"The law of the land" and "due process of law" provisions of the North Carolina and U.S. Constitutions require notice and an opportunity to be heard before a citizen may be deprived of his property. Marshall v. Lovelass, 1 N.C. 412; Phelps v Chesson, 34 N.C. 194; Parish v. Cedar Co., 133 N.C. 478, 45 S.E. 768; Lumber Co. v. Lumber Co., 135 N.C. 742, 47 S.E. 757; sc, 137 N.C. 431, 49 S.E. 946; Bd. of Education v. Johnston, 224 N.C. 86, 29 S.E.2d 126; Re Melrose Ave., 136 N.E. 235, 23 A.L.R. 1233; Hamilton v. Brown, 161 U.S. 256, 40 L.Ed. 691, 16 S.Ct. 585; Security Savings Bank v. California, 263 U.S. 282, 68 L.Ed. 301, 44 S.Ct. 108, 31 A.L.R. 391; Standard Oil Co. v. New Jersey, 341 U.S. 428, 95 L.Ed. 1078, 71 S.Ct. 822; Realty Associates of Portland, Oregon v. Women's Club, 369 P.2d 747; 1 Am. Jur.2d, Abandoned Property, Sections 6, 11, 33 34. "When declaratory relief is sought, all persons shall be made parties who have, or claim, any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding."
Land Co. v. Board of Education, 101 N.C. 35, 7 S.E. 573; Phelps v. Chesson, 34 N.C. 194. A contrary construction of the statute would render the provision for forfeiture violative of Article I, Section 17, of the State Constitution; for the forfeiture of the property of one person and the vesting of the title thereto in another for tax delinquency by mere legislative declaration is the taking of property without due process of law. Lumber Co. v. Lumber Co., 135 N.C. 742, 47 S.E. 757; Parish v. Cedar Co., 133 N.C. 478, 45 S.E. 768, 98 Am. St. Rep. 718. This holding is implicit in all of the decisions relating to the statute, except Sibley v. Townsend, 206 N.C. 649, 175 S.E. 107, where the constitutional question was not broached by counsel or considered by the Court.
The term "law of the land" is synonymous with "due process of law," a phrase appearing in the Federal Constitution and the organic law of many states. Yancey v. Highway Commission, 222 N.C. 106, 22 S.E.2d 256; Plott v. Ferguson, 202 N.C. 446, 163 S.E. 688; Yarborough v. Park Commission, 196 N.C. 284, 145 S.E. 563; Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41; Parish v. Cedar Co., 133 N.C. 478, 45 S.E. 768, 98 Am. S. R. 718. These fundamental guaranties are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the State extensive individual rights, including that of personal liberty.
The quoted language, which traces its lineage to sec. 39 of Magna Charta, has been held equivalent to the due process of law required by the XIVth Amendment to the Constitution of the United States. Parish v. Cedar Co., 133 N.C. 478, 45 S.E. 768. The Vth Amendment to the Constitution of the United States, forbidding the taking of private property "for public use, without just compensation," applies only to appropriations by the United States, but as was well said in Johnston v. Rankin, 70 N.C. 550, "the principle is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina."
"No person ought . . . in any manner to be deprived of his life, liberty, or property, but by the law of the land."Constitution of N.C. Art. I, sec. 17. "Due process of law" and "the law of the land" are substantially identical terms. Parish v. Cedar Co., 133 N.C. 479, 484. There is a distinction between the cited clauses of the Fifth and Fourteenth Amendments of the Federal Constitution.
Bank of Columbia v. O'Kelly, 4 Wheat. (U.S.), 235; 4 Law Ed., 561. See, also, Twining v. New Jersey, 211 U.S. 101; 53 Law Ed., 107; Caldwell v. Wilson, 121 N.C. 425; Parish v. Cedar Co., 133 N.C. 484, which is not affected on this point by Board of Education v. Remick, 160 N.C. 568. Recognizing both the risk of a failure to give a definition which would be at once perspicuous, comprehensive and satisfactory and the wisdom of ascertaining the intent of the phrase by the gradual process of judicial inclusion and exclusion, Mr. Justice Miller said: "Whenever by the laws of a State, or by State authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections."
This term, "law of the land," as used in the 17th section of our Bill of Rights, has received notable and approved definition as: "Law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial." In Parish v. Cedar Works, 133 N.C. 478, it is held to be the equivalent of "due process of law," as it is expressed in the Federal and many of our State constitutions; and in Simon v. Craft, 182 U.S. 427, it is said that the essential elements of due process of law are "notice and opportunity to defend." In Connor and Cheshire's Constitutions, at page 58, in speaking to these requirements of "notice and hearing," embodied in the constitutional provision, the learned annotators, among other things, say: "Notice and hearing are essential to constitute due process of law or the `law of the land,' and it is necessary that a party be cited and have his day in court, upon which he may appear and defend himself and his rights and his property."
Under Revisal, 4047, the presumption, therefore, is not only that the land had not been listed for taxation and the tax not paid as provided, among other things, in Revisal, 2909, but the deed itself carried a further presumption, that on failure to list property for taxation the proper officers had valued it and placed it on the tax list as required by the statute then in force. The owner of land has notice that he must pay taxes, and that if it is not paid the land will be sold. It is true, this Court in Parrish v. Cedar Co., 133 N.C. 478, and since in Lumber Co. v. Lumber Co., 135 N.C. 743; s. c., 137 N.C. 444, held unconstitutional a provision that where the owner of swamp land had failed to pay all arrearages of taxes levied and assessed thereon, or which ought to have been levied thereon before a certain date, the land ipso facto should be forfeited and vested in the State without any judicial proceedings. In King v. Mullins, 171 U.S. 420, the point was thoroughly discussed, and contrary to the decision of our Court above cited, such a statute was held constitutional.
The defendant has also asked us to rehear the decision in this appeal, though no separate petition has been filed, as should have been done. From an examination of the record and the former opinion, it appears that two points only were made and considered by the Court, namely: (1) Is chapter 243, Laws 1889, amending section 2522 of The Code, constitutional? This involved the question whether the Legislature could by said act declare a forfeiture of land to the State, and vest title to the same in the board of education, for failure to list and pay the taxes properly assessable against it, without provision for some judicial inquiry before condemnation of forfeiture. We decided (445) then, 135 N.C. 742, as we had before in Parish v. Cedar Co., 133 N.C. 478, after an able and exhaustive discussion of the subject by Douglas, J., for the Court, that no such power existed, as it would be a violation not only of the natural, but of the constitutional, right of a citizen to take his property without notice, hearing, or judgment. We adhere to the decision, which, by the way, was in favor of the defendant, and we take it that it does not intend to except to that ruling, but to the one we are now about to consider.
The main question on this appeal, to which (743) nearly all the exceptions are directed, is the constitutionality of chapter 248 of the Acts of 1889 amending section 2522 of The Code. This act was held to be unconstitutional in Parish v. Cedar Co., 133 N.C. 478; and after renewed consideration we deem it our duty to reaffirm our decision to that effect. This destroys the defendant's chain of title, but does not necessarily perfect that of the plaintiff or render the defendant liable for trespass.