Uncompensated Takings

"It is well settled that 'neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare.' * * * Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property, * * *"[660] Thus, the flooding of lands consequent upon private construction of a dam under authority of legislation enacted to subserve the drainage of lowlands was not a taking which required compensation to be made, especially since such flooding could have been prevented by raising the height of dikes around the lands. "The rule to be gathered from these cases is that where there is a practical destruction, or material impairment of the value of plaintiff's lands, there is a taking, which demands compensation, but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow."[661] Similarly, when a city, by condemnation proceedings, sought to open a street across the tracks of a railroad, it was not obligated to pay the expenses that the railroad would incur in planking the crossing, constructing gates, and posting gatemen at the crossing. The railway was presumed to have "laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety."[662] Also, one who leased oyster beds in Hampton Roads from Virginia for $1 per acre under guaranty of an "absolute right" to use and occupy them was held to have acquired such rights subject to the superior power of Virginia to authorize Newport News to discharge its sewage into the sea; and, hence could not successfully contend that the resulting pollution of his oysters constituted an uncompensated taking without due process of law.[663]

Consequential Damages

"Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the due process clause."[664] Accordingly, consequential damages to abutting property caused by an obstruction in a street resulting from the authorization of a railroad to erect tracks, sheds, and fences over a portion thereof have been held to effect no unconstitutional deprivation of property.[665] Likewise, the erection over a street of an elevated viaduct, intended for general public travel and not devoted to the exclusive use of a private transportation corporation, has been declared to be a legitimate street improvement equivalent to a change in grade; and, as in the case of a change of grade, the owner of land abutting on the street has been refused damages for impairment of access to his land and the lessening of the circulation of light and air over it.[666]

Limits to the Above Rule.—There are limits however, to the amount of destruction or impairment of the enjoyment or value of private property which public authorities or citizens acting in their behalf may occasion without the necessity of paying compensation therefor. Thus, in upholding zoning regulations limiting the height of buildings which may be constructed in a designated zone, the Court has warned that similar regulations, if unreasonable, arbitrary, and discriminatory, may be held to deprive an owner of the profitable use of his property and hence to amount to a taking sufficient to require compensation to be paid for such invasion of property rights.[667] Similarly, in voiding a statute forbidding mining of coal under private dwellings or streets or cities in places where such right to mine has been reserved in a conveyance, Justice Holmes, speaking for his associates, declared if a regulation restricting the use of private property goes too far, it will be recognized as a taking for which compensation must be made. "Some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits, * * * One fact for consideration in determining such limits is the extent of the diminution. * * * The damage [here] is not common or public. * * * The extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land."[668]

Due Process in Eminent Domain

(1) Notice.—If the owner of property sought to be condemned is a nonresident, personal notice is not requisite and service may be effected by publication.[669] In fact, "it has been uniformly held that statutes providing for * * * condemnation of land may adopt a procedure summary in character, and that notice of such proceedings may be indirect, provided only that the period of notice of the initiation of proceedings and the method of giving it are reasonably adapted to the nature of the proceedings and their subject matter." Insofar as reasonable notice is deemed to be essential, that requirement was declared to have been satisfied by a statute providing that notice of initiation of proceedings for establishment of a county road be published on three successive weeks in three successive issues of a paper published in the county, and that all meetings of the county condemning agency be public and published in a county newspaper.[670]

(2) Hearing.—The necessity and expediency of a taking being legislative questions irrespective of who may be charged with their decision, a hearing thereon need not be afforded;[671] but the mode of determining the compensation payable to an owner must be such as to furnish him with an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, or by a jury, generally without a hearing, but subject to the right of the owner to appeal for a judicial review thereof at which a trial on the evidence may be had. Through such an appeal the owner obtains the hearing to which he is entitled;[672] and the fact that after having been adequately notified of the determination by the condemning authorities, the former must exercise his right of appeal within a limited period thereafter, such as 30 days, has been held not so arbitrary as to deprive him of property without due process of law.[673] Nor is there any "denial of due process in making the findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts [that is, conclusive as to the mere value of the property], and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, * * *"[674]

(3) Occupation in Advance of Condemnation.—Due process does require that condemnation precede occupation by the condemning authority so long as the opportunity for a hearing as to the value of the land is guaranteed during the condemnation proceedings. Where the statute contains an adequate provision for assured payment of compensation without unreasonable delay, the taking may precede compensation.[675]

DUE PROCESS OF LAW IN CIVIL PROCEEDINGS

Some General Criteria

What is due process of law depends on the circumstances.[676] It varies with the subject matter and the necessities of the situation. By due process of law is meant one which, following the forms of law, is appropriate to the case, and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.[677]

Ancient Usage and Uniformity.—What is due process of law may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. If it can show the sanction of settled usage both in England and in this country, a process of law which is not otherwise forbidden may be taken to be due process of law. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law at the time of the emigration and brought to this country and practiced by our ancestors is, or remains, an essential element of due process of law. If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.[678]

Equality.—If due process is to be secured, the laws must operate alike upon all, and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice. Where a litigant has the benefit of a full and fair trial in the State courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.[679]

Due Process and Judicial Process.—Due process of law does not always mean a proceeding in court.[680] Proceedings to raise revenue by levying and collecting taxes are not necessarily judicial, neither are administrative and executive proceedings, yet their validity is not thereby impaired.[681] Moreover, the due process clause has been interpreted as not requiring that the judgment of an expert commission be supplanted by the independent view of judges based on the conflicting testimony, prophecies, and impressions of expert witnesses when judicially reviewing a formula of a State regulatory commission for limiting daily production in an oil field and for proration among the several well owners.[682]

Nor does the Fourteenth Amendment prohibit a State from conferring upon nonjudicial bodies certain functions that may be called judicial, or from delegating to a court powers that are legislative in nature. For example, State statutes vesting in a parole board certain judicial functions,[683] or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade,[684] or vesting in a probate court authority to appoint park commissioners and establish park districts[685] are not in conflict with the due process clause and present no federal question. Whether legislative, executive, and judicial powers of a State shall be kept altogether distinct and separate, or whether they should in some particulars be merged is for the determination of the State.[686]

Jurisdiction

In General.—Jurisdiction may be defined as the power to create legal interests; but if a State attempts to exercise such power with respect to persons or things beyond its borders, its action is in conflict with the Fourteenth Amendment and is void within as well as without its territorial limits. The foundation of jurisdiction is therefore physical power capable of being exerted over persons through in personam actions and over things, generally through actions in rem.[687] In proceedings in personam to determine liability of a defendant, no property having been subjected by such litigation to the control of the Court, jurisdiction over the defendant's person is a condition prerequisite to the rendering of any effective decree.[688] That condition is fulfilled; that is, a State is deemed capable of exerting jurisdiction over an individual if he is physically present within the territory of the State, if he is domiciled in the State although temporarily absent therefrom, or if he has consented to the exercise of jurisdiction over him. In actions in rem, however, a State validly may proceed to settle controversies with regard to rights or claims against property within its borders, notwithstanding that control of the defendant is never obtained. Accordingly, by reason of its inherent authority over titles to land within its territorial confines, a State may proceed through its courts to judgment respecting the ownership of such property, even though it lacks the constitutional competence to reach claimants of title who reside beyond its borders.[689] By the same token, probate[690] and garnishment or foreign attachment[691] proceedings, being in the nature of in rem actions for the disposition of property, may be prosecuted to conclusion without requirement of the presence of all parties in interest.[692]

How Perfected: By Voluntary Appearance or Service of Process.—It is not enough, however, that a State be potentially capable of exercising control over persons and property. Before a State legitimately can exercise such power to alter private interests, its jurisdiction must be perfected by the employment of an appropriate mode of serving process deemed effective to acquaint all parties of the institution of proceedings calculated to affect their rights; for the interest of no one constitutionally may be impaired by a decree resulting from litigation concerning which he was afforded neither notice nor an opportunity to participate.[693] Voluntary appearance, on the other hand, may enable a State not only to obtain jurisdiction over a person who was otherwise beyond the reach of its process; but also, as in the case of a person who was within the scope of its jurisdiction, to dispense with the necessity of personal service. When a party voluntarily appears in a cause and actively conducts his defense, he cannot thereafter claim that he was denied due process merely because he was not served with process when the original action was commenced.[694]

