ing of the street. The legislature of the state had not defined or designed the abutting property as benefited by the improvement, nor had the village authority made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity afforded to the abutting owner to be heard on that subject, this court held that the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking under the guise of taxation, of private property for public use, without compensation, and accordingly affirmed the decree of the circuit court of the United States, which, while preventing the enforcement of the particular assessment in question upon the plaintiff's abutting property for so much of the expense of opening the street as would be found upon due and proper inquiry to be equal to the special benefits accruing to the property. That it was not intended by this decision to overrule Bauman v. Ross, [167 U. S. 548], and Parsons v. District of Columbia [170 U. S. 45], is seen in the opinion where both those cases are cited, and declared not to be inconsistent with the conclusion reached. Norwood v. Baker, 172 U. S. 269, 294."

The precise issue of constitutional law involved in this important case can be best defined in the words of Mr. Justice Harlan who in his dissenting opinion, said: "The court in the present case says that Congress has exclusive jurisdiction, municipal and political, in the District of Columbia, and is not controlled by the Fourteenth Amendment, although it is controlled by the Fifth Amendment providing, among other things, that no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation. 'But,' the court proceeds, 'it by no means necessarily follows that a long and consistent construction put upon the Fifth

Amendment and maintaining the validity of the acts of Congress relating to public improvements within the District of Columbia, is to be deemed overruled by a decision concerning the operation of the Fourteenth Amendment as controlling legislation.' These observations were made to sustain the proposition that the principles announced in Norwood v. Baker, 172 U. S. 269, in reference to the validity of state enactments relating to local public improvements, have no necessary application to a case of a like kind arising under a similar act of Congress relating to local public improvements in the District of Columbia. As the court does not pursue this subject, nor express any final view upon the question referred to, I refer this part of its opinion only for the purpose of recording my dissent from the intimation that what a state might not do in respect of the deprivation of property without due process of law, Congress under the Constitution of the United States could, perhaps, do in respect of property in this District. The Fifth Amendment declares that no person shall be deprived of property 'without due process of law.' The Fourteenth Amendment declares that no state shall deprive any person of property 'without due process of law.' It is inconceivable to me that the question whether a person has been deprived of his property without due process of law can be determined upon principles applicable under the Fourteenth Amendment but not applicable under the Fifth Amendment, or upon principles applicable under the Fifth and not applicable under the Fourteenth Amendment. It seems to me that the words 'due process of law' mean the same in both Amendments. The intimation to the contrary in the opinion of the court is, I take leave to say, without any foundation upon which to rest, and is most mischievous in its tendency."

§ 50. Hanover National Bank v. Moyses -Bankruptcy act of July 1, 1898, did not deny due process. The Court

4-186 U. S. 181.

said: "But it is contended that as to voluntary proceedings the act is in violation of the Fifth Amendment in that it deprives creditors of their property without due process of law in failing to provide for notice. The act provides that 'any person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt.' (4a), and that 'upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition.' 18g. With the petition he must file schedules of his property and 'of his creditors, showing their residences, if known, if unknown, that fact to be stated.' 7, subd. 8. The schedules must be verified and the petition must state that 'petitioner owes debts which he is unable to pay in full,' and 'that he is willing to surrender all his property for the benefit of his creditors, except such as is exempt by law.' This establishes those facts so far as a decree of bankruptcy is concerned, and he has committed an act of bankruptcy in filing the petition. These are not issuable facts, and notice is unnecessary, unless dismissal is sought, when notice is requested. § 59g.

. It is also provided by § 15 that a discharge may be revoked, on the application within a year, if procured by fraud and not warranted by the facts. Notwithstanding these provisions, it is insisted that the want of notice of filing the petition is fatal because the adjudication per se entitles the bankrupt to a discharge, and that the proceedings in respect of discharge are in personam, and require personal service of notice. The adjudication does not itself have that effect, and the first of these objections really rests on the ground that the notice provided for is unreasonably short, and the right to oppose discharge unreasonably restricted. Considering the plenary power of Congress, the subject matter of the suit and the common rights and interests of the creditors, we regard the contention as untenable. Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as

to be incompatible with fundamental law, and we can not find anything in this act on that subject which would justify us in overthrowing its action."

5

§ 51. Dreyer v. Illinois -Former jeopardy, U. S. v. Perez reviewed. The Court said: "The contention is that, notwithtsanding the recital in the record that the jury were discharged by the court because they were unable to agree upon a verdict, such discharge was without moral or physical necessity, and operated as an acquittal of the defendant." When called upon under such a contention to pass upon the prohibition of double jeopardy contained in the Fifth Amendment, the court answered that the plea was untenable. That conclusion is notable because it was reached after a careful review of United States v. Perez, 9 Wheat. 579, decided in 1824, the first case in which the Amendment in question was ever construed. In the course of that review the Court said: "Upon the face of the question under examination the inquiry might arise whether the due process of law required by the Fourteenth Amendment protects one accused of crime from being put twice in jeopardy of life or limb. In other words, is the right not to be put twice in jeopardy of life or limb forbidden by the Fourteenth Amendment; or, so far as the Constitution of the United States is concerned, is it forbidden only by the Fifth Amendment, which, prior to the adoption of the Fourteenth Amendment, had been held as restricting only the powers of the national government and its agencies? We pass this important question without any consideration of it upon its merits, and content ourselves with referring to the decision of this court in United States v. Perez, 9 Wheat. 579. That was a capital case, in which, without the consent of the prisoner or of the attorney of the United States, the jury being unable to agree, were discharged by the court from giving any verdict. This court, speaking by Mr. Justice Story, said:

5-187 U. S. 71.

'We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject in the American courts, but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial.' If the due process of law required by the Fourteenth Amendment embraces the guaranty that no person shall be put twice in jeopardy of life or limb,upon which question we need not now express an opinion,-what was said in United States v. Perez [9 Wheat. 579] is applicable to this case upon the present writ of error, and is adverse to the contention of the accused that he was twice put in jeopardy.

"The principles settled in United States v. Perez, we may remark, were reaffirmed in Ex parte Lange, 18 Wall. 175; Summons v. United States, 142 U. S. 148; Logan v.

ས