private property as the public necessities may require upon the payment of just compensation to the individual and it pertains to Idaho Const. 1899, art. 1, § 14; Ill. Const. 1870, art. 2, § 14; Ind. Const. 1851, art. 1, § 21. "No man's particular services shall be demanded without just compensation. No man's property shall be taken by law without just compensation, nor, except in cases of the state, without such compensation first assessed and tendered." Iowa Const. 1857, art. 1, § 18; Kan. Const. 1859, art. 12, § 4; Ky. Const. 1891, § 242. "Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them." La. Const. 1879, art. 156. Civ. Code, art. 489. "No one can be deprived of his property unless for some purpose of public utility, and on consideration of an equitable and previous indemnity and in a manner previously prescribed by law." Me. Const. 1819, art 1, § 21; Md. Const. 1867, art. 3, § 40; Mass. Const. 1780, part 1st, art. 10 "But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people." Mich. Const. 1850, art. 15, §§ 9 and 15; Minn. Const. 1857, art. 1, § 13; art. 10, § 4; Miss. Const. 1890, art. 3, § 17. "Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public." Mo. Const. 1875, art. 2, § 20; Mont. Const. 1889, art. 3, § 14; Neb. Const. 1875, art. 1, § 21; Nev. Const. 1864, art. 1, § 8. "Nor shall private property be taken for public use without just compensation having first been made or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterwards made." New Hampshire Const. 1792, part 1, art. 12. "No part of a man's property shall be taken from him or applied to public uses, without his own consent or that of the representative body of the people." New Jersey Const. 1844, art. 1, § 16; New York Const. 1894, art. 1, §§ 6 and 7; N. D. Const. 1889, art. 1, § 14; Ohio Const. 1851, art. 1, § 19; Or. Const. 1857, art. 1, § 19; art. 11, § 4; Pa. Const. 1873, art. 1, § 10; art. 16, § 8; R. I. Const. 1842, art. 1, § 16; S. C. Const. 1868, art. 1, § 23; S. D. Const. 1889, art, 6, § 13; art. 17, § 18; Tenn. Const. 1870, art. 1, § 21; Tex. Const. 1876, art. 1, § 17; Vt. Const. 1793, c. 1, art. 2; Va. Bill of Rights, 1870, art. 1, 8; Utah Const. 1895, art. 1, § 22; Wash. Const. art. 1, § 16; W. Va. Const. 1872, art. 3, § 9; Wis. Const. art. 1, § 13; art. 11, § 2. No municipal corporation shall take private property for public use against the consent of the owner without the necessity thereof being first established by the verdict of a jury. Wyo. Const. art. 1, § 32. The Const. of North Carolina has no provision relative to the subject. sovereignty as an inherent, necessary, continuing and inalienable right.220 § 746. The power exercised; by what agencies, Since the power of eminent domain belongs to sovereignty as a constant, necessary and inextinguishable right, it necessarily follows that the federal government 221 and each of the different 220 United States v. Jones, 109 U. S. 513; United States v. Cooper, 20 D. C. (9 Mackey) 104. "The exercise of the right of eminent domain by a sovereign cannot be the creation of a grant or compact. It inheres in the existence of an independent government, and comes into being eo instanti with its establishment, and continues as long as the government endures." Steele v. Madison County Com'rs, 83 Ala. 304; West Chicago Park Com'rs v. McMullen, 134 Ill. 170, 25 N. E. 676, 10 L. R. A. 215; Shool v. German Coal Co., 118 Ill. 427; Kansas City v. Marsh Oil Co., 140 Mo. 458; Sigler v. Fuller, 34 N. J. Law, 227; Heyward v. City of New York, 7 N. Y. 314; Matter of Furman St., 17 Wend. (N. Y.) 649; Matter of Deansville Cemetery, 66 N. Y. 569; Kramer v. Cleveland & P. R. Co., 5 Ohio St. 140. "Whatever may be the theoretical foundation of the right of eminent domain, it is certain that it attaches as an incident to every sovereignty, and constitutes a condition upon which all property is holden. When the public necessity requires it, private rights to property must yield to this paramount right of the sovereign power." McQuillen v. Hatton, 42 Ohio St. 102; Lindsay v. Charleston St. Com'rs, 2 Bay. (S. C.) 38; Tyler v. Beacher, 44 Vt. 648; 1 Redfield, Railways (5th Ed.) p. 229. "This is a right in the sovereignty which seems indispen sible to the maintenance of civil government, and which seems to be rather a necessary attribute to the sovereign power in a state, than any reserved right in a grant of property to the subject or to the citizen." See, also, cases cited generally in the three preceding sections. 221 Kohl v. United States, 91 U. S. 367. Mr. Justice Strong in delivering the opinion of the court said: "But it is more necessary for the exercise of the powers of a state government than it is for the exercise of the conceded powers of the Federal Government. That government is as sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the states over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder "But, if the right of eminent domain exists in the Federal Government, it is a right which may be exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the constitution. In Ableman v. Booth, 21 How. (U. S.) 523 (21 How. [U. S.] XVI., 175), Chief Justice Taney described in plain language the states 222 possesses the power to the fullest extent and may exercise it for all legitimate purposes. In the leading case upon the right of the Federal government to condemn property within the United States irrespective of the sovereignty of the different complex nature of our government, and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the constitution of the United States, independent of the other. Neither is under the necessity of applying to the other for permission to exercise its lawful powers. Within its own sphere, it may