73 ing to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding on notice and hearing.72 The term under consideration has also been defined to mean a trial, or proceedings according to the course and usage of the common law." This latter definition, however, is entirely too limited, as due process may consist of process prescribed by statute and unknown to the common law; and the term means rather law prescribed and enforced in accordance with certain fundamental principles for the protection of private rights which our system of jurisprudence has always recognized.75 74 not be deprived of life, liberty, or property with- Me. State v. Learned, 47 Me. 426. N. Y.-Taylor v. Porter, 4 Hill 140, 40 AmD 274. N. C.-Hoke v. Henderson, 15 N. C. 74. U. S.-Twining v. New Jersey, 565. Il-Klafter v. State Examiners of 995. Kan. Gilchrist v. Schmidling, 12 V. Bunbury, 30 Mich.-Weimer Oh-Adler v. Whitbeck, 44 Oh. St. Tenn.-Nance v. O. K. Houck Piano [957] B. Constitutional Guaranty in General-1. Origin and History. That a person shall prudence for the security of private rights." Dewey v. Des Moines, 101 Iowa 416, 429, 70 NW 605. (2) "Some legal procedure in which the person proceeded against, if he is to be concluded thereby, shall have an opportunity to defend himself." Doyle, Petitioner, 16 R. I. 537, 538, 18 A 159, 27 AmSR 759, 5 LRÁ 359. (3) "Such general legal forms and course of proceedings as were known either to the common law or as were generally recognized in this country at the time of the adoption of the constitution." Gibson v. Mason, 5 Nev. 283, 302. (4) "The ordinary judicial proceedings recognized by law, and provided for determining the rights of property and for subjecting the citizen to deprivation of his liberty for violation of the law." Eikenberry v. Edwards, 67 Iowa 619, 626, 25 NW 832, 56 AmR 360. (5) The right of the person affected thereby to be present before the tribunal which pronounces judgment on the question of life, liberty, or property, and to have the right of controverting by proof every mate- S. C.-Kirk v. Aiken Bd. of Health, rial fact which bears on the question83 S. C. 372, 65 SE 387, 23 LRANS of right in the matter involved. 1188. Meyers v. Shields, 61 Fed. 713, 718; Ex'p. Murray, 35 Fed. 496, 497; Zeigler v. South, etc., Alabama R. Co., 58 Ala. 594, 599; McGavock v. Omaha, 40 Nebr. 64, 75, 58 NW 543. (6) "In the due course of legal proceedings, | according to those rules and forms which have been established for the protection of private rights." Westervelt v. Gregg, 12 N. Y. 202, 209, 62 AmD 160 [quot Ex p. Murray, 35 Fed. 496, 497; In re Ziebold, 23 Fed. 791, 792; In re Ah Lee, 5 Fed. 899, 906, 6 Sawy. 410; Wilson v. Baltimore, etc., R. Co., 5 Del. Ch. 524, 544; Burdick v. Peo.. 149 111. 600, 605, 36 NE 948, 41 AmSR 329, 24 LRA 152; State Bd. of Education v. Bakewell, 122 Ill. 339, 348, 10 NE 378; State v. Height, 117 Iowa 650, 655, 91 NW 935, 94 AmSR 323, 59 LRA 437; Foule v. Mann, 53 Iowa 42, 43, 3 NW 814; Louisville v. Cochran, 82 Ky. 15, 22; Stuart v. Palmer, 74 N. Y. 183, 191, 30 AmR 289; Campbell v. Evans, 45 N. Y. 356, 358; Rockwell v. Nearing, 35 N. Y. 302, 306; Peo. v. Leubischer, 34 App. Div. 577, 585, 54 NYS 869, 28 NYCivProc 265 [app dism 157 N. Y. 721, 53 NE 1130]; Matter of Fuller, 34 Misc. 750, 754, 70 NYS 1050 [rev on other grounds 62 App. Div. 428, 71 NYS 401; Brooks v. Tayntor, 17 Misc. 534, 539, 40 NYS 445; Burke v. Mechanics' Sav. Bank, 12 R. I. 513, 516; State v. Staten, 6 Coldw. (Tenn.) 233, 244; Jelly v. Dils, 27 W. Va. 267, 274; Peerce v. Adamson, 20 W. Va. 57, 59; White v. Crump, 19 W. Va. 583, 595; Peerce v. Kitzmiller, 19 W. Va. 564, 578]. 72. McGehee Due Process of Law p 1 [quot Frank v. State, 142 Ga. 741, 747, 83 SE 645, LRA1915D 817 (a cause célèbre)]. 73. Ill.-Citizens' Horse R. Co. v. Belleville, 47 Ill. A. 388 [rev on other grounds 152 Ill. 171, 38 NE 584, 26 LRA 681]. Iowa. Reed v. Wright, 2 Greene 15. Tex.-Mabee v. McDonald, 175 SW 676 [rev on other grounds 243 U. S. 90]. 'Were we now to declare this law unconstitutional, on the ground that it authorizes a judicial proceeding not according to the course of the common law,' we should run counter to the decisions of courts, of legislatures and constitutional conventions for the last half century. It is enough to know that the substantial rights of the party are protected by forms prescribed by law." Newcomb v. Smith, 2 Pinn. (Wis.) 131, 135, 1 Chandl. 