the land of an individual is taken under the authority of the Legislature for public use, and a full compensation is paid to the proprietor for a perpetual easement therein, and the same land is afterwards appropriated by legislative authority to another public use of a like kind, the owner of the land is not entitled to any further compensation. So, where a turnpike has by law been converted into a common highway, no new claim for compensation can be sustained by the owner of the land. over which it passes. So, too, where a canal company paid full damages for the flowing of the plaintiff's land, and the canal was afterwards discontinued, and the land was flowed by another company, it was held that the plaintiff was not entitled to redress, and his complaint was dismissed.* Under the act of the State of New York of 1851, in relation to railroad companies, such companies have no right to enter upon and occupy, or cross, a turnpike or plank-road, without the consent of the owners, except upon the condition of first paying the damages sustained by the turnpike or plankroad company, after the same shall have been ascertained under the statute. + It may not be amiss to sum up the result of our examination. If the brief and sweeping clause, " Private property shall not be taken for public use without just compensation," be made to express the modifications and qualifications which construction has inserted in it and added to it, it will stand nearly as follows: Private property shall in no case be taken for private Private property may be taken for public use in the exercise of the general police powers of the State, or of taxation, without making compensation therefor. And the power of taxation includes the power of charging the expense of local improvements exclusively upon those immediately benefited thereby. Private property may also be taken for public use in the exercise use. * Chase v. Sutton Manufacturing Co. 4 Cush. 152. + The Ellicottville and Great Valley Plank Road Co. v. The Buffalo and P. R. R. Co. 20 11 Wend. 149. But if the owner accepts the compensation awarded for the excess, he cannot afterwards object to the taking of that excess. Embury v. Conner, 3 N. Y. 511. of the power of eminent domain, but not without just compensation being made or provided for before the taking is absolutely consummated. The right of compensation, however, does not at tach in cases where the value of property is merely impaired and the title to it not divested, nor does it exist in cases where the right to the property taken is not absolutely vested at the time of the legislative act affecting it. This is substantially the form that the constitutional provision has assumed in the hands of the courts; and upon a careful examination of the process by which this result has been arrived at, it must be admitted that in practice our constitutional guaranties are very flexible things, and that the judicial power exerts an influence in our system which makes the subject of interpretation one of the first magnitude. The Law of the Land, and due Course of Law.-We next come to the great constitutional provision which guarantees to life, liberty, and property the protection of law. Magna Carta declares, “Nullus liber homo capiatur vel imprisonetur, aut dis saisietur, aut relegatur, aut exulatur, aut aliquo modo destruetur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel PER LEGEM TERRÆ. And deducing its origin from this grand original, this important limitation of legislative power is to be found, I believe, without exception, in the Constitution of all the States of the Union. + In order to understand precisely how private rights are, in this respect secured, I give the clause as it stands in the fundamental law of several of the States. (a) 39 *Magna Carta, § 29. As to the identity of meaning between the phrases "Law of the land" and "due proc ess of law," see Mayo v. Wilson, 1 N. H. R. 55. (a) Constitutional Provisions.-The following are all the provisions in the existing State Constitutions which, in express terms, relate to "due process of law" or "the law of the land:" No person shall be deprived of [his] life, liberty, or property, without [but by] [except by] due process of law.-Alabama, I, 8; Arkansas, I, 9; California, I, 8; Connecticut, I, 9; Florida, Dec. of Rights, 9; Georgia, I, 3; Illinois, II, 2; Iowa, I, 9; Michigan, VI, 32; Minnesota, I, 7; Mississippi, I, 2; Nevada, I, 8; New York, 1,6; West Virginia, III, 10 [adding "and the judgment of his peers"]. No person shall be accused or arrested or detained, except in cases ascertained by law, and according to the forms which the same has prescribed; and no person shall be punished but by virtue of a law established and promulgated prior to the offence, and legally ap Much discussion has taken place in regard to what is meant by the phrase "the law of the land." Perhaps, in most respects there is nowhere to be met with a better definition of it than is to be found in the argument of Mr. Webster, in the Dartmouth College case. "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 the law of the land." (a) plied.