19 Wall. 107; Meriwether v. Garrett, 102 U. S. 472; United States v. New Orleans, 98 U. S. 381. In the case last cited the Court said: "The position that the power of taxation belongs exclusively to the legislative branch of the government, no one will controvert. Under our system it is lodged nowhere else. But it is a power that may be delegated by the legislature to municipal corporations, which are merely instrumentalities of the state for the better administration of the government in matters of local concern. When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless its exercise be in express terms prohibited." But no matter whether a state legislature exercises its taxing power absolutely and directly, or indirectly and conditionally through a municipal corporation, it does so subject to that constitutional limitation known as due process of law, which annuls it the moment it attempts to pass the bounds which its principles define. Those principles antedate all American constitutions, and no state legislature has the power to change them. In Davidson v. New Orleans, 96 U. S. 97, the Court said: "But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'No state shall deprive any person of life, liberty, or property without due process of law,' can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application where the invasion of private rights is affected under the forms of state legislation." In Dorman v. State, 34 Ala. 216, the Court said: "If life, liberty, and property could be taken away by the direct operation of a statute, the enjoyment of these rights would depend upon the will and caprice of the legislature, and the provision (of the constitution) would be a mere nullity."

CHAPTER IX

STATE POWER OF EMINENT DOMAIN AND DUE PROCESS-FEDERAL RIGHT OF SUPERVISION

§ 161. Review heretofore made of federal power of eminent domain. In the review heretofore made of the Federal power of eminent domain an effort was made to explain; first the origin and general nature of that power; second, the fact that it is necessarily vested in all states, federal as well as single; third, that as vested in our Federal Government it is paramount to the like power vested in the states; fourth, that such paramount power so vested can only be asserted subject to the limitation embodied in the due process of law clause of the Fifth Amendment amplified and emphasized as it is by the additional provision: "nor shall private property be taken for public use, without just compensation." With such a preface clearly in view it will be easier to explain that just as the paramount power of eminent domain vested in our Federal Government is limited by the due process of law clause of the Fifth Amendment, so the corresponding power vested in the state governments is limited, first, by the appropriate clauses of the state constitutions; second, by the due process of law clause of the Fourteenth Amendment. Only in that way can we reach the all important conclusion that the Federal Supreme Court, in enforcing the due process of law clause of the Fourteenth Amendment, is limited to a review of the proceedings had in the state courts for the appropriation of private property to public uses, in order to determine whether such state proceedings rested upon any rule of law which absolutely disregarded the owner's right to

just compensation. To that Federal right of review this chapter will be specially devoted.

§ 162. Power of eminent domain inherent in states. In Kohl v. United States, 91 U. S. 367, the Court said: "No one doubts the existence in the state governments of the right of eminent domain-a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the Government, either mediately or immediately, and independent of the consideration whether they would escheat to the Government in case of failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. Vatl. ch. 20, 34; Bynk., lib. 2, ch. 15; Kent, Com. 338-340; Cooley, Const. Lun., 584, et seq." In Searl v. School District No. 2, 133 U. S. 553, the Court said: "The Constitution of the state of Colorado provides 'that no person shall be deprived of life, liberty or property without due process of law'; and 'that private property shall not be taken or damaged, for public or private use, without just compensation. 'The circuit court was not dealing with an action of ejection or trespass, but simply with a proceeding in the exercise of the right of eminent domain. That right is the offspring of political necessity, and is inseparable from sovereignty unless denied by its 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 the state, in the conduct of the inquest by which the compensation is ascertained, to see that it is just not merely to the individual whose property is taken, but to the public which is to pay it. Garrison v. New York, 21 Wall. 196, 204; Kohl v. United States, 91 U. S. 367, 371." Approved in Chicago, etc., R. R. v. Chicago, 166 U. S. 238; Bauman v. Ross, 167 U. S. 574; Norwood v. Baker, 172 U. S. 277.

§ 163. Duty of state to guarantee protection to life, liberty and property through due process. An attempt has been made heretofore to explain in some detail the different forms in which chapter 39 of the Great Charter, out of which the modern doctrine of due process of law has arisen, were reproduced in the constitutions of the original states. As there was no common arbiter, no common standard for imitation, apart from the general principles to be drawn from the mother country, there were naturally wide divergences in local usage; wide differences of opinion as to what constituted due process in a given case. On one side of a state line the right to trial by jury in a certain proceeding might exist, while on the other, it might be denied under identical circumstances. And so the state constitutions have naturally differed in their provisions as to eminent domain, and the state courts in the interpretations put upon them. While the general rule prevails that the determination of what is a public use, justifying an appropriation of private property, is purely a legislative function, in certain states there are constitutional provisions declaring the question to be purely a judicial one to be determined "without regard to any legislative assertion that the use is public.' Savannah v. Hancock, 91 Mo. 54; Healy Lumber Co. v. Morris, 33 Wash. 490; McGehee, Due Process of Law, pp. 256, 261. In Massachusetts it has recently been held that under the power of eminent domain a condemnation is warranted for purposes purely aesthetic. An act forbidding the erection of any house around Copley Square in the City of Boston to a height greater than ninety feet, and providing for compensation to all persons damages by such a rule, was upheld as a valid exercise of the power of eminent domain "for the benefit of the public who use Copley Square." Atty.-Gen. v. Williams, 174 Mass. 476, affirmed in Williams v. Parker, 188 U. S. 491. As elabo rated heretofore, prior to the adoption of the Fourteenth Amendment, due process of law was secured to the citizens of the several states by their institutions alone; and

when it was denied them the Federal Government had no power to interfere; the Federal judiciary possessed no right of review whatever.

§ 164. Right to review state action established by Fourteenth Amendment. That amendment did not attempt to disturb the primary duty of the states to provide for the protection of life, liberty and property through the due process of law established by their own constitutions; it was simply intended as an additional guaranty to the freshly created national citizen, upon which he could rely for due process from the Federal Government, in the event that the government of his state failed him. It did not propose to make any radical change in the ancient theory of the relations of the state and Federal Government to each other and of both governments to the people. Slaughter House Cases, 16 Wall. 36. In United States v. Cruikshank, 92 U. S. 542, the Court said: "The Fourteenth Amendment prohibits a state from depriving any person of life, liberty or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society." See also, In re Kemmler, 136 U. S. 436; Orr v. Gilman, 183 U. S. 278, 286. The primary function of the Federal courts under the amendment in question is to determine whether the state, by some official action, has failed in the duty to provide due process; if so, then the proceedings must be declared void. Thus, in every such case, the sole and only question is this: Has the act of the state violated the provision of the Fourteenth Amendment or a valid act of Congress made in pursuance thereof.

§ 165. Chicago, B. & Q. R. Co. v. Chicago-Regard must be had to substance, not to form. In that case (166 U. S. 226) is to be found a striking illustration of the applica