts, yet the Federal Supreme Court frequently limited its holding to the point of their extraterri- torial invalidity. Such language, it was observed in Pennoyer v. Ne/f,^ "caia. be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and that, therefore, it could be called in question only when its enforcement was elsewhere attempted." But the conditions were changed by the enactment of the Fourteenth Amend- ment, and the presence of due process of law, as con- strued by the Federal Supreme Court, was made an essential to the validity of a judgment in a State court even against its own citizens.^ Since, in de- T Citing D'Arey V. Ketchum, 11 How. (U. S.) 165. 8 Lafayette Ins. Co. v. French, 18 How. (U. S.) 404. 9 95 U. S. 732. 1 Pennoyer v. Neff, 95 U. S. 715. 92 DUE PROCESS OF LAW Chapter termining the validity of judgments, the doctrines of international law and of due process of law are the same, the necessity of such cautious limitation of the point adjudicated would seem to have dis- appeared, but expressions of this kind are still em- ployed by the court. Thus in Grover, etc., Sewing Macli. Co. V. Radcliffe,^ it is said: ''The distinc- tion between the validity of a judgment rendered in one State under its local laws upon the subject and its validity in another State is recognized by the highest tribunals of each of these States." And the court observed that even if the judgment could have been entered against a nonresident on constructive service in accordance with local law, "he could not be held liable upon such judgment in any other State, contrary to the laws and policy of such State." As was said by a State court in a recent case, obser- vations such as these were not to be taken as super- seding the principle established in Pennoyer v. Nef, or as casting any doubt upon it.^ Extrater- To sccurc pcrsoual jurisdiction over nonresi- ritorial ^ " Itryice} dents, a personal servdce beyond the limits of the State is equally ineffective as is constructive service by publication. The process of a court runs legally only within the limits of its jurisdiction, and it is only by service made within those limits that a right to pronounce a personal judgment against a non- resident without his consent is acquired.^ A general appearance entered by a person merely 2 137 U. S. 295. For similar remarks, see Hart v. Sansom, 110 U. S. 156; Goldey v. Morninf^ News, 156 U. S. 518. 3 Kemper-Thomas Paper Co. r. Shyer, 108 Tenn. 464. ■» Su^g V. Thornton. 132 U. S. 524; De La Montanya v. De La Montanya, 112 Cal. 115; Atherton v. Atherton, 181 U. S. 155. DUE PROCESS OF LAW 93 constructively served, waives all questions as to the Chapter sufficiency of the service, and gives the court juris- diction to render a valid personal judgment.^ A andlpeciai appear- special appearance may usually be entered to chal- ^n"- lenge the jurisdiction without waiving the illegality of service or submitting to the jurisdiction of the court.^ But a State statute which declares that a special appearance constitutes a general submission to the jurisdiction does not work a denial of due process of law. It does not interfere with the sub- stance of the defendant's rights, since he may choose not to appear at all, and then he will be free to question the judgment rendered against him ; but it merely puts a certain construction on a step in the case, a thing which the State has a right to doJ Judgments Against Nonresident Joint Debtors, Etc. Suppose a nonresident enters into a partnership consent to ^ -^ ^ certain or an association within a State, and the laws of the nonreli-^^ State and his own agreement contain a provision that the State courts shall have jurisdiction to render judgments binding on him in litigation arising out of the business of the association or partnership, upon the service of process in a specified manner, as upon service on his resident partner or manager, consti- tuted for this purpose his agent to receive service. "Goldey v. Morning News, 156 U. S. 521. cHarkness v. Hyde, 98 U. S. 476. 7 York V. Texas, 137 U. S. 15; Kauffman v. Wooters, 138 U. .S. 285. Such a statute is not binding on the federal courts sitting in such States, under the Act of Congress requiring conformity " as near as may be " to procedure in the State courts. Southern Pac. E,. Co. V. Denton, 146 U. S. 202; Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194. nonresi- dents; 94 DUE PROCESS OF LAW Chapter III. — accord- ing to in- ternational law. Modified by Federal Constitu- tion. Is jurisdiction so obtained valid? A line of Eng- lish cases express the general doctrine of inter- national law and hold that such an agreement in respect to jurisdiction entered into by a citizen of one independent sovereignty forming business rela- tions in another sovereignty is valid and gives the latter sovereignty jurisdiction in accordance there- with, when the agreement is in conformity to the laws of the latter sovereignty.^ "It is not contrary to natural justice," said the Court of Exchequer, ''that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have had actual notice of them." ^ Laws of this character enforce a wise domestic policy, in that they prevent the need of the citizen having recourse to foreign tribunals for remedies on the contracts made by aliens doing business in the sovereignty. But how far this principle of international law is applicable between the States under our dual system of government depends on the relation between the States established by the Constitution. This relation is that of independent sovereignties except as modified by constitutional sRousillon v. Rousillon, 14 Ch. D. 370; Copin v. Adamson, L. R. 9 Exch. 345, affirmed 1 Ex. D. 17; Bank of Australasia v. Harding, 9 C. B. 661; Vallee v. Dumergiie, 4 Exch. 290; Dicey, Confl. Laws 377. See also Pennoyer v. Neflf, 95 U. S. 735; Ouseley v. Lehigh Valley Trust, etc., Co., 84 Fed. Rep. 602. 9 Valine V. Dumergue, 4 Exch. 290. Whether the mere fact that the laws of the foreign sovereignty ■where the judgment is rendered provide that the citizen shall be bound by a designated form of notice is sufficient of itself to imply a conclusive assent seems unsettled. See Copin v. Adamson, L. R. 9 Exch. 345, 1 Ex. D. 17. DUE PROCESS OF LAW 95 provisions,^ one of which is that "the citizens of Chapter each State shall be entitled to all privileges and immunities of citizens in the several States. ' ' - The right to resort to the federal courts in con- ^Jfjj.* u> troversies arising with citizens of other States may coim! be considered a privilege of citizenship ; and, at any rate, the jurisdiction being fixed in the federal courts by Act of Congress under the Constitution,^ neither an act of the State legislature ^ nor a private agree- ment made in advance and operating generally as to all controversies ^ may abridge the right. The citizen "can not bind himself in advance," it has been said, "by an agreement which may be spe- cifically enforced thus to forfeit his rights at all times and on all occasions, whenever the case may be presented," ^ No action on the part of the State or of indi- consent to ■t Statejuns- viduals, then, can have the effect of preventing a '^"="°"- removal from the State courts to the federal courts, if the right of removal has been claimed in apt time.^ But it seems that a voluntary agreement entered into by a nonresident consenting to a State's juris- diction in suits to enforce liabilities arising from a particular transaction, may be effective, so far at least as to create an estoppel to deny the validity 1 Pennoyer v. NefiF, 95 U. S. 715. 2 Const. U. S., Art. IV, sec. 2; 9 Fed. Stat. Annot. 158. 3 Acts March 3, 1887, c. 373, § 1 (24 Stat. L. 552) ; Aug. 13, 1888, c. 866, § 1 (25 Stat. L. 434) ; 4 Fed. Stat. Annot. 265 et seq. 4 Cowles V. Mercer County, 7 Wall. (U. S.) 118; Goldey v. Morn- ing News, 156 U. S. 518; Barrow Steamship Co. V. Kane, 170 U. S. 100, 111; Blake v. McClung, 172 U. S. 239. 5 Home Ins. Co. v. Morse. 20 Wall. (U. S.) 445. 6 Home Ins. Co. v. Morse, 20 Wall. (U. S.) 445. 7 Martin v. Baltimore, etc., R. Co., 151 U. S. 686; Powers V. Chesapeake, etc., R. Co., 169 U. S. 98. 96 DUE PROCESS OF LAW Chapter of a State judgment rendered in accordance with the '■ — agreement. Thus an authority in a judgment note to an attorney to confess judgment has been held by a State court to validate the judgment confessed, although no notice had been served on the nonresi- dent maker.^ However this may be, the law of a state giving its courts jurisdiction, without personal service within the State, over a nonresident partner or party to a joint contract, upon personal service on the resident partner or party, or on a resident agent, is, at least so far as the extraterritorial ope- 8 Kingman v. Paulson, 126 Ind. 507. Grover, etc., Sewing-Mach. Co. V. Radcliffe, 137 U. S. 287, af- firming 66 Md. 511, is only to the point that when judgment is not confessed in accordance with the authority given, it is void, and personal jurisdiction must be acquired by service of process on the defendant. National Exch. Bank r. Wiley, 195 U. S. 257, is to the point that a judgment so confessed is open to attack in another State on the ground that jurisdictional facts were wanting. Becoming surety on a bond under a law which authorizes judg- ment against the surety when judgment is recovered against the principal, is a consent which binds the surety by a judgment so ren- dered. Beall r. New Mexico, 16 Wall. (U. S.) 535; Moore v. Hunt- ington, 17 Wall. (U. S.) 417; Johnson v. Chicago, etc., Elevator Co., 119 U. S. 388; Hopkins f. Orr, 124 U. S. 510. In the first case cited the court said: "A party who enters his name as surety on an appeal bond does it with a full knowledge of the responsibilities incurred. In view of the law relating to the subject, it is equiva- lent to a consent that judgment shall be ent«red up against him, if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, why this effect should not be given to appeal bonds in other actions, if the legislature deems it expedient. No funda- mental constitutional principle is involved; no fact is to be ascer- tained for the purpose of rendering the sureties liable which is not apparent in the record itself; no object (except more delay) can be subserved by compelling the appellees to bring a separate action on the appeal bond." DUE PROCESS OF LAW 97 ration of the judgment so obtained is concerned, a Chapter mere nullity.'' Considering the cases holding this doctrine in JenTcorpo- tlie light of the principle of international law an- shar°e"^^"'^ nounced above, they establish that in the absence of the nonresident's personal assent to the jurisdic- tion, a State can not by its laws annex conditions to the individual's right to make lawful investments or engage in lawful business within the State.^ "\¥hen, however, conditions can be exacted consti- tutionally, the general doctrine of international law applies. It is so in the case of corporations — arti- ficial beings whom the State may exclude entirely or receive on such terms as it will.^ And the prin- ciple has been applied to the case of individual stock- holders in corporations. A statute of Missouri de- clared that upon judgment recovered against a cor- poration and execution thereon returned unsatis- fied, execution might issue against any stockholder individually ''upon motion in open court after suffi- 9 Goldey v. Morning News, 156 U. S. 519, and citations there given; Brooks v. Dun, 51 Fed. Rep. 138; Moredock v. Kirby, 118 Fed. Eep. 182. The New York joint-debtor act provided that when joint debtors are sued and one is brought into court on process, though the other is never served, judgment may be rendered against both, by virtue of the process. Suit was brought in New York on a joint and sev- eral obligation of G. and A. G. appeared, but A., who was a citizen of Louisiana, was not served and did not appear. Judgment was given against both. It was held, on principles of general jurispru- dence, that A. was not, outside the State of New York, bound by the judgment and that the full faith and credit clause of the Con- stitution had no bearing on the case. D'Arcy r. Ketchum, 11 How. (U. S.) 165; Board of Public Works v. Columbia College, 17 Wall. (U. S.) 521. See also Hanley v. Donoghue, 116 U. S. 1; Renaud t\ Abbott, 116 U. S. 277. 1 See Moredock v. Kirby, 118 Fed. Rep. 180. 2 See infra, p. 189. 7 98 DUE PROCESS OF LAW Chapter cient notice in writing" to the stockholder. An exe- cution so issued against a nonresident, without per- sonal service within the State, was held, on familiar grounds, to have no validity either in the State of issuance or elsewhere,"^ but, in the course of its opin- ion, the court suggested that a State statute such as is frequently enacted with regard to corporations, to the effect that each nonresident stockholder should appoint an agent within the jurisdiction to receive serv'ice for him ; that, in default of appoint- ment, service may be made on a designated public official, and that judgment rendered against the cor- poration after such service should bind the stock- holders whether within or without the State, might be valid on stockholders without the State on the ground that the stockholders must be taken to have consented to the sufficiency of the service.^ Baltmiore ^^^^ principle of this suggestion is applied in a late case in the Supreme Court of the United States. A statute of Maryland imposed on stockholders in Maryland corporations a personal tax because of their ownership in the stock, without regard to their place of residence. The payment of the tax by the corporation on behalf of the shareholders was provided for, and the corporation was, thereupon, given a lien upon the stock for the amount of the taxes paid, which it was entitled to enforce by a personal action. The statute made no provision for notice to shareholders individually, but provided a sufficient notice with respect to the corporation. s Wilson V. Seligman, 144 U. S. 41. See also Howell r. Mangles- dorf, 33 Kan. 194; Dodd r. St. Louis, etc., R. Co.. 108 Mo. 581. * Wilson V. Seligman, 144 U. S. 45, per Gray, J. DUE PROCESS OF LAW 99 The validity of the tax was disputed by a nonresi- Chapter dent stockholder on the ground that the State had no jurisdiction to levy a personal tax upon nonresi- dents, at least, without giving them personal notice. The court adopted the view of the Maryland Court of Appeals that "a notice to each shareholder is unnecessary because the corporation represents the shareholders,"^ and said that by that construction the statutory provisions in question were "in legal effect constituting the corporation the agent of the stockholders to receive notice and to represent them in proceedings for the correction of an assessment," and that this condition attached by the law to the acquisition of stock in a domestic corporation was not in the opinion of the court arbitrary or un- reasonable, nor a deprivation of due process of law.*^ Another phase of the decisions denying the right J^f^™^'^*^ of the State to secure jurisdiction over nonresidents S".^*^ entering into partnership or joint contracts within the State, is presented by laws making constructive service on the nonresident party or debtor by per- sonal service on the resident partner or debtor, bind- ing on the partnership property within the State. Expressions are found by the United States Su- preme Court indicating that such laws are valid within the State, though invalid in other States."^ The reasoning in Pennoyer v. Neff would seem to establish that laws of this character, since the Four- teenth Amendment, give no validity to judgments against the joint property of joint debtors either 5 James Clark Distilling Co. v. Cumberland, 95 Md. 474; Corry V. Baltimore, 96 Md. 321. 6 Corry v. Baltimore, 196 U. S. 468. 7 Hall V. Lanning, 91 U. S. 160, 100 CUE PROCESS OF LAW Chapter within 01" witliout the State,^ and the same result would seem to follow as to partnerships where the common-law conception of a partnership is unaltered. But as to partnerships, laws of this character have been held to recognize the partnership as a legal entity distinct from the members who compose the firm, and have been held valid within the State of the forum.^ Jurisdiction Over Foreign Corporations. ifvfng^he -'-^ Pennoyer v. Neff,^ it is said that that case is iron not meant to assert that a State may not require of nonresident corporations doing business therein an assent to be bound by a particular kind of notice, 8 See supra, p. 93. Even within the jurisdiction and as to the joint property of the defendants, the validity of " joint debtor acts " has been denied on the ground that they assume the status on which the jurisdiction is asserted — "that the defendants are joint debtors, and that may be, to the defendant who is not served, the vital point of the con- troversy." Tay V. Hawley, 39 Cal. 96. Such statutes, since they infringe on the right to notice and a hearing, can not be referred to the category of procedure. 9 Sugg V. Tliornton, 132 U. S. 524. This case arose on the Texas statute, and the only question was the validity of the judgment in Texas. Even this question was considered in the opinion in a sup- plementary argument, after disposing of the case on another point. The validity of the judgment in the Texas case involves the proposition that a State may annex conditions to entering into a partnership within its limits, without regard to the intention of the nonresident partners. The condition becomes a quality impressed on the particular capital invested, which places it on a different plane from other property belonging to the nonresident. Invest- ments in corporations appear to be difTerentiated by the fact that the incorporators by their voluntary act, in return for certain ad- vantages, surrender certain privileges. The validity of the Iowa statute to a like effect is assumed by the Circuit Court in Ralya Market Co. v. Armour, 102 Fed. Rep. 530. 1 95 U. S. 735. DUE PROCESS OF LAW 101 or to deny that this assent may render a judgment Chapter obtained in conformity therewith binding upon the nonresident corporation.- The disclaimer was in- serted because the court had previously recognized the validity of certain State laws which designate a method of bringing suit against a foreign corpora- tion doing business within a State by service of process on its officers or agents resident in the State ;^ or (as since established) which require the coi'poration to name an agent to receive service, and in default of such desig-nation validate service on some public officer of the State."* These tj^pes of statute were rendered necessary by the once preva- lent doctrine that a foreign corporation could not be sued for the recovery of a personal demand out- side the State where it was chartered, and had its legal domicil.^ The constitutionality of these statutes follows Thestat- '' utes con- from the principles that a corporation is not a citi- ^titutionai. zen within the privilege and immunity clauses of the Federal Constitution ; ^ that its right to do busi- ness in States other than that of its origin depends on interstate comity only ; "^ that the State has the l^ower to attach reasonable conditions to the right,^ which power is certainly as extensive as its power 2 See Dicey, Confl. Laws, 369, 377, and supra, p. 94. 3 Lafayette Ins. Co. v. French, 18 How. (U. S.) 404. 4 Cady r. Associated Colonies, 119 Fed. Rep. 420. 5 Middlebrooks V. Springfield F. Ins. Co., 14 Conn. 301 ; 6 Thomp. Corp., § 7989. 6 Paul V. Virginia, 8 Wall. (U. S.) 168; Blake v. McClung, 172 U. S. 239; Orient Ins. Co. V. Daggs, 172 U. S. 557. 7 Augusta Bank v. Earle, 13 Pet. (U. S.) 519. 8 Augusta Bank v. Earle, 13 Pet. (U. S.) 519; Hooper v. Cali- fornia, 155 U. S. 648. strued. 102 DUE PROCESS OF LAW Chapter over domestic corporations.^ The authority to at- ^ — tach conditions includes the authority to demand an assent to the jurisdiction of the State permitting the corporation to do business within its limits/ but does not include the right to attach as a condition precedent to doing business within the State, an agreement abridging or impairing the right to re- sort to the United States courts in pursuance of a privilege secured by the Federal Constitution.^ Nor does it extend to corporations employed in the business of the general government or engaged in commerce under the authority or with the permis- sion of Congress.^ Thesm- The conditions imposed upon foreign corpora- tions, including the provisions for service on their resident agents, must not violate the settled doc- trines of public law. They must also be reasonable and conform to that rule of natural justice which requires notice of a suit to a party before he can be bound by its result,^ in other words, to the prin- ciple of due process of law. To give validity, then, to a personal judgment against a foreign corpora- tion under such a law, it must appear that the cor- poration is actually doing business within the State, since without this as a condition precedent no juris- 8 Orient Tna. Co. r. Daggs, 172 U. S. 566. 1 Lafayette Ins. Co. v. French, 18 How. (U. S.) 407; Baltimore, etc., R. Co. V. Harris, 12 Wall. (U. S.) 65; Ex p. Schollenberger, 96 U. S. 376. 2 Barrow Steamship Co. v. Kane, 170 U. S. Ill; Blake f. Mc- Clung. 172 U. S. 255. 3 Pembina Consol. Silver Min., etc., Co. v. Pennsylvania, 125 U. S. 185, 186. 4 Lafayette Ins. Co. V. French, 18 How. (U. S.) 406; St. Clair c. Cox, 106 U. S. 356. DUE PllOCESS OF L-V\V 103 diction can attach.^ The fact, therefore, that an chapter officer of the corporation who resides or is tempo- rarily within the State is served with process therein, gives no jurisdiction unless the corporation is en- gaged in business within its limits.^ Further, un- less the corporation has under the law designated some person to receive service of process, or has by failure to do so acquiesced in a statutory desig- nation, the person served must stand in a repre- sentative capacity to the corporation at the time of the serviced In Connecticut Mut. L. Ins. Co. v. Spratley,^ the ^ent'for question who is an agent upon whom service may pr^esl° be made is much discussed. The language of Mr. Justice Field in an earlier case was quoted, that it is requisite that his duties be not limited to those of a subordinate employee, or to a particular trans- action, and that his agency had not ceased when the matter in suit arose.^ Another early case was said to establish that an agent with power to contract was clothed with power to receive notice for the company.^ It was declared not a requisite that the agent be specially empowered by the company to receive service of process. "In the absence of ex- press authority," it was said, ''the question depends 5 St. Clair v. Cox, 106 U. S. 359; Wabash Western R. Co. r. Brow, 164 U. S. 271; Conley v. Mathieson Alkali Works, 190 U. S. 406; Cady V. Associated Colonies, 119 Fed. Rep. 420. 6 Fitzgerald, etc., Constr. Co. V. Fitzgerald, 137 U. S. 98; Goldey V. Morning News, 156 U. S. 518; Conley v. Mathieson Alkali Works, 190 U. S. 406 ; Geer v. Mathieson Alkali Works, 190 U. S. 428. 1 St. Clair v. Cox, 106 U. S. 350 ; Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194; In re Hohorst, 150 U. S. 663. 8 172 U. S. 602. 9 St. Clair r. Cox, 106 U. S. 359. 360. 1 Lafayette Ins. Co. v. French, 18 How. (U. S.) 404. 104 DUE PROCESS OF LAW Chapter upon a review of the surrounding facts and upon the inferences which the court might properly draw from them. If it appear that there is a law of the State in respect to the service of process on foreign corporations and that the character of the agency is such as to render it fair, reasonable, and just to imply an authority on the part of the agent to re- ceive service, the law will and ought to draw such an inference and to imply such authority, and serv- ice under such circumstances and upon an agent of that character would be sufficient." ^ In this case an insurance company had ceased to do further busi- ness in Tennessee and had withdrawn its agent from that State, but it still had policies outstanding there- in, the premiums on which were paid to an agent in Kentucky. Upon the death of a policy-holder in Tennessee, the company sent an agent whose con- tract of employment described him as employed ''for special service in any matters which may be re- ferred to you," to investigate the case, with author- ity to compromise the claim. Service upon this agent was held to be valid and to constitute due process of law. Statutes While laws providing for the service of process warranting , . . IssentLr^ on foreign corporations exist m perhaps all the States, by the better and more modern doctrine such laws are not essential. It is considered that when a corporation avails itself of the comity of a sister State, enters there, makes contracts, and does busi- ness, it by such action submits to the jurisdiction of that State and a service upon its principal agent 2 172 U. S. 617. See also Strain v. Chicago Portrait Co., 126 Fed. Rep. 831. DUE PROCESS OF LAW 105 therein is sufiBcient to bind it by a personal judgment chapter rendered by the courts of that State.^ "The liabil- ity," says the United States Supreme Court, "of a foreign corporation to be sued in a particular juris- diction need not be distinctly expressed in the stat- utes of that jurisdiction, but may be implied from a grant of authority in those statutes to carry on its business there." ■* The same principles apply to give jurisdiction to the United States courts sitting in a State and give them jurisdiction against foreign corporations in conformity with local statutes pro- viding for service of process,^ or, upon the more reasonable views just explained, in the absence of such statute.^ But it should be noticed that some States hold to the doctrine that a personal judgment against a nonresident corporation is invalid in the absence of an express law authorizing service, and decline to take jurisdiction of such suits except as far as it has been expressly conferred by statute/ Extraterritorial Control in Equity Over Property and Rights of Action. Property and causes of action beyond the limits of a State may, where those who own the property or are entitled to maintain the action are within 3 Baltimore, etc., R. Co. v. Harris, 12 Wall. (U. S.) 65, ex- plained and applied in Barrow Steamship Co. v. Kane, 170 U. S. 108, 109; Wilson Packing Co. v. Huntern, 8 Biss. (U. S.) 429; Hay- den V. Androscoggin Mills, 1 Fed. Rep. 93- IMarch v. Eastern R. Co., 40 N. H. 577 et seq. 4 Barrow Steamship Co. V. Kane, 170 U. S. 108. ^ Ex p. Schollenberger, 96 U. S. 369; New England Mut. L. Ins. Co. r. Woodworth, 111 U. S. 146. 6 Barrow Steamship Co. V. Kane. 170 U. S. 100. 7 See cases cited in Barrow Steamship Co. v. Kane, 170 U. S. 110. 106 DUE PROCESS OF LAW Chapter the jurisdiction of the State, be controlled to a lim- '■ — ited extent by the decree of a court of equity, operat- ing in personam and enforced by process in per- sonam. Whenever, by reason of the existence of a trust or of fraud or of any matter of equitable cog- nizance, a court of chancery has jurisdiction and the necessary parties are before the court, it may by a decree in personam according to the equities be- tween the parties compel a conveyance of the title to real property with the formalities necessary ac- cording to the lex loci rei sitae, and the exercise of this jurisdiction does not interfere with the supreme control over property of the State where it is situ- ated.^ Upon the same principle, equity exercises control over personal property and contract rights lying beyond the territorial jurisdiction of the court.^ The doctrine is applied by the courts of the parties ' domicil to restrain in other States the prose- cution of suits which would result in defeating the operation of the laws of the domicil to the injury of its citizens.^ Thus the courts of the domicil may enjoin suits in other States instituted to evade the exemption laws of the domicil,^ or foreign suits by the resident creditors of the insolvent, the effect of sPenn v. Baltimore, 1 Ves. 444, 2 White & T. Lead. Cas. (4th Am. ed.) 1806; Massie V. Watts, 6 Cranch (U. S.) 148; Northern Indiana R. Co. V. Michigan Cent. R. Co., 15 How. (U. S.) 233; Pen- noyer v. Neff, 95 U. S. 714, 723; Phelps v. McDonald, 99 U. S. 298. 9 Phelps r. McDonald, 99 U. S. 308; Cole v. Cunningham, 133 U. S. 107; Mitchell v. Bunch, 2 Paige (N. Y.) 606. 1 Cole r. Cunningham, 133 U. S. 107. 2 Wilson V. Joseph, 107 Ind. 490; Zimmerman v. Franke, 34 Kan. 650; Keyser v. Rice. 47 Md. 203; Snook v. Snetzer, 25 Ohio St. 516; 12 Am. & Eng. Encyc. Law (2d ed.) 256, 16 id. 422. DUE PROCESS OF LAW 107 which would be to give such creditors a preference chapter not allowed by the domestic insolvency laws.^ JUDGMENTS IN EEM. In a well-known case the Federal Supreme Court LTsdz^ laid down the conditions of jurisdiction in rem as eJs^entiar follows: ''Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concern- ing it. The power to render the decree or judg- ment which the court may undertake to make in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause. . . . While the gen- eral rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be ac- quired by acts which are of equivalent import and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court by the officer's levy of the writ and return of that fact to the court. So the writ of garnishment or attachment or other form of service on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdic- 3 Cole V. Cunningham, 133 U. S. 107 {affirming Cunningham v. Butler, 142 Mass. 47, 56 Am. Rep. 657 ) ; Dehon r. Foster, 4 Allen (Mass.) 545; 16 Am. & Eng. Encyc. Law (2d ed.) 422. 108 DUE PROCESS OF LAW Chapter tioH of the court, thougli the money may remain in — the actual custody of one not an officer of the court." ^ Proceed- Proceedings in rem are either strictly in rem or ings in rem iniem^'' QUttsi ifi rem. The first of these classes includes "proceedings against property alone, treated as re- sponsible for the clahns asserted by the libelants or plaintiffs. The property itself is in such actions the defendant, and, except in cases arising during war for its hostile character, its forfeiture or sale is sought for the wrong, in the commission of which it has been the instrument, or for debts or obliga- tions for which by operation of law it is liable. The court acquires jurisdiction over the property in such cases by its seizure, and of the subsequent proceed- ings by public citation to the world, of which the owner is at liberty to avail himself by appearing as a claimant in the case."^ Proceedings quasi in rem are brought against persons in order to subject specific property to the discharge of the claims asserted. They differ from actions strictly in rem principally *4n that the interest of the defendant is alone sought to be affected, that citation to him is required, and that judgment therein is only con- clusive between the parties." ^ As to what proceed- ings are quasi and what strictly in rem, it is said in a leading case: "In a strict sense, a proceed- ing in rem is one taken directly against property, and has for its object the disposition of the prop- erty, without reference to the titles of individual ♦ Cooper r. Eeynoldg, 10 Wall. (U. S.) 308, per Miller, J. 6 Freeman r. Alderson, 119 U. S. 185, per Field, J. • Freeman i\ Alderson, 119 U. S. 185. DUE PROCESS OF LAW 109 claimants; but in a larger and more general sense, Chapter the terms are applied to actions between parties '■ — where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or en- force a lien. As far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned." "^ The typical case of a proceeding strictly in rem ^yS?e is a libel in admiralty to enforce a maritime lien or onfy^on"^ forfeiture, and such a proceeding binds the res as against the whole world, in the absence of any per- sonal notice to the parties interested.^ The seizure brings the property within the custody of the court, and operates to impart notice of the fact to the own- ers and others interested in the property. In such a case, the rule that seizure is notice is necessary, because the only process is served on the thing it- self; and it is reasonable, ''because," in the lan- guage of Chief Justice Marshall, ''it is the part of common prudence for all those who have any interest in it to guard that interest by persons who are in a situation to protect it."^ Some discussion has, however, arisen as to whether mere seizure is enough to give jurisdiction. In Windsor v. Mc- Veigh, in a passage frequently quoted, Mr. Jus- tice Field says: "The jurisdiction acquired by the seizure is not to pass upon the question of forfeiture T Pennoyer v. Neff, 95 U. S. 734, per Field, J. sCastrique v. Imrie, L. R. 4 H. L. 414; The Globe, 2 Blatchf. (U. S.) 427. 9 The Mary, 9 Cranch (U. S.) 144. 110 DUE PROCESS OF LAW Chapter absolutely, but to pass upon that question after op- portunity has been afforded to its owner and parties interested 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 proclamation, or publication in some other form. The manner of the notification is immaterial."^ The case in which this passage occurs was one which involved the validity of con- fiscation proceedings under an Act of Congress authorizing confiscation "of the property of reb- els." There was a seizure of land in controversy and publication of monition. In response, the owner of the land appeared and filed an answer, but this was stricken out by the court on the ground that it appeared from the answer that the owner was ''within the Confederate lines and a rebel." The lands were, therefore, adjudged forfeited and sold. It was held that the sale was void and passed no title. The statement of the facts shows that no question of want of notice was involved, and the sole question was whether the court's action deprived the defendant of his constitutional right to be heard. Want of a hearing after notice, not want of notice, was fatal, in accordance with the principle happily stated elsewhere in the opinion that "jurisdiction is the right to hear and determine ; not to determine without hearing." ^ The two cases seem to present 1 93 U. S. 270. 2 In a later case, Mr. Justice Field said: "The law assiimes that property is always in possession of its owner, in person or by agent, and it proceeds upon the theory that its seizure will inform DUE PROCESS OF LAW 111 no f)ractical conflict. If the mere seizure gives juris- Chapter diction, the jurisdiction may yet be forfeited by ■ '■ — failure to proceed according to the principles of natural justice, namely, on notice and hearing. Usually in a strict proceeding in rem no person can complain of want of hearing, because every person having any interest may make himself a party and appeal from the sentence.^ In attachment and garnishment proceedings the ^^^^^^' effect of a judgment depends on the course adopted by the defendant. *'If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer any demand which may be established against the de- fendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. ' ' * In no case of proceedings in rem or quasi in rem J^l^°^^l^^ does the court by seizure and constructive service ra"medl gain authority to pronounce a judgment binding the him, not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale." Pennoyer v. Neflf, 95 U. S. 715. 3 The Mary, 9 Cranch (U. S.) 144, per Marshall, C. J.; Brad- street V. Neptune Ins. Co., 3 Sumn. (U. S.) 609, per Story, J.; The Ann, 5 Hughes (U. S.) 292, 8 Fed. Rep. 923; Leigh v. Green, 193 U. S. 79. * Cooper V. Reynolds, 10 Wall. (U. S.) 318, per Miller, J.; Story Confl. Laws 549. 112 DUE PROCESS OF LAW Chapter III. Seizure not the criterion. owner of the res personally ; it can control only the disposition of the property seized.^ Even though the proceeding is one, as in a suit begun by attach- ment, where the judgment is personal in form, it is without effect as to nonresidents not personally served, except to dispose of the property attached. No personal execution can issue against the non- resident, nor can any personal liability for costs attach on such a judgment.^ Extension of Conception of Proceedings In Rem. With the principle so frequently announced that all proceedings are either in personam or in rem, and that as against nonresidents without personal service, only in proceedings in rem was jurisdiction acquired and due process of law present,*^ it be- came necessary to force every proceeding in which constructive service of process was held valid into the class of proceedings in rem. We have seen the conception extended from a proceeding begun by seizure under process directed against the res as the actual defendant and binding oBoswell 17. Otis, 9 How. (U. S.) 348; Cooper i\ Reynolds, 10 Wall. (U. S.) 318; Pennoyer v. Xeff, 95 U. S. 723; Freeman r. Alderson, 119 U. S. 185; Johnson v. Powers, 139 U. S. 159; Dewey V. Des Moines, 173 U. S. 193. 6 Cooper V. Reynolds, 10 Wall. (U. S.) 318; Freeman r. Aider- son, 119 U. S. 185. 7 Yet in Cooper v. Reynolds, 10 Wall. (U. S.) 308, the court by Miller, .J., said: "We do not deny that there are cases, which not partaking of the nature of proceedings in rem, when the judg- ment is to have an effect on personal rights, as in divorce suits, or in proceedings to compel conveyance, or other personal acts, in which the legislature has properly made the jurisdiction to depend on pub- lication of notice, or on bringing the suit to the notice of the party in some other mode, when he is not within the territorial jurisdic- tion." DUE PROCESS OF LAW 113 on all the world,^ to a proceeding against persons, Chapter begun by an act "of equivalent import" to seizure, '— and conclusive only between the parties. An ac- tion to try the title to land and for a partition there- of was subsequently held a quasi proceeding in rem, although it is not apparent in what sense it could be considered as begun by a constructive seizure of the property.^ The same construction was put upon a proceeding to condemn land for a railroad, where the owner of the property was a nonresident, who was served constructively only. The court held the notice under the circumstances due process of law and the proceeding not open to collateral attack. The reasoning is not technical, but is placed on broad grounds of public policy; that the owner of 8 In the first lecture of " The Common Law," Mr. Justice Holmes outlines the history of penalties inflicted on animals and inanimate things, and finds their source in the savage's ascription of per- sonality to non-human objects, animate and inanimate. From this he derives the form of the admiralty procedure in rem, the reason of course being changed to suit advancing enlightenment. If this be true, and every analogy points that way, it would seem a mere mat- ter of historical accident that the res is the defendant and the proc- ess served on it, and we shall not be inclined to give too much weight to a procedure with such an origin, when the problem is whether a particular proceeding shall affect nonresidents and those not sum- moned personally. In an opinion pronounced when Chief Justice of Massachusetts, Mr. Justice Holmes said : " It is true as an his- torical fact, that these symbols [personification of the res as defend- ant] are used in admiralty proceedings. . . . But a ship is not a person. It can not do a wrong or make a contract. To say that a ship has committed a tort is [from a modern standpoint] merely a short-hand way of saying that you have decided to deal with it as if it had committed one, because some man has committed one in fact. There is no a priori reason why any other claim should not be en- forced in the same way. . . . The fact that it is not so enforced imder existing practice affords no test of the powers of the legisla- ture." Tyler r. Judges, 175 Mass. 71. 