Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/519

 CHAP. VIII.] CORPORATION AND STATE. [§ 492. § 492. The rule that no man shall be deprived of his prop- erty without due process of law applies to taxa- Taxation, tion; but a mode of procedure may be "due process cessof Pr °" of law " in matters of taxation, which would not be law - " "due process of law " in other proceedings. " Taxes have not, as a general rule, in this country since its independence, nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the dut} r to be performed, and the customary usages of the people, have established a different procedure, which, in re- gard to that matter, is, and always has been, due process of law." * Accordingly, at least as regards taxation, the phrase does not necessarily imply a regular proceeding in a court of justice, or after the manner of courts of justice. 2 In deliver- ing the opinion of the court in Davidson v. New Orleans, 3 Justice Miller said in regard to the term : " Apart from the eminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom we think in the ascertaining of the intent and ap- plication of such an important phrase in the Federal con- stitution by the gradual process of judicial inclusion and ex- clusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded. This court is, after an experience of nearly a century, still engaged in defining the obligation of contracts, the regulation of com- merce, and other powers conferred on the Federal government, or limitations imposed upon the states." .... As contrib- utory to this process we hold " 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, wmether it be for the whole state, or for some more limited portion of the community, and these 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 can- not be said to deprive the owner of his property without due i Kelly v. Pittsburgh, 104 U. S. 78, 80; opinion of court per Miller, J. 2 Davidson v. New Orleans, 9o' U. S. 97, citing Murray's Lessee v. Ho- boken Land Co., supra. 3 96 U. S. 97, 104. 499