71. "To hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians." Hurtado V. California, 110 U. S. 516, 529, 4 SCt 111, 28 L. ed. 232. 75. U. S.-Hurtado v. California, 110 U. S. 516, 4 SCt 292, 28 L. ed. 232; Anderson v. Messenger, 158 Fed. 250, 85 CCA 468. See also In re Ah Lee, 5 Fed. 899, 904, 6 Sawy. 410 (where the court said that the fourteenth amendment "forbids a state to act towards individuals in disregard of what are generally deemed fundamental principles. So far, then, it is a bulwark against local tyranny and oppression"). Cal. Hickman v. O'Neal, 10 Cal. 292. Iowa. Griswold College v. Daven- Miss Brown v. Levee Comrs., 50 N. D.-State v. Borstad. 27 N. D. Porto Rico 1037. Fifth "Consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government." Twining v. New Jersey, 211 U. S. 78, 101, 29 SCt 14, 53 L. ed. 97. 76. Stuart v. Palmer, 74 N. Y. 183, 30 AmR 289; Oakley v. Aspinwall, N. Y. 513 [rev 4 N. Y. Super. 7]. the "While this provision of amendment [XIV] is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government." Per Waite, C. J., in Munn v. Illinois, 94 U. S. 113, 123, 24 L. ed. 77. "It is a principle that lies at the foundation of all just government that no man shall be deprived of his life, liberty, or property without due process of law. Every disregard of this principle by courts, legislatures, or citizens tends directly towards distrust, insecurity, disorder, and anarchy." Burton v. Platter, 53 Fed. 901, 903, 4 CCA 95. 77. Magna Charta c 29 (translated from the original Latin as főllows: "No freeman shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers, or by the law of the land"); i Stubbs Const. Hist. Eng. p 577; Mabee v. McDonald, (Tex.) 175 SW 676, 679 [rev on other grounds 243 U. S. 90]. 78. Hurtado v. California, 110 U. S. 516, 4 SCt 111, 292, 28 L. ed. 232 (containing a valuable discussion); Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; In re Ziebold, 23 Fed. 791; In re Meador, 16 F. Cas. No. 9,375, 1 Abb. 317: Kalloch v. San Francisco Super. Ct., 56 Cal. 229; Eames v. Savage, 77 Me. 212, 52 AmR 751; Mabee v. McDonald, (Tex.) 175 SW 676 [rev on other grounds 243 U. S. 90] (which contains an extended discussion, collecting the authorities). [a] Early American guaranties.(1) "In the Declaration of Rights adopted by the Continental Congress in 1774, it is declared that the inhabitants of the Colonies are entitled 'by immutable laws of Nature, the principles of the English Constitution, and the several charters and compacts,' to certain rights enumerated, the fifth of which is the following, to wit: "That the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinity according without due process of law.'' 79 9781 80 This amendment, it is well settled, constitutes a restriction on the federal government only, and not on the states.8 [§ 959] b. Fourteenth Amendment. The fourteenth amendment provides: "Nor shall any State deprive any person of life, liberty, or property, without due process of law." 81 As clearly indicated by the language used, this amendment constitutes a limitation on the powers of the states.82 to the course of that law.' This probably shows how the provision in question was understood by the great lawyers of the Revolution. See Pitkin's United States, vol. 1, pp. 285, 286." State v. Beswick, 13 R. I. 211, 220, 43 AmR 26 (note by Durfee, C. J.). (2) In January, 1787, an act was passed in New York declaring the rights of the citizens of the state, and providing among other things that no person should be deprived of his property except by due process of law. Astor v. New York, 37 N. Y. Super. 539 [rev on other grounds 39 N. Y. Super. 120 (aff 62 N. Y. 580)]. 79. U. S. Const. Amendm. V. V. It adds nothing to the rights of one citizen against another, but simply furnishes a guaranty against any encroachment by the state on the fundamental rights which belong to every citizen.83 [1960] 3. State Constitutions. The constitutions of almost all the states contain a similar guaranty, either in the words of the fifth amendment above quoted or in words of the same import and meaning.84 Mass.-Com. v. Farmer, 218 Mass. 507, 106 NE 150; McDonald v. Com., 173 Mass. 322, 53 NE 874, 73 AmSR 293. Mich.-Weimer V. Bunbury, 30 Minn.-Mathison v. Minneapolis St. Miss.-Martin v. Dix, 52 Miss. 53, Mo.