The Illinois statute did not change that rule of the common law. There are so many wheat raisers that it is physically impossible to get them into a trust which may at any time be violated by any one or more without redress at law or in equity or under any statute.

The wheat raised by any one while in his possession as raiser is not within the Illinois statute. The law applies to the product, not to the producer. There can be no difference as to what person, firm or corporation may be producer. All producers have the equal protection of this Illinois statute.

A father presented to his son a bundle of sticks tied together and requested the son to break the bundle by putting one hand at each end and his knee in the middle and drawing the two ends towards his body. The son tried in vain to break the bundle. In union there is strength. The father untied the bundle and broke the sticks one by one without difficulty. Readers will recollect the old legend. The Legislature of Illinois might have broken the trusts if it had not tied them all up in one bundle. In union there is strength even among the trusts, knowing as one must necessarily know the stolid indifference of the honest masses and the pernicious activity of the dishonest trusts. The Illinois statute, as interpreted by the courts, ties all the trusts together in one bundle and then in vain tries to break the whole bundle. Disastrous failure was of course the result. The Legislature had all the necessary power and authority to break the sewer-pipe trust, but the other trusts combined with it proved too powerful.

Our local tax-laws in all the states under the tax power have tied up large bundles of sticks and the strings are so strong we can not break them, nor untie the bundles or break the sticks. This is the lesson taught by the Illinois statute and decisions holding it

invalid. Of course no one can deny that this Illinois statute is highly penal in its character. A statute which allows any one to buy sewer pipe and to keep the sewer pipe and sell or use it, and yet incur no liability whatever either to pay the contract price or return the sewer pipe or to pay what it is reasonably worth, is highly penal in its character and ought to be strictly construed, and yet the State of Illinois ought to be able to prevent hurtful, injurious trusts by such penalties as it may prescribe to be inflicted upon all who may do the prohibited acts, without any respect as to who may be the actor or doer of the prohibited thing.

CHAPTER 7.

POWER OF GOVERNMENT AS TO PROPERTY, BENEFITS AND DAMAGES.

In this chapter is presented some considerations as to the nature of that power of the government which determines whether a person has property, what property, how much, and its value, and the benefits or damages to it by reason of the acts of the public or individuals, both as to the fact and amount of benefit or damage.

The power to determine the value of property is judicial. This appears fully in Smith et al. v. Kansas City, 128 Mo. 23, et seq. (A. D. 1894), a suit for damages to abutting property by reason of grading the street. The first instruction given for the plaintiff is in effect that, "If the market value of said property was depreciated by said grading" then the jury must find for the plaintiff and if the jury find for the plaintiff then their verdict must be equal to "The amount that the market value of said property was diminished by such act of the defendant" Kansas City. The market value of the property before the improvement and the market value after the improvement must be determined. The difference will be benefit or damage according to the fact and evidence by which such fact is established.

By the third instruction the jury were told that in estimating the damages to said property they might take into consideration certain elements, such as the "cost of putting the property on grade, or building retaining walls and other elements of damage," allowing, however, as an offset, any appreciation or increase

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in value of said property by reason of the grading of said street. For the defendant the jury were told that, "If the grading was a special benefit to the real estate along with other property in the vicinity of plaintiff's property, and that such special benefit equaled or exceeded the damages, then plaintiff is not entitled to recover," etc.

The legislative power can not determine the market value of this lot before the improvement or after this improvement. How then can the legislative power determine that the improvement was a damage or benefit? The Missouri Constitution, as well as the constitutions of nearly all the states, now provides that "private property shall not be taken or damaged for public use without just compensation." This "just compensation," either for taking or damaging, must be ascertained by commissioners or a jury as provided by law; the title must not be divested; the property must not be disturbed until this "just compensation," either for taking or damaging, has been paid to the owner or into court for the owner.

According to the language used by the framers of the Constitution, it was not intended that this “just compensation," either for taking or damaging, should be ascertained by the mayor and common council of any city, town or village, or under or by any legislative or executive power. This "just compensation" must be paid to the landowner or into court for him. Into what court? Is the board of trustees of any town or village the court contemplated by the Constitution? Is the common council of any city the court contemplated by the Constitution into which this "just compensation" must be paid for the landowner? Then the "just compensation" is paid into some court for the owner. Who shall determine this question of ownership. Does the determination of this question of ownership devolve on

the judicial department of the government, or on the legislative department, or on the executive department? What kind of question is it to determine the "just compensation" for land taken or damaged for public use?

The Supreme Court of Missouri in A. D. 1857, in Newby v. Platte County, 25 Mo. 258, at 263, say:

"If the state government possessed no authority over private property, except that of taking it for the public use upon rendering the owner a just compensation, it would seem that under this provision, the owner would be entitled to the full money value of his property without any deduction. The rule of constitutional law being that private property can not be taken for public use by the authority of the Legislature without a just compensation, it follows that what is to be con. sidered as compensation, within the meaning of the clause, is a question of law for the courts and not a matter for the Legislature; and under such a Constitution as we have supposed, with no other power over private property than that of taking it for the public use upon making the owner a just compensation, it would be quite beyond the scope of the legislative authority to declare that the benefit derived by the landowner from the road is the just compensation secured by the Constitution."

The public take for a highway part of an owner's land, leaving part of it. What is the owner's "just compensation?" It is not, what is he damaged? To ascertain this, just compensation must be done by some department of the government. May this just compensation be benefits in part and cash in part? What sort of question is this? Is it a question for the courts or the Legislature or the executive? What department of the government is to determine this question? If the just compensation of the Constitution may be made in benefits, who shall determine the fact and amount of