Service of Process in Actions in Personam: Individuals, Resident and Nonresident.—The proposition being well established that no person can be deprived of property rights by a decree in a case in which he neither appeared, nor was served or effectively made a party, it follows, by way of illustration that to subject property of individual citizens of a municipality, by a summary proceeding in equity, to the payment of an unsatisfied judgment against the municipality would be a denial of due process of law.[695] Similarly, in a suit against a local partnership, in which the resident partner was duly served with process and the nonresident partner was served only with notice, a judgment thus obtained is binding upon the firm and the resident partner, but is not a personal judgment against the nonresident and cannot be enforced by execution against his individual property.[696] That the nonresident partner should have been so protected is attributable to the fact the process of a court of one State cannot run into another and summon a party there domiciled to respond to proceedings against him, when neither his person nor his property is within the jurisdiction of the Court rendering the judgment.[697] In the case of a resident, however, absence alone will not defeat the processes of courts in the State of his domicile; for domicile is deemed to be sufficient to keep him within reach of the State courts for purposes of a personal judgment, whether obtained by means of appropriate, substituted service, or by actual personal service on the resident at a point outside the State. Amenability to such suit even during sojourns outside is viewed as an "incident of domicile."[698] However, if the defendant, although technically domiciled therein, has left the State with no intention to return, service by publication; that is, by advertisement in a local newspaper, as compared to a summons left at his last and usual place of abode where his family continued to reside, is inadequate inasmuch as it is not reasonably calculated to give him actual notice of the proceedings and opportunity to be heard.[699]

In the case of nonresident individuals who are domiciled elsewhere, jurisdiction in certain instances may be perfected by requiring such persons, as a condition to entering the State, to designate local agents to accept service of process. Although a State does not have the power to exclude individuals until such formal appointment of an agent has been made,[700] it may, for example, declare that the use of its highways by a nonresident is the equivalent of the appointment of the State Registrar as agent for receipt of process in suits growing out of motor vehicle accidents. However, a statute designating a State official as the proper person to receive service of process in such litigation must, to be valid, contain a provision making it reasonably probable that a notice of such service will be communicated to the person sued. If the statute imposed "either on the plaintiff himself, or upon the official" designated to accept process "or some other, the duty of communicating by mail or otherwise with the defendant" this requirement is met; but if the act exacts no more than service of process on the local agent, it is unconstitutional, notwithstanding that the defendant may have been personally served in his own State. Not having been directed by the statute, such personal service cannot supply constitutional validity to the act or to service under it.[701]

Suits in Personam.—Restating the constitutional principles currently applicable for determining whether individuals, resident and nonresident, are suable in in personam actions, the Supreme Court in International Shoe Co. v. Washington,[702] recently declared that: "Historically the jurisdiction of courts to render judgments in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. * * * But now * * *, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'"

Suability of Foreign Corporations.—Until the enunciation in 1945 in International Shoe Co. v. Washington[703] of a "fair play and substantial justice" doctrine, the exact scope of which cannot yet be ascertained, the suability of foreign corporations had been determined by utilization of the "presence" doctrine. Defined in terms no less abstract than its alleged successor and capable therefore of acquiring meaning only in cases of specific application, the "presence" doctrine was stated by Justice Brandeis as follows: "In the absence of consent, a foreign corporation is amenable to process to enforce a personal liability only if it is doing business within the State in such manner and to such extent as to warrant the inference that it is present there".[704] In a variety of cases the Court has considered the measure of "presence" sufficient to confer jurisdiction and a representative sample of the classes thereof is set forth below.

With rare exceptions,[705] even continuous activity of some sort by a foreign corporation within a State did not in the past suffice to render it amenable to suits therein unrelated to that activity. Without the protection of such a rule, it was maintained, foreign corporations would be exposed to the manifest hardship and inconvenience of defending in any State in which they happen to be carrying on business suits for torts wherever committed and claims on contracts wherever made. Thus, an Indiana insurance corporation, engaging, without formal admission, in the business of selling life insurance in Pennsylvania, was held not to be subject in the latter State to a suit filed by a Pennsylvania resident upon an insurance policy executed and delivered in Indiana.[706] Similarly, a Virginia railway corporation, doing business in New Orleans, was declared not to be within the jurisdiction of Louisiana for the purposes of a negligence action instituted against it by a Louisiana citizen and based upon injuries suffered in Alabama.[707] Also, an Iowa railway company soliciting freight and passenger business in Philadelphia through a local agent was viewed as exempt therein from suit brought by a Pennsylvania resident to recover damages for personal injuries sustained on one of the carrier's trains in Colorado.[708] On the other hand, when a Missouri statute, accepted by a foreign insurance company and requiring it to designate the State superintendent of insurance as its agent for service of process, was construed by Missouri courts to apply to suits on contracts executed outside Missouri, with the result that the company had to defend in Missouri a suit on a policy issued in Colorado and covering property therein, the Court was unable to discern any denial of due process. The company was deemed to have consented to such interpretation when it complied with the statute.[709] Moreover, even when the cause of action arose in the forum State and suit was instituted by a corporation chartered therein, a foreign company retailing clothing in Oklahoma was held immune from service of process on its president when the latter visited New York on one of his periodic trips there for the purchase of merchandise. Notwithstanding that such business trips were made at regular intervals, the Oklahoma corporation was considered not to be doing business in New York "in such manner and to such extent as to warrant the inference that it was present there," especially in view of its having never applied for a license to do business in New York or consented to suit being brought against it there, or established therein an office or appointed a resident agent.[710]

Nor would the mere presence within its territorial limits of an agent, officer, or stockholder, upon whom service might readily be had, be effective without more to enable a State to acquire jurisdiction over a foreign corporation. Consequently, service of process on the president of a foreign corporation in a State where he was temporarily and casually present and where the corporation did no business and had no property was fruitless.[711] Likewise, service on a New York director of a Virginia corporation was not sufficient to bring the corporation into the New York courts when, at the time of service, the corporation was not doing business in New York, and the director was not there officially representing the corporation in its business.[712] On occasion, an officer of a corporation may temporarily be in a State or even temporarily reside therein; but if he is not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such State, his presence affords no basis for the exercise of jurisdiction over such nonresident employer, and any decree resulting from service upon such officer is violative of due process.[713] However, a foreign insurance corporation which had ceased to sell insurance in Tennessee but which had sent a special agent there to adjust a loss under a policy previously issued in that State could not, it was held, constitutionally object when a judgment on that claim was obtained by service on that agent.[714]

Inasmuch as a State need not permit a foreign corporation to do domestic business within its borders, it may condition entry upon acceptance by the corporation of service of process upon its agents or upon a person to be designated by the corporation or, failing such designation, upon a State officer designated by law.[715] Service on a State officer, however, is no more effective than service upon an agent in the employ of a foreign corporation when, as has already been noted, such corporation is not subject to the jurisdiction of the State; that is, has not engaged in activities sufficient to render it "present" within the State, or is subjected to a cause of action unrelated to such activities and originating beyond the forum State. Thus, a foreign insurance company which, after revocation of its entry license, continued to collect premiums on policies formerly issued to citizens of the forum State was in fact continuing to do business in that State sufficiently to render service on it through the insurance commissioner adequate to bind it as defendant in a suit by a citizen of said State on a policy therein issued to him.[716] Furthermore, a foreign corporation which, after leaving a State and subsequently dissolving, failed to obey a statutory requirement of that State that it maintain therein a resident agent until the period of limitations shall have run, or, in default thereof, that it consent to service on it through the Secretary of State, could not complain of any denial of due process because that statute did not oblige the Secretary of State to notify it of the pendency of an action. The burden was on the corporation to make such arrangement for notice as was thought desirable.[717]

To what extent these aforementioned holdings have been undermined by the recent opinion in International Shoe Co. v. Washington[718] cannot yet be determined. In the latter case, a foreign corporation, which had not been issued a license to do business in Washington, but which systematically and continuously employed a force of salesmen, residents thereof, to canvass for orders therein, was held suable in Washington for unpaid unemployment compensation contributions in respect to such salesmen. Service of the notice of assessment personally upon one of its local sales solicitors plus the forwarding of a copy thereof by registered mail to the corporation's principal office in Missouri was deemed sufficient to apprize the corporation of the proceeding.