9 Freeman v. Alderson, 119 U. S. 185. 8 114 DUE PROCESS OF LAW Chapter real property can not evade the duties and obliga- '■ — tions which the law attaches to his property by ab- sence from the State, and that otherwise the bur- dens of taxation and eminent domain would be a name only,^ In Arndt v. Griggs,'^ a suit under the Nebraska statutes to remove a cloud on and quiet the title to certain lands, brought by one in actual possession under- a tax deed, was held to be due process of law as to nonresidents, although there was only constructive service upon them. There is inherent in every sovereign state, it was said, the power to secure and quiet the title to real property within its limits, and since the duty which is cor- relative to this power devolves on the States and not on the national government, ''no proceeding which it [the State] provides can be declared invalid, un- less in conflict with some special inhibition of the Constitution or against natural justice." The valid- ity of the judgment rests then on the State's power to settle titles within its jurisdiction and the exercise of that power by giving a greater effect to a judg- ment to quiet title than was given to such a decree in equity.^ Throughout the opinion the action is treated as in rem, though not begun by seizure. Proceed- The principle of this decision is reaffirmed and ings to es- cheat land emphasized in Hamilton v. Brown,'^ wherein it was held that a proceeding to escheat land in conformity with the Texas statute which provided for construc- 1 Huling V. Kaw Valley R., etc., Co., 130 U. S. 559. 2 134 U. S. 316. s See Hart v. Sansom, 110 U. S. 151, and the remarks on this case in Aradt v. Griggs, 134 U. S. 316, and Roller v. Holly, 176 U. S. 398. * 161 U. S. 256. and fore- close liens, DUE PROCESS OF LAW 115 tive or substituted service on nonresidents, was, as Chapter to them, due process of law and conclusive. The court said: ''As to personal property, indeed, a judgment in rem after notice by publication only might not bind persons who had no actual notice of the proceedings, unless the thing had been first seized into the custody of the court. But it was within the power of the legislature of Texas to pro- vide for determining and quieting the title to real estate within the limits of the State and within the jurisdiction of the court, after actual notice to all known claimants, and notice by publication to all other persons." In Roller v. Holly, ^ a suit to en- force an equitable lien for purchase money against a nonresident on constructive service was pro- nounced valid, and the court said : ' ' If the plaintiff be in possession, or have a lien upon land within a certain State, he may institute proceedings against nonresidents to foreclose such lien or to remove a cloud from his title to the land," calling in non- residents by constructive ser\dce in accordance with local legislation. "In suits for the foreclosure of a mortgage or other [pre-existing] lien upon such property, no preliminary seizure is necessary to give the court jurisdiction. The cases in which it has been held that a seizure or its equivalent" is necessary, ''are those where a general creditor seeks to establish and foreclose a lien thereby acquired." This generalization will evidently not include Ham- ilton V. Brown, which was not mentioned by the court, but it shows that the court has consciously s 176 U. S. 398. See also Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 450. 116 DUE PROCESS OF LAW Chapter III. Character of proceed- ings con- trolled by political necessity. abandoned the conception of proceedings in rem, using that tenn broadly as determining jurisdiction, as begun by seizure. Indeed it seems fair to say that the old criterion has shifted, and that now a quality which was an in- cident of proceedings strictly in rem — the validity of constructive service or notice — has, under pres- sure from constitutional provisions, become the test of proceedings in rem in the broad sense; that this quality may arise from considerations of political necessity and expediency without reference to the manner of beginning the action and equally without reference to the conclusive effect of the judgment. In the nature of things, in the shifting of criteria, the State courts must lead the way, and principles may be established in the State courts for many years before receiving the approval or disapproval of the Federal Supreme Court. In order to force all cases of valid service by substitution or construc- tion within the classification of proceedings in rem, the conception of res has been widened to take in in- tangible things. We shall see the status of parties treated as a res,^ though in such cases seizure is of course impossible. Seizure is dispensed with also in cases where to talk of a pre-existing lien would seem a mere straining of language. Thus proceed- ings for the probate of a will have been held in rem as binding upon constructive service. ''The decree of the court admitting the will to probate," it has been said, '*is in the nature of a judgment in rem which establishes the will against all the world. ' ' ^ 6 See infra, p. 122. 7 Bonnemort v. Gill. 167 Mass. 338. See also Matter of Young, 123 N. Car. 358, and 22 Am. and Eng. Encyc. of Law (2d ed.) 112. DUE PROCESS OF LAW 117 A recent case in the United States Supreme Court, Chapter where a grant of letters of administration was treat- ed in effect as a proceeding in rem, illustrates the same tendency,^ In short, it would seem that any proceeding is S-To^nTaf- in rem for the purpose of jurisdiction, which the po- S?'^' ^^^ litical exigencies of the State, that is public policy, require should be effective upon service by publica- tion or constructive service. In upholding the pro- vision of the Massachusetts ''Torrens Act," which made the registration of title conclusive as against every one, without personal service of citation. Chief Justice Holmes, in a passage which represents his own views only, said: ''If, on the other hand, the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts, which, if true, show an inconsist- ent interest, the proceeding is in rem. 2 Freeman Judgm. (4th ed.) 606. All proceedings, like all rights, are really against persons. Whether they are proceedings or rights in rem depends on the number of persons affected."^ This is surely 8 Cunnius v. Reading School Dist., 198 U. S. 458. See supra, p. 88. 9 Tyler v. Judges, 175 Mass. 71. This case went to the United States Supreme Court, but the interesting question involved was not determined, the case being dismissed on the technical ground that the appellant was not a party and the point a mere moot point. The validity of the act would seem to follow from the Supreme Court eases cited above. Acts of this character have been upheld also in Minnesota, Dewey v. Kimball, 89 Minn. 454; aud in Illinois, People V. Simon, 176 111, 165. In Ohio such an act was held not to afford due process of law. State v. Guilbert, 56 Ohio St. 575. See Torrens Acts. 28 Am. and Eng. Encyc. of Law (2d ed.) 251; Leigh V. Green, 193 U. S. 79, 92. 118 DUE PROCESS OF LAW Chapter III. sound sense and seems to be warranted by the trend of the modern cases. But it is not alone in cases where the judgment is conclusive against the world that the conception of proceedings in rem needs ex- tension. In the recent case of Cunnius v. Reading School Dist.,^ the power of a State to acquire juris- diction over the estates of absentees by constructive service is upheld. The court does not classify the proceeding as in rem or in personam, but it pro- ceeds on the broad ground that the property dealt with is subject to the burdens and obligations of property generally in the State, and that a statute authorizing the procedure is within the police powers of the State and necessary for the well-being of society. Mobilia sequuntur personam. Tangible personal property. Situs of Personal and Intangible Property as Affecting Jurisdiction. Wlien a proceeding in rem is brought to subject to particular claims personal propert}^ and intangi- ble things, an antecedent difficulty arises in deter- mining whether the res is within the limits of the State. Personal property has in general no locality, and the law of the owner's domicil governs the va- lidity of transfers and alienations thereof, accord- ing to the maxim, 77iohilia sequuntur personam, un- less, says Mr. Justice Story, " there is some positive or customary law of the countiy where it is found to the contrary. "2 The exception is a large one and removes a num- ber of proceedings from the operation of the rule. 1 ins U. S. 458. 2 Black V. Zacharie, 3 How. (U. S.) 514. the maxim applied. DUE PROCESS OF LAW 119 According as personal property is a tangible thing, Chapter or a mere chose in action, different views as to its situs may be entertained. Where personalty con- sists of tangible objects, the laws of the State where it is actually found determine the validity of a seiz- ure and sale under attachment or garnishment rather than the law of the State of the owner's dom- icile The law of the State of the actual situs of tangible personal property governs likewise its lia- bility to taxation, for the power of a State to sep- arate personal property from its owner and give it a situs for taxation is indisputable.'* When personal property is intangible, a mere JeJt^Sy chose in action, the question of its situs is still more obscure. Here the legal fiction mohilia sequimtur personam seems the only possible guiding principle, and accordingly in a famous case. State Tax on Foreign Held Bonds^ it was, in the opinion pro- nounced for the majority of the court, raised as regards the right of taxation to the position of a principle of law. The case actually determined only that a State law imposing a tax on the bonds of a domestic corporation, secured by a mortgage on real property belonging to the corporation in the State, and authorizing the corporation to deduct the amount of the tax from the interest due on the bonds, was as to nonresidents a law impairing the 3 Green v. Van Buskirk, 5 Wall. (U. S.) 307. 4Tappan v. Merchants' Nat. Bank, 19 Wall. (U. S.) 490; Pull- man's Car Co. V. Pennsylvania, 141 U. S. 22; New Orleans v. Stam- pel, 175 U. S. 319; Blackstone v. Miller, 188 U. S. 204; Carstaira V. Cochran, 193 U. S. 10; Old Dominion Steamship Co. V. Virginia, 198 U. S. 305; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. 5 15 Wall. (U. S.) 300. See further infra, p. 208. maxim abandoned. 120 DUE PROCESS OF LAW Chapter obligation of contracts. But the principle that debts generally conld have no situs apart from the resi- dence of the creditor was broadly announced, and seems to have been understood as the basis of the decision. o/the^'^ The principle, however, could not be maintained in its entirety. It was soon held that shares of stock in corporations might be separated from the person of the owner, given a situs where the cor- poration was, and taxed against nonresidents.^ The later cases lay stress on the fictitious character of the rule that the domicil of the owner is the situs of intangible personalty, and declare that the rule must give way whenever it conflicts with logic and the policy of the State.'^ While the decision in State Tax on Foreign Held Bonds is followed when a tax on foreign held bonds is in question,^- it has '^been cut down to its precise point by later cases. "^ Bonds, the subject-matter of the case, have been distinguished as more than mere evidences of debt ; for the debt upon such instruments is held to be in- separable from the paper which declares and con- stitutes it, and which, therefore, gives a physical situs to the property represented.^ "Tappan r. Merchants' Nat. Bank, 10 Wall. (U. S.) 490; State Railroad Tax Cases, 92 U. S. 607; Pullman's Palace Car Co. v. Pennsylvania. 141 U. S. 18; Corry V. Baltimore, 190 U. S. 406. 7 State Railroad Tax Cases, 92 U. S. 607 ; Pullman's Palace Car Co. V. Pennsylvania, 141 U. S. 22; New Orleans i". Sterapel, 175 U. S. .320; Black-stone r. Miller, 188 U. S. 206; Assessors v. Comp- toir National d'Escompte, 191 U. S. .388. 8 Murray r. Charleston, 96 U. S. 432. 9 Blackstone r. IMiller, 188 U. S. 200. 1 Blackstone r. Miller, 188 U. S. 200. See also Bacon v. Hooker, 177 Mass. 3.3.5; 2 Ames Cas. Bills & Notes, 872 et seq. In New Orleans v. Stempel, 175 U. S. 320, the case of State DUE PROCESS OF LAW 121 With respect to matters other than taxation, the Chapter situs of debts may be fixed at the residence of the ' — debtor, and the State where the debtor is domiciled febJIvLi- ,, . i n ii 1 T ousiy de- may, m the interest of the home creditors, control termined. the legal fiction that the situs of the debt is the domi- cil of the creditor, since it rests on comity merely.^ Thus for the purpose of succession and distribution, all simple contract debts have their situs and are assets at the domicil of the debtor ; ^ and a debt evi- denced by a negotiable security is in this respect a simple contract debt, without regard to the place where the instrument is found.* But the situs of debts by record or specialty is ascertained for pur- poses of administration by the physical situs of the writing which evidences them.^ Again, under gar- nishment statutes, the State wherein the debtor re- sides may be made the situs of the debt, so that a garnishment there is due process of law, and it would seem hard to imagine any other rule which would not render such statutes a mere nullity as to nonresident creditors.^ Franchises granted by a State have their situs JJf°; for purposes of taxation within the State which grants them, and the act of another State in taxing Tax on Foreign Held Bonds is said to establish only that the fiction of law, declaring the situs of bonds and mortgages to be that of the domicil of the owner, can not be disturbed by the legislature " when in fact they are in his possession." 2Wilkins v. Ellett, 9 Wall. (U. S.) 740; Chicago, etc., R. Co. t\ Sturm, 174 U. S. 710. sWilkins v. Ellett, 9 Wall. (U. S.) 740, 108 U. S. 256; Wyman V. Halstead, 109 U. S. 656. 4 Wyman v. Halstead, 109 U. S. 656. 5 Beers v. Shannon, 73 N. Y. 292. 6 Chicago, etc., R. Co. v. Sturm, 174 U. S. 710; King v. Cross, 175 U. S. 396. 122 DUE PROCESS OF LAW Chapter sucli franchises deprives their owners of property '■ — without due process of lawJ State may determine citizens' domicil. Jurisdic- tion de- pends on domicil. DIVORCE DECREES. There is a class of cases which are neither strictly in personam nor in rem. Such are suits for divorce, that is, suits to determine the status toward one an- other of the parties to a marriage. The jurisdic- tion in these cases depends upon the domicil of one or both parties, for it is said to be an inalienable right of the State in the exercise of its sovereign power to determine the status of its own domiciled subjects and citizens.^ When neither party has acquired a hona fide domicil in the State wherein the decree of divorce is pronounced (a question which is not to be decided only by the local laws of that State), the decree is not binding in any other State, nor is it within the full faith and credit clause of the United States Con- stitution.^ And when a divorce has been granted in one State on a merely colorable domicil, obtained for the special purpose of a divorce, in fraud of the laws of the State of the real domicil, it is granted without jurisdiction and may be impeached collat- erally in the State of the real domicil or in any other State.^ "WTien the State granting the divorce is, however, the domicil of both parties, the decree 7 Louisville, etc., Ferry Co. r. Kentucky, 188 U. S. 385. 8 Ditson r. Ditson, 4 R. I. 106, quoted in Atherton v. Atherton, 181 U. S. 166. See also Pennoyer v. Neff, 95 U. S. 722. 734. 9 Bell V. Bell, 181 U. S. 175; Streitwolf v. Streitwolf. 181 U. S. 179; Winston V. Winston, 189 U. S. 507; Manning v. Spurck, 109 111. 450. 1 Andrews v. Andrews, 188 U. S. 14. See also Barber v. Barber, 21 How. (U. S.) 588; Wallace r. Wallace, 62 N. J. Eq. 509. DUE PROCESS OF LAW 123 made after due service of process is valid every- Chapter where, being witliin the protection of the full faith and credit clause of the Constitution,^ and the same rule obtains where one of the parties, though not personally served with process within the State, has voluntarily appeared,^ But great difficulty and much difference of opin- ^^S^s^ ion exist where the real or apparent domicils of the °*p^^*^^^* husband and wife are in different States, and a de- cree of divorce has been rendered after constructive service only, without an appearance by the nonresi- dent. A wife acquires a domicil apart from her husband through his wrong doing, as where she is forced to leave their common matrimonial domicil by his conduct,'* or when he deserts her, leaving her in the common matrimonial domicil ; ^ but a wife liv- ing apart from her husband without sufficient cause retains the domicil of the husband and can acquire no new domicil.^ The question of the validity of a decree of di- ^^1°^^^ vorce under such circumstances involves the nature in%l. ^^ of the suit as partaking of the qualities of a pro- ceeding in rem or in personam. Marriage possesses at once the qualities of a civil contract and a status. It has its foundation and origin in contract, but the contract results in a status which is beyond the 2Atherton v. Atherton, 181 U. S. 155. sCheever v. Wilson, 9 Wall. (U. S.) 108; Lynde v. Lynde, 181 U. S. 183. 4 Hunt V. Hunt, 72 N. Y. 218; Cheever r. Wilson, 9 Wall. (U. S.)' 123, 124. 5 Barber v. Barber, 21 How. (U. S.) 582. sCheely v. Clayton, 110 U. S. 705; Atherton v. Atherton, 181 •U. S. 164. sonam. 124 DUE PROCESS OF LAW Chapter power of the parties." Some courts, looking en- tirely at the contract elements of marriage and ig- noring or losing sight of its other elements, proceed on the theory that a decree of divorce pronounced in the State of the domicil of one of the parties is es- sentially a decree in personam and that, while valid within the State where pronounced, it is not valid outside that State in the absence of personal serv- ice or voluntary appearance on the part of the de- fendant. As a consequence. A, the resident of the decreeing State, is free from the matrimonial tie, while B, the nonresident, is still bound by it.® Ill results. The objection to treating decrees of divorce as of no further effect than judgments in personam is that this treatment creates a state of confusion in the relations of the parties, which is opposed to public policy. The results are well shown in a recent New Jersey case:^ ''The matrimonial relation of the husband and wife is terminated in the State in which [the decree] is rendered. Within the bound- aries of that State a marriage afterward contracted by either of the parties with a third person is entirely valid. So, too, sexual relations between the former husband and wife within that jurisdic- tion subsequent to the entry of the decree are illicit, unless sanctioned by a new marriage. But if the decree is without extraterritorial force, the entire 7Maynard v. Hill, 125 U. S. 210; Andrews v. Andrews, 188 U. S. 30; Ditson v. Ditson, 4 R. I. 101. » People V. Baker, 76 N. Y. 78, 32 Am. Rep. 274 ; Jones r. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447; Harris v. Harris, 115 N. Car. 587, 44 Am. St. Rep. 471; MoCreery v. Davis, 44 S. Car. 1!)5. iPelt V. Felt, 59 N. J. Eq. 607, 83 Am. St. Rep. 612, affirming 67 X. J. Eq. 101. See also Dunham v. Dunham, 162 111. 604, 607. DUE PROCESS OF LAW 125 status of both parties is reversed as soon as tliey Chapter pass beyond the limits of that State. A subsequent marriage to a third person within that State then be- comes void, and the relations of the i^arties to it be- come adulterous, while sexual relations between the parties to the decree, which are meretricious if in- dulged in within that State, become matrimonial again when indulged in without its borders. A con- dition of the law which makes the intercourse of a man and woman either legitimate or adulterous as they hapi3en to be within the limits of one State or another, is not to be tolerated any further than is plainly required by public policy." A husband without a wife or a wife without a husband is, says the Federal Supreme Court, a state of things '^ un- known to the law. ' ' ^ Other courts regard the status of the parties as deJr°e«* the actual subject-matter or res in dispute, and the in rem. suit for divorce as essentially a proceeding in rem or quasi in rem.^ This view flows from the neces- sity of recognizing the extraterritoriality of divorce decrees, on some ground harmonizing with general principles. But the extraterritoriality of such de- 2Atherton v. Atherton, 181 U. S. 162. 3 Dunham r. Dunham, 162 111. 605, 610; 2 Bishop Marriage, Div. & Sep. 23; Freeman on Judgments, § 606; Black on Judgments, § 822. " To this familiar class of subjects [proceedings in rem] has, by a rather artificial process of reasoning, been added the ' marriage state.' This has been done upon the idea that it constitutes a dis- tinct ' matter,' and it is accorded a situs as an incident to the domicil of one or both of the spouses within the territorial jurisdic- tion. Its foundation is a domicil icith residence. This result has been reached with much difficulty" and not without strong protest." WaHace r. Wallace, 62 X. J. Eq. 514, per Pitney. V. C. See also Coddington l". Coddington, 20 X. J. Eq. 263; Ditson V. Ditson, 4 R. I. 87. 126 DUE PROCESS OF LAW Chapter III. Decisions in Federal Supreme Court. crees can extend only to the dissolution of the mar- riage status and can not annex to the judgment the incidents of a judgment in personam, such as the payment of alimony,^ unless indeed alimony is de- creed after a voluntary appearance by the non- resident party.^ Surprisingly few cases dealing with this ques- tion have been before the United States Supreme Court. In Barber v. Barber,^ the decree enforced was rendered when the parties were both residents of New York. In Cheever v. Wilson,"^ the defendant while not a resident of Indiana, where the wife se- cured the divorce, made a voluntary appearance. In Cheely v. Clayton,^ a divorce was held null because the court had never obtained jurisdiction in accord- ance with the local laws, but it was declared that ''the courts of the State of the domicil of the par- ties 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 of- fense for which the divorce is granted; and a di- vorce so obtained is valid everywhere." This was in accord with the dictum in Pennoyer v. Neff, when after exiolaining the rules as to the validity of sister, State judgments in personam and in rem, the court said: **To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything that we have ♦ Felt V. Felt, 57 N. J. Eq. 105; Rigney v. Rigney, 127 N. Y. 408. BLynde v. L:^mde, 181 U. S. 183. «21 How. (U. S.) 582. 7 9 Wall. (U. S.) 108. 8 110 U. S. 701. DUE PROCESS OF LAW 127 said, that a State may not authorize proceedings to Chapter determine the status of one of its citizens toward a nonresident, which would be binding within the State, though made without service of process or personal notice to the nonresident. . . . One of the parties guilty of acts for which, by the law of the State, a dissolution [of the marriage relations] may be granted, may have removed to a State where no dissolution is permitted. The complaining 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 insti- tuted without personal service of process, or per- sonal notice to the offending party, the injured citi- zen would be without redress." ^ We have not yet reached a decision that a decree Sfbfnd- granted on constructive notice without the State is stfuctive" service valid as a decree in rem.^* That question seemed to be presented in Atherton v. Atlierton, decided in 1901.^ Here a woman resident in New York mar- ried a resident of Kentucky and the pair acquired a matrimonial domicil at the husband's home in Kentucky. Thereafter the wife left her husband and returned to New York, and after the lapse of a sufficient time, according to the laws of Kentucky, he brought suit for a divorce upon the ground of desertion. The statutes of Kentucky provide that in such cases the plaintiff is required to file an affi- davit stating the place of the defendant's residence and his or her post office, whereupon the clerk en- 9 95 U. S. 734. 1 181 U. S. 155. 9* See reference to Haddock v. Haddock in the preface. 128 DUE PROCESS OF LAW Chapter ters an order warning tlie defendant to defend tlie '■ — action within sixty days and at the same time ap- points an attorney for such defendant ' ' whose duty it shall be to make diligent efforts to inform the de- fendant by mail concerning the pendency and nature of the action" and report the results to the court. Constructive notice is presumed on the thirtieth day after the entry of the order and the appointment of the attorney. All fonnalities having been duly ob- served, a decree of divorce was entered for the hus- band. Upon a subsequent action by the wife for a divorce in New York on the ground of cruelty, the courts of that State held the Kentucky decree not binding in New York and granted a divorce to the wife, holding that she had acquired a separate domi- cil in New York by reason of her husband's cruelty, so that the courts of New York had jurisdiction.^ This judgment was reversed by the United States Supreme Court, which held that the Kentucky court, bj^ the constructive service, acquired jurisdiction of the case, and that the judgment was within the pro- tection of the full faith and credit clause of the Con- stitution and valid in all the States. But the court carefully limited the decision to the veiy point in- volved. It was said: ''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 hus- 2 155 N. Y. 129. DUE PROCESS OF LAW 129 band and wliich was the only matrimonial domicil Chapter •^ III. of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky. " ^ Of the validity of the constructive notice required by the laws of Kentucky, it is said:'* ''We are of opinion that the undis- puted 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 Kentucky, 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 ap- peared in the suit. Binding her to that full extent, it established, beyond contradiction, that she had abandoned her husband, and precludes her from asserting that she left him on account of his cruel treatment" — a fact which she asserted by her suit in New York. The constructive service to the non- resident appears to avail nothing as bringing the defendant into court, the statutory provision being merely notice prescribed in the interests of fairness . and to rebut the idea that the proceedings were ar- bitrary^; in a word, it brings the res into court and not the defendant.^ These points are necessarily settled in Atherton Points * settled. V. Atherton: that the nature of a divorce proceed- ing is such that it must bind both parties equally, ^'a husband without a wife or a wife without a hus- 3 181 U. S. 171. 4 181 U. S. 172. 5De La Montanya v. De La Montanya. 112 Cal. 11.5, 53 Am. St. Rep. 173; Doughty v. Doughty, 28 N. J. Eq. 586. See supra, p. 92. 9 130 DUE PROCESS OF LAW Chapter III. band" being unthinkable; that jurisdiction to pro- nounce such decrees depends on the domicil of the parties; that jurisdiction certainly exists in the State where the matrimonial domicil was, unless one party has bona fide acquired a new domicil for cause ; that a decree thus pronounced by a State having jurisdiction is within the full faith and credit clause of the Federal Constitution and valid in every State ; that jurisdiction does not require personal service in the State or a voluntary appearance; that con- structive service without the State in conformity with its laws, when these provide for such steps as may be presumed to give the absent party actual notice of the suit, is due process of law. Further than this the Supreme Court has not yet gone. Double character of decrees in bank- ruptcy. BANKRUPT AND INSOLVENT LAWS. Proceedings under bankrupt and insolvent laws likewise exhibit a double nature. They are proceed- ings in rem so far as concerns the status of the debtor, the title to his property within the State, and the legal incidents necessary to the adjudication of status,^ but so far as the operation of the adjudi- cation as a discharge is concerned, its validity, ac- cording to the view which may be looked upon as settled in the United States, is dependent on the principles governing judgments in personam^ f Freeman on Judgments, 4th ed. 607 ; Hanover Nat. Bank v. Moyses, 186 U. S. 181, 192. 'Baldwin v. Hale, 1 Wall. (U. S.) 232; Hawley v. Hunt, 27 Iowa 307; Main v. Messner, 17 Oregon 78. It has been strongly contended that in effecting a discharge the adjudication operates on the status of the bankrupt, that such status is a res within the jurisdiction of the State of the debtor's domicil, and that the determination of the courts there should be binding DUE PROCESS OF LAW 131 x\n adjudication of bankruptcy together with the chapter public formalities of notice required by the act ^ de- termines conclusively the status of the debtor as a asfnfem. bankrupt and the facts upon which that status is based, for instance, that he has been guilty of a par- ticular act of bankruptcy,^ and it operates on the property of the debtor within the State to bring it under the control of the court or to transfer title to the assignee, subject of course to existing priori- ties.^ But a bankrupt or insolvent law has of itself no extraterritorial force, and it is only upon the principle of comity that such an adjudication can be held operative on persons or property not within the State rendering the judgment or decree. The principle of comity has not in the United States been extended to validate the title of an assignee in in- vitum under a foreign bankrupt law, except when the claim of such assignee was not opposed to the claims of resident citizens or creditors pursuing their remedies by attachment or otherwise.^ Nor 4\?g^^ on courts everywhere. See Discharge in Insolvency and Its Effect on N on- Residents, by Hollis R. Bailey, 6 Harv. L. Rev. 349. sShawhan v. Wherritt, 7 How. (U. S.) 643; Hanover Nat. Bank V. Moyses, 186 U. S. 181, 192. Brown v. Smart, 69 Md. 331, affirmed 145 U. S. 454. iCrapo V. Kelly, 16 Wall. (U. S.) 610; Geilinger v. Philippi, 133 U. S. 246. 2 Security Trust Co. v. Dodd, 173 U. S. 629; Receiver of State Bank v. Plainfield First Nat. Bank, 34 N. J. Eq. 450; Matter of Waite, 99 N. Y. 433. See also Crapo v. Kelly, 16 Wall. (U. S.) 622. A voluntary assignment for the benefit of creditors receives in this particular a more liberal construction, and " if valid where made, ought generally to be valid everywhere, being the exercise of the personal right of the owner to dispose of his own." Cole v. Cunningham, 133 U. S. 129; Security Trust Co. v. Dodd, 173 U. S. 628. 132 DUE PROCESS OF LAW Chapter III. Summary by Su- preme Court. has it been recognized so as to give validity to a discharge under the laws of one State as against the debt of a nonresident creditor, and it makes no difference that the debt was contracted or to be per- formed in the State granting the discharge,^ or that suit is brought, if the plaintiff is a nonresident cred- itor, in the courts of that State.^ In other words, so far as the adjudication operates as a discharge, ju- risdiction depends on the citizenship of the parties and not on the place where the contract was made or where it is to be performed.^ The effect of bankrupt or insolvent laws passed by the several States has been stated by the Fed- eral Supreme Court as follows : ' ' State legislatures may pass insolvent laws, provided there be no Act of Congress establishing a uniform system of bank- ruptcy conflicting with their provisions, and provid- ed that the law itself be so framed that it does not impair the obligation of contracts. Certificates of discharge, however, granted under such a law can 8 Baldwin v. Hale, 1 Wall. (U. S.) 223, disapproving Scribner V. Fisher, 2 Gray (Mass.) 43. * In Main v. Messner, 17 Oregon 78, it is held on principles which seem to follow irresistibly from Baldwin v. Hale, 1 Wall. (U. S.) 232, and other decisions of the Federal Supreme Court, that a discharge under a domestic bankrupt law is no defense even in the courts of the State granting the discharge against the claim of a non-resident and non-assenting creditor. s Ha^^jley V. Hunt, 27 Iowa 303, an admirable opinion by Chief Justice Dillon. The English rule is otherwise. In Potter v. Brown, 5 East 124, Lord Ellenborough said: "The rule was well laid down by Lord Mansfield in Ballantine v. Golding [Cook, Bankrupt Law, 8th ed. 487] that what is a discharge of a debt in the country tchere it teas contracted is a discharge of it everywhere." This principle has been followed consistently in later cases. Ellis v. M'Henry, L. R. a C. p. 234 ; Gibbs r. La Soci6t6 Industrielle, etc., 25 Q. B. D. 399 ; Dicey, Confl. Laws 449. DUE PROCESS OF LAW 133 not be pleaded in bar of an action brought by a citi- chapter zen of another State in the courts of the United States, or of any other State than that where the discharge was obtained unless it appear that the plaintiff proved his debt against the defendant's estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one State can not discharge the contracts of citizens of other States ; because such laws have no extraterri- torial operation, and consequently the tribunal sit- ting under them, unless in cases where a citizen of such other State voluntarily becomes a party to the proceedings, has no jurisdiction of the case." ® JUKISDICTION AS TO CRIMES AND PENALTIES. The common law considers crimes as altogether £caT*'^ local, and cognizable and punishable exclusively in the country where they are committed." This prin- ciple may be considered from two points of view: first, no state, as a general rule, extends the obli- gations and penalties of its own criminal laws to acts committed beyond its territorial limits; and, second, the courts of no state execute the criminal or penal laws of another. 6 Oilman v. Lockwood, 4 Wall. (U. S.) 409. See also Sturges V. Crowninshield, 4 Wheat. (U. S.) 187; Ogden v. Saunders, 12 Wheat. (U. S.) 213; Cook v. MoflFat, 5 How. (U. S.) 310; Denny V. Bennett, 128 U. S. 497; Cole v. Cunningham, 133 U. S. 114; Brown v. Smart, 145 U. S. 454. " An assignment under the laws of another State of the Union stands upon the same ground as one made under the laws of a foreign country; for the States are in this respect independent of one another, and subject to no common control so long as there is no national bankrupt law." Taylor v. Columbian Ins. Co., 14 Allen (Mass.) 353. T Story, Confl. Laws 620. 134 DUE PROCESS OF LAW Chapter III. The first branch of this rule requires qualifica- tion and explanation. In England it seems not -piScyf to be recognized as to English subjects, and Chief Justice Cockburn laid down that British subjects in all parts of the world are subject to the criminal laws of England.^ In the United States, its recogni- tion is subject to exceptions growing out of the doctrines of international law, and to modifications imder our system of government and our common and statute law. An exception founded on the prin- ciples of international law exists with respect to piracy on the high seas. This offense, without re- gard to the nationality of the vessels which are the object of the outrage, is regarded as a crime against the law of nations, and the courts of all civilized countries will inflict punishment on the guilty per- sons, whether they be citizens or foreigners.^ Federal The dual uaturo of our govermnent may make jurisdic- sut«''^'" acts committed within the territorial limits of a State cognizable and punishable in the federal courts either exclusively or concurrently with the State courts. Exclusive jurisdiction may arise either because the crime was committed at a place where the United States has exclusive jurisdiction, as on lands ac- quired from the States for forts or arsenals,^ or because the crime is one exclusively against the United States. But the same act may offend against both the United States and the State. ''While of- s/n re Tivnan, 5 B. & S. 679. 117 E. C. L. 679. oU. S. V. Klintock, 5 Wheat. (U. S.) 144; U. S. v. Smith, 5 Wheat. (U. S.) 153; U. S. r. Furlong, 5 Wheat. (U. S.) 184. 1 U. S. V. Ward, Woolw. (U. S.) 17, holding also that an Indian reservation is not within the sole and exclusive jurisdiction of the United States, unless by express proviso. DUE PROCESS OF LAW 135 fenses exclusively against the States are exclusively Chapter cognizable in the State courts, and offenses exclu- ^— sively against the United States are exclusively cognizable in the federal courts, it is also settled that the same act or series of acts may constitute an offense equally against the United States and the State, subjecting the guilty party to punishment under the laws of each government. ' ' ^ Exclusive jurisdiction over acts done by the officers of the United States in the performance of their official duties has been held to lie in the federal courts.^ Seeming exceptions arise also at common law |ving*'°"^ and under statutes from the nature and effects of 1^"" crime. The power to declare that certain acts are ^^^*^" criminal, to define crime, resides in the State, and though a criminal act may be committed in one State, yet its consequences may reach into another, and by common law or statute may be punishable in the State where its effects are felt, without regard to the position of the criminal.* Or, when com- mitted elsewhere, its criminal character may be rest- ed upon the ground that it is an offense against the sovereignty of the State or the rights of its citi- zens.^ The dignity and sovereignty of the State are sPettibone v. U. S., 148 U. S. 197, citing Cross v. North Caro- lina, 132 U. S. 131. A change in the phraseology of the United States statutes deal- ing with the criminal jurisdiction of the federal courts is discussed and its effects considered in Sexton v. California, 189 U. S. 319, 3 Neagle, Petitioner, 135 U. S. 1. 4 As by death there from a wound given elsewhere. Com. V. Macloon. 101 Mass. 1, 100 Am. Dec. 89; Tyler v. People, 8 Mich. 320; State v. Caldwell, 115 N. Car. 794. See Simpson v. State, 92 Ga. 41, 44 Am. St. Rep. 75; State v. Morrow, 40 S. Car. 221. 5 As forgery in another State of titles to land within the State of the forum. Hanks v. State, 13 Tex. App. 289. See Extraterri- 136 DUE PROCESS OF LAW Chapter III. Foreign penal laws not en- forced. Interstate extradi- tion. directly involved when residents therein leave the State for the express purpose of avoiding its crim- inal laws as to some act affecting their continued status, commit the act elsewhere, and return within the State. In such a case, they may he punished as though the forbidden act had been committed within the State.® Again, a complete criminal act may consist of several distinct and separable acts or ele- ments, and the laws of a State may recognize the commission of certain of the constituent acts within the State as constituting the commission of the crime therein so as to give its courts jurisdiction.'^ In the absence of elements such as these, the power of a State to enact statutes punishing extraterritorial crime does not exist,^ and in a State whose consti- tution guarantees a trial by a jury of the vicinage, the attempt to inflict punishment for acts committed elsewhere has been held to be a denial of due proc- ess of law.