referring as well to the original as subdivision lines, had reference to the magnetic meredian. And even where the original survey was made by the true meridian, calls of courses of new subdivision lines, unless so made in reference to the original courses as to manifest an intention to be controlled by original courses, would in general be run by the magnetic meridian, as that is the general and customary usage in running lines; but each case must depend so much upon the calls, the connection of the subdivision lines with the original true meridian lines, and other facts and circumstances, that no definite general rule of construction can be prescribed."

1. Taylor . Porter, 4 Hill (N. Y.), where it was held that a statute authorizing a private road to be laid out over the lands of a person without his consent was unconstitutional and void.

In Bertholf v. O'Reilly, 74 N. Y. 519, it is said: "We need not enter into any elaborate discussion of the meaning of the words 'due process of law.' This has been done in numerous judicial decisions. They are held, under the liberal interpretation given to them, to protect the life, liberty, and property of the citizens against acts of mere arbitrary persons in any department of the government. [Denio, J., in Westervelt v. Gregg, 12 N. Y. 212.] These are the fundamental civil rights, for the security of which society is organized, and all acts of legislation which contravene them are within the prohibition of the constitutional guaranty. In judicial proceedings, due process of law requires notice, hearing, and judgment; in legislative proceedings, conformity to the settled maxims of free government, observance of constitutional

restraints and requirements, and an omission to exercise powers appertaining to the judicial or executive departments. It is as difficult as it would be unwise to attempt an exact definition of their scope. Their application in a particular case must be determined when the question arises, and in the absence of exact precedents courts must determine the question upon a consideration of the general scope of legislative power, the practice of governments, and in view of the conceded principle that individual rights may be curtailed and limited to secure the public welfare and the equal rights of all." It was there held that private property was not taken away "without due process of law" by a legislative enactment creating a cause of action for damages in favor of a person injured in person or property by the act of an intoxicated person against the owner of real property, who leased the premises where the liquor causing the intoxication was sold, with knowledge that such liquor was to be sold thereon.

The words law of the land,' as used originally in the Magna Charta in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this,' says Lord Coke, is the true sense and exposition of those words.' The better and larger definition of due process of law' is, that it means law in its regular course of administration through courts of justice." 2 Kent Com. 13, quoted in Wynehamer v. People, 13 N. Y. 395; Rowan v. State, 30 Wis. 146.

2. Stuart v. Palmer, 74 N. Y. 191, quoting from Cooley on Const. Lim. 355. The court said: "It is difficult to define with precision the exact meaning

and scope of the phrase 'due process of law. Any definition which could be given would probably fail to comprehend all the cases to which it would apply. It is probably wiser, as recently stated by Mr. Justice Miller, of the United States supreme court, to leave the meaning to be evolved by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.' [Davidson v. Board of Admrs. of New Orleans, 17 Alb. L. J. 223.] It may, however, be stated generally that due process of law requires an orderly proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. We can not conceive of due process of law without this." It was held, accordingly, that a law imposing an assessment for a local improvement, without notice to the owner of the assessed property, and a hearing or an opportunity to be heard on his part, was unconstitutional.

So in Ex parte Ah-Fook, 49 Cal. 406, in which this definition of Judge Cooley's is quoted, the court said: It would be difficult, perhaps impossible, to find in the reports a definition of the terms 'law of the land' or 'due process of law' which is accurate, complete, and appropriate under all circumstances. The peculiar necessities which call for the action of an officer, and whether a power was exercised in the same manner prior to the adoption of the constitution, without being regarded a violation of the principles of Magna Charta, may be considered; and if it be found that like proceedings have always been recognized as constitutional in England and this country, and if the person who is subjected to them is accorded every reasonable opportunity to defend his individual rights which the nature of the case will admit, the case being one in which the end sought to be

obtained is lawful,- -a statute cannot be said to deprive a party of the benefits of due process of law." It was held that an act empowering a commissioner of immigration to visit vessels arriving from a foreign port to determine whether there were lewd women on board, and prevent them from landing without bonds being given, and making the judgment of the commissioner final, did not deprive such persons of due process of law.

1. Pennoyer v. Neff, 95 U. S. 733. And see Kennard v. La. ex rel. Morgan, 92 U. S. 480.

So in People ex rel. Witherbee v. Supervisors, 74 N. Y. 234, it is said: "Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the constitution and the usages of the common law, would be a protection to him or his property."

"Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense, to be heard, by testimony or otherwise, and to have the right of controverting by proof, every material fact which bears on the question of right in the matter evolved. If any question of fact or liability be conclusively presumed against him, this is not due process of law." Zeigler v. S. & N. Ala. R. Co., 58 Ala. 599, where it was held that an act fixing absolute liability on a corporation to make compensation for injuries done to property in the prosecution of its lawful business, without negligence or wrong on its part, when under the general law of the land no one else was so liable under such circumstences, did not provide for due process of law,' and was void.