-State v. Gordon, 268 Mo. 713, 188 SW 160; State v. Parker Distilling Co., 237 Mo. 103, 139 SW 453; McGrew v. Missouri Pac. R. Co., 230 Mo. 496, 132 SW 1076; St. Louis v. Richeson, 76 Mo. 470; Clark v. Mitchell, 64 Mo. 564 [rev on other grounds 110 U. S. 633, 4 SCt 170, 28 L. ed. 2791; North Missouri R. Co. v. Maguire, 49 Mo. 490, 8 AmR 141 [aff 20 Wall. (U. S.) 46, 22 L. ed. 287]. N. Y.-Pratt Inst. v. New York, 99 N. C.-Phillips v. Postal Tel. Cable 80. U. S.-Hunter v. Pittsburgh, 207 U. S. 161, 28 SCt 40, 52 L. ed. 151 [aff 217 Pa. 227, 66 A 348, 120 AmSR 845]; Holden v. Hardy, 169 U. S. 366, 18 SCt 383, 42 L. ed. 780; Hallinger v. Davis, 146 U. S. 314, 13 SCt 105, 36 L. ed. 986; Davis Texas, 139 U. S. 651, 11 SCt 675, 35 L. ed. 300; Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31, 10 SCt 424, 33 L. ed. 801; Nashville, etc., R. Co. v. Alabama, 128 U. S. 96, 9 SCt 28, 32 L. ed. 352; Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 659; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Twitchell v. Pennsylvania, 7 Wall. 321, 19 L. ed. 223; Holmes v. Jennison, 14 Pet. 540, 614, 10 L. ed. 579, 618; Washington, etc., R. Co. v. Magruder, 198 Fed. 218; Quinby V. Cleveland, 191 Fed. 68; Watson v. St. Louis, etc., R. Co., 169 Fed. 942 [aff 223 U. S. 745, 32 SCt 533, 56 L. ed. 639]; St. Louis, etc., R. Co. v. Davis, 132 Fed. 629; Central of Georgia R. Co. v. Macon, 110 Fed. 865; In re Boggs, 45 Fed. 475; Ex p. Ulrich, 42 Fed. 587 [rev on other grounds 43 Fed. 661 (app dism 149 U. S. 789 mem, 13 SCt 1053 mem, 37 L. ed. 967 mem)]; Scott v. Toledo, 36 Fed. 385, 1 LRA 688; In re Mahon, 34 Fed. 525 [aff 127 U. S. 700, 8 SCt 1204, 32 L.verstein, 21 R. I. 500, 44 A 931; In re ed. 283]; Kansas v. Bradley, 26 Fed. 289; Santa Clara County v. Southern Pac. R. Co., 18 Fed. 385 [aff 118 U. S. 394, 6 SCt 1132, 30 L. ed. 118]; San Mateo County v. Southern Pac. R. Co., 13 Fed. 722, 8 Sawy. 238 [app dism 116 U. S. 138, 6 SCt 317, 29 L. ed. 589]; Griffing v. Gibb, 11 F. Cas. No. 5,819, McAll. 212. Cal.-Peo. v. Botkin, 9 Cal. A. 244, 98 P 861. Ga.-Griffin v. State, 142 Ga. 636, 83 SE 540, LRA1915C 716, AnnCas 1916C 80 [cert 15 Ga. A. 520, 83 SE 891]; Perdue v. State, 134 Ga. 300, 67 SE 810. Ida. In re Case, 20 Ida. 128, 116 P 1037. Ind. Bemis V. Guirl Drain. Co., 182 Ind. 36, 105 NE 496; Windfall City School Town v. Somerville, 181 Ind. 463, 104 NE 859, AnnCas1916D 661; Sinclair v. Gunzenhauser, 179 Ind. 78, 98 NE 37, 100 NE 376; Barrett v. State, 175 Ind. 112, 93 NE 543; Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 NE 229, 139 AmSR 389 [aff 42 Ind. A. 629, 86 NE 503]; Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 NE 1033; Barton v. Kimmerley, 165 Ind. 609, 76 NE 250, 112 AmSR 252. Iowa.-State v. Height. 117 Iowa 650. 91 NW 935, 94 AmSR 323, 59 LRA 437; Boyd v. Ellis, 11 Iowa 97. Kan. Meffert v. State Bd. of Medical Registration, etc., 66 Kan. 710, 72 P 247. 1 LRANS 811; State v. Majors, 16 Kan. 440. Oh.-Prescott v. State, 19 Oh. St. 184, 2 AmR 388. Pa.-Com. v. Gibbons, 9 Pa. Super. 527 [aff 200 Pa. 430, 50 A 248, 86 AmSR 719]. V. R. I.-East Shore Land Co. Peckham, 33 R. I. 541, 82 A 487; Gunn v. Union R. Co., 23 R. I. 289, 49 A 999; In re Poll Tax Collection, 21 R. I. 582, 44 A 805; Shaw v. Sil Fitzpatrick, 16 R. I. 60, 11 A 773. 536. Utah. In re Maxwell, 19 Utah 495, Va.-Com. v. Byrne, 20 Gratt. (61 Wash.-Leschi v. Terr., 1 Wash. T. 13. W. Va.-Peerce v. Kitzmiller, 19 [a] Cases contra.—(1) In Wil- simply 81. U. S. Const. Amendm. XIV L. ed. 588; Kiernan v. Multnomah Del-Caldwell v. Armour, 17 Del. 545, 43 A 517. Fla.-Dutton Phosphate Co. V. Priest, 67 Fla. 370, 65 S 282. Ind.-Cincinnati, etc., R. Co. v. McCullom, 183 Ind. 556, 109 NE 206; State v. Boswell, 104 Ind. 541, 4 NE 675. 470. Mo.-St. Louis v. Richeson, 76 Mo. 84. See constitutional provisions; and: Ala.-State v. Bush, 12 Ala. A. 309, 68 S 492. Const. (1819) art 1 §§ 10, 14 contained guaranties of "due course of law," which were construed as equivalent to "due process of law." Matter of Dorsey, 7 Port. 293, 329. . Ga. Frank v. State, 142 Ga. 741, 83 SE 645, LRA1915D 817. Ill-Sheldon v. Hoyne, 261 III. 222, 103 NE 1021; Chicago v. Wells, 236 III. 129, 86 NE 197, 127 AmSR 282, 23 LRANS 405. Ind.-Bemis v. Guirl Drain. Co.. 182 Ind. 36, 105 NE 496. Mich.-Peo. v. Dickerson, 164 Mich. 148, 129 NW 199, 33 LRANS 917. AnnCas1912B 688; Atty.-Gen. v. Jochim, 99 Mich. 358, 58 NW 611, 41 AmSR 606, 23 LRA 699. Nev. Persing v. Reno Stock Brokerage Co., 30 Nev. 342, 96 P 1054. Okl.