employ all the agencies for exerting them which are appropriate or necessary, and which are not forbidden by the law of its being. When the power to establish postoffices and to create courts withing the states was conferred upon the Federal Government, included in it was authority to obtain sites for such offices and for court houses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power, ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth Amendment contains a provision that private property shall not be taken for public use with 222 Pollard v. Hagan, 3 How. (U. S.) 212. Upon the admission of a state formed from former territory of the United States, the right of out just compensation. What is that but an implied assertion, that, on making just compensation it may be taken?" United States v. Jones, 109 U. S. 513; Cherokee Nation v. Southern Kan. R. Co., 135 U. S. 641; United States v. Gettysburg Elec. R. Co., 160 U. S. 668. Mr. Justice Peckham in delivering the opinion of the court said on the question of the power of the government of the United States to condemn lands: "It (the United States) has authority to do So whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution. And also in our judgment, the government has the constitutional power to condemn the land for the proposed use. It is, of course, not necessary that the power of condemnation for such purpose be expressly given by the constitution. The right to condemn at all is not so given. It results from the powers that are given, and it is implied because of its necessity, or because it is appropriate in exercising those powers." Chappell V. United States, 160 U. S. 499; Matter of United States, 96 N. Y. 227; Petition of U. S. for Appointment of Viewers, 24 Pittsb. Leg. J. 105; Trombley v. Humphrey, 23 Mich. 471; Darlington v. United States, 82 Pa. 382; Cooley, Const. Lim. (7th eminent domain passes to the state. But see United States v. City of Chicago, 7 How. (U. S.) 185. states, 222a Mr. Justice Strong in delivering the opinion of the court said: "It has not been seriously contended during the argument that the United States government is without power to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the General Government demand for their exercise the acquisition of lands in all states. These are needed for forts, armories, and arsenals, for navy yards and light houses, for custom houses, postoffices, and court houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting a sale to the Federal Government the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state governments of the right of eminent domain,-a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the Government in case of a failure of heirs. The right is the off-spring of political necessity; Ed.) p. 755. "So far, however, as the exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority.” 222a Kohl v. United States, 91 U. S. 367. and it is inseparable from sovereignty, unless denied to it by its: fundamental law." Constitutional provisions alone restrain congress or the state legislatures in the adoption of legislation relative to the subject. Unlike some governmental powers, it is one which, in its exercise, can be granted to such agencies as the sovereign may select, limited alone by constitutional provisions. The nature of the agency selected determines the character of the use and as nearly all of the states limit the taking of private property for a public use only, it follows that only such corporations or individuals can be granted the power as are either public or public quasi corporations, quasi public corporations or those engaged in an occupation, the character of which will enable them to exercise the power under the application of the words "a public use.” 223 Municipal corporations and public quasi corporations being subordinate agencies of gov ernment and an integral part of the sovereign are usually vested with the power.224 Other agencies of the state competent to exercise eminent domain need not be considered here. 223 Varner v. Martin, 21 W. Va. 534. See Lewis, Em. Dom. (2d Ed.) § 242. 224 City of Atlanta v. Central R. & B. Co., 53 Ga. 120. A municipal corporation has no power or authority to appropriate the property of the state for the purpose of a public street. Alexander v. City of Baltimore, 6 Gill. (Md.) 391; Brimmer v. Protestant Church of City of Baltimore, 6 Gill (Md.) 391; Brimm v. City of Boston, 102 Mass. 19. State v. Rapp, 39 Minn. 65. "Condemnatory proceedings in the exercise of the right of eminent domain are not civil actions or causes within the meaning of the constitution, but special proceedings, only quasi judicial in their nature, whether conducted by judicial or non judicial officers or tribunals. The propriety of the exercise of the right of eminent domain is a political or legislative, and not a judicial question. The manner of the exercise of this right is, except as to compensation, unrestricted by the constitution, and addresses itself to the legislature as a question of policy, propriety, or fitness, rather than of power. They are under no obligation to submit the question to a judicial tribunal, but may determine it themselves, or delegate it to a municipal corporation, to a commission, or to any otner body or tribunal they see fit. Neither are they bound to submit the question of compensation incident to the exercise of the right of eminent domain to a judicial tribunal." Cross v. City of Morristown, 18 N. J. Eq. (3 C. E. Green) 305; State v. Clarke, 25 N. J. Law (1 Dutch.) 54; Bodine v. City of Trenton, 36 N. J. Law, 198; In re Thompson, 57 Hun (N. Y.) 419; Spring City Gaslight Co. v. Pennsylvania S. V. R. Co., 167 Pa. 6. See, also, those authorities generally |