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act upon their own views of propriety and duty, without the aid of a forensic contest. The appropriation of the property is an act of public administration, and the form and manner of its performance is such as the legislature in its discretion may prescribe.” 1

While the exercise of the right of eminent domain belongs primarily to the legislature, it is not necessary for it directly to make the appropriation to public uses. Since the exercise of the power is only permissible in the advancement of the public interests, if that requirement is complied with, it is also within the legislative discretion to determine whether the confiscation shall be made by it, or by some other corporate body or individual to whom the power is delegated. If the public interests are subserved best, when the right is exercised by a municipal corporation or a railroad company, there can be no constitutional objection to the delegation of the power, for the burden upon private property is not thereby increased. The grant of the power to a town, city, county or school district, needs no special defense, because the delegate of the power is in each instance only a local branch of the general State governmeut. It is the government in every case which makes the confiscation. But when the power is granted to a corporation, composed of private persons, who procure a grant of the power for the purpose of making a profit out of it; although the use to which the land is put may serve to satisfy a public want, there is more

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i See also United States v. Harris, 1 Sumn. 21 ; Spring v. Russell, 3 Watts, 294 ; Varick v. Smith, 5 Paige Ch. 137 (28 Am. Dec. 417); People v. Smith, 21 N. Y. 595; Cooper v. Williams, 7 Me. 273; Perryo. Wilson, 7 Mass. 395; Aldridge v. Railroad Company, 2 Stew. & Port. 199 (23 Am. Dec. 307); O'Hara v. Lexington, etc., R. R. Co., 1 Dana, 232; Henry v. Underwood, 1 Dana, 247; Waterworks Co. v. Burkhardt, 41 Ind. 364; Ford v. Chicago, etc., R. R. Co., 14 Wis. 609. But the question, whether the appropriation shall be made, may be submitted by the legislature to a vote of the people, or to some court or jury. Iron R. R. Co. v. Ironton, 19 Ohio St. 299. And in Michigan, the submission of the question of necessity to a jury, is made by the constitution an indispensable requirement. Mansfield, etc., R. R. Co. v. Clark, 23 Mich. 519; Arnold v. Decatur, 29 Mich. 11.

or less disposition to question the constitutional propriety of the delegation of the power. But the constitutional objection is deemed to be untenable. In granting to a private corporation the right of eminent domain, the State does not consider the benefit to the stockholders of the corporation, but rather the public benefit derived from the construction and maintenance of a turnpike, a railroad, etc. It is true that government may undertake these public improvements, but it is the prevailing opinion that the best interests of the public are subserved by granting the right to a private corporation which assumes, in return for the right of eminent domain and the private gain to be got out of the business, to satisfy the public want; and the legislature has uniformly been held to hold within its discretion the power of exercising this right or of delegating it, according as the one course or the other seems best to promote the public welfare. Not only is this permissible, but it is also held to be constitutionally unobjectionable to delegate to the corporation or individual, along with the exercise of the right of eminent domain, the power to determine finally upon the necessity for the taking, without any judicial investigation.”

1 Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Stevens o. Middlel. sex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; Lebanon v. Olcott, 1 N. H. 339; Petition of Mt. Washington Road Co., 35 N. H. 134; Eaton v. Boston C. & M. R. R. Co., 51 N. H. 504; Armington v. Barnet, 15 Vt. 745; White River Turnpike v. CentraR. R. Co., 21 Vt. 590; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294; Olmstead v. Camp, 33 Conn. 532; Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73 (22 Am. Dec. 679); Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Whiteman's Ex'rs v. Wilmington, etc., R. R. Co., 2 Harr. 514; Raleigh, etc., R. R. Co. v. Davis, 2 Dev. & Bat. 451; Swan o. Williams, 2 Mich. 427 ; Pratt o. Brown, 3 Wis. 603; Gilmer v. Lime Point, 18 Cal. 229.

? People v. Smith, 21 N. Y. 595; Lyon v. Jerome, 26 Wend. 484; Matter of Fowler, 53 N. Y. 60; N. Y. Central, etc., R. R. Co v. Met. Gas Co., 63 N. Y. 326; Hays v. Risher, 32 Pa. St. 169; Chicago, etc., R. R. Co.o. Lake, 71 Ill. 333; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; North Mo. R. R. Co. v. Gott, 25 Mo. 540; Bankhead v. Browny, 25 Iowa, 640; Warren v. St. Paul, etc., R. R. Co., 18 Minn. 384.


But while the power of the legislature to determine the mode and occasion of the exercise of the right of eminent domain is not restricted by constitutional limitations, when the legislature has prescribed the conditions and established regulations for the exercise of the right, the performance of the conditions and the observance of the regulations become an indispensable condition precedent to the exercise of the right, and any failure to comply with the requirements of the statute, will invalidate the confiscation of property. There must be a most scrupulous observance of all those provisions which were designed to serve as a protection to the interests of the land owner.1

