that it is not essential the taking should be to or by the State itself, if by any other agency, in the opinion of the legislature, the use can be made equally effectual for the public benefit. There are many cases in which the appropriation consists simply in throwing the property open to use by such persons as may see fit to avail themselves of it; as in the case of common highways and public parks. In these cases the title of the owner is not disturbed, except as it is charged with this burden; and the State defends the easement, not by virtue of any title in the property, but by means of criminal proceedings when the general right is disturbed. *But in other cases it seems impor- [* 537] tant to take the title; and in many of these it is convenient, if not necessary, that the taking be, not by the State, but by the municipality for which the use is specially designed, and to whose care and government it will be confided. When property is needed for a district school-house, it is proper that the district appropriate it; and it is strictly in accordance with the general theory as well as with the practice of our government for the State to delegate to the district the exercise of the power of eminent domain for this special purpose. So a county may be authorized to take lands for its court-house or jail; a city, for its town hall, its reservoirs of water, its sewers, and other public works of like importance. In these cases no question of power arises; the taking is by the public; the use is by the public; and the benefit to accrue therefrom is shared in greater or less degree by the whole public. If, however, it be constitutional to appropriate lands for mill dams or mill sites, it ought also to be constitutional that the taking be by individuals instead of by the State or any of its organized political divisions; since it is no part of the business of the government to engage in manufacturing operations which come in competition with private enterprise; and the cases must be very peculiar and very rare where a State or municipal corporation could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general for the courts; though where a use has been declared public by the legislature, the courts will hold it to be such unless the contrary clearly appears. Bankhead v. Brown, 25 Ill. 510. See Olmstead v. Camp, 33 Conn. 551; Tyler v. Beacher, 44 Vt. 648; Loughbridge v. Harris, 42 Geo. 500; Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Water Works Co. v. Burkhart, 41 Ind. 364. sentiment is adverse to the construction of railways by the State, and the opinion is quite prevalent, if not general, that they can be better managed, controlled, and operated for the public benefit in the hands of individuals than by State or municipal officers or agencies. And while there are unquestionably some objections to compelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private gain and emolument, so that to them the purpose of the appropri ation is altogether private, yet conceding it to be settled that these facilities for travel and commerce are a public necessity, if the legislature, reflecting the public sentiment, decide that the general benefit is better promoted by their construction through individuals or corporations than by the State itself, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be provided for in the way which is least consistent with the public [* 538] * interest. Accordingly, on the principle of public benefit, not only the State and its political divisions, but also individuals and corporate bodies, have been authorized to take private property for the construction of works of public utility, and when duly empowered by the legislature so to do, their private pecuniary interest does not preclude their being regarded as public agencies in respect to the public good which is sought to be accomplished.1 The Necessity for the Taking. The authority to determine in any case whether it is needful to permit the exercise of this power must rest with the State 1 Beekman v. Saratoga and Schenectady R. R. Co., 3 Paige, 73; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 251; Buonaparte v. Camden and Amboy R. R. Co., 1 Bald. 205; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 1; Lebanon v. Olcott, 1 N. H. 339; Petition of Mount Washington Road Co., 35 N. H. 141; Pratt v. Brown, 3 Wis. 603; Swan v. Williams, 2 Mich. 427; Stevens v. Middlesex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; Gilmer v. Lime Point, 18 Cal. 229; Armington v. Barnet, 15 Vt. 750; White River Turnpike v. Central Railroad, 21 Vt. 590; Raleigh, &c. R. R. Co. v. Davis, 2 Dev. & Bat. 451; Whiteman's Ex'r v. Wilming ton, &c. R. R. Co., 2 Harr. 514; Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. 294; Olmstead v. Camp, 33 Conn. 532; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504. itself; and the question is always one of strictly political character, not requiring any hearing upon the facts or any judicial determination. Nevertheless, when a work or improvement of local importance only is contemplated, the need of which must be determined upon a view of the facts which the people of the vicinity may be supposed best to understand, the question of necessity is generally referred to some local tribunal, and it may even be submitted to a jury to decide upon evidence.1 But parties interested have no constitutional right to be heard upon the question, unless the State constitution clearly and expressly recognizes and provides for it. On general principles, the final decision rests with the legislative department of the State; and if the question is referred to any tribunal for trial, the reference and the opportunity for being heard are matters of favor and not of right. The State is not under any obligation to make provision for a judicial contest upon that question. And where the case is such that it is proper to delegate to individuals or to a corporation the power to appropriate property, it is also competent to delegate the authority to decide upon the necessity for the taking.3 1 Iron R. R. Co. v. Ironton, 19 Ohio, N. s. 299. The constitutions of some of the States require the question of the necessity of any specific appropriation to be submitted to a jury; and this requirement cannot be dispensed with. Mansfield, &c. R. R. Co. v. Clark, 23 Mich. 519; Arnold v. Decatur, 29 Mich. 77. 