"Private property cannot be taken from one person and delivered to another person or applied to the private use of another, except by a suit instituted and conducted in accordance with the pre

scribed course of procedure for determining the title to property. The institution and conduct of such suit is what is meant by 'due process of law." In re Hatch, 43 N. Y. Super. Ct. 91.

See South Platte Land Co. v. Buffalo, 7 Neb. 258, and Hatson 7. Woodbridge Protection Dist. (Cal.), 16 Pac. Rep. 549, where it is held that in case of an assessment an opportunity should be given the owner to be heard, otherwise it is "without due process of law." And see cases cited under note I, page 980.

The erroneous decision of a State court, having proper jurisdiction, does not come within the prohibition of the Fourteenth Amendment. Arrowsmith v. Harmoning. 118 U. S. 194.

But an act of the legislature undertaking to validate a judgment of a court void for want of jurisdiction contravenes the provision as to "due process of law." Pryor v. Downey, 50 Cal. 388.

The appointment of a guardian ad litem for an infant defendant, who has had no notice of the suit, is not "due process of law."" as that has reference to judicial proceedings according to the course and usage of the common law, and must always be based upon notice." Campbell v. Campbell, 63 İll. 462.

But an act authorizing summary process against delinquent tax-collectors is constitutional. "Such summary process, it is said, which gives the party whose property is seized no opportunity to contest the claim set up against him, cannot be due process of law. There is nothing in these words, however, that necessarily implies that due process of law must be judicial process. Much of the process by means of which the government is carried on and the order of society maintained is purely executive or administrative." Weimer v. Bunbury, 30 Mich. 210-11. And see Springer v. U. S., 102 U. S. 586.

In Co. of San Mateo v. So. Pac. R., 8 Am. & Eng. R. R. Cas. 27, it is said: "There is something repugnant to all notions of justice in the doctrine that any body of men can be clothed with the power of finally determining the value of another's property, according to which it may be taxed, without affording to him an opportunity of being heard respecting the correctness of their action. And the injustice is strikingly apparent when the property consists of the great number of particulars which go to make up the taxable estate of a railroad company requiring for any just estimate of their value accurate knowledge upon a multitude of subjects not usually possessed without

special study. We cannot assent to any such doctrine. It conflicts with the great principle which lies at the foundation of all just government, that no one shall be deprived of his life, his liberty, or his property, without an opportunity of being heard against the proceeding. The principle is as old as Magna Charta, and is embodied in all the State constitutions, and in the Fourteenth Amendment of the Federal constitution. The provision in this amendment is in the form of an interdict upon the States: Nor shall any State deprive any person of life, liberty, or property without due process of law.' And by 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary manner prescribed by the law; it must be adapted to the end to be attained; and it must give to the party to be affected an opportunity of being heard respecting the justice of the judgment sought. Without these conditions entering into the proceeding, it would be anything but due process. If it touched life or liberty, it would be wanton punishment, or rather wanton cruelty; if it touched property, it would be arbitrary exaction. It is significant that the guarantee against the deprivation of property without due process of law is contained in the clause which guarantees against a like deprivation of life and liberty; and it means that there shall be no proceeding against either without the observance of all the securities applicable to the case recognized by the general law, by those principles which are established in all constitutional governments for the protection of private rights. Notice is absolutely essential to the validity of the proceeding in any case: it may be given by personal citation, and in some cases it may be given by statute; but given it must be in some form." And see the concurring opinion of Sawyer, C. J.

These constitutional provisions relate to those rights whose protection is peculiarly within the province of the judicial branch of the government, which protection will be extended for an unlawful invasion of them by public officers. U. S. v. Lee, 106 U. S. 196.

These terms, 'law of the land,' 'due course of law,' 'due process of law,' do not mean the general body of law, 'common and statute,' as it was at the time the constitution took effect. For that would seem to deny to the legislature the power to alter, change, or amend the law.

It refers to certain fundamental rights which that system of jurisprudence,

of which ours is a derivative, has always recognized. If any of these is disregarded, in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by due course of law.'" Brown v. Bd. of Levee Commrs., 50 Miss. 479, where the statute declared unconstitutional dispensed with personal notice where the defendants were residents of the county and amenable to such process. In Happy v. Mosher, 48 N. Y. 317, it is said with reference to 'due process of law:" "It need not be a legal proceeding according to the course of the common law; neither must there be personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend."

