In Muhlker v. New York & Harlem R. Co.41 there had been a complete reversal of ruling by the state court as to the legal right of the plaintiff to recover damages due to the creation of an elevated railway structure on the street upon which his property abutted. Upon error, the Supreme Court of the United States refused to follow the later decision of the state court as to the requirements of the state law. By a very forced construction the Supreme Court was able to hold that a contract right to indemnity had been violated by a state law. The court admit, however, that the question of due process of law was involved, and it would seem that the decision might have been more satisfactorily disposed of upon this ground.

It being established, then, that substantive rights of individuals. are protected by the due process of law clauses, it becomes necessary to consider what these rights of life, liberty, and property are.

§ 473. Life.

The right of life requires no definition.

§ 474. Liberty.

Liberty and property are terms which have each received definitions broad enough to cause their connotations in very considerable measure to overlap. Thus in Allgeyer v. Louisiana,12 the court, defining liberty, say: "The liberty mentioned in the Fourteenth Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the engagement of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned." With this definition of liberty, may be compared the following

41 197 U. S. 544; 25 Sup. Ct. Rep. 522; 49 L. ed. 872. 42 165 U. S. 578; 17 Sup. Ct. Rep. 427; 41 L. ed. 832.

definition, by the Supreme Court of Illinois, of property: "The right of property preserved by the Constitution," say the court, "is the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any lawful industrial pursuit which the citizen, in the exercise of the liberty guaranteed, may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage. And as an incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such way as the laborer shall deem most beneficial, and of others to employ such labor, is necessarily included in the constitutional guaranty." 43

The foregoing definitions make it sufficiently plain that contractual rights, as a species of property rights, or as included within the definition of liberty, are fully protected by the due process clauses. In Holden v. Hardy there is an explicit statement to this effect.45

The manner in which the rights of property and of liberty, including liberty of contract, are held subject to the exercise of such powers of the State as those of eminent domain, taxation, the regulation of occupations affected with a public interest, and, especially, the police power, is considered passim throughout this treatise, and does not require specific treatment in this place.

§ 475. Equal Protection of the Law.

The United States is not by the Constitution expressly forbidden to deny to anyone the equal protection of the laws, as are 43 Braceville Coal Co. v. People, 147 Ill. 66. Quoted by McGehee, Due Process of Law, p. 141.

44 169 U. S. 366; 18 Sup. Ct. Rep. 383; 42 L. ed. 780.

45 In that case the court say: As the possession of property, of which a person can not be deprived, doubtless implies that such property may be acquired, it is safe to say that a state law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same provision. Indeed, we may go a step further, and say that as property can only be legally acquired, as between living persons, by contract, a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid.

the States by the first section of the Fourteenth Amendment. It would seem, however, that the broad interpretation which the prohibition as to "due process of law" has received is sufficient to cover very many of the acts which, if committed by the States, might be attacked as denying equal protection. Thus it has been repeatedly declared that enactments of a legislature directed against particular individuals or corporations, or classes of such, without any reasonable ground for selecting them out of the general mass of individuals or corporations, amounts to a denial of due process of law so far as their life, liberty or property is af fected. One of the requirements of due process of law, as stated by the Supreme Court, is that the laws "operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government." 46

In Smyth v. Ames the authorities are reviewed, and from them the general conclusion drawn that a state law "establishing rates for the transportation of persons or property by railroad that will not admit of the carrier earning such compensation as under all the circumstances is just to it and to the public, would deprive such carrier of its property without due process of law, and deny to it the equal protection of the laws."

Throughout this case, indeed, the requirement of due process is treated as necessarily including equal protection within its scope.

The further definition of equal protection is reserved for consideration in the chapters dealing with the constitutional limitations laid upon the States.

476 The Federal Government and the Obligation of Con

tracts.

No specific inhibition is laid upon the Federal Government by the Constitution with reference to the impairment of the obligation of contracts. That government is, however, forbidden by the

46 For other similar declarations, see those quoted by McGehee, Due Process of Law, p. 61.

47 169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819.

Fifth Amendment to deprive persons of property without due process of law or to take private property for a public use without just compensation. In so far, then, as contract rights may be treated as property they are protected from direct impairment by federal action. This was definitely declared, as we have earlier seen in the first legal tender decision of Hepburn v. Griswold.48

Contracts are not, however, protected from an indirect impairment of their obligation when this incidentally results from the exercise by Congress of a legislative power constitutionally given to it. Thus in Knox v. Lee19 in which, reversing the opinion in Hepburn v. Griswold, it was held that, under its power to carry on war and to maintain its own existence, the Federal Government might authorize the issuance of legal tender notes valid in payment of debts previously contracted,50 the court deny that the obligation of contracts is thereby impaired; but they go on to say, even if it be held that the obligation of contracts is thereby impaired, this is no constitutional objection.

"Nor can it be truly asserted," the opinion declares, "that Congress may not, by its action, indirectly impair the obligation of contracts if by the expression be meant rendering contracts fruitless, or partially fruitless. Directly it may, confessedly by passing a Bankrupt Act, embracing past as well as future transactions. So it may relieve parties from their apparent obligations indirectly in a multitude of ways. It may declare war, or even in peace pass non-intercourse acts, or direct an embargo."

With reference to the due process of law requirement of the Fifth Amendment, the court say: "That provision has always been understood as referring only to a direct appropriation and not to consequential injuries resulting from the exercise of lawful power. It has not been supposed to have any bearing upon or

48 8 Wall. 603; 19 L. ed. 513.

49 12 Wall. 457; 20 L. ed. 287.

50 In a still later case, Juilliard v. Greenman (110 U. S. 421; 4 Sup. Ct. Rep. 122; 28 L. ed. 204) it was held that the power to issue legal tender notes is implied in the power to borrow money, as well as from other express power, and, therefore, may be exercised in times of peace as well as of war.

to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft or a war, may inevitably bring upon individuals great losses, may indeed render valuable property almost valueless. They may destroy the worth of contracts." But such laws, of course, are not, therefore, void.

In the Sinking Fund Cases, it is declared: "The United States cannot any more than a State interfere with private rights except for legitimate governmental purposes. They are not included within the constitutional prohibition which prevents States from passing laws impairing the obligation of contracts, but equally with the States they are prohibited from depriving persons or corporations of property without due process of law." 51 99 U. S. 700; 25 L. ed. 495.