French v. Barber Asphalt Pav. Co

point out that some of our cases arose under the provisions of the 5th, and others under those of the 14th, Amendments to the Constitution of the United States. While the language of those amendments is the same, yet, as they were ingrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper. Slaughter-House Cases, 16 Wall. 36, 77, 80, 21 L. Ed. 394. 409.

Thus it was said, in Davidson v. New Orleans, 96 U. S. 97-103, 24 L. Ed. 616-619:

"It is not a little remarkable that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the states. only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the 14th Amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded."

However, we shall not attempt to define what it is for a state to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the state, and exclude those which are not, but shall proceed, in the present case, on the assumption that the legal import of the phrase "due process of law" is the same in both amendments. Certainly, it cannot be supposed that by the 14th Amendment it was intended to impose on the states, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the Federal government, in a similar exercise of power, by the 5th Amendment.

Let us, then, inquire as briefly as possible what has been decided by this court as to the scope and effect of the phrase "due process of law," as applied to legislative power.

One of the earliest cases in which was examined the historical and legal meaning of those words is Den ex dem. Murray v.

French v. Barber Asphalt Pav. Co

Hoboken Land & Improv. Co. 18 How. 272, 15 L. Ed. 372. The question involved was the validity of a sale of real estate made under a distress warrant, authorized by a statute of the United States (3 Stat. at L. 592, chap. 107), against a defaulting collector of customs. It was contended that such a proceeding deprived the owner of property without due process of law, contrary to the 5th Amendment; that by "process of law" was meant a charge, defense, judgment before and by a legally constituted court. The question was thus stated by Mr. Justice Curtis:

"That the warrant now in question is legal process is not denied. It was issued in conformity with an act of Congress. But is it 'due process of law?' The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. 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."

Pursuing the lines of inquiry thus indicated, the court reached the conclusions that, in ascertaining and enforcing payment of taxes and of balances due from receivers of the revenue in England, the methods have varied widely from the usual course of the common law on other subjects, and that, as respects such debts, the "law of the land" authorized the employment of auditors, and an inquisition without notice, and a species of examination bearing a very close resemblance to the warrant of distress in the act of Congress in question; that this diversity in the law of the land between revenue defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the states after the Declaration of Independence and before the formation of the Constitution of the United States; that not only was the process of distress in nearly or quite universal use for the collection of taxes, but what was generally termed a warrant of distress, running against the body, goods, and chattels of defaulting receivers of public money, was issued to some public officer, to whom was

French v. Barber Asphalt Pav. Co

committed the power to ascertain the amount of the default, and by such warrant proceed to collect it; and that, accordingly, the distress warrant in question was not inconsistent with that part of the Constitution which prohibits a citizen from being deprived of his property without due process of law.

In Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678, there was presented the question whether the 14th Amendment availed to secure to a citizen of Louisiana a right of trial by jury as against an act of that state which provided that in certain circumstances a case enforcing penalties should be tried by the judge; and it was held that "the states, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the 14th Amendment to abridge. A state cannot deprive a person of his property without due process of law, but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 280, 15 L. Ed. 376. Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state. Our power over that law is only to determine whether it is in conflict with the supreme law of the land.-that is to say, with the Constitution and laws of the United States made in pursuance thereof, -or with any treaty made under the authority of the United States. Here the state court has decided that the proceeding below was in accordance with the law of the state; and we do not find that to be contrary to the Constitution or any law or treaty of the United States."

