ceeding, before the tax charge is fixed and made final and collected, he shall have notice or an opportunity to be heard in reference thereto.

§ 313. "Due process of law” and “the equal protection of the laws" distinguished.

The requirement of "due process of law" or its legal equivalent the law of the land," in its broader sense, may include all that is connoted by "equal protection of the laws." One who is injured by arbitrary or class legislation may justly claim that he is deprived of his property without due process of law, and so the term "due process of law" in State constitutions has been held to involve the prohibition of class legislation.1

6

The Supreme Court has not defined either" due process of law" or the "equal protection of the laws.” As to the former phrase, it said,2 1. c. p. 101: (6 It must be confessed, however, that the constitutional meaning or value of the phrase due process of law,' remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several States and of the United States." Apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive and satisfactory, there was wisdom in ascertaining the intent and application of such an important phrase in the Federal Constitution by the gradual process of judicial inclusion and exclusion, as the cases presented for decision should require, with the reasoning on which such decisions might be founded. The court has recently declared that

710.

3

1 Sheppard v. Johnson, 2 Humphrey 285; Sutton v. Hate, 96 Tenn.

2 Davidson v. New Orleans, 96 U. S. 97, decided in 1877.

3 Holden v. Hardy, 169 U. S. 389.

it had never attempted to define with precision the words "due process of law."

So also the court has declined to define with precision what is the " equal protection of the laws," though it is said that the equal protection of the laws is the pledge of the protection of equal laws.1 And in a very recent case, holding invalid the anti-trust law of Illinois, the court has repeated that both these two guaranties are secured if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of gov

ernment.

But there has been a practical distinction observed in the application of the terms, which for convenience may be followed in analyzing the decisions. Due process of law is required in tax procedure, in the assessment and collection of taxes; and, in a broader sense, the taking of property by taxation under due process of law requires that the tax must be made for a lawful, that is for a public, purpose. On the other hand, the equal protection of the laws involves the question of what is a reasonable classification for taxation, in other words, to what extent equality of taxation is protected by the Federal power under the Fourteenth Amendment.

The practical distinction between due process of law and the equal protection of the laws is illustrated in a recent case in the Supreme Court, which is not however concerned with taxation. In Cotting v. Kansas City Stock Yards, 3 the act of the State of Kansas, regulating charges in public stockyards and applying only to the defendant corporation and not to other companies or corporations engaged in like business, was adjudged to be in violation

1 Yick Wo v. Hopkins, 118 U. S. 356, 369.

2 Connolly v. Union Sewer Pipe Co., 22 Sup. Ct. Rep. 431, decided March, 1902.

3 183 U. S. 79.

of the Fourteenth Amendment. The opinion of Justice Brewer, with whom concurred Chief Justice Fuller and Justice Peckham, was that the unreasonable rates imposed and the extreme and cumulative penalties, constituted a deprivation of property without due process of law; while the remaining six Justices, Harlan, Gray, Brown, White, Shiras and McKenna, concurred only in the second ground on which the decision was based, that the discrimination in the legislation, directed, as it was, against the defendant company alone, constituted a denial of the equal protection of the laws. In other words, the arbitrary classification constituted a denial of the equal protection of the laws, and these latter judges expressed no opinion upon the point whether the statute by its necessary operation would deprive the company of its property without due process of law.

§ 314. Fourteenth Amendment in State courts.

While the Federal government makes this guaranty of protection under the Fourteenth Amendment against the action of the State government or any one acting under State authority, it is an anomalous fact, illustrative of the dual sovereignty in our form of government and the complex character of our jurisprudence, that the final determination of questions of the violation of the amendment does not always rest with the Federal courts. Thus, under our peculiar judicial system, wherein the Federal courts in cases of adverse citizenship administer State laws and follow, as a rule, the decisions of the State wherein they have jurisdiction, the State courts also, in the lawful exercise of their powers, may decide Federal questions when presented for judgment, and their decisions may be final. Thus if a Federal right or immunity is claimed in a case before a State court, and the judgment of the highest court having jurisdiction in the State is in favor of the claimant, that decision of the State court is final and cannot be reviewed

on writ of error by the Supreme Court. This is because the Judiciary Act of 17891 limits the appellate jurisdiction of the Supreme Court, in reviewing decisions of the highest courts of the States, to cases where the decision is against the Federal right, privilege or exemption claimed. In a number of cases therefore arising under the Fourteenth Amendment, decisions of State courts have been rendered, sustaining the claim of Federal right or exemption and adjudging State statutes to be invalid; and when these decisions involve the construction and application of the amendment, they are final within that jurisdiction. This power of the State courts exists, whatever the nature of the Federal right or claim, whether under the Fourteenth Amendment or otherwise.

An interesting illustration of this jurisdiction of the State courts to construe the Federal Constitution is found in a recent case in Missouri.2 A constitutional amendment, duly ratified by the people, adopted what is known as the California plan of taxing mortgages as part of the real estate, allowing a deduction of the value of the mortgage to the owner, except in the case of railroads. The Supreme Court of the State held that this amendment violated the Fourteenth Amendment of the Constitution of the United States, because the exemption was an arbitrary classification. As the decision was thus in favor of the Federal immunity claimed in the suit, the decision of the State court, construing the Constitution of the United States, was final.

The same provision in the California constitution had been held by the Supreme Court of that State to be valid and not violative of the Fourteenth Amendment.3 Thus by the decisions of the State courts construing the Federal

11 U. S. Statutes at Large, Chapter 20, section 25.

2 Russell v. Croy, 164 Mo. 69.

3 See Railroad Co. v. Board of Equalization, 60 Cal. 35.

Constitution, the same system of taxation was held valid in one State and invalid in another.

§ 315. Substance and not form regarded in alleged violations of Fourteenth Amendment.

In determining whether the Fourteenth Amendment has been disregarded by any of the agencies of the State, substance and not form merely will be considered. It was said in a condemnation case 1 that the mere fact of notice and opportunity for hearing does not necessarily decide the question as to whether there was due process of law. "A State may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. The judicial authorities may keep within the letter of the statute, prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment." The State cannot make anything due process of law which by its own legislation it chooses to declare such. There must be due process" in substance as well as in form.

On the other hand, the court has uniformly insisted that there must be a substantial failure to afford due process of law or the equal protection of the laws, before it will interfere especially with the taxing system established by the State. Essentials and non-essentials are carefully distinguished.2 Courts are always reluctant to interfere with the taxing system established by legislative authority, and it has been repeatedly held that this applies with especial force to the Federal Supreme Court in its jurisdiction under this amendment. It must clearly appear that

1 Chicago, Burlington & Q. R. R. Co. v. Chicago, 166 U. S. 226, 235.

Castillo v. McConnico, 168 U. S. 674. See infra, § 338.