States supreme court over that law is to determine whether it is in conflict with the law of the land.98

§ 278. Same Same-Contempts tried without a jury-A jury trial is not necessary to due process of law on an inquiry for a contempt of court; and the constitution and laws of a state denying a jury trial in such cases are not in conflict with that provision of the fourteenth amendment to the federal constitution which inhibits the states from depriving any person of life, liberty, or property, without due process of law. In proceedings for contempt at common law, the accused was not entitled to trial by jury; it has always been one of the attributes-one of the powers necessarily incident to a court of justice that it should have the power of vindicating its dignity, of enforcing its orders, or protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power."

§ 279. Same-Same-Form of action or proceedings.—The due process clause of the fourteenth amendment to the federal constitution does not control mere forms of procedure in state courts, nor regulate the practice therein; all the requirements of the constitutional provision are complied with, if, in the proceedings which are claimed not to be due process of law, the person condemned has had sufficient notice and adequate opportunity has been afforded him to defend. Due process. does not require that the action or proceedings in a state court shall conform to any particular mode or form, but only that there shall be a regular course of proceedings in which notice is given of the claim asserted, and an opportunity afforded to defend against it; and if the essential requisites of full notice and an opportunity to defend are complied with in the state court, the United States supreme court will, upon writ of error, accept the interpretation given by the state court as to the regularity, under the state statute, of the practice pursued in the particular case.1 The fact that a proceeding to condemn

98 Walker v. Sauvenet, 92 U. S. 90, 93 (23:678); Edwards v. Elliott, 21 Wall. 557 (22:492); Church v. Kelsey, 121 U. S. 282, 284 (30:960).

99 Eilenbecker v. District Court of Plymouth County, Iowa, 134 U.

S. 31, 40 (33:801); Tinsley v. Anderson, 171 U. S. 101, 108 (43:91); Telegram Co. v. Commonwealth, 172 Mass. 298, 70 Am. St. Rep. 284, 52 N. E. 446, 44 L. R. A. 161.

1 Louisville & Nashville R. Co.. v. Schmidt, 177 U. S. 230, 239 (44:

a party to pay a judgment rendered in a cause to which he was not a party and in which he was not served with process, is by rule to show cause, does not deprive the proceeding of the character of due process.2

§ 280. Same-Same-Notice.-In a suit to foreclose a vendor's lien on land, within the state, personal service of notice of the suit upon a non-resident defendant outside the jurisdiction of the court, is sufficient to constitute due process of law, so far as the foreclosure of the lien is concerned; but five days' notice in such case, where the distance between the place of service and the place of return required four days constant travel to reach the court, giving the party but one day, and that a Sunday, to make preparation to comply with the exigencies of the notice, with no estimated allowance of time for accidental delays in transit, is not sufficient to constitute reasonable notice or due process of law. A personal judgment rendered against a non-resident defendant upon constructive service by publication, and without the appearance of the defendant, is void for want of due process of law.*

$281. Same-Eminent domain. All private property is held subject to the demands of public use, and the constitutional guaranty of just compensation is not a limitation of the power to take, but only a condition of its exercise; and the due process clause of the fourteenth amendment does not make it essential that the assessment of the damages in a state court be made by a jury. Since the adoption of the fourteenth amendment to the federal constitution, compensation for private property taken by the state for public use constitutes an essential element in due process of law, and, without such compensation made or secured to the owner, the appropriation of private

747); Wilson v. North Carolina, 169 U. S. 586 (42:865); Simon v. Craft, 182 U. S. 427 (45:1165); Iowa C. R. Co. v. Iowa, 160 U. S. 389 (40:467).

2 Louisville & Nashville R. Co. v. Schmidt, 177 U. S. 230, 239 (44: 747).

3 Roller v. Holly, 176 U. S. 398, 413 (44:520).

4 Pennoyer v. Neff, 95 U. S. 714, 748 (24:565); Ins. Co. v. Bangs,

103 U. S. 441 (26:582); Davis v. Wakelee, 156 U. S. 685 (39:583); St. Clair v. Cox, 106 U. S. 353 (27: 224); Brown v. Campbell, 100 Cal. 641, 38 Am. St. Rep. 317; Maddox v. Craig, 80 Tex. 602; York v. State, 73 Tex. 654.

