again is not legislative. Such a review is supposed to be favorable to the tax payer, as it gives him an opportunity to take the opinion of the court upon the legality of the demand made upon him, without waiting until the collector comes and seizes his person or his property. The proceeding is the institution of a suit on behalf of the state against each individual tax payer or item of property taxed, and it calls upon the court to apply the law to the issues which such a suit presents. Of the judicial nature of such a review no question could well be raised.1 Law of the land. There is a constitutional guaranty which has come to us from Magna Charta, which declares that no person shall be deprived of life, liberty or property, except by the judgment of his peers or the law of the land. The alternative provisions of this guaranty have sometimes been supposed to mean the same thing, and the guaranty itself to entitle every person to have any demand made upon him submitted to the determination of a jury of the vicinage. Such a construction applied in tax cases would work a thorough and radical change in the principles on which taxation is now supposed to rest. It would cripple the legislative power, and subject the action of the department whose function it is to make laws on its own views of the questions of public interest and public policy which the laws involve, to a review and possible reversal at the hands of a jury. It would not so much strengthen the judicial department as it would weaken the legislative; for the courts themselves, though juries sit with and as a part of them, are compelled to recognize a large degree of independence in the action of these assistants. Such independence is often useful, and never can be seriously detrimental when a verdict determines a single controversy only; but to make juries the assessors of the claims of the state upon individuals could only introduce anarchy; one jury reaching one conclusion regarding the public needs and the justice of its demands, and another another, until the state would be without general rule, and must fall to pieces from the incurable insufficiency of its government. Such a construction of a clause 1 See Davidson v. New Orleans, 96 U. S., 97. agreed upon as an important provision in a charter of government can never have been intended.1 It has long been settled that while one is to be protected in his interests by the "law of the land," he has a right to "the judgment of his peers" only in those cases in which it has immemorially existed, or in which it has been expressly given by law. The clause recited from Magna Charta does not imply the necessity for judicial action in every case in which the property of the citizen may be taken for the public use. the contrary, a legislative act for that purpose, when clearly within the limits of legislative authority, is of itself the law of the land. And an act for levying taxes and providing the means of enforcement is, as we have seen, within the unquestioned and unquestionable power of the legislature. It is 1 This is now agreed on all hands. See Cruikshanks v. Charleston, 1 McCord, 360; State v. Mayhew, 2 Gill, 487, 497; Harper v. The Commissioners, 23 Ga., 566; State v. Frazier, 48 Ga., 137; Hagar v. Supervisors of Yolo, 47 Cal., 223; Cowles v. Brittain, 2 Hawks, 204; Commissioners v. Morrison, 22 Minn., 178; Davis v. Clinton, 55 Ia., 549; Howe v. Cambridge, 114 Mass., 388. In Harris v. Wood, 6 T. B. Monr., 641, it is remarked that taxes are recoverable not only without a jury, but without a judge, and the assessment of ministerial officers has been made to operate as an execution on the citizen, and the collector could distrain, and any public collector could be subjected to judgment on motion for the amount. "This process is not founded on a judgment; it issues without a judgment, and it is for this very reason that it is adopted. The state cannot wait the tedious process of getting a judgment. If she were compelled to do this, her honor might be compromitted, and the rights of her citizens jeoparded. Hence she clothes her collecting agents with the power to issue process at once which will at once command her means." Per Nisbet, J., in Doe v. Deavors, 11 Ga., 79, 86. For the meaning of "law of the land" in tax cases, see Kelly v. Pittsburgh, 104 U. S., 78; Pearson v. Yewdall, 95 U. S., 294; Stuart v. Palmer, 74 N. Y., 183; Dingey v. Paxton, 60 Miss., 1038; Pritchard v. Madren, 24 Kan., 486; Astor v. Mayor, 37 N. Y. Super. Court, 539, 561. While the taxing power is great, it is not within the authority of the legislature to direct the collection by ex parte and arbitrary proceedings as a tax, a sum which is in fact payable as rent of lands. McFadden v. Longham, 58 Tex., 579. 2 Kelly v. Pittsburgh, 104 U. S., 78; Hagar v. Reclamation District, 111 U. S., 701. This subject was much considered in Weimer v. Bunbury, 30 Mich., 201, 212. The following is an extract from the opinion: "There is nothing technical, or we think obscure, in the requirement that process which divests property shall be due process of law. The constitution makes no attempt to define such process, but assumes that custom therefore the law of the land not merely in so far as it lays down a general rule to be observed, but in all the proceedings and all the process which it points out or provides for in order to give the rule full operation. As has been well said, "the mode of levying as well as the right of imposing taxes is completely and exclusively within the legislative power, which, it is to be presumed, will always be exercised with an equal regard to the security of the public and individual rights and convenience. The existence of government depending on the prompt and regular collection of revenue must, as an object of primary importance, be insured in such a way as the wisdom of the legislature may prescribe. There is a tacit condition annexed to the ownership of property that it shall contribute to the public revenue in such mode and proportion as the legis lative will shall direct; and if the officers intrusted with the execution of the laws transcend their powers to the injury of and law have already settled what it is. Even in judicial proceedings we do not ascertain from the constitution what is lawful process, but we test the action by principles