regard to taxation or general police powers-however these powers may be affected by other special constitutional clauses, -nor in regard to rights not vested at the time of the passage of any given legislative enactment. We have also stated that the power to take private property applies to all property, and that the Legislature is the sole judge as to the fact whether the public welfare demands the sacrifice of the private right. We have still to consider certain other questions which have presented themselves in regard to the power of the State Leg islatures over private property. And of these the most im portant is whether, under our forms of government, and under the operation of the constitutional clause above cited, private property can be taken for any but public purposes. (a) methods of transportation, or in aid of collateral enterprises remotely connected with the running or operating of the road, although they may increase its revenue and business, are not such purposes as authorize the condemnation of private property." Rensselaer and Saratoga R. R. v. Davis, 43 N. Y. 137, 146. In Louisiana, the decision of parish authorities that it is necessary to lay out a public road may be reviewed by the courts. Le Coul v. Police Jury, 20 La. Ann. 308. By some of the State Constitutions, the "necessity" of the taking is submitted to a jury; as in Michigan; see Mansfield &c. R. R. v. Clark, 23 Mich. 519. It has been held in New York, that the Legislature may compel a municipality (a town) to construct and pay for highways against its will. People v. Flagg, 46 N. Y. 401. But as the whole proceedings under the right of eminent domain are for the public good and not for any private benefit, a municipality will not be compelled by mandamus, at the suit of individuals, to complete the laying out of a street, where the title to the land taken has not actually vested, but proceedings have been begun and have been so far carried on that the complainants will be injured by the noncompletion of the improvement. State v. Graves, 19 Md. 351. (a) What is a Public Use.-It is now the settled doctrine throughout the several States, that the business and purposes of railroads, canals, public highways, turnpikes, bridges, and other such public means for travel and for the transport of goods, are a public use within the meaning of the Constitution. The following cases must be taken as illustrations of public uses, rather than as furnishing any general definition of what is such a use. Courts have carefully avoided giving any such definition. The objects and business of acqueduct companies and water-works companies for the supply of cities with water, are a public use. Reddall v. Bryan, 14 Md. 444; Burden v. Stein, 27 Ala. 104; Lumbard v. Stearns, 4 Cush. 60; Mayor &c. v. Bailey, 2 Denio, 452, per Gardiner, president. The same is true of a gas company organized to convey gas from a natural, spring or well to a city. Bloomfield &c. Gaslight Co. v. Richardson, 63 Barb. 437. The sewerage of a city is a public use. Hildreth v. Lowell, 11 Gray, 345. Also the raising the level of a district where drainage is so defective as to be dangerous to public health. Dingley v. Boston, 100 Mass. 544; and see Sessions v. Crunkilton, 20 Ohio N. S. 349. Some cases hold the drainage of swamp lands, in order to make them more valuable, to be a public use. Egyptian It seems to be the sounder construction, that the declaration that private property shall not be taken for public use without compensation, impliedly prohibits private property being taken Levee Co. v. Hardin, 27 Mo. 495; Tide-water Co. v. Coster, 3 C. E. Green (N. J.) 518; Matter of Drainage &c. 6 Vroom, 497, where the object was to make the lands fit for cultivation and habitation, as well as to promote health. But other cases hold that the public use of such systems of drainage lies in the benefit to the public health. Hartwell v. Armstrong, 19 Barb. 166; People v. Nearing, 27 N. Y. 306; Cypress &c. Co. v. Hooper, 2 Metc. (Ky.) 350; Anderson v. Kerns Drainage Co. 14 Ind. 199, 202. In this last case it was expressly held that, while draining swamp lands for purposes of health was a public use, such draining for purposes of making the lands more valuable was not. And, in Ohio, an act for laying out drains by township trustees at the request of individual owners, without limiting such action to cases where the public good required it, was held invalid as being for a private use. Reeves v. Wood County, 8 Ohio, N. S. 333. Provisions and means for removing dams and permitting stagnant and offensive waters to flow off, thus improving the health of a whole district, are a public use. Miller v. Craig, 3 Stockt. (N. J.) 175; Talbot v. Hudson, 16 Gray, 417. Taking land for a public school-house is taking it for a public use. Williams v. School Dist. 33 Vt. 271; Long v. Fuller, 68 Penn. St. 170; Township v. Hackman, 48 Mo. 243. And for a fort. Gilmer v. Lime Point, 18 Cal. 229. And for a public burying ground. Edwards v. Stonington Cemetery Ass. 20 Conn. 466. It is a public use though the pleasure of the public is chiefly concerned, as in a park or public square. Matter of Central Park, 63 Barb. 282. Or in a highway laid out for pleasure travel. In re Mt. Washington R. R. 35 N. H. 134. Railroads may take land for purposes properly incidental to their legitimate business, such as depots, engine houses, repair shops. Han. & St. Jo. R. R. v. Muder, 49 Mo. 165; Chicago &c. R. R. v. Wilson, 17 Ill. 128; Low v. Galena &c. R. R. 18 Ill. 324; Giesey v. Cincinnati &c. R. R. 4 Ohio, N. S. 308; N. Y. &c. R. R. v. Kipp, 46 N. Y. 546. But not for