cannot interfere with its use without adequate indemnity. But, the contrary has been decided. In Massachusetts, an act of the Legislature authorizing the building of a bridge over navigable waters within the limits of the commonwealth, has been held not unconstitutional. The Legislature are to determine when the public convenience and necessity require such an obstruction to navigation, and upon what terms and conditions it shall be allowed. It has power to regulate and control by law, all public highways and navigable waters.* So in Maine, it has been held that the Legislature may lay out a highway or change the course of a public river, when the public convenience requires it, although private rights may be thereby affected. †

We have next to consider another limitation on the general words of the clause under consideration. The constitutional restriction on legislative action in regard to private property, does not prevent the sovereign power from acting upon personal rights that are not vested at the time of the passage of the law. So in regard to the husband's interest in the wife's property, it has been held that as to real property belonging to her at the time of the marriage, he takes, by the rules of the common law, a vested interest which no subsequent legislation can defeat; but as to her future acquisitions they may be regulated by law, in other words, he takes whatever interest, if any, that the Legislature before she is invested with them may think proper to prescribe. All prospective possible rights arising from existing legislation, are liable to be abridged or revoked by future legislation; and consequently they do not conflict with the legislative provisions as to the obligation of contracts, nor with those relating to the inviolability of property. So

* Commonwealth v. Breed, 4 Pick. 464. In this case it was insisted that the act was obtained by fraud. The court said, "If a legislative act may be avoided for this cause, yet fraud is always a question of fact peculiarly within the province of a jury, and cannot be inferred by the court." The question whether and to what extent it can be shown that a given legislative act was obtained by fraud, seems still open. In regard to strictly private bills, strong arguments may be urged; but there seems, even in these cases, great difficulty in asserting the

power of the judiciary over the subject. See Stark v. M'Gowan, 1 Nott & M'Cord R. 400, n.

Spring v. Russell et al. 7 Greenleaf, 292; where held that a plaintiff had no right of action against certain canal proprietors who, under the authority of the Legislature, had turned the channel of Saco river, and thus prevented the plaintiff from floating his logs down the river, as he otherwise would have done.

Sleight v. Read, 18 Barbour, 159. White v. White, 5 Barb. 474; Blood v. Humphrey, 17 Barb. 660.

again in regard to mere inchoate rights, as of dower during coverture, the right can be divested or regulated by an act of the Legislature, at any time during the husband's life.*

Having arrived, therefore, at the result that the constitutional restrictions upon the power of eminent domain do not apply to those branches of it which regulate taxation and police enactments, nor affect rights not actually vested, we have next to observe that the power to take is universal and absolute; it applies to every species of property, and the Legislature is the sole judge of the exigency calling for the interposition of its authority.

First, all property can be taken, no matter whether real or personal, whether susceptible of manual possession or a mere chose in action. So in Pennsylvania, it has been held, where land is taken for a railroad, that the interest which tenants hold under a covenant for a renewal of their leases, is a proper subject of compensation. Thus a franchise to build and maintain a toll-bridge, may be appropriated, and the right of an incorporated company to maintain such a bridge under a charter from a State, may, under the right of eminent domain, be taken for a highway; and so of a railroad. So too in Vermont, it has been decided that an act of the Legislature authorizing the Supreme and County Courts to take the franchises of a turnpike corporation for a public highway, on making compensa tion, is constitutional. So in New Hampshire, it has been held that the franchises of a corporation may be taken by vir tue of the exercise of the power of eminent domain.¶ (a)

461.

*Moore v. City of New York, 4 Sandf. How. 83; Boston and Lowell R. R. Corp. v. Salem and Lowell R. Co. 2 Gray, 1.

North Penn, R. R. Co. v. Davis, 26 Penn. R. (2 Casey) 238.

West River Bridge v. Dix, 6 How. 507; Richmond F. and P. R. R. v. Louisa R. R. 13

Armington et al. v. Barnet et al. 15 Verm. 375; see the sagacious remarks of Mr. J. Redfield, in this case, on the Charles River Bridge Case, 11 Peters, 539.

Backus v. Lebanon, 11 N. H. R. 19.

(a) What can be Taken.-All private property, except money, seems to be subject to the right. The following are examples and illustrations. Buildings: Wells v. Somerset &c. R. R. 47 Me. 345. Timber, stone, and materials for highways, as well as land: Eldridge v. Smith, 34 Vt. 484; Watkins v. Walker Co. 18 Tex. 585; Bliss v. Hosmer, 15 Ohio, 44; Jerome v Ross, 7 Johns. Ch. 315; Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569. Streams of water: Gardner v. Newburg, 2 Johns. Ch. 162. Franchises, corporate or otherwise: Red River Bridge v.

to

As the power to take is universal, so it is absolute; that is say, the Legislature are the sole judges of the existence of the exigency which demands the sacrifice of the rights of individuals. "I admit," says Mr. Chancellor Walworth, "that the Legislature are the sole judges as to the expediency of exercising the right of eminent domain for the purpose of making public improvements either for the benefit of the inhabitants of the State generally, or of any particular section thereof."* "It is the undoubted and exclusive province of the Legislature," says the Supreme Court of the State of Maine, " to decide when the public exigencies require that private property be taken for public uses." † (a)

* Varick v. Smith, 5 Paige, 160.