^ The second branch of the rule, that no State will execute the criminal or penal laws of another, while universal in its application by American courts, in- volves not a question of constitutional law but of international comity.^ torial Crime, by Dr. Francis Wharton, 4 Southern Law Rev. N. S. 690. ^ Ex p. Kinney, 3 Hughes (U. S.) 9. See also State v. Cutshall, 110 N. Car. 5.52. 7 People V. Burke, 11 Wend. (N. Y.) 129; State v. Caldwell, 115 N. Car. 794; Ex p. McNeeley, 36 W. Va. 84. 8 See People v. Merrill, (Supm. Ct. Gen. T.) 2 Park. Crim. (N. Y.) 590, reversed on otliUE PROCESS OF LAW Exemptions from Taxation. Exemp- The subjects upon which taxes may be levied may construed. ^^^^ ^® limited by the action of the State itself by granting an exemption from taxation under such circumstances as to bring the exemption within the protection from impairing the obligation of con- tracts. But exemptions from taxation, being in derogation of the sovereign power of the State, are never to be presumed, and when they exist, are to be construed most strictly.*^ ' ' The payment of taxes on account of property otherwise liable to taxation 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 exempting it from taxation must, as we have said, be clearly proved. It will not be inferred from facts which do not lead irresistibly and neces- sarily to the existence of the contract. The facts proved must show either a contract expressed in terms, or else it must be implied from facts which leave no room for doubt that such was the intention of the parties and that a valid consideration existed for the contract. If there be any doubt on these mat- ters the contract has not been proven and the exemp- tion does not exist." "^ « Providence Bank v. Billinjifs, 4 Pet. (U. S.) 514, the leading case on this topic; Philadelphia, etc., R. Co. v. Maryland, 10 How. (U. S.) .376; Piqua Branch of State Bank v. Knoop, 16 How. (U. S.) 369; Farrin,2:ton V. Tennesi=iee, 95 U. S. 679; Vickshurg, etc.. R. Co. V. Dennis, 116 U. S. 665; New Orleans City, etc., R. Co. v. New Or- leans, 143 U. S. 192. 7 Wells V. Savannah, 181 U. S. 5.31, 5.39. The decisions of State courts, while not of paramount authority, tax law. DUE PROCESS OF LAW 227 This rule has been applied to the State's right to Chapter tax the franchises of public service corporations, '— whch were operating street railways and which had SncSe"" already either paid for the privilege of occupying the streets a lump sum, or were paying annually therefor specific amounts or a fixed percentage of receipts. A subsequent tax by the State on the fran- chises of these corporations, although the taxing statute made provision for the deduction from the tax levied of the sums being paid by the corporations for the use of the streets, was attacked as impairing the obligation of contracts and as a denial of due process of law. The Federal Supreme Court sus- tained the validity of the tax, holding that, under the recognized rule for the construction of exemp- tions, the sums which were being paid for the use of the streets by the corporations were not to be considered as releasing or exempting the corpora- tions from payment of taxes. Such a sum, whether paid once for all or in the form of annual exac- tion, was only the consideration for the grant itself of the franchise, and had no effect in exempting from taxation the intangible property granted.^ To the specific contention that there was discrimination amounting to a denial of due process of law against those corporations which had paid a lump sum once for all for the use of the streets, in that the law made no provision in their favor, while providing are entitled to special respect upon the construction of such grants. Wilson V. Standefer, 184 U. S. 399; Chicago Theological Seminary V. Illinois, 188 U. S. 662. 8 Metropolitan St. R. Co. V. Tax Com'rs, 199 U. S. 1; Brooklyn City R. Co. V. Tax Com'rs, 199 U. S. 48 ; Twenty-third St. R. Co. V. Tax Com'rs, 199 U. S. 53. 228 DUE PROCESS OF LAW Chapter VII. Public purpose in taxation and in eminent •domain. for a deduction from the tax levied to the amount of the annual i^ayments of other corporations, the court said: "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 tract of land — part of the purchase price. "^ The Public Purpose of the Tax. It is fundamental in the nature of constitutional government that its powers must be exerted solely for the public use and service. Only to this extent are the rights of individuals subordinate to the state, and when the state oversteps this limitation and without regard to benefits to the public levies a contribution, under the form of a tax, upon the prop- erty of one person for the use of another person or class, it commits an act of confiscation and deprives the individual upon whom the contribution is levied of his property without due process of law.^ Every lawful tax must, then, be imposed for a public purpose.^ In determining the public charac- ter of the tax, a distinction has been drawn between a public purpose within the power of eminent domain and a public purpose within the taxing power. The Supreme Court of Michigan, speaking through Mr. Justice Cooley, after stating that all governmental » Metropolitan St. Ey. Co. v. Tax Com'rs, 199 U. S. 16. 1 Lowell V. Boston, 111 Mass. 4.54, 1.5 Am. Rep. 39. See also Fallbrock Irrigation Dist. V. Bradley. 164 U. S. 112, 161. 2 Citizens' Sav., etc., Assoc. V. Topeka, 20 Wall. (U. S.) 6.55. is the leading case in the United States Supreme Court on this thor- oughly settled proposition. See also Kelly v. Pittsburgh. 104 U. S. 78; Cole 1-. La Grange, 113 U. S. 1, and 27 Am. and Eng. Encyc. of Law (2d ed.) 624. DUE PROCESS OF L.\W 229 powers exist for public pui'poses, but are not neces- Chapter sarily to be exercised under the same conditions of '— public interest, called attention to the aspects of public interest which must control in eminent do- main and in the taxing power. ''The most impor- tant consideration in the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable ; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation. ' ' With regard to taxation, on the other hand, the criterion is not the urgency of the public need, but "public purpose" is used to distinguish the objects for which, according to settled usage, the government is to i^rovide from those which, by like usage, are left to private interest or enterprise.^ Courts have usu- ally assumed or declared, however, that the same conditions which make a public purpose in the exer- cise of one of these sovereign powers will make the purpose public for the other.^ The power to decide what is and what is not such P^wic •"■ purpose a a public use as will justify the employment of the ?o"eSia- power of taxation rests primarily with the legisla- marify?" ture, and the courts should interfere only when the legislature has plainly overstepped its power.^ "It is undoubtedly the duty of the legislature," said the Federal Supreme Court, "which imposes or author- izes municipalities to impose a tax to see that it is not 3 People V. Salem, 20 Mich. 452. * Lowell r. Boston, 111 Mass. 454. And see Fallbrook Irrigation Dist. V. Bradley, 164 U. S. 112. 5 See itifra, p. 255, the discussion of the analogous point in re- spect to eminent domain. 230 DUE PROCESS OF LAW Chapter VII. Federal courts not bound by State de- cisions. Legisla- ture may impose general or local taxa- tion; to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing wlien 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 the taxes are assessed falls upon the one side or the other of this 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 legislation levied, what ob- jects or purposes have been considered necessary to the support and for the proper use of the govern- ment, whether State or municipal. AVhatever law- fully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to the public use and proper for the main- tenance of good government, though this may not be the only criterion of rightful taxation. ' ' ^ What is or what is not a public use is a question of general jurisprudence which the federal courts will determine for themselves.'^ Provided the object is a public one, it rests in the discretion of the legislature to defray the ex- penses either by general or local taxation.^ Wlien, under an act of the legislature for an improvement in one county, which was of benefit to the whole State, the legislature directed the expense to be met "Citizens' Sav., etc., Assoc, v. Topeka, 20 Wall. (U. S.) 6.55. See Perry v. Keene, 56 N. H. 514; State V. Nelson County, 1 N. Dak. 88. TFallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. 8 Assessments for a portion of the costs and expenses incident to the location and maintenance of a park in the District of Columbia, dedicated to " the l)enefit and enjoyment of the people of the United States," may be levied upon the owners of neighboring lands. Wil- son V. Lambert, 168 U. S. 611. DUE PROCESS OF LAW 231 by that county by an issue of bonds, the act was ^^^f*" held an exercise of the power of taxation and the court said: ''When any public work is authorized, it rests with the legislature, unless restrained by con- stitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties, or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately benefited by the expenditure. ' ' ^ If, however, the purpose for which taxes are ^^^'in^to levied is a purpose purely local, the taxes may not be for^p^ubiVc purpose. levied on another community or other property m no way benefited by the improvement. Such an ex- action would be a purely arbitrary exercise of des- potic power, a denial of due process of law and not a tax in a constitutional sense. ''Conceding," said the Supreme Court of Iowa, "to the General Assem- bly a wide range of discretion as to the objects of taxation, the kind of property to be made liable, and the extent of territory within which the local tax may operate, . . . there must be some limit to this legislative discretion; which, in the absence of any other criterion, is held to consist in the discrim- ination to be made between what may reasonably be deemed a just tax, for which a just compensation is provided in the objects to which it is to be 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 » Mobile Coimtv i". Kimball, 102 U. S. 691. 232 DUE PROCESS OF LAW Chapter equality in the burden imposed ; if it be imposed for L_ 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 boundaries 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 recog- nized power or not."^ But every presumption is to be made in favor of the validity of legislative ac- tion, and unless the purpose is palpably of no benefit to the community or property taxed, unless there is a clear abuse of the legislative discretion, the tax will be sustained.^ SUMMARY PROCEEDINGS FOR COLLECTIOIT. Necessity The payment of taxes must frequently be en- for sum- XT J i'±. kct?on°'' forced against a reluctant and adverse sentunent, which would gladly avail itself of every opportunity to postpone collection, while the necessities of the government for revenue may not admit of the delays incident to the formal proceedings of a suit in court. From time immemorial these conditions have been recognized, and the most summary methods of seiz- ure and sale for the satisfaction of taxes and public dues have been authorized and, being recognized universally in England and in this country, they 1 Morford v. Unger, 8 Iowa 82. 2 Booth v. Woodbury, 32 Conn. 128. And see Wilson v. Lambert, 168 U. S. Oil; Henderson Bridge Co. v. Henderson, 173 U. S. 592, supra, p. 214, note 9. DUE PROCESS OF LAW 233 have been held to constitute due process of law.^ ciuipter The earliest case in the Federal Supreme Court on this point, Murray v. Hohoken Land, etc., Co.,^ arose in 1855 and was likewise the first case in which the meaning of "due process of law" was fully consid- ered. An Act of Congress provided that, when an account against an officer who held public money had been adjusted by the auditor of the treasury, and the officer found indebted to the government, and he neglected and refused to pay, the solicitor of the treasury should thereupon issue a distress war- rant to the marshal of the proper district, who was authorized to seize and sell property of the debtor or his sureties in satisfaction of the debt. The issue of the warrant and the seizure and sale of the debtor 's property thereunder were held to constitute due process of law. By a historical review, it was shown that similar summary process for the collec- tion of taxes and debts due the government was sus- tained by usage both in England and in the United States, and it was held that the act of the auditor in passing on the accounts submitted to him, although made conclusive until reviewed by the courts, was not a judicial act in such a sense that Congress could not under the circumstances submit the ascertainment of the balance to an administrative officer. In a later case holding the summary seizure and Summary '-' ' process sale of property for taxes to a State due process of ™e"lrbi-°^ law, the court said: ''The mode of assessing taxes ^'^'^' in the States by the federal government, and by all 3 Springer v. U. S., 102 U. S. 586 ; Kelly r. Pittsburgh, 104 U. S. 78; Leigh r. Green, 193 U. S. 79, 88; Scottish Union, etc., Ins. Co. f. Bowland. 196 U. S. 611. See supra, p. 53. 4 18 How. (U. S.) 272. See also King v. Mullins, 171 U. S. 429. 234 DUE PROCESS OF LAW Copter governments, is necessarily 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."^ Retroactive lutcrcst and costs in a proceeding to collect delin- statute ^ ^ pStyfor qiient taxes may be imposed by the State, and the memf^' statute made applicable to existing cases of delin- quency without violating any right guaranteed by the Federal Constitution.^ Forfeiture It has bccu hcM LQ somc Statcs in accordance with for nonpay- ment of what appear to be just principles on the subject, that the State cannot declare the forfeiture of lands as a penalty for non-payment of taxes without provision for some proceeding in which the owner may be en- titled upon notice to present objections and defenses to the proposed forfeiture.'^ Other States have de- clared an absolute forfeiture to be valid and con- stitutional.^ A case which arose in West Virginia, where such proceedings were held to be valid, came before the Federal Supreme Court, and that tri- bunal found it possible to dispose of the points in- BMcMillen v. Anderson, 95 U. S. 37. 6 League v. Texas. 184 U. S. 156. 7 Marshall v. McDaniel, 12 Bush (Ky.) 378; Griffin V. Mixon, 38 Miss. 424; Parish r. East Coast Cedar Co., 133 N. Car. 478. f Wild r. Serpell. 10 Gratt. (Va.) 405; Levasser V. Washburn, 11 Gratt. (Va.) 572; McClure v. Maitland, 24 W. Va, 561; Holly River Coal Co. v. Howell, 36 W. Va. 489. DUE PROCESS OF LAW 235 volved without committing itself to either theory. Chapter VII The statutes of West Virginia provided that lands — so forfeited should be sold for the benefit of the school fund, that for this purpose the commissioner of the school fund should institute a proceeding in the Circuit Court, and that in this proceeding the owner might intervene upon due notice and secure a redemption of his lands by payment of the taxes and charges. These provisions were held to constitute due process of law and to remove all constitutional objections to the statute.^ A charge in the nature of a tax on a prescribed occupation ^ -^ tax made vocation may be made a lien upon the real property property. whereon the vocation is conducted, if to the owner of the property is given a reasonable notice and oppor tunity to present objections before the lien attaches.* NOTICE AND HEARING. While the legislature's power to impose and ^fYiSL apportion taxes is in many respects unlimited, the Tature'aftr legislature must generally in providing for their *''"'^" assessment and collection afford a hearing or an op- portunity to be heard to the taxpayer. The right to notice and a hearing does not exist as to any matter which the legislature rightfully determines in provid- ing for the tax. We have seen that the right to select the subjects and the method of taxation is inherent in and inseparable from the taxing power. The selection of the subjects of taxation, especially where the tax is a local one or a special assessment in return for benefits, may involve an adjudication »King r. Mullins, 171 U. S. 429. 1 Hodge V. Muscatine County, 196 U. S. 276. 236 DUE PROCESS OF LAW Chapter VII. Ad va- lorem and specific^ taxes dis- tinguished. that particular property is liable to the tax,- and the selection of a particular method of taxation, for in- stance, a specific instead of an ad valorem tax, may involve an adjudication as to the amount due from the individual taxpayer.^ The choice of a specific tax by the legislature does not, however, deprive the individual taxpayer of due process of law, for so far as the determination of a question of fact is inci- dentally involved in the course adopted, that deter- mination is a necessary consequence of the exercise of the taxing power. But the legislature may adopt a different course, leaving such questions for deter- mination by the officials charged with the execution of the taxing laws, who act in a judicial or quasi- judicial capacity and must proceed on notice and hearing. This is necessarily the case, when, instead of a specific, an ad valorem tax is selected. Then before an individual liability for the tax can arise, it is essential that there be an assessment of the prop- erty to be taxed, and an apportionment of the tax in accordance with the valuation determined by as- sessment and the rate of taxation.^ Thus the field of individual right to notice and hearing may be widened or narrowed with the action of the legisla- ture. 2 See infra, p. 246. 3 Hodge V. Muscatine County, 196 U. S. 276. 280. * The distinction here noticed between specific and ad valorem taxes was pointed out by Mr. Justice Field in Hagar v. Reclamation Dist. No. 108, 111 U. S. 709. " Of the different kinds of taxes which the State may impose," it is there said, " 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 or persons or occupations. In such cases the legislature in authorizing the tax fixes its amount, DUE PROCESS OF LAW 237 Ordinarily the process of assessment is committed Chapter to executive officers, who in the performance of their '— quasi-judicml functions must give the property own- delegate*/ er notice and an opportunity to present objections, jstratwe wherever the action of the legislature has left open any question upon which a hearing may possibly change official action. But at least where the property taxed is certain in value, as is money, the interest on bonds, the face value of securities, etc., no assessment is essential other than the statute fix- ing the rate of taxation.^ And the statute imposing the tax may of itself constitute due process of law by providing a time and place for the meeting of the assessing board, and giving an opportunity for a hearing.^ and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence, or other element of a judicial nature, and nothing could be changed by hearing the taxpayer. No right of his is therefore invaded." After instancing particular taxes which fall under this class, the learned judge proceeded: "But where a 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, a different principle comes in. The officers in estimating the value act judicially, 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 valu- ation 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." 5 Dollar Sav. Bank v.V. S., 19 Wall. (U. S.) 240; U. S. r. Erie R. Co., 107 U. S. 1; U. S. r. Philadelphia, etc., R. Co., 123 U. S. 113; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232. 6 Palmer v. McMahon, 133 U. S. 669; Pittsburgh, etc., R. Co. V. Backus, 154 U. S. 421; Merchants', etc., Bank v. Pennsylvania, 167 238 DUE PROCESS OF LAW Chapter VII. General taxes. Notice varies with subject- matter. Statutes imposing general taxes usually provide for an annual levy and fix the time within which the assessment shall be made, a specific time and place for the equalization of the assessment and the levy of the tax, a time within which the amount of the tax shall be placed in the tax books, a specific thne for the tax books to be delivered to the collector or treasurer, and a specific time for the tax to become a lien on the property taxed, and this is enough to constitute due process of lawJ The Federal Su- preme Court in a case decided in 1902 remarked that while the exact requirements of due process in the assessment and collection of general taxes had never been determined by the court, yet proceedings in such cases are to be construed "with the utmost liberality, sometimes even to the extent of holding that no notice whatever is necessary."^ In the same case the court declared that it was well settled in that court that to constitute due process of law in proceedings ''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." ® It has been stated, in discussing the essentials of due process and the general requirements of notice, that the notice required to render a proceeding valid, U. S. 461, 466. See Kentucky Railroad Tax Cases, 115 U. S. .331, and supra, p. 83. 7 Winona, etc.. Land Co. v. Minnesota, 159 U. S. 526 ; Gilmore v. Hentig, 33 Kan. 156, 169, 170. 8 Turpin v. Lemon, 187 U. S. 57, 58. And see Glidden v. Harring- ton, 189 U. S. 255, 258. BTurpin v. Lemon, 187 U. S. 58, citing Hagar v. Reclamation Dist. No. 108, 111 U. S. 701 J Paulsen v. Portland, 149 U. S. 30. See also supra, p. 76. DUE PROCESS OF LAW 239 when tested by the due process of law clause of the ^yJl*^'" Constitution, varies with the circumstances of the ■ case and ''the cause and objects of the taking," ^ and that the notice required for the lawful exercise of eminent domain or the police power is not the same as that required in proceedings for taxation.^ Since proceedings for the assessment and collection of taxes were in constant use long before the adoption of the Constitution and have been necessarily em- ployed by the federal government and the various States ever since their formation, the rule that what- ever proceedings are in accord with settled usage in England and in this country constitute due process,^ is peculiarly applicable to test the sufficiency of the notice and hearing required in such cases. In con- formity with this principle, it has been held that the process of taxation "involves no violation of due process of law when it is executed according to customary forms and established usages, or in sub- ordination to the principles which underlie them." ^ A proceeding for the assessment and collection of tion sum- cient taxes may so far partake of the nature of a proceed- ing in rem that notice by publication is sufficient to give jurisdiction.^ Thus a proceeding strictly against property to enforce by sale a lien for unpaid 1 See supra, p. 80. 2 Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232. 3 See supra, p. 53. 4 Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 239. See also Turpin v. Lemon, 187 U. S. 51, 57, 59. 5 Lent V. Tillson, 140 U. S. 316; Paulsen V. Portland, 149 U. S. 30; Pittsburgh, etc., R. Co. V. Backus, 154 U. S. 421; Merchants', etc.. Bank r. Pennsylvania, 167 U. S. 461; Bellingham Bay, etc., R. Co. V. New Whatcom, 172 U. S. 318. And see the quotations from Dillon V. Heller, 39 Kan. 599, in Arndt v. Griggs, 134 U. S. 316. 240 DUE PROCESS OF LAW Cimpter taxes does not require personal notice/' but no per- sonal judgment against a nonresident owner is valid in such a case unless lie has been personally served with notice within the jurisdiction, or has vol- untarily appeared/ In a case holding notice by publication sufficient for the assessment of "the or- dinary annual tax upon personal property," it was declared: "It can only be said that such notices shall be given as are suitable in a given case, and it is only where the proceedings are arbitrary, oppres- sive, or unjust that they are declared to be not due process of law."^ ffJotfce^ I^ ^^^ celebrated case of Davidson v. Neiv Or- Mifk/,j. leans, ^ which involved the legality of a special as- sessment for draining swamp-lands, the court laid down the often quoted principle ' ' that whenever, by the laws of a State, or by State authority, a tax, as- sessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole State or some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the prop- erty, as is appropriate to the nature of the case, the judgment in such proceedings can not be said to de- prive the owner of his property without due process 6 Leigh V. Green, 193 U. S. 79 ; French v. Taylor, 199 U. S. 274. 7 Dewey v. Des Moines, 173 U. S. 193. sGlidden v. Harrington, 189 U. S. 255, 258. See the concurring opinion of Bradley, J., in Davidson v. New Orleans, 96 U. S. 97, whence this statement is in effect taken. »96 U. S. 97. DUE PROCESS OF LAW 241 of law, however obnoxious it may be to other ob- ^^Pj^'^ jections."^ In harmony with this rule, the property owner Pioas!^^' need not be present when his property is assessed,^ and it is sufficient that at some stage of the proceed- ings, as, for instance, before a board of equaliza- tion,^ or in the courts by a proceeding to review the assessment, he may be heard on the question of the amount of his tax.* It is only necessary that an opportunity to test the validity and fairness of the tax be given before it has become a fixed and perma- nent charge on the property owner.^ Thus when a statute provides that those whose property is to be taken for a local improvement shall be heard as to its necessity and makes no provision for notice to those who may be assessed therefor, the latter can- not complain if a hearing is given to them on the amount of their assessments.® The opportunity may exist before the assessing board, and when this is the case, no further hearing nor right of review need be provided^ 1 Quoted in Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Kentucky Railroad Tax Cases, 115 U. S. 321; Lent v. Tillson, 140 U. S. 316; Leigh v. Green, 193 U. S. 88. 2McMillen v. Anderson, 95 U. S. 37. 3 Palmer v. McMahon, 133 U. S. 669. 4 Spencer v. Merchant, 125 U. S. 345 ; Paulsen v. Portland, 149 U. S. 30; Winona, etc., Land Co. v. Minnesota, 1.59 U. S. 536; Pitts- burgh, etc., R. Co. V. Board of Public Works, 172 U. S. 45. 5 Winona, etc.. Land Co. r. Minnesota, 159 U. S. 537; Weyer- haueser v. Minnesota, 176 U. S. 550; Gallup v. Schmidt, 183 U. S. 300, 307; Hodge v. Muscatine County, 196 U. S. 276. 281; Gilmore r. Hentig, 33 Kan. 169, 170. eVoigt r. Detroit, 184 U. S. 115; Goodrich v. Detroit, 184 U. S. 432. 'Spring Valley Water Works v. Schottler, 110 U. S. 347; Fall- 16 242 DUE PROCESS OF LAW Chapter VII. Appraise- ment of imported goods. Statute providing for "hear- ing." The ascertainmeiit and collection of duties on im- ported merchandise is subject to the same princi- ples. By statute the value fixed by the appraisers is made conclusive, subject to impeachment when they have proceeded fraudulently, on a wrong prin- ciple, contrary to law, or have transcended the powers conferred by statute.^ The appraisers are vested with (^wasi-judicial powers, and their deter- mination by value, though summary, is due process of law.^ It was not the intention of Congress nor is it necessary to the rights of importers that the ap- praisement should be conducted as is the trial of an issue in a suit in a judicial tribunal. Consequently, the importer can not complain that he is not allowed to be present throughout the proceedings, that he is not allowed to confront the witnesses summoned, or to cross-examine them.^ The Hearing Actually Provided. The extent of the hearing actually provided for in a given case must depend upon the statute laying or authorizing the tax. When a statute provides for ''a hearing" in con- nection with the question whether a proposed public improvement shall be undertaken the natural con- struction is that the hearing extends to everything which is essential to the validity of the undertaking. brook Irrigation Dist. v. Bradley, 164 U. S. 112; Hibben v. Smith, 191 U. S. 310. spassavant V. U. S., 148 U. S. 214; Origet v. Hedden, 155 U. S. 228. 9 Hilton V. Merritt, 110 U. S. 97; Earnshaw v. U. S., 146 U. S. 60; Passavant v. U. S., 148 U. S. 214. 1 Auffraordt v. Hedden, 137 U. S. 310. DUE PROCESS OF LAW 243 A California statute for the formation of irrigation ciKipter districts provided that a petition for the formation of the district, signed by a majority of the property owners in the territory to be included, must be pre- sented to the board of county supervisors at a regu- lar meeting, after publication of the petition for two weeks with notice of the time of the meeting when it was to be presented, and that the ''board shall hear the same," and establish the boundaries of the district, subject to the proviso that it had no power to exclude lands included in the petition, if suscep- tible of irrigation as petitioned for, nor to include lands "which will not in the judgment of the board .be benefited" by such irrigation. The statute fur- ther provided that when the district had been thus defined, an election should be held therein upon the question whether it should be organized and for the designation of directors ; that if the district was or- ganized, the directors elected should organize as a board, one of whose duties should be at a duly ad- vertised meeting at a time specified to examine the assessment of the property for the district made by the proper officer and "hear and determine such ob- jections to the valuation and assessment as may come before them, and the board may change the val- uation as may be just." The United States Cir- cuit Court for the Southern District of California held the statute void under the Fourteenth Amend- ment, for the reason, inter alia, that property own- ers were given no hearing on the sufficiency of the petition which lay at the foundation of the whole proceeding.2 Tj^e United States Supreme Court re- 2 Bradley v. Fallbrook Irrigation Dist., (CCA.) 68 Fed. Rep. 948. 244 DUE PROCESS OF LAW ci^pter versed this decision, declaring that the statute pro- • vided for notice and hearing on every essential point. In holding that a hearing as to the sufficiency of the petition and the validity of the preliminary steps in organization, as well as the fact of benefit to the land included, was afforded, Mr. Justice Peck- ham, for the court, said: "When the act speaks of a hearing of the petition, what is meant by HI Cer- tainly it must extend to a hearing of the facts stated in the petition, and whether those who sign it are sufficient in number and are among the class of per- sons mentioned in the act, as alone having the right to sign tlie same. The obvious purpose of the pub- lication of the notice of the intended presentation of the petition is to give those who are in any way in- terested in the proceeding an opportunity to ap- pear before the board and be heard upon all the questions of fact, including the question of benefits to lands described in the petition. ... It can not be doubted that, by the true construction of the act, the board of supervisors is not only entitled, but it is its duty, to entertain a contest by a landowner in re- spect to the question whether the signers of the pe- tition fulfil the requirements described in the first section of the act, and if the board find in favor of the contestant upon that issue, it is the duty of the board, under the provisions of the statute, to deny the petition and dismiss the proceedings. Otherwise, what is the hearing for? And if upon a hearing of the question of benefits to any land described in the petition it appears to the board that such lands will not be benefited, it is the duty of the board to so decide, and to exclude the lands from the district. DUE PROCESS OF LAW 245 The inclusion of any lands is therefore, in and of it- ^^Pj" self, a determination (after an opportunity for a hearing) that they will be benefited by the proposed irrigation." ^ When a statute provides that a tax can be en- ^,Y?is forced only by suit in a regular court of justice, in "an"dY-^' • 1111 fense" is the absence of special provisions of the local law admissible. limiting the defenses which may be made to such a suit, the Federal Supreme Court declares that ''as a principle 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 au- thority upon which it is based, or because it consti- tutes a denial of a right secured to the party com- plaining by the Constitution of the United States. ' ' ^ Though no hearing is provided on the question of S?lr a"! fixing a taxing district or on the aggregate amount fnvoTvTsits ^ ^ legality. to be assessed on the district, when both these mat- ters are delegated to local authorities, yet if a hear- ing is given to the property owner to test the legality of the charge upon him, there is provision for due process of law. ''In the legality of that charge is necessarily involved the legality of all which pre- cedes it and of which it is the consequence.'"^ The necessity of provision for a hearing implies SS'Ser- , 1 -i M cise honest that the act of assessment can not be arbitrarily per- judgment. formed but demands the honest judgment of the as- sessors, and the statute need not prescribe the rule 3 Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 171, 173. 4 Kentucky Eailroad Tax Cases, 115 U. S. 336. sVoifft V. Detroit, 184 U. S. 115; Goodrich v. Detroit, 184 U. S. 432. And see Weyerhaueser v. Minnesota, 176 U. S. 550. 246 DUE PROCESS OF LAW Chapter vn. Legislative functions in laying local as- sessments. for arriving at the valuation of the i^roperty, but may leave to taxing officers the power to adopt a suitable rule.^ Wlien it was objected to the valua- tion of property by a board of tax assessors, that the law furnished no rule for ascertaining the value of a special franchise included in the assessment along with tangible property, and that, as the board fol- lowed no principle in arriving at the total value, it must have indulged in mere guesswork, which amounted to a deprivation of due process of law, the Supreme Court supported the assessment. After pointing out that hearing was amply provided for, it said: ''It will not do to say that the valuation of a piece of property is mere guesswork. True, it is often largely a matter of opinion, and mathemat- ical exactness is not always possible. Various ele- ments enter into and affect an opinion respecting the value of a given piece of property, and all that can be required is that the assessing board exercise an honest judgment based upon the information it pos- sesses or is able to acquire. That valuation is of the property as a totality, and it is unnecessary in mak- ing an assessment to disintegrate the various ele- ments which enter into it and ascribe to each its separate fraction of value. Oftentimes the combi- nation itself is no inconsiderable factor in creating the value." "^ LOCAL ASSESSMENTS. The making of a public improvement, such as opening or grading a street, laying sewer-pipes, or e Western Union Tel. Co. v. Missouri, 190 U. S. 412, 425. See also supra, p. 68. 7 Brooklyn City R. Co. v. Tax Com'rs, 199 U. S. 48. DUE PROCESS OF LAW 247 draining or irrigating lands, involves the determina- Chapter tion of various matters of fact. The necessity or -- propriety of the improvement itself, the method by which its expenses shall be defrayed, and, if a local assessment is determined on, the extent of the area upon which it is to be laid and the manner of appor- tioning it upon the several parcels of property lying within the limits fixed upon, must all be decided. Every question belonging to the raising of funds to meet the costs of such an improvement, from the creation of a taxing district or the determination of the lands benefited thereby, to the apportionment and collection of the assessment laid, belongs to the legislature. There can be no doubt that "the legis- lature 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 improve- ment, 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 bene- fited also rests within the discretion of the legisla- ture, and [the burdens to be borne by them] 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 com- missioners."^ 8 Bauman v. Ross, 167 U. S. 548. And see Mattingly v. District of Columbia, 97 U. S. 687, 692. For instances of valid assessments based on frontage, see French v. Barber Asphalt Paving Co., 181 U. S. 324; Chadwick v. Kelley, 187 U. S. 540; Seattle v. Kelleher, 195 U. S. 351; on value. Fallbrook Irrigation Dist. v. Bradley. 164 U. S. 112; on area, Walston r. Nevin, 128 U. S. 578; Louisville, etc., R. Co. r. Barber Asphalt Paving Co., 197 U. S. 430; on benefits, King V. Portland, 184 U. S. 61. 248 DUE PROCESS OF LAW Chapter VII. Delegation of legisla- tive func- tions. In exercising its power, the legislature may either act directly, determining the area benefited and the rate of aiDportionment absolutely ; or it may delegate to local authorities the power to decide as to the necessity of the improvement, the area which will be benefited, and the rule of apportionment, and this delegation may cover all or any of these points. The Federal Supreme Court holds that the legisla- ture acting directly may determine the district bene- fited by a public improvement and lay down an ab- solute rule as to the apportionment of the expense among the parcels of land included. When this course is adopted the act of the legislature must be deemed conclusive alike of the question of the neces- sity of the work, and of the benefits as against abut- ting property, and to open such questions to review by the courts upon the petition of any and every property holder would create endless confusion. But when the legislature delegates to municipal or local authorities the determination of the property benefited or the rule of apportionment, or the pro- priety of making the improvement, or some or all of these questions, they become in their nature ju- dicial in such a sense that the property owner is entitled to a hearing or to notice and an opportunity to be heard.^ In some State courts it has been held, however, that the legislature exceeds its powers in enacting a » Spencer v. Merchant, 125 U. S. 345; Walston v. Nevin, 128 U. S. 578; Paulsen V. Portland, 149 U. S. .30; Fallbrook Irrigation 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. DUE PROCESS OF LAW 249 statute which absolutely fixes the proportion of ex- ^y[j^^ pense to be borne by abutting owners/ or which makes no provision for the indemnification of the state hold- ing against owner of the land subjected to the operation of the ^J^^l^/isia- law, in case the expense of improvements shall ex- dedare^ab- ceed the benefits which shall be conferred.^ These b°ih?of' abutters. cases proceed upon the ground that no rule oi ap- portionment can be adopted by the legislature which does not provide for the equating of benefits to bur- dens in the individual case; because if the area benefited or the method of apportionment is fixed absolutely by the legislature, in individual cases the burden may exceed the benefit, and the moment this happens property is taken without compensation for a public purpose, and there is no longer a rightful exercise of the taxing power but a wrongful exercise of the power of eminent domain. Statutes under which such results may ensue are without the tax- ing power and unconstitutional. In Norwood v. Baker, ^ the United States Supreme PosWo^n Court, in holding a particular assessment void as ^^^^^ being a deprivation of property without due process of law, indulged in reasoning which seemed to go to the whole length of denying the power of the legisla- ture to lay down an absolute rule of apportionment without providing for a hearing. The case came up from the United States Circuit Court for the South- ern District of Ohio.'