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any other. Such property is sometimes called the domain of the State ;' if this name be adopted, we must inark a distinction between the domain of the State and the power of the State over it, on the one hand, and the Right of Eminent Domain on the other, which is the sovereign right of taking private property for public purposes.
And again, the right in question is not that of taxation, which is simply the right of apportioning and collecting with as much equality as may be, such charges as may be necessary to defray the expenses of government. The end of this right is the payment of the common expense necessary to the maintenance of government; to which each one ought to contribute his proportion, because the revenue of the State can coine in general from no other source than the property of its inhabitants, and it can be collected on no just principle other than one of equality. And hence the right of taxation calls for no specific article of property, unless it be money, which is always an ample satisfaction of its demands.
Still further, the Right of Eminent Domain is not that of regulating and restricting the use of property.3 Such a right must exist, and is implied in that supreme office of government, the securing every man in the due enjoyment of his life and property. But it touches only the use of property, and so is not the right un. der discussion.
Nor is this to be confounded at all with the common law right of necessity,4 under which any body may destroy property when urged by an overwhelming necessity; e. g. may tear down a house to stay a conflagration. For this right belongs 10 private individuals, or may belong to them, and all the State has to do in such a case is, to render the plea of overwhelming necessity a sufficient justification before the law.5
And finally, it is important to observe that the Right of Eminent Domain cannot properly be regarded as a right of property which the State has in the possessions of its citizens ; 6 a view which has been insisted on, and which is well presented in the confident ex. clamation of a subject of the Roman empire : "Erquid Cæsar non suum videat?”? It is true that the legal meaning of the term Domain (Dominium) is property; 8 it is also true that such was
8 2 Pars. Cont. 519.
the meaning attached to the word by Grotius, who originated the name of Eminent Domain as applied to the branch of sovereignty now under consideration. But it is manifestly inconclusive to argue from this that the State has indeed a right of property in the possessions of every man in the community; for although Grotius originated the name, yet he did not originate that for which the name stands; and the name therefore does not necessarily fix the character of the right itself.
Nor does the general adoption of that name make for this idea of a right of property ; since that adoption was made under protest against such an implication,3 and that too by writers who differed in no respect from Grotius in their exposition of the doctrine. They employed this term, Eminent Domain, because, as Puffen. dorf said, so long as men were agreed upon what was indicated by a name, it seemed of little consequence what that name was. And so it appears that the peculiar force of the term Domain, need have very little weight in ascertaining the nature of our subject, since the right itself, as explained and set forth by the author of that term, differs not at all from the idea of it universally received since his day and at the present time.
The question comes, then, simply to this, whether the Right of Eminent Domain, being such in its practical aspect as all are agreed upon, can be best explained on the theory of a supreme right of property residing in the State. Ought this right of taking private property to be vested upon a higher right of property inhering in the State ?
Several objections to such a view present themselves, and seem to be decisive against it.
(1.) If this supreme right of property is to be regarded as an absolute right, it is clear that it cannot exist at all times; for then it would be inconsistent with any theory of free government. It can only exist to the end of satisfying the public exigencies, and is limited by them. Its existence, then, must depend upon the occurrence of a public exigency; at no other time can there be said to be any Right of Eminent Domain, understood as an absolute right of properiy. This theory, then, would reduce the Eminent Do. main to nothing at all in the intervals of the public exigencies ; and so it would give us an intermittent right, one that comes and goes with the coming and going of these exigencies, instead of a fixed, perpetual, inseparable attribute of sovereign power.
It is sometimes said that all private property is held from the
4 Puff. lib. 8, c. 5, s. 7; Heinecc. El. J. et N. lib. 2, c. 8, s. 168, n. 5 Grot. De Jure B. et P. lib. 3, c. 19, s. 7.
State. This can only be true in the sense that all property is held under the laws of the State ; and accordingly, that all conditions and limitations or restraints annexed to property by the law, or necessarily implied in the existence and acknowledgment of the law, must stand as indicating the rights appertaining to property. But beyond this, everything is determined by the law of nature. Where then shall we find room for such a condition as this to be affixed to property, viz. that on the occurrence of a public exigen. cy demanding it, it shall, ipso facto, leave the citizen and vest in the State ? Such a condition is neither necessary, nor natural, nor in harmony with the received ideas of property.
(2.) And again, the necessity of making compensation when private property is taken, seems to be at war with this idea. For if the property, on the happening of a public exigency, is, ipso facto, the government's, why make any compensation ?
(3.) But if it be said that the right of property is a contingent one in the intervals of the public exigencies, and become absolute when those exigencies occur, then we reply, that the idea is too artificial; it is complicated, difficult, fruitless, and unnecessary.
2. Having seen what the Right of Eminent Domain is not, we come now to consider what it is.
The Right of Eminent Domain is that attribute of sovereignty by which the State may take, appropriate, or devest private property whenever the public exigences demand it; or, according to the usual definition, it is the right of taking private property for public purposes. And to this right the obligation always attaches, of making just compensation for the property taken.2
The peculiar features of this right are:
(1.) That it authorizes the taking of some specific article of property for which there can be no composition or sufficient substitute ; and
(2.) That it has annexed to it, as an inseparable incident, the obligation of making just compensation.3
By our definition, it is the right of taking, appropriating, or devesting property ;4 and so is distinguished, on the one hand, from a right of property, and on the other, from a mere right of regulating the use of property.
