The signification of these words has been the subject of judicial consideration and discussion in a vast number of cases; and their import has been determined to be the same as that of equivalent phrases in Magna Charta, from which the principle adopted was derived.

I shall not attempt to give an accurate definition of the terms, "due process of law," applicable to all cases. It is not necessary for the determination of this case to do so. It is enough to say that it has been settled by judicial decision, as I think, that wheth er the proceeding be judicial, administrative, or executive, if it affects life or liberty, or takes property directly, or imposes a charge which becomes the basis of taking property, some kind of notice, or opportunity to be heard on his own behalf and to defend his rights, given to the person whose life or liberty is to be affected, or whose property is to be taken or burdened with the liability, is an indispensable element-an essential ingredient-of "due process of law." No one, I apprehend, would for a moment contend, that a man's life or his liberty could be legally taken away without notice of the proceeding, or without being heard; or that a proceeding whereby his life or liberty should be forfeited or permanently affected, without notice or opportunity to be heard in his own defence, could, by any possibility, be by 66 due process of law." In such cases there could be no just conception of "due process of law" that would not embrace these elements of notice and opportunity to be heard. Any conception excluding these elements would be abhorrent to all our ideas of either law or justice. If these elements must enter into and constitute an essential part of due process of law, in respect to life and liberty, they must also constitute essential ingredients in due process of law where property is to be taken; for the guarantee in the Constitution is found in the same provision, in the same connection, and in the identical language applicable to all. One meaning, therefore, cannot be attributed to the phrase, with respect to property, and another with respect to life and liberty.

Having stated the principle, which I conceive to be established by an unbroken line of authorities, I shall refer to some of them. One of the latest and most instructive cases upon the subject, was recently decided by the Court of Appeals of the State of New York, from which I shall extract a passage, which I adopt, as expressing my own views, and presenting the question in a very clear and satisfactory light. It involved the validity of an assessment for a public street improvement, and but one question, which was decisive of the case, was examined or determined. The question was, as to the validity of the law under which the assessment was made. The Court, by Mr. Justice Earl, says: "The latter assessment could be made without any notice to, or hearing of, any person. The law requires no notice, and a provision for notice cannot

be implied. Upon the assumption that the law was valid, there was ample authority for the Commissioners to make the assessment without any notice or hearing." (Stuart v. Palmer, 74 N. Y. 186.) The Judge proceeds: "I am of the opinion that the Constitution sanctions no law imposing such an assessment without a notice to and a hearing, or an opportunity of a hearing by the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require a notice to them and give them a right to a hearing, and an opportunity to be heard. It matters not upon the question of the constitutionality of such a law, that the assessment has in fact been fairly apportioned. The constitutional validity of a law is to be tested, not by what has been done under it, but what may, by its authority, be done. The Legislature may prescribe the kind of notice, and the mode in which it shall be given but it cannot dispense with all notice." (Ib. 188.)

"The Legislature can no more arbitrarily impose an assessment for which property may be taken or sold than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty, or property without an opportunity to be heard in defence of his rights, and the constitutional provision that no person shall be deprived of these without due process of law, has its foundation in this rule. This provision is the most important guarantee of personal rights to be found in the Federal or State Constitutions. It is a limitation upon arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty, or property. This the Legislature cannot do nor authorize to be done. Due process of law' is not confined to any judicial proceedings, but extends to every case which may deprive a citizen of his life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature. This great guarantee is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights." (Ib. 190.)

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"No case, it is believed, can be found in which it was decided that the constitutional guarantee did not extend to cases of assessments, and yet we may infer from certain dicta of Judges that their attention was not called to it, or that they lost sight of it in the cases which they were considering. It has sometimes been intimated that a citizen is not deprived of his property, within the meaning of this constitutional provision, by the imposition of an assessment. It might as well be said that he is not deprived of his property by a judgment entered against him. A judgment does not take property until it is enforced, and then it takes the real or personal property of the debtor. So an assessment may generally be

enforced, not only against the real estate upon which it is a lien, but, as in this case, against the personal property of the owner also, and by it he may just as much be deprived of his property, and in the same sense, as the judgment debtor is deprived of his by the judgment." (Ib. 195.)

Much more is worth quoting, but it would extend this opinion to an unreasonable length.

Thus, it is determined in the case cited, that a party is not only entitled to notice and an opportunity to be heard, but that the law, or Constitution itself, must expressly provide for notice. This decision was approved by the Supreme Court of California in October last, in Mulligan v. Smith, involving the validity of a tax. 8 Pacific Law Journal, 499. Said McKinstry, J.: "In my opinion, the statute provides no notice or process by the means of which property-owners can be subjected to the judgment of the County Court. The act is, therefore, void;" citing Stuart v. Palmer, supra; Cooley on Taxation, 266, and other cases; and McKee, J., in the same case, said: "It is a principle which underlies all forms of government by laws, that a citizen shall not be deprived of life, liberty, or property without due process of law. The Legislature has no power to take away any man's property, nor can it authorize its agents to do so, without first providing for personal notice to be given to him, and for a full opportunity of time, place, and tribunal, to be heard in defence of his rights. This constitutional guarantee is not confined to judicial proceedings, but extends to every case in which a citizen may be deprived of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its

nature."