* The village of Norwood opened a street to the north and south lines of a 1 state V. Newark, 37 N. J. L. 415. See Provident Sav. Inst. V. Jersey City, 113 U. S. 506. 2 Tide Water Co. v. Coster, 18 N. J. Eq. 518. 3 172 U. S. 269. 4 Baker v. Norwood, (C. C. A.) 74 Fed. Rep. 997. 250 DUE PROCESS OF LAW cimpter tract of land owned by Mrs. Baker. In pursuance of authority conferred on villages by the Ohio stat- utes, the village determined to connect the two parts of the street by a continuation through Mrs. Baker's land for a distance of three hundred feet. The con- stitution of Ohio provided that the compensation for private property taken for a public use ' ' shall be as- sessed by a jury, without deduction for benefits to any property of the owner." The damages were assessed at $2,000. The village council then passed an ordinance assessing the damages and expenses of the condemnation proceedings back upon the prop- erty according to frontage, which was one of the methods provided by the Ohio statutes. The amount so assessed against the property was $2,218.58, and this was carried to the tax lists of the county to be collected by suit, by sale of the land, or by distraint of sufficient goods and chattels. The whole pro- ceeding, which amounted to charging Mrs. Baker with the sum of $218.58 for the privilege of having her land used by the village for a street, was held to be a mere confiscation of property and therefore void. Mr. Justice Harlan, who spoke for the court, said : "In our judgment the exaction from the own- er of private property of the cost of a public im- provement in substantial excess of the special bene- fits accruing to him is, to the extent of such excess, a taking under the guise of taxation of private property for public use without compensation. . . . As the pleadings show, the village proceeded upon the theory, justified by the words of the statute, that the entire cost incurred in opening the street, includ- ing the value of the property appropriated, could. DUE PROCESS OF LAW 251 when the assessment was by the front foot, be put Chage'^ upon the abutting property, irrespective of special benefits. The assessment was by the front foot and for a specific sum representing such cost, and that sum could not have been reduced under the ordi- nance of the village, even if proof had been made that the costs and expenses assessed upon the abut- ting property exceeded the special benefits. The as- sessment was in itself an illegal one because it rested upon a basis that excluded any consideration of benefits." This decision was widely understood as establish- tioJ'mi's- , ^ understood ing that special assessments must be limited by the ^^^.^^i benefits conferred and could not exceed that limit and also as condemning the front foot rule when ap- plied absolutely without providing for a preliminary hearing upon benefits conferred.' In truth the de- cision was not intended to establish either of these propositions, whatever may be laid down therein in dicta, as is shown in a series of cases which came before the Supreme Court in 1901.6 rpi^e case was said to have presented ''considerations of peculiar and extraordinary hardship," amounting ''to ac- tual confiscation of private property to public use, c See, for instance, Adams v. ShelbjA-ille, 154 Ind. 473, and cases cited at pp. 476, 477. 6 French v. Barber Asphalt Paving Co., 181 U. S. 324, affirming 158 Mo. 534; Wight V. Davidson, 181 U. S. 371, reversing 16 App. Cas. (D. C.) 371; Tonawanda v. Lyon, 181 U. S. 389, affirming 98 Fed. Rep. 361; Webster v. Fargo, 181 U. S. 394, afftrmiug 9 N. Dak, 208; Cass Farm Co. V. Detroit, 181 U. S. 306, affirming 124 Mich. 433; Detroit v. Parker, 181 U. S. 399, reversing 103 Fed. Rep. 357; Wormley v. District of Columbia, 181 U. S. 402, affirming 15 App. Cas. (D. C.) 58; Shumate V. Heman, 181 U. S. 402, affirming 158 Mo. 534; Farrell V. West Chicago Park Com'rs, 181 U. S. 404, af- firming 182 111. 250. 252 DUE PROCESS OF LAW Chapter VII. Petitioner for act cannot dis- pute its validity. and bringing the case fairly within the reach of the Fourteenth Amendment."' In one of these cases, Norwood V. Baker was also said to present the ques- tion of "the validity of a village ordinance, which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The legislature of the State had not defined or designated the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity af- forded to the abutting owner to be heard on that subject, this court held that the exaction from the owner of private property of the cost of a public im- provement in substantial excess of the special bene- fits accruing to him is, to the extent of such excess, a taking under the guise of taxation of private prop- erty for public use without compensation. ' ' ^ The right to challenge an assessment as a denial of due process of law does not exist in one at whose instance the assessment was made, when the pro- ceedings had were in strict compliance with the pro- visions of the act passed at his petition.^ 'Tonawanda v. Lyon, 181 U. S. 392; French v. Barher Asphalt Paving Co., 181 U. S. 344; Wight v. Davidson, 181 U. S. 383; Cass Farm Co. r. Detroit, 181 U. S. 398, 8 Wight V. Davidson, 181 U. S. 384. See also Scott r. Toledo, 36 Fed Rep. 385, decided by Mr. Justice Jackson when circuit judge of the sixth circuit. » Shepard v. Barron, 194 U. S. 553. E CHAPTER VIII. THE EMINENT DOMAIN. ITS GEN-EEAL NATUBE AND LIMITATIONS. MINENT DOMAIN is the name used since ^^^p}^'" the time of Grotius ^ to express the power under which the state may appropriate private property for public purposes, upon making, accord- ing to the principles of natural equity, compensation to the owner. The power is the offspring of politi- cal necessity, and is inseparable from sovereignty, unless denied to it by its fundamental law.^ Our dual system of government recognizes its ex- S"fn ■„ istence in both the United States and the States, as tionarand inherent in each within its separate and independent emments. sphere.^ But, while inherent in both sovereignties, the eminent domain of the national government is paramount, when its exercise is necessary to effec- tuate powers granted to it by the Constitution. ''If," it has been said, '*it is necessary that the United States government should have an eminent domain still higher than that of the [individual] State in order that it may fully carry out the objects 1 1 Thayer Cas. Const. Law, 945, 947 ; Grotius, De Jure Belli et Pads, lib. iii, c. 20, § 7; Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162. 2 Kohl V. U. S., 91 U. S. 367; Searl v. School Dist. No. 2, 133 [J. S. 553. 3 Kohl V. U. S., 91 U. S. 367. 253 254 DUE PROCESS OF LAW Chapter VIII. Exercis- able by- legislature. Grant creates no estoppel. 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 postulate of the Con- stitution that the government of the United States is invested with full and complete power to execute and carry out its purposes. ' ' ■* The eminent domain resides in the state and is exercisable by the legislative branch of the govern- ment. The legislature may, in its discretion, exer- cise the power either directly or through agents, authorizing individuals or corporations to expro- priate private property when the public interests require such a course.^ Nor can its grant of the power to one person or set of persons estop the state from again exercising the right of condemnation whenever and as often as the necessity may arise.^ ''The only true rule of policy as well as of law is that a grant for one public purpose must yield to another more urgent and im- portant, and this can be effected without any in- fringement of the constitutional rights of the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or 4 Stockton V. Baltimore, etc., E. Co., 32 Fed. Eep. 19, per Bradley, J., quoted in Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 661. 5Secombe r. Milwaukee, etc., R. Co., 23 Wall. (U. S.) 108; Lom- bard V. West Chicago Park Com'rs, 181 U. S. 33, 42; Moran V. Ross, 79 Cal. 159; Day v. Stetson, 8 Me. 365; Beekman v. Saratoga, etc., R. Co., 3 Paige Ch. (N. Y.) 45, 22 Am. Dec. 679. 6 West River Bridge Co. v. Dix, 6 How. (U. S.) 507; Hyde Park V. Oakwoods Cemetery Assoc., 119 111. 141; Beekman V. Saratoga, etc., R. Co., 3 Paige (N. Y.) 45, 22 Am. Dec. 679. DUE PROCESS OF LAW 255 taken away, there is no violation of public faith or ^^jf^^^ private right. ' ' "^ Constitutional limitations on the exercise of this Jjons!^' right demand that the purpose for which the appro- priation is made must be a public purpose ; that the appropriation be accompanied with just compensa- tion to the owner of the property; and in general, the presence of notice and a hearing is necessary on judicial questions involved. THE PUBLIC PURPOSE OR USE. To take property for other than a public purpose ; Necessity to take, for instance, the property of one citizen and purpose. transfer it to another, would be a deprivation there- of without due process of law; and such a proceed- ing is equally unconstitutional when the appropria- tion is accompanied by full compensation, as when it is legislative confiscation without compensation.^ For, under our Constitution, the State is incapable of itself interfering or of conferring any right to in- terfere with private property unless it is needed for public objects.^ The determination of what is a public use justify- Jon^™!^" ing appropriation under public authority belongs legislature. primarily to the law-making branch of the govern- ment; but, since the Constitution is a restraint on the legislature itself, it devolves upon the courts to declare ultimately whether or not the appropriation 7 Central Bridge Corp. v. Lowell, 4 Gray (Mass.) 482, per Bige- low, J. 8 Missouri Pac. R. Co. r. Nebraska, 164 U. S. 403; Matter of Tuthill, 163 N. Y. 133, 138 ; Fallsburg Power, etc., Co. v. Alexander, 101 Va. 98. 9 Matter of Tuthill, 163 N. Y. 133, 138; In re Rhode Island Suburban R. Co., 22 R. I. 455. 256 DUE PROCESS OF LAW Chapter VIII. Supervis- ory power of courts. is for a public purpose. According as the one or the other aspect of the matter is uppermost, this question has been spoken of sometimes as a judicial, sometimes as a legislative one.^ In truth, the mat- ter is purely legislative, and the courts merely exer- cise a supei^isory power, that of keeping the legis- lature within constitutional bounds. The legislative declaration that a use is public must prevail, unless it appears that such declaration is so manifestly wrong as not to admit of a doubt that the use is not public.^ Various Public Uses Enumerated. The courts have not attempted an exact definition of a public use which will justify a taking by emi- nent domain, but there are certain purposes univer- sally conceded to be within the rightful exercise of this power. Private property may be expropriated 1 In some States (Colorado, Missouri, Washington) there is a constitutional provision that the question is a judicial one to be determined *' without regard to any legislative assertion that the use is public." Savannah V. Hancock, 91 Mo. 54; Healy Lumber Co. v. Morris, 33 Wash. 490. 2U. S. V. Gettysburg Electric R. Co., 160 U. S. 668, 680; Tuttle V. Moore, 3 Indian Ter. 712, 729; Hazen v. Essex County, 12 Cush. (Mass.) 477; Varner v. Martin, 21 W. Va. 534; Chicago, etc., R. Co. V. Morehouse, 112 Wis. 1. " In such cases [the exercise by the legislature of the taxing power, eminent domain, or the police power] it is always to be remembered that the judicial question is a secondary one. The legis- lature, in determining what shall be done, what it is reasonable to do, does not divide its duty with the judges, nor must it conform to their conception of what is prudent or reasonable legislation. The judicial function is merely that of fixing the outside border of reason- able legislative action, the boundary beyond which the taxing power, the power of eminent domain, police power, and legislative power in general cannot go without violating the prohibitions of the Consti- tution, or crossing the line of its grants." Prof. James B. Thayer, American Doctrine of Constitutional Law, 7 Harv. L. Rev. 148. DUE PROCESS OF LAW 257 when its acquisition is necessary to tlie acknowledged Chapter activities of tlie government, whether exerted by the VIII. State itself, by a department thereof, or by the local Kcon/ governments of counties or municipalities. With- in this class falls condemnation of property for forts, aiinories, arsenals, navy yards, light houses, custom houses, court houses, post offices,^ the es- tablishment of public alms-houses,^ public schools,' and similar enterprises. The construction and im- provement of public highways and means of inter- communication are public purposes ^ and the power of eminent domain may be exerted for public high- ways,^ turnpikes,^ railways,^ canals,^ and for tele- graphs and telephones,^ as well as for bridges and 3 Kohl V. U. S., 91 U. S. 367; Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525; Chappell v. U. S., 160 U. S. 499, 509, 510. 4 Hey ward v. New York, 7 N. Y. 314, affirming 8 Barb. (N. Y.) 486. 5 Long V. Fuller, 68 Pa. St. 170; Williams v. School Dist. No. 6, 33 Vt. 271. 6 " In every form of government the duty of providing public ways is acknowledged to be a public duty." Matter of Niagara Falls, etc., R. Co., 108 N. Y. 375, 385. 7 Lewis on Em. Etom. 166. " The public necessity and convenience have always indicated highways as one of the objects for which the state might take private property." Dronberger v. Reed, 11 Ind. 420, 422. 8 State V. Maine, 27 Conn. 641. sSecombe v. Milwaukee, etc., R. Co., 23 Wall. (U. S.) 108; Cher- okee Nation v. Southern Kansas R. Co., 135 U. S. 641, 657; Bona- parte V. Camden, etc., R. Co., Baldw. (U. S.) 205; People v. Town- ship Board, 20 Mich. 452, 477, 4 Am. Rep. 400; Beekman v. Saratoga, etc., R. Co., 3 Paige (N. Y.) 45, 73, 74, 22 Am. Dec. 679. 1 Chesapeake, etc., Canal Co. v. Key, 3 Cranch (C. C.) 599; Will- yard V. Hamilton, 7 Ohio (pt. li) 111, 30 Am. Dec. 195. 2 Lewis, Em. Dom. 172; Trenton, etc., Turnpike Co. v. American, etc., News Co., 43 N. J. L. 381; State v. Central New Jersey Tele- phone Co., 53 N. J. L. 341. The right of eminent domain was not granted to telegraph com- 17 258 DUE PROCESS OF LAW Chapter ferries,^ wharves and landings,^ booms for floating logs on streams,^ and structures necessary in con- nection with improved highways, such as depots,® repair shops,'^ stock yards,^ etc. Matters Auothcr class of cases includes measures of police of police. ^ control, especially those designed to promote the panies by the Act of Congress, which allowed them to construct lines through the public domain and over the military and post roads of the United States. Eev. Stat. U. S., § 5263 et seq. ; 7 Fed. Stat. Annot. 205. Western Union Tel. Co. f. Pennsylvania P. Co., 195 U. S. 540. 3 Lewis, Em. Dom. 168 ; Arnold v. Covington, etc.. Bridge Co., 1 Duval (Ky.) 372; Day r. Stetson, 8 Me. 365 (ferry) ; Southern Illi- nois, etc., Bridge Co. v. Stone, 174 Mo. 1 (toll bridge). 4Kingsland v. New York, 110 N. Y. 569; Matter of New York, 135 N. Y. 253; Pittsburgh v. Scott, 1 Pa. St. 309. 5 Lawler v. Baring Boom Co., 56 Me. 443 ; Cotton V. Mississippi, etc.. Boom Co., 22 Minn. 372; Henly Lumber Co. V. Morris, 33 Wash. 490, 503, distinguishing boom companies organized to do a carrying business for the public, from private logging companies. Compare Brewster v. J. & J. Rogers Co., 169 N. Y. 73. 6 " If lands are required for any of the purposes of the incor- poration, or for the purpose of operating and running the road, that is, in the proper enjoyment and exercise of the franchise con- ferred and in the performance of the service to the public assumed by it, they may be taken in invitum. The only limit to the power is the reasonable necessity of the corporation in the discharge of its duty to the public. Tlie right to take lands upon which to erect a manufactory of cars or dwellings for operatives, is not included in the grant. Such purposes are not legitimately and necessarily con- nected with the management, the running and operating of the rail- road. . . . But passenger depots, convenient and proper places for the storing and keeping cars and locomotives when not in use, proper, secure, and convenient places having reference to the public interests to be subserved, for the receipt and delivery of freight, and for the safe and secure keeping of property between the time of its receipt and despatch, or after its arrival and discharge and before its removal by the owner or consignee, are among the acknowledged necessities for the running and operating the railroad, to the proper prosecution of the business in the interests of the public." New York, etc., R. Co. v. Kip, 46 N. Y. 546, 552. 7 Chicago, etc., R. Co. r. Wilson, 17 111. 123. 8 Covington Stock- Yards Co. v. Keith, 139 U. S. 128. Great public interests. DUE PROCESS OF LAW 259 public health. Such are statutes employing the emi- ^}^Yn" nent domain to secure the drainage of cities,^ or of swampy districts,^ the procuring of a pure water supply for cities,^ the establishment of public ceme- teries,^ the abating of great public nuisances/ the establishment of public markets,^ and the like. Still other cases arise when great public interests, J^^fj'^ as irrigation in arid districts ^ and the construction of dikes and levees in areas subject to overflow,'^ or public convenience, such as supply of gas to munici- palities,^ have been held to warrant the expropriation » Leeds v. Eichmond, 102 Ind. 372, 376; Kingman, Petitioner, 153 Mass. 566; Stoudinger V. Newark, 28 N. J. Eq. 187, and note by reporter. The power in cities to construct sewers may be put on the city's right to maintain streets. iManigault V. Springs, 199 U. S. 473; Elmore v. Drainage Com'rs, 135 111. 269, 25 Am. St. Rep. 363; Anderson V. Kerns Drain- ing Co., 14 Ind. 199, 77 Am. Dec. 63 ; Matter of Ryers, 72 N. Y. 1 , 28 Am. Rep. 88; State v. Stewart, 74 Wis. 620. These cases place the right only on the ground of public health. See also Heflfner V. Cass County, 193 111. 439; State V. Polk County, 87 Minn. 325; Mound City Land, etc., Co. v. Miller, 170 Mo. 240. 2U. S. V. Great Falls Mfg. Co., 112 U. S. 645; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Burden v. Stein, 27 Ala. 104, 62 Am. Dec. 758; Lynch V. Forbes, 161 Mass. 302, 42 Am. St. Rep. 402; Gardner V. Newburgh, 2 Johns, Ch, (N.Y.) 162, 7 Am. Dec. 528; Stearns v. Barre, 73 Vt. 281, 3 Edwards v. Stonington Cemetery Assoc, 20 Conn. 466 ; Balch v. Essex County, 103 Mass. 106; Edgecumbe v. Burlington, 46 Vt. 218. " The safety of the living requires the burial of the dead in proper time and place." Evergreen Cemetery Assoc, v. Beecher, 53 Conn. 551. But see infra, p. 264. 4 Sweet V. Reehel, 159 U. S. 380; Dingley v. Boston, 100 Mass. 544. B Henkel v. Detroit, 49 Mich. 249. e Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112. T Columbia Bottom Levee Co. v. Meier, 39 Mo. 53, 57; Coster V. Tide Water Co., 18 N. J. Eq. 54, 518. 8 Brunswick Gas Light Co. v. United Gas, etc., Co., 85 Me. 532, 35 Am. St. Rep. 385; Stockton v. Central R. Co., 50 N". J. Eq. 52; Bloomfield, etc., Natural Gas Light Co. v. Richardson, 63 Barb. (N. Y.) 437. 260 DUE PROCESS OF LAW Chapter of private property. The construction of parks for — the use of the public for rest and exercise in the open air is a public pur]_)Ose authorizing the employment of eminent domain.^ The preservation of the site of the battle of Gettysburg and the marking out of the positions of the various commands upon the battlefield has been held such a public purpose as warrants the condemnation of lands for these ends. ^'Any Act of Congress 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 Congi-ess, must be valid. This proposed use comes within such description. . . . Such a use seems necessarily not only a pub- lic use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the Constitution for the pur- pose of protecting and preserving the whole country. . . . No narrow view of the character of this pro- posed use should be taken. Its national character and importance, we think, are plain. The power to condemn for this purpose need not be plainly and unmistakably deduced from any one of the particu- larly specified powers. Any number of those pow- ers may be grouped together and an inference from them all may be drawn that the power claimed has been conferred. It is needless to enlarge upon the subject, and the determination is arrived at without » Shoemaker v. U. S., 147 U. S. 282; Wilson v. Lambert, 168 u. s. en. DUE PROCESS OF LAW 261 hesitation, that the use intended, as set forth in the ^y^ljj^'^ petition in this proceeding, is of that public nature which comes within the constitutional power of Con- gress to provide for by the condemnation of land. ' ' ^ Purposes purely aesthetic have been held to war- ^fpSes. rant condemnation under the power of eminent do- main. In a recent Massachusetts case, an act of the legislature forbidding the erection of any house around a park or square in the city of Boston, known as Copley Square, to a height greater than ninety feet, and providing compensation for all persons damaged by the limitation prescribed for the height of buildings, was sustained as a valid exercise of the power of eminent domain, ''for the benefit of the public who use Copley Square." "The uses which should be deemed public in reference to the right of the legislature to compel an individual to part with his property for a compensation and to authorize or direct taxation to pay for it," said the court, "are being enlarged and extended with the progress of the people in education and refinement." Public parks are beautified "by such touches of art as help to produce pleasing and satisfactory effects on the emotional and spiritual side of our nature. . . . It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated." The statute was passed for the benefit of the public, by "seeking to promote the beauty and attractiveness of a public park in the 1 U. S. V. Gettysburg Electric R. Co., 160 U. S. 668. 262 DUE PROCESS OF LAW Chapter capital of the commonwealtli, and to prevent unrea- '— sonable encroachments upon the light and air which it had previously received, ' ' and the court could ' ' not say that this was not a matter of such public interest as to call for an expenditure of public money and to justify the taking of private property." ^ The Criterion of a Public Use. Divergent Most of tlic various cases enumerated are alike in views Stated. certain particulars. Either the State has a direct property in the improvement (custom houses, court houses, and the like) ; or the title, when in private persons, is impressed with a trust in favor either of the whole public, entitling every citizen to use the property on the same terms for the same facilities (railroads, canals, highways), or entitling to its use every citizen within the range and objects of the improvement (municipal waterworks, irrigation dis- tricts, etc.). These characteristics are, according to one and perhaps the most common view, considered necessary to constitute a public use, to be the cri- teria by which its existence is tried. The State, when the public use is not a governmental use di- rectly administered, must have a voice in the man- ner in which the public may avail itself thereof ; the undertaking must be under public control and inde- pendent of the will of the person or corporation in whom the title by condemnation will be vested, so that the public interest can not be defeated or the entire enterprise abandoned at the will or caprice of the proprietors.^ But some courts give to the 2 Atty.-Gen. v. Williams, 174 Mass. 476, affirmed st(b. vom. Wil- liams V. Parker, 188 U. S. 491. 8 Board of Health v. Van Hoesen, 87 Mich. 533; Bloodgood v. DUE PROCESS OF LAW 263 term ''public use'^ a wider meaning and hold that ^yj?j^^ no use which is clearly for the benefit of the public • and which the legislature has declared to be a public use can by the courts be declared not a public use, although the title to the property taken is vested in individuals as strictly private property.^ On the one hand it is said that ''public use" is equivalent to "public benefit," and when a marked public benefit arises to the community, it is not within the judicial competence to declare that benefit beyond the help of the State 's power of eminent domain ; on the oth- er hand it is declared that "public use" and "pub- lic benefit" are not synonymous and that incidental benefit to the public, however great, is not the cri- terion."^ Mohawk, etc., R. Co., 18 Wend (N. Y.) 9, 31 Am. Dec. 313; Matter of Tuthill, 163 N. Y. 133; Matter of Deansville Cemetery Assoc, 66 N. Y. 569; Fallsburg Power, etc., Co. v. Alexander, 101 Va. 98; Healy Lumber Co. v. Morris, 33 Wash. 490. 4 01mstead v. Camp, 33 Conn. 532, 89 Am. Dee. 221; Talbot V. Hudson, 16 Gray (Mass.) 417; Dayton Gold, etc., Min. Co. v. Sea- well, 11 Nev. 394; Chicago, etc., R. Co. v. Morehouse, 112 Wis. 1, 56 L. R. A. 240. This view has been held to authorize the appropriation of un- improved lands by the national government to be sold in town lots in accordance with a general town lot scheme. Tuttle v. Moore, 3 In- dian Ter. 712. 5 When the question is reduced to its ultimate elements, it appears that the former view is theoretically correct. See supra, p. 256, note 2. The view that possession or control by the government is essen- tial Avas adopted by the courts because it made easier the perform- ance of a difficult duty (see Bloodgood V. Mohawk, etc., R. Co., 18 Wend. (N. Y.) 9, 31 Am. Dec. 313), and in accordance with the tendency of judges to establish rules which are definite (Dicey, Law and Opinion, 364). But the difficulty of a judicial duty is no reason for avoiding it, and the reason for preferring a definite rule, which may be changed by legislation if it works hardships, fails where the rule involves a limitation on the power of the legislature. It has been argued with force that the rule which makes " public use " synonymous with " public benefit " is less liable to abuse than 264 DUE PROCESS OF LAW Chapter This difference of view is manifested in a number of cases. Typical are the so-called general mill Instsriccs — mill acts, statutes authorizing lands to be taken or flowed acts, etc. ... . in invitum for the erection and maintenance of mills, and statutes authorizing the taking of property for private manufacturing purposes. Such statutes have been sustained or declared unconstitutional as the eminent domain was held exercisable for any ob- ject of public benefit,*^ or limited to purposes within the State control.'^ Or, the right of condemnation has been sustained only for mills required to grind for all persons for a toll fixed by law.^ Upon the same principles, the power to condemn lands for pri- vate roads has been denied ^ or recognized,^ and laws authorizing the formation of cemetery associa- tions and the condemnation of lands for cemeteries, the title to the lands to be in the association with a that which demands State ownership and control. See the remarks of Hawley, C. J., in Dayton Gold, etc., Min. Co. v. Sea well, 11 Nev. 394, 410. 6 Head v. Amoskeag Mfg. Co., 113 U. S. 9; Olmstead v. Camp, 33 Conn. 532, 89 Am. Dee. 221; Scudder v. Trenton Delaware Falls Co., 1 N. J. Eq. 694, 23 Am. Dec. 756. 7Gaylord v. Sanitary Dist., 204 111. 576; Ryerson v. Brown, 35 Mich. 333; Avery v. Vermont Electric Co., 75 Vt. 235; Fallsburg Power, etc., Co. v. Alexander, 101 Va. 98; Varner v. Martin, 21 W. Va. 534; Healy Lumber Co. v. Morris, 33 Wash. 490. 8 Bottoms V. Brewer, 54 Ala. 288 ; Tyler V. Beacher, 44 Vt. 648 , 8 Am. Rep. 398; Varner v. Martin, 21 W. Va. 534, 559. » Logan I'. Stogsdale, 123 Ind. 372; Underwood v. Bailey, 59 N. H. 480; Taylor V. Porter, 4 Hill (N. Y.) 140; Varner v. Martin, 21 W. Va. 534; Healy Lumber Co. V. Morris, 33 Wash. 490. 1 Brewer v. Bowman, 9 Ga. 37, 40; Harvey v. Thomas, 10 Watts (Pa.) 63; In re Road in Plumcreek Tp., 110 Pa. St. 544. In cases where the owner of land is excluded from any public highway, the road giving him an outlet and enabling him to per- form his public duties is a highway and of public utility. Johnson V. Clayton County, 61 Iowa 89. And see Nelson, Ch. J., dissenting, in Taylor v. Porter, 4 Hill (N. Y.) 140, 148. DUE PROCESS OF LAW 265 right ou the part of citizens to purchase burial lots ^^^Pj^^ at prices fixed by the association, have been held constitutional in some States,^ unconstitutional in others.^ Acts permitting the drainage of large, swampy f/tli"^^^ areas and the condemnation of land therefor, have been universally sustained when the drainage is for the promotion of public health,^ but their constitu- tionality has been denied when the advantage ac- crues merely to the property owners by rendering their land more productive.^ Drainage acts have been held to be constitutional, however, as within the general legislative power, independently of any effect upon the public health, or of any reference to either the eminent domain or the taxing power,^ "as a just and constitutional exercise of the power of the legislature to establish regulations by which adjoining lands, held by various owners in several- ty, and in the improvement of which all have a com- mon interest, but which, by reason of the peculiar natural condition of the whole tract, can not be im- proved br enjoyed by any of them without the con- 2 Evergreen Cemetery Assoc, v. Beecher, 53 Conn. 551. 3 Board of Health v. Van Hoesen, 87 Mich. 533; Matter of Deans- ville Cemetery Assoc, 66 N. Y. 569, 4 See supra, p. 259. 5 Matter of Ryers, 72 N. Y. 1, 6, 28 Am. Rep. 88, citing Gilbert r. Foote, (N. Y. Ct. App.) unreported; Matter of Tuthill, 163 N. Y. 133. eWurts V. Hoagland, 114 U. S. 606, 614. See Mound City Land, etc., Co. V. Miller, 170 Mo. 240. This view had its origin in Massachusetts, where it is fully stated and developed in Lowell V. Boston, 111 Mass. 454, 15 Am. Rep. 39. It was adopted in the United States Supreme Court in the opinions in the case above cited, and Head r. Amoskeag Mfg. Co., 113 U. S. 9, both of which were written by Mr. Justice Gray, previously chief justice of Massachusetts. 266 DUE PROCESS OF LAW Chapter VIII. Irrigation. Federal Supreme Court considers peculiar conditions of State. currence of all, may be reclaimed and made useful to all at their joint expense;"^ ''making equitable compensation to any whose control of or interest in the property is thereby modified."^ So far as the necessity of compensation is recognized, these acts would seem to be a true exercise of eminent domain for a public purpose, though the taxing power is also involved in the assessment on the owners. The same principle has been invoked to sustain the decision that irrigation was a public use.^ In determining what is a public use, the United States Supreme Court has recognized that much de- pends upon condition of the State, whose eminent domain is sought to be employed, the facts surround- ing the subject, matters of climate and soil, and the condition of population. Thus, in the arid climate of Utah, a statute allowing a landowner to condemn a right of way over another's land for a ditch to irrigate his private property has been sustained on the ground that the condemnation was, under the circumstances, for a public use. The court said: "Whether a statute of a State permitting condem- nation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, a valid enactment, may depend upon a number of considerations relating to the situation of the State and its possibilities for land cultivation, or the suc- cessful prosecution of its mining or other industries. Where the use is asserted to be public, and the right 7Wurts V. Hoajrland. 114 U. S. 606, 614. 8 Head v. Amosken^ MUr. Co., 11.3 U. S. 9, 21, 22. eFallbrook Irriiration Dist. v. Bradley, 164 IT. S. 112, 163. also Turlock Irrigation Dist. v. Williams, 76 Cal. 360. See DUE PROCESS OF LAW 267 of the individual to condemn land for the purpose ^hap^^r of exercising such use is founded upon or is the re- suit of some peculiar condition of the soil or climate, or other peculiarity of the State, where the right of condemnation is asserted under a State statute, we are always, where it can fairly be done, strongly in- clined to hold with the State courts, when they up- hold a State statute providing for such condemna- tion. The validity of such statutes may sometimes depend upon many different facts, the existence of which would make a public use, even by an indi- vidual, where, in the absence of such facts, the use would clearly be private. Those facts must be gen- eral, notorious, and acknowledged in the State, and the State courts may be assumed to be exceptionally familiar with them. They are not the subject of ju- dicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enact- ment of the statute, and they also appreciate the re- sults upon the growth and prosperity of the State which, in all probability, would flow from a denial of its validity. These are matters which might prop- erly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the pur- pose of working a mine, that is material ; other facts might exist which are also material — such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for that pur- Utah. 268 DUE PROCESS OF LAW Chapter pose. The general situation and amount of the arid land or of the mines themselves might also be mate- rial and what proportion of the water each owner should be entitled to; also the extent of the popu- lation living in the surrounding country, and whether each owner of land or mines could be, in fact, furnished with the necessary water in any other way than by the condemnation in his own be- half, and not by a company, for his use and that of others. . . . duchfs'— "We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the State statute which provides, under the cir- cumstances stated in the Act, for the condemnation of the land of one individual for the purpose of al- lowing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless. But we do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the State. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an indi- vidual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. . . . DUE PROCESS OF LAW 269 ''The risrlits of a riparian owner in and to the Chapter ^ ^ VIII. use of the water flowing by his land are not the same in the arid and mountainous States of the West that ?/ 5^6^ they are in the States of the East. . . . This court recognized, must recognize the differences of climate and soil, which render necessary these different laws in the States so situated." ^ But whatever the view as to the test of a public f^j^oVnfig^ use, the courts are united on the proposition that t°on''not' the power of eminent domain does not justify a purpose."^ taking for private purposes merely, as when prop- erty is transferred from one person to another, or to several persons for their peculiar benefit and ad- vantage, even though compensation is provided for.^ Nor does it justify a taking for subsidiary enter- prises connected with but not necessary for an ad- mitted public purpose.^ In the last case, the ques- tion is the connection between the subsidiary and the main object to be attained, and the decisions are frequently at variance. ''Spur tracks," from rail- roads to business establishments, for instance, are sometimes held to be essential to the railroad's busi- ness and so to warrant the exercise of eminent do- main,^ sometimes to be unnecessary and a taking of 1 Clark V. Nash, 198 U. S. 361. 2 Missouri Pac. R. Co. V. Nebraska, 164 U. S. 403 (grain elevator of private individuals) ; Evergreen Cemetery Assoc. V. Beecher, 53 Conn. 551; Talbot V. Hudson, 16 Gray (Mass.) 417; Chicago, etc., R. Co. V. State, 50 Neb. 399 (private grain elevator). 3 New York, etc., R. Co. V. Kip, 46 N. Y. 546. 7 Am. Rep. 385 (car factories and houses for employees). " The need of the land sought in aid of collateral enterprises, re- motely connected with the running or operating of the [rail] road, will not justify an assertion of the right of eminent domain." Mat- ter of Rochester, etc., 110 N. Y. 119. 4 See Chicago, etc., R. Co. v. Morehouse, 112 Wis. 1, 88 Am. St. 270 DUE PROCESS OF LAW Chapter VIII. State may use expro- priated property for inci- dental profit. Incidental private benefit not fatal. property therefor a taking without due process of law.^ While the raising of revenue is not a public pur- pose which will justify the taking of private prop- erty by the State, yet when property has been ac- quired by the State for a legitimate public purpose, and the works constructed for the end in view are in- cidentally capable of valuable uses and may be made a source of revenue, their emplojanent for this ob- ject is not a subject of complaint.*^ Thus where, in improving the navigability of a stream, it was nec- essary to construct a dam and a canal to avoid a rapids in the stream, the surplus water power may be rented by the State, and a riparian proprietor, though cut off from the use of the power, has not been deprived of his property. But the erection of the dam must have been bona fide and to improve navigation, not a colorable device for creating a water powerJ While the State can not by eminent domain fur- ther purely private objects which tend merely to the enrichment of private individuals, the fact that a legitimate public object tends incidentally to benefit Hep. 918, 56 L. E. A. 240, where many cases so holding are collected and discussed in the opinion. BWeidenfeld V. Sugar Run R. Co., 48 Fed. Rep. 615; Garbutt L-umber Co. v. Georgia, etc., R. Co., Ill Ga. 714; Chicago, etc., R. Co. V. Wiltse, 116 111. 449; Matter of Niagara Falls, etc., R. Co., 108 N. Y. 375; Matter of Rochester, etc., 110 N. Y. 119; State v. Hazel- ton, etc., R. Co., 40 Ohio St. 504; Apex Tramp Co. v. Garbade, 32 Oregon 582, 62 L. R. A. 513; Pittsburg, etc., R. Co. -j;. Benwood Iron Works, 31 W. Va. 710, 2 L. R. A. 680. 6 Fox V. Cincinnati, 104 U. S. 783; Buckingham v. Smith, 10 Ohio 296. TKaukauna Water-Power Co. v. Green Bay, etc., Canal Co., 142 U. S. 254. DUE PKOCESS OF LAW 271 private interests does not deprive it of its public ^yj^J^'' cliaracter. This is clearly shown in cases when the power is conferred on corporations such as railroads and the like, and their right to appropriate profits is to be regarded only as a compensation in return for the public duties they are selected to perform.^ That the eminent domain may be exercised for lic'a^dVa'S' local purposes is not disputed. It may, as has been dent. seen, be employed for municipal purposes, such as the provision of water or gas for cities. These fa- cilities are open to every citizen who brings himself within certain conditions, and this is all that is re- quired to give a public character to the use. Thus, it has been said that "it is not essential that the en- tire community or even any considerable portion thereof should directly enjoy or participate in an improvement in order to constitute a public use. ' ' ^ And, again, the public use ''may be for the inhabit- ants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or estates." ^ Nor need the public have a general use of the property; its use is ordinarily limited by the objects to be attained by the grant, and in other respects the authority over the prop- erty of the persons on whom the eminent domain is conferred may be exclusive.