for public uses by condemnation may be a suit at common law, jurisdiction of it is vested in the Circuit Court. That it is a "suit" admits of no question. In Weston v. Charleston, 2 Pet. 464, Chief Justice Marshall, speaking for this court, said, "The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various; but, if a right is litigated in a court of justice, the proceeding by which the decision of the court is sought is a suit." A writ of prohibition has, therefore, been held to be a suit; so has a writ of right, of which the Circuit Court has jurisdiction (Green v. Liter, 8 Cranch, 229); so has habeas corpus. Holmes v. Jamison, 14 Pet. 564. When, in the eleventh section of the Judiciary Act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute; but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land in virtue of the government's eminent domain, and de-➖ termining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right. It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is in its nature at least quasi judicial. Certainly no other mode than a judicial trial has been provided.

It is argued that the assessment of property for the purpose of taking it is in its nature like the assessment of its value for the purpose of taxation. It is said they are both valuations of the property to be made as the legislature may prescribe, to enable the government, in the one case, to take the whole of it, and in the other to take a part of it for public uses; and it is argued that no one but Congress could prescribe in either case that the valuation should be made in a judicial tribunal or in a judicial proceeding, although it is admitted that the legislature might authorize the valuation to be thus made in either case. If the supposed analogy be admitted, it proves nothing. Assessments for taxation are specially provided for, and a mode is prescribed. No other is, therefore, admissible. But there is no special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law; and hence, as the government is a suitor for the property under a claim of legal right to take it, there

appears to be no reason for holding that the proper Circuit Court has not jurisdiction of the suit, under the general grant of jurisdiction made by the Act of 1789.

The judgment of the Circuit Court is affirmed1 [FIELD, J., dissented on certain incidental points.]

IN Van Brocklin v. Tennessee, 117 U. S. 151 (1886), GRAY, J., for the court, in deciding that lands, in a State, belonging to the United States, which had been bid in by the United States at auction, in default of payment of direct taxes by the former owner, could not be taxed by the State, commented upon a decision of MCLEAN, J., in U. S. v. R. R. Bridge Co., 6 McLean, 517, and said: "The question in issue in that case was not of the State's right of taxation, but of its right of eminent domain for the construction of roads and bridges. The decision of the learned justice in favor of the validity of the exercise of that right by a State over lands of the United States, without the consent of the United States, manifested either by an express Act of Congress or by the assent of a department or officer vested by law with the power of disposing of lands of the United States, appears to have been based upon the theory that the United States can hold land as a private proprietor, for other than public objects, and upon a presumption of the acquiescence of Congress in the State's exercise of the power as tending to increase the value of the lands; and it finds some support in dicta of Mr. Justice Woodbury, in à case in which, however, the exercise of the power by the State was adjudged to be unlawful. United States v. Chicago, 7 How. 185, 194, 195. But it can hardly be reconciled with the views expressed by Congress, in Acts concerning particular railroads, too numerous to be cited, as well as in general legislation. Acts of August 4, 1852, ch. 80, March 3, 1855, ch. 200, 10 Stat. 28, 683; July 26, 1866, ch. 262, § 8, 14 Stat. 253; Rev. Stat. § 2477. When that question shall be brought into judgment here, it will require and will receive the careful consideration of the court." 2

1 Compare Cherokee Nation v. So. Kans. Ry. 135 U. S. 641, 656, Twombley v. Humphrey, 23 Mich. 471 (1871), In re Sec. Treasury, 45 Fed. Rep. 396 (U. S. C. C. S. D. N. Y. 1891), U. S. v. Engeman et al. 45 Fed. Rep. 546 (U. S. Dist. Ct. E. D. N. Y. 1891) - ED.

2 See Prop'rs Mt. Hope Cem. v. Boston et al., 158 Mass. 509 (1893). — ED.

VOL. I. 61

THE PEOPLE, EX REL. HERRICK ET AL., v. SMITH.

NEW YORK COURT OF APPEALS. 1860.

[21 N. Y. 595.]