which were before the constitution, and the benefit of which we assume that the constitution was intended to perpetuate. If there existed, before that instrument was adopted, well known administrative proceedings which, having their origin in a legislative conviction of their necessity, had been sanctioned by long and general acceptance, we are no more at liberty to infer an intent in the people to prohibit them by implication from any general language, than we should be to infer an intent to abridge the judicial authority by the use of similar words. The truth is, the bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory; and they assume that the existing principles of the common law are ample for the protection of individual rights, when once incorporated in the fundamental law, and thus secured against violation. "We are, therefore, of necessity driven to an examination of the previous condition of things, if we would understand the meaning of due process of law, as the constitution employs the term. Nothing previously in use, regarded as necessary in government and sanctioned by usage, can be looked upon as condemned by it. Administrative process of the customary sort is as much due process of law as judicial process. We should meet a great many unexpected and yery serious embarrassments in government if this were otherwise." The appointment of a drain commissioner by a court, with power to lay out drains regardless of wishes of those concerned, and to levy taxes to pay the cost, at least when made without an opportunity for hearing, is unconstitutional and void. Whiteford v. Probate Judge, 53 Mich., 130. an individual, the common law entitles him to redress. But to pursue every delinquent liable to pay taxes through the forms of process and a jury trial, would materially impede, if not wholly obstruct, the collection of the revenue." There is no room for the supposition that in a matter of this public importance, where promptness in collection is always desirable, and often imperative, dilatory proceedings of this nature were within the contemplation of the people when consenting to any general provision of the constitution. It is safer, and, as we believe, more correct, to say that our constitutions have been framed and agreed upon in view of an immemorial practice and rule of government, under which the whole subject has been intrusted to the legislative department; and they are to be understood and construed in the light of that practice wherever the people have not expressly undertaken to change it. This subject has acquired additional importance since the adoption of the fourteenth amendment to the federal constitution, which provides, among other things, that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Since this amendment, whenever it is claimed that a revenue law, either in intent or 1 Taylor, Ch. J., in Cowles v. Brittain, 2 Hawks, 204, 207; Crockett, J., in Hagar v. Supervisors of Yolo, 47 Cal., 222, 233. See Reclamation District v. Evans, 61 Cal., 104. 2 See Cowles v. Brittain, 2 Hawks, 204, 207; State v. Allen, 2 McCord, 55, 60, per Nott, J.; Sears v. Cottrell, 5 Mich., 251; High v. Shoemaker, 22 Cal., 363; Harper v. The Commissioners, 23 Ga., 566; Tift v. Griffin, 5 Ga., 185, 191. And see Robertson v. Land Commissioner, 44 Mich., 274, for limitations upon this doctrine. The sale of lands to satisfy a void street assessment, which the legislature has unconstitutionally attempted to legalize, would be depriving the owner of property without due process of law. Brady v. King, 53 Cal., 44. See Harper v. Rowe, 53 Cal., 233; Dundee Mortgage Co. v. School District, 19 Fed. Rep., 359. The fact that the value of railroad property is to be ascertained by a state board and all other property by a county board, each being equally charged to ascertain the actual value of the property assessed, does not violate the fourteenth amendment to the federal constitution. San Francisco, etc., R. Co. v. State Board, 60 Cal., 12. in administration, deprives the owner of his property without due process of law, or takes from any person his right to the equal protection of the laws with all others, a federal question may be raised upon which the decision of the federal supreme court will be authoritative and conclusive. It is therefore of high importance to know what that court has decided under this amendment in tax cases. First, It has been decided that the revenue laws of a state may be in harmony with the fourteenth amendment, though they do not provide for giving a party an opportunity to be present when the tax is assessed against him, and to be then heard, if they give him the right to be heard afterwards in a suit to enjoin the collection, in which both the validity of the tax, and the amount of it, may be contested. It is immaterial to this question that the party to the suit is required, as in other injunction cases, to give security when instituting the suit. Second, It has been decided that due process of law did not require judicial proceedings in enforcing a tax,' but that it was competent to provide for them, and therefore it was due process of law when the statute provided that the questions involved in the laying of an assessment should be submitted to a court of justice, with notice to the parties concerned, and opportunity on their part to appear and make contest; that neither the alleged excessive price paid for the work for which the assessment was laid, nor the relative importance of the work to the value of the land, nor the fact that the assessment was made before the work was done, and was unjust as regards benefits conferred, nor that personal judgments were rendered, would render the assessment void under the federal constitution. Third, It has been held that the federal courts could not inquire into the propriety or justice of legislative action in annexing adjacent territory to a city, with a view to restrain the collection of taxes levied for city purposes in the annexed territory, if in their opinion they should find the com 1 McMillen v. Anderson, 95 U. S., 37; Hagar v. Reclamation District, 111 U. S., 701. See Pearson v. Yewdall, 95 U. S., 294. 2 McMillen v. Anderson, 95 U. S., 37. 3 McMillen v. Anderson, 95 U. S., 37. 4 Davidson v. New Orleans, 96 U. S., 97; Hagar v. Reclamation District, 111 U. S., 701. |