Taking money under the right of eminent domain, when it must be compensated in money afterwards, could be nothing more nor less than a forced loan, which could only be justified as a last resort in a time of extreme peril, where neither the credit of the government, nor the power of taxation could be made available. This would rather be a case, coming under no law, but that of an overruling necessity. a The right to a franchise, is of no higher order, and confers no more sacred title than the right to land, and when the public necessities require it, the one as well as the other may be taken for public purposes, on making suitable compensation; nor does such an exercise of the rights of eminent domain, interfere with the inviolability of contracts, if such franchise happens to be a grant. b

Lands for public ways, timber, stone and gravel to make and improve or repair public ways and canals; c a building that stands in the way of a contemplated improvement; or which for any other reason it is necessary to take, remove or destroy for the public good;d streams of water, e corporate franchises, and generally it may be said, legal and equitable rights of every description, g may be so taken.

The legislature has power to authorize a corporation or individuals and their assigns in constructing and operating a railroad," to run upon or intersect or use any portion" of the railroad track of another company upon making due compensation therefor. h And where the legislature by an act authorize the construction of highways across railroad tracks, without compensation, they do not violate the constitutional provisions against taking private property for public uses, or impair the obligation of a contract. The title, which a railroad corporation acquires to its own track, is qualified, as being taken for public use, and for

a Id 527.

b Richmond RR. Co v. Louisa RR. Co. 13 How, 71; West River Bridge v. DiL 6 How, 507; Matter of Kerr. 42 Barb, 119.

c Wheelock v. Young, 4 Wend. 647; Lyon v. Jerome, 15 Wend. 569.

d Wells v. Somerset, 47 Maine R. 345. e Gardner v. Newburgh, 2 John. Ch. 162.

f Piscataqua Bridge v. N. Hampshire Bridge, 7 N. Hamp. R. 35.

g Cooley on Const. Lim. 526.

h Matter of Kerr. 42 Barb. 119, and cases cited; Sixth Avenue B. B. Co. v. Kerr, 45 Barb. 141.

the purpose of the incorporation, and is subject to the exercise by the legislature of all the powers to which the franchises of the corporation are subject. a

We have already said, the question of the necessity for the exercise of this power belongs to the government, and is only exercised when authorized by the legislative department, and over which the judicial power possesses no control. The question is always regarded as being one of political sovereignty in character. We do not intend by this, to say, that the expression by the legislature that it is for the public interest in a particular case to exert the right of eminent domain, determines that question; that would be setting the legislative power above the constitution, but only to concede to the legislature the right to appropriate private property to public use.

When the public use is local and limited, the power is often conferred upon some local tribunal, or agent, and given to them to decide upon the necessity, and regulate the proceeding; and the omission to provide for a trial by jury in such case, is held to be no violation of constitutional right, b and the state is under no obligation to make provision for judicial contest upon that question; though this is often done, as in cases of laying out highways, &c.

The appropriation of private property for this purpose, must however, always be limited to the necessity of the case; and this question of necessity is one over which the judicial power has some control. No more of private property can be so appropriated than the proper tribunal shall adjudge to be necessary for the particular use for which the appropriation is made. When only a part of a man's lands are needed by the public, this will not justify the taking of the whole, even though it should be taken under the provisions of a statute of the legislature, authorizing the taking the whole. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified by the principles which underlie the right of eminent domain.c

This question has caused much litigation in the courts, and was

a Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345, 349.

b People v. Smith, 21 N. Y. R. 595.

• Cooley on Const. Lim. 540; Bennett v. Boyle, 40 Barb. 551.

left by the statutes of this state as unsettled, as to whom the power of exercising the discretion was vested; whether in the legislature, in the railroad or other corporation, or in the courts. This question has been very recently settled in this state in regard to railroads, by an amendment of the general statute concerning the formation of such companies, where new lands are required by an existing railroad company, and by a construction of that amended statute in the Court of Appeals a not yet reported.

Under an amendment of the general act of 1850, by the statute of 1854, existing railroad companies were authorized to acquire additional lands for the purposes of such company, as it would have in the location of a line of road in the first instance. By another amendment of this general statute, by the legislature of 1869, such railroad company, and such existing railroad company, were authorized to acquire such real estate, or such additional real estate, for the purpose of its incorporation, or for the purpose of running or operating such road, or for any other purpose necessary to the operation of such railroads, &c. In giving construction to this amended statute, the Court of Appeals, as appears from the syllabus of the case reported in the Law Journal, b laid down the following eight propositions, viz:

1. The right to take property for public use, is to be exercised by the legislative power, and this power can determine for what purposes private property can be taken, and when the necessity exists which calls for its appropriation,-and this power can be exerted through agents, whether individuals or corporations.