-Ex p. Sullivan, 10 Okl. Cr. 465, 138 P 815, AnnCas1916A 719; McRae v. State, 8 Okl. Cr. 483, 129 P 71. Va.-Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626, 59 SE 476, 17 LRANS 324. See also Hurtado v. California, 110 U. S. 516, 4 SCt 111, 292, 28 L. ed. 232 (where the provisions of the first constitutions of the original thirteen states guaranteeing due process of law are set out). [a] New Jersey (1) The constitution does not contain an express guaranty of due process of law, or the law of the land. Abendroth v. New York El. R. Co., 54 N. Y. Super. 417 [aff 122 N. Y. 1. 25 NE 496, 19 AmSR 461, 11 LRA 634]. (2) But art 1 § 1 declares that among the inalienable privileges of men shall be that of "possessing and protecting property." As to this clause Chief Justice Beasley, in Maxwell v. Goetschius, 40 N. J. L. 383, 391, 29 AmR 242, said: "I understand by this that the property and rights of every man are put under judicial protection, so that he cannot be deprived of them except by the law of the land." [b] New York.-Const. art 1 § 1. provides: "No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless 1985 92 [12 C. J.] 1195 CONSTITUTIONAL LAW statute in force before such time.90 does not apply to the acts of individuals which The guaranty affect other individuals; and the word "process" as used in the guaranty refers to the state's own process and not to the process of another state or of the United States." The constitutional provision is not an inhibition of legislation but of acts without law;93 and the right of enjoyment of liberty or property is subject to legislative control, provided a substantial right is left.94 legislative proceedings due process of law requires conformity to the settled maxims of free governments, observance of constitutional restraints and requirements, and an omission to exercise powers appertaining to the judicial or executive departments;95 such an act as the legislature may, in the uncontrolled exercise of its power, think fit to pass is in no sense the process of law designated by the constitution.996 Extent of protection afforded. [§ 961] C. General Nature and Scope of Constitutional Guaranty. in many cases so trifling have been the questions So numerous, so varied, and raised as to the protection afforded by the guaranty of due process of law, that objections founded on it have been judicially last resorts of desperate cases. characterized as "those the guaranty is to prevent governmental encroachThe purpose of ment against the life, liberty, and property of individuals, 86 to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice,87 and to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial modes of judicial proceedure.88 While the guaranty and conviction by the ordinary confers no new rights on the citizen, but only secures those recognized as belonging to him when it was incorporated in the constitution,89 yet the fourteenth amendment applies to any taking of property after its adoption, although under a by the law of the land, or the judg-| United States were thus left withment of his peers." 214 N. Y. 154, 157, 108 NE 427, LRA Peo. v. Crane, out adequate protection and security 1916D 500, AnnCas1915B 1254 [rev fourteenth amendment was adopted in their persons and property. 165 App. Div. 449, 150 NYS 933 (rev The 88 Misc. 291, 150 NYS 492), and aff to remedy and correct this defect in 239 U. S. 195, 36 SCt 85, 60 L. ed. the supreme organic law of the land. 218]. It involves no forced or unreasonable construction to hold that this fourteenth amendment, as applied to the appropriation of private property for public uses, was clearly intended to place the same limitation upon the power of the states which the fifth amendment had placed upon the authority of the federal 385, 395, 1 LRA 688. ernment." govScott v. Toledo, 36 Fed. teenth amendment prohibits a State (2) "The fourliberty, from depriving any person of life, or property, ing to the rights of one citizen as process of law; but this adds nothwithout due against another. encroachment by the an additional guaranty against any It simply furnishes the fundamental rights which belong States upon society.' to every citizen as a member of U. S. v. Cruikshank, 92 U. S. 542, 554. (3) "It is well known corporated into the federal constituthe amendment in question was intion to shield a certain class, who had been born and reared in slavery, from pernicious legislation, by which their newly acquired rights by their emancipation might be so crippled as to render them wholly worthless." Munn v. Peo., 69 Ill. 80, 85 [aff 94 U. S. 113, 24 L. ed. 77]. [c] Texas.