To reach this conclusion the Court not only overturned prior holdings to the effect that mere solicitation of patronage does not constitute doing of business in a State sufficient to subject a foreign corporation to the jurisdiction thereof,[719] but also rejected the "presence" test as begging "the question to be decided. * * * The terms 'present' or 'presence,'" according to Chief Justice Stone, "are used merely to symbolize those activities of the corporation's agent within the State which courts will deem to be sufficient to satisfy the demands of due process. * * * Those demands may be met by such contacts of the corporation with the State of the forum as make it reasonable, in the context of our federal system * * *, to require the corporation to defend the particular suit which is brought there; [and] * * * that the maintenance of the suit does not offend 'traditional notices of fair play and substantial justice' * * * An 'estimate of the inconveniences' which would result to the corporation from a trial away from its 'home' or principal place of business is relevant in this connection."[720] As to the scope of application to be accorded this "fair play and substantial justice" doctrine, the Court, at least verbally, conceded that "* * * so far as * * * [corporate] obligations arise out of or are connected with activities within the State, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue."[721] Read literally, these statements coupled with the terms of the new doctrine may conceivably lead to a reversal of former decisions which: (1) nullified the exercise of jurisdiction by the forum State over actions arising outside said State and brought by a resident plaintiff against a foreign corporation doing business therein without having been legally admitted and without having consented to service of process on a resident agent; and (2) exempted a foreign corporation, which has been licensed by the forum State to do business therein and has consented to the appointment of a local agent to accept process, from suit on an action not arising in the forum State and not related to activities pursued therein.

By an extended application of the logic of the last mentioned case, a majority of the Court, in Travelers Health Assn. v. Virginia[722] ruled that, notwithstanding that it solicited business in Virginia solely through recommendations of existing members and was represented therein by no agents whatsoever, a foreign mail order insurance company had through its policies developed such contacts and ties with Virginia residents that the State, by forwarding notice to the company by registered mail only, could institute enforcement proceedings under its Blue Sky Law leading to a decree ordering cessation of business pending compliance with that act. The due process clause was declared not to "forbid a State to protect its citizens from such injustice" of having to file suits on their claims at a far distant home office of such company, especially in view of the fact that such suits could be more conveniently tried in Virginia where claims of loss could be investigated.[723]

Service of Process

Actions in Rem—Proceedings Against Land.—For the purpose of determining the extent of a nonresident's title to real estate within its limits, a State may provide any reasonable means of imparting notice.[724] Precluded from going beyond its boundaries and serving nonresident owners personally, States in such cases of necessity have had recourse to constructive notice or service by publications. This they have been able to do because of their inherent authority over titles to lands within their borders. Owners, nonresident as well as resident, are charged with knowledge of laws affecting demands of the State pertinent to property and of the manner in which such demands may be enforced.[725] Accordingly, only so long as the property affected has been brought under control of the Court, will a judgment obtained thereto without personal notice to a nonresident defendant be effective. Insofar as jurisdiction is thus required over a nonresident, it does not extend beyond the property involved.[726] Consistently with such principles, San Francisco, after the earthquake of 1906, had destroyed nearly all records, permitted titles to be reestablished by parties in possession by posting summons on the property, serving them on known claimants, and publishing them against unknown claimants in newspapers for two weeks.[727]

Actions in Rem—Attachment Proceedings.—In fulfillment of the protection which a State owes to its citizens, it may exercise its jurisdiction over real and personal property situated within its borders belonging to a nonresident and permit an appropriation of the same in attachment proceedings to satisfy a debt owed by the nonresident to one of its citizens or to settle a claim for damages founded upon a wrong inflicted on the citizen by the nonresident. Being neither present within the State nor domiciled therein, the nonresident defendant cannot be served personally; and consequently any judgment in money obtained against him would be void and could not thereafter be satisfied either by execution on the nonresident's property subsequently found within the State or by suit and execution thereon in another State. In such instances, the citizen-plaintiff may recover, if at all, only by an in rem proceeding involving a levy of a writ of attachment on the local property of the defendant, of which proceeding the nonresident need be notified merely by publication of a notice within the forum State. However, any judgment rendered in such proceedings can have no consequence beyond the property attached. If the attached property be insufficient to pay the claim, the plaintiff cannot thereafter sue on such judgment to collect an unpaid balance; and if property owned by the defendant cannot be found within the State, the attachment proceedings are, of course, summarily concluded.[728]

Actions in Rem—Corporations, Estates, Trusts, Etc.—Probate administration, being in the nature of a proceeding in rem, is one to which all the world is charged with notice.[729] Thus, in a proceeding against an estate involving a suit against an administratrix to foreclose a mortgage executed by the decedent, the heir, notwithstanding that the suit presents an adverse claim the disposition of which may be destructive of his title to land deriving from the decedent, may properly be represented by the administratrix and is not entitled to personal notification or summons.[730] For like reasons, a statutory proceeding whereunder a special administrator, having charge of an estate pending a contest as to the validity of the will, is empowered to have a final settlement of his accounts without notice to the distributees, is not violative of due process. The executor, or administrator c.t.a., has an opportunity to contest the final settlement of the special administrator before giving the latter an acquittance; and since the former represents all claiming under the will, it cannot be said the absence of notice to the distributees of the settlement deprives them of their rights without due process of law.[731]

In litigation to determine succession to property by proceedings in escheat, due process is afforded by personal service of summons upon all known claimants and constructive notice by publication to all claimants who are unknown.[732] Whether a proceeding by the State to compel a bank to turn over to it unclaimed deposits in quasi in rem or strictly in rem, the essentials of jurisdiction over the deposit are that there be a seizure of the res at the commencement of the suit and reasonable notice and opportunity to be heard. These requirements are met by personal service on the bank and publication of summons to depositors and of notice to all other claimants. The fact that no affidavit of impracticability of personal service on claimants is required before publication of such notices does not render the latter unreasonable inasmuch as they are used only in cases where the depositor is not known to the bank officers to be alive.[733] Similarly, a Kentucky statute requiring banks to turn over to the State deposits long inactive is not violative of due process where, although the deposits are taken over upon published notice only, without any judicial decree of actual abandonment, they are to be held by the State for the depositor until such determination and for five years thereafter.[734] However, a procedure is at least partly defective whereby a bank managing a common trust fund in favor of nonresident as well as resident beneficiaries may, by a petition, the only notice of which is by publication in a local paper, obtain a judicial settlement of accounts which is conclusive on all having an interest in the common fund or in any participating trust. Such notice by publication is sufficient as to beneficiaries whose interests or addresses are unknown to the bank, since there are no other more practicable means of giving them notice; but is inadequate as a basis for adjudication depriving of substantial rights persons whose whereabouts are known, inasmuch as it is feasible to make serious efforts to notify them at least by mail to their addresses on record with said bank.[735] On the other hand, failure to make any provision for notice to majority stockholders of a suit by dissenting shareholders, under a statute which provided that, on a sale or other disposition of all or substantially all of corporate assets, a dissenting shareholder shall have the right, after six months, to be paid the amount demanded, if the corporation makes no counter offer or does not abandon the sale, does not deny due process; for the majority stockholders are sufficiently represented by the corporation.[736]

Actions in Rem—Divorce Proceedings.—The jurisdictional requirements for rendering a valid decree in divorce proceedings are considered under the full faith and credit clause. See pp. 662-670.

