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which the title to property may pass from one person to another, without the intervention of judicial proceedings, properly so called ; and we have already seen that special legislative acts designed

to accomplish the like end have also been held valid in [* 355] * some cases. The necessity for “ general rules," there* .

fore, does not preclude the legislature from establishing special rules for particular cases, provided the particular cases range themselves under some general rule of legislative power ; nor is there any requirement of judicial action which demands that, in every case, the parties interested shall have a hearing in court.1

On the other hand we shall find that general rules may sometimes be as obnoxious as special, if they operate to deprive individual citizens of vested rights. While every man has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the


Constitution; for what is in that sense the law of the land must be duly observed by all, and upheld and enforced by the courts. In reference to the infliction of punishment and devesting the rights of property, it has been repeatedly held in this State, and it is believed in every other of the Union, that there are limitations upon the legislative power, notwithstanding these words; and that the clause itself means that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode, and usages of the common law, as derived from our forefathers, are not effectually • laws of the land' for those purposes.” Hoke v. Henderson, 4 Dev. 15. Mr. Broom says: “It is indeed an essential principle of the law of England, that the subject bath an undoubted property in his goods and possessions; otherwise there shall remain no more industry, no more justice, no more valor; for who will labor? who will bazard his person in the day of battle for that which is not his own?' The Banker's Case, by Turnor, 10. And therefore our customary law is not more solicitous about any thing than to preserve the property of the subject from the inundation of the prerogative.' Ibid.” Broom's Const. Law,


228. See Wynehamer v. People, 13 N. Y. 432, per Selden, J. In James v. Reynolds, 2 Texas, 251, Chief Justice Hemphill says: " The terms law of the land'.. are now, in their most usual acceptation, regarded as general public laws, binding upon all the members of the community, under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals.” And see Vanzant v. Waddell, 2 Yerg. 269, per Peck, J.; Hard v. Nearing, 44 Barb. 472. Nevertheless there are many cases, as we have shown, ante, pp. 97, 109, in which private laws may be passed in entire accord with the general public rules which govern the State; and we shall refer to more cases further on.

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whole community is also entitled, at all times, to demand the protection of the ancient principles which shield private rights against arbitrary interference, even though such interference may be under a rule impartial in its operation. It is not the partial nature of the rule, so much as its arbitrary and unusual character, which condemns it as unknown to the law of the land. Mr. Justice Edwards has said in one case : “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.” And we have met in no judicial decision a statement that embodies more tersely and accurately the correct view of the principle we are considering, than the following, from an opinion by Mr. Justice Johnson of the Supreme Court of the United States : “As to the words from Magna Charta incorporated in the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this, — that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” 2

* The principles, then, upon which the process is based [* 356] are to determine whether it is “ due process

or not, and not any considerations of mere form. Administrative and remedial process may change from time to time, but only with due regard to the landmarks established for the protection of the citizen. When the government through its established agencies interferes with the title to one's property, or with his independent enjoyment of it,

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! Westervelt v. Gregg, 12 N. Y. 209. See also State v. Staten, 6 Cold. 233.

? Bank of Columbia v. Okely, 4 Wheat. 235. " What is meant by the law of the land'? In this State, taking as our guide Zylstra's Case, 1 Bay 384 ; White v. Kendrick, 1 Brev. 471; State v. Coleman and Maxy, 1 McMull. 502, there can be no hesitation in saying that these words mean the common law and the statute law existing in this State at the adoption of our constitution. Altogether they constitute a body of law prescribing the course of justice to which a free man is to be considered amenable for all time to come." Per O'Neill, J., in State v. Simons, 2 Speers, 767. See also State v. Doherty, 60 Me. 509. It must not be understood from this, however, that it would not be competent to change either the common law or the statute law, so long as the principles therein embodied, and which protected private rights, were not departed from.

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and its action is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merely. In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession ;1 but when property is appropriated by the government to public uses, or the legislature interferes to give direction to its title through remedial statutes, different considerations from those which regard the controversies between man and man must prevail, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the special case. Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.?

Private rights may be interfered with by either the legislative, executive, or judicial department of the government. The executive

department in every instance must show authority of law [* 357] for its action, and occasion does not often arise * for an

examination of the limits which circumscribe its powers. The legislative department may in some cases constitutionally authorize interference, and in others may interpose by direct action. Elsewhere we shall consider the police power of the State, and endeavor to show how completely all the property, as well as all the people within the State, are subject to control under it, within certain limits, and for the purposes for which that power is exercised. The right of eminent domain and the right of taxation will also be discussed separately, and it will appear that under each the law of the land sanctions devesting individuals of their prop

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1 Vanzant v. Waddell, 2 Yerg. 260; Lenz o. Charlton, 23 Wis. 478.

