§ 747. Power must be expressly given. To all subordinate public corporations the principle applies that to legally exercise the power of eminent domain, it must be expressly given.225 It cannot come by any ordinary construction under implied powers of either class: those implied because essential to the life of the corporation or those implied because absolutely necessary and essential to carry into effect some power already expressly granted. Some authorities hold that even with the state itself the power lies dormant 226 until the legislative branch prescribes the method and the manner by which it can be exercised; designating the procedure which must be followed in order to legally exercise the power; providing a tribunal for the determination of the questions naturally involved and fixing the mode in which the amount of compensation is to be determined and the manner and the time in which it shall be paid. All this legislation is to be construed strictly, for the taking of private property, even upon the payment of just compensation, is one of the highest attributes of sovereignty and when its exercise is delegated to a subordinate, the strict rule of interpretation will apply and the right to exercise the power withheld unless clearly given. 227 cited under sections relative to the subject of eminent domain in which one of the parties is a public corporation. 225 Butler v. City of Thomasville, 74 Ga. 570; Sanitary Dist. of Chicago v. Lee, 79 Ill. App. 159; Protzman v. Indianapolis & C. R. Co., 9 Ind. 467; Allen v. Jones, 47 Ind. 438. A city has no implied power in the nature of eminent domain to condemn private property for local improvements. The exercise of this right is originally wholly in the state and can be exercised by a city through the virtue of some express legislative grant. Knowles v. City of Muscatine, 20 Iowa, 248; Glover v. City of Boston, 80 Mass. (14 Gray) 282; Brimmer v. City of Boston, 102 Mass. 19; Woodruff v. Town of Glendale, 23 Minn. 537; Schmidt v. Densmore, 42 Mo. 225; 227 Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Durant v. Jersey City, 25 N. J. Law (1 Dutch.) 309; Currier v. Marietta & C. R. Co., 11 Ohio St. 228. "There is no rule more fam § 748. Manner of the exercise of the power. Not only must the power as granted to a subordinate corporation be expressly given but before it can be legally exercised, the authority for its exercise must pass successfully constitutional tests determining its validity. Nearly all constitutions, state ast well as Federal, provide for the exercise of the power only upon. payment of just compensation first had or secured except in specific cases. 228 The payment of just compensation is thus made one test for a legal exercise of the power. The Federal Constitution contains the further provision that no state shall make or enforce any law which shall deprive any person of life, liberty or property without due process of law,229 and by this means the constitutionality of all laws relating to the taking of private property under the power of eminent domain is made a Federal question,2 and the further test is to be applied of whether legislation granting the right and providing for the manner of its exercise is due process of law within the meaning of the Federal Constitution. It might be further said that state constitutions contain substantially the same provision with reference to due process of law and this universal provision at least, therefore, exists. What is the law of the land or its equivalent phrase "due process of law." 231 It iliar or better settled than this, that grants of corporate power, being in derogation of common right, are to be strictly construed, and this is especially the case where the power claimed is a delegation of the right of eminent domain-one of the highest powers of sovereignty pertaining to the state itself, and interfering most seriously, and often vexatiously, with the ordinary rights of property." 228 See § 745 and authorities cited under note 219. 229 United States Const. XIVth Amendment. 230 Davidson v. City of New Orleans, 96 U. S. 97; Mugler v. Kansas, 123 U. S. 623. 231 Den d. Murray v. Hoboken Land & Imp. Co., 18 How. (U. S.) 230 272. "That the warrant now in question is legal process is not denied. It was issued in conformity with an Act of Congress. But is it 'due process of law?' The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law,' by its mere will. To what principles, then, are we to resort to ascertain whether has been held to include notice to the one whose rights are affected; 232 the existence of an impartial tribunal of competent. jurisdiction; a regular, orderly and uniform method of procedure this process, enacted by Congress is due process? To this the answer must be two-fold. We must examine the Constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." Trustees of Dartmouth College v. Woodward, 4 Wheat. (U. S.) 581. "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land." Cooley, Const. Lim. (7th Ed.) pp. 502 et seq. 232 Davidson v. City of New Orleans, 96 U. S. 97; Eddy v. People, 15 Ill. 386; Weimer v. Bunbury, 30 Mich. 201; City of Boonsville v. Ormrod's Adm'r, 26 Mo. 193. "A violation of that rule, recognized and enforced in all civil governments that no one shall be injuriously affected in his rights by a judgment or decree resulting from a proceeding of which he had no notice and against which he could make no defense. Nothing would SO much impair that just selfrespect arising from the ownership of property, fairly acquired, as the reflection that it is subject to be defeated by others without notice to the possessor." Happy v. Mosher, 48 N. Y. 313; Stuart v. Palmer, 74 N. Y. 183. "It must be conceded that property cannot be taken by the right of eminent domain, without some notice to the owner, or some opportunity on the part of the owner, at some stage of the proceeding, to be heard, as to the compensation to be