Argument for Plaintiffs in Error. equity brought to quiet the title to these lands by the grantees from the purchaser under the sale thereof by virtue of the act of 1850. Chief Justice Waite says, in reviewing the Indiana cases: "But, so far as we have been able to discover, it has never yet been held that the title passed out of the owner until ‘just compensation' had actually been made. In fact the decisions appear to have been uniformly to the effect that it did not." After referring to the New York and Maine cases he says: "Not to multiply cases further, it seems to us that on principle and authority the rule is, under such a constitution as that of Indiana, that the right to enter on and use the property is complete as soon as the property is actually appropriated under the authority of law for a public use, but that the title does not pass from the owner without his consent until just compensation has been made to him.. It is not contended that compensation in money was ever made for any of the land in dispute. To hold that the title passed by mere appropriation, if no claim for damages was made within the two years, would be in effect to decide that if the State entered on land for a particular use and kept possession as against the owner for two years, it got a title in fee whether the property was ever put to the use or not. Such we cannot believe to be the law." If possession of the property has been actually taken without compensation to the owner, then the owner becomes entitled to recover possession by an action of ejectment. Doe v. Georgia Railroad and Banking Co., 1 Georgia, 524; Gardiner v. Tisdale, 2 Wisconsin, 153; Weisbrod v. Chicago & Northwestern Railway, 21 Wisconsin, 602; Wager v. Troy Union Railroad, 25 N. Y. 526; Lezier v. New York Central Railroad, 42 Barb. 466; Nichols v. Lewis, 15 Conn. 137; McClinton v. Pittsburg, &c. Railroad, 66 Penn. St. 404; Chicago, Burlington &c. Railroad v. Knox College, 34 Illinois, 195.. The fact that opportunity was provided in the act for compelling compensation is not sufficient, and there is no obligation imposed on the owner to resort to a legal tribunal to enforce payment. Argument for Plaintiffs in Error. The Circuit Court decided that the land was not taken under the right of eminent domain, but under the police power of the State. The case of Bancroft v. Cambridge, 126 Mass. 438, is cited in its opinion not as conclusive of the present case, but as illustrative that the present act was passed in exercise of the police power of the legislature, and that the act in question can be justified under that power. From a comparison of the act commented upon in that case, it will be seen that it is totally different from the act involved in this case. The act in Bancroft v. Cambridge was a regulation or restraint solely upon the owners in the use of their property, and it gave the municipality authority to raise the grade of the land, and made the expenses a lien or charge on the lands filled to be collected in the manner provided for the collection of taxes on real estate. In other words, it belonged to that class of cases, in which the owners of lands are required to make an improvement for the benefit of the public, and the whole expense thereof is charged to them. It is based, however, upon the theory that there is a consequent increase in the value of the owners' lands. See also Dingley v. Boston, 100 Mass. 544; Hingham & Quincy Bridge and Turnpike Co. v. Norfolk County, 6 Allen, 353; Lowell v. Boston, 111 Mass. 454. In this case there was a taking of property from an individual, and giving it to another without compensation, and no court has heretofore justified such a proceeding. It is contrary to the principle under which acts of the legislature in exercise of the police power have been passed. It is not the owner's use of the property which is destroyed, but the property itself which is taken. It is not a regulation of the use of the property under the maxim, "sic utere tuo ut alienum non lædas," but is a confiscation and appropriation of property without compensation. In Commonwealth v. Alger, 7 Cush. 53, Chief Justice Shaw forcibly presented the difference between the exercise of the police power of the State and the assertion of its right of eminent domain. But in no case in Massachusetts has the police power been enlarged to include the taking of private property, except in case of forfeiture for crime. Dingley v. Opinion of the Court. Boston, 100 Mass., 544; State v. Tewksbury, 11 Met. 55; Fisher v. McGirr, 1 Gray, 1; Talbot v. Hudson, 16 Gray, 417; Salem v. Eastern Railroad Company, 98 Mass. 431; Blair v. Forchand, 100 Mass. 136; Watertown v. Mayo, 109 Mass. 315; Young v. Blaisdell, 138 Mass. 344; Rideout v. Knox, 148 Mass. 368. Mr. Samuel J. Elder, (with whom was Mr. Charles T. Gallagher on the brief,) for defendant in error. MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court. The grounds upon which the plaintiffs impeach the validity of the sale of 1844 are: That the notice required to be given of the proceedings in the Suffolk Probate Court was not shown to have been published as often as required, and, therefore, such