the court said: "The constitutional provision is, 'nor shall any State deprive any person of life, liberty or property without due process of law.' Certainly a State cannot be deemed guilty of a violation of this constitutional obligation simply because one of its courts, while acting within its jurisdiction, has made an erroneous decision. The Legislature of a State performs its whole duty under the Constitution in this particular when it provides a law for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish the parties the necessary constitutional protection. All after that pertains to the courts, and the parties are left to the appropriate remedies for the correction of errors in judicial proceedings."

THE POWER OF TAXATION.

It is difficult to understand how the parties to whom Senator Conkling referred in his argument in the San Mateo County case, as appealing for congressional and administrative protection against invidious and discriminating State and local taxes, could have expected very much relief from the due process of law provision, in view of the fact that the power to tax belongs exclusively to the legislative branch of the government, as the Supreme Court had consistently maintained from 1819, in which year McCulloch v. Maryland (17 U. S. 316-428) was decided. In that case Chief Justice Marshall said: "It is admitted, that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the Legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limit to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the con

15 g ba

stituents over their representative, to guard them against its abuse."

It had not been the rule in England, nor in this country since its independence, to collect taxes by regular judicial proceedings, as the Supreme Court has several times since the adoption of the Fourteenth Amendment said. The Legislatures of the several States, except in so far as restrained by their Constitutions, are regarded as supreme in the matter of levying taxes, and may, as Mr. Justice Bradley said in Ball's Gap R. Co. v. Pennsylvania (134 U. S. 332, 337), "exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only and not tax securities for the payment of money; it may allow deductions for indebtedness or not allow them. All such regulations and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State Legislatures or the people of the State in framing their Constitutions."

Nevertheless, aggrieved taxpayers have frequently appealed to the Supreme Court of the United States for relief against State statutes, on the ground that they offend against the due process of law provision. Now the court, speaking through Mr. Justice Harlan, has said: "It is conceivable that taxation may be of such a nature and so burdensome as properly to be characterized a taking of private property for public use without just compensation. But in order to bring taxation imposed by a State, or under its authority, within the scope of the Fourteenth Amendment of the National Constitution, the case should be so clearly and palpably an illegal encroachment upon private rights as to leave no doubt that such taxation by its necessary operation is really spoliation under guise of exerting the power to tax." (Henderson Bridge Co. v. Henderson, 173 U. S. 592, 614.) In the great majority of cases, however, the court has sustained the

local taxing statutes, as the following instances will tend to show:

It sustained the New York statute imposing a franchise tax upon capital of a foreign corporation employed within the State (171 U. S. 658); the imposition of a tax by a Kentucky municipality upon a bridge built across the river to Ohio (173 U. S. 592); a statute taxing mortgagee's interest in land as real estate, regardless of his residence (169 U. S. 421); a taxation of a debt to resident which is secured by mortgage in another State (100 U. S. 491); statutes imposing inheritance tax, although exempting certain classes of persons, or making different rates for different classes, and although the effect was to tax the same inheritance in two States (18 Sup. Ct. Rep. 594; 49 U. S. 429; 183 U. S. 278; 188 U. S. 97; 188 U. S. 189); a statute creating new taxing districts (170 U. S. 304); a statute providing that owner in action for killing a dog may recover only the dog's assessed valuation, and if not on the assessment roll he cannot recover (166 U. S. 698); a taxation of national bank, even though savings banks and trust deposits are exempt from like tax (121 U. S. 138; 125 U. S. 60; 125 U. S. 83); an ad valorem assessment of cost of irrigation (164 U. S. 158); a charter provision for assessment for sewers not requiring notice, the court holding that notice was implied (149 U. S. 30); a statute allowing free use of water and exempting company from taxation (142 U. S. 79); the taxation of domestic property of a corporation, the value of which is determined with reference to entire capital (165 U. S. 194); the exaction of tolls for use of improved natural waterway (123 U. S. 288); a statute making tax deeds, after record for specified time, conclusive of the regularity of proceedings (177 U. S. 318); a statute prohibiting any person from voting or serving as a juror unless, among other qualifications, he has paid his taxes (170 U. S. 213); a statute authorizing collection of back taxes which were not on assessment roll (183 U. S. 471); a license tax on merchants proportioned to amount of sales, but different classes paying different rates (184 U. S. 329); a statute not providing for notice of the taking of