awarded him. An act of the legislature, arbitrarily taking property for the public good, and fixing the compensation to be paid could not be upheld. There would in such case be the absence of that 'due process of law' which both the federal and state constitutions guarantee to every citizen." Neeld's Road Case, 1 Pa. 353. "The law abhors all ex parte proceedings without notice. Notice in this case to the owners of property was absolutely necessary. To take a man's property and assess his damages without notice of it, is repugnant to every principle of justice, and such a proceeding is utterly void." City of Philadelphia v. Miller, 49 Pa. 440. "Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property." Lewis, Em. Dom. (2d. Ed.) § 365. for the determination of the questions involved,233 with an opportunity to be heard on the part of the landowner; 234 and a final decision. The substance of it all is that the essentials of due process of law must first exist and further, whenever an individual is to be divested of his property through an exercise of the power of eminent domain, all the provisions of law enacted for his benefit are to be strictly followed or the proceedings will be ineffectual. § 749. What can be taken. The word commonly used in connection with the exercise of the power of eminent domain is "property" and this suggests the question-what is property? A correct determination of the meaning of the word is important for if the thing taken be not legally considered property, clearly the owner is not entitled to compensation and an exercise of the power is not necessary.235 The most satisfactory definition of property is that given by Jeremy Bentham in which he says: "The integral or entire right of property includes four particulars: 1, right of occupation; 2, 233 Davidson v. City of New Orleans, 96 U. S. 97. "In judging what is 'due process of law,' respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessments for local improvements, or noue of these; and if found to be suitable or admissible in the special case, it will be adjudged to be 'due process of law;' but if found to be arbitrary, oppressive, and unjust, it may be declared to be not 'due process of law."" Weimer v. Bunbury, 30 Mich. 201; Westervelt v. Gregg, 12 N. Y. (2 Kern.) 209; Stuart v. Palmer, 74 N. Y. 183. "It may however be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard, is absolutely essential. We cannot conceive of due process of law without this." 234 Stuart v. Palmer, 74 N. Y. 183. 235 Lewis, Em. Dom. § 56. "If property, then, consists, not in tangible things themselves but in certain rights in and appurtenant to those things, it follows that, when a person is deprived of any of those rights, he is to that extent deprived of his property, and hence, that his property may be taken, in the constitutional sense though his title and possession remain undisturbed; and it may be laid down as a gen. eral proposition based upon the na ture of property itself, that, whenever the lawful rights of an indiv. idual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is, pro tanto, taken, and he is entitled to compensation." right of excluding others; 3, right of disposition or the right of transferring the integral right to other persons; 4, right of transmission in virtue of which the integral right is often transmitted after the death of the proprietor without any disposition on his part to those in whose possession he would have wished to place it." 236 Or, summarized, the rights of occupation, exclusion, disposition and transmission. Property, therefore, consists not in the thing or the subject of a right itself but of rights in things created, sanctioned and protected by law.237 Formerly, a narrow and restricted meaning was attached to the word "property" and the property owner was, therefore, restricted in the amount of compensation which he might recover.238 The modern tendency is towards a liberal construction of the word and the right of compensation is correspondingly enlarged. It must be understood, however, that though an individual may recover compensation for all the damages or injuries to his property as defined in the liberal way, there are injuries for which no compensation can be recov 236 Bentham's Works, p. 182 (1843 Edinburg). 287 City of Denver v. Bayer, 7 Colo. 113. "Property, in its broader and more appropriate sense, is not alone a chattel or land itself, but the right to freely possess, use and alienate the same; and many things are considered property which have no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible." Selden v. City of Jacksonville, 28 Fla. 558, 14 L. R. A. 370; Ritchie v. People, 155 Ill. 98, 29 L. R. A. 79; Chicago & W. I. R. Co. v. Englewood Connecting R. Co., 115 Ill. 375. Property itself in a legal sense is nothing more than the exclusive right of possession, enjoying and disposing of a thing which of course includes the use of a thing. City of St. Louis v. Hill, 116 Mo. 527, 21 L. R. A. 226; Jackson v. Housel, 17 Johns. (N. Y.) 281. Property is defined as "the highest right a man can have to any thing; being used for that right which one hath to land or tenements, goods or chattels, which no way depend on another man's courtesy." Morrison v. Semple, 6 Binn. (Pa.) 94. "Property signifies the right or interest which one has in land or chattels. In this sense it is used by the learned and unlearned; by men of all ranks and conditions." City of Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808. Dillon Mun. Corp. (4th Ed.) § 587b. "Property is that congeries of rights secured by law in and over land or other things which in the aggregate constitute the owner's title thereto, his ownership, his right of user and enjoyment,and his right of disposition, as against competing claims on the part of others." See, also, Lewis Eminent Domain (2d Ed.) §§ 54, 55, for a very full and lucid discussion of the term. 288 Austin, Jur., § 1051. |