tives of the state, and (iii) the procedure by which these rights and liabilities are enforced." Droit administratif has no right to exist in a country in which there is due process of law or the law of the land, because it assumes that the ordinary courts have no jurisdiction to administer it. Such law is administered by administrative courts (tribunaux administratifs), at the head of which stands in France the Council of State. Under the fatal exception to the law of the land, born of a lamentable misapprehension in Murray v. Hoboken Land & Improvement Company, we are rapidly building up a droit administratif in the United States, despite the noble effort made in the historic case of United States v. Lee, 106 U. S. 196, to make such a result impossible.

CHAPTER IV

FEDERAL POWER OF EMINENT DOMAIN AND DUE PROCESS

§ 101. Power of eminent domain vested in all states, federal as well as single. The term seems to have originated with Grotius. De Jure Belli et Pacis, i, 3, 6, ii, 14, 7. See Bynkershoek Quæstiones I, p. ii, 15. As it is employed by Vattel, it was probably imported into the English language through the Translation of 1760. See Holland, Jurisprudence, p. 377, note I. In Gardner v. Newburg, 2 Johns., c. 162, Chancellor Kent says: "Grotius, Puffendorf and Bynkershoek, when speaking of the eminent domain of the sovereign, admit that private property may be taken for public uses, when public necessity or utility require it." See also Thayer Cas. Const. Law, 945, 947. In Kohl v. United States, 91 U. S. 367, the Court said: "The powers vested by the Constitution in the General Government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories and arsenals, for navy yards and light-houses, for custom houses, postoffices, and court houses, and for other public uses. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. Vatt. ch. 20, 34; Bynk., lib. 2, ch. 15; Kent, Com. 338-340; Cooley, Const. Lim., 584, et seq. But it is no more necessary for the exercise of the powers of a state government than it is for the exercise of the conceded powers of the Federal Government. That Government is a sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the states over the sub

jects to which their sovereignty extends. The power is not changed by its transfer to another holder." In Fletcher v. Peck, 6 Cranch 87, Mr. Justice Johnson, in defining the right of eminent domain, said: "A right which a magnanimous and just government will never exercise without amply indemnifying the individuals, and which perhaps amounts to nothing more than the power to oblige him to sell and convey, when the public necessities require it." In the United States v. Jones, 109 U. S. 513, it was held that as the right is an incident of sovereignty, it requires no constitutional recognition. See also, Calder v. Bull, 3 Dall. 386; Charles River Bridge v. Warren Bridge, 11 Pet. 420.

§ 102. The eminent domain vested in Federal Government paramount. In Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 661, the Court said: "As was said by Mr. Justice Bradley in Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9, 19: "The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, can not avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than the states, in order that it may fully carry out the objects and purposes of the Constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the Constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.' It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several states, and could not exercise

the same power in a territory occupied by an Indian tribe or nation." The paramount right of eminent domain vested in the Federal Government, so far as it effects public waters, was reasserted with great emphasis in the recent case of Greenleaf Lumber Co. v. Garrison, 237 U. S. 251, in which the Court, after a careful review of the authorities, said: "We have recognized that the states have a certain control and management over the navigable streams within their territory, but subject to be superseded by the interference of Congress. Gilman v. Philadelphia, supra; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678. When Congress acts, necessarily its power extends to the whole expanse of the stream, and it is not dependent upon the depth or shallowness of the water. To recognize such distinction would be to limit the power when and where its exercise might be most needed. In Scranton v. Wheeler, 179 U. S. 141, the water was very shallow between the high land and the pier erected in the river by the authority of Congress and which it was contended cut off access to navigability."

§ 103. Paramount right of eminent domain limited by due process. Over and above the paramount right of eminent domain vested in the Federal Government sits the restraining power of the due process clause of the Fifth Amendment, which provides that "No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." If the last emphasizing clause had been omitted, the right to compensation for the taking of private property for a public use would have been complete under the due process clause alone. In construing the North Carolina constitution, which contained no specific provision for compensation, the Court, in Raleigh, etc. R. Co. v. Davis, 2 Dev. & B. L. 451, after referring to the guaranty of "the law of the land," said: "Under the guaranty of this article,

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it has been held, and in our opinion properly held, that private property is protected from the arbitrary power of transfer by one person to another We doubt not that it is also protected from the power of despotic resumption, upon a legislative declaration of forfeiture, or merely to deprive the owner of it, or to enrich the treasury, unless as a pecuniary contribution by way of tax. Though not so obvious, it may also be true that the clause under consideration is restrictive of the right of the public to the use of private property, and impliedly forbids it, without compensation." In Monongahela Navigation Co. v. United States, 148 U. S. 12, a higher court said: "In the case of Sinnickson v. Johnson, 17 N. J. L. 129, 145, cited in the case of Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 178, it was said that 'this power to take private property reaches back of all constitutional provisions; and it seems to have been considered a settled principle of universal law that the right to compensation is an incident to the exercise of that power; that the one is so inseparably connected with the other that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle." And in Gardner v. Newburg, 2 Johns., ch. 162, Chancellor Kent affirmed substantially the same doctrine. In Bauman v. Ross, 167 U. S. 574, the Court said: "In the 5th article of the earliest Amendments to the constitution of the United States, in the nature of a bill of rights, the inherent and necessary power of the government to appropriate property to the public use is recognized, and the rights of private owners are secured by the declaration, 'nor shall private property be taken for public use without just compensation.' The right of eminent domain, as was said by this court, speaking through the Chief Justice, in a recent case, 'is the offspring of political necessity, and is inseparable from sovereignty unless denied to it by the fundamental law. It can not be exercised, except upon condition that just compensation shall be made to the owner; and it is the duty of