Opinion of the Court.

taking will be of public use, but only that it may be. Similar mill acts have been declared void in Alabama, Georgia, Michigan, New York, Tennessee and Vermont, besides being questioned in other States. Moore v. Wright, 34 Ala. 311; Loughbridge v. Harris, 42 Georgia, 500; Ryerson v. Brown, 35 Mich. 333; Hay v. Cohoes Co., 3 Barb. 42; Harding v. Goodlett, 3 Yerger, 41; Tyler v. Beacher, 44 Vermont, 648. So even at the time of the decision in Company v. Fernald, the weight of authority was against its correctness; and the preponderance has greatly increased since. And, finally, it is now settled law in this court of last resort, as well as elsewhere, that a legislature cannot authorize taxes in aid of manufacturing corporations; and a use that is not a public use for the imposition of taxes, is not a public use for the appropriation of property under the right of eminent domain. The very ground upon which the power to tax in aid of manufacturing corporations is denied, is that it is taking a part of the property of the citizen for the private use and benefit of another. How then can the legislature take a much larger part, for the same use, against the will of the owner? Allen v. Jay, 60 Maine, 124; Cole v. La Grange, 19 Fed. Rep. 871; English v. People, 96 Ill. 566; Loan Association v. Topeka, 20 Wall. 655; Parkersburg v. Brown, cited above; Weismer v. Douglass, 64 N. Y. 91.

Mr. George F. Hoar and Mr. B. Wadleigh for defendant

in error.

MR. JUSTICE GRAY delivered the opinion of the court. He recited the facts as above stated, and continued:

The position that the plaintiff in error has been denied the equal protection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. It is only as bearing upon that question, that this court, upon a writ of error to a State court,

Opinion of the Court.

has jurisdiction to consider whether the statute conforms to the Constitution of the State.

The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. Eastman v. Amoskeag Manufacturing Co., 44 N. H. 143. The proceedings in the State court were had under the general mill act of New Hampshire, which enacts that any person, or any corporation authorized by its charter so to do, may erect or maintain on his or its own land a water mill and mill-dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed, by a committee or by a jury, for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N. H. Stat. 1868, ch. 20.

The plaintiff in error contends that his property has been taken by the State of New Hampshire for private use, and that any taking of private property for private use is without due process of law.

is a

The defendant in error contends that the raising of a water power upon a running stream for manufacturing purposes public use; that the statute is a constitutional regulation of the rights of riparian owners; and that the remedy given by the statute is due process of law.

General mill acts exist in a great majority of the States of the Union. Such acts, authorizing lands to be taken or flowed in invitum, for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware and North Carolina, as well as in Massachusetts, New Hampshire and Rhode Island, before the Declaration of Independence; and exist at this day in each of these States, except Maryland, where they were repealed in 1832. One passed in North Carolina in 1777 has remained upon the statute book of Tennessee. They were enacted in Maine, Kentucky, Missouri and Arkansas, soon after their admission into the Union. They were passed in Indiana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, Minnesota, Mississippi, Alabama and Florida, while they were yet Territories, and reenacted after they became States. They were also enacted

Opinion of the Court.

in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia and Georgia, but were afterwards repealed in Georgia. The principal statutes of the several States are collected in the margin.*

*For convenience of reference, the names of the States are arranged in alphabetical order. The Territorial Acts of Indiana and Illinois not being in the Library of Congress, the citations of those acts are taken from Gould on Waters, § 616, and notes.

ALABAMA. Terr. Stats. 1811, 1812, Toulmin's Dig. 1823, tit. 45; Clay's Dig. 1843, p. 376; Code 1852, §§ 2089-2115; Rev. Code 1867, §§ 2481-2508; Code 1876, § 3555-3579.

ARKANSAS. Rev. Stat. 1837, ch. 98; Dig. 1846, ch. 107; Dig. 1858, ch. 114; Gantt's Dig. 1873, ch. 95.

CONNECTICUT. Stat. 1864, ch. 26; Gen. Stat. 1866, tit. 1, ch. 16; Gen. Stat. 1875, tit. 19, ch. 17, pt. 6.