Misnomer of Defendant—False Return, Etc.—An unattainable standard of accuracy is not imposed by the due process clause. If a defendant within the jurisdiction is served personally with process in which his name is misspelled, he cannot safely ignore it on account of the misnomer. If he fails to appear and plead the misnomer in abatement, the judgment binds him. In a published notice intended to reach absent or nonresident defendants, where the name is a principal means of identifying the person concerned, somewhat different considerations obtain. The general rule, in case of constructive service of process by publication, tends to strictness. However, published notice to "Albert Guilfuss, Assignee," in a suit to partition land, was adequate to render a judgment binding on "Albert B. Geilfuss, Assignee," the latter not having appeared.[737]

Foreclosure of a mortgage made upon process duly issued but which the sheriff falsely returned as having been duly served, and of which the owner had no notice, does not deprive said owner of property without due process of law. A purchaser of the land at the sheriff's sale has a right to rely on such return; otherwise judicial proceedings could never be relied upon. The mortgagor must seek his remedy against the sheriff upon his bond.[738]

Notice and Hearing

Legislative Proceedings.—While due notice and a reasonable opportunity to be heard to present one's claim or defense have been declared to be two fundamental conditions almost universally prescribed in all systems of law established by civilized countries,[739] there are certain proceedings appropriate for the determination of various rights in which the enjoyment of these two privileges has not been deemed to be constitutionally necessary. Thus the Constitution does not require legislative assemblies to discharge their functions in town meeting style; and it would be manifestly impracticable to accord every one affected by a proposed rule of conduct a voice in its adoption. Advanced notice of legislation accordingly is not essential to due process of law; nor need legislative bodies preface their enactment of legislation by first holding committee hearings thereon. It follows therefore that persons adversely affected by a specific law can never challenge its validity on the ground that they were never heard on the wisdom or justice of its provisions.[740]

Administrative Proceedings.—To what extent notice and hearing are deemed essential to due process in administrative proceedings, encompassing as they do the formulation and issuance of general regulations, the determination of the existence of conditions which have the effect of bringing such regulations into operation, and the issuance of orders of specific, limited application, entails a balancing of considerations as to the desirability of speed in law enforcement and protection of individual interests. When an administrative agency engages in a legislative function, as, for example, when, in pursuance of statutory authorization, it drafts regulations of general application affecting an unknown number of people, it need not, any more than does a legislative assembly, afford a hearing prior to promulgation. On the other hand, if a regulation, sometimes described as an order or action of an administrative body, is of limited application; that is, affects the property or interests of specific, named individuals, or a relatively small number of people readily identifiable by their relation to the property or interests affected, the question whether notice and hearing is prerequisite and, if so, whether it must precede such action, becomes a matter of greater urgency.

But while a distinction readily may be made, for example, between a regulation establishing a schedule of rates for all carriers in a State, and one designed to control the charges of only one or two specifically named carriers, the cases do not consistently sustain the withholding of advance notice and hearing in the first class of regulations and insist upon its provision in the latter. In fact, the observation has been made that the judicial disposition to exact the protection of notice and hearing rises in direct proportion to the extent to which a regulation affects the finances of business establishments covered thereunder. Accordingly, if a regulation bears only indirectly upon income and expenses, as for example, a regulation altering insurance policy forms, less concern for such procedural protection is likely to be expressed than in the case of the formulation of a minimum wage schedule, even though the regulations involved in both illustrations are general and not limited in operation. Moreover, if regulations, which are general in their application, may be readily subjected to judicial challenge after their promulgation, or if the parties to which they apply are affected only when they endeavor to comply in the future, advance notice and hearing is less likely to be viewed as essential to due process.[741]

As to that portion of administrative activity pertaining to the making of determinations or the issuance of orders of limited or individual application, the obligation to afford notice and hearing is reasonably clear; but controversy has been protracted on the question whether this procedural safeguard, in every instance, must be granted in advance of such activity. The most frequently litigated types of administrative action embracing the latter issue have been determinations to withhold issuance of, or to revoke, an occupational license, or to impound or destroy property believed to be dangerous to public health, morals, or safety. Apparently in recognition of the fact that few occupations today can be pursued without a license, the trend of decisions is toward sustaining a requirement of a hearing before refusal to issue a license and away from the view that inasmuch as no one is entitled as of right to engage in a specific profession, the issue of a practitioner's license applicable thereto is in the nature of a gift as to the granting or withholding of which procedural protection is unnecessary. Revocation, or refusal to renew a license, however, has been distinguished from issuance of a license; and where a license is construed to confer something in the nature of a property right rather than a mere privilege terminable at will, such property right, the Courts have maintained, ought not to be destroyed summarily by revocation without prior notice and hearing. Whether an occupational license is to be treated as a privilege revocable without a hearing, or as conferring a property right deserving of greater protection, depends very largely on prevailing estimates of the social desirability of a calling. Thus, if a business is susceptible of being viewed as injurious to public health, morals, safety, and convenience, as, for example, saloons, pool rooms, and dance halls, the licensee is deemed to have entered upon such line of endeavor with advance knowledge of the State's right to withdraw his license therefor summarily. Prompt protection of the public in such instances is said to outweigh the advantages of a slower procedure, retarded by previous notice and hearing, and to require that the person adversely affected seek his remedy from the Court via a petition to review or to enjoin the decision of the licensing authorities.[742]

For like reasons, the owner of property about to be impounded or destroyed by officers acting in furtherance of the police power may justifiably be relegated to post mortem remedies in the form of a suit for damages against the officer effecting the seizure or destruction, or, if time permits, a bill in equity for an injunction. Thus, due process of law is not denied the custodian of food in cold storage by enforcement of a city ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned, and destroyed without a preliminary hearing. "If a party cannot get his hearing in advance of the seizure and destruction he has the right to have it afterward, * * * in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness as claimed by them."[743] Similarly, if the owner of liquor, possession of which has been made unlawful, can secure a hearing by instituting injunction proceedings, he is not denied due process by the failure to grant him a hearing before seizure and destruction of his property.[744] Indeed, even when no emergency exists, such as is provided by a conflagration or threatened epidemic, and the property in question is not intrinsically harmful, mere use in violation of a valid police power regulation has been held to justify summary destruction. Thus, in the much criticized case of Lawton v. Steele,[745] the destruction, without prior notice and hearing, of fishing nets set in violation of a conservation law defining them to be a nuisance was sustained on the ground that the property was not "of great value." Conceding that "it is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation," the Court acknowledged that "if the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be * * * dangerous * * * to permit * * * [an officer] to sell or destroy it as a public nuisance, * * * But where the property is of trifling value, * * * we think it is within the power of the legislature to order its summary abatement."[746]

Statutory Proceedings.—"It is not an indispensable requirement of due process that every procedure affecting the ownership or disposition of property be exclusively by judicial proceeding. Statutory proceedings affecting property rights, which, by later resort to the courts, secure to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process."[747] Thus, a procedure under which a State banking superintendent, after having taken over a closed bank and issued notices to stockholders of their assessment, may issue execution for the amounts due, subject to the right of each stockholder, by affidavit of illegality, to contest his liability for such an assessment, does not in effect authorize an execution and creation of a lien before and without any judicial proceeding. The fact that the execution is issued in the first instance by an agent of the State and not from a court, followed by personal notice and a right to take the case into court, is open to no objection. The statute authorizing this procedure is itself notice to stockholders that on becoming such they assumed the liability on which they are to be held.[748]

Judicial Proceedings.—Consistently with the due process clause, a State may not enforce a judgment against a party named in the proceedings without an opportunity to be heard at sometime before final judgment is entered.[749] As to the presentation of every available defense, however, the requirements of due process do not entail affording an opportunity to do so before entry of judgment. A hearing by an appeal may suffice. Accordingly, a surety company, objecting to the entry of a judgment against it on a supersedeas bond, without notice and an opportunity of a hearing on the issue of liability thereon, was not denied due process where the State practice provided the opportunity for such hearing by an appeal from the judgment so entered. Nor could the company found its claim of denial upon the fact that it lost this opportunity for a hearing by inadvertently pursuing the wrong procedure in the State courts.[750] On the other hand, where a State Supreme Court reversed a trial court and entered a final judgment for the defendant, a plaintiff who had never had an opportunity to introduce evidence in rebuttal to certain testimony which the trial court deemed immaterial but which the appellate court considered material, was held to have been deprived of his rights without due process of law.[751]

Sufficiency of Notice and Hearing.—Although the Supreme Court has wavered on the question whether the granting of notice in administrative proceedings, in cases in which the authorizing statute does not expressly provide therefor, will satisfy the requirements of due process,[752] in judicial proceedings it has almost consistently declared that notice must be provided as an essential part of the statutory provision and not as a mere matter of favor or grace.[753] Also, the notice afforded must be adequate for the purpose. Thus, a Texas statute providing for service of process by giving five days' notice was held to be an insufficient notice to a Virginian who would (at that time) have required four days' traveling to reach the place where the court was held. Nor would this insufficiency of notice on a nonresident be cured by the fact that under local practice there would be several additional days before the case would be called for trial or that the court would probably set aside a default judgment and permit a defense when the nonresident arrived.[754] On the other hand, a statute affording ten days' notice of the time for settlement of the account of a personal representative in probate proceedings is not wanting in due process of law as to a nonresident.[755] Adequacy, moreover, is no less an essential attribute of a hearing than it is of notice; and, as the preceding discussion has shown, unless a person involved in administrative as well as judicial proceedings has received a hearing that is both sufficient and fair and has been subjected to rulings amply supported by the evidence introduced thereat, he will not be considered to have been accorded due process.[756]

