ed the plenary power, under the sanction of Congress, to limit the right to engage in the coastwise trade to those who agree to carry the mails free." This, no logician would deny. This plenary power having been found, the claim to compensation was denied. But the Chief Justice lays down that if the power had not been plenary as stated, the requirement could not have been sustained "because by accepting a license the shipowners voluntarily assumed the obligation of free carriage." But in Los Angeles v. Los Angeles Gas & Electric Corporation in which the police power was held not to justify an order to remove poles and wires to make room for those of a competing municipal system, there was held to be a taking which was unjustified in the absence of compensation. This is to say that what the city tried to do under the police power, it might do only by an exercise of eminent domain."

In Hays v. Port of Seattle," too, a point of eminent domain was indirectly involved. What was alleged to be an impairment of the obligation of a contract was held to be a breach or repudiation of the contract, leaving such obligation as it had still outstanding. This obligation still formed the measure of the right to recover damages. No denial of due process was involved because whatever property rights were taken were taken for a public purpose, and the provision in the state statutes for suing the state and having the judgment paid out of the state treasury "satisfies the requirement of due process of law as clearly as if the ascertainment of compensation had preceded the taking."

For this, Mr. Justice Pitney cited Bragg v. Weaver, decided a

Note 51, supra.

"For other notes on whether there has been such a "taking" as to require compensation see 33 HARV. L. Rev. 451, 476, and 29 YALE L. J. 431.

The determination of what is "just compensation" is considered in 19 COLUM. L. REV. 492, 33 HARV. L. Rev. 981, 18 MICH. L. REV. 61, 799, and 68 U. PA. L. Rev. 185.

Cases holding it "public use" to condemn land against use for apartment houses are discussed in 20 COLUM. L. REV. 219, 591, 5 CORNELL L. Q. 330, 18 MICH. L. Rev. 523, 4 Minn. L. Rev. 50, 236, and 29 Yale L. J. 936.

See also William E. Britton, "Constitutional Changes in Eminent Domain in Illinois", 2 ILL. L. BULL. 497.

"251 U. S. 233, 40 Sup. Ct. 125 (1920).

251 U. S. 57, 40 Sup. Ct. 63 (1919). See 5 VA. L. Reg. n. s. 793, and 29 YALE L. J. 577.

month earlier. Here a landowner who sought an injunction against taking earth from his land to repair the highway objected that the statute under which it was done "makes no provision for affording the owner an opportunity to be heard respecting the necessity or expediency of the taking or the compensation to be paid." After remarking that it was conceded that the taking was for a public use and that adequate provision was made for the payment of such compensation as may be awarded, Mr. Justice Van Devanter declares:

"Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment."

With respect to compensation he continues:

"But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial.... And where this mode is adopted due process does not require that a hearing before the viewers be afforded, but is satisfied by the full hearing that may be obtained by exercising the right to appeal."

These requirements were found to be satisfied by the procedure offered by the Virginia statutes. These had not been construed by the state court, but the only question was whether the landowner was sufficiently protected in his chance to get his appeal to the court from the decision of the supervisors on the award of the viewers. Mr. Bragg seemed to fear that his rights might be foreclosed,without his knowledge if he were not present when the supervisors decided how much to pay him. But the court found that under such circumstances he was to be notified and was entitled to thirty days in which to appeal. It was assumed that if he were actually present at the supervisors' meeting, he had sufficient notice and that thirty days

determination of compensation must precede the actual taking was dismissed by saying:

"But it is settled by the decisions of this court that where adequate provision is made for the certain payment of the compensation without unreasonable delay the taking does not contravene due process of law because it precedes the ascertainment of what compensation is just."

It is to be remembered that Mr. Justice Van Devanter's general statements throughout the opinion are made with reference to an exercise of eminent domain by public, and not by private, authorities.

PART III1

VI. RETROACTIVE CIVIL LEGISLATION

IVE of the corporations which fought in vain against exercises

FIVE

of the police power profited nothing from their grasp at the obligation-of-contracts clause. In Milwaukee Electric Ry. & Light Co. v. Wisconsin2 the contract relied on was a clause in the charter of a street 'railroad imposing on it the duty to keep the space between and near its tracks in good repair "with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the railway company and the board of public works of said city shall agree upon some other material, and said company shall then use the material agreed upon." The company contended that "its obligation is, in any event, limited to repaving with such material as the city had last used between the rails." Mr. Justice Brandeis, for all the court except Justices Pitney and McReynolds, answered: "This would put upon the city the burden of paving the whole street in case of any innovation in paving save by agreement of the company and the city. It is not a reasonable construction of the ordinance." This makes the phrase "these spaces and the street" equivalent to "these spaces or the street." The pavement required of the company was the same as that which the city had laid on all the street but the railway zone. The complaint of the road that the expense would reduce its income below a reasonable return on its investment was answered by saying that "there is no warrant in law for the contention that merely because its business fails to earn full six per cent upon the value of the property used, the company can escape either obligations voluntarily assumed or burdens imposed in the ordinary exercise of the police power."

The contract relied on in Hardin-Wyandot Lighting Co. v. Upper Sandusky was the statute in force in 1889 when the company's

'For the previous installments reviewing cases on Miscellaneous Federal Powers, Regulation of Commerce, Taxation, Police Power and Eminent Domain, see 19 MICH. L. REV. 1-24, 117-151 (November and December, 1920). *252 U. S. 100, 40 Sup. Ct. 306 (1920), 19 MICH. L. REV. 138. 252 U. S. 173, 40 Sup. Ct. 104 (1919), 19 MICH. L. REV. 139.