^ 8 Stockton, etc., R. Co. v. Stockton, 41 Cal. 147; Swan v. Wil- liams, 2 Mich. 427; Matter of Townsend, 39 N. Y. 171. 9 Matter of New York, 135 N. Y. 253, 260; Fallbrook Irrigation Dist. V. Bradley, 164 U. S. 112, 161. See also O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169; Talbot v. Husdon, 16 Gray (Mass.) 417; Bloomfield, etc.. Natural Gas Light Co, v. Richardson, 63 Barb. (N. Y.) 437. 1 Coster V. Tide Water Co., 18 N. J. Eq. 54, 68. 2 Matter of New York, 135 N. Y. 253. See also Williams V. Parker, 188 U. S. 491. 272 DUE PROCESS OF LAW Chapter VIII. Different meanings of "neces- sity." "Intrinsic" and "cir- cumstan- tial" ne- cessity. THE NECESSITY OF TAKING OR APPROPRIATION. Necessity may be used in respect to eminent do- main in at least two different senses. It may refer to the relation between the well being of society as a whole and the particular object for which the emi- nent domain is employed. In this sense, it is used by Chancellor Kent in the case of Gardner v. New- hurgh:^ "Grotius, Puifendorf and Bynkershoeck, when speaking of the eminent domain of the sover- eign, admit that private property may be taken for public uses, when public necessity or utility re- quire it." Necessity in this sense exists whenever the use is public, and resolves itself into the question of public benefit or utility. As we have seen, the question belongs to the legislature, although, as in the case of the exercise of any other limited power, the legis- lature may exceed the authority committed to it, and its determination, therefore, may, so to say, be ve- toed by the courts in the application of constitu- tional principles. But we may speak of necessity not as warranting the employment of eminent do- main in general, that is, the appropriation of any property, but as justifying the appropriation of the particular property of a certain individual and the extent to which it shall be taken. Before this prob- lem of '^circumstantial necessity" can arise, '* in- trinsic necessity," the public character of the use, must have already been decided in the affirmative.^ In some cases, the questions of intrinsic neces- 3 2 Johns. Ch. (N. Y.) 162. 4 These expressions are adopted from Randolph on Eminent Do- main, § 334. DUE PROCESS OF LAW 273 sity and circumstantial necessity may be sharply ^^'JP^'^ distinguished, while in other cases they shade into one another or are lost in the question of the public character of the use. For that public character de- pends largely upon the facts and circumstances sur- rounding the particular case and the subject-matter with regard to which the eminent domain is to be exercised ; ^ and this is true whether the criterion of eminent domain is regarded as public benefit or pub- lic control. If the theory that State control is es- sential be adopted, the want of the necessity for em- ploying eminent domain is all that prevents such a business as that of a hotel or theatre from using the power of eminent domain ; ^ while, if the presence of important public benefit is enough, the necessity of condemning property in order to effectuate the particular purpose or policy is to be regarded."^ Upon the theory of public benefits, also, the magni- tude of the interests involved in the i^articular com- munity is always considered as an important ele- ment,^ and this is nothing more than necessity under another aspect. Circumstantial necessity is usually said to be en- ft'an""' tirely a political and legislative question. ''The notTurdy general principle is now well settled," it has been observed by a court of high authority, "that when BFallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 159, 160; Talbot V. Hudson. 16 Gray (Mass.) 417, 423; Dayton Gold, etc., Min. Co. V. Seawell, 11 Nev. 394, 410. 6 See Dayton Gold, etc., Min. Co. r. Seawell, 11 Nev. 394, 410. 7 See Ryerson v. Brown, 35 Mich. 333, 339. 340. 8 Irrigation Dist. V. Williams, 76 Cal. 360, 369, 370 (irrigation in California); Hagar V. Yolo County, 47 Cal. 222 (drainage); Battle, etc., R. Co. v. Montana Union R. Co., 16 Mont. 504 (mining in Montana). See also supra, p. 266. 18 274 DUE PROCESS OF LAW Chapter the uses are in fact public, the necessity or expedi- '— ency of taking private property for such uses by the exercise of the power of eminent domain, the in- strumentalities to be used, and the extent to which such right shall be delegated are questions apper- taining to the political and legislative branches of the government."® It will be observed that this statement groups several questions as equally for the legislature. That of instrumentalities or machinery to be used in administering eminent domain is for the legislature exclusively, subject to special consti- tutional provisions and to the general requirement of notice and hearing. The extent to which the power is delegated is also a purely political ques- tion, subject to the limitations implied in the separa- tion of the departments of government under our constitutional system. But the existence of cir- cumstantial necessity in a given case brings up other questions which can not be disposed of so easily. The legislature may itself decide both the questions of intrinsic and circumstantial necessity, that is, it may determine that a certain public use justifies the employment of eminent domain and may designate the particular property to be taken ; or, instead of determining the necessity of taking specific property directly, it may delegate the power of making the determination. This delegation may include the whole duty of deciding the necessity and extent of the taking, or the legislature may prescribe the ex- tent of the property to be taken and the estate therein which is to be appropriated, and delegate 9 Matter of Niagara Falls, etc., R. Co., 108 N. Y. 375, 383. See also State v. Rapp, 39 Minn. 65. DUE PROCESS OF LAW 275 merely the power of deciding whether the public use Chapter requires the taking of particular property to the pre- scribed extent. When the legislature determines the entire question of circumstantial necessity, or when it takes upon itself to mark out the extent of prop- erty to be condemned, if the authorities to whom the power of decision is delegated conclude that there is need of condemnation, the true principle would seem to be not, as usually stated, that the decision is absolute and final,^ but that the courts will not in- terfere with the decision of the legislature unless its powers have been exercised arbitrarily and the tak- ing is clearly out of all proportion to, and is mani- festly unnecessary for, the end in view. In such a case, the taking can not in any just sense JetfrS^ be said to be for a public purpose, and, giving all re- drcCm- , . . , stantial ne- spect to the legislative determination, property ob- cessuy^may viously not necessary for the object involved is, so IP^^^"^' far as its owner is concerned, merely confiscated. Yet we find the absolute nature of the legislative de- cision broadly stated by the Supreme Court of the United States in recent cases. ' ' By granting, ' ' says the court, "a right of way four hundred feet in width. Congress must be understood to have conclu- 1 Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 403, 406; Shoemaker v. U. S., 147 U. S, 282; Backus V. Fort St. Union Depot Co., 169 U. S. 567; Moore v. Sanford, 151 Mass. 285; Lynch v. Forbes, 161 Mass. 302; Fairchild V. St. Paul, 46 Minn. 540; Matter of Niagara Falls, etc., E. Co., 108 N. Y. 375, 383 ; Bridal Veil Lum- bering Co. V. Johnson, 30 Oregon 205; Ryan v. Louisville, etc., Ter- minarCo., 102 Tenn. 111. In almost all these cases, the rule is merely stated in the course of argument, and is not applied, or the case is distinguished. It has been held otherwise when the Constitution authorizes tak- ing private property " when necessity requires it." The question of necessity is then judicial. Stearns v. Barre, 73 Vt. 281. 276 DLJl^ PllOCESS OF LAW Chapter sivelv determined that a strip of that width was VIII. -^ . . necessary for a public work of such importance. ' ' ^ Some adaptation of the extent of the property whose condemnation was authorized to the end to be ob- tained might be found in such a right of way for a great transcontinental railroad, and this would dis- pose of the question under any view. For, so long as any adjustment of the condemnation authorized to the public purpose proposed can be discerned, the legislative decision is, upon every principle of con- stitutional law, final here as elsewhere.^ When and to the extent that the question of circumstantial ne- cessity is delegated, the existence of the necessity is jurisdictional and like other questions of jurisdic- tion it is a judicial question which the courts must pass upon.'* Aspects of circumstantial necessity which have thus been held to be for the court under general laws delegating the power of eminent domain are: Whether to a grant of eminent domain it is necessary to condemn lands already condemned and make another grant ; ^ whether a subsidiary object is a 2 Northern Pac. R. Co. v. Smith, 171 U. S. 261, 275; Northern Pac. R. Co. V. Townsend, 190 U. S. 267, 272. 3 See Lewis, Em. Dom., §393; Atlantic, etc., R. Co. v. Penny, 119 Ga. 479. A statute authorizing the taking of an entire lot through which a street was laid out has been held unconstitutional as taking pri- vate property unnecessary for public use. Matter of Albany St., 11 Wend. (N. Y.) 149, 25 Am. Dec. 618. It would hardly be contended that a statute authorizing the con- demnation of a strip of territory a mile wide for the use of a rail- road, would foreclose all inquiry as to the necessity of such a taking. *0'Hare v. Chicago, etc., R. Co., 139 111. 151; Guyer v. Daven- port, etc., R. Co., 196 111. 370, 377; Erie R. Co. v. Steward. 170 N. Y. 172; Highland Boy Gold Min. Co. v. Strickley. (C. C. A.) 116 Fed. Rep. 852. See Lewis, Em. Dom., 393; and infra, p. 296, wliere the exceptional doctrine in some States is noted. 6 Spring Valley Water Works v. San Mateo Water Works, 64 Cal. DUE PROCESS OF LAW 277 necessity for effecting a given public purpose, as a ^^^pJ^'' given ''spur line" of railway to the objects of the incorporation of the road ; ^ or whether a particular statute justifies a certain act of expropriation, under the rule that a grant of eminent domain must be so construed as to be limited to the necessity of the caseJ The general rule ordinarily stated seems to be a survival from times when the power of eminent domain had not been subjected to the analysis which has resulted from the multitude of decisions at the present day, and when the courts were inclined to concede uncontrolled authority on many questions to the legislature. The extent of public necessity, whether absolute 2,nib[f ' or relative merely, is a subject of difference of opin- required'. ion. It has been said in cases where the necessity was under consideration as an element in the public character of the use,^ as well as in cases where the question was the right of one corporation to con- demn the property of another,'' that the object to be accomplished must be one which is absolutely essen- tial and is otherwise impracticable. But such a rule obviously shears the legislature of all discretion and is not a fitting criterion. Much more reasonable is the doctrine thus laid down in an Alabama case, where the condemnation of the property of one rail- road by another was involved: ''It would be diffi- cult to lay down any specific rule, as to the meas- 123; Milwaukee, etc., R. Co., r. Faribault, 23 Minn. 167; Butte, etc., R. Co. f. Montana Union, etc., R. Co., 16 Mont. 504. 6 See swpra, p. 269. TCreston Waterworks Co. V. McGrath, 89 Iowa 502; Fairchild V. St. Paul, 46 Minn. 540, 543. 8 Ryerson V. B^o^vn, 35 Mich. 333, 335. 9 Scranton Gas, etc., Co. v. Northern Coal, etc., Co., 192 Pa. St. 80. 278 DUE PROCESS OF LAW Chapter ure of the necessity, of sufficient scope to include all cases. It may be observed generally that necessary in this connection does not mean an absolute or in- dispensable necessity, but reasonably requisite and proper for the accomplishment of the end in view, under the particular circumstances of the case. ' ' ^ COMPENSATION. Necessity for Compensation. Compensa- In statiug the conditions for the exercise of emi- tion an . ^~ • , . . equitable neut domam, Grotius says that, if it can be done, and moral 7 ./ 7 "s^it. compensation should be made from the common treasury of the State, to him who has lost his prop- erty.2 Thus the moral duty of compensation, based on a ''clear principle of natural equity," ^ is recog- nized, and a legal sanction was given this principle by special provisions in the United States Constitu- tion and in the constitutions of almost all the States.'* These provisions for compensation form 1 Mobile, etc., R. Co. v. Alabama Midland R. Co., 87 Ala. 501. To the same effect, see Butte, etc., R. Co. v. Montana, etc.. Union R. Co., 16 Mont. 504. That the property be reasonably necessary to the public use is all that should be required by the courts when the legislature has submitted to thorn the question of necessity. Tracy V. Elizabeth- town, etc., R. Co., 80 Ky. 259. 266. 2 " Requiritur . . . deinde, ut, si fieri potest, eompensatio fiat ei qui suum amisit, ex communi." De Jure Belli ct Pads, lib. ii, c. 14, sec. 7. Various passages from the writings of Grotius (A. D. 1625), Pufendorf (A. D, 1672)^ Heineccius (A. D. 1730), Bynkers- hoek (A. D. 1737), and Vattel (A. D. 1758) on the subject of emi- nent domain are collected in Thayer's Cas. on Const. Law, pp. 940, 951, 982, note. 3Monongahela Nav. Co. V. U. S.. 148 U. S. 312; Gardner v. New- burgh, 2 Johns. Ch. (N. Y.) 162. 4 Const. U. S., Amend. V; 9 Fed. Stat. Annot. 305; and see the several State constitutions, and 10 Am. and Eng. Encyc. of Law (2d ed.) 1050, 1152. DUE PROCESS OF LAW 279 no part of the power of eminent domain itself, which ^yjff^^ exists in the State independent of constitutional rec- ognition. They are a mere limitation upon the use of the power, constituting a condition upon which it may be exercised.^ The right to compensation was felt, therefore, ?eldy rec- to require for its practical enforcement direct wnstL-" ^ . . tions. constitutional recognition. The older constitutions provided for compensation when property was * ^ taken "^ for public use, while more recent instru- ments specify ' ' taken or damaged. " ^ In very many jurisdictions, as we shall see, judicial construc- tion of the term *' taken" has brought about some- what similar results in the absence of any addition to the constitutional clause.^ But the requirement of compensation may exist g'jj^^y'' in the absence of a constitutional clause dealing Js^^Pnaw. specifically with eminent domain. The obligation to compensate the owner whose property is taken by authority of the State for public needs arises from the guaranties of the right to property con- tained in our bills of rights, and specifically from the provision that private property shall not be taken without due process of law. This was inti- mated at an early period in State courts. In North Carolina, where the constitution contains no spe- cific provision for compensation, Chief Justice Kuf- fin, in 1837, speaking for the Supreme Court, said in 5U. S. V. Jones, 109 U. S. 513. But see Sinnickson v. Johnson, 17 N. J. L. 129, quoted in Monongahela Nav. Co. v. U. S., 148 U. S. 312. 6 U. S. Const., Amendment V; 9 Fed. Stat. Annot. 305. 7 Beginning with Illinois in 1870. See Chicago v. Taylor, 125 U. S. 161. 8 See infra, p. 295. 280 DUE PROCESS OF LAW Chapter reference to the guaranty of "the law of the land:'* '— ' ' Under the guaranty of this article, it has been held, and in our opinion properly held, that private prop- erty is protected from the arbitrary power of trans- ferring it from one person to another. We doubt not that it is also protected from the power of despotic resumption, upon a legislative declaration of forfeit- ure, or merely to deprive the owner of it, or to en- rich 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. But it is a point on which the court is not disposed, nor at liberty, to give a positive opin- ion on this occasion. ' ' ^ The principle has been ex- plicitly adopted by the Supreme Court of the United States in construing the Fourteenth Amendment to the Federal Constitution. In Chicago, etc., R. Co. v. Chicago,^ the court said: "Due protection of the rights of property has been regarded as a vital principle of republican institutions. 'Next in de- gree to the right of personal liberty,' Mr. Broom, in his work on Constitutional Law, says, 4s that of en- joying private property without undue interference or molestation.' 2 The requirement that the prop- erty shall not be taken for public use without just compensation is but 'an affirmance of a great doc- trine established by the common law for the protec- tion of private property. It is founded in natural oRaleifjh, etc., R. Co. v. Davis. 2 Dev. & B. L, (19 N. Car.) 451. And see Johnston V. Rankin, 70 N. Car. 550. 1 166 U. S. 226. 2 Broom's Const. Law, 228. DUE PROCESS OF LAW 281 equity, and is laid down by jurists as a principle of ^yjjj^'' universal law. Indeed, in a free government, almost all other rights would become worthless if the gov- ernment possessed an uncontrollable power over the private fortune of every citizen.'^ ''But if, as this court has adjudged, a legislative enactment assuming arbitrarily to take the property of one individual and give it to another individual, would not be due process of law, as enjoined by the Fourteenth Amendment, it must be that the require- ment of due process of law in that amendment is ap- plicable to the direct appropriation by the State to public use and without compensation of the private property of the citizen. The legislature may pre- scribe a form of procedure to be observed in the tak- ing of private property for public use, but it is not due process of law if provision be not made for com- pensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensa- tion would be a mockery of justice. Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, can not 3 Citing 2 Story, Const., see. 1790; 1 Bl. Com. 138, 139; Cooley, Const. Limit. 559; People v. Piatt, 17 Johns. (N. Y.) 195, 215; Bradshaw V. Rogers, 20 Johns. (K Y.) 103, 106; Petition of Mt. Washington Road Co., 35 N. H. 134, 142; Parham v. Justices, 9 Ga. 341, 348; Ex p. Martin, 13 Ark. 199, 206 et seq.; Johnston v. Rankin, 70 N. Car. 550, 555. 282 DUE PROCESS OF LAW Chapter VIII. Substantial denial of compensa- tion by States re- viewable. Congress may legis- late against laches. convert the process used into due process of law if the necessary result be to deprive him of his prop- erty without compensation. ' ' ^ The Federal Supreme Court may always exam- ine proceedings had in a State court under State authority for the appropriation of private property to public purposes, so far as to inquire whether that court prescribed any rule of law in absolute disre- gard of the owner's right to just compensation. The restriction "in absolute disregard of the right to just compensation" is necessary, said the court, ''because we do not wish to be understood as holding that every order or ruling of the State court in a case like this may be reviewed here, notwithstanding our jurisdiction, for some purposes, is beyond question. Many matters may occur in the progress of such cases that do not necessarily involve, in any substan- tial sense, the federal right alleged to have been de- nied; and in respect of such matters, that which is done or omitted to be done by the State court may constitute only error in the administration of the law under which the proceedings were instituted."^ When an act of Congress has admitted a liability on the part of the government to pay for property taken for public use, and pointed out a method for 4 See also Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Tindal v. Wesley, 167 U. S. 204; Norwood V. Baker. 172 U. S. 269; San Diego Land Co. V. National City, 174 U. S. 739; Madison- ville Traction Co. v. St. Bernard Min. Co., 196 U. S. 2-'52. In Yesler v. Washington Harbor Line Com'rs, 146 U. S. 646, the court declared that the provision for compensation in the Fifth Amendment was " to be read with the Fourteenth Amendment, pro- hibiting the States from depriving any person of property without due process of law." 5 Chicago, etc., R. Co. v. Chicago, 166 U. S. 226; Backus i: Fort Street Union Depot Co., 169 U. S. 567. DUE PROCESS OF LAW 283 determining the compensation due, a repeal of the Chapter statute after tliirteen years, witli a saving as to pro- ceedings already begun, is a legitimate exercise of authority. ** Congress was not obliged to keep the Act of 1875 in operation forever ; and reasonable op- portunity having been afforded to the ijlaintiffs in error to obtain compensation for the damages sus- tained by the construction of the improvement, we think they must be deemed to have waived their rights to them. ' ' ^ Property for Which Compensation Must Be Provided. The power of eminent domain embraces all f°^^oex^' "property." Property is nomen generalissimum with''^ and extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal heredita- ments.'^ The right to compensation is coextensive with the right of property, wherever a right of property exists, in the language of the Fourteenth Amendment, in any ''person." When a property right exists in or has been once hJid^^^the legally acquired by the State, or its agents, the use of fglnd/s.''^ sKaukauna Water Power Co. v. Green Bay, etc., Canal Co., 142 U. S. 254. The real point decided seems only to be that, if the repeal of the Act of Congress left the property owner the right to assejt his rights by a common-law action, he certainly after the long lapse of time and acquiescence had no right to resort to self help. 7 Boston, etc., R. Co. v. Salem, etc., R. Co., 2 Gray (Mass.) 1. That money may be seized under the power of eminent domain has been denied, Burnett v. Sacramento, 12 Cal. 76; and affirmed Ham- mett V. Philadelphia, 65 Pa. St. 152, sometimes with the limitation that it can only be done by the State itself in time of war. Cary Library r. Bliss, 151 Mass. 364; People r. Brooklyn, 4 N. Y. 419. 284 DUE PROCESS OF LAW Chapter guch ris'ht bv the State does not demand any compen- VIII — sation to the former owner. Thus, when the State ac- quires or in virtue of its sovereignty possesses an easement or servitude in property, the use of the property for any purpose within the scope of the easement acquired gives no right to compensation to the general owner,^ but an additional or totally dif- ferent servitude can not be placed upon the property without compensation.^ Corporeal property which the State, by the delegation of the eminent domain, has allowed private persons or corporations to ac- quire for some public purpose is so far private prop- erty in the hand of such persons or corporations that it can not be used for other public purposes unless it is again condemned and compensation paid for it/ State prop- Like principles regulate the property of the erty and p • Eminent Statcs wlth rclatiou to the paramount power ot emi- Seand Hcut domalu iu the federal government, and the pah"ty?' property of municipalities with regard to the State. The federal government, acting in pursuance of pow- ers expressly or impliedly vested in it by the Con- stitution, may acquire property of the States by con- demnation subject to the right of compensation.^ But property held by the States in trust for purposes the control of which is specifically vested in the general government may be used by the United 8 People V. Kerr, 27 N. Y. 188. » Story V. New York El. R. Co., 90 N. Y. 122. What amounts to an additional servitude, and what rights the State or the public has acquired in given property, depend on con- struction, and the decisions vary widely. 1 Western Union Tel. Co. V. Pennsylvania R. Co., 195 U. S. 540, applying the doctrine stated to a railroad right of way and distin- guishing it from a mere easement. 2 See St. Louis i'. Western Union Tel. Co., 148 U. S. 92. DUE PROCESS OF LAW 285 States for those purposes without making compensa- ^yjf{^'" tion. If the State holds lands under navigable water, it is in trust for the public uses of navigation and commerce, and such lands may be appropriated by the United States for a bridge to be used as a post road without making any compensation to the State,^ and this although such lands have passed into the hands of a private person by grant from the State.^ The property of municipal corporations, if held in trust for the public, may be taken by the leg- islature without additional compensation, but the property of such corporations held for their own cor- porate purposes can not be taken without compensa- tion.^ The determination of what water is navigable, rij^s'lnd the title to lands thereunder, and the extent of ownership. the riparian owner's rights in the water and to the banks are matters of local sovereignty, the regu- lation of which belongs exclusively to the States; and whether in a given case the curtailment of the enjoyment of the stream by the riparian owner amounts to a taking of property requiring compensa- tion, depends on how far the law of the State recog- nizes the enjoyment as private property.^ "Where 3 Stockton V. Baltimore, etc., R. Co., 32 Fed. Rep. 9. See also Luxton V. Xorth River Bridge Co., 153 U. S. 525. The whole ques- tion of the title to such lands is exhaustively considered by the United States Supreme Court, speaking per Gray, J., in Shively v. Bowlby, 152 U. S. 1. 4 Hawkins Point Light-House Case, 39 Fed. Rep. 77. 5 Clinton r. Cedar Rapids, etc.. R. Co., 24 Iowa 455 ; Mount Hope Cemetery v. Boston, 158 Mass. 509. s Barney v. Keokuk, 94 U. S. 324; St. Louis V. Myers, 113 U. S. 566; Packer r. Bird, 137 U. S. 661; St. Louis v. Rutz. 138 U.S. 226; Hardin v. Jordan. 140 U. S. 371; Kaukauna Water-Power Co. v. Green Bay, etc.. Canal Co., 142 U. S. 254. 286 DUE PROCESS OF LAW Chapter the State does recognize riparian rights on such '■— streams as private property provision for compensa- tion must be made when riparian rights are taken for a public purpose." On the other hand, if lands under navigable water and the right to the accustomed flow of the stream are regarded as the property of the State or subject to its control, a loss suffered by a lower riparian owner in consequence of the use of the water at a point higher on the stream for muni- cipal water supply under legislative authority, is not a deprivation of property without due process of law, though the lower riparian owner receives no compensation.^ In Louisiana lands abutting on rivers and bayous are, in accordance with a doctrine existing in the territory of Louisiana before its ac- quisition by the United States, subject to a servitude in favor of the public, whereby such portions thereof as are necessary for the purpose of making and re- pairing public levees may be taken, in pursuance of law, without compensation. Lands therefore taken by the State for these purposes without compensa- tion are taken in accordance with due process of law.9 Just com- The right to ''just compensation" being given by pensation a judicial the Constitution, the question of what amounts to an question. ' ^ adequate return for property taken is a judicial one, and the legislature has no right to lay down an arbi- trary rule that the tribunals appointed to assess values shall not take into account certain definite 7 Kaukauna Water-Power Co. v. Green Bay, etc., Canal Co., 142 U. S. 254. 8 St. Anthony Falls Water Power Co. v. St. Paul Water Com'rs, 168 U. S. 366. sEldridge v. Trezevant, 160 U. S. 452. DUE PROCESS OF LAW 287 elements in the value of the property taken. Thus, ^^,']fj^^ when the national government, by virtue of its au- thority over commerce, undertook to improve a navi- gable stream and to that end condemned a lock erected therein under a franchise from the State government by a State corporation, Congress had no right to provide that '4n estimating the sum to be paid by the United States, the franchise of said cor- poration to collect tolls should not be considered or estimated." The franchise to collect tolls was a vested right of property and a necessary element in estimating the value of the property taken. The court said: "But, like the other powers granted to Congress by the Constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument ; and among them is that of the Fifth Amendment, we have heretofore quoted. Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by the Fifth Amendment, and can take only on payment of just compensation. ... If a man's house must be taken, that must be paid for ; and if the property is held and improved under a franchise from the State, with power to take tolls, that franchise must be paid for, because it is a substantial element in the value of the property taken. So, coming to the case before us, while the power of Congress to take this property is unquestionable, yet the power to take is subject to the constitutional limitation of just compensation. ' ' ^ But it appears that by an express iMonongahela Nav. Co. v. U. S., 148 U. S. 312. 288 DUE PROCESS OF LAW Chapter VIII. Effect of act limit- ing expen- diture. reservation in the charter creating the franchise, the franchise may be subsequently destroyed by the gov- ernment without creating any liability to make com- pensation therefor.2 It can not be claimed that the legislature values land arbitrarily because it limits the aggregate amount to be expended for a certain public pur- pose. In a case where such a claim was made, the court said: ''The validity of the law is further challenged because the aggregate amount to be expended in the purchase of land for the park is limited to the amount of $1,200,000. It is said that this is equivalent to condemning the lands and fixing their value by arbitrary enactment. But a glance at the act shows that the property holders are not af- fected by the limitation. The value of the lands is to be agreed upon, or, in the absence of agreement, is to be found by appraisers to be appointed by the court. The intention expressed by Congress not to go beyond a certain aggregate expenditure can not be deemed a direction to the appraisers to keep with- in any given limit in valuing any particular piece of property. It is not unusual for Congress, in making appropriations for the erection of public buildings, including the purchase of sites, to name a sum be- yond which expenditure shall not be made, but no- body ever thought that such a limitation had any- thing to do with what the owners of property should have a right to receive in case proceedings to con- demn had to be resorted to. " ^ 2 Bridge Co. v. U. S., 105 U. S. 470, as explained in Monongahela Nav. Co. V. U. S., 148 U. S. 312. 3 Shoemaker r. U. S., 147 U. S. 282. Perhaps a different question might arise if the appropriation had DUE PROCESS OF LAW 289 Chapter VIII. Amount of Compensation and Provision for Payment. The just compensation required by the Constitu- 5?tTJd to^'^' tion to be made to the owner is to be measured by the proper°ty loss caused to him by the appropriation. He is en- titled to receive the value of which he has been de- prived, and no more. To award him less would be unjust to him ; to award him more would be unjust to the public* The various rules adopted in State courts for determining the value of the property taken and the consequent right to compensation are mainly matter of local law.^ The general rule for estimating values is thus stated by the United States Supreme Court: "Up- on the question litigated in the court below, the com- pensation which the owner of the land condemned was entitled to receive, and the principle upon which ing value ' J. i i jj£ property the compensation should be estimated, there is less taken. difficulty. In determining the value of land appro- priated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses! Property is not to be deemed worthless because the been already exhausted. U. S. V. Gettysburg Electric R. Co., 160 U. S. 668. 4 Baimian V. Ross, 167 U. S. 548. 5 See Meyer v. Richmond, 172 U. S. 82. 19 290 DUE PROCESS OF LAW Chapter VIII. Taking part of tract or one of two tracts. owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it and make it subserve the necessities or conveniences of life. Its capabil- ity of being made thus available gives it a market value which can be readily estimated. So many and varied are the circumstances to be taken into account in determining the value of property con- demned for public purposes, that it is perhaps im- possible to formulate a rule to govern its appraise- ment in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having re- gard to the existing business or wants of the com- munity, or such as may be reasonably expected in the immediate future.'*® In determining a case which arose in the Dis- trict of Columbia, and whose constitutional aspects were, therefore, governed by the Fifth Amendment, it was held that when only a part of a tract of land is taken for a public purpose, the value of that part is not the sole measure of the compensation or dam- ages to be paid the owner ; but the incidental injury or benefit to the part not taken is also to be consid- ered."^ But there can be no recovery for consequen- 6 Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 403. See also New York El. R. Co. v. Fifth Nat. Bank, 135 U. S. 432; Mononga- hela Nav. Co. v. U. S., 148 U. S. 312; Backus v. Fort St. Union Depot Co., 169 U. S. 567. 7Bauman v. Ross, 167 U. S. 548. See also as to diminishing damages by assessments for benefits, Shoemaker v. U. S., 147 U. S. 302. DUE PROCESS OF LAW 291 tial damages to one of two distinct and independent chapter tracts, by reason of the condemnation of the other, — although the two belong to a single owner.^ When adequate compensation is provided, it is no So^For*' denial of due process of law in the case of property uZV rights taken by a city for public purposes that the ^^""^^ ^' compensation must be established against the city which meanwhile is in the enjo}^nent of the rights without having instituted any condemnation pro- ceedings and so is not bound by a technical estoppel by judgment. This point was ruled in a case where the height of buildings, either built or to be built, about a public square was limited by a statute, which provided that any person sustaining damage might recover such damage "in the manner pre- scribed by law for obtaining pajnnent for damages sustained by any person whose land is taken in the laying out of a highway. ' ' ^ In the absence of specific provision there is noth- Previous •^ ■"• payment^ ing that requires compensation to be made in ad- [-on^prect vance of the taking or appropriation,* and conse- quently a previous payment or tender is not essential to due process of law, provided adequate provision for compensation is made.^ WHAT AMOUNTS TO A TAKING OF PEOPERTY. According to the broad and equitable doctrine of JJ^p''^^^' modem cases, it is not necessary to constitute a "^ajfing... 8 Sharp V. U. S., 191 U. S. 341. Williams V. Parker, 188 U. S. 491. 1 Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641; Sweet V. Rechel, 159 U. S. 402; Adirondack R. Co. v. New York, 176 U. S. 335. 2 Backus V. Fort St. Union Depot Co., 169 U. S. 567; Williams V. Parker, 188 U. S. 491. 292 DUE PROCESS OF LAW Chapter VIII. Physical invasion necessary. Purely consequen- tial dam- ages do not constitute taking. "taking" of property for public purposes that the actual occupancy or possession of the property should be assumed and its title acquired. A phys- ical interference with property which substantially abridges the owner's right to use and enjoy it and to exclude others from its use takes his property to just the extent that he is deprived of its enjoyment.^ A serious interruption to the common and necessary use of property has been said to be equivalent to taking it within the constitutional provision, and it is not necessary that the land be absolutely taken."* This principle has been confined, however, to cases when the interference is accompanied with a physical invasion of property and practical ouster of possession, as happens when lands are flooded by the construction of public works. "Wliere the gov- ernment, by the construction of a dam, or other pub- lic works, so floods lands belonging to an individual as to substantially destroy their value, there is," said the United States Supreme Court in a recent case, "a taking within the scope of the Fifth Amend- ment. While the government does not directly pro- ceed to appropriate the title, yet it takes away the use and value ; when that is done it is of little conse- quence in whom the fee may be vested. ' ' '^ When there is no physical invasion, no ouster of possession, and the property owner suffers loss merely because of the construction or operation of public works on abutting or neighboring property, it is held in a large number of cases that there is no 3 Eaton V. Boston, etc., R. Co., 51 N. H. 504. ♦ Pumpdly V. Green Bay, etc.. Canal Co., 13 Wall. (U. S.) 166, citing Angell on Watercourses, § 465a. 6 U. S. V. Lynch, 188 U. S. 445, 470. DUE PROCESS OF LAW 293 taking of the property, the loss or damage is conse- ^^jfj^^ quential merely, and the maxim damnum absque in- juria has place. This doctrine is applied to im- provements in highways by the government or local authorities. ''Persons appointed or authorized by law to make or improve a highway are not answer- able for consequential damages, if they act within their jurisdiction and with care and skill." « It has been so held when the owner was temporarily ex- cluded from his water front by the construction of a tunnel,"^ or temporarily interrupted in the enjoyment of a mine by an order for its inspection ; ^ where the access to land abutting on a navigable river was de- stroyed by the construction, under authority of an Act of Congress, of a pier on the submerged lands in front of the property ; ^ where, by the construction of a dike by the United States in the improve- ment of a navigable stream, the riparian owner was deprived through the greater part of the sea- son of access to his landing and his lands in conse- quence much diminished in value ; ^ where damage to land was produced by flooding as a result of revetments constructed by the United States along a river bank to prevent erosion; ^ where expense was caused to a landowner by having to 6 Northern Transp. Co. v. Chicago, 99 U. S. 635. 7 Northern Transp. Co. v. Chicago, 99 U. S. 635. 8 Montana Co. v. St. Louis Min., etc., Co., 152 U. S. 160. »Scranton v. Wheeler, 179 U. S. 141. See also Manigault v. Springs, 199 U. S. 473, in which the same ruling was made when the erection of a dam under the authority of a State across a navi- gable stream was claimed as an injury to an owner's rights of navi- gation and of access to lands above the dam. 1 Gibson v. U. S., 166 U. S. 269. 2 Bedford v. U. S., 192 U. S, 217. 