Both state and federal constitutions also contain provisions against excessive bail, excessive fines, and cruel and unusual punishments. They also contain provisions to the effect that no person's life or limbs shall be placed twice in jeopardy for the same act.

§ 599. Due process of the law and equal protection of the laws in regard to procedure.-The fifth amendment and fourteenth amendment of the federal constitution forbid the general government and the states respectively from depriving any person of life, liberty or property without due process of law. The fourteenth amendment also prohibits any state from denying "to any person within its jurisdiction the equal protection of the laws." The principle back of these provisions is not that the government shall never in any way interfere with life, liberty or property, where such interference is deemed necessary to preserve the public welfare, but its real meaning is that it shall not under the guise of advancing the public welfare, unreasonably and arbitrarily interfere with the life, liberty and property of individuals.

These guaranties apply to procedure as well as to substantive law. They do not guarantee any particular kind of procedure, but they do protect the citizen against any kind of procedure that is arbitrary or contrary to the established laws of the land. Thus where the law provides that in certain kinds of judicial procedure notice and hearing must be given to the party affected and notice and hearing is not given, the proceedings will be void and any judgment affecting life, liberty or property will be without due process of law and void. So where negroes were prohibited from serving on juries and a negro was being tried it was held that his conviction was void, since his trial under such conditions amounted to a denial of equal protection of the law. Due process of law, however,

does not always guarantee judicial proceedings, but it does secure proceedings in accordance with the law and guarantees against those that are arbitrary and unjust.

§ 600. Due process and equal protection of the laws in regard to the police power.-The police power may be roughly defined as the power of the state to regulate conduct and property in the interest of the public welfare. It is under this power that the state regulates hours of labor, public morals, safety and convenience, and makes similar provisions in the interests of the state. In making these provisions the state is subject to the limitations of the due process and equal protection of the laws provisions of the fourteenth amendment. As observed in the foregoing section, these limitations do not protect the state from interfering with life, liberty, and property where necessary to preserve the public welfare. They do, however, prohibit arbitrary inference under the guise of reasonable regulation. The difficult question, then, is to determine when a given law is a reasonable regulation and when it is an arbitrary interference. That in turn depends upon the answer to the question as to whether or not the law before the court can conceivably have any reasonable relation or connection with the public welfare. If there is such a conceivable relation, the court will hold it valid even though it thinks the law to be unwise and unjust. Where, however, the court finds, as a matter of fact, that there is no such conceivable relation and that the law does invade the right of life, liberty and property, then they will hold it void as an unconstitutional interference with private rights. Thus where a state prohibited minors from working more than eight hours a day underground it was contended that that was an unconstitutional interference with the liberty of the

miner to work under such conditions as he pleased. The court held, however, that since the statute had a relation to the health and welfare of the citizens of the state, it was not an arbitrary interference with liberty, but a reasonable regulation and therefore, not prohibited by the provisions of the fourteenth amendment. Where a tenement-house owner was compelled to make expensive improvements in order to put the tenements in sanitary condition, he objected to the validity of the law as an interference with his rights of property, but the court held that it was a reasonable regulation calculated to preserve the public health and not an unwarranted invasion of private property.

§ 601. Due process of law and equal protection of the law in regard to taxation.-The constitution of the states and the federal government all make more or less extensive provisions limiting and regulating the state's power to tax. These regulations must be observed if the tax is to be valid. The most important limitations upon the taxing power, however, are found in the due process and equal protection of the laws which the constitution guarantees. To bring taxation within these provisions three things are necessary: first, that the state must have jurisdiction of the thing taxed; second, that the tax must be levied for a public purpose; and thirdly, that the classification of the objects taxed shall not be based upon an arbitrary and accidental basis. To tax property without complying with these qualifications amounts to taking of property without due process of law and, therefore, such taxation is void. Whether the government has jurisdiction of the thing taxed depends upon whether it has a legal situs within the limits of the state. Real estate and tangible chattels may be taxed in a state where they are actually situated. Debts have a

taxable situs at the domicile of the creditor. Thus, if a state levies a tax upon real property situated in another state, such a tax is void, since jurisdiction is lacking. Just what is a taxable situs for some kinds of property presents many difficult and technical questions which can. not be treated here.

Where a state attempted to authorize a municipality to tax for the benefit of certain private individuals, the tax was held to be void, since it was not for a public purpose. To allow the state to take money out of the hands of A, through its power of taxation, and pay it into the hands of B, amounts to taking of property without due process.

If a state should tax men who had red hair and not other men, the tax would be void, as the taking of property without due process and as a denial of equal protection of the law. Such classification has nothing but an arbitrary and accidental basis. However, the state may tax houses and not barns, and may tax cattle and not tax horses. Such classifications are not based upon arbitrary and accidental considerations, but upon considerations that may conceivably be pertinent to the question of taxation.

§ 602. Due process and equal protection of law in regard to eminent domain.-The federal and state constitutions provide that where private property is taken for a public use just compensation must be made. What constitutes a public purpose is a very difficult question to determine, but the courts generally agree that where the purpose is a broad one, involving the health, welfare, safety and convenience of the community, that it is a public purpose. There is some conflict of authority as to whether æsthetic consideration amounts to a public purpose the weight of authority holding that it is not. To take property under eminent domain, but not for public

purpose, would not only violate the constitutional provisions regarding eminent domain, but would also be the taking of property without due process.

The question frequently arises as to what constitutes. a taking and it is generally held that any physical occupation or substantial intrusion of tangible material upon the property amounts to a taking. Thus it has been held that a substantial flooding of land by water amounted to a taking, but that a ringing of a bell which was a nuisance or the pollution of the atmosphere by certain gas was not a taking within the meaning of the constitution.

§ 603. Laws impairing the obligation of contracts. -The federal, constitution provides that "no state shall pass any law impairing the obligation of contracts." There is no such expressed provision applying to the federal government, but it has been held that contracts are property and, therefore, the federal government is prevented from interfering with them by the fifth amendment which forbids the taking of property without due process. Grants, corporation charters, and ordinary agreements have been held to be contracts within the meaning of this provision. An impairment of the obligation of a contract is anything which prevents one of the parties from performing or which materially impairs the remedies for the breach of the contract. Thus, it has been held that a state law postponing or impeding a collection of debts by creditors is unconstitutional and void. A statute of frauds embracing a pre-existing contract not before required to be in writing is void as in conflict with this provision. A state law repudiating its bond issue or refusing to accept bonds in payment for taxes as was previously provided is unconstitutional on the same grounds. In the historic Dartmouth College case it was held that a statute changing the terms of the charter was