a manufactory of cars, or for dwellings for its operatives. Eldridge v. Smith, 34 Vt. 484. In some of the States statutes have been in existence from an early day which authorize land to be taken for mill dams, mill sites, and the like. These statutes have been sustained in some New England States, and in a few Western States. Hazen v. Essex Co. 12 Cush. 475; Boston and Roxbury Mill Co. v. Newman, 12 Pick. 467; Fisk v. Framingham Man. Co. 12 Pick. 68; Great Falls &c. Co. v. Fernald, 47 N. H. 444; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Jordan v. Woodward, 40 Me. 317; Miller v. Frost, 14 Minn. 365; Newcomb v. Smith, 1 Chand. (Wisc.) 71; Thien v. Voigtlander, 3 Wisc. 461; Pratt v. Brown, 3 Wisc. 603. On the contrary, such statutes are held invalid, and the taking of land for mill purposes is held to be a taking for private use, in Sadler v. Langham, 34 Ala. 311; Tyler v. Beacher, 44 Vt. 648; Loughbridge v. Harris, 42 Geo. 500; Hay v. Cohoes Co. 3 Barb. 47. And an early Tennessee case (Harding v. Goodlett, 3 Yerg. 41), which had sustained the validity of such a statute, was recently overruled in Memphis Freight Co. v. Memphis, 4 Cold. 419. A corporation was created to unload and move freight in Memphis, and was authorized to take private property for sheds, tracks, &c., to be used in its said busi for private use at all. So, in New York, the Supreme Court has said, "The Constitution, by authorizing the appropriation of ness. This delegation of power was held void, and the use a private one. Memphis Freight Co. v. Memphis, 4 Cold. 419. Taking land for a "township road," is taking it for a public use. Ferris v. Bramble, 5 Ohio, N. S. 109. Also for lateral and quasi private railroads. Bailey v. Miltenberger, 31 Penn. St. 37. These decisions are based upon the peculiar local systems of the States in which they were rendered, and upon the fact that the "township roads" and "lateral railroads" spoken of are essentially public highways. Land cannot be condemned for private ways, and statutes authorizing such taking for ways which are really private are invalid, although the ways may be designated "neighborhood roads." Dickey v. Tennison, 27 Mo. 373; Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crossly, 40 Ill. 175; Bankhead v. Brown, 25 Iowa, 540; Osborn v. Hart, 24 Wisc. 89. An act providing for the extinguishing of ground rents on payment by owner of the fee of the value as found by a jury was held void, in Pennsylvania, on the ground that it was taking property for a private use. Palairet's Appeal, 67 Penn. St. 479. The use is a public one within the meaning of State Constitutions, although it is the public of the United States that is to be benefited, and the proceedings are instituted in State courts under the State Constitutions. Gilmer v. Lime Point, 18 Cal. 229 (case of a fort); Redall v. Bryan, 14 Md. 444 (case of water-works for Washington city); Burt v. Merchants' Ins. Co. 106 Mass. 356 (site for a post-office). But the Supreme Court of Michigan has recently held the contrary doctrine in proceedings to condemn land for the use of the United States for a lighthouse. Trombly v. Humphrey, 23 Mich. 471. It seems to be conceded in New York, in a recent case, that the taking may be for the benefit of a neighboring State, e. g., that land might be taken for a reservoir in New York for the use of a canal incorporated and located in Pennsylvania. Matter of Townsend, 39 N. Y. 171. While the courts have, in numerous instances, thus pronounced some particular object to be or not to be a public use, they have not attempted to construct any formula by which such uses are to be determined; they have seldom even endeavored to lay down any general principle which might be helpful in constructing a definition. It is possible, nevertheless, to reach some broad generalizations from the materials furnished by the decisions. This process will not lead us to any single and comprehensive definition; it will consist simply in a statement of certain classes of objects which are public uses, and of the principles by which these classes may be ascertained and determined. As a preliminary, we shall quote the language of a few recent cases. In Todd v. Austin, 34 Conn. 78, a strong attack was made upon the flowage and mill acts of the State, but their validity was sustained. The court was driven, by the necessities of its position, to give a broad construction to the phrase "public use," and it did so, without flinching, in the following manner: "The Legislature may lawfully grant rights of easement to individuals or corporations, to enable them to erect and operate structures, if the result of their operation is the production of an article or thing intended to be furnished or sold to the public for a beneficial use, and to supply their reasonable wants. This proposition covers the case in hand, for the flowage law is intended to grant rights of easement which will enable individuals or corporations to enlarge or erect and operate structures, the private property to public use, impliedly declares that, for any other use, private property shall not be taken from one and ap use." * * result or product of the operation of which will be articles, such as cotton or woolen cloth and the like, intended to be sold to the public for their necessary and beneficial Per Butler, J., p. 90. The "public" here means simply the customers, the persons who chose to buy the cotton cloth or other articles. If this principle be correct, every lawful trade or business or profession, in which a person is a producer, is a "public use." Other courts, however, are not so sweeping