294 DUE PROCESS OF LAW Chapter raise embankments around his land in consequence ■ — of the building of a dam across a neighboring whicT'''"^ stream.3 leaves taking. property Thcre is no taking of property when the proceed- rights as irN ti*i^ tew°° ings, instituted by the State and claimed to consti- tute a taking, leave the rights of the property owner the same as they were before. So, when the owner of a wharf extending into navigable water sought to prohibit the State harbor commissioners from estab- lishing harbor lines, which should embrace lands re- served by the State, so as to include his wharf, it was held that the proceeding would not deprive him of property without due process of law and that prohibition would not lie. ''The design," said the court, ''of the State law is to prohibit the encroach- ment by private individuals and corporations on navigable waters, and to secure a uniform water front; and it does not appear from relator's appli- cation that the defendants have threatened in any manner to disturb him in his possession, nor that that which is proposed to be done tends to produce that effect. "Whatever his rights, they remained the same after as before, and the proceedings, as the Supreme Court said, could not operate to constitute a cloud upon them from the standpoint of relator himself, for, if nothing further could lawfully be done in the absence of legislation for his protection, that was apparent. The consequences which he deprecated were too remote to form the basis of de- cision. Whatever private rights or property he has . . . we do not see that he would be deprived sManigault v. Springs, 199 U. S. 473; Mills v. U. S., 46 Fed. Rep. 738. DUE PROCESS OF LAW 295 of any of them by the action he has sought to pro- ^^.^fj^'" hibit."* Injuries which under a constitutional provision provision against taking without compensation would be age "to'"' . property. merely consequential, have been held to require com- pensation when the constitution read ''taken or damaged ; " ^ and this right to damages for ' ' injury ' ' may be acquired under an act of the legislature, though the constitution reads "taken" merely.® So, it has been held that change in the constitutional provision from a requirement of compensation for property ''taken" to a like requirement for property ' ' taken or damaged, ' ' although it creates a prospec- tive liability for consequential damages which did not before exist, is not unconstitutional as against previous grantees of the State so far as further con- demnation by them is concerned^ Due process of law is not denied by the holding ^l^[^l°^ of the highest court of a State that its constitution tfafd^m^'" makes no provision for the recovery of consequential dlprh^ation damage to property.^ In so holding in a case which process. came before the Federal Supreme Court on error to the Supreme Court of Pennsylvania, it was said: "We are not authorized to inquire into the grounds and reasons upon which the Supreme Court of Penn- 4 Yesler v. Washington Harbor Line Com'rs, 146 U. S. 646. 5 Chicago V. Taylor, 125 U. S. 161. The facts in this case were similar to those in Northern Transp. Co. v. Chicago, 99 U. S. 635, but the earlier case was decided under the Illinois constitution of 1848, which specified only " taken," while the later case was gov- erned by the constitution of 1870. To the same eflSect is Hot Springs R. Co. V. Williamson, 136 U. S. 129. 6 U.S. V. Alexander, 148 U. S. 187; U.S. v. Truesdell, 148 U. S. 196; O'Connor v. Pittsburgh, 18 Pa. St. 187. 7 Pennsylvania R. Co. V. Miller, 132 U. S. 75. 8 Meyer v. Richmond, 172 U. S. 82. 296 CUE PEOCESS OF LAW Chapter gylvaiiia proceeded in its construction of the statutes '— and constitution of that State, and, if this record presented no other question except errors alleged to have been committed by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the State court, and we should have to dismiss this writ of error for that reason. But we are urged to sustain and exercise our jurisdiction in this case, because it is said that the plaintiff's property was taken without 'due process of law,' and because the plaintiff was denied 'the equal protection of the laws,' and these propositions are said to present fed- eral questions arising under the Fourteenth Amend- ment of the Constitution of the United States, to which our jurisdiction extends. It is sufficient for us in the present case to say that, even if the plaintiff could be regarded as having been deprived of her property, the proceedings that so resulted were in 'due process of law.' The plaintiff below had the benefit of a full and fair trial in the several courts of her own State, whose jurisdiction was invoked by herself. In those courts, her rights were measured, not by laws made to affect her individually, but by general provisions of law applicable to all those in like condition. ' ' ® NOTICE AND HEARING. Necessity; The duty of dccidiug on the public character of fiower of ' n 1 • • i. 1 ^fj^iature; ^hc usc, the expcdicucy of employing emment do- deiegation. ^^^^^ ^^^ ^l^g Gxteut to which it shall be employed is, 9 Merchant v. Pennsylvania R. Co., 153 U. S. 380. DUE PROCESS OF LAW 297 as has been seen, for the legislature, unless the con- ^y\l\^^ stitution provides otherwise, with a supervisory right in the courts to see that the legislature does not exceed its constitutional functions. With regard to these questions, action by the legislature, unless wholly arbitrary and unreasonable, is, in itself, due process of law, and, where the legislature chooses to act, the owner of property condemned can not com- plain of the want of a hearing on these matters.^ But the legislature may choose to delegate the de- cision of some of these questions to tribunals, and when the matter is so delegated it becomes judicial and due process of law is not satisfied but by notice and a hearing.^ The doctrine in Massachusetts is exceptional. ^fts'S"" The courts of that State hold that the question is al- ways a legislative one, and the fi_nal decision rests, even when the power has been delegated, "with the body or individuals to whom the State has dele- gated the authority to take. " ^ It is not a question upon which the property owner can demand a hear- ing except to the extent that the legislature has granted him the right to be heard.^ Usually, however, it is held that an agency |'j'°^>/j°n^^. vested with the power of eminent domain must, upon a proper issue, establish the fact of the ne- cessity of the particular taking to the satisfaction 1 People V. Smith, 21 N. Y. 595; People v. Adirondack R. Co., 160 K Y. 225. 2 See svpra, p. 273. Compare supra, pp. 236, 248. 3 Lynch v. Forbes, 161 Mass. 302. *Holt r. Somerville, 127 Mass. 408; Lynch v. Forbes, 161 Mass. 302, 42 Am. St. Rep. 402; Old Colony R. Co., Petitioner, 163 Mass. 356; Burnett r. Boston, 173 Mass. 173. ing hearing on neces- sity. 298 DUE PROCESS OF LAW Chapter Qf either the court ° or the jury *^ or a statutory tribunal/ as required by the local laws. But agen- cies to which the power of eminent domain is dele- gated are vested with a large discretion to de- termine the amount of property necessary for the public use, a discretion always subordinate, how- ever, to the right of the courts to prevent an abuse of the power.^ Consequently in some States such an agency need only show that it is lawfully in possession of the power of eminent domain and that the particular property whose condemnation is sought is necessary for the construction of the ap- propriate works, which have been located thereon in the i^roper manner.'^ In other States the question of necessity can not be raised in the condemnation proceedings, but the property owner is still not with- out remedy against an abuse of discretion on the part of those to whom the power of eminent domain is delegated; he may have the necessity determined 5 0'Hare v. Chicago, etc., R. Co., 139 111. 151, 158, 161; Tracy v. Elizabethtown, etc., R. Co., 80 Ky. 259; Matter of St. Paul, etc., R. Co. 34 Minn. 227 ; Matter of New York Cent. R. Co., 66 N. Y. 407 ; Erie R. Co. r. Steward, 170 N. Y. 172, 178; Wisconsin Cent. R. Co. V. Cornell University, 52 Wis. 537; Wisconsin Cent. R. Co. v. Kneale, 79 Wis. 89; South Carolina R. Co. v. Blake, 9 Rich. (S. Car.) 228; Baltimore, etc., R. Co. v. Pittsburg, etc., R. Co., 17 W. Va. 812. 6 Matter of Powers, 29 Mich. 504 (the Michigan constitution re- quiring the submission of the necessity to a jury). 7 Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326. 8 Atlantic, etc., R. Co. v. Penny, 119 Ga. 479; Schuster r. Sanitary Dist., 177 111. 620. 9 San Francisco, etc., R. Co. v. Leviston, 134 Cal. 412, 415; Pasa- dena V. Stimson, 91 Cal. 238; O'Hare V. Chicago, etc., R. Co., 139 111. 151. In Michigan under flie constitutional provision the showing of necessity is not satisfied by such proof. Matter of Powers, 29 Mich. 504. DUE PROCESS OF LAW 299 on application to a court of equity for an injunc- ^^.^jfj^'' tion.^ The question of compensation is in its nature a to^cJmp^en! judicial question, which involves directly the prop- erty rights of private individuals, and can be de- cided only after notice and a hearing before some impartial tribunal.^ The nature of the tribunal is for the legislature to determine. *'A11 that is essen- tial is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and, when this has been provided, there is that due process of law which is required by the Federal Constitution."^ This duty may be devolved upon the same body who determine the necessity of the taking or upon a sepa- rate body.^ Again, the duty of determining the amount of damage to the property owner may or may not be united with that of determining special benefits received by the property under laws which require such benefits to be deducted from the damage.^ 1 Atlantic, etc., R. Co. v. Penny, 119 Ga. 479. 2 People V. Adirondack R. Co., 160 N. Y. 225, affirmed 176 U. 6. 335. 3 Backus V. Fort St. Union Depot Co., 169 U. S. 567. And see Pearson v. Yewdall, 95 U. S. 296; Adirondack R. Co. v. New York, 176 U. S. 335. When inquiry has been legally made by the properly constituted tribunal (which in this case consisted of commissioners) there is no need of provision for appeal; their determination may be final. Long Island Water Supply Co. V. Brooklyn, 166 U. S. 694. 4 Backus r. Fort St. Union Depot Co., 169 U. S. 567. 6 Bauman v. Ross, 167 U. S. 548. CHAPTER IX. THE POLICE POWER. CHAKACTERISTICS AND LIMITATIONS. Chapter " I ^JJE policG power lias been defined by Chief Jus- IX. T Alger, ^ as "the power vested in the legislature_ by the Constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, stat- utes, and ordinances, either with penalties or with- out, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the common- wealth and of the subjects of the same." In Barhier V. Connolly^ the object of the police power is stated to be "to prescribe regulations to promotethe health, peace, morals, education, and good order of the people, and to legislate so as to increase the in- dustries of the State, develop its resources, and add to its wealth and prosperity." The sphere of the police power is thus stated in Lawton v. Steele:^ I "It is universally conceded to include everything es- sential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a pub- lic nuisance. Under this power it has been held that the State may order the destruction of a house fall- 17 Cush. (Mass.) 53. And see Manigault v. Springs, 199 U. S. 473. 2 113 U. S. 31. 3 152 U. S. 133. 300 DUE PROCESS OF LAW ing to decay or otherwise endangering the lives of Chgiter passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain lo- calities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases ; the restraint of vagrants, beg- gars, and habitual drunkards ; the suppression of ob- scene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, how- ever, the State may interfere wherever the publio interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the publio require, but what measures are necessary for the protection of such interests." In this wide sense the police power is understood i^^'e'^ower^s to embrace not only the preservation of the order, e?aiflgis- lative pow- peace, health, morals, and safety of the community, 1;^^^;^^^"- but also all legislation looking to the well being of society in its economic and intellectual aspects.'^ It is sometimes restricted to the first branch of activi- ties merely, namely, the maintenance of morals, health and safety. As so limited it occupies a defi- nite field comparable with the powers of eminent do- main and taxation, and is so essential to the very being of the State, that it can not be curtailed by 4 See Manigault v. Springs, 199 U. S. 473. 302 DUE PROCESS OF LAW Chapter contract on the part of tlie State.^ In its wider '■ — meaning it loses definiteness. It embraces a vast mass of miscellaneous legislation. It may or may not be subject to the contract clause of the Federal Constitution. It is nothing more nor less than a name for the residual powers of sovereignty after shearing off the powers of taxation and the eminent domain. In the License Cases,^ Chief Justice Taney asked the question, "What are the police powers of a state?" and answered it as follows: ''They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a state passes a quaran- tine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion." Some authors have pointed out the desirability of separating the police power in its nar- rower sense from the general residual legislative power which goes under that name, but the courts use the term in its widest meaning, and in many in- stances it might be difficult and embarrassing to say on which side of the line dividing the pure police powers from general legislative powers a given case should fall. Many instances of the application of the legislative power as applied to procedure, evi- dence, remedies and the like have already been con- sidered in other connections.'^ 5 See infra, p. 304. «5 How. (U. S.) 504, fiSS. 7 See especially Chapter IV, p. 138, and section on Proced/ure, p. 159. DUE PROCESS OF LAW 303 The legislature may, if it see fit, delegate the pow- Chapter er to pass local laws or ordinances to municipal cor- poratious, which are but subdivisions of the State.^ to^munid" palities. Consequently, under the general police power, the legislature may delegate to a municipality the au- thority to pass ordinances for the preservation of the health or the promotion of the comfort, conveni- ence, good order and general welfare of its citizens, provided always that they are not in conflict with constitutional provisions.^ The legislature may likewise charge public offi- ^f^fj^'^" eials with the duty of carrying into effect a scheme cfar'^id of police regulation devised by it, and the duties of dli dudes. such officials may be made merely administrative,^ or judicial or quasi-judicial without violating the constitutional provision for due process, if, on ques- tions of fact involving private rights, notice and hearing is provided. ^ A characteristic of the action of the police and Does not ■^ require the legislative power is that it does not require the o/prop?" taking of private property for public use, in a con- "^^' stitutional sense, and does not, therefore, demand as a condition of its rightful exercise that compensation be made. This matter is considered in detail else- where.^ Police legislation on tlie part of the State may be invalid because it trenches on the sphere of the na- 8 Fischer v. St. Louis, 194 U. S. 361, 370. See supra, p. 212. 9 California Reduction Co. V. Sanitary Reduction Works, 199 , U. S. 306; State v. Summerfield, 107 N. Car. 895; State v. Tenant, 110 N. Car. 609. 1 Reagan v. Farmers' L. & T. Co., 1.54 U. S. 362. 2 Reetz V. Michigan, 188 U. S. 505. See also infra, p. 370. 3 See supra, p. 203. 304 DUE PROCESS OF LAW Chapter IX. Regulation of com- merce as affecting States' po- lice powers Not extra- territorial. Obligation of con- tracts and the_ States' police power. tional government under the Federal Constitution.^ Laws which, enacted under the plea of the police power, are in fact a regulation of interstate com- merce are void.^ But a statute is not a regiilation of commerce because it may incidentally or indirect- ly affect commerce.® While State laws yield to acts of Congress passed in execution of powers conferred by the Constitution, the mere grant to Congress of the power to regulate commerce with foreign na- tions and among the States does not of itself and without legislation by Congress impair the authority of the States to establish reasonable police regula- tions.'^ Again, police legislation which purports to deal with subjects beyond the territorial jurisdiction is opposed to the conception of due process of law and void.^ ^^^lile it is settled that the State can not divest itself by contract of the police power in its restricted sense, so as to deprive itself of the capacity to legis- late in the interests of the lives, health, or morals of its citizens,^ many regulations controlling business and economic conditions in the interests of the gen- 4 Jacobson v. Massachusetts, 197 U. S. 11, 25. 5 Hannibal, etc., R. Co. v. Husen, 95 U. S. 465; Morgan's Steam- ship Co. V. Louisiana, 118 U. S. 455, 464; Schollenberger v. Pennsyl- vania, 171 U. S. 1. 6 Missouri, etc., R. Co. v. Haber, 169 U. S. 618; Reid v. Colorado, 187 U. S. 137. 7 New York, etc., R. Co. v. New York, 165 U. S. G28. 8 Allgeyer v. Louisiana, 165 U. S. 578. See infra, p. 351 et seq. 9 Boston Beer Co. v. Massachusetts, 97 U. S. 25; Stone v. Missis- sippi, 101 U. S. 814; Butchers' Union Slaughter-House, etc., Co. v. Crescent City Live Stock Landing, etc., Co., Ill U. S. 740; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Wabash R. Co. V. Defiance, 167 U. S. 88; Chicago, Burlington, etc.. R. Co. V. Nebraska, 170 U. S. 57; Manigault v. Springs, 199 U. S. 473, DUE PROCESS OF LAW 305 eral welfare can not be enforced against a contract chapter existing between the State and persons or corpora- tions whose affairs are the subject of regulation.^ Thus the State's right to regulate the charges by railroads and other public service corporations may be surrendered to such a company by the stipula- tions of its charter or other legislation, amounting to a contract.- It has been repeatedly declared by the Sup reme JJifcf^*"' Court of the United States that the limitations on chrngeTby ' Fourteenth State action contained in the Fourteenth Amendment ^™^\"'^- were not designed to limit or interfere with the exer- cise of th e poli ce power on the part of the S tates.^ This declaration only means that the sphere of the legitimate police power is the same under the amendment as without it.* What is the legitimate sphere of the police power is under that amendment a question for the final determination of the Federal Supreme Court, and to be tested by the body of doc- trines which have grown up in its decisions, in the interpretation of the National Constitution. 1 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Railroad Commission Cases, 116 U. S. 307, 325. 2 Georgia R., etc., Co. v. Smith, 128 U. S. 174, 179; Reagan V. Farmers' L. & T. Co., 154 U. S. 362, 393; Knoxville Water Co. v. Knoxville, 189 U. S. 434. sBarbier v. Connolly, 113 U. S. 31; Jones v. Brim, 165 U. S. 180, 182; L'Hote v. New Orleans, 177 U. S. 587; Cunnius v. Reading School Dist., 198 U. S. 469. 4 " The States possess, because they have never surrendered, the power — and therefore municipal bodies, under legislative sanction, may exercise the power — to prescribe such regulations as may be reasonable, necessary, and appropriate for the protection of the pub- lic health and comfort." California Reduction Co. v. Sanitary Re- duction Works, 199 U. S. 306. 20 306 DUE PROCESS OF LAW Chapter IX. Due proc- ess requires reasonable- Primarily for legisla- ture, ulti- mately for court. ITS EXEECISE MUST BE KEASONABLE. A general limitation on the exercise of the police power is found in the idea of reasonableness ; that is, to be valid a statute must be reasonable and enacted in good faith ; ° for every merely arbitrary and ca- pricious fiat of the legislature is out of place in "a government of laws and not of men," and is irrec- oncilable with the conception of due process of law.® As the reasonableness of legislation is a matter pre-eminently for the consideration of the law-mak- ing branch of the government, the court will not ex- amine the question de novo and substitute its judg- ment for that of the legislature, but will pronounce a law void only when it is merely arbitrary or not en- acted in good faith J ' ' No court, ' ' it was remarked in a recent case, ' ' would declare a usury law uncon- stitutional, even if every member of it believed that Jeremy Bentham had said the last word on that sub- 5 Plessy V. Ferguson, 163 U. S. 550. 6 See supra, pp. 51, 61, 142. 7Yiek Wo v. Hopkins, 118 U. S. 356; Powell v. Pennsylvania, 127 U. S. 677, 684; Morgan's Steamship Co. v. Louisiana, 118 U. S. 455, 459; Powell V. Pennsylvania, 127 U. S. 677, 684; L'Hote v. New Orleans, 177 U. S. 587; Jacobson v. Massachusetts, 197 U. S. II, 30, 31; Cunnius V. Reading School Dist., 198 U. S. 469; Com. v. Pear, 183 Mass. 242, 247; Holden V. Hardy, 169 U. S. 366; Lake Shore, etc., R. Co. v. Ohio, 173 U. S. 285, 301; Health Dept. v. Trinity Church, 145 N. Y. 32, 42. Whether the application of a police regulation, reasonable in it- self, is in the circumstances of an individual case reasonable or arbi- trary, is a question of fact, and the defense of unreasonableness cannot be asserted in the United States Supreme Court. When the trial court has determined after hearing that the requirement of the improvement is reasonable in the circumstances, and their finding has been affirmed in the highest State court, the question is one of fact which has been conclusively settled. Minneapolis, etc., R. Co. V. Minnesota, 193 U. S. 53. DUE PROCESS OF LAW 307 ject, and had shown for all time that such laws did chnpter more harm than good. The Sunday laws, no doubt, would be sustained by a bench of judges, even if every one of them thought it superstitious to make any day holy. Or, to take cases where opinion has moved in the opposite direction, wagers may be de- clared illegal without the aid of statute, or lotteries forbidden by express enactment, although at an earlier day they were thought pardonable at least. The case would not be decided differently if lotteries had been lawful when the Fourteenth Amendment became law, as indeed they were in some civilized states." ^ Ultimately, then, reasonableness must be passed upon by the courts, in the exercise of their proper function of keeping the legislature within constitutional bounds, and reasonableness may in this sense, and in this sense only, be called a judicial question. Varying aspects of the principle may be stated, unconstitu- A law or ordinance not enacted in good faith for the ilcele^^- ^ lation. promotion of the public good but passed from the sinister motive of annoying or oppressing a particu- lar person or class is invalid as offending the funda- mental principle of the generality of the laws.^ If the legislature in passing a law exercises the right of classification over persons or things, the classifica- tion must be founded on a natural basis, on differ- ences not arbitrary merely, but such as in the nature of things furnish a reasonable ground for separate laws and regulations.^ ^.The police power can not be lOtis V. Parker, 187 U. S. 606, 609, 2 Yick Wo V. Hopkins, 118 U. S. 356; Dobbins v. Los Angeles, 195 U. S. 223. 3 Gulf, etc., R. Co. V. Ellis, 165 U. S. 150; State v. Loomis, 115 Mo. 307, 314, 308 DUE PROCESS OF LAW Chapter IX. General and local police reg- ulation. interposed to support statutes which have no pos- sible tendency to protect the community or promote the public welfare, but which, having no substantial relation to the public welfare, arbitrarily deprive the owner of liberty or property."*' It has been said that if jDolice regulations passed by the State in the in- terest of public health, morals or safety, ''amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void."^ But this is only say- ing in other words that a statute which arbitrarily selects certain members of the community for regu- lation is not a valid exercise of the police power. The test of reasonableness is aj^plicable alike to the statutes of the legislature passed in the exercise of the police power and to the acts of local municipal legislative bodies acting under powers delegated by the legislature.^ The English courts have from time immemorial applied the test to municipal legisla- tion,"^ and our courts assume a much more untram- melled attitude in examining the reasonableness of municipal ordinances.^ Yet ''every intendment is 4Mugler V. Kansas, 123 U. S. 623, 661, 669; Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366, 398; California Re- duction Co. V. Sanitary Reduction Works, 199 U. S. 306; Matter of Jacobs, 98 N. Y. 98, .'SO Am. Rep. 636; Colon V. Lisk, 153 N. Y. 188. 5 Connolly v. Union Sewer Pipe Co., 184 U. S. 540. ePlessy v. Ferguson, 163 U. S. 550. 7 See supra, p. 25. 8 " While the courts," says Professor Freund, " profess to regard the State legislature as a co-ordinate power, they frankly treat the municipal authorities as subordinate," and judge each ordinance or regulation on its own merits. Freund, Police Power, § 142. In examining municipal legislation there is the question, not only of the harmony of the legislation with the constitution, which must arise equally as to nets of the legislatnre, but there is the additional DUE PROCESS OF LAW 309 to be made in favor of the lawfulness of the exercise Chapter of municipal power making regulations to promote the public health and safety, and it is not the prov- ince of courts, except in clear cases, to interfere with the exercise of the power reposed by law in munici- pal corporations for the protection of local rights and the health and welfare of the people in the com- munity. ' ' ^ Police Poiver or Eminent Domain as Dependent on Reasonableness. When legislation has the effect of prohibiting a Swee^ use which is incidental to property generally, or e^and'eZ- nent do- provides for the destruction of property in particular "^ifj^sl"'' conditions as constituting a nuisance,^ it has been said that its validity as police regulation, requiring no compensation, depends on its extent, or on the reasonableness of the provision in question; that when a statute oversteps this line of reasonableness it becomes an exercise of the eminent domain and compensation is necessary, so that, in such a case, if no provision is made for compensation, the act is invalid. In Massachusetts, it has been held that an act forbidding the erection of fences unnecessarily exceeding six feet in height from motives of malevo- lence and to annoy one's neighbors was a valid regu- lation of the use of property rights not amounting to a taking of property under the law of eminent do- main. The court said : * * Some small limitations of question whether the ordinance is in harmony with the general laws of the State. » Dobbins v. Los Angeles, 195 U. S. 22,3, 235; California Reduc- tion Co. V. Sanitary Reduction Works, 199 U. S. 306. 1 See infra, p. 337. 310 DUE PROCESS OF LAW Chapter previously existing rights incident to property may '■ — be imposed for the sake of preventing a manifest evil ; larger ones could not be except by tne exercise of the right of eminent domain. "^ When legisla- tion providing for the killing of diseased animals was in question, it was declared: ''We can not ad- mit that the legislature has an unlimited right to destroy property without compensation, on the ground that destruction is not an appropriation to public use ; . . . when a healthy horse is killed by a public officer, acting under a general statute, for fear that it should spread disease, the horse certainly would seem to be taken for public use, as truly as if it were seized to drag an artillery wagon. The public equally appropriate it, whatever they do with it afterwards."^ In accordance with these princi- ples a statute has been held void which declared par- ticular encroachments on the merely private rights of others a nuisance punishable with forfeiture of the property employed in the encroachment, without regard either to the extent of the trespass, or the intentional wrongdoing or innocence of the owner, or the value of the property to be forfeit'ed.^ Use of Overstepping the bounds of reasonable regula- property i. ± o gr^adver- |jqjj ^jj^j amouutiug to a taking of property without compensation has been held to be a statute or ordi- nance prohibiting the use of private property for ad- vertising purposes. The purpose of such a regula- tion is only the aesthetic enjo^T-nent of members of the 2 Rideout v. Knox, 148 Mass. 368, 372, 373, per Holmes, J. 3Miyer v. Horton, 152 Mass. 540. See also Lawton v. Steele, 152 U. S. 133. But apparently no such limitation was thought of in Mugler v. Kansas, 123 U. S. 623, and per Field, J., dissenting, 678. 4 Colon V. Lisk, 153 N. Y. 195. DUE PROCESS OF LAW 311 public, and it is unreasonable in view of the end to be Chapter attained to deprive persons of a recognized and valu- able use of property without compensation. Of the use of property for advertising, the Massachusetts court observed: "This has come to be an ordinary and remunerative use of lands near largely traveled streets, parkways, public parks, railroads, and other places frequented in numbers by the public. It is as natural a use of such lands as is the use of store fronts and show windows for display of goods kept for sale, or for other modes of advertising. It re- sembles the placing of advertising pages on each side of the literary portion of a periodical or the placing in street cars or railway stations of advertisements disconnected with the business of transportation. All these at present are usual, common, and profitable uses of property, of which every one sees daily nu- merous instances." ^ But when the end is adequate, particular classes of signs may be prohibited with- out compensation, as, for instance, immoral adver- tisements, or signs which are a menace to publio safety.® Classification. Classification is controlled both by the clause of the Fourteenth Amendment forbidding the denial of due process of law and that requiring the equal pro- tection of the laws. Perhaps the same effects might have been attained by the due process clause alone and it will not be possible to separate the cases un- 5 Com. V. Boston Advertising Co., (Mass. 1905) 74 N. E. Rep. 601. To the same effect is People v. Greene, 85 N. Y. App. Div. 400. 6 people V. Greene, 85 N. Y. App. Div. 400, distinguishing Roches- ter t;. West, 164 N. Y, 510. 312 DUE PROCESS OF LAW Chapter IX. Subjects of proper regulation cannot complain that others are not 'egulated. Specially dangerous employ- ments. der the two clauses with rigid distinctness. As has been seen, both clauses are satisfied when a law is founded on some natural basis of classification and all persons within its scope are treated alike under similar circumstances,"^ and this is but an application of the wider principle of reasonableness. When regulations are imposed upoTi one trade or business on valid grounds, it is not a subject of com- plaint that other kinds of business are not subjected to like regulation. ' ' The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not im- posed upon other business of a different kind. The discriminations which are open to objection are those where persons engaged in the same business are sub- jected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws. ' ' ^ Employments involving special dangers either to those engaged in them or to the public may be made the subject of legislation under the police power, and the nature of the employment justifies the exercise of the legislative powers and prevents the act being a denial of due process of law. Upon this ground, statutes abolishing the fellow-servant rule as applied to the employees of railroad corporations have been sustained.^ The danger to cattle straying on rail- 7 See supra, p. 58. 8 Soon Hing v. Crowley, 113 U. S. 703. See also Missouri, etc., R. Co. V. May. 194 U. S. 267; Ohio V. Dollison, 194 U. S. 445. 8 Missouri Pac. R, Co. v. Mackey, 127 U. S. 206; Chicago, etc.. DUE PROCESS OF LAW 313 roads justifies a law requiring railroad companies to chapter Harmless fence their rights of way and providing for punitive damages when cattle are killed in the absence of fences.^ ''The statutes of nearly every State of the Union," said the Federal Supreme Court, "provide for the increase of damages where the injury com- plained of results from the neglect of duties imposed for the better security of life and property. . . . And experience favors this legislation as the most efficient mode of preventing, with the least inconveni- ence, the commission of injuries." ^ The pursuit of harmless employments in a man- f^li^y ner which may endanger the property of others may ^ed in be prohibited. Thus a police regulation prohibiting manner. washing and ironing in public laundries in pre- scribed limits within a city during certain hours of the night has been upheld on the ground of the dan- ger of fire were the laundry business allowed under the prohibited conditions.^ The tendencies of two similar employments may ^o'^ilf/nt™" afford a sufficient ground of discrimination. In a nitldTy case wherein a specific tax laid by the State of Geor- gia on the occupation of hiring persons to labor out- side the State was resisted on the ground that it con- stituted an invalid discrimination against the occu- pation involved, because no tax was laid on hiring to labor within the State, the Federal Supreme Court sustained the tax. The Supreme Court of R. Co. V. Pontius, 157 U. S. 209; Tullis v. Lake Erie, etc., R. Co., 175 U. S. 348; Minnesota Iron Co. v. Kline, 199 U. S. 593. 1 Missouri Pac. R. Co. v. Humes, 115 U. S. 512; Minneapolis, etc., R. Co. V. Beckwith, 129 U. S. 26. 2 Missouri Pac. R. Co. v. Humes, 115 U. S. 512. sBarbier v. Connolly, 113 U. 6, 27; Soon Hing v. Crowley, 113 U. S. 703. 314 DUE PROCESS OF LAW Chapter QeoTgia upheld the law because, first, it did not ap- pear that employing laborers for work in the State was a business followed by any one, and, second, be- cause the State could properly discriminate between occupations of a similar nature but a dissunilar tend- ency, between those which tended to induce the laboring population to leave the State, and those which tended to induce that population to remain. After noticing this holding, the Supreme Court of the United States said: ''We are unable to say that such a discrimination, if it existed, did not rest on reasonable grounds, and was not within the dis- cretion of the State legislature. ' ' * BUSINESS AFFECTED WITH A PUBLIC INTEREST. whos"e^nan. Oue large field of legislative activity which is agemer affects public. Business whose m£ affects the placcd uudcr the head of the police power is the regulation of business or property affected with a public interest. The doctrine was authoritatively declared in Munn v. Illinois,^ in 1876, being there de- veloped from principles stated in the treatise De Portibus Maris by Lord Hale, who declared that when "wharves, cranes and other conveniences are affected with a public interest, they cease to be juris privati only," and ought to be under public regula- tion ; " as if a man set out a street in a new building on his own land, it is no longer bare private interest, but is affected with a public interest. ' ' ^ fThe Fed- eral Supreme Court states the doctrine thus : ' ' Prop- erty does become clothed with a public interest when 4 Williams v. Fears, 179 U. S. 270. 594 U. S. 113. 6 Hale, De Portibus Maris, part ii. c. 6 (Hargrave's Law Tracts, p. 77) ; Bolt V. Stennett, 8 T. E. 006; Allnutt v. Inglis, 12 East 527. DUE PROCESS OF LAW 315 used in a manner to make it of public consequence chapter and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. "^ The same idea has been stated by Mr. Justice iSradley ^ as fol- lows: '^When an employment or business . . . becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community, it is sub- ject to regulation by the legislative power." The principle of virtual monopoly which seems to give a reasonable foundation for the doctrine appears to have been abandoned by the United States Supreme Court in later cases.^ The most familiar instances of the regulation of Jf^^^^f^^^^g, business affected with a public interest are found tfthpubuc interest. 7Munn V. Illinois, 94 U. S. 113, 126; Budd v. New York, 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391; Getting v. Kansas City Stock Yards Co., 183 U. S. 79, 84. The doctrine of Munn v. Illinois has been sharply criticised on the ground that the doctrine of Lord Chief Justice Hale was miscon- ceived; that in all the instances cited by Lord Hale, the public or the crown had an actual proprietary interest in the property " af- fected with a public interest." See note to the Munn Case, 16 Am. Law Reg. N. S. 539, valuable as a contemporary analysis of the authorities on which the decision is founded; State V. Associated Press, 159 Mo. 410; Cooley, Const. Limit., 6th ed., 734 et seq.; The Power of the State to Regulate Prices and Charges, by G. A. Fink- elnburg, 32 Am. L. Rev. 501. 8 Dissenting opinion in Sinking Fund Cases, 99 U. S. 700, 747, quoted in the opinion of the court in Budd v. New York, 143 U. S. 517, 537. 9 See Brass v. Stoeser, 153 U. S. 391, 403, and dissenting opinion of Brewer, Field, Jackson, and White, JJ., at p. 409. Compare, however, 32 Am. Law Rev. 511. 316 DUE PROCESS OF LAW Chapter j^ the regulation of common carriers and railroads,^ innkeepers, wharfingers, ferrymen, millers, and warehousemen,^ but the principle is a general one. 1 In Gladson v. Minnesota, 166 U. S. 427, a State statute requir- ing all regular passenger trains, operated wholly within the State, to stop at all county seats through which the road passed and where it had a station, was held to be valid. The court said: " A railroad corporation, created by a State, is for all purposes of local govern- ment a domestic corporation, and its railroad within the State is a matter of domestic concern. ... It [the State] may prescribe the location and plan of construction of the road, the rate of speed at which the trains shall run, and the places at which they shall stop, and may make any other reasonable regulations for their manage- ment, in order to secure the objects of the incorporation, and the safety, good order, convenience, and comfort of the passengers and of the public. All such regulations are strictly within the police power of the State." 2 Grain elevators: Munn v. Illinois, 94 U. S. 113, 131, 132; Budd V. New York, 143 U. S. 517, 536. Grist-mills: Burlington v. Beas- ley, 94 U. S. 310; State v. Edwards, 86 Me. 105, 25 L. R. A. 505. Bakers: Mobile v. Yuille, 3 Ala. 137 (ordinance regulating weight, quality, and price of bread sustained). Many of the older examples enumerated in Munn's Case are foimded ultimately on mediaeval legislative precedents adopted under conditions and economical ideas foreign to modern times. In the Middle Ages, before the law of supply and demand was understood, it was assumed that there was for every commodity a just natural price, and that this price might be found and established by the state. Freund, Pol. Power, 374, citing, inter alia, Cunningham, Growth of Eng. Com., vol. 2, p. 232. Consequently, the English gov- ernmental authorities, national and local, undertook to regulate the prices, not only of labor, but of a variety of commodities. In the same way, elaborate lists of prices and wages were established by legislation in some of the American colonies. Finkelnburg, Poicer of States to Regulate Prices and Charges, 32 Am. L. Rev. 502, 503. In short, what would now be called the police power of the state had an indefinitely wider range in early times, and its application to state regulation of prices and wages was unhampered by notions of equality of rights or due process. Again, in colonial times, when the country was thinly settled, some employments, as that of a miller, may have partaken to an extent quite impossible at this day of the character of a virtual monopoly. In West v. Rawson, 40 W. Va. 480, the statute regulating the business and charges of milling had been brought forward in the statute books from the year DUE PROCESS OF LAW 317 It extends to the business of grain elevators ; ^ com- Chapter panies supplying water and gas ; "* stockyard com- ■ panies ; ^ telegraph and telephone companies ; ® and has been held to include the owners of places of pub- lic amusement,^ hackmen,^ and the business of fur- nishing market quotations.