2. The legislature may therefore authorize a railroad corporation to take private property for the purpose of its incorporation, under a delegation of its power of eminent domain.

Under the general railroad act, this taking must be done through an application to the court, upon notice to persons interested, and a hearing and determination of the court thereupon.

3. Under the statute of 1869, extending the powers granted by the original act of 1850, the determination of the question of necessity, and extent of appropriation, is left with the court, and is not vested in the board of directors of the railroad company.

& Matter of the Application of the Rensselaer & Saratoga RR. Co. v. Davis. No. 57.

4. The legislature have the power to designate the particular premises which a railroad company may take for its uses, but this was not done by the statute of 1869, nor did it by that statute delegate to the railroad company, the power to determine the necessity for the appropriation of private property for corporate purposes.

5. The acquisition of lands for the purpose of speculation and sale, or to prevent interference by competing lines, or in aid of collateral enterprises remotely connected with the running of the road, though they may increase its revenue, are not such purposes as authorize the condemnation of private property.

6. The taking of private property for public use, is in derogation of private rights, and in hostility to the ordinary control of the citizen over his estate, and is not to be extended by implication. To authorize the taking of land under eminent domain, the express authority of the law must be shown.

7. The Rensselaer and Saratoga Railroad Company endeavored to take a quantity of land on the shore of Lake Champlain, for the building of docks to accommodate vessels bringing freight, and the construction of dwellings for its employees and officers. Held, under the circumstances, not necessary for corporate purposes.

8. The decision of the special term in such a matter, is a final adjudication of the question of the right of condemnation under the statute, and an appeal lies to the Court of Appeals from the decision of the general term thereupon.

A statute of this state, which enacted that in all cases where part only of a lot or parcel of land shall be required for laying out a street, if the commissioners deem it expedient to take the whole lot in the assessment, they shall have power to do so, and the part not wanted for the particular street or improvement, shall, upon the confirmation of the report, be vested in the corporation, who may appropriate the same to public uses, or sell the same in case of no such appropriation; was held to be unconstitutional, and assumed a power the legislature did not possess. a

The court in that case, held, "that the constitution by authorizing the appropriation of private property to public use, impliedly declares that for any other use, private property shall not be

a In the Matter of Albany Street, 11 Wend. 151.

taken from one, and applied to the private use of another. It is a violation of natural right, and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. a

So, it is doubtless true, that while it belongs to the legislative department to determine and declare the propriety of the exercise of this power of the right of eminent domain, they cannot exercise it beyond the scope of the line of necessity, and an abuse of its exercise, can doubtless be controlled by the judicial power. The necessity upon which the exercise of legislative power depends, relates to the use, and the nature of the property. Should the legislature either by a direct exercise of the power, or through some subordinate agency, under a power conferred by them, abuse the authority, by using it irregularly, oppressively, or in bad faith, there can be no doubt of the power of the courts to furnish an effectual remedy against such acts. b

While it is conceded that the legislature have the power to determine when public uses require the assumption of private property—it is greatly doubted, nay, denied, that they can declare that to be a public use, that is not so; as in the case supposed by Chancellor Kent. c "If the legislature should take the property of A. and give it to B, such a law would be unconstitutional and void, even if the legislature should declare that to be a public use." Nor can it be a rule, that in all cases because the public interest in some degree will be promoted by such use, that it is therefore a public use. It can hardly be supposed that the implied constitutional permission to take private property stands upon a broader basis of right than such as existed by the principles of natural law.

Constitutional authority then, being not greater than that existing by natural law, and the legislative power being subordinate to the constitutional, the sacred right of private property is above the control of the legislative power, except in the cases of actual necessity for public use. This public use, is an inherent and inseparable quality, the character of which is not changed, merely, because the legislature choose so to denominate it. Legislative discretion must not be confounded with sovereignty; it is only one b Giezy v. C. W. & Z. R. R. Co., 4 Ohio R. (N. S.) 325.

a Id.

c 2 Com. 340.