-Const. art 1 § 19, is as follows: "No citizen of this state shall be deprived of life, liberty, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Mabee v. McDonald, 175 SW 676, 678 [rev_on other grounds 243 U. S. 90]. [d] Wisconsin.-Const. art 1 § 9 provides: "Every person [is entitled to] a certain remedy in the laws, for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws." This provision is equivalent in meaning and effect to the provision in other state constitutions, that no person shall be deprived of property but by the law of the land or by due process of law. Janesville, 28 Wis. 464, 9 AmR 500. Durkee v. 85. Com. V. Philadelphia, Coal, etc., Co., 145 Pa. 283, 286, 23 A 809. To same effect Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Larue v. Redmon, 168 Ky. 487, 182 SW 622; Mabee v. (Tex.) 175 SW 676 [rev on other McDonald, grounds 243 U. S. 90]. etc.. "The 'due process' clause has been much abused and stretched to limits never designed by the constitution makers. But it must be observed that it is not the deprivation of property that is prohibited amendment, but the deprivation of by this property without due process of law." Miami County v. Dayton, 92 Oh. St. 215, 225, 110 NE 726. 86. Hibben v. Smith, 191 U. S. 310, 24 SCt 88. 48 L. ed. 195; State v. Bush, 12 Ala. A. 309, 68 S 492; Mabee v. McDonald, (Tex.) 175 SW 676, [rev on other grounds 243 U. S. 90]. [a] Object of fourteenth amendment.-(1) "The fifth amendment, operating only as a limitation upon the powers of the general government, fell short of giving to the citizen the full protection to which he was entitled in respect to his life, liberty, and property, so far as state action was concerned. hibition or limitation upon the power It imposed no proand authority of the states in dealing with the life, liberty, and property of the citizen. They were left to the restraints of their several constitutions and respective laws these subjects. So far as the states were concerned, citizens of the on V. In of due process of law extend to every governmental The guaranties proceeding which may interfere with personal or S. 692, 11 SCt 224, 34 L. ed. 816; L. ed. 225; Caldwell v. Texas, 137 U. 114, Dent West Virginia, 129 U. S. 9 SCt 231, 32 L. Hurtado ed. V. 623; California, 110 516, 4 SCt U. S. 111, 292, 28 232; U. S. v. Cruikshank, 92 U. S. 542, L. ed. Okely, 4 Wheat. 235, 4 L. ed. 559; 23 L. ed. 588; Columbia Bank v. In re Grice, 79 Fed. 627 [rev on other L. ed. 748]. grounds 169 U. S. 284, 18 SCt 323, 12 [b] Operation and effect of four- 87. U. S.-Chicago, etc.. R. Co. v. Ala.-Miller Ala. 469, 44 S 388, 125 AmSR 31; v. Birmingham, 151 Dreyfus v. Montgomery, 4 Ala. A. 270, 58 S 730. Colo.-Denver, etc., R. Co. v. Outcalt, 2 Colo. A. 395, 31 P 177. Fla.-Davis v. Florida Power Co., 64 Fla. 246, 60 S 759, AnnCas1914B 965. Ill. Sheldon v. Hoyne, 261 Ill. 222, 103 NE 1021. Mich.-Kennedy Baty, 6 Nebr. 37, 29 AmR 356. Utah.-Eureka City v. Wilson, 15 "Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an California, 110 U. S. 516, 536, 4 SCt impersonal multitude." Hurtado V. AmR 128. 111, 28 L. ed. 232. 88. Bunbury, 30 Mich. 201; Mayo v. Wil89. Minor v. Happersett, 21 Wall. (U. S.) 162, 22 L. ed. 627; Weimer v. son, 1 N. H. 53. In Alfalfa Irr. Dist. v. Collins, 46 Nebr. 411, 64 NW 1086, it was said that whether the guaranty in the constiit is doubtful tution of due process of law had the property effect of enlarging the rights of secured by the ciple stated in the text is well esThis guarded statement seems excess of caution, for the printablished. Davis v. State, 68 Ala. 58, 44 law. an common 90. Kaukauna Water-Power Co. v. In re Mahon, 34 Fed. 525 [aff 93. Sumpter v. State, 81 Ark. 60, 94. Wynehamer v. Peo.. 13 N. Y. property rights, whether the proceeding be legislative, judicial, administrative, or executive,97 and relate especially to that class of rights the protection of which is peculiarly within the province of the judicial branch of the government.98 The want of due process of law may arise either from the fact that the law attempted to be enforced is void or that the forms of law have not been observed.99 Protection against class legislation. The subject of class legislation has been fully treated in an earlier part of this title, but the courts of Tennessee have so frequently considered the question 97. U. S.