POWER OF STATES TO REGULATE PROCEDURE

Generally

The due process clause of the Fourteenth Amendment does not control mere forms of procedure in State courts or regulate practice therein.[757] A State "is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."[758] Pursuant to such plenary power, States have regulated the manner in which rights may be enforced and wrongs remedied,[759] and, in connection therewith, have created courts and endowed them with such jurisdiction as, in the judgment of their legislatures, seemed appropriate.[760] Whether legislative action in such matters is deemed to be wise or proves efficient, whether it works a particular hardship on a particular litigant, or perpetuates or supplants ancient forms of procedure are issues which can give rise to no conflict with the Fourteenth Amendment; for the latter's function is negative rather than affirmative and in no way obligates the States to adopt specific measures of reform.[761]

Pleading and Practice

Commencement Of Actions.—A State may impose certain conditions on the right to institute litigation. Thus, access to the courts may be denied to persons instituting stockholders' derivative actions unless reasonable security for the costs, and fees incurred by the corporation is first tendered. Nor is the retroactive application of this statutory requirement to actions pending at the time of its adoption violative of due process as long as no new liability for expenses incurred before enactment is imposed thereby, and the only effect thereof is to stay such proceedings until the security is furnished.[762] Moreover, when a nonresident files suit in a local court, the State, as the price of opening its tribunals to such plaintiff, may exact the condition that the former stand ready to answer all cross-actions filed and accept any in personam judgments obtained by a resident defendant through service of process or appropriate pleading upon the plaintiff's attorney of record.[763] For similar reasons, the requirements, without excluding other evidence, of a chemical analysis as a condition precedent to a suit to recover damages resulting to crops from allegedly deficient fertilizers is not deemed to be arbitrary or unreasonable.[764]

Pleas in Abatement.—State legislation which forbids a defendant to come into court and challenge the validity of service upon him in a personal action without thereby surrendering himself to the jurisdiction of the Court, but which does not restrain him from protecting his substantive rights against enforcement of a judgment rendered without service of process, is constitutional and does not deprive him of property without due process of law. Such a defendant, if he please, may ignore the proceedings as wholly ineffective, and set up the invalidity of the judgment if and when an attempt is made to take his property thereunder. However, if he desires to contest the validity of the proceedings in the court in which it is instituted, so as to avoid even semblance of a judgment against him, it is within the power of a State to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the Court to hear and determine the merits, if the objection raised by him as to its jurisdiction over his person shall be overruled.[765]

Defenses.—Just as the State may condition the right to institute litigation, so may it establish its terms for the interposition of certain defenses. Thus, by statute a State validly may provide that one sued in a possessory action cannot bring an action to try title until after judgment shall have been rendered in the possessory action, and until he shall have paid the judgment, if the decision shall have so awarded.[766] Likewise, a nonresident defendant in a suit begun by foreign attachment, even though he has no resources or credit other than the property attached, cannot successfully challenge the validity of a statute which requires him to give bail or security for the discharge of the seized property before permitting him an opportunity to appear and defend. "The condition imposed has a reasonable relation to the conversion of a proceeding quasi in rem into an action in personam; [and] ordinarily * * * is not difficult to comply with—* * *"[767]

Amendments and Continuances.—Amendment of pleadings is largely within the discretion of the trial court, and unless a gross abuse of discretion is shown, there is no ground for reversal; accordingly, where the defense sought to be interposed is without merit, a claim that due process would be denied by rendition of a foreclosure decree without leave to file a supplementary answer is utterly without foundation.[768]

Costs, Damages, and Penalties.—What costs are allowed by law is for the court to determine; and an erroneous judgment of what the law allows does not deprive a party of his property without due process of law.[769] Nor does a statute providing for the recovery of reasonable attorney's fees in actions on small claims subject unsuccessful defendants to any unconstitutional deprivation.[770] Equally consistent with the requirements of due process is a statutory procedure whereby a prosecutor of a case is adjudged liable for costs, and committed to jail in default of payment thereof, whenever the court or jury, after according him an opportunity to present evidence of good faith, finds that he instituted the prosecution without probable cause and from malicious motives.[771] Also, as a reasonable incentive for prompt settlement without suit of just demands of a class admitting of special legislative treatment, such as common carriers and insurance companies together with their patrons, a State through the exercise of its police power may permit harassed litigants to recover penalties in the form of attorney's fees or damages.[772] Similarly, to deter careless destruction of human life, a State by law may allow punitive damages to be assessed in actions against employers for deaths caused by the negligence of their employees.[773] Likewise, by virtue of its plenary power to prescribe the character of the sentence which shall be awarded against those found guilty of crime, a State may provide that a public officer embezzling public money shall, notwithstanding that he has made restitution, suffer not only imprisonment but also pay a fine equal to double the amount embezzled, which shall operate as a judgment for the use of persons whose money was embezzled. Whatever this fine be called, whether it be a penalty, or punishment, or civil judgment, it comes to the convict as the result of his crime.[774]

Statutes of Limitation

A statute of limitations does not deprive one of property without due process of law, unless, in its application to an existing right of action, it unreasonably limits the opportunity to enforce that right by suit. By the same token, a State may shorten an existing period of limitation, provided a reasonable time is allowed for bringing an action after the passage of the statute and before the bar takes effect. What is a reasonable period, however, is dependent on the nature of the right and particular circumstances.[775]

Thus, an interval of only one year is not so unreasonable as to be wanting in due process when applied to bar actions relative to the property of an absentee in instances when the receiver for such property has not been appointed until 13 years after the former's disappearance.[776] Likewise, when a State, by law, suddenly prohibits, unless brought within six months after its passage, all actions to contest tax deeds which have been of record for two years, no unconstitutional deprivation is effected.[777] No less valid is a statute, applicable to wild lands, which provides that when a person has been in possession under a recorded deed continuously for 20 years, and had paid taxes thereon during the same, the former owner in that interval paying nothing, no action to recover such land shall be entertained unless commenced within 20 years, or before the expiration of five years following enactment of said provision.[778] Similarly, an amendment to a workmen's compensation act, limiting to three years the time within which a case may be reopened for readjustment of compensation on account of aggravation of a disability, does not deny due process to one who sustained his injury at a time when the statute contained no limitation. A limitation is deemed to affect the remedy only, and the period of its operation in this instance was viewed as neither arbitrary nor oppressive.[779]

Moreover, as long as no agreement of the parties is violated, a State may extend as well as shorten the time in which suits may be brought in its courts and may even entirely remove a statutory bar to the commencement of litigation. As applied to actions for personal debts, a repeal or extension of a statute of limitations effects no unconstitutional deprivation of property of a debtor-defendant in whose favor such statute had already become a defense. "A right to defeat a just debt by the statute of limitation * * * [not being] a vested right," such as is protected by the Constitution, accordingly no offense against the Fourteenth Amendment is committed by revival, through an extension or repeal, of an action on an implied obligation to pay a child for the use of her property,[780] or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law,[781] or a right of an employee to seek, on account of the aggravation of a former injury, an additional award out of a State administered fund.[782] However, as respects suits to recover real and personal property, when the right of action has been barred by a statute of limitations and title as well as real ownership have become vested in the defendant, any later act removing or repealing the bar would be void as attempting an arbitrary transfer of title.[783] Also unconstitutional is the application of a local statute of limitation declaring invalid any contractual limitation of the right to sue to a period shorter than two years to an insurance contract made and to be performed outside the forum State and containing a stipulation that suit thereon must be brought within one year from the date of loss. "When the parties to a contract have expressly agreed upon a time limit on their obligation, a statute which invalidates * * * [said] agreement and directs enforcement of the contract after * * * [the agreed] time has expired * * *" unconstitutionally imposes a burden in excess of that contracted.[784]

Evidence and Presumptions

The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of State governments.[785] As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, it does not violate the due process clause. Legislative fiat may not take the place of fact, however, in the determination of issues involving life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one's defense is void. On the other hand, if there is a rational connection between what is proved and what is to be inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.[786]