jurisdiction of the ward was not acquired as authorized an order for the sale of his property; that the notice of the sale did not specify both the time and place of sale; that the guardian could only sell for money in hand, and was without authority to sell and convey and immediately take, as was done, a mortgage back for the purchase money; that no return of the proceeds of sale was ever made by the guardian; and that an affidavit setting forth the time and place of the sale was not filed by the guardian within the time prescribed by the statute. But, obviously, the question to be first considered is whether an absolute title passed to the city of Boston. If the title passed in virtue of what was done under the act of 1867, it will become unnecessary to determine whether the sale made by the guardian of Peleg Tallman, Jun., in 1844 was invalid upon any of the grounds assigned by the plaintiffs. For, if that sale was, in itself, ineffectual to divest the title of the devisee in remainder, and if, at the time the city proceeded under the statute of 1867, the title was not, in law, in Knott or in the defendant Rechel, but in the children and widow of the devisee in remainder upon his death in 1863, the title nevertheless passed to the city, if the provisions of that statute Opinion of the Court. were followed, unless, as plaintiffs contend, the statute was unconstitutional and void. The constitution of Massachusetts recognizes the right of each individual to be protected in his life, liberty, and property, according to standing laws; declares his obligation to contribute his share to the expense of such protection; and provides that "no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people." And "whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Mass. Const. Part 1, art. 10. The legislative department of the Commonwealth has, however, full power "from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof." Part 2, c. 1, art. 4. The authority for the enactment of the statute of 1867 is found in these constitutional provisions. The territory of which the lot in controversy formed a part, was in such condition, for many years, as to require, or at least to justify, legislative interference under the power to ordain and establish wholesome and reasonable regulations conducive to the good and welfare of the people, and not inconsistent with the fundamental law of the Commonwealth. And no restrictions are imposed by the Massachusetts constitution upon the mode in which this power may be exerted, except that it is expressly required that the orders, regulations, and statutes prescribed by the legislature must not be repugnant to the constitution, and it was necessarily implied that the exercise of the power must have some real, substantial relation to the general good and welfare. But in determining whether the legislature, in a particular enactment, has passed the limits of its constitutional authority, every reasonable presumption must be indulged in Opinion of the Court. favor of the validity of such enactment. It must be regarded as valid, unless it can be clearly shown to be in conflict with the constitution. It is a well-settled rule of constitutional exposition, that if a statute may or may not be, according to circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed. Talbot v. Hudson, 16 Gray, 417, 422; Fletcher v. Peck, 6 Cranch, 87, 128; Sinking Fund Cases, 99 U. S. 700, 718. We must, therefore, assume that the act of 1867 had for its real object the protection of the public health, and not the mere acquisition of the property in question for purposes of sale and profit, after it had increased in value by reason of the grade being raised. It is not alleged in the pleadings, nor was there any evidence tending to show, that the cost of raising the grade would have been so slight, compared with the real value of the property, that a due regard to the constitution demanded that the owner should have been given opportunity to raise the grade at his own expense, and retain the property in its improved condition. On the contrary, it appears that the public health justified prompt action and the use of such means as could be effectively supplied only by municipal authority acting under legislative sanction. In Dingley v. Boston, 100 Mass. 544, 554-60, this act of 1867 was assailed upon various grounds. It was there adjudged that the statute authorized the property described in it to be taken by the city for public purposes; that its language imported a title in fee simple. The point was pressed that the legislature had assumed the power to declare the existence of a public nuisance on the land of the plaintiff, and that this was an exercise of judicial power because it charged him with an offence, and decided the question without giving him an opportunity to be heard, and then proceeded to deprive him. of his land. But this point was overruled, the court holding that the statute did not regard him as an offender in any sense, because it gave him a right to compensation, not only for all damage occasioned by the taking of his land, but for its deterioration in value before the taking; that it regarded |