upon all alike, and no one is subject to partial or arbitrary exercise of powers of government.50 Rights of property, and to a reasonable compensation for its use, created by the common law, cannot be taken away without due process; but the law itself, as a rule of conduct, may, unless constitutional limitations forbid, be changed at the will of the legislature. The great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. But down to the time of the adoption of the Fourteenth Amendment it was not supposed that statutes regulating the use of, or even the price of the use, of private property necessarily deprived the owner of his property without due process of law. Under some circumstances they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such deprivation.51 In a Federal case, the court suggests the difficulty and danger of attempting an authoritative definition of what it is for a State to deprive a person of life, liberty or property without due process of law, within the meaning of the Fourteenth Amendment; and holds that the annunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition. In this case, the court holds that it is due process of law, within the meaning of the Constitution, when the statute requires that such a burden as the fixing of a tax or assessment before it becomes effectual, must be submitted to a court of justice, with notice to the owners of the property, all of whom have the right to appear and contest the assessment. But by prior decisions due process of law does not in all cases

38 S. W. 85, 26 Ins. L. J. 67. See cases upon the construction of the § 67, herein.

50 Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. 224. Examine Bartlett v. Wilson, 59 Vt. 23, 8 Atl. 321, 4 N. Eng. Rep. 119. See Marchant v. Pennsylvania R. Co., 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. 894 (for review of leading

due process of law phrase). See also Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616, as to the origin and history of this provision.

51 Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77. Examine State v. Sponangle, 45 W. Va. 415, 43 L. R. A. 727, 32 S. E. 283.

require a resort to a court of justice to assert the rights of the public against the individual, or to impose burdens upon his property for the public use.52 And neither the corporate agency by which the work is done, the excessive price which the statute allows therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment is made before the work is done, nor that the assessment is unequal as regards the benefits conferred, nor that personal judgments are rendered for the amount assessed, are matters in which the state authorities are controlled by the Federal Constitution.53 In order, however, to constitute a violation of the constitutional provision against depriving a person of his own property without due process of law, it should appear that such person has a property in the particular thing of which he is alleged to have been deprived.54 Again, restraints upon the proper exercise of the police power of the States are not imposed by this clause of the Federal Constitution,55

§ 298. Same Subject Continued.-Regulations of public stockyards and their charges, when not unreasonable and unjust as depriving their owners of a reasonable return on the money invested, do not constitute a taking of private property without due process of law or just compensation.56 So gas rates may be regulated without infringing upon the due process of law provision of the Constitution where such rates, so fixed, allow a reasonable profit on the actual value of the investment.57 "Davidson v. New Orleans, 96 "Sprigg v. Garrett Park, 89 Md. U. S. 97, 24 L. ed. 616, citing Mur- 406, 411, 43 Atl. 813. See § 138, ray's Lessee et al. v. Hoboken Land herein. & Improvement Co., 18 How. (59 U. S.) 272, 15 L. ed. 372; McMillan v. Anderson, 95 U. S. 37, 24 L. ed. 335.

50 Ratcliff v. Wichita Union Stockyards Co., 74 Kan. 1, 86 Pac. 150; Laws 1903, p. 735, c. 487.

57 Richman v. Consolidated Gas "Davidson v. New Orleans, 96. Co. of N. Y., 100 N. Y. Supp. 81, 114

U. S. 97, 24 L. ed. 616.

"New Orleans. v. New Orleans Water Works Co., 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. 142.

App. Div. 216, 78 N. E. 871, aff'd 186
N. Y. 209; Grossman v. Same, 100
N. Y. Supp. 100, 114 App. Div. 242,
aff'd 186 N. Y. 541 (mem.).