^ Business purely pri- vate, not affected with a public interest, is not sub- ject to public regulation. Under this class have been placed the dispensing of drinks from a soda- water fountain * and, in Missouri, the business of a news agency in supplying news items.^ A test of inclusion, but not of exclusion, has been 1748, and it was enforced without any question as to its constitu- tionality. 3 Brass V. Stoeser, 153 U. S. 391, and cases cited in last note. 4 Spring Valley Water Works v. Schottler, 110 U. S. 347; San Diego Land Co. v. National City, 174 U. S. 739 ; Mobile v. Bienville Water Supply Co., 130 Ala. 379; Indiana Natural, etc., Gas Co, V. State, 158 Ind. 516; Charleston Natural Gas Co. v. Lowe, 52 W. Va. 662. 5 Getting V. Kansas City Stock Yards Co., 183 U. S. 79. oNew York V. Squire, 145 U. S. 175, affirming 107 N. Y. 593; Central Union Telephone Co. v. State, 118 Ind. 194, 10 Am. St. Rep. 114; Chesapeake, etc.. Telephone Co. v. Baltimore, etc., Tel. Co., 60 Md. 399, 59 Am. Rep. 167; Godwin v. Carolina Telephone, etc., Co., 136 N. Car. 258 ; Gardner v. Providence Telephone Co., 23 R. I. 262 ; Commercial Union Tel. Co. v. New England Telephone, etc., Co., 61 Vt. 241. 7 Greenberg V. Western Turf Assoc, 140 Cal. 357 ; Cecil v. Green, 161 111. 265; People V. King, 110 N. Y. 418, 1 L. R. A. 293. See also Civil Rights Cases, 109 U. S. 3, per Harlan, J., dissenting, at p. 42. s Lindsay v. Anniston, 104 Ala. 261. 9 New York, etc.. Grain, etc., Exch. V. Board of Trade, 127 111. 153. 1 Cecil V. Green, 161 111. 265. 2 State V. Associated Press, 159 Mo. 410. A different conclusion was reached in Inter-Ocean Pub. Co. V. Associated Press, 184 111. 438, and the business of the Associated Press was held to be " affected with a public interest." 318 DUE PROCESS OF LAW Chapter IX. Work which the State might perform. found in the tad that the business sought to be regu- lated is one which is confessedly of a public charac- ter, that is, which is a proper work for the State itself, and that the State has authorized in its prose- cution the employment of some of the powers of overeignty, as of the power of eminent domain.^ This is not, however, a test of exclusion, because many businesses have been held affected with a pub- lic purpose, which may properly be carried on by private individuals, and which are conducted with- out the aid of the State's supreme power.^ Restraints on legisla- tive power to regulate. KEGULATION OP KATES. From the principles already stated it follows that the rate of the charges of all business affected with a public interest is subject to regulation by the legis- lature. When the question was first presented in 1876 to the United States Supreme Court in Munn V. Illinois,^ and the so-called Granger Cases,^ the tight of the State legislature to regulate rates was dieclared to be complete, the question of reasonable- ness was pronounced to be a legislative one, and it was said that ' ' for protection against abuses by leg- islatures the people must resort to the polls, not to the courts. "M The doctrine thus announced, how- 3 Cotting V. Kansas City Stock Yards Co., 183 U. S. 79 ; Falls- burg Power, etc., Co. V. Alexander, 101 Va. 98, 109. 4 Cotting V. Kansas City Stock Yards Co., 183 U. S. 79. 5 94 U. S. 113. 6 Chicago, etc., R. Co. v. Iowa, 94 U. S. 155; Peik v. Chicago, etc., R. Co., 94 U. S. 164; Chicago, etc., R. Co. v. Ackley, 94 U. S. 179; Winona, etc., R. Co. v. Blake, 94 U. S. 180; Stone v. Wisconsin, 94 U. S. 181. For the name, see 94 U. S. 183. 7 Munn V. Illinois, 94 U. S. 113, 133, 134, Sae also Peik v. Chicago, etc., R. Co., 94 U. S. 164, 178. DUE PROCESS OF LAW 319 ever, lias undergone progressive modification in later Chapter decisions. In the Railroad Commission Cases,^ which came before the court in 1886, the court in a dictum declared there were limitations on the State's authority. [J 'This power to regulate," it was said, ' ' is not a power to destroy, and limitation is not the equivalent of confiscation. Under pretense of regu- lating fares and freights, the State cannot require a railroad corporation to carry persons or property without reward ; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due pro- cess of law." ^ The prescribing of future rates is a legislative act, while the inquiry whether existing rates are reasonable is a judicial act.^- '''"''^'~" When the rates were established not by the legis- fne|si'a°" lature directly, but by an administrative board cre- ated by the legislature, the court said :!" The ques- tion of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as re- gards the company and as regards the public, is eminently a question for judicial investigation, re- quiring due process of law for its determination.jj^ This requires in such cases hearing and notice, but 8 116 U. S. 307. 9 116 U. S. 331. See also Dow v. Beidelman, 125 U. S. 680, 688; Georgia R., etc., Co. v. Smith, 128 U. S. 179; Louisville, etc., R. Co. V. Kentucky, 183 U. S. 503, 510. 9* Interstate Commerce Com. v. Cincinnati, etc., R. Co., 167 U. S. 479, 499. 1 Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418, 458; Louis- ville, etc., R. Co. V. Kentucky, 183 U. S. 503, 510, where a ruling re- quiring the same rates for long and for short hauls was sus- tained. tive power. 320 DUE PROCESS OF LAW Chapter when the legislature acts directly in establishing '- — rates no notice and hearing is necessary^ S'lfsw"^^ Even when the legislature acts directly, the courts bie'rltes"^' havc powcr to set aside unreasonable rates. ['^.The legislature," the Federal Supreme Court has said, "has power to fix rates, and the extent of judicial interference is protection against unreasonable rates. "^ In a case involving the validity of water rates'^fixed by local authorities, the same principles were laid down, and the court added: *' Judicial in- terference should never occur unless the case pre- sents, clearly and beyond all doubt, such a flagrant attack on the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for public use. " ■* In Smyth v. Ames,^ decided in 1898, the court, after a full examination of authori- ties, sums up its conclusion on this point as follows : ''While rates for the transportation of persons and property within the limits of a State are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its property without such compensation as the consti- tution secures, and, therefore, without due process 2 Budd V. New York, 143 U. S. 517, affirming 117 N. Y. 1. 3 Chicago, etc., R. Co. v. Wellman, 143 U. S. 339; Reagan V. Farmers' L. & T. Co., 154 U. S. 362; St. Louis, etc., R. Co. v. Gill. ■ 156 U. S. 649, 657; Covington, etc.. Turnpike Road Co. v. Sandford, 164 U. S. 578, 592; Interstate Commerce Commission v. Cincinnati, etc., R. Co., 167 U. S. 479, 499; Lake Shore, etc., R. Co. v. Smith, 173 U. S. 687. * San Diego Land Co. v. National City, 174 U. S. 739, 754. See also Stanislaus County v. San Joaquin, etc.. Canal, etc., Co.. 192 U. S. 201. 5 169 U. S. 466. DUE PKOCESS OF LAW 321 of law, cannot be so conclusively determined by tlie Chapter legislature of the State, or by regulations adopted • under its authority, that the matter may not become the subject of judicial inquiry." The question of the reasonableness of the rate Ji|^^e°sst" is an equitable question depending on a considera- fn^'hrques- tion. tion of all the circumstances of the particular case, and requiring the weighing of the various interests involved ; on the one hand, the interests of the own- ers of the property, including those who have ac- quired rights therein as bondholders ; on the other, the interests of the public. What the property own- ers are entitled to ask is a fair return upon the value of that which is employed for the public conveni- ence; what the public is entitled to demand is that no more be exacted from it than the services ren- dered are reasonably worth.^ In a case involving the validity of rates prescribed for a turnpike company, the court said : ' ' Each case must depend upon its special facts; and when a court, without assuming itself to prescribe rates, is required to determine whether the rates prescribed by the legislature for a corporation controlling a public highway are, as an entirety, so unjust as to destroy the value of its property for all the purposes for which it was acquired, its duty is to take into consideration the interests both of the public and of the owner of the property, together with all other circumstances that are fairly to be considered in determining whether the legislature has, under the guise of regulating rates, exceeded its constitutional authority, and practically deprived the owner of 6 Smyth V. Ames, 169 U. S. 466, 547. 21 322 DUE PROCESS OF LAW Chapter IX. Efifect of rate on en- tire line, not on parts, con- sidered. Mortgage bondhola- Value of property the basis of calculation. property without due process of law."'^ It was held in this case that an allegation in an answer to a bill for an injunction, that under the rates estab- lished the income of the company would be so re- duced that it could not maintain its road, meet its ordinary expenses, and earn any dividends for stock- holders, made, in connection with facts stated, a prima facie case of their invalidity.^ When a railroad company has been formed by the consolidation of several pre-existing separate lines, the reasonableness of the rate established for the consolidated company is to be tested by the effect of the rate on the entire line of railway as consoli- dated and not by its effect on the road belonging to one of the pre-existing companies only. ' ' The com- pany cannot claim the right to earn a net profit from every mile, section, or other part into which the road might be divided, nor attack as unjust a regulation which fixed a rate at which some such part would be unremunerative." ^ The interest of mortgage bondholders is an ele- ment to be considered, and if, under the schedule of rates fixed, interest on the mortgage debt cannot be paid, the enforcement of the schedule ordinarily means confiscation.^ The basis of any calculation of reasonable rates is held to be the present value of the property em- f Covington, etc., Turnpike Road Co. v. Sandford, 164 U. S. 578, 597. See also Ames V. Union Pac. R. Co., 64 Fed. Rep. 165, 178. 8 See also Smyth v. Ames, 169 U. S. 466, when proof of facts showing rates so low that ordinary expenses could not be met was held to avoid the rates. » St. Louis, etc., R. Co. v. Gill, 15G U. S. 649, 657. 1 Chicago, etc., R. Co. v. Dey, 35 Fed. Rep. 866, 870, 880. value. DUE PROCESS OF LAW 323 ployed in the public service, and any rate which Chapter fails to give ''a fair return" on this value deprives the owner of property without compensation. ^ But it has been said that there may be cases where the original cost of construction evidenced by out- standing bonds, rather than the real value of the property, should be taken into account, so as not to cast the entire burden of depreciation on those who have invested their money in railroads.^ In order to ascertain the value of the property SbTc"?- emplo3^ed in the public service, "the original cost of estfmatil!^ construction, the amount expended in permanent im- provements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates pre- scribed by statute, and the sum required to meet op- erating expenses, are all matters for consideration, 2 Smyth V. Ames, 169 U. S. 466 ; San Diego Land Co. v. National City, 174 U. S. 739; Cotting v. Kansas City Stock Yards Co., 183 U. S., 79, 91; San Diego Land, etc., Co. V. Jasper, 189 U. S., 439, 442, where it was held, however, that when a water supply plant has been built for a large area, and the rates fixed with reference to its capacity, the company cannot complain that the rates do not give a reasonable return, if it has not as yet the customers contem- plated. Judge Noyes, approaching the question of rates at once as a rail- road president and a lawyer, concludes that " charging according to the value of the service is the only feasible method of making rates." American Railroad Rates, 236. Value of service (to the shipper) is opposed to cost of service. Reasonableness is always a matter of comparison, and " when rates do not exceed the charges made by other railroads similarly situated they are prima fade reasonable." 7&. 63. There is no such thing as a rate reasonable per se (ib. 61), and " rates, like taxes, are based upon ability to pay." 76. 53. See also infra, p. 327, and note 4. 3 Ames V. Union Pac. R. Co., 64 Fed. Rep. 165, 177, 178, per Brewer, Cir. Justice. 324 DUE PROCESS OF LAW Chapter IX. Considera- tion accord- ed to differ- ent ele- ments varies. " Fair re- turn." and are to be given such weight as may be just and right in each case." This enumeration of the ele- ments of value is not exclusive, and "there may be other matters to be regarded." ^ The consideration to be accorded these elements may vary. The interest of the public as well as the property owners being a consideration, the public is not to be burdened with increased rates necessary to meet a bond issue in excess of fair value, or a fictitious capitalization,^ or reckless operating ex- penses. ' ' There may be circumstances, ' ' it has been said, "that would justify such a tariff [as fails to produce any profit] ; there may have been extrava- gance and a needless expenditure of money; there may be waste in the management of the road ; enor- mous salaries, unjust discrimination as between indi- vidual shippers, resulting in general loss. The con- struction may have been at a time when material and labor were at the highest price, so that the actual cost far exceeds the present value; the road may have been unwisely built, in localities where there is not sufficient business to sustain a road. Doubtless, too, there are many other matters affecting the rights of the community in which the road is built, as well as the rights of those who have built the road."^ A "fair return" on the value of property invested cannot, therefore, be set at a certain per cent on the capital."^ 4 Smyth v. Ames, 169 U. S. 466. See also San Diego Land Co. v. National City, 174 U. S. 739, 757. 5 Smyth r. Ames, 169 U. S. 466, 544 ; San Diego Land Co. V. Na- tional City, 174 U. S. 739, 757, 758. 6 Reagan v. Farmer's L. & T., etc., Co., 154 U. S. 362, 412. » Covington, etc., Turnpike Road Co. v. Sandford, 1G4 U. S. 578, DUE PROCESS OF LAW 325 On the other hand, the rule once laid down that chapter ''when the proposed rates will give some compensa- tion, however small, to the owners of the railroad property, the courts have no power to interfere,"^ has yielded with the advance of opinion that reason- ableness is an equitable question in all the circum- stances of the case.^ In Cottina v. Kansas Citii Stock Yards Co.,^ Mr. ra^tSTs^de^ ^ ^ pending on Justice Brewer, writing the opinion of the court, i^^^^^l but speaking on this point only for himself and two other judges, suggested a distinction in the consid erations which make a rate reasonable according as the property owner is intentionally acting in the performance of State functions and with the aid of State franchises, such as eminent domain, or as without any intent to perform a public service he has placed his property in such a position that the public has an interest in its use. In the first case, the property owner distinctly un- J^Jf^^, jg dertakes to do the work of the State, and it may be Ime^'mW perform. said that by his action he voluntarily accepts all the conditions of public service which would attach were 597, 598; San Diego Land Co. v. National City, 174 U. S. 739, 756; Chicago, etc., R. Co. v. Dey, 35 Fed. Rep. 866, 878. 8 Chicago, etc., R. Co. v. Dey, 35 Fed. Rep. 866, 879, per Brewer, J. See Dow V. Beidelman, 125 U. S. 680, where rates giving a re- turn of one and a half per cent on the original cost of the road and only a little more than two per cent on the amount of the bonded debt were sustained. In Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 91, it is said: "It [the court] has not held affirmatively that the legis- lature may enforce rates which stop only this side of confiscation and leave the property in the hands and under the care of the owners without any remuneration for its use." 9 Southern Pac. R. Co. V. Board of Railroad Com'rs, 78 Fed. Rep. 261, per McKenna, J. 1 183 U. S. 79. 326 DUE PROCESS OF LAW Chapter IX. Where business is in the na- ture of a private en- terprise. the State itself performing the service. ''He ex- presses his willingness to do the work of the State, aware that the State in the discharge of its public duties is not guided solely by a question of profit. It may rightfully determine that the particular serv- ice is of such importance to the public that it may be conducted at a pecuniary loss, having in view a larger general interest. At any rate, it does not perform its services with the single idea of profit. Its thought is the general public welfare. If, in such a case, an individual is willing to undertake the work of the State, may it not be urged that he in a measure subjects himself to the same rules of action, and that if the body which expresses the judgment of the State believes that the particular service should be rendered without profit, he is not at liberty to complain ? " ^ In the several cases where a private business be- comes subject to government control, solely because it is held to be affected with a public interest, the position of the owner is different. He is not per- forming the work of the State, nor can he avail him- self of the power of the State. ''His business in all matters of purchase and sale is subject to the ordi- nary conditions of the market and the freedom of contract. He can force no one to sell to him; he cannot prescribe the price he shall pay. He must deal in the market as others deal, buying only when he can buy and at the price at which the owner is willing to sell; and selling only when he can find a purchaser and at the price which the latter is will- ing to pay. If, under such circumstances, he is bound 2 183 U. S. 93. DUE PROCESS UF LAW 327 by all the conditions of ordinary mercantile transac- chgter tions, lie may justly claim some of the privileges which attach to those engaged in such transac- tions." ^ In this case, his rates are not to be meas- ured by the aggregate amount of his profits, deter- mined by the volume of the business, but by the ques- tion whether any particular charge to an individual dealing with him is, considering the services ren- dered, an unreasonable exaction. ''He has a right to do business. He has a right to charge for each separate service that which is a reasonable compen- sation therefor, and the legislature may not deny him such reasonable compensation ; and may not in- terfere simply because out of the multitude of his transactions, the amount of his profits is large."* In determining what charge is reasonable by the intrinsic value of the services rendered, the custom- ary charge for similar services, as determined by ordinary natural conditions, is obviously of great importance.® A statute which, purporting to regulate rates, in ^jSSa- effect gives to a class arbitrarily selected, as, for ^^°^' instance, purchasers of one-thousand-mile tickets, rights denied to the public generally, is a taking of property without due process of law.^ 3 183 U. S. 94, 95. 4 Cotting r. Kansas City Stock Yards Co., 183 U. S. 95. See also Parkersburg, etc., Transp. Co. v. Parkersburg, 107 U. S. 691, 699. " The principle must be, when reasonableness comes in question, not what profit it may be reasonable for a company to make, but what it is reasonable to charge to the person who is charged." Canada Southern R. Co. v. International Bridge Co., 8 App. Cas. 723, 731, per Earl of Selborne, L. C. 5 183 U. S. 97, 98. 6 Lake Shore, etc., R. Co. v. Smith, 173 U. S. 684. 328 DUE PROCESS OF LAW Chapter IX. State may legislate freely where no vested _ rights in- volved. Reducing interest on judgments. DEPRIVATIOISr OP PROPERTY. Private Rights Must Be Involved. In arguing that a person has been deprived of life, liberty, or property without due process of law by the exercise on the part of the State of its police power or its general legislative power, it must nec- essarily be shown first that the State's action inter- fered with some individual private right. Thus, when the complaint is that the legislature has de- prived a person of a right of property, the argu- ment must fail if it is shown that no property right is involved in the case.'^ A statute of Cali- fornia provided for the salaries of the police officers of San Francisco, and created a fund for pension- ing policemen by providing that the city should re- tain two dollars a month out of each officer's salary, as fixed in accordance with the provisions of the law. Several years later the act was repealed. It was held that a policeman who had "contributed" to the fund had no vested rights therein and that the repealing act was not a taking of property with- out due process. Looking behind the terms of the statute to its substance, it was apparent that the two dollars set apart each month for each officer was not a part of his pay, since it was never in his con- trol, but merely an amount contributed by the State to create the fund.^ When the State exercises its legislative powers by enacting a reduced rate of interest on judgments. 7 New Orleans v. New Orleans Water Works Co., 142 U. S. 79, 88. 8 Pennie v. Reis, 132 U. S. 464. DUE PROCESS OF LAW 329 no right of a judgment creditor is infringed by the Chapter prospective application of the statute to a judgment previously recovered, because the judgment creditor never had a vested right of property in interest not yet accrued, and the question how much interest shall be allowed is entirely within the discretion of the legislature.^ When legislative regulations are concerned with sute'prop^ the preservation of property title to which is in the people of a State as a whole, there is no depriva- tion of property without due process of law. The right of a municipality acting under authority from the State to forbid public speaking where it had previously been allowed in a public park within the municipality has been upheld on this ground. ''For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary 9 Morley v. Lake Shore, etc., R. Co., 146 U. S. 162. The court in this case after remarking that " if the plaintiff has actually received on account of his judgment all that he is entitled to receive, he can not be said to have been deprived of his property," proceeds to observe that " the adjudication of the plaintiff's claims by the courts of his own State must be admitted to be due process of law." The last remark would seem to be too sweeping and liable to misconstruction. Due process does indeed exist, because in such a case the legislative action in the bona fide exercise of its discretion is due process; but a State court's adjudication on the constitution- ality of a State statute is not due process, and if it were no case could ever reach the Federal Supreme Court under the due process clause of the Fourteenth Amendment. The question really involved, namely, whether there is a vested right in future interest at the legal rate on a judgment, has been decided differently in some State courts. See the dissenting opinion of Judge Harlan in the case cited. 330 DUE PKOCESS OF LAW Chapter right interferes the legislature may end the right Game. Reclaimed animals; dogs. Natural gas ; petro- leum. of the public to enter upon the public place by put- ting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes." ^ The title to game, animals ferae naturae, is in the State until reduced to possession by an individual,^ and due process of law is not denied by statutes reg- ulating the times and conditions of taking game.^ Animals ferae naturae may, by being reclaimed from their wild state, become the subject of a quali- fied property, which subsists so long as its subject is within the control of its possessor. Assimilated to animals of this class are dogs, which "stand, as it were, between animals ferae naturae, in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete." The right of property in dogs is enjoyed subject to such regulation as the State may see fit to impose, and a law giving the right of recovery for their destruction only when the owner has complied with the dog taxing or licensing statutes does not deprive the owner of property without due process of law.^ In some States, deposits of natural gas and petro- leum are by the State law, which in this matter is controlling,^ treated as analogous to animals ferae 1 Com. V. Davis, 162 Mass. 510, quoted in Davis v. Massachusetts, 167 U. S. 43, where the Massachusetts case was aifirmed. 2Geer v. Connecticut, 161 U. S. 519. sLawton v. Steele^ 152 U. S. 133; Daniels v. Homer, 139 N. Car, 219. 4 Sentell v. New Orleans, etc., R. Co., 166 U. S. 705. 6 The right of the surface owner to reduce to possession natural gas and oil is an incident of his ownership of the land, and regula- DUE PROCESS OF LAW 331 naturae, that is, title is in tlie State until they are ^''^l*^"" reduced to possession, when they become private property. Consequently, in such a State, a statute requiring the owners of the soil to stop up gas and oil wells thereon when they are abandoned and mak- ing it unlawful for any one to allow the escape of natural gas or oil into the open air was held to be a regulation by the State of its own property in the interest of all the people and not a taking of private property.^ In giving its decision, the court said: *'As to gas and oil the surface proprietors within the gas field all have the right to reduce to posses- sion the gas and oil beneath. They could not be ab- solutely deprived of this right which belongs to them without a taking of private property. But there is a coequal right in them all to take from a common source of supply the two substances which in the nature of things are united, though separate. It follows from the essence of their right and from the situation of the things as to which it can be ex- erted, that the use by one of his power to seek to convert a part of the common fund to actual posses- sion may result in an undue proportion being attrib- uted to one of the possessors of the right to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder. Hence it is that the legislative power, from the pecu- liar nature of the right and the objects upon which it is to be exerted, can be manifested for the pur- pose of protecting all the collective owners, by tion of this right is but a regulation of real property governed by the lex rei sitae. Ohio Oil Co. r. Indiana. 177 U. S. 190. 6 Ohio Oil Co. V. Indiana, 177 U. S. 190. 332 DUE PROCESS OF LAW Chapter IX. Corpora- tions; re- serving power to repeal charter. Foreign corpora- tions. Property of school districts. securing a just distribution, to arise from the en- joyment, by them, of their privilege to reduce to possession, and to reach the like end by preventing waste." The reserved power of repeal of the charter of a water company may prevent the question of the de- privation of property without due process of law arising on an act empowering the municipality to erect its own water works."^ And the expiration of the contract of a water works company with a vil- lage to supply it with water leaves the village free to construct its own water works, and its consent to the incorporation of the company under a franchise not exclusive will not work an estoppel or render its act a deprivation of property without due process of law.^ Restraints oit the right to contract placed on for- eign corporations by the laws under which they ac- cept the State's permission to do business therein are valid because, such corporations having no right to contract except as given to them by the State, no right of theirs can be said to be denied or infringed.^ The subdivision of a State into subordinate terri- torial units for the various purposes of govermnent is at all times a matter entirely in the discretion of the State, and such subdivisions acquire as against the State no private rights in property vested in them for public purposes. Consequently a law cre- ' Newburyport Water Co. v. Newburyport, 193 U. S. 577. 8 Skaneateles Waterworks Co. V. Skaneateles, 184 U. S. 354. Waters-Pierce Oil Co. V. Texas, 177 U. S. 28; John Hancock Mut. L. Ins Co. V. Warren, 181 U. S. 73; Fidelity Miit. L. Ins. As- soc. V. Mettler, 185 U. S. 308. As to the protection extended to for- eign corporations generally, supra, p. 100. DUE PROCESS OF LAW 333 ating a new school district and giving to it tke prop- Ch^^^tcr erty within its limits which had belonged to the ■ districts from which it was created is not a taking of property without due process of law.^ It would seem clear that no individual could have Sfs aVd a right of property in the future use for private purposes of the national flag or of State seals or emblems, and that the use of these things was, there- fore, in the absolute control of the legislature, whose enactments on the subject, however unwise, could not be declared void by the courts. This view is supported by recent decisions in some states,^ while a contrary view has been entertained by the courts of Illinois, and a statute forbidding the use of the national flag for advertising purposes held to be void as an unwarranted interference with indi- vidual liberty.^ The New York court has held such a law invalid in so far as it operated retrospectively upon articles already made, being as to them a de- privation of property without due process of law.'* Professions and Offices as Property. The selection to a public office confers on the indi- 2.*^„., 128 U. S. 289 80, 169 TABLE OF CASES CITED. 405 PAGE Terry v. Anderson, 95 U. S. 628 171, 173 Thaw V. Ritchie, 130 U. S. 519 89 Thomson v. Lee County, 3 Wall. (U. S.) 327 158 Thompson r. Missouri, 171 U. S. 380 147 Thompson v. Perrine, 103 U. S. 806 158 Thompson v. Utah, 170 U. S. 343 5, 147, 200 Thompson v. Whitman, 18 Wall. (U. S.) 457 87 Thorington v. Montgomery, 147 U. S. 490 101 Thormann v. Frame, 176 U. S. 350 87 Thorpe v. Rutland, etc., R. Co., 27 Vt. 140 203 Tide Water Co. v. Coster, 18 N. J. Eq. 518 249 Tindal v. Wesley, 167 U. S. 204 282 Tinsley v. Anderson, 171 U, S. 101 169, 170 Title Guarantee, etc., Co. v. Wren, 35 Oregon 62 360 Tivan, In re, 5 B. & S. 679, 117 E. C. L. 679 134 Toltec Ranch Co. v. Cook, 191 U. S. 532 173 Tonawanda v. Lyon, 181 U. S. 389 251, 252 To^^^lsend, Matter of, 39 N. Y. 171 271 To\vnsend v. Jemison, 9 How. (U. S.) 407 171, 173 Tracy v. Elizabethtown, etc., R. Co., 80 Ky. 259, 266 278, 298 Trenton, etc.. Turnpike Co. V. American, etc., News Co., 43 N. J. L. 381 257 Trono f . U. S., 199 U. S. 521 1 65 Tullis V. Lake Erie, etc., R. Co., 175 U. S. 348 313 Turlock Irrigation Dist. v. Williams, 76 Cal. 360 266 Turner v. New York. 168 U. S. 90 172. 1 82 Turpin v. Lemon, 187 U. S. 57 180, 182, 238, 239 Tuthill, Matter of, 163 N. Y. 133 255, 263, 265 Tuttle V. Moore, 3 Indian Ter. 712 256. 263 TAventy-third St. R. Co. v. Tax Com'rs, 199 U. S. 53 227 Tyler r. Beecher, 44 Vt. 648 264 Tj'ler V. Judges, 175 Mass. 71 113, 117 Tj'ler V. People, 8 ]\Iich. "20 135 U. L^nderwood r. Bailey. 59 N. H. 480 264 Underwood r. Green, 42 N. Y. 1 40 374 Underwood ?;. People. 32 Mich. 1 344 Union Refrigerator Transit Co. r. Kentucky, 199 U. S. 194... 119, 202, 218 U. S. V. Alexander, 148 U. S. 187 295 U. S. V, Baltimore, etc., R. Co., 17 Wall. (U. S.) 322 217 U. S. V. Clintock, 5 Wheat. (U. S.) 144 134 U. S. V. Cruikshank, 1 Woods (U. S.) 308, 92 U. S. 542 36, 42, 43, 51 406 TABLE OF CASES CITED. PAGE U. S. V. Erie R. Co., 107 U. S. 1 237 U. S. V. Furlong, 5 Wheat. (U. S.) 184 134 U. S. V. Gettysburg Electric R. Co., 160 U. S. 668 256, 261, 289 U. S. V. Great Falls IVIfg. Co., 112 U. S. 645 259 U. S. V. Hall, 2 Wash. (U. S.) 366 147 U. S. V. Harris, 106 U. S. 629 43, 44, 46 U. S. V. Hitchcock, 190 U. S. 324 369 U. S. V. Jones, 109 U. S. 513 279 U. S. V. Ju Toy, 198 U. S. 253 190, 191, 193, 194, 197 U. S. V. Moore, 129 Fed. Rep. 630 36 U. S. V. New Orleans, 98 U. S. 381 212 U. S. V. Perkins, 163 U. S. 625 222 U. S. V. Philadelphia, etc., R. Co., 123 U. S. 113 237 U. S. V. Rickert, 188 U. S. 438 217 U. S. V. Sing Tuck, 194 U. S. 161 191, 196, 197 U. S. V. Smith, 5 Wheat. (U. S.) 153 134 U. S. V. Truesdale, 148 U. S. 196 295 U. S. V. Union Pac. R. Co., 160 U. S. 1 153 U. S. V. Ward, Woolw. (U. S.) 17 134 U. S. V. Williams, 194 U. S. 279 190, 193 U. S. V. Wong Kim Ark. 109 U. S. 649 192, 195, 196 U. S. V. Yamasaka, 100 Fed. Rep. 404 193 V. Vallee v. Dumergue, 4 Exch. 290 94 Van Brocklin v. Tennessee, 117 U. S. 151 217 Vance v. Vance, 108 U. S. 514 172 Vanzant v. Waddel. 2 Yerg. (Tenn.) 260 62 Varner v. Martin, 21 W. Va. 534 256, 264 Veazie Bank v. Fenno, 8 Wall. (U. S.) 533 208 Vicksburg. etc., R. Co. v. Dennis, 116 U. S. 665 226 Virginia, Ex p., 100 U. S. 339 27, 43 Virginia v. Rives, 100 U. S. 313 43 Voght V. State, 124 Ind. 358 181, 182 Voigt V. Detroit, 184 U. S. 115 241, 245 Von Hoffman v. Quincy, 4 Wall. (U. S.) 535 152, 175 W. W. W. Cargill Co. v. Minnesota, 180 U. S. 452 351 Wahash R. Co. v. Defiance, 167 U. S. 88 304 Wabash Western R. Co. v. Brow, 164 U. S. 271 103 Waite, Matter of. 99 N. Y'. 433 131 Waite V. Santa Cruz, 184 U. S. 302 62 TABLE OF CASES CITED. 4O7 PAGE Walker v. Sauvinet, 92 U. S. 90 37, 102 Wall, Ex p., 107 U. S. 265 51, 52, 53, 54, 59, 171 Wallace V. Wallace, 62 N. J. Eq. 509 122, 125 Walston r. Nevin, 128 U. S. 578 247, 248 Wantlan v. White, 19 Ind. 470 182, 185 Ward V. Maryland, 12 Wall. (U. S.) 418 217 Warren i\Ifg. Co. v. Etna Ins. Co., 2 Paine (U. S.) 501 154 Waterbury v. Newton, 50 N. J. L. 534 349 Waters-Pierce Oil Co. v. Texas, 177 U. S. 28 332 Watson V. Mercer, 8 Pet. (U. S.) 110 151, 155 Wayman v. Southard, 10 Wheat. (U. S.) 1 69, 70 Webb V. Den, 17 How. (U. S.) 576 180 Webster v. Fargo, 9 N. Dak. 208, 181 U. S. 394 202, 251 Webster v. Reid, 11 How. (U. S.) 437 89 Weed V. Binghamton, 26 Misc. (N. Y. ) 208 144 Weidenfeld v. Sugar Run R. Co., 48 Fed. Rep. 615 270 Weimer V. Bunbury, 30 Mich. 201 52 Wells V. Savannah, 181 U. S. 531 226 Welton V. Missouri, 91 U. S. 275 220 West V. Louisiana, 194 U, S. 258 160, 161 Western Union Tel. Co. V. Atty.-Gen., 125 U. S. 530 224 Western Union Tel. Co. v. Missouri, 190 U. S. 412 225, 246 Western Union Tel. Co. V. Myatt. 98 Fed. Rep. 335 164, 370 Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 540. . ' 258, 284 Western Union Tel. Co. v. Taggart, 163 U. S. 1 224, 225 Weston V. Charleston, 2 Pet. (U. S.) 466 217 West River Bridge Co. v. Dix, 6 How. (U. S.) 507 254 Weyerhaueser r. Minnesota, 176 U. S. 550 211, 241, 245 Wheeler v. Jackson, 137 U. S. 245 172 Wight V. Davidson, 181 U. S. 371 251, 252 Wild r. Serpen, 10 Gratt. (Va.) 405 234 Wilkins v. Ellett, 9 Wall. (U. S.) 740 121 Williams V. Eggleston, 170 U. S. 304 213 Williams V. Fears, 179 U. S. 270 314, 344 Williams V. Parker, 188 U. S. 491 262, 271, 291 Williams r. School Dist. No. 6, 33 Vt. 271 257 Willyard v. Hamilton. 7 Ohio (pt. 2) 111 257 Wilson r. Alabama G. S. R. Co., 77 Miss. 714 347 Wilson V. Eureka City, 173 U. S. 32 365 Wilson V. Haney, 24 N. H. 344 172 Wilson V. Iseminger, 185 U. S. 55 172 Wilson V. Joseph, 107 Ind. 490 106 Wilson V. Lambert, 168 U. S. 611 230, 232 Wilson V. North Carolina, 169 N. Car. 586 162, 167, 335 408 TABLE OF CASES CITED. PAGE Wilson V. Seligman, 144 U. S. 41 89, 98 Wilson V. Standefer, 184 U. S. 399 77, 227 Wilson Packing Co. v. Huntern, 8 Biss. (U. S.) 429 105 Windsor v. McVeigh, 93 U. S. 274 7(i, 85, 109 Winona, etc., Land Co. v. Minnesota, 159 U. S. 526 211, 238, 241 Winona, etc., R. Co. V. Blake, 94 U. S. 180 318 Winston v. Winston, 189 U. S. 507 122 Wisconsin v. Pelican Ins. Co., 127 U. S. 265 88, 136 Wisconsin Cent. R. Co. v. Kneale, 70 Wis. 89 298 Wisconsin Cent. R. Co. v. Price County, 133 U. S. 496 217 Wisconsin, etc., R. Co. v. Jacobson, 179 U. S. 287 340 Wise V. Withers, 3 Cranch (U. S.) 331 88 Wong Kim Ark, In re, 71 Fed. Rep. 382 195 Wong Wing f. U. S., 163 U. S. 228 189, 192, 193 Woodruff V. Taylor. 20 Vt. 65 85 Wormley v. District of Columbia. 181 U. S. 402 251 Wurts V. Hoagland, 114 U. S. 606, 614 265, 266 Wyllie, In re, 2 Hughes ( U. S. ) 449 153 Wyman v. Halstead, 109 U. S. 656 121 Wynehamer v. People, 13 N. Y. 378 68, 141 Y. Yarbrough, Ex p., 110 U. S. 651 43 Yates r. Milwaukee, 10 Wall. (U. S.) 497 374 Yesler v. Washington Harbor Line Com'rs, 146 U. S. 646 61, 282, 295 Yick Wo V. Hopkins, 118 U. S. 356 28, 61, 142, 189, 192, 306, 307 Y^ork V. Texas, 137 U. S. 15 ; 93, 160 Young, Matter of, 123 N. Car. 358 116 Z. Zeigler v. South, etc., Alabama R. Co., 58 Ala. 594 68, 185 Zimmerman v. Franke, 34 Kan. 650 106 INDEX. Acknoxpledgments — PAGE Acts curing defective 158 note Administration — Grant of letters treated as in rem 117, 118 Issuance of letters on absentee's estate as absentee 88 Issuance of letters on estate of absentee as decedent 88 Settlement of special administrator without giving bond. . . 161 Situs of debts for 121 Administrative officers — See Separation of Govebnmental Powers. Action of limited by due process 28 Charged with carrying out details of police regulation 303 Judicial duties intrusted to 72, 245, 366 May administer laws excluding aliens 190 May determine qualification of physician 163 May determine question of sanity 163 May determine whether applicant for admission an alien. . . 194 Notice and hearing required when rates fixed by 319 Proceedings before as due process of law. . .72, 163, 190, 233, 366 Statutes making decisions by heads of departments final .... 369 Administrator — See Administration. Advertising — Use of property for 310 iEsthetic considerations — Whether justify employment of eminent domain 261 Whether justify police power 310 Agent — To receive service for foreign corporation 101, 103 To receive service for individual 93 Alaska — Entitled to all constitutional guaranties 200 Alien — Administrative officer may determine when person entering country is citizen or 195 Cannot claim judicial process before entry 190 [409] 4IO INDEX. Alien — Continued. page Congress may regulate admission of 190 Effect of departure from country 193 Entitled to due process 190 Exclusion of, by administrative officials due process 191 Exclusion of, held not reviewable 191 Rightfully admitted are protected as are citizens 191 Unlawful entry confers no rights 192 Unlawful entry not punishable infamously 193 Almshouses — Acquisition of property for, a public purpose 257 Amendments to Constitution of United States — Adoption of first ten 17 Resulting from Civil War 19 Scope of first ten 18 Whether first eight extend to inhabitants of acquired ter- ritory 197 Whether rights enumerated in first eight essential for due process ^0 Amendments to pleading — Right to amend denied 161 Amusement — Regulation of places of public 317 Animals — See Cattle; Dogs. Property in animals ferw naturce 330 Property in reclaimed animals 330 Whether killing diseased is a taking of property 310 Appeal — Dismissed for prison breach 1G8 Not essential to due process 81, 169, 211 Provision for, a local question SI Appearance — Special appearance 93 Effect of state statute regulating, in federal courts . . 