amend or repeal, must meet several requirements: First, where the purpose of the legislation is deprivation, either by modification or repeal, it must not seek to take anything except that which the State has granted; property which the corporation may have acquired under the powers and franchises so granted may not be taken; Second, where the purpose of the legislation is alteration rather than deprivation, the substitution of powers and privileges may not be carried to the point where a new corporation is practically substituted; and, Third, it must, as must all laws, be within the general scope of legislative power and contravene no constitutional prohibitions. There is an apparent contradiction in First and Third. Corporate rights, powers and franchises are undoubtedly property, and ordinarily their divestiture under First would violate the familiar constitutional prohibition against the deprivation of property without due process of law embodied in Third. But it is more accurate to conceive of the property right of a corporation in its powers and franchises as a sort of defeasible estate, or as a species of license, terminable at the will of the grantor. And under this view, of course, no constitutional prohibition is infringed by their divestiture at the hands of the power granting them.

That the State may take only that which it has given.- In many of the cases, the purpose of the legislation attempted under the reserve power is the taking away of something - whether a franchise, power, privilege or immunity - which the corporation has hitherto enjoyed. When organized, the corporation may, perhaps, have received certain valuable franchises or privileges to maintain a ferry, to own land, to deal in stocks and bonds, or certain Immunities, such as freedom from taxation. All these rights, privileges and immunities come from the State, and derive and maintain their existence solely by virtue of that fact. At a later date, the State may desire the abolition of the ferry, may find that abuses grow out of the acquisition of vast tracts of land by corporate bodies, or out of the traffic in stocks and bonds, or that a necessity for more revenue renders imperative the discontinuance of the immunity from taxation. Under the reserve power the State may, if it choose, forfeit the ferry franchise which it has granted, may prohibit or restrict the acquisition of lands, may prohibit or perhaps even punish the traffic in stocks and bonds, may enforce the pay. ment of a full quota of taxes by the corporation which has hitherto paid none. It may take or it may modify that which it has granted. But that is all. Property acquired during the exercise of these power it may not divest, contracts already executed it may not annul, acts lawful when committed it may not afterwards punish, taxes thus remitted it may not afterwards exact; the legislation thus attempted must be prospective and not retrospective in its operation. This principle has been very clearly stated by several of

the most eminent of the members of the Supreme Court of the United State. See Sinking Fund Cases, 99 U. S. 721, 25 L. 502; Railroad Tax Cases, 13 Fed. 755, 765; In re Parrott, 6 Sawy. 357, 1 Fed. 489; Miller v. State, 15 Wall. 494, 495, 21 L. 103; Holyoke Co. v. Lyman, 15 Wail. 511, 21 L. 137; Sinking Fund Cases, 99 U. S. 748, 765, 25 L 512, 518; Pearsall v. Great Northern Ry. Co., 161 U. S. 660, 40 L. 843, 16 S. Ct. 708; Comrs. v. Holyoke, 104 Mass. 448, 6 Am. Rep. 250; Tomlinson v. Jessup, 15 Wall. 455, 21 L. 204; Bridge Co. v. United States, 105 U. S. 470, 26 L. 1143; Greenwood v. Freight Co., 105 U. S. 20, 26 L. 964; Spring Valley W. W. v. Schottler, 110 U. S. 352, 370;, 28 L. 176, 181, 4 S. Ct. 50, 59, 60; Hamilton Gas Co. v. Hamilton, 146 U. S. 258, 36 L. 963, 13 S. Ct. 90; Schurtz v. Cook, 148 U. S. 397, 37 L. 498, 13 S. Ct. 645; Black River Imp. Co. v. Holway, 87 Wis. 587, 59 N. W. 127. See also note, 43 Am. Dec. 118.

Limitations upon the power to alter.- Legislation attempted under the reserve power often partakes not so much of the nature of deprivation as of change the taking of one power or privilege and the substitution of another. It is important to note that in such a case there is a limitation upon the changes that may thus be created. It is not competent, as against protesting stockholders, to change the ends and purposes for which the corporation was created; to change materially the amount of its capital stock, Railroad Co. v. Veazie, 39 Me. 571; to change the nature of a charitable institution or the instrumentality of its administration, State v. Adams, 44 Mo. 576; to authorize a lease of a railroad by anything less than a unanimous vote of the stockholders, Dow v. Northern R. R. Co., 36 Atl. 525, 529, 532, 537; Sage v. Dillard, 15 B. Mon. 351; or to so change a charter as practically to substitute an entirely new one with new terms and powers, Commonwealth v. Cullen, 13 Pa. St. 138, 53 Am. Dec. 452; Zabriskie v. Railroad Co., 18 N. J. Eq. 186. And see Hale v. Everett, 53 N. H. 126, 193, 253. The conclusion is otherwise if all the stockholders concur in the amendments, Woodford v. Union Bank, 3 Cold. 498; and this concurrence may be presumed from silent acquiescence for a period of time, Zabriskie v. Railroad Co., 18 N. J. Eq. 186. See valuable note on acceptance of amendments to charters, 53 Am. Dec. 460, 469.