-Alabama, I, 9. No person shall be arrested, detained, or punished, except in cases clearly warranted by law.-Connecticut, I, 10. Every person [all persons] for injury done him [suffered] in his lands, goods, [property], person, or reputation, shall have [adequate] remedy by due process [course] of law.-Kansas, Bill of Rights, 18; Louisiana, I, 10; Nebraska, I, 9; Ohio, I, 16; Oregon, I, 10; West Virginia, III, 17; Indiana, I, 12. No person shall be held to answer for a criminal offence without due process of law.- Wisconsin, I, 8. Nor shall [can] he be deprived of [his] life, liberty, or property, [or privileges, Maine], unless [but] by the judgment of his peers or the law of the land.-Delaware, I, 7; Kentucky, XIII, 12; Maine, I, 6; Missouri, I, 18; Pennsylvania, IX, 9; Rhode Island, I, 10. Nor can any person [no man shall] be [justly] deprived of his liberty, except by the law of the land or the judgment of his peers.-Vermont, Pt. I, 10; Virginia, I, 10. No member [citizen] of [person in] this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof ["now enjoyed," S. C.], unless ["the same is done," Ark.] by the law of the land or the judgment of his peers ["except as hereinafter provided," Ark.]—Arkansas, V, 37; Minnesota, I, 2; New York, I, 1; South Carolina, I, 34. No man ought to [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 by the law of the land.-Maryland, Dec. of Rights, 23; Tennessee, I, 8; [same, except omitting the words "destroyed" and "by the judgment of his peers or "].-North Carolina, I, 17. No subject [person, S. C.] shall be arrested, imprisoned, despoiled, or deprived [dispossessed, S. C.] of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers or the law of the land.—Massachusetts, Pt. I, 12; New Hampshire, Pt. I, 15; South Carolina, I, 14. No citizen of this State shall be deprived of his life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.-Teras, I, 16. (a) Guaranty of Due Process of Law.-This guaranty secures a fair trial after notice, except in certain matters of public concern, like taxation, where such protection of individual rights could only be secured by a disproportionate sacrifice of public The same doctrine has been declared in a very elaborate case in the State of New York. An act of that State authoriz interests. The same principle, however, applies here as in the case of jury trial, namely, that proceedings and methods which were in existence at the common law, or were in existence by statute at or before the adoption of the Constitution, are to be considered as a part of the "due process of law" required by the Constitution, and as legal and valid notwithstanding this constitutional guaranty. Due process of law refers not to the "process" by which the property is taken, but to judicial proceedings in which it is taken; such proceedings are not necessarily jury trials. Squares v. Campbell, 60 Barb. 391; and it was very concisely and accurately said by Mr. Justice Edwards, in Westervelt v. Gregg, 12 N. Y. 209, that "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." "Due process of law means the same as "law of the land," namely, that laws shall be general in their operation, affecting all alike. Sears v. Cottrel, 5 Mich. 251. The following cases are illustrative of these principles. The relator, being a private in a militia regiment in time of peace, was proceeded against before a regimental court martial for delinquencies, such as absence from drill, and the like. He was fined, and a warrant was issued by the court to collect the fine from his goods and chattels, and in default thereof to arrest him and confine him in a jail. These proceedings were in pursuance of a statute. On review by certiorari the statute was held valid, and the proceedings were affirmed. Courts martial in the militia existed at the adoption of the Constitution, and therefore the provisions as to jury trial and due process of law do not apply to them. People ex rel. Underwood v. Daniell, 50 N. Y. 274, affirming s. c. 6 Lans. 44. As to the validity of a statute allowing judgment against an absent defendant without publication, upon the appointment of an attorney for him by the court, see Ware v. Robinson, 9 Cal. 107. Laws allowing judgment binding the joint property of joint debtors on service of process upon one of them, have been held valid. Brooks v. McIntire, 4 Mich. 316. And a statute providing that after judgment against a corporation, the officers thereof shall be summoned to show cause why the property of individual stockholders should not be bound, instead of summoning the stockholders themselves, is, it seems, constitutional. Hampson v. Weare, 4 Iowa, 13. Also a statute allowing executors, etc., to compromise future contingent rights with the consent of the court, upon the appointment of some suitable