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another, by enacting a bargain between them, unless it be in the hands of the latter a trust for public use."

“This provision is the most important guaranty of personal rights to be found in the Federal or state Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty, or property. This the legislature cannot do nor authorize to be done. 'Due process of law' is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature.

This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights. .. Due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard is absolutely essential." Stuart v. Palmer (1878) 74 N. Y. 183, 30 Am. Rep. 289.

The clause means "a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property.” Taylor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274.

“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 Constitution and the usages of the common law, would be a protection to him or his property.” The phrase means substantially the same as "law of the land," as used in § 1 of article 1. People ex rel. Witherbee v. Essex County (1877) 70 N. Y. 228.

Private property cannot be taken from one person and delivered to another person, or applied to the private use of another, except by a suit instituted and conducted in accordance with the prescribed course of procedure for determining the title to property. The institution and conduct of such a suit is what is meant by "due process of law.” Re Hatch (1877) 11 Jones & S. 89, Curtis, Chief Justice.

Due process of law means "that every citizen shall have his day in court, and that he shall have the benefit of those rules of the common law generally deemed to be fundamental in their nature because sanctioned by reason, by which judicial trials are governed. These rules, which secure to the accused a judicial trial, it is beyond the power of the legislature to subvert.” Wynehamer v. People (1856) 13 N. Y. 378, 447. A person cannot be deprived of

his liberty or property by mere legislation, but the legislature may "regulate what shall be the due process of the law by which the citizen may be put upon his trial concerning his liberty, or his property, provided that the statute destroys none of those safeguards to individual freedom and rights which the people of England finally acquired for themselves, and which, as part of the common law of that land, we took over and adopted in the formation of a state government." People v. Sickles (1898) 156 N. Y. 541, 51 N. E. 288.

“Any act the legislature may, in the uncontrolled exercise of its power, think fit to pass, is, in no sense, the process of law designated by the Constitution." Westervelt v. Gregg (1854) 12 N. Y. 202, 62 Am. Dec. 160.

To say that "the law of the land” or “due process of law” may mean the very act of legislation which deprives the citizen of his rights, privileges, or property, leads to a simple absurdity. "The true interpretation of these constitutional phrases is, that where rights are acquired by the citizen under the existing law, there is no power in any branch of the government to take them away; but where they are held contrary to the existing law, or are forfeited by its violation, then they may be taken from him-not by an act of the legislature, but in the due 'administration of the law itself, before the judicial tribunals of the state. The cause or occasion for depriving the citizen of his supposed rights must be found in the law as it is; or, at least, it cannot be created by a legislative act which aims at their destruction." Wynehamer v. People (1856) 13 N. Y. 378.

In Happy v. Mosher (1872) 48 N. Y. 313, construing the act of 1862, chap. 482, relating to liens on vessels, the court say that due process of law "need not be a legal proceeding according to the course of the common law, neither must there be personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend."

“A method of procedure having the sanction of settled usage is commonly regarded as due process of law.” People v. Adirondack R. Co. (1899) 160 N. Y. 225, 236, 54 N. E. 689.

Due process of law does not necessarily import a trial by jury. The legislature “has the power to provide the ways and means by which the rights of persons may be protected, and their wrongs redressed, and to compel amends to be made to the party injured

from the property of the person in the wrong. But it must be made through the instrumentality of some judicial proceeding. The nature and character of the proceeding, the practice to be adopted therein, and the manner in which the parties shall be brought before the tribunal to give it jurisdiction, are within the province and constitutional power of the legislature." Squares v. Campbell (1871) 60 Barb. 391.

"The citizen is entitled to the absolute control of his estate, unless taken for public use in due form of law; and this right it is the duty of the court to maintain. His land can be so taken only by 'due process of law. But when the conditions required by the Constitution ... to be observed for the protection of the rights of the citizen have been complied with, it must be regarded as a fulfilment of the direction in respect to 'due process of law."" Re Central Park (1872) 63 Barb. 282.

While “due process of law requires that a hearing or an opportunity to be heard be given by means of due notice by such board or officials before they exercise such judgment and discretion, to the persons whose property rights are to be so affected, this doctrine ... has no application whatever to the legislature. It applies only to the judicial department of government, which embraces for the time being every official to whom the doing of any act of a judicial nature is intrusted by the legislature, though the legislature might legislatively do such act itself.” Every citizen is presumed to participate in the act of the legislature. Re Curren (1898) 25 Misc. 432, 54 N. Y. Supp. 917, affirmed, without considering this subject, in (1899) 38 App. Div. 82, 55 N. Y. Supp. 1018.

