Fifth Amendment was rejected as unwarranted. Corneli v. Moore repeated previous holdings that liquor is not "taken for public use" by a law prohibiting its transportation. Morrisdale Coal Co. v. United States" applied the same ruling to a statutory restriction of the price of coal in sales between private parties. American Smelting and Refining Co. v. United States found that copper had been purchased by the government under a contract voluntarily entered into by the vendor and that therefore there was no taking in the nature of an exercise of the power of eminent domain. That the government may go far in destroying the value of prite property without taking it for public use in the constitutional sense is apparent from John Horstmann Co. v. United States," which denied compensation for the complete destruction of property by the rise in the level of a lake due to the percolation of water occasioned by a government irrigation project. Earlier cases granting compensation are apparently distingui hed on the ground that there the injury from public works was one to be anticipated, while here it was not. After remarking that the "generality" in an earlier opin"has had exception in subsequent cases," Mr. Justice McKenna continues: "It is to be remembered that to bind the government there must le implication of a contract to pay, but the circumstances may rebut that im; heation. In other words, what is done may be in the exercise of a right and the consequences only incidental, incurring no 1..'alary. "We think the cases at bar are within the latter decisions, and it would for ler on the extreme to say that the government intended a taking by that which no human knowledge could even prelict. Any offer com by ion world deter from useful enterprises on account of a died of incurring unforeseen and immeasurable lia'. This cotoment is of especial pertinence. The result of the government's work to the properties of plaintiffs could not have been foreseen or foretell is a recessary deduction from the fin lings of the Court of Clims. The court found that there is of security in the move ment of percolating waters, and that there was no evidence to remove it in the present case, and necessarily there could not have been foresight of their destination nor purpose to appropriate the properties." That this is not to be taken as a denial that the injury was due to the government works is clear from the earlier statement that the court "will assume with appellants that there was causal connection between the work of the government and the rise of the waters in the lakes and the consequent destruction of the properties of appellants, but it does not follow that the government is under obligation to pay therefor, as for the taking of the properties."5 The power of a state to withdraw from a telegraph company the privilege of taking property by eminent domain in any instance in which a taking has not been fully completed and established by adjudication is affirmed in Western Union Telegraph Co. v. Louisville & N. R. Co., in which an appeal from the judgment of the inferior court was held to leave the condemnation proceedings still in fieri, notwithstanding the fact that the condemnor had paid into court the damages awarded. This power to withdraw the privileges of condemnation before it is fully exercised was predicated on the original state power "to say upon what property and to what extent the right of eminent domain shall be exercised." 1958 50 In 7 CORNELL L. Q. 47 is a discussion of a case requiring payment of compensation for flooding of land due to works built to restrain a river, and in 31 YALE L. J. 335 is a note on a case requiring compensation to be paid for erosion due to straightening a river to prevent floods. 57 258 U. S. —, 42 Sup. Ct. 258 (1922), note 44, supra. This was a proceeding under a Kentucky statute which was apparently initiated in the federal district court. Road Improvement District No. 2 v. St. Louis S. W. Ry. Co., 258 U. S. —, 42 Sup. Ct. 250 (1922), holds that a proceeding under an Arkansas statute to assess benefits and damages growing out of a road improvement is "a suit at common law in a state court," and therefore removable to a federal district court by reason of diversity of citizenship when the requisites of this ground of removal are complied with. 58 Problems of eminent domain are considered in Roland R. Foulke, "The Jurisdiction in Eminent Domain Cases in Pennsylvania under the Act of 1871," 70 U. PA. L. REV. 172; and in notes on the power of one state to condemn land in another in 35 HARV. L. REV. 208 and 31 YALE L. J. 98, on the power of a city to lease land taken in fee in 6 MINN. L. REV. 523, on whether a railroad takes an easement or a terminable fee in 8 VA. L. Rev. 383, and on evidence of value of the Cape Cod Canal in 35 HARV. L. REV. In sustaining the finality of administrative determination of damages for taking by eminent domain, Mr. Justice Clarke declared, in Crane v. Hahlo,59 that the reference of such a question "to a commission, or board, or sheriff's jury, or other non-judicial tribunal was so common in England and this country prior to the adoption of the federal Constitution that it has been held repeatedly that it is a form of procedure within the power of the state to provide, and that, when opportunity to be heard is given, it satisfies the requirements of due process of law." This was followed by the clause: "especially when, as in this case, a right of review in the courts is given." This, however, is not to be taken as a necessary qualification of what preceded. The New York statute involved in the case made the finding of administrative officers conclusive as to the "amount of damages sustained," but awarded a "right to review in the courts the entire finding whenever lack of jurisdiction, or fraud, or wilful misconduct on the part of the members of the board should be asserted." The exact holding of the case was that it is proper thus to restrict judicial review in proceedings for takings indulged in at a time when complaints against the quantum of damages might be taken to the courts. 