It can only be exercised where some specific subject matter of property is required, for which there can be no sufficient substitute ; and herein it is distinguished from the right of taxation. Thus, if the State takes a piece of land for a public building, in virtue of the Right of Eminent Domain, it is for a building which must stand
on that particular spot; or if for a highway, it is for one which must run over that particular land; or for an aqueduct, it is for one which can take no other course than over the land in question. In all these cases money will not serve as a substitute; the public necessities call for specific pieces of property. Again, the right is distinguished from that of taxation, in that the property taken under it is taken without any reference to collecting the owner's share of the common public expenses ; and also in this, that it operates upon individual parties, while the right of taxation deals with the whole community, or with a special class of persons in the community, on some rule of apportioriment ;' and finally, when the Right of Eminent Domain is exercised, compensation must be made to the private party with whom the State is dealing, wherein this right is distinguished from the right of taxation, and from all other rights of sovereignty. Here the sovereign touches the limit of his power, and confesses a higher authority in owning a natural right of property and its supreme obligations. What is taken under this right, is regarded as so much above or aside from the owner's share of the common expenses ;3 and since it is mani. festly unjust that he should be compelled to contribute more than the other members of the community, he must be reimbursed from that common fund to which all contribute, himself as well as the rest.4
3. From what has now been said, it is apparent that private property cannot be taken at all times, por at any and every time when the sovereign may choose. The question comes, therefore, when can it be taken ?
And we reply, private property may be taken by the State whenever a public exigency requires it.6
But what is to be deemed a public exigency? We shall take up the discussion of this question under another head of our subject; it will be enough for the present purpose to indicate by whom this question is to be decided, without entering upon the principles which should govern the decision.
With whom, then, does the decision of this question lie?
If we suppose the Right of Eminent Domain to remain with the State, it is iinpossible to place it elsewhere than in the discretion of that body ; the State itself must decide, as the final and only judge.
And when the rights of the State are awarded to the representatives and agents of this sovereign body, it may put such limita. tions upon the exercise of them as may seemn good. In the par
ticular under consideration, it may specify what shall or shall not be deemed a public exigency; or it may give to one body of officers the exercise of the Right of Eminent Domain, and to another the decision of the question in hand ; but if no such limitation or division of powers be indicated, and this right be delegated to a certain body of officers, that body must be holden to be the full representatives of the sovereign on this head, and to have the same power of deciding when the right may justly be exercised.
In strictly constitutional governments, however, inasmuch as the legislature, being the body which holds the Right of Eminent Domain, is not at the same time entrusted with the full powers of sovereignty, it must limit all its action by the boundaries set up in the constitution; and it falls to the judiciary to declare all legislative acts void that come in conflict with that instrument, or overstep the limits which it assigns to the legislative branch. Therefore, just as the judiciary in such governments may declare a legislative act void as being of a judicial character, on the same principles (it would seem) it may declare such an act void, as attempting to appropriate private property, or to transfer it from one private party to another, under cover of a public exigency, which clearly has no existence.2
If, however, there be a public exigency, or if there be room to say that any public advantage is to be gained by the appropriation of private property, or its transfer from one individual to another, then it would seem that the discretion of the legislature could not be controlled in the absence of constitutional provision) by any power short of the supreme power of the sovereign. For the judiciary may not substitute their discretion for that of the legislature, nor exercise it at all in a matter entrusted to the sole discretion of another department.3
With these explanations, then, it must be concluded that in the United States it is the exclusive province of the legislature to say when a public exigency has arisen ;4 and so to summon the imperial Right of Eminent Domain out from that body of sovereign power, where at other times it exists, indeed, but slumbers, into light and life.
4. It remains under the present general head of our subject, to take some particular notice of that remarkable feature of it by which the State is obliged to make compensation for the property taken.
1 Lindsay v. Com'rs, 2 Bay, 38; R. R. Co. v. Davis, 2 D. & B. 451. • 2 Kent's Com. 340 ; Varick v. Smith, 5 Paige, 137; Beekman v. R. R. Co., 3 Paige, 45; Hoke v Henderson, 4 Dev.1; Bennett v. Boggs, 1 Baldw. C. C. 60); Wilkinson v. Leland, 2 Pel 627.
3 Armington v. Burnet, 15 Verm. 745 ; Cochran v. Van Gorlay, 20 Wend. 365 ; Can. Co. v. R R Co., 4 Gill & J.1; Hoke v. Henderson, 4 Dev. 1; R. R. Co v. Davis, 2 D. & B. 451.
4 2 Kent's Com. 310; Beekman v. R R. Co., 3 Paige, 45; Hartwell v. Armstrong, 19 Barb. 166; Mill Dam Co. y. Codman, 12 Pick. 467 ; 7 Greenl. 273 ; Rawle on Const. 133.