-Home Tel., etc., Co. v. Los Angeles, 227 U. S. 278, 33 SCt 312, 57 L. ed. 510; Holden v. Hardy, 169 U. S. 366, 18 SCt 383, 42 L. ed. 780; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 17 SCt 581, 41 L. ed. 979; Central Land Co. v. Laidley. 159 U. S. 103, 16 SCt 80, 40 L. ed. 91; Chicago, etc., R. Co. ལ་ Minnesota, 134 U. S. 418, 10 SCt 702, 33 L. ed. 970; Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31, 10 SCt 424, 33 L. ed. 801; Hagar V. Réclamation Dist. No. 108, 111 U. S. 701, 4 SCt 663, 28 L. ed. 569; Hurtado v. California, 110 U. S. 516, 4 SCt 111, 28 L. ed. 232; U. S. v. Lee, 106 U. S. 196, 1 SCt 240, 27 L. ed. 171; Davidson v. New Orleans, 96. U. S. 97, 24 L. ed. 616; Murray v. Hoboken Land, etc., Co., 18 How. 272, 15 L. ed. 372; Columbia Bank V. Okely, 4 Wheat. 235, 4 L. ed. 559; Jersey City v. New Jersey Cent. R. Co., 212 Fed. 76, 128 CCA 532 [aff 199 Fed. 237]; Louisville, etc., R. Co. v. Alabama R. Commn., 191 Fed. 757; San Francisco Gas, etc., Co. y. San Francisco, 189 Fed. 943; Risley v. Utica, 173 Fed. 502; Crescent Liquor Co. v. Platt, 148 Fed. 894; Riverside, etc., R. Co. v. Riverside, 118 Fed. 736; Pacific Gas Impr. Co. V. Ellert, 64 Fed. 421; Meyers v. Shields, 61 Fed. 713; Ex p. Ulrich, 42 Fed. 587 [rev on other grounds 43 Fed. 661 (app dism 149 U. S. 789 mem, 13 SCt 1053 mem, 37 L. ed. 967 mem)]; In re Ziebold, 23 Fed. 791. Ala.-Dorman v. State, 34 Ala. 216. Cal. Mulligan v. Smith, 59 Cal. 206; Sherman v. Buick, 32 Cal. 241, 91 AmR 577. Conn.-Camp v. Rogers, 44 Conn. 291. Del.-Wilson v. Baltimore, etc., R. Co.. 5 Del. Ch. 524. Ga. Cutsinger v. Atlanta, 142 Ga. 555, 83 SE 263, LRA1915B 1097, Ann Cas1916C 280; Fortune v. Braswell, 139 Ga. 609, 77 SE 818. Ill.-Sheldon v. Hoyne, 261 Ill. 222, 103 NE 1021; Peo. v. Strassheim, 242 Ill. 359, 366, 90 NE 118 [cit Cyc]. Ind. McKinster v. Sager, 163 Ind. 671, 72 NE 854, 106 AmSR 268, 68 LRA 273. Iowa.-State v. Height, 117 Iowa 650, 91 NW 935, 59 LRA 437; Foule v. Mann, 53 Iowa 42, 3 NW 814. 15. Ky.-Louisville v. Cochrane, 82 Ky. Me.-State v. Doherty, 60 Me. 504. Mich.--Crane v. Waldron, 133 Mich. 73, 94 NW 593; Weimer v. Bunbury, 30 Mich. 201. Minn.-State v. State Medical Examiners, 34 Minn. 387, 26 NW 123. Mo.-Clark v. Mitchell, 64 Mo. 564. Nebr.-Low v. Rees Printing Co., 41 Nebr. 127, 59 NW 362, 43 AmSR 670, 24 LRA 702; Atchison, etc., R. Co. v. Baty, 6 Nebr. 37. 29 AmR 356. N. Y.-Bertholf v. O'Reilly, 74 N. Y. 509, 30 AmR 323; Stuart v. Palmer, 74 N. Y. 183, 30 AmR 289; Westervelt v. Gregg, 12 N. Y. 202, 62 AmD 160 [foll Rockwell v. Nearing, 35 N. Y. 302]; Matter of Pennsylvania, 45 Misc. 46, 90 NYS 808. Pa.-Huber v. Reily, 53 Pa. 112. S. D.-Caldwell v. Pierson, 159 NW 124. Tenn.-Davis v. State, 3 Lea 376; whether class or special legislation is "the law of the land" within the meaning of the constitutional provision now under consideration that it is proper to state briefly the result of their investigation.2 That result is the establishment of the following rule: In order for class legislation to become the law of the land within the meaning of the constitution, it must possess each of two indispensable qualities: (1) It must be so framed as to extend to and embrace equally all persons who are or may be in the like situation and circumstances; and (2) the classification must be natural State v. Burnett, 6 Heisk. 186; Alex- | North American Cold Storage Co. v. Wis.-Ekern v. McGovern, 154 Wis. 157, 142 NW 595, 46 LRANS 796. "The prohibitions of the amendment refer to all the instrumentalities of the State, to its legislative, executive and judicial authorities. and, therefore, whoever by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the State, 'violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.' This must be so, or, as we have often said, the constitutional prohibition has no meaning, and 'the State has clothed one of its agents with power to annul or evade it.'" Per Harlan, J., in Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 233. 