2 United States v. Harris, 1 Sum. 21, 42; Ford v. Chicago, &c. R. R. Co., 14 Wis. 609; People v. Smith, 21 N. Y. 595; Water Works Co. v. Burkhart, 41 Ind. 364. People v. Smith, 21 N. Y. 597; Ford v. Chicago and N. W. R. R. Co., 14 Wis. 617; Matter of Albany St., 11 Wend. 152; Lyon v. Jerome, 26 Wend. 484; Hays v. Risher, 32 Penn. St. 169; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; Same v. Gott, 25 Mo. 540; Bankhead v. Brown, 25 Iowa, 540; Contra Costa R. R. v. Moss, 23 Cal. 323; Matter of Fowler, 53 N. Y. 60; N. Y. Central, &c. R. R. Co. v. Met. Gas Co., says: 63 N. Y. 326; Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Warren v. St. Paul, &c. R. R. Co., 18 Minn. 384. In the case first cited, Denio, J., "The question is, whether the State, in the exercise of the power to appropriate the property of individuals to a public use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public officers, is obliged to afford to the owners of the property an opportunity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether, under the circumstances of a particular case, the property required for the purpose shall be taken or not; and I am of opinion that the State is not under any obligation to make provision for a judicial contest upon that question. The only part [* 539] *How much Property may be taken. The taking of property must always be limited to the necessity of the case, and consequently no more can be appropri[* 540] ated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the * of the constitution which refers to the subject is that which forbids private property to be taken for public use without compensation, and that which prescribes the manner in which the compensation shall be ascertained. It is not pretended that the statute under consideration violates either of those provisions. There is, therefore, no constitutional injunction on the point under consideration. The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. The constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent do main stands on the same ground with the power of taxation. Both are emanations from the law-making power. They are attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax, or in appropriating the property of a citizen, or of a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or class of persons, or a particular description of property upon some view of public policy, where it could not be said to be taken for a public use. It follows from these views that it is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process. It may allow the owner to intervene and participate in the discussion before the officer or board to whom the power is given of determining whether the appropriation shall be made in a particular case, or it may provide that the officers shall 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 shall prescribe." appropriation is made. When a part only of a man's premises is needed by the public, the necessity for the appropriation of that part will not justify the taking of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain. If, however, the statute providing for such ap- [* 541] propriation is acted upon, and the property owner accepts the compensation awarded to him under it, he will be precluded by this implied assent from afterwards objecting to the excessive 66 By a statute of New York it was enacted that whenever a part only of a lot or parcel of land should be required for the purposes of a city street, if the commissioners for assessing compensation should deem it expedient to include the whole lot in the assessment, they should have power so to do; and the part not wanted for the particular street or improvement should, upon the confirmation of the report, become vested in the corporation, and might be appropriated to public uses, or sold in case of no such appropriation. Of this statute it was said by the Supreme Court of New York: If this provision was intended merely to give to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dispose of the same, there can be no objection to it; but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the appropriation of property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right; and if it is not in violation of the letter of In such case the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. the corporation has been supposed best qualified to take and dispose of such parcels, or goers, as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot; would the power be conceded to exist to take the whole lot, whether the owner consented or not? The quantity of the residue of any lot cannot vary the principle The owner may be very unwilling to part with only a few feet; and I hold it equally incompetent for the legislature to dispose of private property, whether feet or acres are the subject of this assumed power." Matter of Albany St., 11 Wend. 151, per Savage, Ch. J. To the same effect is Dunn v. City Council, Harper, 129. And see Paul v. Detroit, 32 Mich. 108. |