In Patten v. Green, 13 Cal. 329, Mr. Justice Baldwin, all the Justices, including Mr. Justice Field, concurring in the opinion, said: "We think it would be a dangerous precedent to hold that an absolute power resides in the Supervisors to tax land as they may choose, without giving any notice to the owner. It is a power liable to great abuse. The general principles of law applicable to such tribunals oppose the exercise of any such power.' The raising of the tax by the Board of Equalization was held void for want of notice. Mr. Webster, in the Dartmouth College Case, defined due process of law, or "the law of the land," as "the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." He adds, "Everything which may pass under the form of an enactment is not 'the law of the land."

In Cooper v. Board of Works, 108 Eng. C. L. R. 181, in which was in question the action of the Board of Public Works, in pursuance of a statute which did not require notice, Willes, J., said: "I apprehend that a tribunal, which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to

give such subject an opportunity of being heard before it proceeds. And that that rule is of universal application, and founded upon the plainest principles of justice." In the same case, Byles, J., said: "The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but is very applicable, and has been the law from that time to the present." He says: "The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he called upon him to make his defence. Adam where art thou! Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?"" See, also, Philadelphia v. Miller, 49 Pa. 448; Matter of Ford, 6 Lans. 92; Overing v. Foote, 65 N. Y. 263; Westervelt v. Gregg, 12 N. Y. 209; Cooley, Const. Lim. 355; Butler v. Sup. Sag., 26 Mich. 22, 29; Sedgwick's Stat. and Constitutional Construction, Pomeroy's Ed. 474, et seq., and notes; Cooley on Taxation, 266, 267.

In Davidson v. New Orleans, (96 U. S. 97,) it was not questioned, but assumed, that the party taxed must have an opportunity to be heard, and decided upon that theory.

In my judgment, the authorities establish, beyond all controversy, that somewhere in the process of assessing a tax under a law, or a State Constitution, at some point before the amount of the assessment becomes finally and irrevocably fixed, the statute, or the State Constitution, must provide for notice to be given to the owner of the property taxed, and an opportunity be afforded to make objections and to be heard upon them. In some form or manner, he must be afforded an opportunity to defend his interests. In this case the Constitution makes no provision for notice or a hearing, and the answer alleges that there was none, which is admitted by the demurrer.

4. On behalf of the plaintiff, what purports to be a statute passed March 14, 1881, (Statutes 1881-83,) is cited, which, it is insisted, supplements the Constitution, and provides for a notice and hearing upon a petition filed within five days after the assessment is made upon a railroad. But it is claimed, that, although published in the volume of statutes for the year 1881, as a statute, the bill never constitutionally passed, and that it is, consequently, no law. Section 15 of Article IV. of the Constitution of California provides, that "on the final passage of all bills they shall be by yeas and nays upon each bill separately, and shall be entered on the journals, and no bill shall become a law without the concurrence of a majority of the members elected to each house." Under section 5 of the same article the House consists of eighty members, of whom it would require forty-one to constitute a majority of the members elected to the House. Upon reference to the published

journals of the Legislature, it appears that the bill in question passed the House and was sent to the Senate, where it was amended by adding a long provision, being the very provision, if any there is, which gives the owners of railroads of the class in question, dissatisfied with the assessment, a right to file a petition, "within five days after the assessment is made and entered of record on the books of the board," to have the assessment corrected, and providing for proceedings upon said petition. On March 4, the House considered the Senate amendment, and upon a call of the yeas and nays, as required by the Constitution, thirty-nine members voted for the amendment, and thirty-two against it, there being four paired and not voting; thus the votes in favor of the amendment were two less than a majority of members elected to the House, and the bill failed. It does not appear that the bill "was read at length." The Speaker declared that this was not the final action of the House, and that the amendment concurred in by a vote of 39 yeas to 32 nays, was adopted. An appeal having been taken from this decision of the chair, it was afterwards laid upon the table. Thereupon two members filed each a separate protest against the decision of the Speaker, and the certificate that the bill had passed, on the expressed ground that it did not receive the vote of a majority of the members elected to the House. All this appears upon the journal. If this was not the final action of the House, then, asɛ there was no further action, the act never finally passed, even by the numbers indicated. (Assembly Journal, 24th Session, p. 472-5.)

The bill, therefore, never was constitutionally passed, and never became a law. Whether the bill became a law is a question of law of which the Court will take judicial notice. (Sherman v. Storey, 30 Cal. 253; Ottawa v. Perkins, 94 U. S. 268; Gardner v. The Collector, 6 Wall. 509-10; Post v. Supervisors, 105 U. S.) Under the decisions of the Courts upon constitutional provisions, in all respects similar to that in the present Constitution of California, it is settled, that the Court, to inform itself, will look to the journals of the Legislature. So the Supreme Court of the United States holds where it is so decided by the State Courts in construing their own Constitutions and laws. (See cases last cited.) I am not aware of any decision of the Supreme Court of California giving a different construction to the State Constitution as it now stands. Unless this mode is adopted of resorting to the journals to ascertain whether a statute has been legally passed or not, experience, and the number of cases that have already arisen under similar constitutional provisions, demonstrate, that the requirement of the Constitution, that the vote shall be taken by yeas and nays, and a majority of the members required to vote in the affirmative on the final passage of an act, would be of little avail. While we think the case of Sherman v. Storey correctly decided under the Constitution as