17 SCt 581, 41 L. ed. 979 [quot Risley v. Utica, 173 Fed. 502]. "The provisions of the Amendment as conclusively fixed by previous decisions are generic in their terms, are addressed, of course, to the States, but also to every person whether natural or judicial who is the repository of state power." Home Tel., etc., Co. v. Los Angeles, 227 U. S. 278, 286, 33 SCt 312, 57 L. ed. 510 (per White, C. J.). [a] Act of state officers not authorized by state law. That an act of state officers done in the name of and for the state was not authorized by the law of the state does not prevent it from being a violation of the constitutional provision against depriving any person of property without due process of law. Home Tel., etc., Co. v. Los Angeles, 227 U. S. 278. 33 SCt 312, 57 L. ed. 510; Louisville, etc., R. Co. v. Bosworth, 209 Fed. 380. But see In re Storti. 109 Fed. 807 [aff 183 U. S. 138, 22 SCt 72, 46 L. ed. 120] (where it was said that ordinarily the provision of the fourteenth constitutional amendment, relating to due process of law, does not apply where the legislature of a state has performed its duty by providing for proceedings which answer the constitutional requirement, and where the fault is either with the courts or the officers). See also. infra § 592. [b] Constitutional convention.A state can no more deprive a man of life, liberty, or property through the medium of a constitutional convention than through an act of legislation. Clark v. Mitchell. 69 Mo. 627 [aff 6 Mo. A. 601, and rev on other grounds 110 U. S. 633, 4 SCt 170, 28 L. ed. 279]. [c] A municipal ordinance (1) adopted in pursuance of power granted by the legislature is an act of the state, within the meaning of the constitutional provision. Home Tel., etc., Co. v. Los Angeles, 227 U. S. 278, 33 SCt 312, 57 L. ed. 510; Chicago, 211 U. S. 306, 29 SCt 101, 53 L. ed. 195, 15 AnnCas 276; Seattle Electric Co. v. Seattle, etc.. R. Co., 185 Fed. 365, 107 CCA 421; Risley v. Utica, 173 Fed. 502 (exercise of taxing power). (2) But unauthorized municipal legislation is not within the prohibition of the constitutional provision. Memphis v. Cumberland Tel., etc., Co., 218 U. S. 624, 31 SCt 115, 54 L. ed. 1185; Portland R., etc., Co. v. Portland, 200 Fed. 890. [d] A denial of due process by a municipal board is a denial by the state. Wilmington City R. Co. v. Taylor, 198 Fed. 159. [e] Denial of due process by a board of equalization is a denial by the state. Londoner v. Denver, 210 U. S. 373, 28 SCt 708, 52 L. ed. 1103; Raymond v. Chicago Edison Co., 207 U. S. 42, 28 SCt 14, 52 L. ed. 90; Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 28 SCt 7, 52 L. ed. 78, 12 AnnCas 757 [aff 114 Fed. 557]. [f] An order of a state railroad commission is an act of the state. Louisville, etc., R. Co. v. Alabama R. Commn., 191 Fed. 757. 98. U. S.-U. S. v. Lee, 106 U. S. 196, 1 SCt 240, 27 L. ed. 171; Greene v. Briggs, 10 F. Cas. No. 5,764, 1 Curt. 311. Ark. Rison v. Farr, 24 Ark. 161, 87 AmD 52. Ga.-Bearden V. Daves, 139 Ga. 635, 77 SE 871. Iowa.-Mason Iowa 261. V. Messenger, 17 Kan. Kansas Pac. R. Co. v. Dunmeyer, 19 Kan. 539. N. Y.-Wynehamer v. Peo., 13 N. Y. 378, 2 Park. Cr. 421. S. C.-Kirk v. Aiken Bd. of Health, 83 S. C. 372, 65 SE 387, 23 LRANS 1188. 99. Crosbyton-Southplains R. Co. y. State R. Commn., (Tex. Civ. A.) 169 SW 1038. 1. See supra §§ 855-873. 2. [a] Tennessee.-Const. art 11 § 8 provides: "The legislature shall have no power to pass any law for the benefit of individuals inconsistent with the general laws of the land." The courts of the state have, to a very large extent, construed this provision in connection with that of art 1 § 8, which is as follows: "That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." Owing to this tendency of the courts, it has been necessary, in order for a full treatment of what is considered the law of the land, to go more fully into the question of class legislation, in reference to the Tennessee acts, than would otherwise have been necessary within the scope of this title. No cases, however, where the court has not expressly referred to the provisions of art 1 8, above quoted, are here treated. 3. Malone v. Williams, 118 Tenn. 390, 103 SW 798, 121 AmSR 1002: Condon v. Maloney, 108 Tenn. 82, 65 SW 871; Sutton v. State, 96 Tenn CONSTITUTIONAL LAW and reasonable, not arbitrary and capricious. In Particular process or proceedings. While the means V. the [12 C. J.] 1197 tection and enforcement of private rights." The particular requisites of civil remedies and proceedings and of criminal prosecutions are fully treated elsewhere in this title. [§ 962] D. Police Power as Affected by Constitutional Guaranty.1 10 ties that no person shall be deprived of life, liberty, The constitutional guaranor property without due process of law, do not limit, and were not intended to limit, the subjects on which the police power of a state may lawfully be exerted." These guaranties have never been con Humphr. (Tenn.) 483, 39 AmD 189; 104 Tenn. 715, 59 SW 1033, 78 AmSR V. [b] Classification held reasonable. 