59 258 U. S., 42 Sup. Ct. 214 (1922). This case represents the termination of the controversy involved in Sauer v. New York, 206 U. S. 536, 27 Sup. Ct. 686 (1907). THA VI. RETROACTIVE CIVIL LEGISLATION 'HAT contracts between private parties cannot stand in the way of exercises of the police power for the promotion of health, morals and safety is firmly established. This principle was invoked against objection to rent regulation in decisions of the preceding term, and it is reiterated in Edgar A. Levy Leasing Co. v. Siegel.1 In one of the cases involved in this decision a tenant was relieved of a contract made after the statute was enacted, and the landlord here encountered the further doctrine that "of course, a lease made subsequent to the enactment of a statute cannot be impaired by it." A peculiar effort to lean on the obligation-of-contracts clause appears in Olin v. Kitzmiller, in which an alien who had declared his intention to become a citizen opposed an Oregon statute limiting fishing licenses to citizens and relied on a compact between Oregon and Washington which, among other things, provided that no license should be issued by either state to an alien unless he has declared his intention to become a citizen. Without deciding whether an individual could thus rely on a compact between states, Mr. Justice McReynolds interpreted the compact to mean no more than an agreement not to grant licenses to the classes specified. "There is," he says, "no inhibition against narrowing these classes nor indeed against a refusal to issue any license." Decisions of the preceding term that cities in Texas did not. under the Texas statutes and constitution, have power to make binding contracts as to rates in granting franchises were followed in Houston v. Southwestern Bell Telephone Co., in which a company * For the preceding instalments, see 21 MICH. L. REV. 63, 174, 290. 1 258 U. S. —, 42 Sup. Ct. 289 (1922), 21 MICH. L. REV. 307. 2 259 U. S., 42 Sup Ct. 510 (1922). 8 San Antonio v. San Antonio Public Service Co., 255 U. S. 547, 41 Sup. Ct. 428 (1921), 20 MICH. L. REV. 281, 388; Southern Iowa Electric Co. v. Chariton, 255 U. S. 539, 41 Sup. Ct. 400 (1921), 20 MICH. L. Rev. 281, 387. successfully contended that rates imposed were confiscatory. The city sought to avoid the customary standards of the "fair value" of the company's plant and to substitute therefor the "capital actually invested" for the reason that in 1915 the company in question had acquired by purchase and merger the property of a local corporation by virtue of an ordinance containing the proviso that the company agrees not to increase existing rates unless necessary in order to earn a fair return on the capital actually invested. Both parties agreed that the city was without power to enforce this restriction as a binding contract, but the city contended and the district court held that the company, having accepted the ordinance and acted upon it, "was estopped to claim that it was not bound by its terms." In disapproving of this Mr. Justice Clarke declared that "misrepresentation not being involved, mutuality was necessary to any estoppel growing out of this transaction, and while thus asserting that the ordinance is void as to itself the city may not successfully assert that its adversary is bound by the acceptance of it.” Where, however, the power of the city to contract is not denied, acceptance from the city of a privilege accompanied by conditions may work an estoppel against an effort to escape from the conditions. An illustration of this appears in Bankers Trust Co. v. Raton, in which the acceptance from a city by a water company of a twentyfive-year franchise, together with a promise by the city not to operate or maintain waterworks within the same period, was held to estop the company from contending that its privilege wa, redly derived from the state and was of indefinite duration. The decision is rested clearly on the ground of estoppel, and the court declines to decide from what source the city derived its power to enact the ordinance containing the twenty-five-year limitation. Such a disposition of the case opens the possibility that the result would have been the same had the company clearly possessed an unlimited franchise from the state, subject only to the power of the city to regulate its exercise, but Mr. Justice McKenna refers to a decision of the state court holding that the franchise was granted by the ordinance, and it seems clear that he would have reached the same result on an independent interpretation of the applicable statutes and ordi * 258 U. S. -, 42 Sup. Ct. 340 (1922). |