03/13/11 Definition of Due Process of Law "The essential elements of due process of law are notice, an opportunity to be heard, and

the right to defend in an orderly proceeding." Fiehe v. R.E. Householder Co., !" #o. !, $ %Fla. &!&' "To dispense with notice before ta(ing property is li(ened to obtaining )udgment without the defendant having ever been summoned." *ayor of +altimore vs. #charf, ", *d. ,&&, " & % --.' "/n orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case 0a1ubows(i v. 0a1ubows(i, ," 2ll.!d ,.", !"&, 3.E.!d !-!, !&.." +lac(4s 5aw 6ictionary, 7th Edition, page ".. "6ue 8rocess of law implies and comprehends the administration of laws e9ually applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing )urisdiction of the cause and proceeding upon )ustice. 2t is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before )udgment is rendered." #tate v. :reen, !;! #.<.!d -&$, &.; %*o. &".' "8hrase means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been ad)udicated against him upon trial conducted according to established rules regulating )udicial proceedings, and it forbids condemnation without a hearing, 8ettit v. 8enn., 5a./pp. -. #o.!d 77, 7&" +lac(4s 5aw 6ictionary, 7th Edition, page ".. "6ue 8rocess of law implies the right of the person affected thereby to be present before the tribunal which pronounces )udgment upon the 9uestion of life, liberty, or property, in its most comprehensive sense= to be heard, by testimony or otherwise, and to have the right of controvert, by proof, every material fact which bears on the 9uestion of right in the matter involved. 2f any 9uestion of fact or liability be conclusively presumed against him, this is not due process of law." +lac(4s 5aw 6ictionary, 7th Edition, page "...

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"/side from all else, >due process4 means fundamental fairness and substantial )ustice. ?aughn v. #tate, ; Tenn. Crim. /pp ",, ,"7 #.<.!d -$&, --;" +lac(4s 5aw 6ictionary, 7th Edition, page ".. Due Process Can Not Be Legislated "The meaning of due process does not change with the ebb and flow of economic events." @ustice #utherland, in <est Coast Hotel Co. v. 8arrish, ;.. A.#. ;$&, ,.! % &;7' "2t is manifest it was not left to the legislative power to eBact any process which might be devised. The Cdue processD article is a restraint on the legislative as well as on the eBecutive and )udicial powers of government, and cannot be so construed as to leave congress free to ma(e any process >due process of law,4 by its mere will." *urrayEs 5essee v. Hobo(en 2mp. Co., - How %"& A.#.' !$!, !$7 % -""'= French v. +arber /sphalt, - A.#. ;!,, ;;. % &..' "/n act of the legislature is not necessarily the >law of the land.4 / state cannot ma(e anything >due process of law4 which, by its own legislation, it declares to be such." +urdic( v 8eople, ;7 3.E. &,-, &,&, ,& 2ll. 7.. % -&,' "6ue process of law does not mean merely according to the will of the 5egislature, or the will of some )udicial or 9uasiF)udicial body upon whom it may confer authority. 2t means according to the law of the land, including the Constitution with its guaranties and the legislative enactments and rules duly made by its authority, so far as they are consistent with constitutional limitations." E(ern v. *c:overn, ", <is. "$, ,! 3.<. "&", 7!. % & ;', cases cited "4The law of the land,4 as used in the constitution, has long had an interpretation, which is well understood and practically adhered to. 2t does not mean an /ct of the 5egislature= if such was the true interpretation, this branch of the government could at any time ta(e away life, liberty, property and privilege, without a trial by )ury." #aco v. <entworth, ;$ *aine 7", $ % -"!' "The individual may stand upon his constitutional rights as a citi1en." "His rights are such as eBisted by the law of the land long antecedent to the organi1ation of the #tate, and can only be ta(en from him by due process of law, and in accordance with the Constitution." Hale v. Hen(el, !. A.#. ,;, $, % &."'

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"The provision Cdue process clauseD is designed to eBclude oppression and arbitrary power from every branch of government." 6upuy v. Tedora, " #o.!d --7, -&., !., 5a. "7. % &,;' "The 5egislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The 5egislative cannot )ustly assume to itself a power to rule by eBtempore arbitrary decreesG" #amuel /dams, the Rights of the Colonists % $$!'. "6aniel <ebster, in the 6artmouth College Case, statedH >+y the law of the land is most clearly intended the general law= a law which hears before it condemns= which proceeds upon in9uiry, and renders )udgment only after trial. The meaning is that every citi1en shall hold his life, liberty, property, and immunities, under the protection of the general rules, which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.4 F 2t is thus entirely correct in assuming that a legislative enactment is not necessarily the law of the land." F @udge Thomas *. Cooley, / Treatise on Constitutional 5imitations, "th Ed. 5ittle, +rown I Co.H +oston, --;, #ec.;";F",, p.,;!

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