clear showing of inability to give such notice in order to procure a substituted or constructive service.' The statutory provisions show, also, an intention to furnish, in lieu of personal service, the most effectual substitute that can be had. The courts have shown a like disposition by construing the statutes on the subject with great strictness in favor of the party to be affected.2

This right to proceed upon constructive service is not allowed in all cases, even where personal service can not be had. It is never allowed as against a non-resident in an action brought for the sole purpose of recovering a personal judgment, nor can a personal judgment be rendered upon constructive service, although such notice is proper as authorizing some other relief sought in the action.3

It is otherwise in case of a resident defendant. Every state has the power to prescribe what notice shall be given its own citizens of proceedings against them, so long as the constitutional inhibition against depriving any person of life, liberty, or property without due process of law, or similar state constitutional provisions, is not infringed.* What will amount to an infringement of this constitutional provision, and like provisions in the state constitutions, will be considered elsewhere."

The issuance and service of process is not the only means by which jurisdiction of the person may be obtained. It is necessary that a defendant have notice, but this may be given in other ways than by process if author

2

1 Post, sec. 38.

Ante, secs. 13, 20, 23; post, sec. 38; 1 Black on Judg., sec. 232; Bardwell v. Anderson, 44 Minn. 97; 46 N. W. Rep. 315, 317.

3 Ante, secs. 13, 14; post, sec. 38; Freeman on Judg., sec. 567; Pennoyer v. Neff, 95 U. S. 714; 1 Black on Judg., secs. 220, 221, 223, 227; Beard v. Beard, 21 Ind. 321; Price v. Hickok, 39 Vt. 292; Lydiard v. Chute, 45 Minn. 277; 47 N. W. Rep. 967.

Amend. Const. U. S., art. 5; art. 14, sec. 1; ante, secs. 13, 14, 23, 25; post, sec. 33; Freeman on Judg., sec. 570; 1 Black on Judg., sec. 227; Beard v. Beard, 21 Ind. 321. But see to the contrary cases cited in Freeman on Judg., sec. 570. Also Bardwell v. Anderson, 44 Minn. 97; 46 N. W. Rep. 315; post, secs. 33, 38.

5 Post, sec, 33.

ized by law. Thus, in some of the states, notice in the nature of a summons, but signed by the attorney of the plaintiff, is authorized. In those states it is held that such notices are not process, but their validity, and the constitutionality of statutes authorizing such notices, is unquestioned.1 It is not always necessary that notice of any kind shall be given. Such notice as the law requires may

1 Hanna v. Russell, 12 Minn. 43; Porter v. Vandercook, 11 Wis. 70; Comet Consolidated Min. Co. v. Frost, 15 Colo. 310; 25 Pac. Rep. 506; Nichols v. Burlington, etc., Co., 4 G. Greene (Ia.), 42.

"As to the first point raised, that the summons is such a process as must be issued in the name of the people of the state of Colorado, we are strongly inclined to follow the conclusion of the supreme court of Florida in Gilmer v. Bird, 15 Fla. 411. In this case the identical question here presented is discussed at some length, that is, 'that the summons, as authorized by the code, is a "process" within the meaning of the constitutional provisions which require the style of all process to be the "State of Florida; " that the summons had no such style; that this was essential to the validity of the judgment, there having been no appearance.' And the court said: 'But is a notice given by an attorney of the institution of a suit in a form familiar to a summons, but not issuing out of a court, a "process" within the meaning of the constitution? Baron Comyn, in giving the definition of the term process," says it imports the writs which issue out of any court to bring the party to answer, or for doing execution. There is no definition of "process," given by any accepted authority, which implies that any writ or method by which a suit is commenced is necessarily "process." A party is entitled to notice and to a hearing under the constitution before he can be affected, but it is nowhere declared or required that that notice shall be only a writ issuing out of a court.' In Porter v. Vandercook, 11 Wis. 70, it was held that 'the summons provided for by the code is not a "writ" or "process" within the meaning of the constitution, art. 7, sec. 17, and need not be in the "name of Wisconsin," nor tested in the name of the presiding judge, nor sealed with the seal of the court.' In Hanna v. Russell, 12 Minn. 80 (Gil. 43), the court said: 'But we think a "summons" is not "process" within the meaning of sec. 14, art. 6, of our state constitution. It is merely a notice given by plaintiff's attorney to the defendant that proceedings have been instituted, and judgment will be taken against him if he fail to defend. This notice is not issued out of or under the seal of the court, or by the authority of the court or any judicial officer. The fact that the court acquires jurisdiction by its service does not prove it "process," for it is competent for the legislature to provide that the court shall acquire jurisdiction by the service of the complaint without a summons, or in any other manner by which the defendant may be notified that proceedings have been instituted against him.' In Bailey v. Williams, 6 Or. 71, it was held that 'a sum

be waived by the party entitled to such notice. What is necessary to constitute such waiver is considered elsewhere. The different means by which a court or other tribunal may acquire jurisdiction, has been briefly considered in the chapter on general principles affecting jurisdiction, and will be taken up more minutely, and in detail, in the succeeding sections of this chapter.

33. DUE PROCESS OF LAW.-The constitution of the United States provides that no state shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.3 State constitutions contain similar provisions. The inhibition of the fourteenth amendment applies, in terms, to the states, and renders void any law enacted by a state authorizing the taking of the life, liberty, or property of any person, without due process of law, or the taking thereof by the state itself without such process. But it applies not only to the state, but to every department of it, and prohibits such action by the courts or other tribunals, whether acting under the laws of the state authorizing or attempting to authorize it or not. It is not confined to judicial proceedings, but extends to every case or proceeding which may deprive a citizen of life, liberty, or property, whether the proceeding be judicial, adminismons used to bring a defendant into the circuit court is not "process," and need not run in the name of the state.' In Nichols v. Plank-road Co., 4 G. Greene, 44, it was held that 'the notice provided by the code is not a "process," and need not be in the style of the "state of Iowa." This seems to be the generally accepted conclusion of all courts having a similar code practice, and a similar provision in the constitution, and is, in our judgment, a satisfactory determination of this question." Comet Consolidated Min. Co. v. Frost, 15 Colo. 310; 25 Pac. Rep. 506, 507.