On the ground that the connection between the fact proven and that presumed was not sufficient and that reasoning did not lead from one to the other, the following statutory presumptions have been voided. Thus, a statute which treated a breach of a contract to labor as prima facie evidence of an intent to defraud an employer of money paid by him in advance was found to be constitutionally defective because the trial court was permitted to disregard evidence rationally bearing upon fraud and to decide upon evidence pertaining to an unrelated breach of contract, with the consequence that an adequate hearing upon fraud was not afforded.[787] Also, since "inference of crime and guilt may not reasonably be drawn from mere inability [of a bank] to pay demand deposits and other debts as they mature," a statute making proof of insolvency prima facie evidence of fraud on the part of bank directors was deemed wholly arbitrary.[788] Similarly, negligence by one or all the participants in a grade crossing collision not being inferable from the latter occurrence, the Court voided a Georgia statute which declared that a railroad shall be liable in damages to person or property by the running of trains unless the company shall make it appear that its agents exercised ordinary diligence, the presumption in all cases being against the company, and which was construed by State courts as permitting said presumption of evidence to be weighed against opposing testimony and to prevail unless such testimony is found by a jury to be preponderant.[789] On the other hand, a South Carolina statute which raised a presumption of negligence against a railroad upon proof of failure to give prescribed warning signals was sustained because the presumption therein established gave rise merely to a temporary inference which might be rebutted by contrary evidence and which is thereafter to be excluded in determining proximate cause.[790]

Presumptions sustained as constitutionally tenable include those set out in statutes providing that when distillery apparatus is found upon the premises of an individual, such discovery shall be prima facie evidence of actual knowledge of the presence of the same;[791] that the flowing, release, or escape of natural gas into the air shall constitute prima facie evidence of prohibited waste,[792] and that prior conviction of a felony shall be conclusive evidence of bad character justifying refusal to issue a license to practice medicine.[793] Upheld, consistently with the former, were two sections of the California alien land law; one, which specified that the taking of title in the name of a person eligible to hold land, where the consideration is furnished by one ineligible to acquire agricultural land, shall raise a prima facie presumption that the conveyance is made to evade the law;[794] and a second, which cast upon a Japanese defendant the burden of proving citizenship by birth after the State endeavored to prove that he belonged to a race ineligible for naturalization.[795] In contrast with the latter result, however, is a subsequent decision of the Court holding unconstitutional another section of the same California law providing that when an indictment alleges alienage and ineligibility to United States citizenship of a defendant, the burden of proving citizenship or eligibility thereto shall devolve upon the defendant.[796] As a basis for distinguishing these last two decisions the Court observed that while "the decisions are manifold that within [the] limits" of fairness[797] and reason the burden of proof may be shifted to the defendant even in criminal prosecutions, nevertheless, to be justified, "the evidence held to be inculpatory * * * [must have had] at least a sinister significance * * *, or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, * * *" Whereas, accordingly, under the terms of the section previously upheld, the defendant could prove his citizenship without trouble, and the State, if forced to disprove his claim, could be relatively helpless, the background of the accused party being known probably only to himself and close relatives, the alleged Japanese defendant, in the last mentioned case, would have suffered hardship and injustice if compelled to prove non-Japanese origin, especially since ineligibility renders criminal conduct otherwise lacking in "sinister significance" (occupation of land under lease from an American codefendant).[798] On the other hand, it was held in a recent case, that Oregon was entitled to require that one pleading insanity as a defense against a criminal charge should prove same beyond a reasonable doubt, and to make "morbid propensity" no defense.[799]

Jury Trials: Dispensing With Jury Trials

Trial by jury has not been considered essential to due process, and since the Fourteenth Amendment guarantees no particular form or method of procedure, States have been free to retain or abolish juries.[800] Conformably to the Constitution, States, in devising their own procedures, eliminated juries in proceedings to enforce liens,[801] inquiries for contempt,[802] mandamus[803] and quo warranto actions,[804] and in eminent domain[805] and equity proceedings.[806] States are equally free to adopt innovations respecting the selection and number of jurors. Verdicts rendered by ten out of twelve jurors may be substituted for the requirement of a unanimous verdict,[807] and petit juries containing eight rather than the conventional twelve members may be established.[808]

DUE PROCESS IN CRIMINAL PROCEEDINGS

General

In the following pages the requirements of the due process clause of Amendment XIV in criminal cases will be dealt with in approximately the order in which questions regarding them arise in the course of a prosecution.

Indefinite Statutes: Right of Accused to Knowledge of Offense

"A statute so vague and indefinite, in form and as interpreted, * * * [as to fail] to give fair notice of what acts will be punished, * * *, violates an accused's rights under procedural due process * * * [A penal statute must set up] ascertainable standards of guilt. [So that] men of common intelligence * * * [are not] required to guess at * * * [its] meaning," either as to persons within the scope of the act or as to applicable tests to ascertain guilt.[809]

Defective by these tests and therefore violative of due process is a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or any other State, is a gangster and subject to fine or imprisonment. Pointing to specific shortcomings of this act, the Supreme Court observed that "* * * neither [at] common law, * * * nor anywhere in the language of the law is there [to be found any] definition of the word, * * * 'gang'." The State courts, in adopting dictionary definitions of that term, were not to be viewed as having intended to give "gangster" a meaning broad enough to include anyone who had not been convicted of a specified crime or of disorderly conduct as set out in the statute, or to limit its meaning to the field covered by the words that they found in a dictionary ("roughs, thieves, criminals"). Application of the latter interpretation would include some obviously not within the statute and would exclude some plainly covered by it. Moreover, the expression, "known to be a member," is ambiguous; and not only permits a doubt as to whether actual or putative association is meant, but also fails to indicate what constitutes membership or how one may join a gang. In conclusion, the Supreme Court declared that if on its face a challenged statute is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it; for it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.[810] In contrast, the Court sustained as neither too vague nor indefinite a State law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding, and which was construed by the State court as including those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. The underlying conditions, i.e., habitual course of misconduct in sex matters and lack of power to control impulses, and likelihood of attack on others, were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal prosecutions.[811]

Abolition of the Grand Jury

An indictment or presentment by a grand jury, as known to the common law of England, is not essential to due process of law even when applied to prosecutions for felonies. Substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is due process of law.[812] Furthermore, due process does not require that the information filed by the prosecuting attorney should have been preceded by the arrest or preliminary examination of the accused.[813] Even when an information is filed pending an investigation by the coroner, due process has not been violated.[814] But when the grand jury is retained it must be fairly constituted. Thus, in the leading case, an indictment by a grand jury in a county of Alabama in which no member of a considerable Negro population had ever been called for jury service, was held void, although the Alabama statute governing the matter did not discriminate between the two races.[815]

The Right to Counsel

Whatever previously may have been recognized as constituting the elements of procedural due process in criminal cases, it was not until 1932[816] that the Supreme Court acknowledged that the right "to have the assistance of counsel for * * * [one's] defense," guaranteed as against the National Government by the Sixth Amendment, was of such fundamental character as to be embodied in the concept of due process of law as set forth in the Fourteenth Amendment. Later in 1937, it effected this incorporation by way of expansion of the term, "liberty," rather than, "due process," and conceded that the right to counsel was "implicit in the concept of ordered liberty."[817]

For want of adequate enjoyment of the right to counsel, the Court, in Powell v. Alabama,[818] overturned the conviction of Negroes who had received sentences of death for rape, and asserted that, at least in capital cases, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of Law. The duty is not discharged by an assignment at such time or under such circumstances as to preclude the giving of effective aid in preparation and trial of the case. Under certain circumstances (e.g., ignorance and illiteracy of defendants, their youth, public hostility, imprisonment and close surveillance by military forces, fact that friends and families are in other States, and that they stand in deadly peril of their lives), the necessity of counsel is so vital and imperative that the failure of a trial court to make an effective appointment of counsel is a denial of due process of law.[819]

By its explicit refusal in Powell v. Alabama to consider whether denial of counsel in criminal prosecutions for less than capital offenses or under other circumstances[820] was equally violative of the due process clause, the Court left undefined the measure of the protection available to defendants; and its first two pertinent decisions rendered thereafter, contributed virtually nothing to correct that deficiency. In Avery v. Alabama,[821] a State trial court was sustained in its refusal to continue a murder case upon request of defense counsel appointed by said court only three days before the trial, who contended that they had not had sufficient time to prepare a defense, and in its subsequent rejection of a motion for a new trial which was grounded in part on the contention that the denial of the continuance was a deprivation of the prisoner's rights under the Fourteenth Amendment. Apart from an admission that "where denial of the constitutional right to assistance of counsel is asserted, its peculiar sacredness demands that we scrupulously review the record," a unanimous Court proffered only the following vague appraisal of the application of the Fourteenth Amendment: "In determining whether petitioner has been denied his constitutional right * * *, we must remember that the Fourteenth Amendment does not limit the power of the States to try and deal with crimes committed within their borders, and was not intended to bring to the test of a decision of this Court every ruling made in the course of a State trial. Consistently with the preservation of constitutional balance between State and federal sovereignty, this Court must respect and is reluctant to interfere with the States' determination of local social policy."[822] One year later, the Court made another inconclusive observation in Smith v. O'Grady,[823] in which it stated that if true, allegations in a petition for habeas corpus showing that the petitioner, although an uneducated man and without prior experience in court, was tricked into pleading guilty to a serious crime of burglary, and was tried without the requested aid of counsel would void the judgment under which he was imprisoned.