person to represent such future contingent interests before the court, was held valid. Clarke v. Cordis, 4 Allen, 466. A statute for foreclosure of mortgages by notice and sale, at least as to all mortgages made after the law had gone into effect, was sustained in Boyd v. Elles, 11 Iowa, 97. Service by publication in civil proceedings where personal service is impracticable, is due process of law. In re Empire City B'k, 18 N. Y. 199; Hamilton &c. Ins. Co. v. Parker, 11 Allen, 574; Bond v. Hiestand, 20 La. An. 139; Mason v. Messenger, 17 Iowa, 261; Burnam v. Commonwealth, 1 Duv. (Ky.) 210. But notice by publication to persons within the Confederate lines was held void in Dean v. Nelson, 10 Wal. 159. This decision, however was based upon the effect of war. Where the proceeding is in rem for forfeiture, notice to the owner is not indispensable. Gray v. Kimball, 42 Me. 299; and see State v. Brennan's Liquors, 25 Conn. 279. But that there must be in such in rem proceedings some notice, actual or constructive, beyond the mere seizure itself, and some opportunity to defend, see Donovan v. Vicksburg, ing private roads to be laid out over the lands of an owner without his consent, provided for the damages to be assessed 29 Miss. 247; Hibbard v. People, 4 Mich. 125. A lien law as to vessels was held void which allowed sale of the vessel without personal notice or trial. Parsons v. Russell, 11 Mich. 113. But, per contra, a lien law as to vessels was held valid, there being sufficient constructive notice and opportunity for defence. Happy v. Mosher, 48 N. Y. 313. A statute of Michigan allowing rafting and booming corporations to be organized, with power to take control without consent of the owners of logs found on public waters, and to assess their own charges for such service, and to sell the logs to pay such charges, was declared void as violating most of the fundamental guaranties of private property. Ames v. Port Huron &c. Co. 11 Mich. 139. A statute forfeiting goods, etc., exposed for sale near religious meetings, was held void in Pennsylvania, as not providing for trial. Fetter v. Wilt, 46 Penn. St. 457: sed qu., for such statutes providing for similar summary proceedings are generally sustained as proper police measures to preserve the peace. In New York there are certain Indian reservations, the title to the land being in the respective tribes without power of alienation, and a statute for the summary removal of white squatters from such reservations was held valid, on the ground that they had and could have, under the Constitution and laws, no such property or right as is protected by the constitutional guaranty, such removal adjudicating no title. People v. Dibble, 16 N. Y. 203. It should be remarked that this decision proceeds upon the peculiar and exceptional condition of the Indian lands in question, rather than upon any general principles. Summary proceedings to enforce collection of taxes are valid; they do not fall within the Constitutional guaranty from the necessities of the case. High v. Shoemaker, 22 Cal. 363; Commonwealth v. Byrne, 20 Gratt. 165. Clauses as to trial by jury, due process of law, etc., are not applicable to questions of revenue and taxation between the public and an individual. Statutory prohibition of an injunction to restrain collection of tax was held valid. Pullan v. Kinsinger, 2 Abb. C. C. 94 (§ 19 of Act of July 13, 1866, as amended March 2, 1867, 14 U. S. Stat. at Large, 152, 475). But a statute for forfeiture to the State on default in payment of taxes was held void (Handy, J., dissenting). Griffen v. Mixon, 38 Miss. 424; Baker v. Killy, 11 Minn. 480; and see also Martin v. Snowden, 18 Gratt. 100. An act directing that upon conviction for a certain offence the defendant shall be adjudged indebted to the commissioners of pilotage in a certain sum, and that judgment shall be entered for such sum, though such commissioners are no parties to the proceedings, is void. Ex parte Nightengale, 12 Fla. 272. A statute for collecting taxes by distress and sale of any property in the possession of the person taxed, and giving the true owner an action against such person was held constitutional by a divided court. Sears v. Cottrell, 5 Mich. 250. A State Constitution provided that all persons shall find "a certain remedy in the laws." This was held to be violated by a statute exempting a particular case from the general law, e. g., a statute providing that no costs shall be recoverable in proceedings to set aside certain tax assessments in a designated city. Durkee v. Janesville, 28 Wisc. 464. The amendment of the Wisconsin Constitution, Art. I, § 8, in 1870, strikes out the words "unless by the presentment or indictment of a grand jury," and inserting the words "without due process of law," so that the section reads, no person shall be held to answer for a criminal offence without due process of law;" Held, that since this amendment persons may be tried for felonies without 66 |