within its jurisdiction, conduct of this character. 205 The nature of the power and the limitations on its exercise have been already fully considered. Taxation is the power the sovereign possesses of taking upon a uniform and just basis an involuntary contribution from persons and property for the maintenance of its organization and the carrying out of its governmental and public functions and duties. 206 Taxation is an appropriation of individual property without the payment of direct compensation. Local assessments as a species of taxation are based, however, upon the idea, though illusory at times, of a direct, substantial and equal return for the taxes paid, in the benefits received by property from the construction of the local improvement for which the assessment is levied to pay." 207 The individual holds all his property and exercises his rights subject in their use to the regulation of the state for the good of society at large; he also holds his property, both real and personal, subject to a seizure by the state or its delegated agencies in those cases where a great and urgent public necessity requires this course of action. The power of eminent domain is a taking of property but one that in its legal exercise must be accompanied by the payment of just compensation to the owner which, it has been held, must be full, ample and complete.208 The police power is 205 See §§ 115 et seq. 206 People v. City of Brooklyn, 4 N. Y. 419. "Taxation exacts money, or services, from individuals, as and for their respective shares of contribution to any public burthen. Private property taken for public use by right of eminent 'domain, is taken, not as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax. Taxation operates upon a community or upon a class of is persons in a community and by The some rule of apportionment. exercise of the right of eminent domain operates upon an individual, and without reference to the amount, or value exacted from any other individual, or class of individuals." Cooley, Taxation, p. 1; Burroughs, Taxation, c. 1. See, also, §§ 300 et seq., ante. 207 Norwood v. Baker, 172 U. S. 269; French v. Barber Asphalt Pav. Co., 181 U. S. 324, reviewing many cases. City of Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330. See, also, §§ 337 et seq., ante. 208 Earl Highway Com'rs v. People, 4 Ill. App. 391. The fact that the quantity of land proposed to be taken is very small is no excuse for a failure to compensate the owner one of regulation; the power of taxation is that of taking; eminent domain is a taking, but one based upon the idea of a payment of compensation to the one deprived of his property.209 This statement eliminates the forcible seizure of private property by the state, in cases of overwhelming public necessity, for the preservation of the public health, of private property or the organization of the state itself as a governmental and political agent. These are illustrated by the seizure and destruction of private property in an epidemic of disease, 210 an uncontrollable conflagration 211 or the arbitrary seizure or use of private property without compensation during times of war by a government.212 or appropriate the property without legal proceedings. State v. Graves, 19 Md. 351; Bradshaw v. Rodgers, 20 Johns. (N. Y.) 103. "The act under consideration contains no provision to compensate, at any time, those whose lands may be taken as a substitute for a public road or highway, altered or discontinued by the principal engineer, for the damages they sustain. This is directly opposed to the fifth article of the amendments of the constitution of the United States, which forbids the taking of private property for public use, without just compensation. The same inhibition to the power of the legislature, is contained in the late amendments to the constitution of this state. I do not rely upon either, as having a binding constitutional 212 Harrison v. Myer, 92 U. S. 111; Lamar v. Browne, 92 U. S. 187; Burbank v. Conrad, 96 U. S. 291; Branch v. United States, 100 U. S. 673; Kirk. v. Lynd, 106 U. S. 315; Hawkins v. Nelson, 40 Ala. 553; City of Chicago v. Chicago League Ball Club, 196 Ill. 54, 63 N. E. 695. The same rule applies where regiments of militia present for the purpose of suppressing a mob or riot, V. Parish of 209 Hollingsworth Tensas, 17 Fed. 109; Bass v. State, 34 La. Ann. 494; Philadelphia V. Scott, 81 Pa. 80; Davenport v. Richmond City, 81 Va. 636. 210 Russell v. City of New York, 2 Denio (N. Y.) 461. 211 Bowditch v. City of Boston, 101 U. S. 16; Dunbar v. Alcalde & Ayuntamiento, 1 Cal. 355; Field v. City of Des Moines, 39 Iowa, 575; Taylor v. Inhabitants of Plymouth, occupy private property for camping purposes. There is no liability to the owner for the use of his property or for any injury caused to it by such occupation. It is a question for the state in its sovereign capacity to determine whether any remuneration shall be made for its use. Beck v. Ingram, 64 Ky. (1 Bush) 355. See, also, 13 Am. Law Reg. (N. S.) 401. § 744. Purposes for which property may be acquired. A public corporation may acquire property for use in its sovereign capacity and which it holds for the construction and maintenance of governmental aids, public buildings, grounds, forts, arsenals, fortifications and the like. Its control and use of the property acquired for these purposes is absolute.213 It may also acquire and hold property in its capacity as a sovereign but for the use and the benefit of the public or the community at large: public highways, parks, and pleasure grounds. Its control of these is not absolute; they are affected with the character of a public use and they cannot be deprived or divested of this. The nominal control may be transferred from one agency of government to another but the character of the use must ever remain the same. A public corporation may further acquire and hold 214 49 Mass. (8 Metc.) 465; McDonald v. It Russell v. City of New York, 2 Denio (N. Y.) 461. The court in answer to the contention that the destruction of property was a tak ing for public use said: "And the property was not taken for public use,' but it was destroyed to prevent the spreading of a conflagration, and thus saving the property of other persons in the immediate neighborhood. It was taken for private use." Senator Sherman also said: "The best elementary writers lay down the principle, and adjudications upon adjudications have for centuries sustained, sanctioned and upheld it, that in the case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, or other great public calamity, the private property of any individual may be lawfully destroyed for the relief, protection or safety of the many, without subjecting the actors to personal responsibility for the damages which the owner has sustained." Mouse's Case, 12 Coke, 63. 