DELAWARE. Prov. Stats. 1719, 1760, 1773, 1 Laws 1700-97, p. 535, appx. pp. 53, 72; Rev. Stat. 1852, ch. 61; Stat. 1859, ch. 538; Rev. Code 1874, ch. 61. FLORIDA. Terr. Stats. 1827, 1829, Duval's Compilation, pp. 51-55; Thompson's Dig. 1847, ch. 10; McClellan's Dig. 1881, ch. 152.

GEORGIA. Stat. 1869, ch 98. Repealed by Code of 1882, § 3018.

ILLINOIS. 2 Terr. Laws 1815, p. 456; Stat. 1819, p. 265; Rev. Code 1827, p. 297; Rev. Stat. 1845, ch. 71; Rev. Stat. 1869, ch. 71; Rev. Stat. 1874, ch. 92; Rev. Stat. 1880, ch. 92.

INDIANA. Terr. Stat. 1807, p. 194; Rev. Laws 1824, ch. 117; Rev. Laws 1831, chap. 1; Rev. Stat. 1838, ch. 1; Rev. Stat. 1842, ch. 48, art. 5; Rev. Stat. 1852, pt. 2, art. 41; Rev. Stat. 1881, §§ 882 & seq.

IOWA. Terr. Stats. 1839, p. 343, 1843, p. 437; Stat. 1855, ch. 92; Rev. Stat. 1860, tit. 11, ch. 54, art. 4; Code 1873, tit. 10, ch. 1; Code 1880, tit. 10, ch. 1. KANSAS. Stat. 1867, ch. 87; Gen. Stat. 1868, ch. 66; Comp. Laws 1879, ch. 66.

KENTUCKY. Stat. February 22, 1797, 1 Littell Stat. 606; 2 Littell & Swigert's Dig. 1822, p. 933; Rev. Stat. 1852, ch. 67; Gen. Stat. 1883, ch. 77.

MAINE. Stat. 1821, ch. 45; Rev. Stat. 1840, ch. 126; Rev. Stat. 1857, ch. 92; Rev. Stat. 1871, ch. 93; Rev. Stat. 1883, ch. 92.

MARYLAND. Prov. Stat. 1719, ch. 15; Bacon's Laws 1765, and 1 Kilty's Laws. Repealed by Stat. 1832, ch. 56.

MASSACHUSETTS. Prov. Stat. 1714, ch. 15, 1 Prov. Laws (State ed.) 729, and Anc. Chart. 404; Stats. 1795, ch. 74, passed February 27, 1796; 1824, ch. 153, February 26, 1825; 1825, ch. 109, February 28, 1826; 1829, ch. 122, March 12, 1830; Rev. Stat. 1836, ch. 116; Gen. Stat. 1860, ch. 149; Pub. Stat. 1882, ch. 190.

MICHIGAN. Terr. Stats. 1824, 1828, 2 Terr. Laws, 192, 699; Stat. 1865, ch. 304; Comp. Laws 1872, ch. 221; Stat. 1873, ch. 196.

MINNESOTA. Terr. Stat. 1857, Pub. Stat. 1849-58, ch. 129; Rev. Stat. 1866, ch. 31; Gen. Stat. 1878, ch. 31.

VOL. CXIII-2

Opinion of the Court.

In most of those States, their validity has been assumed, without dispute; and they were never adjudged to be invalid anywhere until since 1870, and then in three States only, and for incompatibility with their respective Constitutions. Lough. bridge v. Harris (1871), 42 Georgia, 500; Tyler v. Beacher (1871), 44 Vermont, 648; Ryerson v. Brown (1877), 35 Michigan, 333. The earlier cases in Tennessee, Alabama and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerger, 40; Memphis Railroad v. Memphis, 4 Coldwell, 406; Moore v. Wright, 34 Alabama, 311, 333; Bottoms v. Brewer, 54 Alabama, 288; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N. Y. 159.

The principal objects, no doubt, of the earlier acts were grist mills; and it has been generally admitted, even by those courts

MISSISSIPPI. Terr. Stat. 1811, 1812, p. 344; Rev. Code 1824, ch. 65; Rev. Code 1871, ch. 34; Rev. Code 1880, ch. 27.

MISSOURI. Stat. 1823; 2 Rev. Stat. 1825, p. 587; Rev. Stat. 1835, p. 405; Rev. Stat. 1845, ch. 121; Rev. Stat. 1855, ch. 112; Gen. Stat. 1865, ch. 101; Wagner's Stat. 1872, ch. 98; Rev. Stat. 1879, ch. 132.

