phasized in United States Glue Co. v. Town of Oak Creek," previously considered.

V. EMINENT DOMAIN

In McCoy v. Union Elevated R. Co.," a hotel owner, who felt aggrieved because he recovered in the state court no damages for injuries claimed to be due to the erection of an elevated railroad in the street in front of his premises, asked the Supreme Court to hold that he had thereby been deprived of property without due process of law. The nub of the controversy was whether the road was entitled to deduct from the damages caused such benefits as the road conferred, even though those benefits were not peculiar to the plaintiff but were similar to what his neighbors also enjoyed from the increase of travel by their doors. The Supreme Court, in holding that general benefits need not be deducted, declared that all that the Fourteenth Amendment required was that just compensation be given for the damage, and that there was no guaranty that a person" shall derive a positive pecuniary advantage from a public work whenever a neighbor does."

Sears v. Akrons reiterated the familiar doctrine that, while the question whether the purpose for which land is taken by eminent domain is a public purpose can be settled finally only by the judiciary, the necessity for the taking and the extent of land to be taken are matters of legislative discretion, and that a state does not deny due process by affording owners no opportunity to be heard with respect to such necessity and extent. In this case the taking was by a city, which determined for itself, under legislative authorization, how much land it required for a municipal water project.

In Pennsylvania Hospital v. Philadelphia it appeared that a city which had agreed for a consideration not to exercise the right

Note 17, supra.

#7 (1918) 247 U. S. 354.

** (1918) 246 U. S. 242.

** (1917) 245 U. S. 20. See 2 Minnesota Law Review 373, and 3 Virginia Law

of eminent domain through the grounds of a hospital, later proceeded to do so. "As the result of proceedings in the state court the purpose of the city was so shaped as to cause it to seek to take under the right of eminent domain, not only the land desired for the street, but the rights under the contract" not to use the power of eminent domain. The Supreme Court sustained the taking, but implied that the contract not to take in no way affected the situation, since it was initially void because the power of eminent domain could not be contracted away. The opinion of the Chief Justice is interesting for the statement that "if the possibility were to be conceded that power existed to restrain by contract the further exercise by the government of its right to exert eminent domain, it would be unthinkable that the existence of such right of contract could be rendered unavailing by directing proceedings in eminent domain against the contract, for this would be a mere evasion of the assumed power." This of course does not prevent a state court from taking a different view, since it may recognize as contracts what the federal Constitution would not require it to recognize, and may award damages for takings by eminent domain in excess of what the Supreme Court would require.

VI. COMPULSORY MILITARY SERVICE

If any genuine doubts existed as to whether the Supreme Court would sustain the Selective Service Law, they were effectively dispelled by the opinion of the Chief Justice in the Selective Draft Law Cases. 70 The argument that "compulsory military

70 (1918) 245 U. S. 366. The "Selective Draft Law Cases" is the title given by the official reporter to Arver v. United States and five other cases decided in the same opinion. See 24 Case and Comment 821, 6 California Law Review 222, 4 Iowa Law Bulletin 122, 16 Michigan Law Review 376, and 27 Yale Law Journal 575.

For other cases involving interpretations or applications of the Selective Draft Law, see Jones v. Perkins, 245 U. S. 390; Goldman v. United States, 245 U. S. 474; Ruthenberg v. United States, 245 U. S. 480; and Kramer v. United States, 245 U. S. 478, all decided in 1918. In the Kramer case the contention was raised that the indictment was defective in that it did not state that the defendant who had failed to register was a citizen of the United States or a person not an enemy alien who had declared his intention to become such a citizen. The contention

service is repugnant to a free government" was said to be based on a premise "so devoid of foundation that it leaves not even a shadow of ground on which to base the conclusion," since "it may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it." The contention that compulsory military service imposed involuntary servitude was similarly disposed of in the concluding paragraph of the opinion, in which it was said:

"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as a result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement."

More distinctly legal consideration was given to the objection that Congress was not vested with the power exercised. It was pointed out that the provision of the Constitution relating to congressional power over the militia was entirely distinct from that giving power to raise and support armies, and that the limitations surrounding the exercise of the former had therefore no application to the use of the latter. To attempt to limit the power to raise armies to raising them by invitation was said to challenge the existence of all power, "for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power."

The argument that at the time of the adoption of the Constitution national citizenship was derivative from state citizenship

was held unfounded in view of the fact that all persons between the designated ages were required to register under the law and it was stated that the defendant was between the designated ages, thus holding that those not liable to service may

and that therefore Congress could not so exercise its power to raise armies as to cause national citizenship "to lose its dependent character and to dominate state citizenship" was said to deny to Congress the power to raise armies which the Constitution confers. "That power by the very terms of the Constitution, being delegated, is supreme." And to this was added that the Fourteenth Amendment, which completely "broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was not otherwise so clearly made manifest."

The administrative provisions of the act were likewise found to be free from fault. The contention that the exemption of ministers and theological students was either an establishment of religion or a prevention of the free exercise thereof was found possessed of an unsoundness so apparent that it was not necessary to do more than state it. The alleged vesting in administrative officers of legislative and judicial power was found to be effectively disposed of by previous decisions. And it was declared that "the contention that the act is void as a delegation of federal power to state officials because of its administrative features is too wanting in merit to require further notice." Here perhaps one might have wished for fuller consideration, in view of the bearing of the question on other possible efforts at coöperation between the national and state governments.

In Cox v. Wood," decided four months later, the claim that a person subject to the draft was entitled to be discharged because the call was for service in a foreign country was dismissed as not entitled to original consideration, since it had been effectively disposed of by what had been said in the Selective Draft Law Cases. All the arguments advanced in support of the claim were found to rest upon the erroneous confusion of the power over the militia with the power to raise and support armies.

71 (1918) 247 U. S. 3.

(To be concluded.)