Conceding that the above mentioned opinions "lend color to the argument," though they did not actually so rule, that "in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State," the Court, in Betts v. Brady,[824] decided in 1942, not only narrowed the scope of the right of the accused to the "assistance of counsel," but also set at rest any question as to the constitutional source from which the right was derived. Offering State courts the following vague guide for determining when provision of counsel is constitutionally required, the Court declared that "the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel * * * Asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."[825] Accordingly, an indigent farm laborer was deemed not to have been denied due process of law when he was convicted of robbery by a Maryland county court, sitting without a jury, which was not required by statute[826] to honor his request for counsel and whose "practice," in fact was to afford counsel only in murder and rape cases. Finally, the Court emphatically rejected the notion, suggested, however faintly by the older decisions, that the Fourteenth Amendment "incorporates the specific guarantees found in the Sixth Amendment, although it recognized that a denial of the rights stipulated in the latter Amendment may in a given case amount to a deprivation of due process."[827]

Having thus construed the due process clause of the Fourteenth Amendment as not inclusive of the Sixth Amendment and as requiring no more than a fair trial which, on occasion, may necessitate the protection of counsel, the Court, in succeeding decisions rendered during the interval, 1942-1946, proceeded to subject Betts v. Brady to the "silent treatment." In Williams v. Kaiser[828] and Tomkins v. Missouri[829] two defendants pleaded guilty without counsel to the commission in Missouri of capital offenses, one, to robbery with a deadly weapon, and the second, to murder. Defendant, Williams contended that, notwithstanding his request, the trial court did not appoint counsel, whereas defendant, Tomkins alleged that he was ignorant of his right to demand counsel under the Missouri statute. In ruling that the defendants' petitions for habeas corpus should not have been rejected by Missouri courts without a hearing, the Supreme Court relied almost entirely upon the quotations from Powell v. Alabama[830] previously set forth herein; and reiterated that the right to counsel in felony cases being protected by the Fourteenth Amendment, the failure of a State court to appoint counsel is a denial of due process. "A layman," the Court added, "is usually no match for the skilled prosecutor whom he confronts in the court room. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment."[831]

Nor was Betts v. Brady mentioned in the following pertinent decisions. In House v. Mayo,[832] the Supreme Court held that the action of a trial court in compelling a defendant to plead to an information charging burglary without opportunity to consult with his counsel is a denial of the constitutional right to counsel; and in Hawk v. Olson[833] the Court repeated this assertion, in connection with the denial to a defendant accused of a murder of the same opportunity during the critical period between his arraignment and the impaneling of the jury. Both these opinions cited with approval the two previously discussed Williams and Tomkins Cases; and in House v. Mayo the Court declared without any explanation: "Compare Betts v. Brady with Williams v. Kaiser and Tomkins v. Missouri."[834] A similar performance by the Court is also discernible in Rice v. Olson,[835] in which it ruled that a defendant, who pleads guilty to a charge of burglary, is incapable adequately of making his own defense, and does not understandingly waive counsel; he is entitled to the benefit of legal aid, and a request therefor is not necessary. Also, on the basis of unchallenged facts contradicting a prisoner's allegation that he had been denied counsel; namely, that after his arraignment and plea of guilty to a charge of robbery, counsel had noted an appearance for him two days before the date of sentencing and had actively intervened in his behalf on the latter date, a majority of the Court, in Canizio v. New York,[836] ruled that the right to counsel had not been withheld.

Without mentioning Betts v. Brady by name, the Court, in 1946, returned to the fair trial principle enunciated therein when it held that no deprivation of the constitutional right to the aid of counsel was disclosed by the record in Carter v. Illinois.[837] That record included only the indictment, the judgment on the plea of guilty to a charge of murder, the minute entry bearing on the sentence, and the sentence, together with a lengthy recital in the judgment to the effect that when the defendant expressed a desire to plead guilty the Court explained to him the consequence of such plea, his rights in the premises, especially, his rights to have a lawyer appointed to defend him and to be tried before a jury, and the degree of proof required for an acquittal under a not guilty plea, but that the defendant persisted in his plea of guilty. Emphasizing that this record was entirely wanting in facts bearing upon the maturity or capacity of comprehension of the prisoner, or upon the circumstances under which the plea of guilty was tendered and accepted, the Supreme Court concluded that no inference of lack of understanding, or ability to make an intelligent waiver of counsel, could be drawn from the fact that the trial court did assign counsel when it came to sentencing.[838] Applying the same doctrine, and on this occasion at least citing Betts v. Brady, the Court, in De Meerleer v. Michigan,[839] unanimously declared that the arraignment, trial, conviction of murder, and sentence to life imprisonment, all on the same day, of a seventeen-year old boy who was without legal assistance, and was never advised of his right to counsel, who received from the trial court no explanation of the consequences of his plea of guilty, and who never subjected the State's witnesses to cross-examination, effected a denial of constitutional "rights essential to a fair hearing."

Even more conclusive evidence of the revival of the fair trial doctrine of Betts v. Brady is to be found in the majority opinions contained in Foster v. Illinois[840] and Gayes v. New York.[841] In the former the Court ruled that where it appears that the trial court, before accepting pleas of guilty to charges of burglary and larceny by defendants, aged 34 and 58 respectively, advised each of his rights of trial and of the consequences of such a plea, the fact that the record reveals no express offer of counsel would not suffice to show that the accused were deprived of rights essential to the fair hearing required by the due process clause. Reiterating that the absolute right to counsel accorded by the Sixth Amendment does not apply in prosecutions in State courts, five of the Justices declared that all the due process clause of the Fourteenth Amendment "exacts from the States is a conception of fundamental justice" which is neither "satisfied by merely formal procedural correctness, nor * * * confined by any absolute rule such as that which the Sixth Amendment contains in securing to an accused [in the federal courts] 'the Assistance of Counsel for his defense.'"[842] On the same day, four Justices, with Justice Burton concurring only in the result, held in Gayes v. New York,[843] that one sentenced in 1941 as a second offender under a charge of burglary was not entitled to vacation of a judgment rendered against him in 1938, when charged with the first offense, on the ground that when answering in the negative the trial court's inquiry as to whether he desired the aid of counsel, he did not understand his constitutional rights. On his subsequent conviction in 1941, which took into account his earlier sentence of 1938, the defendant was deemed to have had full opportunity to contest the constitutionality of his earlier sentence. Consistently with these two cases, the Court in Marino v. Ragen,[844] decided later in the same year, held that the absence of counsel, in conjunction with the following set of facts, operated to deprive a defendant of due process. In this latter decision, the accused, an 18-year-old Italian immigrant, unable to understand the English language, was convicted of murder and sentenced to life imprisonment on a plea of guilty when, notwithstanding a recital in the record that he was arraigned in open court and advised through interpreters, one of whom was the arresting officer, of the meaning and effect of a "guilty" plea, and that he signed a statement waiving a jury trial and pleading guilty, the waiver was not in fact signed by him and no plea of guilty actually had been entered.