? See Wynebamer v. People, 13 N. Y. 432, per Selden, J. In State v. Allen, 2 McCord, 56, the court, in speaking of process for the collection of taxes, say: “We think that any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative • law of the land.'” And see Hard v. Nearing, 44 Barb. 472; Sears v. Cottrell, 5 Mich. 251; Gibson v. Mason, 5 Nev. 302.


erty against their will, and by somewhat summary proceedings. In every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they generally surround it with safeguards to prevent abuse. The restraints are, that when specific property is taken, a pecuniary compensation, agreed upon or determined by judicial inquiry, must be paid ; and in other cases property can only be taken for the support of the government, and each citizen can only be required to contribute his proportion to that end. But there is no rule or principle • known to our system under which private property can be taken

from one person and transferred to another, for the private use and benefit of such other person, whether by general law or by special enactment. The purpose must be public, and must have reference to the needs or convenience of the public. No reason of general public policy will be sufficient, it seems, to validate such transfers when they operate upon existing vested rights.

Nevertheless, in many cases and many ways remedial legislation may affect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even devest legal titles in favor of substantial equities where the legal and equitable rights do not chance to concur in the same persons.

The chief restriction upon this class of legislation is, that vested rights must not be disturbed ; * but in its appli- [* 358] cation as a shield of protection, the term “ vested rights” is not used in any narrow or technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice. The right to private prop

| Taylor o. Porter, 4 Hill, 140; Osborn v. Hart, 24 Wis. 91; s. c. 1 Am. Rep. 161. In matter of Albany Street, 11 Wend. 149, it is intimated that the clause in the Constitution of New York, withholding private prop rty from public use except upon compensation made, of itself implies that it is not to be taken in invitum for individual use. And see matter of John and Cherry Streets, 19 Wend. 676. A different opinion seems to have been held by the Supreme Court of Pennsylvania, when they decided in Harvey v. Thomas, 10 Watts, 63, that the legislature might authorize the laying out of private ways over the lands of unwilling parties, to connect the coal-beds with the works of public improvement, the constitution not in terms prohibiting it. See note to p. 531, post.


erty is a sacred right; not, as has been justly said, “ introduced as the result of princes' edicts, concessions and charters, but it was the old fundamental law, springing from the original frame and constitution of the realm.” 1

But as it is a right which rests upon equities, it has its reasonable limits and restrictions ; it must have some regard to the general welfare and public policy; it cannot be a right which is to be examined, settled, and defended on a distinct and separate consideration of the individual case, but rather on broad and general grounds, which embrace the welfare of the whole community, and which seek the equal and impartial protection of the interests of all.?

And it may be well at this point to examine in the light of the reported cases the question, What is a vested right in the constitutional sense ? and when we have solved that question, we may be the better able to judge under what circumstances one may be justified in resisting a change in the general laws of the State affecting his interests, and how far special legislation may control his rights without coming under legal condemnation. In organized society every man holds all he possesses, and looks forward to all he hopes for, through the aid and under the protection of the laws; but as changes of circumstances and of public opinion, as well as other reasons affecting the public policy, are all the while calling for changes in the laws, and as these changes must influence more or less the value fand stability of private possessions, and strengthen or destroy well-founded hopes, and as the power to make very many of them could not be disputed without denying the right of the political community to prosper and advance, it is obvious that many rights, privileges, and exemptions which usually pertain to ownership under a particular state of the law, and many reasonable expectations, cannot be regarded as vested rights in any legal sense. In many cases the courts, in the exercise of their ordinary jurisdiction, cause the property vested in one person to be trans

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Arg. Nightingale v. Bridges, Show. 138. See also Case of Alton Woods, 1 Rep. 45 a; Alcock v. Cook, 5 Bing. 340; Bowman v. Middleton, 1 Bay, 282; ante, p. 37 and note, p. 175 and note.

2 The evidences of a man's rights - the deeds, bills of sale, promissory notes, and the like are protected equally with his lands and chattels, or rights and franchises of any kind; and the certificate of registration and right to vote may be properly included in the category. State v. Staten, 6 Cold. 243. See Davies v. McKeeby, 5 Nev. 369.

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