one case this has been intimated (61). Probably the same would be held regarding very large exemptions from a general property tax. A progressive income tax might suffer the same fate, though this is more doubtful. The field where progressive taxation has been most frequently applied and upheld is that of inheritance taxes. A differing rate of taxation here has been upheld as between lineal descendants, collateral relatives, and persons unrelated to the decedent; as between legacies of different amounts; and even life estates have been taxed at a different rate according to the relation to the decedent of the person who takes the remainder. Exemptions as high as $20,000 have been held valid (62). Whether the rate may constitutionally be increased with the size of the entire estate, instead of according to the size of the legacy given, has not yet been decided by the Federal courts. It has been admitted to be open to question there, and some state courts have decided this method of progression unconstitutional (63). Considering that the inheritance tax may be viewed either as a tax upon the power to transmit property or to receive it, it would seem that a progressive rate upon the former, measured by the entire value of the estate, would be as valid as a progressive rate upon the latter, measured by the amount of each individual legacy. § 206. Confiscatory taxation. It has often been said (61) Magoun v. Illinois Trust & Savings Bank, 170 U. S., p. 302. (62) Magoun v. Illinois T. & S. Bank, 170 U. S., 283; Billings v. Illinois, 188 U. S., 97. (63) Knowlton v. Moore, 178 U. S., 41, 77; Black v. State, 113 Wis., that "the power to tax is the power to destroy." Doubtless wherever property may be taken outright by the government without compensation, or where an occupation may be prohibited for the public good, the power of taxation may be resorted to to accomplish the same results. All of the cases where confiscatory taxation have been upheld are of this character. Where the right of confiscation or of prohibition does not exist upon other grounds, it is believed that taxation may not be used indirectly to accomplish such results (64). (64) McCray v. United States, 195 U. S., 27, 64; Minot v. Winthrop, 162 Mass., 113, 117. CHAPTER X. DUE PROCESS AND EQUAL PROTECTION OF LAW: EMINENT DOMAIN. § 207. Power of eminent domain and guarantees respecting it. The right of a government to take or destroy private property for the public welfare has been uni versally recognized as one of the inherent powers of sovereignty, and has been exercised by governments from time immemorial. This power has been commonly known as that of "eminent domain" from the Latin name (eminens dominium) given it by a writer, Grotius, in the seventeenth century. Writers upon the subject have recognized that the government owed a moral obligation to make compensation for property taken under this power, and civilized governments in modern times have ordinarily made legal provision for this. The Federal Constitution and most of the state constitutions contain express provisions making this moral obligation legally binding upon their respective governments. The language of the Federal Constitution is typical of all of these "Nor shall private property be taken for public use without just compensation" (1). This clause, however, is a prohibition upon the Federal government only, and there is no corresponding clause (1) Amend. V. 9 in the Constitution expressly forbidding the states to take private property without compensation. When the Fourteenth Amendment was adopted it forbade the states to "take property without due process of law." In 1896 the United States Supreme Court decided that the taking by a state of private property for the private use of another was not due process of law, and hence forbidden by the Fourteenth Amendment (2). The next year it was held that it was also not due process of law to take private property for public use without just compensation. "Due process of law as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation" (3). By this interpretation of the Fourteenth Amendment all of the states, as well as the United States, become legally obliged by the Constitution to make compensation for private property taken for public use. § 208. Various interferences with property distinguished from eminent domain. In a number of instances property may be rendered valueless, destroyed, or even taken for governmental use without this action (2) Missouri Pacific Railway Co. v. Nebraska, 164 U. S., 403. being considered an exercise of the power of eminent domain, for which compensation must be made. The use of property may be so regulated as to make it of little value to its owner, as where the owner of a brewery is forbidden to manufacture beer by a state prohibition law. The keeping of some kinds of property, like fire works, may be absolutely forbidden; diseased cattle may be destroyed against the will of the owner; property may be destroyed to prevent the spread of a conflagration; and property upon the scene of active hostilities may be seized and used by military officers. In none of these cases is compensation required, the first three being justified under the regulative powers of the state, the fourth under the right to preserve other property of much greater value in the face of a pressing danger; | and the last under the war power. § 209. What is a public use? The power of eminent domain can be exercised only in taking property for public use. To take property from A and give it to B for private purposes is mere confiscation, and a taking of property without due process of law. This is illustrated by a Nebraska case, where the state vainly attempted to compel a railroad company to permit private persons to erect private grain elevators upon its right of way (4). Perhaps the leading case upon the question of what constitutes a public use for the purpose of eminent domain is Talbot v. Hudson. A Massachusetts statute had previously authorized riparian owners having good mill sites to erect dams for the purpose of providing water (4) Missouri Pacific Railroad Co. v. Nebraska, 164 U. S., 403, |