Nor is a person deprived of property without due process of law by a statute which makes water rates a charge upon lands in a municipality prior to the lien of all incumbrances.58 Nor is the exaction of tolls for the use of an improved waterway within such prohibition of the Constitution.50 The repeal of a statute providing that a municipal government may set off the taxes of a water company against the company's rates for water, and the substitution of a different scheme of payment in its place, does not deprive the municipality of its property without due process of law, in the sense in which the word "property" is used in the Constitution of the United States.60 Nor does a state statute, reducing the rate of interest upon all judgments obtained within the courts of the State, when applied to one obtained previous to its passage, deprive the judgment creditor of his property without due process of law, in violation of the provisions of section one of the Fourteenth Amendment.61 Again, the right of a railroad company to maintain a tunnel under a navigable river is subject to the paramount public right of navigation, and where it has been constructed under municipal ordinance and a state law that it shall not interrupt navigation, the duty of not obstructing navigation is a continuing one; and, if the increased demands of navigation at any time require a deeper channel than when the tunnel was originally constructed, it is within the power of the municipality to compel the railroad company, at the latter's own expense, to either remove the tunnel or lower it to conform with the necessities of commerce and to a rule established by act of Congress; and such action of the municipality is not unconstitutional, and does not amount either to taking the property for public use without compensation, or depriving the company of its property without due

process of law.62 Nor does such a deprivation of property arise under a statute empowering a city to require the removal of telephone wires to underground conduits, as the enactment is within the police power of the State. But a municipal corporation with charter authority to permit the use of its streets, to control them, and to regulate the construction of railroad tracks thereon acts, in resuming control of such streets, as agent of the State within the above constitutional provision that no State shall deprive any person of property without due process of law.64 The construction, however, and maintenance by a city of its own waterworks plant does not

"West Chicago Street Railroad Co. v. Illinois, 201 U. S. 506, 50 L. ed. 815, 26 Sup. Ct. 518, aff'g 214 Ill. 9, 73 N. E. 393, following Chicago, Burlington & Quincy Ry. Co. v. Drainage Commrs., 200 U. S. 561, 26 Sup. Ct. 341, 50 L. ed. 596. In this case a railroad company was required to remove a bridge, unless it abandoned or surrendered its right to a crossing at that point, and to erect at its own expense and maintain a new bridge in conformity with regulations established by drainage commissioners under authority of the State, and it was held that such requirement, if enforced, would not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws. See Bristol County, In re, 193 Mass. 257, 79 N. E. 339; Stat. 1900, p. 411, c. 439, § 6.

63

City of Geneva v. Geneva Teleph. Co., 62 N. Y. Supp. 172, 30 Misc. 236 (Laws 1897, c. 360, § 58, as am'd by Laws 1899, c. 405), citing Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079; Western Union Teleg. Co. v. City of New York, 38 Fed. 552; American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 21 Am. St. Rep. 764, 26 N. E. 919,

39 Am. & Eng. Corp. Cas. 526, 3 Am. Elec. Cas. 142, aff'g 58 Hun, 610, 35 N. Y. St. R. 606, 12 N. Y. Supp. 536; People v. King, 110 N. Y. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 18 N. Y. St. R. 353, aff'g 42 Hun, 186, 5 N. Y. St. R. 138, 25 Wkly. D. 212; People v. Squire, 107 N. Y. 593, 12 N. Y. St. R. 832, 28 Wkly. D. 175, 14 N. E. 823, 2 Am. Elec. Cas. 176, aff'd 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. 880, 4 Am. Elec. Cas. 122. See Joyce on Electric Law (2d ed.), §§ 420 et seq.

64 Iron Mountain R. Co. v. Memphis, 96 Fed. 113, 37 C. C. A. 410, citing Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. 418; Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. 130; Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014, 4 Inters. Comm. Rep. 575; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. 1108; Yick Wo v. Hopkins, 118 U. S. 356, Sup. Ct., 30 L. ed. 220; Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567. See Joyce on Electric Law (2d ed.), § 229.

constitute such a taking of the property of a corporation operating its works under a franchise granted by that city.65 Nor is a railroad deprived of its property without due process of law or denied the equal protection of the laws by a statute which provides that every railroad company organized and doing business in the State of the statutory enactment shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employees, to any person sustaining such damage. Again, due process of law is