5 Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 (41: 1165); Backus V. Fort Street Union Depot Co., 169 U. S. 557 (42:853).

property to public use, no matter under what form of procedure it is taken, would violate this provision of the federal constitution; and it is a condition precedent to the exercise of the power of eminent domain by the state and its agencies, that the state statutes make provision for reasonable compensation to the owner. The mode of exercising the right of eminent domain, by a state, in the absence of any provision in the organic law prescribing a contrary course, is within the discretion of the legislature. Due process of law as applied to judicial proceedings instituted for the taking of private property for public use, means such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public; the mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.o

§ 282. Same Same-Whether taking is for a public use presents a federal question.-Whether or not a taking of private property in the exercise of the power of eminent domain under the constitution and laws of a state, is a taking for a public use, presents a federal question, when the claim is duly made, under the due process clause of the fourteenth amendment to the constitution; and the supreme court of the United States, while according great respect and weight to the decisions of the highest court of the state in the construction of its own constitution and laws upon the subject, will deter

(40:188);

6 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 263 (41:979); Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166 (20:557); Searl v. Lake County School Dist., 133 U. S. 553 (33:740); Sweet v. Rechel, 159 U. S. 380 Scott v. Toledo, 36 Fed. 385; Henderson v. Central Pass. R. Co., 21 Fed. 359; Baker v. Norwood, 74 Fed. 997; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 (41:1165); Norwood v. Baker, 172 U. S. 269 (43:443).

7 Secombe v. Ry. Co., 23 Wall. 108, 119 (23:67).

8 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 263 (41:979). It is held to be a settled principle of universal law, reaching back of all constitutional provisions, that the right to compensation is an incident to the exercise of the power of eminent domain; and that the one is so inseparably connected with the other that they may be said to exist, not as separate and distinct principles, but as parts of one and the same principle. Sinnickson v. Johnson, 17 N. J. L. 129, 34 Am. Dec. 184.

mine the question for itself. If the legislature of a state, assuming to act in the exercise of the power of eminent domain, enacts legislation which, as construed by the highest court of the state, is in conflict with the federal constitution or with any valid act of congress, it is the duty of the courts of the United States, in any proper case presenting the question, to so decide, and to thus enforce the provisions of the federal constitution; but if such legislation do not violate any provision, expressed or properly implied, of the federal constitution, there is no justification for the federal courts to run counter to the decisions of the highest courts of the state upon questions involving the construction of the state statutes or constitution, on any alleged ground that such decisions are in conflict with sound principles of general constitutional law.10 Where the record does not show that the question, whether the condemnation statute of the state is in conflict with the federal constitution, was raised in either the trial court or the supreme court of the state, and was passed on by either the one or the other of those courts, no federal question is presented, and the supreme court of the United States has no jurisdiction to review the judgment of the state court.11

9 Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 179 (41: 369).

"There is no specific prohibition in the federal constitution which acts upon the states in regard to their taking private property for any but a public use. The fifth amendment, which provides, among other things, that such property shall not be taken for public use without just compensation made, applies only to the federal government, as has many times been decided. In the fourteenth amendment the provision regarding the taking is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property, without due process of law. It is claimed, however, that the

citizen is deprived of his property without due process of law if it be taken by or under state authority for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain. In that way, the question whether private property has been taken for a public use becomes material in this court, even where the taking is under the authority of the state instead of the federal government." Peckham, Justice, in Fallbrook Irrigation Dist. v. Bradley, supra.

10 Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 179 (41: 369).

11 Hooker v. Los Angeles, 188 U. S. 314, 321 (47:487).

§ 283. Same-Same-Taking for private use. The taking by the state of the private property of one person or corporation, without the owner's consent, for the private use of another, is not due process of law, and is a violation of the due process clause of the fourteenth amendment; and the order of a state board of transportation, acting under and in accordance with the laws thereof, requiring a railroad company to grant. to certain private persons named the right and privilege of erecting and maintaining upon its grounds and adjacent tracks, at a point specified in the order, or at some other suitable and convenient place, at a station named, an elevator and all and equal facilities for the handling and shipping of grain at that station, which it had granted to other shippers of grain there, and to cease from all discrimination or preferences to and of shippers and operators of elevators at that station, is, so far as it required the railroad company to surrender a part of its land to the parties applying for it, for the purpose of building and maintaining their elevator upon it, a taking of the private property of the railroad company for the private use of the parties seeking its use, and, therefore, in conflict with the fourteenth amendment, and void.12 A railroad corporation holds its station grounds, tracks, and right of way, as its private property, but for the public use for which it was incorporated; and may, in its discretion, permit them to be occupied by other parties with structures convenient for the receipt and delivery of freight upon its railroad, so long as free and safe passage is left for the carriage of freight and passengers, and cannot be compelled to grant, against its consent, to private persons the right to build and maintain upon its right of way or other grounds permanent structures for receiving and shipping freight.1

13

§ 284. Same Same State laws fixing destructive rates for common carriers.-It is the settled law that corporations are persons within the meaning of the clause of the fourteenth amendment to the constitution forbidding the deprivation of property without due process of law;14 and state legislation establishing a tariff of rates for the carriage of freight and

12 Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (41: 489).

13 Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403, 417 (41:

489); Grand Trunk R. Co. v. Richardson, 91 U. S. 454 (23:356).

14 Santa Clara County v. Southern P. R. Co., 118 U. S. 394 (30: 118); Mining Co. v. Pennsylvania,