Front Page Titles (by Subject) § 140.: Exercise of power regulated by legislature.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2
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§ 140.: Exercise of power regulated by legislature.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Exercise of power regulated by legislature.—
The exercise of this right is in the first instance reposed in the legislature. Until the legislature by enactment determines the conditions under which, and the agencies by which, the power of appropriation may be exercised, there can be no lawful appropriation of lands to public purposes. The exercise of the right is a legislative act, and requires no judicial confiscation of the land, in order to divest the private owner of his title.1 Except so far as the exercise of the power may be limited and controlled by provisions of the constitution, the necessity for its exercise is left to the legislative discretion. The courts cannot question the necessity for the taking, provided the land is taken for a public purpose. The legislative determination of the necessity is final, and is not subject to review by the courts.
The following quotation, from an opinion of Judge Denio, of the New York Court of Appeals,2 will be sufficient to explain the reasons by which the exclusion of this question from judicial investigation, and the consequent denial to the property owner of the right to be heard in his behalf, may be justified. The learned judge says: “The question then 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 the opinion that the State is not under any obligation to make provision for a judicial contest upon that question. The only part 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 these 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 appropritaed 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 domain stands on the same ground with the power of taxation. Both are emanations of the law-making power. They are the 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 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 a 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 may prescribe.”1
While the exercise of the right of eminent domain belongs primarily to the legislature, it is not necessary for it directly to make the appropriation to public uses. Since the exercise of the power is only permissible in the advancement of the public interests; if that requirement is complied with, it is also within the legislative discretion to determine whether the confiscation shall be made by it, or by some other corporate body or individual to whom the power is delegated. If the public interests are subserved best, when the right is exercised by a municipal corporation or a railroad company, there can be no constitutional objection to the delegation of the power, for the burden upon private property is not thereby increased. The grant of the power to a town, city, county or school district, needs no special defense, because the delegate of the power is in each instance only a local branch of the general State government. It is the government in every case which makes the confiscation.
But when the power is granted to a corporation composed of private persons, who procure a grant of the power for the purpose of making a profit out of it; although the use to which the land is put may serve to satisfy a public want, there is more or less disposition to question the constitutional propriety of the delegation of the power. But the constitutional objection is deemed to be untenable. In granting to a private corporation the right of eminent domain, the State does not consider the benefit to the stockholders of the corporation, but rather the public benefit derived from the construction and maintenance of a turnpike, a railroad, etc. It is true that government may undertake these public improvements, but it is the prevailing opinion that the best interests of the public are subserved by granting the right to a private corporation which assumes, in return for the right of eminent domain and the private gain to be got out of the business, to satisfy the public want; and the legislature has uniformly been held to hold within its discretion the power of exercising this right or of delegating it, according as the one course or the other seems best to promote the public welfare.1 Not only is this permissible, but it is also held to be constitutionally unobjectionable to delegate to the corporation or individual, along with the exercise of the right of eminent domain, the power to determine finally upon the necessity for the taking, without any judicial investigation.2
But while the power of the legislature to determine the mode and occasion of the exercise of the right of eminent domain is not restricted by constitutional limitations; when the legislature has prescribed the conditions and established regulations for the exercise of the right, the performance of the conditions and the observance of the regulations become an indispensable condition precedent to the exercise of the right, and any failure to comply with the requirements of the statute, will invalidate the confiscation of property. There must be a most scrupulous observance of all those provisions which were designed to serve as a protection to the interests of the land owner.1
It is also recognized as an invariable corollary to this rule, that the grants of the right of eminent domain are to be strictly construed, and the powers delegated are not to be extended by construction beyond the express limitation of the statute. “There is no rule more familiar or better settled than this; that grants of corporate power, being in derogation of common right, are to be strictly construed; and this is especially the case where the power claimed is a delegation of the right of eminent domain, one of the highest powers of sovereignty pertaining to the State itself, and interfering most seriously and often vexatiously with the ordinary rights of property.”1
But there are two constitutional limitations, which are imposed very generally upon the exercise of the right of eminent domain; and it is also a judicial question whether the legislature, in the exercise of the right, has fully complied with their requirements. One has reference to the ascertainment and payment of the compensation to the land owner for the loss of his land, which will be discussed subsequently;2 and the second provides that the private land of the individual shall not be taken in the exercise of the right of eminent domain except for public purposes. It is a legislative question whether the public exigencies require the appropriation; but it is clearly a judicial question, whether a particular confiscation of land has been made for a public purpose.3
“It requires no judicial condemnation to subject private property to public uses. Like the power to tax, it resides with the legislative department to whom the delegation is made. It may be exercised directly or indirectly by that body; and it can only be restrained by the judiciary when its limits have been exceeded or its authority has been abused or perverted.” Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio St. 140, 146.
People v. Smith, 21 N. Y. 595.
See also United States v. Harris, 1 Sumn. 21; Spring v. Russell, 3 Watts, 294; Varick v. Smith, 5 Paige Ch. 137 (28 Am. Dec. 417); People v. Smith, 21 N. Y. 595; Cooper v. Williams, 7 Me. 273; Perry v. Wilson, 7 Mass. 395; Aldridge v. Railroad Company, 2 Stew. & Port. 199 (23 Am. Dec. 307); O’Hara v. Lexington, etc., R. R. Co., 1 Dana, 232; Henry v. Underwood, 1 Dana, 247; Waterworks Co. v. Burkhardt, 41 Ind. 364; Ford v. Chicago, etc., R. R. Co., 14 Wis. 609. But the question whether the appropriation shall be made, may be submitted by the legislature to a vote of the people, or to some court or jury. Iron R. R. Co. v. Ironton, 19 Ohio St. 299. And in Michigan, the submission of the question of necessity to a jury, is made by the constitution an indispensable requirement. Mansfield, etc., R. R. Co. v. Clark, 23 Mich. 519; Arnold v. Decatur, 29 Mich. 11.
Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Stevens v. Middlesex Canal, 12 Mass. 466; Boston Mill Dam v. Newman, 12 Pick. 467; Lebanon v. Olcott, 1 N. H. 339; Petition of Mt. Washington Road Co., 35 N. H. 134; Eaton v. Boston C. & M. R. R. Co., 51 N. H. 504; Armington v. Barnet, 15 Vt. 745; White River Turnpike v. Central R. R. Co., 21 Vt. 590; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 294; Olmstead v. Camp, 33 Conn. 532; Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 73 (22 Am. Dec. 679); Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Whiteman’s Ex’rs v. Wilmington, etc., R. R. Co., 2 Harr. 514; Raleigh, etc., R. R. Co. v. Davis, 2 Dev. & Bat. 451; Swan v. Williams, 2 Mich. 427; Pratt v. Brown, 3 Wis. 603; Gilmer v. Lime Point, 18 Cal. 229.
People v. Smith, 21 N. Y. 595; Lyon v. Jerome, 26 Wend. 484; Matter of Fowler, 53 N. Y. 60; N. Y. Central, etc., R. R. Co. v. Met. Gas Co. 63 N. Y. 326; Hays v. Risher, 32 Pa. St. 169; Chicago, etc., R. R. Co. v. Lake, 71 Ill. 333; North Missouri R. R. Co. v. Lackland, 25 Mo. 515; North Mo. R. R. Co. v. Gott, 25 Mo. 540; Bankhead v. Browny, 25 Iowa 540; Warren v. St. Paul, etc., R. R. Co., 18 Minn. 384.
“The statute says that, after a certain other act shall have been passed, the company may then proceed to take private property for the use of its road; that is equivalent to saying that the right shall not be exercised without such subsequent act. The right to take private property for public use is one of the highest prerogatives of the sovereign power; and here the legislature has, in language not to be mistaken, expressed its intention to reserve that power until it could judge for itself whether the proposed road would be of sufficient public utility to justify the use of this high prerogative. It did not intend to cast this power away, to be gathered up and used by any who might choose to exercise it.” Gillinwater v. Miss., etc., R. R. Co., 13 Ill. 1, 4. See Baltimore, etc., R. R. Co. v. Nesbit, 10 How. 395; Stacy v. Vt. Cent. R. R. Co., 27 Vt. 39; Burt v. Brigham, 117 Mass. 307; Wamesit Power Co. v. Allen, 120 Mass. 352; Lund v. New Bedford, 121 Mass. 286; Nichols v. Bridgeport, 23 Conn. 189; Judson v. Bridgeport, 25 Conn. 426; Bloodgood v. Mohawk, etc., R. R. Co., 18 Wend. 9; Reitenbaugh v. Chester Valley R. R. Co., 21 Pa. St. 100; State v. Seymour, 35 N. J. L. 47; W. Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382; Supervisors of Doddridge v. Stout, 9 W. Va. 703; Decatur Co. v. Humphreys, 47 Ga. 565; Cameron v. Supervisors, etc., 47 Miss. 264; St. Louis, etc., R. R. Co. v. Peters, 68 Ill. 144; Mitchell v. Illinois, etc., Coal Co. 68 Ill. 286; Chicago, etc., R. R. Co. v. Smith, 78 Ill., 96; People v. Brighton, 20 Mich. 57; Power’s Appeal, 29 Mich. 504; Kroop v. Forman, 31 Mich. 144; Moore v. Railway Co., 34 Wis. 173; Bohlman v. Green Bay, etc., R. R. Co., 40 Wis. 157; Delphi v. Evans, 36 Ind. 90; Ellis v. Pac. R. R. Co., 51 Mo. 200; United States v. Reed, 56 Mo. 565; Commissioners v. Beckwith, 10 Kan. 603; St. Joseph, etc., R. R. Co. v. Callender, 13 Kan. 496; Stanford v. Worn, 27 Cal. 171; Brady v. Bronson, 45 Cal. 640; Stockton v. Whitmore, 50 Cal. 554; Paris v. Mason, 37 Texas, 447.
Currier v. Marietta, etc., R. R. Co., 11 Ohio St. 228, 231. See W. Va. Transportation Co. v. Volcanic Oil & Coal Co., 5 W. Va. 382; Bruning v. N. O. Canal & Banking Co., 12 La. Ann. 541; Gilmer v. Lime Point, 19 Cal. 47.
See post, § 143.
Tyler v. Beacher, 44 Vt. 648; Olmstead v. Camp, 33 Conn. 551; Beekman v. Railroad Company, 3 Paige, 45 (22 Am. Dec. 679); Matter of Deansville Cemetery Association, 66 N. Y. 569 (23 Am. Rep. 86); Scudder v. Trenton, etc., Co., 1 N. J. Eq. 694 (23 Am. Dec. 756); Loughbridge v. Harris, 42 Ga. 500; Harding v. Goodlett, 3 Yerg. 40 (24 Am. Dec. 546); Chicago, etc., R. R. Co. v. Lake, 71 Ill. 333; Water Works Co. v. Burkhardt, 41 Ind. 364; Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Bankhead v. Brown, 25 Iowa, 540.