In the construction of a highway act the court said: "In the act . . . now under consideration, ample provision is made for an inquiry as to damages before a competent court, and for a review of the proceedings of the court of original jurisdiction, upon appeal to the highest court of the State. This is due process of law, within the meaning of that term as used in the Federal constitution." Pearson v. Yewdall, 95 U. S. 296.

An ex parte determination of two overseers of the poor was held not "due process of law," in Portland v. Bangor, 65 Me. 120.

A statute providing for the drainage of tracts within the State, upon proceedings instituted by at least five owners of separate lots included in a tract, and not objected to by the owners of the greater part of the tract, and for assessment by commissioners, after notice and hearing, of the expenses upon all the owners, does not deprive them of their property "without due process of law," within the meaning of the Fourteenth Amendment, Wurts v. Hoagland, 114 U. S. 606.

1. Murray's Lessee v. Hoboken Co., 18 How. (U. S.) 276; Millett v. People

44

(Ill.). 5 West. Rep. 157; Davidson v. New Orleans, 96 U. S. 101: People ex rel. Pickard v. Sheriff, 11 N. Y. Civ. Proc. 178. 2. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, 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." Zeigler v. S. & N. Ala. R. Co., 58 Ala. 528, quoting Mr. Webster's definition in the argument in Dartmouth College v. Woodward, 4 Wheat. 518, 581.

This definition is quoted also in State v. Staten, 6 Coldw. (Tenn.) 244, where it was held that an act of legislature conferring on the Governor the power to set aside and annul the registration of the voters of a county, in whole or in part, was unconstitutional, as depriving them of their rights without due process of law."

"As to these words from Magna Charta, after volumes spoken and written, with a view to their exposition, the good sense of mankind has at length settled down to this-that they were inended to secure the individual from the artbitrary exercise of the powers of govern ment, unrestrained by the established principles of private rights and distributive justice." Bk. of Columbia v. Okely 4 Wheat. (U. S.) 244.

"The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages

and modes of proceeding existing in the common and statute law of England, before 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." Murray 7. Hoboken Co., 18 How. (U. S.) 276-7, where it was held that a distress warrant issued by the Solicitor of the Treasury under act of Congress was not inconsistent with this constitutional provision. In Clark v. Mitchell, 64 Mo. 578, after quoting Mr. Webster's definition, the court says: "The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they proceed upon inquiry,' and 'render judgment only after trial.' It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. The words by the law of the land,' as used in the constitution, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense." An act not possessing attributes of the given description was therefore held unconstitutional.

"Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. 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." Westervelt. Gregg, 12 N. Y. 209, where it was held that an act depriving a husband of his rights to a legacy, and making it the sole and separate property of his wife, was unconstitutional.

"Lord Coke construed the words 'law of the land' to mean due process of law. Hence we sometimes find one phraseology used. and sometimes the other. They were held, and we think correctly. to mean the same thing in The Matter of John and Cherry Streets, 19 Wend. 659. By the law of the land' we understand laws that are general in their operation, and that affect the rights of all alike; and not a special act of the legislature, passed to affect the rights of an individual against his will, and in a way in which the same rights of other persons are not affected

It

by existing laws." Sears v. Cottrell, 5 Mich. 254.

In People v. Smith, 21 N. Y. 598, it is said: "In imposing a tax or in appropriating the property of a citizen or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act itself is due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property, upon some view of public policy, where it could not be said to be taken for a public use." And see Garrison v. City of New York, 21 Wall. (U. S.) 196.

"The words 'due process of law' in this connection are held to be synonymous with the words the law of the land;'. and this means general public law binding upon all the members of the community under all circumstances, and not partial or private laws affecting the rights of private individuals or classes of individuals.' Millett v. People (Ill.), 5 West. Rep. 157; s. c., 117 Ill. 294.

See, to the same effect, Atchison & Nebraska R. Co. v. Baty, 6 Neb. 37, where it was held that a statute giving to the owner of live-stock double the value of his property accidentally injured or destroyed on a railroad track was unconstitutional. And see Camp v. Rogers, 44 Conn. 291. Compare Speedman v. Mo. Pac. R. Co., 71 Mo. 434, where an act making a railroad company liable in double damages for stock killed in consequence of their failure to erect and maintain fences was held not unconstitutional as depriving of property without due process of law."

1. Bartlett v. Wilson (R. I.). 8 Atl. Rep. 331; s. c., 4 New Eng. Rep. 119; 10 East. Rep. 398, in which an act giving power to listers, where a person omitted to return his taxable property, to appraise the same at its value and double the sum so obtained, one per cent of which total sum was to be the list upon which the taxes were to be assessed, was held constitutional. "Government must have the public revenues, and obviously cannot postpone their collection to await the determination of a common-law trial to see if it is entitled to them. It must from necessity proceed in a summary way; not omitting, however, those safeguards that protect individual rights. Its