and inclusive in their definitions. In Gilmer v. Lime Point, 18 Cal. 229, land was taken for the United States for a fort. The question most discussed was whether property could be condemned in and by State courts for the use of the United States, it being conceded that a fort was a public use, if the United States was a proper public. Baldwin, J., said (p. 251): "The words public use here mean a use which concerns the whole community, as distinguished from a particular individual, or a particular number of individuals. It is not necessary, however, that each and every member of society should have the same degree of interest in this use, or be personally or directly affected by it, in order to make it public. * If the use for which the property is taken be to satisfy a great public want or exigency, it is a public use within the meaning of the Constitution." Again (p. 252): "This public use need not be a use general or common to all the people of the State alike. It may be a use in which but a small portion of the public will be directly benefited, as a street in a town, a bridge, or a railroad, necessarily local in its benefits and advantages, though it must be of such a character as that the general public may, if they choose, avail themselves of it." In Memphis Freight Co. v. Memphis, 4 Cold. 425, the court said: "There is a distinction between a public use and a public convenience. To authorize the taking of private property for public use, the use must be for the people at large-for travelers, for all—and must also be compulsory by them, and not optional with the corporators; must be a right in the people, and not a favor; must be under public regulations as to tolls, &c., &c. But when it is a public convenience merely, the right to take private property does not exist." The doctrine of "public use,” which seems to be correct, and which must be correct, unless the door is opened to all business and private enterprises that may be a convenience to customers, was admirably stated by the court in the very recent case (1871) of Tyler v. Beacher, 44 Vt. 656, on a petition to condemn land for a grist mill. "As to railroads, in respect to the public. all persons have the right to ride, and to have property carried on them in the vehicles of the road, upon payment of a common charge. As to turnpikes, all persons may pass and carry on them in their own vehicles, upon payment of a common toll. All who have occasion may use ways. School-houses are instruments of a system that is maintained for all the people of the State. The public, or some essential part of it, has the right to have, and has, to some extent, the actual use and enjoyment of all these; and the takers of property for them are, in some sense, agents for the State in taking, and trustees for the public in holding the property taken, although they go into the enterprises, in some cases, merely for private gain. In this case the public would not take through the petitioner, but the petitioner would take for himself; and the petitioner would not hold as a trustee for the public, but only for himself. It is to be considered that this taking would be for the public benefit, for such is the effect of the finding [in the court below]; but the benefit would not arise out of any use the public would acquire by the taking, but out of the better use the peti cause no compensation is made to the proprietors; and has been so recently held, although the power has been sanctioned by statutes, and exercised nearly ever since the State had an exist ence or a government.* In Pennsylvania, it has been the invariable usage, from the first settlement of the commonwealth down to the present day, to reserve six acres out of every hundred for roads; and it is held that this six per cent. belongs to the State, and she may constitutionally appropriate it to the use for which it was meant without compensation. + In the same State it has been held, in regard to turnpikes or plank-roads, that a person on whose land such a road is located can recover damages to an amount which, if added to the present value of his land, would make it worth as much as it was before the road was made. An act of the Legislature of Massachusetts incorporated an aqueduct company for the purpose of supplying a village with pure water, with authority to take springs; but the act did not in terms require the corporation to supply, on reasonable terms, all persons applying for water. It was insisted that this act was unconstitutional, on the ground that it authorized the taking of private property for a use not public. But it was held good, on the ground that if such a corporation should undertake, capriciously and oppressively, to enhance the value of certain estates by furnishing them with a supply of water, and depreciate that of others by refusing them, it would be a plain abuse of their franchise. || Delegation of the Power of Eminent Domain.(a)—Hav ing thus attempted to define the limits of the legislative power * Wallace v. Karlenowefski, 19 Barb. 118; Gould v. Glass, Ib. 179. Plank Road Company v. Thomas, 20 Penn. R. 93. 93. Plank Road Co. v. Thomas, 20 Penn. R. (a) Who can take.-It is settled by the uniform course of decision that the power to take may be delegated to corporations or to individuals. But the intent to delegate the power must clearly appear. Thus, where a statute authorized certain officers to "provide " a small-pox hospital, this was held not to authorize a condemnation of private property. Markham v. Brown, 37 Geo. 277. And a power to condemn land for "public grounds, squares, streets, alleys or highways" does not |