The legislation must meet the usual constitutional requirements. This would seem a mere truism. But the necessity for its affirmation in this connection arises from the fact that the reservation clause is on its face a waiver of all constitutional privileges and guaranties, affording ground for ingenious argument on the point. It need only be borne in mind, however, that legislative power under the American form of government is limited by constitutional restrictions, and that these powers may not be enlarged, nor these limitations infringed by the mere agreement of the individual citizen that the legislature may trespass upon forbidden ground if it choose. And it is, of course, still less competent for

the State legislative power to ignore the restrictions of the Federal Constitution. Speaking upon this latter point, Mr. Justice Field has said: "The State, in the creation of corporations or in amending their charters, or, rather, in passing or amending general laws under which corporations may be formed and altered, possesses no power to withdraw them when created, or by amendment from the guaranties of the Federal Constitution. It cannot impose the condition that they shall not resort to the courts of law for the redress of injuries or the protection of their property; that they shall make no complaint if their goods are plundered and their premises invaded; that they shall ask no indemnity if their lands be seized for public use, or be taken without due process of law, or that they shall submit without objection to unequal and oppressive burdens arbitrarily imposed upon them; that, in other words, over them and their property the State may exercise unlimited and irresponsible power. Whatever the State may do, even with the creations of its own will, it must do in subordination to the inhibitions of the Federal Constitution." Railroad Tax Cases, 13 Fed. 754. It becomes obvious, in view of these considerations, why the State may have a power to enact by amendment coequal with, but not greater than, the power which it was privileged to exercise at the time of the creation of the corporation. The reason why the State may not take anything save that which it has granted, becomes equally plain; as are also the limitations against impairing the contracts with third persons and the retrospective divesting of vested rights. If the view here taken and considered in a preceding paragraph be correct, that the taking from the corporation of that which the State has granted be not a deprivation of property without due process of law, for the reason that the corporation owns, as against the grantor, but a defeasible interest therein, it undoubtedly follows that the limitations under the reserve power are not other than the ordinary restrictions upon legislative actions. But the foregoing classification of these limitations may perhaps be justified for purposes of specific discussion, as well as under the

authorities.

Due process of law. By the law of the land is most clearly intended the general law, a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial, Argument of Webster, p. 581.

It is doubtful if the phrase ever received, or ever will receive, a clearer or more lucid exposition, and the citations show that these single sentences have indelibly impressed the name of their author upon the page of our judicial history. Already this definition has been quoted in a very large number of cases, and doubtless it will continue to be thus perpetuated so long as men shall be called upon

to defend their lives, their liberties, and their property from the exercise of tyrannical power in whatever form. Various other definitions have been attempted. The ordinance of 1787 speaks of "Judicial proceedings according to the course of the common law." Mason v. Messenger, 17 Iowa, 261, 267. And see State v. Walruff, 26 Fed. 199; Davidson v. New Orleans, 96 U. S. 104, 24 L. 619. Mr. Justice Miller has suggested that it is probably better "to leave the meaning to be evolved by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded." Davidson v. New Orleans, 96 U. S. 104, 24 L. 619. In accordance with this principle it has been held that property was taken without due process of law by a statute making railroad companies liable for injuries or the killing of cattle, although they were not negligent or guilty of any fault or wrong, Zeigler v. South., etc., R. R. Co., 58 Ala. 598; Denver, etc., v. Outcalt, 2 Colo. App. 401, 31 Pac. 179; by a statute making tax bills sufficient evidence in suit by city to recover back taxes, Louisville v. Cochran, 82 Ky. 36; by a statute respecting condemnation proceedings under eminent domain, which did not provide for a hearing before commissioners, Wilson v. Baltimore, etc., R. R. Co., 5 Del. Ch. 536; by an enactment providing for a change in the grade of city streets, appointing appraisers to assess damages, and allowing an appeal from their decisions but not otherwise, McGavock v. Omaha, 40 Neb. 76, 58 N. W. 547; by an act declaring that all property of an individual whose license fee was delinquent and unpaid might be summarily seized, Chauvin v. Valiton, 8 Mont. 460, 20 Pac. 661; by a law subjecting the separate property of married women to attachment for the debts of their husbands, Bedsworth v. Bowman, 104 Mo. 50, 15 S. W. 991; by a statute providing an assessment for local improvements without notice or an opportunity to be heard, Stuart v. Palmer, 74 N. Y. 191, 30 Am. Rep. 294; Campbell v. Dwiggins, 83 Ind. 482; or for the taxation of the property of a railroad in the county where situated without any notice given, Railroad Tax Cases, 13 Fed. 755, 765; by a statute authorizing the governor to set aside the registration of the voters of a county, State v. Staten, 6 Cold. 244; by a statute setting aside a judicial decree and ordering a new trial, Peerce v. Kitzmiller, 19 W. Va. 573, 578; by a law giving a governor power to remove a sheriff from office for certain omissions without opportunity to be heard, Conklin v. Cunningham, 7 N. Mex. 471, 38 Pac. 177; a prohibition law when retrospectively applied so as to divest property rights, State v. Walruff, 26 Fed. 191; by an act of congress empowering postmasters to send to the dead-letter office mail addressed to one suspected of conducting a lottery. Hoover v. McChesney, 81 Fed. 481. In dissenting opinion of Field, J., in Beckwith v. Bean, 98 U. S. 295, 25 L. 135, it was argued that imprisonment of a person under order from the executive when the courts were