Spring v. Russell, 7 Greenl. 292.

Clarksville, 1 Sneed (Tenn.) 176; In re Kerr, 42 Barb. 119; White River Turnpike Co. v. Vt. Cen. R. R. 21 Vt. 590; Forward v. Hampshire &c. Canal Co. 22 Pick 462; Springfield v. Conn. R. R. R 4 Cush 63; Central Bridge Co. v. Lowell, 4 Gray, 474; Boston Water Co. v. Boston &c. R. R. 23 Pick. 360; State v. Noyes, 47 Me. 189; Crosby v. Hanover, 36 N. H. 404; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Chesapeake &c. Canal Co. v. Baltimore &c. R. R. 4 Gill & J. 1; Newcastle &c. R. R. v. Peru &c. R. R. 3 Ind. 464.

One railroad may be authorized to cross another on making compensation. Baltimore &c. R. R. v. Union R. R. 35 Md. 224; and a street may be laid out across a railroad by a municipality under its general powers to lay out ways, but cannot, without express grant of authority, be made to destroy or greatly injure the franchise. Hannibal v. Hannibal & St. Jo. R. R. 49 Mo. 480.

Though the franchise and property of a corporation may be taken, its real property situate in another State cannot be. Crosby v. Hanover, 36 N. H. 404.

All property can be taken. Bailey v. Miltenberger, 31 Penn. St. 37; People v. Mayor, 32 Barb. 102.

Property may be taken even though the owner is under disabilities. East Tenn. R. R. v. Love, 3 Head, 63.

(a) The Question what is a Public Use is a Judicial one.-There are dicta holding that the Legislature has absolute power to determine that a given purpose for which it authorizes private property to be taken is a public use. It is strange that any respectable judge should have expressed such an opinion, because it emasculates the constitutional safeguard, and places private property at the mercy of the Legislature. In fact, if this opinion were correct, the conceded doctrine that the Legislature cannot authorize private property to be taken for a private use, would be overthrown. But these dicta do not truly state the law. It is now settled that, while the Legislative discretion is absolute as to the expediency or necessity of exercising the power if the use is public, the Legislature cannot finally determine whether the use is public; that question is a jud.cial one to be answered by the courts. Since the contrary dictum of Chancellor Walworth in an early case, which has been carelessly repeated by other judges, this subject has been carefully examined by able courts, and has

In New York, it has been decided that an act authorizing commissioners to enter upon and appropriate the lands of individuals for the purpose of draining a swamp, is a lawful exercise of the power of eminent domain, and the taking of such lands as far as is necessary, is a lawful taking of the same for public use. It is for the Legislature to judge of the degree of the necessity which exists for the exercise of the right of eminent domain; and the courts will not interfere to restrain the commissioners by injunction, unless they are violating the plain and manifest intent of the statute, or are proceeding in bad faith.* (a)

* Hartwell v. Armstrong, 19 Barb. 166. But the condition of providing a full compensation to the owner, is fundamental and imperative; and where an act authorizing the draining of a swamp, provided that the damages or compensation to the owners of lands taken, should be made collectable and payable by assessing the same on the several owners of the land drained, according to the number of acres respectively owned by each, -it was held that this was not the just compensation required by the Constitution, because the burden ought to be borne by the

public at large benefited by the improvement, and because the apportionment by area of surface was inequitable; and the act was held void. The constitutionality of a law to drain wet lands at the expense of others, is discussed in Woodruff v. Fisher, 17 Barb. 224; and it was intimated that unless the work was for the public good and not for private benefit, the act could not be sustained; but it was said that perhaps after such an act of legisla tion, it is to be presumed that the work will be beneficial to the owners of the lands generally.