213 See § 718, ante. See, also, Lewis, Em. Dom. § 2, discussing generally the subject of this section. 214 Simon v. Northup, 27 Or. 487, property as a trustee for public or quasi public purposes. Bequests and grants of property from private individuals for the construction and maintenance of hospitals, educational or eleemosynary institutions. The control of such property is not only limited to a general use, as in the last instance, for objects of a public character, but to a specific use for the particular and special purpose for which the property was devised. The management of the trust is limited not only by its nature or character but also by those who are to receive its benefits.215 A public corporation may still further, according to modern authorities, acquire property in a strictly private or personal capacity.216 The purpose for which property may be thus acquired and held will determine the method of its acquisition. The power of eminent domain is only available for the acquirement of property for a public use or purpose and this statement naturally suggests the question of what is a public use or purpose, which will be considered later. $ 745. Eminent domain; definitions. One definition of eminent domain has already been given in a previous section and the nature of the power can be best illustrated, perhaps, by referring to others.217 Lewis in his work on 40 Pac. 560, 30 L. R. A. 171. See, § 733, ante. 215 See § 719, ante. 216 See § 720, ante. 217 Pollard v. Hagan, 3 How. (U. S.) 223; Lake Merced Water Co. v. Cowles, 31 Cal. 215; Todd v. Austin, 34 Conn. 78. "The right to take private property for public use, or of eminent domain, is a reserved right attached to every man's land, and paramount to his right of ownership. He holds his land subject to that right, and cannot complain of injustice when it is lawfully exercised." Lewis, Em. Dom. (2d Ed.) § 1. "Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses, for the purpose of promoting the general welfare. It em braces all cases where, by authority of the state and for the public good, the property of the individual is taken, without his consent, for the purpose of being devoted to some particular use, either by the state itself or by a corporation, public or private, or by a private citizen. Apart from constitutional considerations, it is not essential, in order to constitute an act of eminent domain, that the use for which the property is taken should be of a public nature." Dillon, Mun. Cor. (4th Ed.) § 584. "The right of every government to appropriate, otherwise than by taxation and its police authority, private property for public use." 1 Redfield, Railways (5th Ed.) p. 245. "It is defined to be that dominion eminens, "Eminent Domain" quotes 218 and criticises the definition of Judge Cooley given above, and says: "No court has ever referred either the control and regulation of rights of a public nature or of individual property to the power of eminent domain, and Judge Cooley himself treats of these matters, not under the head of eminent domain, but under the head of the police power. This enlarged definition finds sanction in the works of many theoretical writers and in the dicta of various judicial opinions, but, however well sanctioned, it is certainly objectionable; first, because it does not correspond to the practical application of the term, and, second, because it invests the term with a certain vagueness and elasticity, that preclude the formation of any definite conception. All exercises of sovereign power over private property, which have been judicially determined to fall under the right of eminent domain, have been cases in which there has been an appropriation of such property to particular uses." The modern definitions as given by the courts embody the idea that the power of eminent domain is a right of the state as sovereign to take private property for a public use upon making just compensation. Lewis in his definition does not limit the use to a public one but uses the phrase "particular uses.” The use of the term "public use" is undoubtedly due to the constitutional provisions found in nearly every state of the Union which forbid the taking of private property, except for a public use, and upon the payment of just compensation.219 The power is one to appropriate or superior right, which of necessity resides in the sovereign power, in all governments, to apply private property to public use, in those great public emergencies which can reasonably be met in no other way." Vattel, Law Nat. Bk. 1, c. 20. "The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain." Mills, Em. Dom. § 1. "The power of the sovereign to condemn private property for public use." 218 Lewis, Em. Dom. § 2. 219 Const. U. S. 5th Amend. "Nor shall private property be taken for public use, without just compensation." Ala. Const. 1875, art. 1, § 24; art. 13, §7; Ark. Const. 1874, art. 2, § 22; art. 12; § 9; Cal. Const. 1879, art. 1, § 14; Colo. Const. 1876, art. 2, §§ 14 and 15; Conn. Const. 1818, art. 1, § 11; Del. Const. 1897, art. 1, § 8: Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without compensation being named. Fla. Const. 1886, art. 16, 29; Ga. Const. 1877, art. 1, § 3, par. 1. "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." |