60

open and in full exercise of their jurisdiction was not due process of law even in time of civil war.

It is not in accordance with the law of the land for a trial judge to decline to enforce the rule that witnesses not on the stand absent themselves from the courtroom. Watts v. Holland, 56 Tex. 60. A statute requiring a bond of one seeking a jury trial and otherwise Impeding the right of an accused thereto, is void, on this ground, Inhabitants of Saco v. Wentworth, 37 Me. 172, 58 Am. Dec. 788. Even a military commander in a territory under martial law, may not order a private debt to be paid into the government, Clark v. Mitchell, 64 Mo. 582. To hold that a person whose surrender has been requested of one State by the governor of another, as a fugitive from justice, is for that sole reason such in fact, would not be due process of law, and the question may be inquired into on habeas corpus, In re Cook, 49 Fed. 839. It is not due process of law for a trial judge to penalize a contempt by striking the pleadings of the guilty party from the files and ordering judgment pro confesso against him, Hovey v. Elliott, 167 U. S. 418, 42 L. 221, 17 S. Ct. 845; nor to make an allowance of a compensation to a guardian ad litem without notice to his ward, Jones v. Gove, 142 Mo. 44, 43 S. W. 386. A statute providing for proceeding in criminal cases by information instead of indictment provides due process of law, Kalloch v. Superior Court, 56 Cal. 238; Hurtado v. California, 110 U. S. 516, 28 L. 232, 4 S. Ct. 111; State v. Starling, 15 Rich. L. 127; although a Colorado case is contra. In re Lowrie, 8 Colo. 513, 54 Am. Rep. 569, 9 Pac. 498. Again, an act permitting the giving of constructive notice to parties to partition suits, under some circumstances, is due process of law and unobjectionable. Mason v. Messenger, 17 Iowa, 267. This provision is satisfied if there is a hearing before a court and an opportunity to interpose any defense. Hulett v. Missouri, etc., R. R. Co., 145 Mo. 36, 46 S. W. 952. It is competent to provide that certain local officers may prohibit liquor selling in their parishes on Sunday at their option, State v. Bott, 31 La. Ann. 667, 33 Am. Rep. 228; or that judges commit for insanity while sitting at chambers, In re Ross, 38 La. Ann. 524; or commit a witness refusing to enter into a recognizance for his appearance. In re Petrie, 1 Kan. App. 192, 40 Pac. 120. A divided court has upheld the action of a State governor in summarily suspending a railroad commissioner for becoming a stockholder in a railroad contrary to the statute, although the dissenting judge thought this not due process of law. Caldwell v. Wilson, 121 N. C. 477, 28 S. E. 564.

More miscellaneously this definition has been cited in an admiralty case and made applicable to a suit for collision, The WorthIngton v. Davis, 19 Fed. 840; in holding that a State may absolutely prohibit the manufacture and sale of intoxicating liquors, State ex rel. v. Bradley, 26 Fed. 291; in dissenting opinion, People ex rel. v. Hoffman, 116 Ill. 625, 8 N. E. 792, arguing that municipal election law is void on this ground; in Hall v. Webb, 21 W. Va. 326, declaring