In disposing of more recent cases embracing right to counsel as an issue, the Court, either with or without citation of Betts v. Brady, has consistently applied the fair trial doctrine. Thus, the absence of counsel competent to advise a 15-year-old Negro boy of his rights was one of several factors operating in Haley v. Ohio[845] to negative the propriety of admitting in evidence a confession to murder and contributing to the conclusion that the boy's conviction had resulted from proceedings that were unfair. Dividing again on the same issues in which they were in disagreement in Foster v. Illinois;[846] namely, the applicability of Amendment Six to State criminal prosecutions and the merits of the fair trial doctrine as expounded in Betts v. Brady, five Justices in Bute v. Illinois[847] ruled that the due process clause of the Fourteenth Amendment does not require a State court to tender assistance of counsel, before accepting a plea of guilty to a charge of indecent liberties with female children, the maximum penalty for which is 20 years, from a 57-year-old man who was not a lawyer and who received from the Court an explanation of the consequences and penalties resulting from such plea. Unanimity was subsequently regained in Wade v. Mayo[848] in which the Justices had before them the plight of an 18-year-old boy, convicted on the charge of breaking and entering, who was described by a federal district court as not a stranger in court, having been convicted of prior offenses, but as still unfamiliar with court procedure and not capable of representing himself adequately. On the strength of these and other findings, the Supreme Court held that where one charged with crime is by reason of age, ignorance, or mental incapacity incapable of defending himself, even in a prosecution of a relatively simple nature, the refusal of a State trial court to appoint counsel at his request is a denial of due process, even though the law of the State does not require such appointment.

Dissents were again registered in the following brace of decision which a minority of the Justices declared their inability to reconcile. In the first, Gryger v. Burke,[849] the Court held that when one, sentenced to life imprisonment as a fourth offender under a State habitual criminal act, had been arrested eight times for crimes of violence, followed by pleas of guilty or conviction, and in two of such former trials had been represented by counsel, the State's failure to offer or to provide counsel for him on his plea to a charge of being a fourth offender does not render his conviction and sentence as such invalid, even though the Court may have misconstrued the statute as making a life sentence mandatory rather than discretionary. Emphasizing that there were "no exceptional circumstances * * * present," the majority asserted that "it rather overstrains our credulity to believe that [such a defendant would be ignorant] of his right [to request and] to engage counsel." In the second, Townsend v. Burke,[850] the Supreme Court declared that although failure of a State court to offer or to assign counsel to one charged with the noncapital offenses of burglary and robbery, or to advise him of his right to counsel before accepting a plea of guilty may not render his conviction invalid for lack of due process, the requirement is violated when, while disadvantaged by lack of counsel who might have corrected the court's errors, defendant is sentenced on the basis of materially untrue assumptions concerning his criminal record.[851]

Concordant as to the results reached, if not always as to the reasoning supporting them, are the Court's latest rulings. In Uveges v. Pennsylvania,[852] it was held that inasmuch as the record showed that a State court did not attempt to make a 17-year-old youth understand the consequences of his plea of guilty to four separate indictments charging burglary, for which he could be given sentences aggregating 80 years, and that the youth was neither advised of his right to counsel nor offered counsel at any time between arrest and conviction, due process was denied him. Likewise, in Gibbs v. Burke[853] was overturned, as contrary to due process, the conviction for larceny of a man in his thirties who conducted his own defense, having neither requested, nor having been offered counsel. On the authority of the Uveges Case, accused's failure to request counsel, since it could be attributed to ignorance of his right thereto, was held not to constitute a waiver. Moreover, had the accused been granted the protection of counsel, the latter might have been able to prevent certain prejudicial rulings; namely, the introduction without objection of considerable hearsay testimony, the error of the trial judge in converting a prosecution witness into a defense witness, and finally, the injection of biased statements into the judge's comments to the jury. And of the same general pattern is the holding in Palmer v. Ashe,[854] another Pennsylvania case, involving a petitioner who alleged that, as a youth and former inmate at a mental institution, he was railroaded into prison for armed robbery without benefit of counsel, on the representation that he was charged only with breaking and entering. Reversing the State court's denial of petitioner's application for a writ of habeas corpus, the Court remanded the case, asserting that if petitioner's allegations were proven, he was entitled to counsel. On the other hand, it was held in Quicksall v. Michigan,[855] a State in which capital punishment does not exist, that a defendant who had received a life sentence on a plea of guilty entered without benefit of counsel, had "failed to sustain the burden of proving such disregard of fundamental fairness * * * as alone would * * * invalidate his sentence," not having convinced the State court that he was ignorant of his right to counsel, or that he had requested same, or that the consequences of his plea had been misrepresented to him. Also, in Gallegos v. Nebraska,[856] in which the petitioner had been convicted of manslaughter on a homicide charge, a similar conclusion was reached in the face of the petitioner's claim that the confession on the strength of which he was convicted had been obtained from him by mistreatment, prior to the assignment of counsel to him. Said the Court: "The Federal Constitution does not command a State to furnish defendants counsel as a matter of course. * * * Lack of counsel at State noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice."[857]

By way of summation, the Court in Uveges v. Pennsylvania[858] offered the following comment on the conflicting views advanced by its members on this issue of right to counsel. "Some members [minority] of the Court think that where serious offenses are charged, failure of a court to offer counsel in State criminal trials deprives an accused of rights under the Fourteenth Amendment. They are convinced that the services of counsel to protect the accused are guaranteed by the Constitution in every such instance. See Bute v. Illinois, 333 U.S. 640, dissent, 677-679. Only when the accused refuses counsel with an understanding of his rights can the Court dispense with counsel.[859] Others of us [majority] think that when a crime subject to capital punishment is not involved, each case depends on its own facts. See Betts v. Brady, 316 U.S. 455, 462. Where the gravity of the crime and other factors—such as the age and education of the defendant,[860] the conduct of the court or the prosecuting officials,[861] and the complicated nature of the offense charged and the possible defenses thereto[862]—render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair, the latter group [majority] holds that the accused must have legal assistance under the amendment whether he pleads guilty or elects to stand trial, whether he requests counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel. The philosophy behind both of these views is that the due process clause of the Fourteenth Amendment * * * requires counsel for all persons charged with serious crimes, when necessary for their adequate defense, in order that such persons may be advised how to conduct their trials. The application of the rule varies * * *" It would appear nevertheless that the statement quoted in the previous paragraph from the Gallegos Case weakens this doctrine somewhat. Nor is the Court's reply to the contention that such variation in application "leaves the State prosecuting authorities uncertain as to whether to offer counsel to all accused who are without adequate funds and under serious charges," very reassuring: "We cannot offer a panacea for the difficulty. * * * The due process clause is not susceptible of reduction to a mathematical formula."[863]

Right to Trial by Jury

The contention that a right to trial by a common law jury of twelve men in criminal cases was guaranteed by Amendment XIV was first rejected in Maxwell v. Dow[864] on the basis of Hurtado v. California,[865] where it was denied that the due process clause itself incorporated all the rules of procedural protection having their origin in English legal history. Accordingly, so long as all persons are made liable to be proceeded against in the same manner, a state statute dispensing with unanimity,[866] or providing for a jury of eight instead of twelve, in noncapital criminal cases[867] is not unconstitutional; nor is one eliminating employment of a jury when the defendant pleads guilty to no less than a capital offense;[868] or permitting a defendant generally to waive trial by jury.[869] In short, jury trials are no longer viewed as essential to due process, even in criminal cases, and may be abolished altogether.[870]

Inasmuch as "the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury," a trial of a murder charge by a "struck" jury, chosen in conformity with a statute providing that the court may select from the persons qualified to serve as jurors 96 names, from which the prosecutor and defendant may each strike 24, and that the remainder of which shall be put in the jury box, out of which the trial jury shall be drawn in the usual way, is not violative of due process. Such a method "is certainly a fair and reasonable way of securing an impartial jury," which is all that the defendant constitutionally may demand.[871] Likewise, the right to challenge being the right to reject, not to select, a juror, a defendant who is subjected at a single trial to two indictments, each charging murder, cannot complain when the State limits the number of his peremptory challenges to ten on each indictment instead of the twenty customarily allowed at a trial founded upon a single indictment.[872] Also, a defendant who has been convicted by a special, or "blue ribbon," jury cannot validly contend that he was thereby denied due process of law.[873] In ruling that the defendant had failed to sustain his contention that such a jury was defective as to its composition, the Court conceded that "a system of exclusions could be so manipulated as to call a jury before which defendants would have so little chance of a decision on the evidence that it would constitute a denial of due process" and would result in a trial which was a "sham or pretense." A defendant is deemed entitled, however, to no more than "a neutral jury" and "has no constitutional right to friends on the jury."[874] In fact, the due process clause does not prohibit a State from excluding from the jury certain occupational groups such as lawyers, preachers, doctors, dentists, and enginemen and firemen of railroad trains. Such exclusions may be justified on the ground that the continued attention to duty by members of such occupations is beneficial to the community.[875]