Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/482

 § 473.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. process of law is a restriction on the power of the state govern- ments acting in any manner whatsoever, and on the power of the Federal government. 1 § 472. When applied to judicial proceedings, the term " due process of law " means a course of legal proceedings according to the rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings validity, there must be a tribunal competent by the law of its creation to pass upon the subject-matter of the suit, and, if the suit involves merely a determination of the personal liability of the defend- ant, he must be brought within the jurisdiction of the court by service of process within the state, or by his voluntary ap- pearance. 2 § 473. The other constitutional restriction on the power of eminent domain is that private property shall not peuLtion" De taken without just compensation. 3 To bring a case within the protection of this provision, it is not necessary that property should be taken in the narrowest 1 It seems that even before the passage of Amendment XIV., a state cuuld not through its legislature have made anything due process of law. See Murray's Lessee v. Hobo- ken Land Co., 18 How. 272. 2 Pennoyer v. Neff, 95 U. S. 714, 733; see St. Clair o. Cox. 106 U. S. 350; and compare American Express Company v. Conant, 45 Mich. 642; McNichol v. United States Mercan- tile Reporting Agency, 74 Mo. 457; Pope v. Terre Haute Car Co., 87 N. Y. 137. Notice is essential. Camp- bell v. Campbell, 63 111. 402. " Due process of law," requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which according to the con- stitution, and the usages of the com- mon law, would be a protection to him and his property. But the legis- lature may take away any particular form of remedy, and give a new one. 462 And the "law of the land" means about the same as "due process of law." People v. Supervisors, 70 N. Y. 228. " By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon in- quiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, lib- erty, property, and immunities un- der the protection of the general rules which govern society." Web- ster arguendo in Dartmouth College v. Woodward, 4 Wheat. 519, 581. 3 See Garrison v. City of New York, 21 Wall. 196. "The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and requires no constitutional recognition. The provision found in the fifth amend- ment to the Federal constitution and