93 note Statute regulating effect of 93 Voluntary gives jurisdiction 93 Voluntary validates divorce 123, 126 Apportionment of taxes — See Taxation. Appraisement — Of imports 242 INDEX. 411 Armoriei — PAOE Acquisition of property for, a public purpose 257 Arsenals — Acquisition of property for, a public purpose 257 Jurisdiction of United States over lands reserved for 134 Within states entitled to all constitutional guaranties 200 Arundel, Earl of ^ Attainder 65 Assessment — See Reassessment; Special Assessments. Of railroads by board of equalization 83, 84 Proper classification for in taxation 63 Assignment — Statute forbidding, to nonresidents 361 Assignment for benefit of creditors — Valid where made, valid everywhere 131 note Attachment — Against debtor's property is in rem 109 No personal judgment in without personal service 112 Right may be taken away if legal remedy remains 175 note Situs of debts for 121 When in rem or in personam Ill Attainder, bills of — As violating vested rights 146 History 64, 65 Prohibited by Constitution 67 Atterbury, Bisbop — Bill of pains and penalties against 67 Attorney at laxv^ — Disbarment and suspension 171 Rights in profession of 335 Attorneys' fees — Exacted of railroads as penalty for non-settlement of claims 350 Railroads required to pay, in suits for damage by fire 351 Validity of judgment confessed for in sister state 96 Anstin — On vested rights 142 note. 144 note, 156 note Bakers — Business of affected with public interest 316 note Statute limiting hours of employment 356 Banking associations — Statute repealing statute avoiding notes of 156 note 412 INDEX. Bankrupt and insolvent laws — PAGE In England discharge under, valid everywhere 132 note Judgments under both in rem and in personam 130 Judgment under in personam as discharge 131 Judgment under in rem as to status of debtor 131 Power of state to pass 132 Retrospective state insolvency laws 176 Beauty — Education of taste for as ground for taking property 261, 310 Bills of attainder — See Attainder, Bills of. Bills of pains and penalties — See Attainder, Bills of. Defined 64 Blackstone — On ex post facto laws 149 note Blood-feud 85 note Bonds — Issuance in excess of value as affecting rates 324 Situs of foreign held for taxation 119 Booms — Acquisition of property for, a public purpose 258 Bridge — Acquisition of property for, a public purpose 257 Railroad required to build 340 note Taxation of, by municipality 214 Taxation of, situated between states 219 note Business affected with public interest^ As practical monopoly 315 Instances of 315 Regulation in exercise of purely legislative powers 349 Sir Matthew Hale on 314 Subject to police regulation 314 Canals — Acquisition of property for, a public purpose 257 Caroline, Queen — Bill of pains and penalties against 67 Carriers, common ^ See Common Carbieb. Carriers of passengers — Made liable as insurers 342 INDEX. 413 Cattle — PAGE Liability of owners for injury to highway 186, 342 Straying on railroads protected 312 Cemeteries ^ Acquisition of property for, a public purpose 259, 264 Chattels — See Personal Pbopebty. Children — Employments prohibited to 347 Imprisonment of, in homes and reformatories 344 Rights of regulated in their own interests 344 Citizen — Corporation is not 190 Rights of, and rights of alien 190 Right of, to resort to federal courts 95 Civil cases — • Right to jury trial in 162 Civil damage acts — Constitutionality of 343 note Classification — Must be based on real difference 63 Not prohibited by due process 62, 63 Of subjects of taxation 210, 211 Under the police power 311 Clergyman — Rights in profession of 335 Cloud on title — See Title. Color blindness — Railroads to bear expense of examination of engineers for. . 340 Combinations in restraint of trade — See MoxopoLiES and Combixations. Comity — See Foreign Corporations. As applied to judgment in bankruptcy 131 Situs of debts dependent on 121 Commerce — See Interstate Commerce. Regulation of belongs to national government 304 United States may condemn land for purposes of 285 414 INDEX. Common carrier— faoe See Railkoads. Business of aflfected with public interest 316 Statute making carrier of passengers an insurer 342 Compensation — See Eminent Domain; Paramount Rights of State; Police Power. Condemnation — See Eminent Domain. Con£rmatio cartarum 6 Confiscatory legislation — See Attainder, Bills of; Ex Post Facto Laws; For- feiture. In civil cases, violates due process 68 Opposed to due process 64 Conflict of laws — See Situs. Congress — Legislative powers under Fourteenth Amendment 42-47 Consequential damage — Denial of right to, no denial of due process 295 Destruction of access to land, as 293 Constitution of United States ^ Whether it follows the tiag 197 note Construction and interpretation — By state courts — Errors and irregularities in construction 40 Of meaning of state constitution and statutes final. .37, 38 On matters of procedure usually a local question. . .37, 40 On presence of due process, reviewable 37 E.xisting laws a part of contract 152 Grant of eminent domain limited to necessity of case 277 Provision for " hearing " construed 242 Retrospective construction avoided 154 Constructive service — See Process, Service of. Contempt — Notice and hearing essential in indirect 170 Notice and hearing not essential in direct 169 Power of courts to punish 169 Proceedings to punish for 169 Striking out defendant's answer as punishment for 170 Summary process against 170 INDEX. 415 Contingency — P^°^ Distinguished from vested right 157 Contracts — See Impairment of Obligation of Contbacts. State may not regulate extraterritorial contracts 351 Cooley, Judge Thomas M.* — On vested rights ^'^^ Corporations — See Foreign Cq-eporations; Master and Servant; Process, Service of; Railroads. Are not citizens 1^" Are persons under the Fourteenth Amendment 189 Enforcement from gwost-public, of duty common to all citizens 350 Grants to, protected by Federal Constitution 151 Reservation of right to repeal charter 332 Taxation of 223 Costs — Confession of judgment for, on judgment-note 96 Imposed as penalty for malicious prosecution 179 Imposed for nonpayment of taxes 233 Imposed on railroads as penalty for fire 351 Council — See King's Council. County seats — Passenger trains required to stop at 316 note Court houses — Acquisition of property for, a public purpose 257 Courts — See Tribunal. Crimes and penalties — See Procedure. Criminal laws not extraterritorial 133 Seeming exceptions to rule — Exclusive jurisdiction reserved to United States.. 134 Extraterritorial crime in fraud of state laws 136 Extraterritorial crime offense against sovereignty of state 135 Extraterritorial crime taking effect In state 135 Foreign penal laws not enforced 136 1 00 Jurisdiction as to Right of person accused of felony to be present at trial 58, 165, 167 Right to jury trial in criminal cases 163 4l6 INDEX. Cromwell — page Attainted after death 66 note Curative acts — Cannot affect vested rights of third parties 158 Validity of 156, 158 Cnstom lionses — Acquisition of property for, a public purpose 257 Dam — Maintenance of as nuisance 23 Damage — Requirement of compensation when property " damaged " . . 295 Dangerous employments — See Police Power. Dangerous substances — Traffic in regulated 346 Debt — See Situs. Situs of special and simple distinguished 121 Declaration of Independence — Enumeration of inalienable rights in 138 Deeds — Presumption from 180, 182 Defamation — In pleadings held privileged 161 Defense — Right to present not denied where none is asserted 161 Departments of government — See Separation of Governmental Powers. Deposition — Of absent witness held admissible 161 Depots — See Railroads. Acquisition of property for, a public purpose 258 Despencers — Attainder of 65 Dickinson — On ex post facto laws 149 Dike — Acquisition of property for, a public purpose 259 Consequential damage from construction of 293 Discretion — Exercise of by administrative officials 72, 366 INDEX. 417 Oiscrimination — PAGE See Classification. Distributive justice 51 note District of Columbia — Entitled to all oonstitutional guaranties 200 Ditch — Over another's land to obtain water, whether public purpose. 266 Divorce decrees — Douiicil of parties determines jurisdiction 122 In state of fraudulent domicil 122 In state where both parties domiciled 122, 126 In state where neither party domiciled 122 In state where one party domiciled 123, 127 Results of Atherton v. Atherton 129 Results of Haddock v. Haddock iv Validity of decree on constructive service as against nonresident 127-130 Whether in rem or in personam 122 Dogs — Property rights in 330 Domicil — See Divorce Decrees. When wife may acquire separate 123 Dower — Expectancy of not vested 158 Drainage — Acquisition of property in cities for, a public purpose 259 As involving eminent domain and police power 205 Constitutionality of acts condemning property for 265 Druggists — Double license required from, for sale of spirits 364 Due process of laiv — See Equality and Generality of Laws; Jurisdic- tion; Law of the Land; Persons Protected by Due Process; States; United States. Absorbs other conceptions 16, 49 Analogous phrases in early writs 1 note Becomes fundamental part of American constitutional law 3, 17 Definition and description 1 By Sir Edward Coke 15 Emphasizing absence of arbitrary caprice 51 Emphasizing necessity of jurisdiction 52 27 4l8 INDEX. Due process of law — Continued. PAOB Definition and description — Continued. Emphasizing necessity of orderly procedure 51 In Parliamentary debates 15 Webster's definition 49-51 Different in the several states 38 Earliest uses of phrases 1 note, 65 Elements and requisites — Appeal not essential to 81 Compensation for property condemned essential 279 Depend on subject-matter involved 59 Exclude arbitrary exercise of power 61 Judge acting in his own case 57, 58 Judicial process not essential 52 Jury trial is not essential 53, 162, 233, 371 Equivalent phrases in state constitutions 23 Identity of under Fifth and Fourteenth Amendments as- sumed 35 In Fifth Amendment of Federal Constitution 17 In Fifth and Fourteenth Amendments compared 31, 32 In fourteenth century statutes 8-10 In various legal systems 2 Presence of, presents federal question under Fourteenth Amendment 37 Scope of guaranty — In America restricts all departments of govern- ment 26 In England nmnicipalities restricted by 25 In England Parliament not restricted by 25 In England restricts king and executive 20-24 Tests of presence — By gradual process of inclusion and exclusion 56 Conformity to established usages 53-56 Too narrow as test 54 Conformity with fundamental principles 56-60 Easements — Subject to eminent domain 283 Elevators, grain — See Grain Elevators Emblems — Regulation of use of state emblems 333 Eminent domain — See Necessity; Paramount Rights of State; Tak- ing OF Property. A sovereign power 253 INDEX. 4^9 Eminent domain — Co /i' Question of lunacy determined by administrative officials.. 163 Rights of, regulated in their own interests 344 Lynching — Of prisoner in federal custody as denial of due process. . . .44 note Of prisoner in state custody as denial of due process 44-48 432 INDEX. Magna Carta — PAGE Chapter 39 of, 17 John 1215 — Contents of, and additional provisions in reissues 5 In fourteenth century statutes 8-10 Numbering of, in reissues of charter 4 note Quoted 3 Traditional interpretation of 6, 8 True meaning of 5 History -t Rights of property enumerated in 138 note Malicious prosecution — Statutes allowing jur\' to find prosecution malicious 179 Statutes allowing jury to fix prosecutor with costs 179 Mandamus — Hearing enforced by 73 Right may be taken away if legal remedy remains 175 note Market quotations — Business of furnishing as affected with public interest 317 Markets — Acquisition of property for public, a public purpose 259 Keeping of, regulated 347 note Marriage — As contract and as status 123 Martial lav? — Declared to violate law of the land in Petition of Right. ... 13 Master and servant — See Railroads. Fellow-servant rule abolished as to railroads 312, 342 Statute compelling corporations to pay servants at stated times 355 Statute forbidding certain corporations to fine servants .... 355 Statute forbidding certain corporations to withhold wages. 355 Statute forbidding corporations to maintain stores for em- ployees 355 Statute forbidding corporations to receive assignments of future wages 355 Statute forbidding payment by corporations except in money 355 Statute limiting hours of employment of bakers 356 Statute protecting employees held unconstitutional as re- straining 355 Statute requiring miners to be paid by weight of coal 356 INDEX. 433 BCaxiin — page Damnum absque injuria 293, 338 King can do no wrong 24 note Mobilia sequuntur personam 120, 222, 223 Salu^ populi est suprema lex 203, 205 Sic utere tuo ut alienum non Iwdas 203 Suum cuique tribuere 2 note, 51 note Meclianics' lien — Not an interference with freedom of contract 359 Remedy on, changed 175 note Medicine — See Physician. Mileage — As basis of taxation 225 Military authority — Acts committed under 162 Milk — Traffic in, regulated 347 Mills — Business of conducting, as affected with public interest 316 Wliether construction of, under mill acts, a public purpose. 264 Mines — Administrative officials to classify for inspection 368 Expense of inspection imposed on owners 340 Inspection of, by administrative officials 371 Statute regulating payment of miners 356 Temporary interruption in use of 293 Ministerial o£S.cials — See Administbative Officers. Mobilia sequuntur personam 118 Maxim a fiction 120 Money — Whether subject to eminent domain 283 note Monition — In proceeding in rem 110 Monopolies and combinations — Defined 357, 358 Regulation of, under police power 357 Montesquieu — Theorv of separation of governmental powers due to 69 note 28 434 INDEX. Mortgages — PAGE See FoEECLOstrnE. Situs of 121 note Taxation of lands under 219 Taxation of, where mortgagee is nonresident 220 Mortimer, £arl of — Attainder 65 Municipal corporations — Constitutional provisions read into grant of power to 82 Exercise of police power by 303 Exercise of powers limited by due process 60 Existence of nuisance a jurisdictional fact 373 Imposing cost of shifting gas main on company furnishing gas 341 In England restrained by due process 17, 25 Legislature may deprive of taxing power 212 Power of taxation delegated to 212 Power to abate nuisance delegated to 373 Regulation of prostitution by 338 Right to erect water works 332 Taxation of property annexed to 213 Natural gas — Property in 330 Natural justice — See Law of Xaturk. Natural price — Mediaeval theory of 316 note Navigable ixraters — Extent of riparian rights in, depends on local law 285 Navigation — United States may take lands for purposes of 283 Navy yards — Acquisition of property for, a public purpose 257 Necessity — In eminent domain — Circumstantial, how far legislative or political question.. 273 Courts may review legislative decision 276 Decision of circumstantial necessity may involve con- fiscation 275 Essential for taking property 272 Intrinsic a legislative question 272 Intrinsic and circumstantial 272 INDEX. 435 Necessity — Continued. PAGE In eminent domain — Continued. Legislative delegation of power to decide 274 Legislature acting directlj^ may decide finally 274 Only reasonable, not absolute, is essential 277 Negligence — Of duties imposed for public protection punished 313' Statutes creating presumption of 185, 187 Negro race — Rights under the Constitution 20, 21, 22 Netps agency — As affected with public interest 317 Nolle prosequi — Entry of on certain counts 168 Northxrest Territory, ordinance for government of ... 23 note Provision in, protecting contracts 148 Who author of clause protecting contracts in 148 note Notice — See Notice and Hearing. Legislature may prescribe length of 77 Must be reasonable 77 Purpose of 78 Reasonableness of, a federal question 39 Statute requiring five days for nonresidents 79 Time and place of 78 Notice and hearing — See Administrative Officers; Eminent Domain; Jurisdiction; Police Power; Taxation. Dispensed with in certain cases 80, 371 Essential to due process or law of land 73, 74, 76, 82 Extent of in cases of aliens 191 In proceedings for contempt SO, 169, 170 Must be adapted to the case 79, 238 Must be required, not matter of grace 82 Personal presence not generally essential to 77 Postponed in cases of necessity 372 Provision for may be express or implied 82 Required by common law 75 Required by international law 75 Required by law of nature 73 What is essential to constitute 76 436 INDEX. Nuisance — page Acquisition of property for abatement of, a public purpose. 259 Existence of, is jurisdictional, when abated by local au- thorities 373 Property destroyed as, in advance of notice and hearing. . . . 373 Obligation of contracts — See Impairment of Obligation of Contracts. Judicial definitions of 149, 150 Phrase found in Roman law 149 Phrase in Constitution attributed to Wilson 149 Taxation of foreign-held bonds held impairment of 119, 120 Occupation tax — Made lien on property 235 On hiring persons to labor outside the state 313 Office — As property 333 Oleomargarine — Statutes prohibiting and regulating traffic in 348 Operating expenses — Reckless, as affecting rates 324 Opportunity to defend — See Notice and Hearing. Options — Dealing m regulated 346 Ordinance — Regulation of prostitution by 338 Taxing, provision for notice in 82 Paramount rights of state — Must be exercised in accordance with due process 206 Private rights must yield to 201 Taxation, eminent domain and police power contrasted ..... 201 What are 201 Park — Acquisition of property for, a public purpose 260, 288 Regulation of right to speak in 329 Parliament — Omnipotence of 26 note, 29 Partition — Piocrpilinp' for is in rem 109, 113 Partnerslj.ip — See Process, Service of. INDEX. 437 Pension — PAGE Statute creating fund for pensioning policemen 328 Per legem terrae — See Law of the Land. Per legem terrce 6 note, 1 5, 25 Permits — See License. Perpetuities and monopolies proMblted 62 Personal property — See Situs. Whether proceeding in rem binds title to 115 Persons protected by due process — See Corporations. Aliens as 190 Due process a right of all 189 Inhabitants of acquired territory 197 Petition of Right 13 Petroleum — Property in 330 Physician — Examination and license of, regulated 347 Power of state medical board over qualifications of 1G3 Rights in profession of 335 Statutory presumption as to character of, applied retro- spectively 183 Pier — Consequential damage from building 293 Pleading — See Amendments to Pleading ; Supplementary Plead- ings. Included in procedure 159 Policemen — Statute reserving part of salary for pensions 328 Police power — See Business Affected with Public Interest; Free- dom OF Contract; License; Regulation of Rates; Taking of Property. Administrative officers to carry out scheme of regulation under 303, 365 Classification under 311 Business properly regulated though other not 312 Harmless occupations pursued in a dangerous manner. . 313 438 INDEX. Police power — Continued. PAGE Classification under — Continued. Similar employments distinguished by tendencies 313 Specially dangerous employments regulated 312 Compensation not required 203, 303 Defined and described 201 note, 300 Contracted with other paramount powers of state 203 Strict, distinguished from legislative power 301 Delegation of to municipalities 303 Deprivation of liberty under 343 Freedom of contract and of business regulated 345 In interest of public morals, health, and safety. . . .300, 345 In interest of public welfare 343, 357 In order to prevent fraud 347 In order to prevent oppression 353 Deprivation of property under 328 Confiscation or distinction of property as penalty 337 Consequential damages from police regulation 338 Enjoyment of property limited 336 Imposition of expenses incident to police regulation .... 339 New duties and liabilities created 342 Private rights must be involved 328 Profession or office as property 333 Direct legislative act under, is due process 366 Legislature exercises 300 Not extraterritorial 304 Notice and hearing — Application of police regulation to circumstances gen- erally requires 370 Dispensed with when necessary under statute devolving discretion on executive 371 Jury trial not essential to 371 Legislature may act directly without 319 Postponed in cases of necessity 372 Eight to destroy before hearing limited to cases of necessity 375 Value of property destroyed as aflFecting necessity. . 375 Right to destroy before hearing not admitted in some states 377 Reasonableness of exercise — An essential of police regulation 306 As determining between police power and eminent domain 206, 309 Primarily for legislature, ultimately for court 306 Required both in general and local regulation 308 Tests of, stated 307 INDEX. 439 Police potrer — Continued. page Separation of governmental powers — Carrying out police regulation permitted to executive. . 365 Judicial duties required of administrative officials .... 366 Whether a delegation of legislative duties 366 Matters of detail delegated to administrative officials.. 366 State legislation under — Fourteenth Amendment 305 Must not trench on federal powers 303 Obligation of contracts 304 Regulation of commerce 304 Whether action under is taking of property 204 Policy slips — Possession by officer of 63 Porto Rico — Status of inhabitants of 192 note Possession — Presumptions from 180 Possibility — Distinguished from vested right 157 Postal laws — Ruling of postmaster-general on addressee's right to mail matter 369 Ruling of postmaster-general on mailable matter 369 Post offices — Acquisition of property for, a public purpose 257 Practice — Included in procedure 159 Prerogative of king — To imprison by special mandate 11, 13 Challenged by Parliament as contrary to due process . . 12 To imprison on writs quihusdam cert is de causis 11 Presumptions — Legislature may create prima facie 180 Must be naturally connected with facts 181 None of denial of fundamental rights 160 Of negligence from certain acts 185, 187 On questions of contract state may create conclusive 184 Whether legislature may create conclusive 181 Private international law — See Situs. Private roads — Whether construction of, a public purpose 264 440 INDEX. PriTilege — PAGE Defamatory statements in pleadings held privileged 161 Probate — Proceedings for, held in rem 116 Procedure — Defined 159 Includes pleading, practice, and evidence 159 In criminal cases 164 Entry of plea involves due process 165 Instances where due process not involved 168 Jurisdictional questions involve due process 165 Presence in appellate court not essential 166 Right of accused to be present 165 Whether presence essential under Fourteenth Amend- ment 167 Laws affecting heirs ex post facto 147 No presumption of denial of rights . 160 No vested rights in 160 Within control of state 160 Proceedings in rem — All proceedings either in rem or in personam, 112 Conception extended to proceedings not begun by seizure. 112, 116 History of, against inanimate objects 113 note Number of persons afi'ected suggested as test 117 Political necessity as determining whether proceeding is.. . 116 Strictly in rem are against property itself 108 Process, service of — See FoREiGx Corporations. Agreement that nonresident stockholder bound by, on corpo- ration 97-99 Constructive — As validating suit determining title 115 On foreign corporations 97 Effect of nonresident's prior consent to — As estopping denial of state court's jurisdiction 95 Doctrine under Federal Constitution 94 General doctrine of international law 93, 94 What amounts to consent 94 note Nonresident designating agent to receive 93 On partnership, efl'ect on nonresident partner 99, 100 Personal — Essential to judgment in personam 89, 92 Outside of state gives no jurisdiction 89 INDEX. 441 Profession — page As property 333 Property — Arbitrary transfer from one to another not due process. ... 170 Defined 141 Includes right to freedom of contract 141 Includes right to labor 141 In profession and offices 333 Is nomen generalissimum 283 Laws limiting enjoyment of 336 Of states subject to legislative regulation 329 Owners of, liable for injuries from gambling on 343 Private rights subordinate to state welfare 337 Right of, distinguished from thing possessed 141 Right of, protected by due process 155 Subject to lien for penalties for unlawful use 337 Use of, for advertising 310 Within right of eminent domain 283 Prostitution — Regulation of 338, 346 Public amusement — Regulation of places of 317 Publication — In proceeding in rem 110 Public interest, business affected i^itb — See Business Affected with Public Interest. Public morals, bealtb, and safety — Regulation must bear real relation to 345 Public office — No vested right in 333 State decision of right to state office raises no federal ques- tion 335 Public policy — May determine whether freedom of contract abridged 361 Public proclamation — In proceeding in rem 110 Public purpose — See Taxation. In taxation and eminent domain distinguished 228 Prof. J. B. Thayer on legislative power to determine 256 note 442 INDEX. Quarantine — PAGE Expense incident to, imposed on ships 339 State regulation of 347 Railroad commission — Expenses of, imposed on railroad 340 Ruling of state, held final 370 Railroads — See Assessment; Common Cabeieb; Regulation of Rates; Street Railways. Acquisition of property for, a public purpose 257 Business of, affected with public interest 316 Classified for assessment in taxation 63 Deprived of benefit of fellow-servant rule 342 Expense of safeguards for, imposed on 340 Liability for allowing Johnson grass to mature 342 Mileage as basis of taxation 224 Must bear expenses of physicaj examination of engineers . . . 340 Passenger trains required to stop at county seats 316 note Reasonableness of rates, determined by effect on whole line. 322 Required to build bridge 340 note Required to eliminate grade crossings 340 note Required to erect depots 340 note Required to fence right of way 342 Required to maintain viaduct 340 note Required to make improvements at their own cost 340 Required to pay employees on discharge 350 Required to stop trains in cities 340 note Statutes penalizing failure to settle small claims 350 Steam locomotives in streets prohibited 203 note Train connections between, enforced 340 note Rates — Regulation of, see Regulation of Rates. Real property — Proceeding to quiet title is in rem 114, 115 Reassessment — Sufficiency of notice of 77, 78 Redemption from execution — See Execution. Reformatories — Imprisonment of young criminals in 344 Refrigerator cars — Average number in state as basis of taxation 225 INDEX. 443 Registration — page Preriuuiptions from, of deeds 180 Regulation of rates — By court of visitation 164 Courts may set aside unreasonable rates 320 Does not include power to confiscate 319 Legislative power to regulate 318 Reasonableness of rates — Arbitrary discrimination prohibited 327 As affected by nature of business 325 As to existing rates, a legislative question 319 Elements of reasonableness 321 Elements to be considered in estimating value 323 Fair return as test 324 Interest of mortgage bondholders to be considered 322 Interest of public to be considered 324 Judicial question when delegated by legislation 319 Of railroad determined by effect on entire line 322 Sufficiency of allegation to raise question 322 Value of property employed to be considered 322 Where business is in the nature of private enterprise. . 326 Where business is one which state might perform 325 What amounts to notice and hearing in proceedings for .... 378 Remedies — Given by statute as against prior rights not vested 161 May be changed if effective remedy left 174 No vested right in particular remedies 160 Power of legislature over 174 State may provide additional 175 Repair shops — Acquisition of property for, a public purpose 258 Retrospective lamrs — See Vested Rights. Imposing penalties for nonpayment of taxes 234 Not favored 153-155 Reversion — Possibility of reversion not vested 157 Revetments — Consequential damage from construction of 293 'Re-vievr — See Appeal; Notice and Hearing. Right of action — Attaching conditions to 178 Statutory regulation of existing 178 444 INDEX. Right of way— page Grain elevators and warehouses on 351 Railroads required to fence 342 Rights — See Inalienable Rights; Vested Rights; Paeamount Rights of State. Fundamental, what are 153, 155 Rights of man — Conservatism of courts in declaring 57 Rights protected hy due process — See Vested Rights. Life, liberty, and property 138 Classified as natural and inalienable 138 Enumeration representative only 139 Recognized, not conferred by constitution 138 Subject to paramount state authority 141 Riparian oT^ner — Dam a violation of rights of 23 Riparian rights — See Kavigable Watebs. Rnle to shoTir cause — Why judgment not paid is due process 77 Sailors — Rights of, subject to state regulation 353 Sale nnder ezecntion — See Execution. Salisbury, Countess of — Attainder 66 Sanity — See Lunatics. School districts — Property riglits of 332 Schools, public — Acquisition of property for, a public purpose 257 Seal — Regulation of use of state seal 333 Seneca — Lines from, embody principle of due process 2 Sentence — Before de facto judge 188 INDEX. 445 Sentence, exeontion of — page; Appellate court fixing time of 166, 169 note By electricity 169 note Depends on local law 169 Governor fixing time of 169 note Separation of governmental poxrers 68-73 Courts reluctant to avoid statutes for failure in 70 Derived from Montesquieu 69 note Difliculty of demarkation 69 Judicial and legislative functions committed to same body. . 370 Judicial functions exercised by executive oIHcials 71-73 Question generally of local law 71 Required by constitution 69 Theory of, criticised 69 note Service of process — See Process, Service of. Servitudes — Additional in property condemned 284 Seymour, Lord Admiral — Attainder of 67 Sliips — Situs for taxation 218 note Sister state judgments — See Judgments. Situs — For taxation — Of corporate stock 120 Of debts 221 Of incorporeal rigbts 218 Of intangible personal property 119 Of intangible property 221 Of real property and tangible personal property 218 Of tangible personal property moved from state to state 220, 225 Of intangible personal property 119 Of intangible personal property for various purposes 121 Of personal property 118 Slander — See Defamation. Sleeping-car companies — Mileage as basis of taxation 225 Soda-Axrater fountain — Dispensing drinks from, as affected with public interest... 317 446 INDEX. Special administrator— FAOE Settlement with regular representative without giving bond. 161 Special assessments — According to benefits 247 note Boundaries of taxing district, question for legislature 247 By area -■i'' note By front- foot rule 247 note By value of property 247 note Legislative delegation of power to impose 248 Legislative functions in levying 246 Levy of, depends on taxing power 212 Manner of apportionment, for legislature 247 Necessity of hearing by local authorities 248 Necessity of, question for legislature 247 Notice of, by implication in ordinance 82 Power of legislature to fix absolute rule of apportionment.. 248 Special mandate — See Prerogative of King. Spur tracks — Question of necessity of 277 Whether construction of, public purpose 269 Star chamljer — Court of 7, 12 States — Contracts by, v.ithin contract clause of constitution 151 Duty to provide due process under Fourteenth Amendment. 36 How far national government concerned with due process by. 35 Subdivision of, into territorial units 332 Station, railroad — See Depots; Railroads. Statns — Plight of state to determine, of citizen 122, 127 Statnte of frauds — As police regulation 348 Statnte of limitation — See Limitation of Actions. Stay laxirs — Validity of 176 Stock — Situs of, see Situs. Taxation of corporate 224 Stockholders — See Process, Service of. INDEX. 447 stock yards— ^^GE Acquisition of property for, a public purpose 258 As affected with public interest 317 Store-order acts — Constitutionality of 354 Streams — Statute requiring landowner to clean 70 Street railw^ays — Discrimination in taxing 211, 212 New York law taxing franchises of 227 Submission of case — Motion to set aside denied 161 Succession — See Administration. Heir's right of, not vested 157 Succession taxes — Operates on devolution, not on property 222 Summary proceedings — See Contempt; Taxation. Sunday laxFS — Constitutionality of 357 Supplementary pleadings — Right to file denied 161 Suretyship — Judgment against principal enforceable against surety.... 96 Survivorship — See Joint Tenants. Taking of property — Any deprivation of use is 292 Both eminent domain and police power may be involved. . . . 205 By damming water 23 Extent of limitation of use determines whether there is ... . 309 Injury purely consequential is not 292 May be taken for certain uses only, leaving ownership other- wise undisturbed 271 Necessary destruction not a taking 205 Penal consequences for unlawful use not a taking 204 Physical invasion is 292 Police power does not require 303 Proceeding not affecting owner's right is not 294 What is 292 Whether destruction of property a taking 310 448 INDEX. Taking of property — Continued. page Whether regulation of spite fences is 309 Whole lot where right of way sufficient 276 note Taxation — See Exemptions from Taxation; Occupation Tax; Special Assessments; Situs. Assessment — Discrimination in provision for review 211 Legislature provides for 210 Mileage rule as basis for 224 Petitioner for tax estopped to question 252 Review of proceedings not essential 211 Collection of taxes, legislature provides for 210 Delegation of power of — Not to private corporations 212 To municipal corporations 212 Different jurisdictions may tax same property 223 Discrimination in levying 215 Equality of, not guaranteed by Fourteenth Amendment. ... 211 Equating taxes to benefits 202, 214 note Includes power of apportionment 209 Injunction to stay collection 1"8 Involves power to destroy 208 note Legislature may classify subject-matter of 210 Limitation of power of — By due process 215 Must be for public purposes 217 Only persons or things in jurisdiction may be taxed. . . 217 State may not tax interstate commerce 217 State or nation may not tax agencies of other 217 Notice and hearing — Assessment by executive official requires 237 By board of equalization sufficient 241 By executive and judicial officers 236 Essentials of 241 Implication of, from provision for " suit " 245 In statutes imposing general taxes 238 In statutes imposing special taxes 238 Not required where legislature acts directly 235 On appeal from assessment sufficient 241 On legality of tax includes assessment 245 Presence of property owner not essential 241 Required when legislature delegates decision to others. 236 Specific and ad valorem taxes distinguished 230 rote Statute levying tax may provide notice 237 INDEX. 449 Taxation — Continued. PAGE Power of, legislative, not judicial 209 Proceeding for, against nonresident is in rem 114 Public purpose of — A question of general jurisprudence 230 Courts may supervise legislative decision 229 Essential for taxation 228 Legislature decides what is 229 With reference to local or general taxes 231 Security against abuse of power of 208 Selection of subject-matter 215 Subject-matters to which power extends 209 Summary proceedings for collection are due process.. .232, 234 Taxing districts, determination of, matter of state law.. . . 213 Taxpayer receives value in protection 202 Valuation of property for — Elements of value of corporate 224 Left to taxing officers 246 May not include chattels beyond state 221 Of property lying in different jurisdiction 223 Property outside state must be excluded 224 Tax deeds — Presumptions from 180, 182 Tea, inspection of — By administrative officials is due process 369, 372 Telegraph — See Regulation of Rates. Acquisition of property for, a public purpose 257 As affected with public interest 317 Mileage as basis of taxation 225 Telephone — Acquisition of property for, a public purpose 257 As affected with public interest 317 Tenement honses — Expense of improvements Imposed on owners 340 Territory — Incorporated in United States 197 Merely annexed 198 What is, entitled to all constitutional guaranties 199 Territory acquired by Spanish 'war — Status of inhabitants 197 note Thayer, Prof. J. B. — On judicial and legislative functions in exercising para- mount powers of government 256 29 450 INDEX. Title- P^«^ Action to try, of land is in rem 113 Proceeding to quiet, is in rem 114 Toll* — Imposed for use of improved waterway 340 Torrens Act — Constitutionality of H*^ Tort — Judgment in, not a vested right 162 Trades — Unsanitary and ofiensive trades regulated 347 Trial — See Notice and Hearing; Hearing; Procedure; Tri- bunal. Before de facto judge 168 Tribunal — Character of, usually matter of local law 162-164 Truck Acts — Constitutionality of 354 Trusts — See Monopolies and Combinations. Turnpikes — • Acquisition of property for, a public purpose 257 Rates prescribed for 321 United States — Supervisory power of, as to due process under Fourteenth Amendment 36 Vaccination — State may prescribe compulsory 343 Vested rights — See Curative Acts; Impairment of Obligation of Contracts. Affected by retrospective laws 145 As limiting scope of legislative power 328 Austin on 142 note, 144 note, 156 Laws impairing, not favored 153 Maxims of Roman law condemning Impairment of 153 Mere expectancy, possibility,, or contingency is not 157 None in procedure 160 Protection of, by constitutional clauses — By clause forbidding bills of attainder 146 By clause forbidding ex post facto laws .... 146 By clause forbidding impairing obligation of contracts. 148 By guaranty of due process 153 INDEX. 451 Vested rights — Continued. page Statute of descent and distributions confers no 157 note What are 142-145, 155 When arising from contract protected by contract clause in constitution 151 Viaduct — Railroad required to maintain 340 note IVaiver — Of objection to juror as alien 168 Of right to hearing 73 Whether defects in indictment waived, question for state courts 168 Warelionseiiien — Business of, affected with public interest 316 Warehouses — On railroad rights of way 351 Water — Companies to supply, as affected with public interest 317 Water front — Temporary exclusion from, held consequential 293 Water rates — Fixed by local authorities 320 Water rents — Additional remedy to enforce, provided 175 Water supply company — Regulation of rates of 323 note Water supply for cities — Acquisition of property for, a public purpose 259 W^aterTirays — Administrative officials to fix tolls for 366 Improvements in, defrayed by tolls 340 W^aterworks — Municipality empowered to erect 332 W^ebster, Daniel — Definition of due process 49-51 W^harfingers — Business of, aflfected with public interest 316 "Wharves — Acquisition of property for, a public purpose 258 W^ills — See Probate. IVrit qnibusdam certis de cansis <~ See Prerogative of King. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. KC D Lu or. DEC Ugy^ ti wwmm ii