Page:Federal Reporter, 1st Series, Volume 1.djvu/675

 LA VIN V. EMIGRANT INDU8TEIAL 8AVINGS BANK. Ô61 �justice. This rule of the common law is obviously intiniately connected with the constitutional prohibition upon the states and the general government, forbidding them to deprive any person of his property without "due process of law." �Those constitutional guaranties were devised and intended to perpetuate and guard against legislative and judicia^ infringement this principle of English and American liberty. Indeed, some eminent authorities have gone so far as to say that, independently of the constitutional restrictions on the powers of government embraced in the prohibitions against the violation of the obligation of contracts, and the taking of private property from one person and giving it to another without due process of law, the legislative power in these states does not extend so far on the ground that such en- croachments on private rights are not a proper subject of gov- ernmental action. By Story, J,, Williamson v. Leland, 2 Peters, 657; by Bronson, J., Taylor-v. Porter, 4 Hill, 144. �Tested by these authorities, the proceedings by which, if they are valid, the plaintiff has been deprived of his property cannot be considered due process of law. Without any pro- cess whatever, so far as he is concerned, and without notice to him, aotual or constructive ; without his having any oppor- tunity to be heard in defence of his title, and by force of a decree or decision of a court thus made which is declared by statute to be conclusive of the fact found that he is dead, the title to this property, which belongs to him, is transferred to another. The fact that other persons, his next of kin, had notice, is immaterial. Their interest in the matter is adverse to him, and if the proceedings were by "due process of law" as to them, that cannot make them so as to him. �In fact, the whole proceeding is based on the idea that there was no longer any such person as this plaintiff, and conse- quently the statute s made no provision whatever for notice to or process to be sarved on him. He was not in any sense a party to the proceeding, and, according to the principles of common law, the decision was not binding upon him. As re- peatedly held by the supreme court the decision by the sur- rogate, as against him, that he is dead, cannot be regarded ��� �