It has been held that the infliction of cruel and unusual punishment is not prohibited to the States by the fourteenth amendment.34 This same question, but as to double jeopardy, was raised but not determined in Dreyer v. Illinois.35 There have been conflicting opinions as to whether the taking of property by the States for public purposes, without compensation, is a violation of the section of the fourteenth amendment under discussion.36

37

The better rule on this whole subject and the one now generally adopted by the courts is "that the nature of the right denied, whether or not that right is guaranteed by the fifth or any other of the earlier amendments restraining federal action, determines whether due process is present as required by the fourteenth amendment. This rule may be objected to as too vague and uncertain. The answer to such objection must be that any more explicit rule would be inaccurate. Each case invoking this question, just as each case invoking the question as to the extent of the police power, must be determined by the courts upon its own particular facts.

The nature and elements of "due process of law" are thus discussed in a recent work: "At the beginning of this book, due process of law or law of the land was said to imply the administration of equal laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the case and proceeding upon notice and hearing. The several distinct elements whose presence is necessary to constitute due process as thus characterized have grouped themselves around that phrase at various times and under the exigency of various circumstances. Most of them had a distinct legal history before they were associated in one of their aspects as constituting due process. As one or another of the principles involved in due process has been prominent in the minds of judges and jurists, definitions of the

In re Kemmuler, 135 U. S. 436. 187 U. S. 85.

See Fallbrook Irrigation District v. Bradley, 164 U. S. 112, where there is dicta to the effect

that it is not, and Chicago ete. Railway Co. v. Chicago, 166 U. S. 226, where it is held that it is.

MeGeher on Due Process of Law, p. 33.

law of the land' and 'due process of law' have been framed wherein specific aspects of the conception have occupied the center of the mental picture. Each embodies a true but partial view of due process.

38

The following definition was given by Daniel Webster in his famous argument in the Dartmouth College Case.39 "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts of revising judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under.”

The Supreme Court of the United States has had many occasions to pass upon the meaning of this phrase. Among the definitions given by this court have been the following: "By due process of law is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected.1o "Due process of law is a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity there must be a tribunal competent by its constitution-that is, by the law of its creator-to pass upon the subject of the suit."1

The question as to what constitutes due process of law was again

as McGehea on Due Process of Law, p. 49.

39 Dartmouth College v. Woodward, 4 Wheaton, 518.

40 Hager v. Reclamation District No. 108, 111 U. S. 701.

"Pennoyer v. Neff, 95 U. S. 714.

42

passed upon by the Supreme Court in Kennard v. Louisiana, where it was held that the due course of legal proceedings, according to these rules and forms which have been established for the protection of private rights, is due process of law. Irregularities and mere errors in the proceedings of State courts can only be corrected in those courts.

The authority of the United States Supreme Court does not extend beyond an examination of the power of the State courts to proceed at all. A State act is not in violation of the provision in the United States Constitution which prohibits any State from depriving any person of life, liberty or property without due process of law, when ample provision is made for the trial of the case before a court of competent jurisdiction: for bringing the party against whom the proceedings is had before the court, notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from the judgment to the highest court of the State, and for hearing and judgment there.

§ 273. Equal protection of the laws. The equal protection of the laws provided for by the fourteenth amendment applies to all persons of either sex, of any age, of any race. native, foreign or alien, so that they be within the jurisdiction of the United States.13 Senator Summer, in a speech in support of this amendment, said:

"These are no vain words. Within the sphere of their influence no person can be created, no person can be born, with civil or political privileges not equally enjoyed by all his fellow citizens; nor can any institution be established recognizing distinction of birth. Here is the great charter of every human being drawing vital breath upon this soil, whatever may be his condition and whoever may be his parents. He may be poor. weak, humble or black; he may be of Caucasian, Jewish, Indian or Ethiopian race; he may be of French, German, English or Irish extraction; but before the Constitution all these distinctions disappear. He is not poor, weak, humble or black; nor is

492 U. S. 480.

43

Slaughter House Cases, 16

Wall. 36; Brannon on the Fourteenth Amendment, p. 318.

he Caucasian, Jew, Indian or Ethiopian; nor is he French, German, English or Irish. He is Man, the equal of all his fellow men. He is one of the children of the State, which, like an impartial parent, regards all its offsprings with an equal care. To some it may justly allot higher duties according to higher capacities; but it welcomes all to its equal, hospitable board. The State, imitating the divine justice, is no respector of persons."44

This clause of the amendment is for the protection of persons against unjust discriminations by the governments of the States, and not for their protection against other individuals. It operates upon all the agencies by which State law is made and enforced upon all departments of the State governments, and upon all public corporations created by the State. 45

46

This provision does not take away from the State the proper exercise of the police power. Judge Field, in the opinion in Barbier v. Connolly, said that this provision "meant not only that there should be no arbitrary spoliation of property, but that equal protection and security should be given to all alike under like circumstances in the enjoyment of their personal and civil rights, that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their person and property, the prevention and redress of wrongs, and the enforcement of contracts, that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no difference or higher punishment should be imposed upon one than such as is prescribed to all for like offenses. But neither the amendment, broad as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes called the police power, to prescribe regulations, to promote the health,

44 Brannon's Fourteenth Amendment, p. 318-9.

45 Ex parte Virginia, 100 U. S.

339; C., B. & Q. Ry. Co. v. Chicago, 166 U. S. 226.

"113 U. S. 27.

peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. From the very necessity of society, legislation of a special character, having these objects in view, must often be had in certain districts. such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefit-for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though in many respects necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. In the execution of admitted powers unnecessary proceedings are often required which are cumbersome, dilatory and expensive, yet, if no discrimination be made, and no substantial right be impaired, they are not ob noxious to any constitutional objection. The inconveniences from this clause in the administration of the law are matters entirely for the consideration of the State; they can be remedied only by the State."

Classifications of persons and property, for the purposes of taxation, regulation, local government, etc., are constitutional." Such classifications, however, must be based upon some reasonable ground of differentiation and must not be unjust. "The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amend ment, and in all cases it must appear, not merely that a classification has been made, but also that it is based on some reasonable ground-something which bears a just and proper relation to Kentucky R. R. Tax Cases, 115 U. S. 321.

47