been put at rest. Indeed, every decision holding a statute invalid, on the ground that the Legislature cannot take private property for a private use, involves the same doctrine. Tyler v. Beacher, 44 Vt. 648; Loughbridge v. Harris, 42 Geo. 500; Concord R. R. v. Greely, 17 N. H. 47, 57, 61; Talbot v. Hudson, 16 Gray, 417, 421; Bankhead v. Brown, 25 Iowa, 540; Sadler v. Langham, 34 Ala. 311, 326–328; Coster v. Tide Water Co. 3 C. E. Green (N. J.) 54, 63; Harris v. Thompson, 9 Barb. 350, 362; Matter of Townsend, 39 N. Y. 171, 174, 181. The true doctrine was very accurately and comprehensively stated by Mr. Justice Woodruff in the case last cited, at page 174 of the report: "It has indeed been said that the right of eminent domain implies the right in the sovereign power to determine the time and occasion and as to what particular property it shall be exercised. Hayward v. Mayor &c. 7 N. Y. 325. This can hardly be supposed to import that the Legislature can, by its mere declaration, override the Constitution; that by declaring the use to be public, when it is within the Constitution a private use, it can authorize the property of one citizen to be taken from him and given to another, for a compensation to be ascertained in the manner above stated; but only that, where the use for which the property is desired is in its nature public, the Legislature are the supreme and final judges of the question, whether the public necessity or benefit is such as to call for the exercise of the power; whether the time is a fitting one; what particular property may be taken, and in what manner in respect to the instrumentalities to be employed for the purpose-whether State officers, corporations, or individuals. All these are purely matters of discretion within the exclusive cognizance and jurisdiction of the Legislature, and in those matters I apprehend no court can review its action."

(a) The Necessity, Expediency, or Propriety of the Taking.-If the use be a public

Thus far we have observed that the clause in regard to private property has no effect upon legislative supremacy in

one, the decision of the Legislature as to the necessity, expediency, or propriety of the taking, and as to the manner and instruments of the taking, whether by the State itself, or by individuals or corporations to whom the authority is delegated, is final. Gilmer v. Lime Point, 18 Cal. 229; Ford v. Chicago &c. R. R. 14 Wisc. 609; People v. Smith, 21 N. Y. 597; Matter of Albany St. 11 Wend. 149; Bankhead v. Brown, 25 Iowa, 540; Hays v. Risher, 32 Penn. St. 169; North Mo. R. R. v. Lackland, 25 Mo. 515; North Mo. R. R. v. Gott, 25 Mo. 540; Concord R. R. v. Greely, 17 N. H. 47; Matter of Townsend, 39 N. Y. 174; Contra Costa R. R. v. Moss, 23 Cal. 323; Coster v. Tide Water Co. 3 C. E. Green, 54; State v. Noyes, 47 Me. 189. The Legislature may itself lay out a particular way, and its decision is final. Haverhill Bridge v. County Commrs. 103 Mass. 120; see Matter of Central Park, 51 Barb. 277; Lewis County v. Hayes, 1 Wash. T. 128.

The owner is not entitled to notice or hearing on the question of taking. People v. Smith, 21 N. Y. 595.

Where the power has been delegated by the Legislature, the decision of the person or corporation to whom the delegation is made, as to the expediency, etc., of the taking, is in general final. Hannibal v. Hannibal & St. Jo. R. R. 49 Mo. 480; and this decision of the depositary of the power is in general final as to the quantity to be taken, if the purpose be a public use, unless perhaps in case of gross excess; but whether the purpose for which this depositary seeks to take the land is a public use, is a judicial question, and the decision of the depositary is not final. Eldridge v. Smith, 34 Vt. 484. In this case the railroad company having the general power delegated to it, sought to condemn land for a manufactory of cars, and for dwellings for its operatives, and the court held that it was transcending its delegated authority. But in another case it was held that a railroad company, under its general delegation of authority, might condemn land for its depots, engine houses, and repair shops. Han. & St. Jo. R. R. v. Muder, 49 Mo. 165; Chicago &c. R. R. v. Wilson, 17 Ill. 123; Low v. Galena &c. R. R. 18 Ill. 324; Giesey v. Cincinnati &c. R. R. 4 Ohio, N. S. 308; New York &c. R. R. v. Kip, 46 N. Y. 546. This subject was carefully considered and fully discussed in a recent case in New York. A railroad company was acting under a statute which authorized it to take land "for any purpose necessary to the operation of such railroad." It terminated at Whitehall, at the head of Lake Champlain, and owned land covered by its track, depots, docks, etc. It sought to acquire additional lands for buildings, docks, etc., “for a certain anticipated increase of business" stated in its petition. There was no pretence that the existing business of the railroad demanded the additional land, but it was claimed in the petition that by certain charters granted in Canada, and certain arrangements therein made, it was very probable that there would be a great increase of business through Lake Champlain, and that to do the business when it came the land sought to be taken would be necessary, and that it was expedient to take it then. On appeal from an order appointing commissioners, the court held that by the true construction of the statute delegating the power to take land, it was the province of the court to determine whether the taking was necessary for the uses of the corporation, and that the proposed taking in this instance was not necessary. The court said (p. 146): “It may be safely asserted that the acquisition of lands for the purpose of speculation or sale, or to prevent interference by competing lines or