Under these rules, it is well settled that no title to the property taken passes until compensation is actually made. It is not, however, necessary that the payment of compensation should precede the public occupation. Payment should be made within a reasonable time. It is enough if an actual and certain remedy is provided whereby the owner may compel payment of his damages before he is required to part with his property.1 No distinction in the foregoing statements is made between proceedings for condemnation in behalf of a State and of the United States. The power of the United States to proceed directly in such a case has been sustained by the Supreme Court of the United States.2 It may also be a petitioner in a State court in the same general way as a private foreign corporation. This principle does not go so far as to compel a State to pay for land for the use of the United States, nor to justify proceedings under a State law insufficiently framed.5 It is assumed that a State cannot exercise the right of eminent domain so as to interfere with the paramount power of the United States. Still, there would seem to be nothing to prevent the taking from the United States, as a mere landed proprietor, of a portion of its domain within State limits.6 The State has no power under this rule to take one man's property and give it to another, even though it make full compensation. This principle was applied to the case of a private road. Darlington v. United States, 82 Pa. 1 Matter of the Petition of United States, 96 N. Y. 227. 2 Kohl v. United States, 91 U. S. 367. 8 Matter of the Petition of United States, supra. 471. 4 Trombley v. Humphrey, 23 Mich. several States, moreover, constitutions have been adopted or statutes passed giving compensation where property is "injured or damaged." In the development of the law of eminent domain, the word "property" has acquired a broader meaning than it at first received. Thus, in the elevated railroad suits in New York, referred to in the text, it has been adjudged that the right of an owner of land abutting on a street, to light, air, and access is an easement, and is property, and that any impairment thereof is a taking within the constitutional provision. As these ease ments are not considered as possessing value separately and apart from the land, it follows that the real and only injury to St. 382. 6 United States v. R. R. Bridge Co., 6 McLean, 517. 7 Taylor v. Porter, 4 Hill, 140; Hoye v. Swan, 5 Md. 237. the owner is the effect produced upon the land by the impairment of the easement. Such an injury is therefore wholly consequential. Bohm v. The Met. El. Ry. Co., supra. In ascertaining the extent of this consequential injury, the benefits, if any, to the land, caused by the presence and operation of the elevated road, must be taken into account. Newman v. M. E. Ry. Co., 118 N. Y. 618; Bohm v. M. E. Ry. Co., supra; Sutro v. M. Ry. Co., 137 N. Y. 592; Bischoff v. N. Y. E. Ry. Co., 138 N. Y. 257. Further consequential injuries, such as those due to noise, vibration, etc., are not invasions of a property right to be compen sated for under the rules of eminent domain. American Bank Note Co. v. N. Y. E. Ry. Co., 129 N. Y. 252, 271. The decision in Taylor v. Porter led to a provision in the New York constitution, providing a mode of laying out private roads.1 When property has been obtained through the law of eminent domain for one public purpose, there is nothing to prevent its being again condemned for a paramount public purpose.2 SECTION IV. Public Necessity. By this expression is meant the sacrifice of private property for the public welfare, under such circumstances of overruling necessity that no compensation is required. This subject is frequently alluded to in the old lawbooks. Thus, KINGSMIL, J., in the Year Books of Henry VII.3 says that, as to a thing which concerns the commonwealth, one can justify a trespass in order to take goods out of the house, when the safety of the goods is concerned, or to even break down a house for the same purpose. And so in time of war one can justify an entry into another's land to make a bulwark in defence of the king and the realm, and these things are justifiable and lawful for the maintenance of the commonwealth. Some years later, it is said by SHELLY, J., that the "commonwealth" is to be preferred before "private wealth," since for the commonwealth one may suffer damage, so that, for example, a house shall be "plucked down" if the next house be on fire, and suburbs of cities shall be plucked down in time of war, for this is for the commonwealth, and a thing that is for the commonwealth any one can do without being liable to