It was not the purpose of the 14th Amendment "to interfere with the ordinary administration of justice by the courts of a state, or to affect the final and ultimate jurisdiction of the courts of a state, over crimes and offenses, defined and declared by its laws and committed within its territorial jurisdiction. .. 'Due process of law and what constitutes it is, within the limitation mentioned, to be determined by the state in every case where the state can exercise rightful authority." Jurisdiction over crimes is usually "a state, and not a Federal jurisdiction. The state constitutes appropriate tribunals for the trial of offenses, and prescribes the procedure for the investigation, trial, and punishment of crimes. That is due process of law,' within the meaning of these words, which affords to every citizen the equal protection of the laws, and in

case of accusation of crime, the right of trial by jury before one of its duly constituted tribunals having jurisdiction of the crime, under a procedure which the state prescribes. The 14th Amendment confers upon the courts of the United States no jurisdiction to supervise the administration by state tribunals of the criminal law of the state, or to correct errors, or to modify or change their judgments." Re Buchanan (1895) 146 N. Y. 264, 40 N. E. 883.

A statute of limitation cannot be said to deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce that right by suit. Wheeler v. Jackson (1890) 137 U. S. 245, 34 L ed. 659, 11 Sup. Ct. Rep. 76, affirming (1887) 105 N. Y. 681.

Due process requires notice to the owner of property of an intention to take the same for a public purpose. He must have an opportunity to be heard. Re Brooklyn (1895) 87 Hun, 54, 33 N. Y. Supp. 869.

A corporation is a person within the meaning of this provision. Rochester & C. Turnp. Road Co. v. Joel (1899) 41 App. Div. 43, 58 N. Y. Supp. 346.

A municipal corporation may, in the interest of public health, interfere in some cases with the private property of the citizen and regulate his action concerning it. Re Wissels (1881) 13 N. Y. Week. Dig. 185.


Due process of law has been a subject of frequent consideration by the courts, involving various forms of remedies prescribed by statute, either directly or by a delegation of authority to municipal corporations, and including numerous proceedings, judicial and otherwise, by which the rights of the citizen were sought to be affected. This field of judicial inquiry is very broad, embracing various and complex questions relating to this important constitutional provision. The scope and results of judicial investigation can probably be studied most conveniently by a classification of decisions, showing, first, proceedings which have been held to be due process of law, and second, proceedings which have been condemned as violations of this constitutional provision.


The following have been held to be due process of law:

Animals.—The act of 1867, chap. 814, amending the cattle law of 1862, chap. 459, under which amendatory act a person seizing an animal trespassing under specified conditions was required to institute a proceeding on notice to the owner of the animal, who was given the right of trial by jury, and which proceeding might result in a sale of the animal seized to satisfy the judgment. For v. Dunckel (1869) 55 Barb. 431, distinguishing Rockwell v. Nearing (1866) 35 N. Y. 302, which construed and condemned the act of 1862, chap. 459; Leavitt v. Thompson (1873) 52 N. Y. 62; Campbell v. Evans (1871) 45 N. Y. 356; Cook v. Gregg (1871) 46 N. Y. 439; Jones v. Sheldon (1872) 50 N. Y. 477, which limits the application to animals trespassing from the highway; Squares v. Campbell (1871) 60 Barb. 391 ; McConnell v. Van Aerman (1869) 56

Barb. 534.

An order made by a justice of the peace under $ 125 of the County Law, requiring the owner of a vicious dog to kill him immediately. The statute imposes a penalty for the owner's refusal to comply with the order, and in an action therefor, all questions relating to his rights and the regularity and propriety of the order may be litigated. This is due process of law. People ex rel. Renshaw v. Gillespie (1898) 25 App. Div. 91, 48 N. Y. Supp. 882.

Barber law.—The act of 1895, chap. 823, known as the Sunday barbering law. “Every man's liberty and property is, to some extent, subject to the general welfare, as each person's interest is presumed to be promoted by that which promotes the interest of all.” People v. Havnor (1896) 149 N. Y. 195, 31 L. R. A. 689, 52 Am. St. Rep. 707, 43 N. E. 541.

Bottling acts. The bottling acts, 1887, chap. 377, as amended by chap. 181, Laws 1888. People v. Cannon (1892) 63 Hun, 306, (1893) 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759, and (1893) 139 N. Y. 645, 34 N. E. 1098.

Brooklyn.—The act of 1876, chap. 187, authorizing the use of steam as a motive power on Atlantic avenue in Brooklyn. People v. Long Island R. Co. (1880) 60 How. Pr. 395.

The Brooklyn act of 1880, chap. 528, imposing a penalty on any person refusing to serve as an election officer. “The power to impose these penalties results from the right of the sovereign to compel the performance of a service for its benefit by the subject.” Brooklyn v. Scholes (1883) 31 Hun, 110.

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