APPEAL from a judgment of the Supreme Court. The relators sued out a certiorari, for the purpose of reviewing an order of the county judge of Suffolk County, whereby he reversed an order of the commissioners of highways of the town of Riverhead, refusing to lay out a highway in that town, pursuant to a petition of twelve freeholders, — and proceeded to lay out such highway. The relators are owners and occupants of a part of the lands through which the highway, so laid out, runs; which lands will have to be appropriated for its track. The single ground of error relied on was, that no notice was served on the relators of the proceedings, on the appeal, or of the hearing before the county judge. The Supreme Court, being of opinion that such notice was not required by law, affirmed the order of the judge, and from this judgment of affirmance the present appeal was taken by the relators. The case was submitted on printed arguments.

Miller & Tuthill, for the appellants.

William Wickham, for the respondent.

DENIO, J. The subject of highways and bridges on Long Island is regulated by a statute passed in 1830, entitled "An Act regulating Highways and Bridges in the Counties of Suffolk, Queen's and King's.” (ch. 56.) The system, in its general features, is similar to that established by the Revised Statutes for other parts of the State; but there are some discrepancies, and upon them, I think, the question in the present case may turn. By the Long Island Act, the commissioners have power to lay out new roads without the consent of the owners of the land through which they may run, upon the petition of twelve freeholders of the town, verified by oath or affirmation. (§§ 2, 47.) Nothing is said respecting their giving notice to any one of the hearing of the application before them. Every person conceiving himself aggrieved by a determination of the commissioners, either in laying out, or refusing to lay out, a highway, may appeal to three judges of the Court of Common Pleas. (§ 66.) This jurisdiction is now vested in the county judge under the present Constitution. (Laws, 1847, p. 642, § 27.) Where the determination appealed from is against an application for laying out a road, the judge is to give notice of the time and place of hearing the appeal, to the commissioners by whom such determination was made; and where the commissioners' determination was in favor of the application, notice is not only to be given to the commissioners, but to one or more of the applicants for the road. ($ 69.) The proofs and allegations of the parties are to be heard, and where the appeal is from an order refusing to lay out a road, the judge

is to lay it out in the same manner in which commissioners are directed to proceed in like cases. (§§ 71, 74.)

It will thus be seen that the only notice which the statute requires to be given, in a case like the present, is of the time and place of hearing the appeal, and that such notice is only required to be given to the commissioners who made the order appealed from. If the commissioners had been required to give any notice of the hearing before them, then, when the judge came to lay out the road, in consequence of his reversal of the order of the commissioners, he ought to give the same notice, because he is required to proceed, in the performance of that duty, in the same manner in which the commissioners were directed to proceed when the case was before them; but in the absence of any provision for notice of the hearing before the commissioners, no such duty is required of the judge. It follows that, if the relators, as owners and occupants of the land which was to be taken for the road track, were entitled to notice of the hearing before the judge, it is in consequence of some general principle of law, and not because it is required by any provi sion of the statute. This is the view of the matter taken by the appellant's counsel, for he expressly admits in his printed argument that there is nothing in the Act requiring notice to be given to the land

owners.

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 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 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 legis

lative 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. The People v. The Mayor of Brooklyn, 4 Comst. 419; Taylor v. Porter, 4 Hill, 140; Wynehamer v. The People, 3 Kern. 378.

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 proceeding 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 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 shall in its discretion prescribe. In the case before us 'the Act declares that the judge shall give notice to the commissioners of highways whose order is appealed from, and it is silent as to notice. to any other person. The appellants and the commissioners are the only parties who are required to be convened on the hearing before the judge, or to have notice of that hearing, and it is their proofs and allegations only which the judge is obliged to hear. It was doubtless considered that the commissioners, who had officially decided against the Act which the appellants were seeking to promote, would sufficiently represent the views upon that side of the question. But if we should think it was discreet that the land-owners should have been furnished with notice and allowed to participate, still the Act furnishes the rule, and the court has no power to change it.

The counsel for the appellant relies upon the case of The People v. The Judges of Herkimer, 20 Wend. 186, where it was held that a written notice of a hearing upon appeal before the judges in a case like the present, which was governed by the Revised Statutes, ought to be