an action. These principles were followed in a famous case known as the Saltpetre Case.5 This general doctrine, so far as it may justify the destruction of property to prevent the spread of a conflagration, has been carefully considered in a number of cases, particularly in some growing out of the great fire in New York in 1835. It has been specifically decided that the destruction by public authority of private property to arrest a fire is not "taking property for public use," within the meaning of the Constitution. There is, however, a statute upon this matter applicable to the city of New York, providing that if the city magistracy order a building to be destroyed to stop a conflagration, the owner of the building must be indemnified in a prescribed manner, unless it would, without such act, have been inevitably destroyed. This statute has been construed in several cases. It is decided that it only applies to the owner of the building, or some one having an interest therein, and accordingly would not extend so far as to protect the owner of goods stored in a building belonging to another person. Such a person would be left to the rules of the common law. In the course of the discussions growing out of these cases, it became important to consider the distinction between the cases where property was taken for "public use," so as to make compensation necessary, and where it was taken from necessity, so that the rule of compensation could not be invoked. Reference to these discussions will be found in a note. The true theory is, that most of the so-called cases of "necessity" are really a branch of the "police power" in a State, and may properly be placed under that head. No rational distinction can be drawn between the case where property is necessarily destroyed to prevent a conflagration, and where a destruction is made to prevent the spread of a disease or a pestilence. Each depends upon the principle that the "safety of the people is the supreme law." 1 An instance of the same kind is found in the case of persons travelling upon a public highway which is suddenly out of repair, going upon adjacent fields without permission of the owner. This is confined to the case where the obstruction is sudden and recent, e. g., a fresh fall of snow. This is held to be the exercise by an individual of a public right, finding its justification in necessity. If the obstruction is neither sudden nor recent, its existence is really imputable to the neglect of the public authorities, and so not necessary. SECTION V. Regulation or Destruction of private Property under the so-called "Police Power."- By the police power is meant that authority in the State which regulates private affairs, including the control and management of property, so as to make them 1 The old cases do not distinguish accurately between the two classes of cases. Thus, the "Saltpetre Case " treats without distinction the erection of bulwarks upon private land in time of war, and the destruction of property to prevent the spread of a fire. The former instance would now clearly be regarded as a case under the rule of eminent domain. Mouse's Case, Part 12, Coke's Rep. 63, is an instance of destruction under the doctrine of necessity. That was a case where, for the safety of passengers, heavy merchandise was thrown overboard from a barge in a storm. The distinction between the two classes of cases is clearly shown in the opinion of Senator VERPLANCK, in Stone v. Mayor of New York, 25 Wend. 157, 173, and also in the opinions of BRONSON, J., and of Senators SHERMAN and PORTER, in Russell v. Mayor of New York, 2 Den. 461. A note of the reporter to the lastcited case on page 491 shows that the court in another cause, involving the same question (Lawrence v. The Mayor), adopted the opinion of BRONSON, J., above referred to, as a sound exposition of the law, and thus sanctioned the proposition that this was not a case of taking private property for public use within the meaning of the Constitution. 