McMillen v. Anderson, 95 U. S. 37, 41, 24 L. Ed. 335, was a case wherein was involved the validity of a law of the state of Louisiana, whereby a tax collector was authorized to seize property and sell it in order to enforce payment of a license tax, and which was alleged to be opposed to the provision of the 14th Amendment of the Constitution, which declares that no state shall deprive any person of life, liberty, or property without due process of law; but it was said by this court:

"Looking at the Louisiana statute here assailed,

we feel bound to say that, if it is void on the ground assumed, the revenue laws of nearly all the states will be found void for the same reason. The mode of assessing taxes in the states, by the Federal government, and by all 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

French v. Barber Asphalt Pav. Co

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. We need not here go into the literature of that constitutional provision, because in any view that can be taken of it the statute under consideration does not violate it. It enacts that when any person shall refuse or fail to pay his license tax, the collector shall give ten days' written or printed notice to the delinquent requiring its payment, and the manner of giving this notice is fully prescribed. If at the expiration of this time the license 'be not fully paid, the tax collector may, without judicial formality, proceed to seize and sell, after ten days' advertisement, the property' of the delinquent, or so much as may be necessary to pay the tax and costs. Here is a notice that the party is assessed, by the proper officer, for a given sum as a tax of a certain kind, and ten days' time given him to pay it. Is not this a legal mode of proceeding? It seems to be supposed that it is essential to the validity of this tax that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. But this is not, and never has been, considered necessary to the validity of a tax. And the fact that most of the states now have boards of revisers of tax assessments does not prove that taxes levied without them are void."

Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, was a case wherein an assessment of certain real estate in New Orleans for draining the swamps of that city was resisted in the state courts, and was by writ of error brought to this court on the ground that the proceeding deprived the owner of his property without due process of law. The origin and history. of this provision of the Constitution, as found in Magna Charta and in the 5th and 14th Amendments to the Constitution, were again considered; the cases of Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 15 L. Ed. 372. and McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335, were cited and approved; and it was held that "neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the state authorities are controlled by the Federal Constitution."

In Springer v. United States, 102 U. S. 586, 26 L. Ed. 253, was involved the validity of an act of Congress, June 30, 1864 (13 Stat. at L. 218, chap. 172), whereby lands of A were distrained and sold by reason of his refusal to pay a tax

French v. Barber Asphalt Pav. Co

assessed against him; and it was contended that the sale of defendant's real estate, to satisfy the tax assessed upon him, in a summary manner, without first having obtained a judgment in a court of law, was a proceeding to deprive the defendant of his property without due process of law; that by "due process of law" is meant law in its regular course of administration by the courts of justice, and not the execution of a power vested in ministerial officers. But this court, after citing Den ex dem. Murray v. Hoboken Land & Improv. Co. as holding that an act of Congress authorizing a warrant to issue, without oath, against a public debtor, for the seizure of his property, was valid, and that the proceeding was "due process of law," said:

"The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of a government. The idea that every taxpayer is entitled to the delays of litigation is unreasonable. If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.

In Missouri v. Lewis, 101 U. S. 22. sub nom. Bowman v. Lewis, 25 L. Ed. 989, the 14th Amendment was invoked to invalidate legislation of the state of Missouri regulating the right of appeal and of writs of error, and whereby suitors in the courts of St. Louis and certain other named counties were denied the right of appeal to the supreme court of Missouri in cases where it gave that right to suitors in the courts of the other counties of the state. Speaking for the court Mr. Justice Bradley said:

"If this position is correct, the 14th Amendment has a much more far-reaching effect than has been supposed. would render invalid all limitations of jurisdiction based on the amount or character of the demand. A party having a claim for only $5 could with equal propriety complain that he is deprived of a right enjoyed by other citizens, because he cannot prosecute it in the superior courts; and another might equally complain that he cannot bring a suit for real estate in a justice's court, where the expense is small and the proceedings are expeditious. There is no difference in principle between such discriminations as these in the jurisdictions of courts and that which the plaintiff in error complains of in the present case.

"If, however, we take into view the general objects and purposes of the 14th Amendment, we shall find no reasonable ground for giving it any such application. These are to extend United States citizenship to all natives and naturalized persons, and to prohibit the states from abridging their privileges or immunities, and from depriving any person of life, liberty, or property without due process of law, and from denying to any person within their jurisdiction the equal pro