NEBRASKA. Terr. Stat. 1861-62, p. 71; Rev. Stat. 1866, ch. 36; Gen. Stat. 1873, ch. 44; Comp. Stat. 1881, ch. 57.

NEW HAMPSHIRE. Prov. Stat. 1718, Prov. Laws (ed. 1771), ch. 60; Stat. 1868, ch. 20; Gen. Laws 1878, ch. 190.

NORTH CAROLINA. Prov. Stat. 1758, ch. 5, Revision, 1773, p. 219; Stat. 1777, ch. 28, Laws 1791, p. 343; Stats. 1809, ch. 15; 1813, ch. 19; Rev. Laws 1821, ch. 122, 773, 863; Rev. Stat. 1837, ch. 74; Rev. Code 1854, ch. 71; Battle's Revisal 1873, ch. 72.

OREGON. Stat. December 19, 1865, Gen. Laws 1843-72, p. 679.

PENNSYLVANIA.

(10th ed.). p. 1065.

Stat. March 23, 1803, 4 Smith's Laws, p. 20; Purdon's Dig.

RHODE ISLAND. Col. Stat. 1734, Laws 1744, p. 180; Public Laws 1798, p. 504; Rev. Stat. 1857, ch. 88; Pub. Stat. 1882, ch. 104.

TENNESSEE. Rev. Laws 1809, ch. 23; Compilation 1836, p. 486; Code 1858, 1908-1915; Code 1884, §§ 2651-2661.

VERMONT. Stats. 1866, ch. 12; 1867, ch. 27; 1869, ch. 27; Gen. Stat. 1870, appx. pp. 906, 953, 1025; Rev. Laws 1880, ch. 148, SS 3215-3224.

VIRGINIA Col. Stat. 1667, ch. 4, 2 Henning's Stat. 260; Col. Stat. 1705, ch. 41, 3 Henning, 401; Col. Stat. 1745, ch. 11, 5 Henning, 359; Stat. 1785, ch. 82, 12 Henning, 187; Rev. Code, 1814, ch. 105; Rev. Code 1819, ch. 235; Code 1849, ch. 63; Code 1873, ch. 63.

WEST VIRGINIA. Code 1870, ch. 44, §§ 29-36.

WISCONSIN. Terr. Stat. 1840, ch. 48; Rev. Stat. 1858, ch. 56; Rev. Stat. 1878, ch. 146.

Opinion of the Court.

which have entertained the most restricted view of the legis lative power, that a grist mill which grinds for all comers, at tolls fixed by law, is for a public use. See also Blair v. Cuming County, 111 U. S. 363.

But the statutes of many States are not so limited, either in terms, or in the usage under them. In Massachusetts, for more than half a century, the mill acts have been extended to mills for any manufacturing purpose. Mass. Stat. 1824, ch. 153; Wolcott Woollen Manufacturing Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 Pick. 58, 65. And throughout New England, as well as in Pennsylvania, Virginia, North Carolina, Kentucky, and many of the Western States, the statutes are equally comprehensive.

It has been held in many cases of high authority, that special acts of incorporation, granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a public use. Scudder v. Trenton Delaware Falls Co., Saxton, 694, 728, 729; Boston & Roxbury Mill Corporation v. Newman, 12 Pick. 467; Hazen v. Essex Co., 12 Cush. 475; Commonwealth v. Essex Co., 13 Gray, 239, 251, 252; Hankins v. Lawrence, 8 Blackford, 266; Great Falls Manufacturing Co. v. Fernald, 47 N. H. 444.

In some of those cases, the authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others, for manufacturing purposes, has been considered as resting on the right of eminent domain, by reason of the advantages inuring to the public from the improvement of water power and the promotion of manufactures. See also Holyoke Co. v. Lyman, 15 Wall. 500, 506, 507; Beekman v. Saratoga & Schenectady Railroad, 3 Paige, 45, 73; Talbot v. Hudson, 16 Gray, 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Maine, 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Venard v. Cross, 8 Kansas, 248; Harding v. Funk, 8 Kansas, 315; Miller v. Troost, 14 Minnesota,