2 Campbell v. Race, 7 Cush. 408. consist with the public welfare. Sometimes it is exercised by the State itself, and again by municipalities, or by public officers, such as commissioners of highways. When properly exercised, private rights must yield to it. The general nature of the police power has been defined by the Supreme Court of the United States. While it is conceded to be difficult to render a precise definition of it, it is said to be clear that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot divest itself of the power to provide for these objects. They belong emphatically to that class of subjects which demand the application of the maxim, salus populi suprema lex.2 I. The relation of the exercise of this power to constitutional provisions. The attempted exercise of the police power in particular cases may be obnoxious on two constitutional grounds: one, that it is an invasion of a right of property, and another that the legal proceedings resorted to are not "due process of law." These will be considered separately. (1) There are opposing views as to the point whether the police power can properly so be exercised as to destroy vested rights of property. The question has been sharply presented as to prohibitory liquor laws acting upon liquor then in existence so as practically to destroy its value. In a New York case such legislation was held to be unconstitutional and void, as an unauthorized invasion of the right of property. On the other hand, the Supreme Court of the United States has decided that a State may forbid the manufacture and sale of intoxicating liquors as a beverage, within its territory, in the exercise of the police power, and further, may declare a brewery a common nuisance because it produces an intoxicating liquor prohihited by law to be manufactured and sold. (a) (2) In the practical exercise of the police power, such methods of proceeding must be resorted to as are usual in judicial inquiries. Property is not to be taken arbitrarily, or without due notice to the owners and a reasonable opportunity to be heard. Under this head, it has been decided that in a seizure of property under a police regulation, the law must provide for legal 1 Beer Co. v. Massachusetts, 97 U. S. 25, 33. 2 Lake View v. Rose Hill Cemetery Co., 70 Ill. 191. 3 Wynehamer v. The People, 13 N. Y. 378. 4 Mugler v. Kansas; Kansas v. Ziebold, 123 U. S. 623. (a) Kidd v. Pearson, 128 U. S. 1; Eilenbecker v. Plymouth County, 134 U. S. 31. notice to the owner of the nature and cause of the accusation, as well as of the trial of the question whether there has been a violation of law. If the law should forbid the maintaining of an action by the property owner, it would be unconstitutional.2 So if the owner's remedy be unreasonably clogged or hampered.3 II. Instances of the valid exercise of the police power. These are very numerous; some of them will be specified in this connection. (1) The licensing and prohibition of the sale of intoxicating liquors. This class of laws prevails in most, if not all, of the States. There is no doubt as to the power to regulate and license. The power to regulate, however, seems to imply the power to prohibit, and there is no reasonable doubt of the constitutionality of prohibitory liquor laws acting in futuro. Sometimes the law assumes the form of prohibition under special circumstances, as, for example, where a religious meeting is in progress.5 The more general form of license or prohibition is equally valid. (a) (2) The prohibition of the manufacture and sale of substitutes for butter. (b) These have been termed "oleomargarine cases." (3) Requirements that physicians and midwives report births and deaths.8 (4) Regulations respecting the drainage of land as related to public welfare.9 1 Greene v. James, 2 Curtis C. Ct. 540; Pierce v. New Hampshire, Ic. 554; 187. 2 Preston v. Drew, 33 Me. 558. Saco v. Woodsum, 39 Me. 258. To the same general effect are Fisher v. McGirr, 1 Gray, 1; State v. Snow, 3 R. I. 64. 4 Cronin v. The People, 82 N. Y. 318. 5 Com. v. Bearse, 132 Mass. 542; State v. Read, 12 R. I. 137. Cf. Dorman v. State, 34 Ala. 216. Thurlow v. Massachusetts, 5 How. U. S. 504; Fletcher v. Rhode Island, Id. (a) A State statute prohibiting the sale in original packages of liquor manufactured in and brought from another State was declared by the United States Supreme Court to be an invalid exercise of the police power because repugnant to the clause in the Constitution giving Congress power over interstate commerce. See Leisy v. Hardin, 135 U. S. 100, overruling Pierce v. New Hampshire, 5 How. U. S. 504. See also Bowman v. Chicago, &c. Railway Co., 125 U. S. 465. These decisions led to the passage of a law by Congress to the State v. Wheeler, 25 Conn. 290; Jones v. 7 State v. Addington, 12 Mo. App. 214; Powell v. Pennsylvania, 127 U. S. 678. 8 Robinson v. Hamilton, 60 Ia. 134. 9 Donnelly v. Decker, 58 Wis. 461. effect that liquors imported into a State or Territory should upon their arrival be subject to the police regulation of such State or Territory, whether in original packages or otherwise. 26 Stat. L. 313, ch. 728 (August 8, 1890). This statute was declared constitutional in In re Rahrer, 140 U. S. 545. (b) Commonwealth v. Huntley, 156 Mass. 236; People v. Arensberg, 105 N. Y. 123; Waterbury v. Newton, 50 N. J. Law Rep. 534. |