5. "Whether a statute is the law of the land, within the meaning of the legislation.-Hatcher 8th section of the bill of rights, always depends upon two propositions: 1st. That the legislature had constitutional power to pass it. That it is a general and public law, equally binding upon every member of the community." Johnson, 2 Humphr. (Tenn.) 285, 296. Sheppard V. "The clause 'law of the land,' a general and public law, equally binding upon every member of the community. to life, liberty and property, of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or 'land,' under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and this void. otherwise, Were and corporate bodies would be govodious individuals erned by one rule, and the mass of the community who made the law, by another. The idea of a people through their representatives making laws whereby are swept away the life, liberty and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has name. Such abuses resulted in the adoption of Magna Charta in England, securing the subject against odious exceptions, which is, and for centuries has been, the foundation of English liberty. was a leading cause why we sepaIts infraction rated from value as a fundamental rule for the that country, and its protection of the citizen against legislative usurpation was of its adoption as part of our constithe reason tution." Vanzant v. Waddel, 2 Yerg. (Tenn.) 260, 269, 270. a "The clause law of the land,' was defined in our earlier cases to mean 'a general and public law, equally binding upon every member of the community;' but by our later cases it is defined to mean a law 'which embraces all persons who are or who come into like situation and circumstances.'" Stratton V. Morris, Tenn. 497, 521, 15 SW 87, 12 LRA 89 70. See also Maney v. State, 6 Lea (Tenn.) 218; Davis v. State, 3 Lea (Tenn.) 376 (both holding that the law of the land, in the sense of the constitution, means any law which embraces all persons who are or who may come into like situation and circumstances, and classes of persons, not individuals, the exemption of from the penalties of prohibiting or criminal laws is not obnoxious to constitutional exceptions). [a] Laws held void as class, legislation.-Sutton v. State. 96 Tenn. 696, 36 SW 697, 33 LRA 589; Hatcher v. State, 12 Lea (Tenn.) 368; McKinney v. Memphis Overton Hotel Co., 12 Heisk. (Tenn.) 104; State v. Burnett, 6 Heisk. (Tenn.) 186: Pope V. Phifer, 3 Heisk. (Tenn.) 682; Alexandria Dearmon, 2 Sneed V. means Sheldon v. Hoyne, 261 III. 222, V. an [a] Reasonable classification of 6. U. S.-U. S. v. Lee, 106 U. S. Mich.-Weimer V. Bunbury, that a state may not, by prescribing U. S.-Pennoyer v. Neff, 95 U. V. Wing Chong, 2 Canal Zone 25. Ga. Frank v. State, 142 Ga. 741, 83 SE 645, LRA1915D 817; Jefferson F. Ins. Co. v. Brackin, 140 Ga. 637, 79 SE 467. V. Ida.-Anderson v. Great Northern R. Co., 25 Ida. 433, 138 P 127. Ill. Rothschild 920, 42 Piano Mfg. Co., 256 Ill. 196, 99 NE Steger, etc., LRANS 793, AnnCas1913E 276; Peo. v. Cohen, 219 Ill. 200, 204, 76 NE 388 [cit Cyc]; Assets Adjustment Co. v. Atkinson, 180 Ill. A. 296. Mich.-Parsons Mich. 113, 83 AmD 728. V. Russell, 11 Mo.-Wilcox v. Phillips, 260 Mo. 664, 169 SW 55; Rusk v. Thompson, 170 Mo. A. 76, 156 SW 64. Nebr.-South Platte Land Co. v. Buffalo County, 7 Nebr. 253. Nev.-Wright Nev. 341. Cradlebaugh, N. Y.-Alban v. Press Pub. Co., 100 App. Div. 516, 91 NYS 1085; RigN. Y. Super. 89; Peo. v. Sheriff, 11 lander v. Star Co., 98 App. Div. 101, 90 NYS 772 [aff 181 N. Y. 531 mem, 73 NE 1131 mem]; In re Hatch, 43 NYCivProc 172. N. C.-State v. Collins, 169 N. C. 323, 84 SE 1049. Philippine.-U. S. v. Ling Su Fan, 10 Philippine 104. Porto Rico.-Peo. v. Fourquet, 17 83 S. C. 372, 65 SE 387, 23 LRANS Ridge, 169 Mo. 376, 68 SW 1043. Pa.-Com. v. Wasson, 12 PittsbLeg "The legislature is not vested with See infra §§ 997-1018. See infra §§ 970-984. 10. Police power: Generally see supra §§ 412-443. V. |