inclusion and exclusion as cases arise] of determining what class of cases fall within this provision of the fourteenth amendment, this proposition is laid down as applicable to the case at bar:

"That whenever, by the laws of a state or by state authority, a tax, assessment, servitude, or other burden, is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections." Kennard v. Morgan, 92 U. S. 480; McMillen v. Anderson, 95 U. S. 37.

Bradley, J., concurred in the conclusion and general tenor of the opinion, but considered that it narrowed too much the scope of the inquiry as to what is due process of law.

"It seems to me," said he, "that private property may be taken by a state without due process of law in other ways than by mere direct enactment or the want of a judicial proceeding. If a state, by its laws, should authorize private property to be taken for public use without compensation (except to prevent its falling into the hands of an enemy, or to prevent the spread of a conflagration, or in virtue of some other imminent necessity, where the property itself is the cause of the public detriment), I think it would be depriving a man of his property without due process of law. The exceptions noted imply that the nature and cause of the taking are proper to be considered." Murray's Lessee v. Hoboken Land Co. 18 How. 272. "I think, therefore, we are entitled, under the fourteenth amendment, not only to see that there is some process of law, but due process of law,' provided by the state law when a citizen is deprived of his property, and that, in judging what is due process of law,' respect must be had to the cause and object of the tak

ing, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these ; and if found to be suitable or admissible in the special case, it will be adjudged to be due process of law;' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not due process of law.' Such an examination may be made without interfering with that large discretion which every legislative power has of making wide modifications in the forms of procedure in each case, according as the laws, habits, customs, and preferences of the people of the particular state may require."

§ 256 o. This subject again received elaborate examination in Hagar v. Reclamation Dist. 111 U. S. 701, where it was held that a law authorizing the imposition of a tax or assessment upon property according to its value does not deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it, either before that amount is determined or in subsequent proceedings for its collection. And Mr. Justice Field, in his opinion, thus stated the objection made to the law of California assessing the tax: "The appellant contends that this fundamental principle was violated in the assessment of his property, inasmuch as it was made without notice to him, or without his being afforded any opportunity to be heard respecting it; the law authorizing it containing no provision for such notice or hearing. His contention is that notice and opportunity to be heard are essential to render any proceeding due process of law which may lead to the deprivation of life, liberty, or property. Undoubtedly, where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the taking of property is in the enforcement of a tax, the proceeding is necessarily less formal, and whether notice to him is at all necessary may depend upon the character of the tax and the manner in which its amount is determinable. The necessity of revenue

for the support of the government does not admit of the delay attendant upon proceedings in a court of justice, and they are not required for the enforcement of taxes or assessments." After quoting from the opinion of Bradley, J., in Davidson v. New Orleans, supra, the judge continued: "The power of taxation possessed by the state may be exercised upon any subject within its jurisdiction, and to any extent not prohibited by the Constitution of the United States. As said by this court: It may touch property in every shape, — in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the Federal Constitution, the power of the state as to the mode, form, and extent of taxation is unlimited where the subjects to which it applies are within her jurisdiction. State Tax on Foreign-Held Bonds, 15 Wall. 300, 319.

"Of the different kinds of taxes which the state may impose, there is a vast number of which, from their nature, no notice can be given to the tax-payer, nor would notice be of any possible advantage to him; such as poll-taxes, license taxes (not dependent upon the extent of his business), and generally, specific taxes on things or persons or occupations. In such cases the legislature, in authorizing the tax, fixes its amount, and that is the end of the matter. If the tax be not paid, the property of the delinquent may be sold, and he be thus deprived of his property. Yet there can be no question that the proceeding is due process of law, as there is no inquiry into the weight of evidence or other element of a judicial nature, and nothing could be changed by hearing the tax-payer. No right of his is, therefore, invaded. Thus, if the tax on animals be a fixed sum per head, or on articles a fixed sum per yard or bushel or gallon, there is nothing the owner can do which can affect the amount to be collected from him. So, if a person wishes a license to do

business of a particular kind or at a particular place, such as keeping a hotel or a restaurant, or selling liquors or cigars or clothes, he has only to pay the amount required by the law and go into the business. There is no need, in such cases, for notice or hearing. So, also, if taxes are imposed in the shape of licenses for privileges, such as those on foreign corporations for doing business in the state, or on domestic corporations for franchises, if the parties desire the privilege they have only to pay the amount required. In such cases there is no necessity for notice or hearing. The amount of the tax would not be changed by it. But where a tax is levied on property not specifically but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, a different principle comes in. The officers, in estimating the value, act judicially; and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law, to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process of law."

A state statute making the property of any citizen of a town or city liable to be taken on an execution against the corporation, is not depriving him of his property "without due process of law," although he has had no notice or opportunity for a hearing before execution issues; and consequently such a statute is not in violation of the fourteenth amendment.1

§ 256 p. Criminal Prosecutions. - The meaning of the phrase "due process of law" was again elaborately considered in Hurtado v. California.2 The words due process

1 Eames v. Savage, Maine Sup. Jud. Ct. 1885, 20 Reporter, 336, in which an interesting opinion was given by Emery, J. ED.

2 110 U. S. 516. See also Kalloch v. Superior Court. 56 Cal. 229; Rowan v. The State, 30 Wis. 129. ED.

of law' in this amendment do not necessarily require an indictment by a grand jury in a prosecution by a state for murder."

The Constitution of California authorizes prosecutions for felonies by information, without indictment by grand jury. The Penal Code provides for examination by magistrate, allows the accused counsel, with a right to cross-examine witnesses, etc., and upon magistrate's certificate that accused is probably guilty an information is to be filed in the superior court of the county in the form of an indictment. It was held, that a conviction for murder upon such an informnation, and consequent sentence of death, were not illegal as in conflict with the fourteenth amendment.

Matthews, J., said (p. 520): "The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that due process of law,' when applied to prosecutions for felonies, which is secured by the fourteenth amendment." The opinion of Shaw, C. J., in 8 Gray, 329, was referred to, and the remarks of Lord Coke there cited explained at length: "This view (i. e. the one taken by this court) of the meaning of Lord Coke is the one taken by Merrick, J., in his dissenting opinion" in 8 Gray, 329. The judgment of the Supreme Court of California affirming the legality of the proceedings by which the prisoner was convicted was affirmed. The opinion is a very instructive and interesting one, as is also the dissenting opinion of Harlan, J.

That prosecutions for murder are prohibited by the fifth Article of the Constitution, without an indictment by a grand jury, is necessarily implied from the subsequent decision of Ex parte Wilson, 114 U. S. 417, in which a very exhaustive opinion is given by Mr. Justice Gray.

In Hopt v. Utah,1 Harlan, Justice, says: "The prisoner on trial for felony must be personally present at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be 1 110 U. S. 574, at p. 579.