Monopoly Grants. It is aside from the purpose of this work to discuss this subject; but it is not improper to say, in short, that the legislature of a state, unless forbidden. by its constitution, may grant to persons or corporations sole and exclusive right to carry on a business, and such grant is deemed a contract within the meaning of that clause of the federal Constitution prohibiting a state from making or enforcing any law which impairs the obligation of contracts; and therefore a repeal, or hurtful modification, of such grant by legislative act would be repugnant to that provision of the federal Constitution. I think, too, that where such exclusive grant exists, it would be not merely a contract, but a vested property right, and so any invasion of it without due process of law, by any kind of state action, would be repugnant to the Fourteenth Amendment. A grant of such exclusive privilege by a municipal corporation would be likewise a contract and property, as if granted by the legislature, provided that the power to make such a grant is expressly vested in the municipality by its charter or state law; for it has no such implied power.20 But we must remark with emphasis that such exclusive grants are, if not odious, certainly strongly disfavored by the law, and nothing but

20 Dartmouth College v. Woodward, 4 Wheat. 519; Slaughter House Cases, 16 Wall. 36; Mason v. Bridge Co., 17 W. Va. 396; Grand Rapids v. Grand Rapids, 20 Am. and Eng. Corp. Cas. 270, 291; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. R. 650; Electric Co. v. Traders Co., 47 W. Va. 35 S. E. 994: New Orleans Water Co. v. Rivers, 115 U. S. 674: St. Tammany Waterworks v. N. O. Waterworks, 120 U. S. 64; N. O. Gas Co. v. Louisiana Light Co., 115 U. S. 650, 10 Am. and Eng. Corp. Cas. 639; Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683, 10 Am. and Eng. Corp. Cas. 671; Detroit Street R. R. Co. v. Railway Co., 171 U. S.

express words conferring such exclusive privileges will confer them. The presumption is always strong that the legislature, or the municipal corporation, which is claimed to have granted such monopoly, did not intend to do so, did not intend to part with the sovereign right of control. over such matters, did not intend to part with power so essential to the public good, and it must be clear beyond all question that the act claimed to vest such exclusive right does in fact do so in letter.21 A general act forbade the grant of a ferry within half a mile of another. Held that the first grant was no contract preventing another.22

21 Charles River Bridge v. Warren Bridge, 11 Pet. 420; Cooley, Const. Lim. 394; Syracuse Water Co. v. City, 116 N. Y. 167, 29 Am. & Eng. Corp. Cas. 307; Parkersburg Gas Co. v. Parkersburg. 30 W. Va. 435, 4 S. E. 650; Wheeling Bridge Co. v. Bridge Co. 34 W. Va. 155, 138, U. S. 287; Lehigh Water Co. v. Easton, 121 U. S. 391; Power v. Village, 10 Am. & Eng. Corp. Cas. 54. 22 Williams v. Wingo, 20 Sup. Ct. 793, 177 U. S. 601.

Chapter 11.

DUE PROCESS OF LAW.

We must note that the federal and state constitutions do not unconditionally say that no person shall be deprived of life, liberty or property under any circumstances. If they did, the state and federal governments would be utterly powerless to execute their functions; bereft of sovereign powers, there would be no sanction to protect life, liberty or property, or enforce any law. The American colonies, when they became free at the close of the Revolution, were free republics, sovereignties, possessing all the powers of government over their territory which before had been vested in the British king and parliament a power which was omnipotent.1 They could, therefore, do anything with the inestimable rights of life, liberty and property which they might choose, and could do so now were it not for the restraints and prohibitions upon their power imposed by their own and the national constitutions. This omnipotent power to invade life, liberty and property is restrained by the con

1 New York v. Miller, 11 Peters, 102; Lansing v. Smith, 21 Am.

stitutional provision that the states shall not take them, nor shall the nation, without due process of law. This is the badge of American freedom. These restraints are, as regards the states, exceptions from their original inherent, supreme, sovereign powers, rather than grants of powers. With Henry VIII or Louis XIV, or others of the many tyrants who have cursed the peoples, and who are pilloried in history as dark and sombre faces in the galaxy of infamy, it was simply "L'etat c'est moi," "I am the State," and life ended at their mere personal mandate; but with us, and in England now, the only king that can issue the death warrant is "Due process of law"—the voice of the law of the land, the will of the people spoken under the majesty of law. It becomes, then, all the time, all over the Republic, time and time again, indispensable to ascertain what is this "due process of law" which alone makes the mighty warrant to justify government in destroying liberty or property, and even life.

What is Due Process of Law?-None but general definition is possible; but copious extracts from authority of general statements will, in almost every case, solve the question. Justice McKenna said: "What it is for a state to deprive a person of life, liberty or property without due process of law, is not much nearer to precise definition today than it was said to be by Justice Miller in Davidson v. New Orleans, 96 U. S. 97. In that case the court suggests the difficulty and danger of attempting an authoritative definition of what it is for a state to deprive a person of life, liberty or property without due process of law, within the meaning of the Fourteenth Amendment, and

holds that the annunciation of the principle which governs each case as it arises is the better mode of arriving at a sound decision."2 In the Davidson Case it is held that "due process of law" and "law of the land" are the same in meaning.

The great constitutional lawyer and statesman, Daniel Webster, gave a general definition of due process often quoted: "By the law of the land is most clearly intended the general law, which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society. Every thing which may pass under the form of an enactment is not law of the

land."3 As applied to matters of judicial nature this definition and the one given in 2 Kent's Commentaries,* are correct. Kent's definition is as follows: "The better and larger definition of due process of law is that it means law in its regular course of administration through the courts of justice."

Coke says that "law of the land" is that which is according to "the old law of the land; that is, by the due course and of law." process

"It is sufficient to say that by due process of law is meant one which, following the forms of law, is appropri ate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law;

2 Orient Ins. Co. v. Daggs, 172 U. S. 557. 3 Dartmouth College Case, 4 Wheat. 581. 42 Kent's Com. 13.

Coke's Inst. 46.