lands for streets to those to be assessed, though providing for notice to them of the assessment (184 U. S. 423); a State tax on stock of non-resident in domestic corporation, when resident is taxed by municipality (185 U. S. 344); a statute making a tax deed prima facie evidence of truth of its recitals (187 U. S. 51); the taxation of express companies on "receipts of their business done in the State" (142 U. S. 339); a statute declaring lands forfeited to the State which for five years are not reported for taxation, but exempting owners of less than 1,000 acres (171 U. S. 404).

The following statutes have been condemned: One making non-resident personally liable for taxes (173 U. S. 193); a taxation in Kentucky of an Indiana franchise to company running ferry between the two States and holding, also, a Kentucky franchise (188 U. S. 189).

These decisions show that the tendency of later years to assume that the judicial department of the government can and should review and correct the errors of the legislative and executive manifested in many reported cases, the assemblage of which would certainly be interesting, and may soon become necessary as a warning-has received little support from the United States Supreme Court while considering the assaults upon taxing stat- . utes of States and the procedure thereunder.

PROCEDURE-CIVIL AND CRIMINAL.

Many interesting cases are to be found that could be grouped under this head, but the already too great length of this paper compels but the briefest reference to a few of them.

It has often been said, in effect, that a State does not violate the Fourteenth Amendment if its courts, while acting within their jurisdictions, are guilty of irregularities and errors in their procedure. (Kennard v. Louisiana, 92 U. S. 480; Arrowsmith v. Harmoning, 118 U. S. 194; In re Converse, 137 U. S. 624).

Chief Justice Waite expressed the view of the court in these words in Kennard's case: "The question before us is not whether the courts below, having jurisdiction of the case and the practice, have followed the law, but whether the law if followed would have

furnished Kennard the protection guaranteed by the Constitution." (Kennard v. Louisiana, 92 U. S. 480, 481).

A different view of the duty of the court obtains in cases arising under statutes, the direct object of which is the taking of private property for public use, as has already been said when considering the case of Chicago, Burlington, etc., R. Co. v. Chicago (166 U. S. 226).

It has been said that due process of law is secured within the meaning of the Fourteenth Amendment, if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the power of the government. (Duncan v. Missouri, 152 U. S. 377.) And in another case it was held that the State has full control over the procedure in its courts both in civil and criminal cases subject only to the qualification that such proceedings must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution. (Brown v. New Jersey, 175 U. S. 193; Iowa Cent. Ry. Co. v. Iowa, 160 U. S. 389; Ex parte Reggel, 114 U. S. 642.)

It has been held that the due process of law provision does not prevent the State from giving jurisdiction to courts of equity to entertain a suit to establish the rights of the owner of an equitable interest in lands as against the legal owner, although it deprives him of his right to a trial by jury (121 U. S. 282); also that the provision does not prohibit a criminal trial without a jury where the accused has waived it as permitted by statute (146 U. S. 314); nor a sale of infant's real estate where a guardian's bond was not given as required by statute (118 U. S. 134); nor a statute making railroad companies liable for all damages to employees, even when caused by fellow workmen (127 U. S. 205); nor proceedings according to common law for contempt, without a jury (134 U..S. 31; 128 U. S. 289; 171 U. S. 101; 158 U. S. 564) ; nor a trial in quo warranto proceedings, without a jury (169 U. S. 586; nor a decision holding that libelous matter in a pleading was privileged (175 U. S. 409); nor a judgment against a party not named as a defendant nor summoned, but appearing and contesting the suit (177 U. S. 230); nor a bill in equity to invalidate a judgment for tort committed under military authority (131 U. S. 405); nor a statu