1 “The statute says that, after a certain other shall have been passed, the company may then proceed to take private property for the use of its road; that is equivalent to saying that the right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might choose to exercise it.” Gillinwater v. Miss., etc., R. R. Co., 13 Il. 1, 4. See Baltimore, etc., R. R. Co. v. Nesbit, 10 How. 395; Stacy v. Vt. Cent. R. R. Co., 27 Vt. 39; Burt v. Brigham, 117 Mass. 307; Wamesit Power Co. v. Allen, 120 Mass. 352; Lund v. New Bedford, 121 Mass. 286; Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 426; Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend. 9; Reitenbaugh v.Chester Valley, R. R. Co., 21 Pa. St. 100; State v. Seymour, 35 N. J. L. 47; W. Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382; Supervisors of Doddridge v. Stout, 9 W. Va. 703; Decatur Co. v. Humphreys, 47 Ga. 565; Cameron v. Supervisors, etc., 47 Miss. 264; St. Louis, etc., R. R. Co. v. Teters, 68 Ill. 144; Mitchell v. Illinois, etc., Coal Co., 68 Ill. 286; Chicago, etc., R. R. Co. o. Smith, 78 Ill. 96; People v. Brighton, 20 Mich. 57; Power's Appeal, 29 Mich. 504; Kroop v. Forman, 31 Mich. 144; Moore v. Railway Co., 34 Wis. 173; Bohlman v. Green Bay, etc., R. R. Co., 40 Wis. 157; Delphi v. Evans, 36 Ind. 90; Ellis v. Pac. R. R. Co., 51 Mv. 200; United States v. Reed, 56 Mo. 565; Commissioners v. Beckwith, 10 Kan. 603; St. Joseph, etc., R. R. Co. v. Callender, 13 Kan. 496; Stanford v. Worn, 27 Cal. 171; Brady v. Bronson, 45 Cal. 640; Stockton v. Whitmore, 50 Cal. 554; Paris 0. Mason, 37 Texas, 447.

It is also recognized as an invariable corollary to this rule, that the grants of the right of eminent domain are to be strictly construed, and the powers delegated are vot to be extended by construction beyond the express limitation of the statute. " There is no rule more familiar or better settled than this; that grants of corporate power, being in derogation of common right, are to be strictly construed ; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty pertaining to the state itself, and interfering most seriously and often vexatiously with the ordinary rights of property.” 1

But there are two constitutional limitations, imposed very generally upon the exercise of the right of eminent domain, and it is also a judicial question whether the legislature, in the exercise of the right, has fully complied with their requirements. One has reference to the ascertainment and payment of the compensation to the land owner for the loss of his land, which will be discussed subsequently,' and the second provides that the private land of the individual shall not be taken in the exercise of the right of eminent domain except for public purposes. It is a legislative question whether the public exigencies require the appropriation, but it is clearly a judicial question, whether a particular confiscation of land has been made for a public purpose.3


Currier v. Marietta, etc., R. R. Co., 11 Ohio St. 228, 231. See W. Va. Transportation Co, v. Volcanic Oil & Coal Co., 5 W. Va. 382; Bruning v. N. N. Canal & Banking Co., 12 La. Ann. 541; Gilmer v. Lime Point, 19 Cal. 47. ? See pust, § 121d.

Tyler o. Beacher, 44 Vt. 648; Olmstead o. Camp, 33 Conn. 551 ; Beckman v. Railroad Company, 3 Paige, 45 (22 Am. Dec. 679); Matter of Deansville Cemetery Association, 66 N. Y. 569 (23 Am. Rep. 86); Scudder v. Trenton, etc., Co., 1 N. J. Eq. 694 (23 Am. Dec. 756); Loughbridge v. Harris, 42 Ga. 500; Harding v. Goodlett, 3 Yerg. 40 (24 Am. Dec. 546); Chicago, etc., R. R. Co. v. Lake, 71 [ll. 333; Water Works Co. v. Burkhardt, 41 Ind. 364; Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Bankhead v. Brown, 25 Iowa, 540.

§ 1216. Public purpose, what is a.

The authorities are unanimous in the recognition of the abstract proposition, that the legislature cannot in the exercise of the right of eminent domain, even when the compensation is made on the most liberal terms, take the land from a private owner and appropriate it to any but a public use." But a careful reading of the authorities fail to develop any definite meaning for the term “publicuse.” As long as the government exercises the right directly and for the State's immediate benefit, no difficulty is experienced in determining what is a public use. There can be no doubt that land is devoted to a public use, when it is taken for the purpose of laying out parks, and

1 The right of eminent domain does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer." Beekman v. Saratoga, etc., R. R. Co., 3 Paige, 73 (22 Am. Dec. 679). “It is true there is neither in our constitution, nor in the constitution of the other States, any express provision forbidding, that private property should be taken for the private use of another or any constitutional provision forbidding the legislature to pass laws, whereby the private property of one citizen may be taken and transferred to another for his private use without the consent of the owner. It was doubtless regarded as unnecessary to insert such a provision in the constitution or bill of rights, as the exercise of such arbitrary power of transferring by legislation the property of one person to another, without his consent, was contrary to the fundamental principles of every republican government; and in a republican government neither the legislative, executive nor judicial department can possess unlimited power. Such a power as that of taking the private property of one and transferring it to another for his own use, is not in its nature legislative, and it is only legislative power, which by the constitution is conferred on the legislature. Such an act, if passed by the legislature, would not in its nature be law, but would really be an act of robbery, the exercise of an arbitrary power, not conferred on the legislature.” Varner o. Martin, 21 W. Va. 548. See, also, to the same effect, Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend. 955; Matter of Albany St., 11 Wend. 149 (25 Am. Dec. 618); Embury o. Conner, 3 N. Y. 511; N. Y., etc., R. R. Co. v. Kip, 46 N. Y. 546 (7 Am. Rep. 383); Teneyck v. Canal Co., 18 N. J. 200 (37 Am. Dec. 233); Edgewood R. R. Co.'s appeal, 79 Pa. St. 277; Concord R. R. Co. v. Greely, 17 N. H. 47; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391 (24 Am. Dec. 299); Pratt o. Brown, 3 Wis. 603; Sadler v. Langham, 34 Ala. 311.


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