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tory provision construing a special appearance into a general appearance (137 U. S. 15); nor a trial and sentence by a judge de facto of a court de jure (139 U. S. 504); nor a decision by a State Court against a defendant who contended that his warrant of execution was issued contrary to State statute (159 U. S. 660); nor a dismissal of appeal of an accused person after he has escaped, the dismissal to take effect unless he returns (166 U. S. 138) ; nor omission of statutory provision for appeal in capital cases (153 U. S. 684; 156 U. S. 272).'
The court has held, however, that the due process of law provision is offended against by a judgment denying plaintiff possession in an action of ejectment, on the ground that defendant had acquired title at an administrator's sale pursuant to order of Probate Court based in part upon evidence tending to show plaintiff's death (154 U. S. 34); and is also violated by a judgment in a proceeding begun by service of process on a defendant in Virginia requiring him to appear and answer in Texas within five days (176 U. S. 398).
Mr. Justice Gray, in the course of the argument in Lowe v. Kansas (163 U. S. 81, 85), said: “Whether the mode of proceeding, prescribed by this statute, and followed in this case, was due process of law, depends upon the question whether it was in substantial accord with the law and usage in England before the Declaration of Independence, and in this country since it became a nation, in similar cases.” And the rule thus laid down has been criticised by a distinguished constitutional lawyer as “hardly an accurate or safe definition,” because “the law is essentially a progressive science; and its structure and the rules of procedure must continue to change as required by new conditions of society." The criticism would be well founded if the court intended to assert that there would not be due process of law unless precedent could be found for it either in the law and usage in England prior to the establishment of our government, or in this country since that time. In such case opportunity for the development of the law to meet the new situations constantly arising would be lacking. But the language employed is broader, suggesting that the true test is, “whether it was in substantial accord with the law and usage” of the long period mentioned, thus affording an opportunity to apply the established principles of law to the new conditions constantly arising.
That the court has steadily given to the rule the wider scope I have suggested will sufficiently appear from an examination of the cases I have referred to under this head. Indeed, it is impossible to make a study of the decisions of that great court relating to the Fourteenth Amendment in its entirety, without heartily endorsing that very interesting statement made by Mr. Justice Brown in Holden v. Hardy (169 U. S. 366, 385), from which I take a brief extract: “An examination of both these classes of cases under the Fourteenth Amendment will demonstrate that, in passing upon the validity of State legislation under that amendment, this court has not failed to recognize the fact that the law is, to a certain extent, à progressive science; that in some of the States methods of procedure, which at the time the Constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests; while, upon the other hand, certain other classes of persons, particularly those engaged in dangerous or unhealthy employments, have been found to be in need of additional protection.”
As this subject covers but one of the provisions of the Fourteenth Amendment, consideration of the others has been intentionally avoided. Indeed, I have not been able in this paper to do more than call attention to some of the decisions which serve to point out the vantage ground in the development of our law which this little phrase, “due process of law,” inherited from our English ancestors, occupies. More and more every year is it invoked, by reason of its place in the Fourteenth Amendment, to challenge the action of State governments, and the time cannot be predicted when such efforts will cease.
But it may be safely asserted that the restraining power of the Fourteenth Amendment as against the States will be exercised far more conservatively by that court of which every citizen is justly proud, than it would be were the exercise of it confined to the other departments of the National Government.
Evidence in support of that assertion is to be found in the Civil Rights Act, passed by Congress March 1, 1875, by which it undertook to make certain acts committed by individuals offenses which could be prosecuted and punished by proceedings in the United States courts, and in the decision of the Supreme Court (109 U. S. 3), declaring the first and second sections of the act unconstitutional and void. Of the statute, Mr. Justice Bradley, who wrote the opinion of the court, said: “In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society toward each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities. If this legislation is appropriate for the enforcing of the amendment it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, liberty and property?” (Ibid. 14). The argument of the court is unanswerable, and its decision accomplished not alone the destruction of the unconstitutional sections of the statute, but put an end to all further attempts by acts of Congress to encroach in that direction upon the reserved rights of the States under the claim that the States had conferred the authority upon Congress by the Fourteenth Amendment.
In conclusion, I feel warranted in saying that, valuable beyond compare as has been the service of the Supreme Court of the United States to the people during all the period of its existence
-although mistakes have at times been made and will of necessity be made in the future—it has never been charged with a greater responsibility than that placed upon it by the adoption of the Fourteenth Amendment—a responsibility to the meeting of which its individual members have patriotically devoted their supremest energies, great abilities, and broad scholarship, keeping ever in mind—as appears from the many opinions written—the danger expressed by Mr. Justice Miller in the Slaughter-House cases of so far extending the Fourteenth Amendment as "to fetter and degrade the State governments.” It is true that the amendment has been given—and necessarily so, because of its comprehensive language-a broader scope than the majority contemplated at that time, nevertheless the court was able to say in Holden v. Hardyafter calling attention to the many changes in the statutes of States subsequent to the adoption of the Fourteenth Amendment, some of which were challenged in the courts as offending against the due process of law provision—"They are mentioned only for the purpose of calling attention to the probability that other changes of no less importance may be made in the future, and that while the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and that the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly dif. ficult of amendment, should not be so construed as to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land.”
"THE CONSTITUTIONALITY, OPERATION AND EF
FECT OF LAWS TAXING FRANCHISES, AND ESPECIALLY THE GEORGIA FRANCHISE TAX ACT.
Mr. President and Gentlemen:
A paper upon the subject of the taxation of franchises seems to have been rendered timely for this occasion, by reason of the passage, at the last session of the General Assembly, of an act providing for the taxation of franchises in this State. It is unnecessary to state to those who have examined the question, even cursorily, that in a monograph of this character, it will be impossible to cover all the range which the question of franchise taxation has taken, in our system of jurisprudence, and that only a few of the more important phases can be noticed.
The law governing this branch of taxation is less difficult in principle than in application. Those fundamental rules which govern all other forms of taxation apply with equal certainty to the taxation of franchises. When the constitutional landmarks are followed, the tax is legal, when departed from, illegal.
Some ambiguity has arisen from the dual use of the term “franchise tax," it being used indiscriminately to denote a special occupation or privilege tax or license fee exacted of those engaging in certain businesses, as well as a tax placed upon franchises regarded as property.