1 Ante, secs. 13, 23; Post, secs. 34, 41. See also, 1 Black on Judg., sec. 225.

2 Ante, secs. 11-14, 23.

3 Amd. Const. U. S., art. 5, art. 14, sec. 1.

Cohen v. Wright, 22 Cal. 293, 318; People v. O'Brien, 111 N. Y. 1; 18 N. E. Rep. 692; Ex parte Ulrich, 42 Fed. Rep. 587.

trative, or executive in its nature.1 And these provisions of the constitution are alike applicable to laws enacted by congress. The amendment of the constitution, article 5, is a limitation upon the powers of congress and the federal judiciary, and does not apply to the state authorities.3

Many attempts have been made to define "due process of law," but no satisfactory definition has been or can be given, although the intent of the constitutional provision has been stated with clearness and accuracy.

1 Weimer v. Bruemburg, 30 Mich. 201; Stuart v. Palmer, 74 N. Y. 190; 30 Am. Rep. 289; In re Monroe, 46 Fed. Rep. 52; Davidson v. New Orleans, 96 U. S. 97, 101, 107.

Den v. Hoboken Land and Imp. Co., 18 How. 272.

Eilenbecker v. District Court Plymouth Co., 134 U. S. 31; 10 Sup. Ct. Rep. 424; Nashville, C. & St. L. Ry. Co, v. State of Alabama, 128 U. S. 96; 9 Sup. Ct. Rep. 28; Ex parte Ulrich, 42 Fed. Rep. 587, 589.

'Davidson v. New Orleans, 96 U. S. 97; Chauvin v. Valiton, 8 Mont. 451; 20 Pac. Rep. 658; Ex parte Ulrich, 42 Fed. Rep. 587; Lent v. Tillson, 140 U. S. 316; 11 Sup. Ct. Rep. 825; Bank of State v. Cooper, 24 Am. Dec. 538, note.

"It must be confessed, however, that the constitutional meaning or value of the phrase 'due process of law,' remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several states and of the United States." Davidson v. New Orleans, 96 U. S. 97, 101.

"It is difficult to define with precision the exact meaning and scope of the phrase, 'due process of law.' Any definition which could be given, would probably fail to comprehend all the cases to which it would apply. It is probably wiser, as recently stated by Mr. Justice Miller of the United States Supreme Court, to leave the meaning to be evolved 'by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reason on which such decisions may be founded.' (Davidson v. Board of Administrators of New Orleans, 17 Albany Law Journal, 223.) It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his right. A hearing or an opportunity to be heard, is absolutely essential. We can not conceive of due process of law without this. In his argument in the Dartmouth College case (4 Wheat. 519), Webster defined 'due process of law' as a proceeding which proceeds upon inquiry and renders judgment only after trial.' Mr. Justice Edwards, in Westervelt v. Gregg (12 N. Y. 209), defines it as follows: 'Due process of law undoubtedly means in due course of legal proceedings according to those rules and forms which

It has been held that the words "due process of law " were intended to convey the same meaning as the words "by the law of the land" in magna charta.' And "law of the land" has been defined as "a general and public law equally binding upon every member of the commuhave been established for the protection of private rights.' Judge Cooley, in his work on Constitutional Limitations, at page 355, after saying that due process of law' is not confined to ordinary judicial proceedings, but extends to all cases where property is sought to be taken or interfered with, says, that 'due process of law in each particular case means such an exertion of the powers of government, as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.' It has always been the general rule in this country, in every system of assessment and taxation, to give the person to be assessed an opportunity to be heard at some stage of the proceeding. That'due process of law' requires this, has been quite uniformly recognized." Stuart v. Palmer, 74 N. Y. 191. "No court has ever attempted to give a complete or exhaustive definition of the term due process of law,' for it is incapable of any such definition. All that can be done is to lay down certain general principles, and apply these to the facts of each case as they arise. Mr. Webster, in his argument in the Dartmouth College case, gave an exposition of the words 'law of the land,' and 'due process of law,' which has often been quoted by the courts with approval, viz: 'The general law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' In judicial proceedings 'due process of law' requires notice, hearing, and judgment. It does not mean, of course, the general body of the law, common and statute, as it was at the time the constitution took effect; for that would deny to the legis lature the power to change or amend the law in any particular. Neither, on the other hand, does 'the law of the land,' or 'due process of law' mean any thing which the legislature may see fit to declare to be such; for there are certain fundamental rights, which our system of jurisprudence has always recognized, which not even the legislature can disregard in proceedings by which a person is deprived of life, liberty, or property; and one of these is notice before judgment in all judicial proceedings. Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it can not remove certain ancient landmarks or take away certain fundamental rights, which have been always recognized and observed in judicial procedure." Bardwell v. Anderson, 44 Min. 97; 46 N. W. Rep. 315, 317.

1 Den v. Hoboken Land and Imp. Co., 18 How. 272; Davidson v. New Orleans, 96 U. S. 97. 101; Ex parte Ulrich, 42 Fed. Rep. 587, 589; Bank of the State v. Cooper, 2 Yerg. (Tenn.), 599; 24 Am. Dec. 517, 537, note.