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delphia (1917), 245 U. S. 20. It is not to be confused with the power of taxation. "Each is governed by its own principles," Houck v. Little River Drainage District (1915), 239 U. S. 254. A tax is an enforced contribution for the payment of public expenses and is laid according to some rule of apportionment by which the persons or property taxed share the public burdens. The taxpayer's only compensation is the governmental protection which he receives or the special benefits which accrue to him from some special expenditure, as in the construction of a drainage canal. But when private property is taken for public use the owner receives full compensation. The taking differs from a sale only in the fact that the transfer is compulsory, and in the absence of agreement as to price, the amount of compensation may be determined by a jury or by officers appointed for the purpose. All private property is held subject to the demands of a public use. The requirement of the Fifth Amendment that a just compensation shall be paid for property taken is not a limitation on the power to take but only a condition upon its exercise, Long Island Water Supply Co. v. Brooklyn (1897), 166 U. S. 685. The Fifth Amendment applies only to the Federal Government and the Constitution contains no express requirement that just compensation shall be paid for property taken by a State for public use, but it is well settled that a taking without such compensation would be a deprivation of property without due process of law and would violate the Fourteenth Amendment, Chicago, Burlington & Quincy Ry. v. Chicago (1897), 166 U. S. 226. The taking of property by the State for private use, even though compensation be paid, is contrary to the due process clause, Missouri Pacific Ry. v. Nebraska (1896), 164 U. S. 403.

What constitutes a public use is sometimes difficult to determine. Land taken for a public building, Kohl v. United States (1875), 91 U. S. 367, for a railway, even though it be a spur track leading to a private factory, Union Lime Co. v. Chicago &c. Ry. (1914), 233 U. S. 211; for parks, Shoemaker v. United States (1893), 147 U. S. 282; for highways, Luxton v. North River Bridge Co. (1894), 153 U. S. 525, are typical examples of public use. A power company sought to condemn private land, water and water rights in order to manufacture and sell to the public power produced by water. In answer to the owner's argument that the purpose of the company was not a public one, Mr. Justice Holmes said in Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. (1916), 240 U. S. 30:

In the organic relations of modern society it may sometimes be hard to draw the line that is supposed to limit the authority of the legislature to exercise or delegate the power of eminent domain. But to gather the streams from waste and to draw from them energy, labor without brains, and so to save mankind from toil that it can be spared, is to supply what, next to intellect, is the very foundation of all our achievements and all our welfare. If that purpose is not public we should be at a loss to say what is.

Other purposes which have been held to be public are the irrigation

of arid lands, Fallbrook Irrigation District v. Bradley (1896), 164 U. S. 112; the taking of undrainable lands for the purpose of filling and reselling to the public, Sweet v. Rechel (1895), 159 U. S. 380; the construction of aerial bucket lines from mines on a mountain side to a railway below, Strickley v. Highland Boy Gold Mining Co. (1906), 200 U. S. 527; the construction of lighthouses, Chappell v. United States (1896), 160 U. S. 511; the preservation of an historic battle field, United States v. Gettysburg Electric Ry. (1896), 160 U. S. 668; the improvement of a railway by a lessee company over the objections of minority stockholders, and the condemnation of their shares for the purpose, Offield v. New York, New Haven & Hartford Ry. (1896), 203 U. S. 372. In determining what is a public purpose in cases involving the validity of State action, the Supreme Court is much influenced by the judgment of the State authorities as to the requirements of local conditions. This was emphasized in Clark v. Nash (1905), 198 U. S. 361, in which was involved the right of an individual to construct an irrigating ditch across his neighbor's land to his own land, which was arid and for which water could be obtained in no other way. The action of the Legislature of Utah in authorizing the construction was sustained. Such a ditch might be justified as a way of necessity, but the argument of the Court that such a use for the benefit of but one person may be a public use is not convincing. The nature of a use, whether public or private is a judicial question, Rindge Company v. County of Los Angeles (1923), 262 U. S. 700, but the necessity or expediency of taking property for a public use is a legislative question and a judicial hearing thereon is not essential to due process, Sears v. Akron (1918), 246 U. S. 242. In exercising its power of Federal Government may act

eminent domain in the States, the without the consent of the State in which the property taken is situated, Van Brocklin v. Tennessee (1886), 117 U. S. 154.

The question as to what constitutes a taking arises with greatest frequency in cases where property is damaged or destroyed in connection with the performance of some lawful act, particularly if the act is performed in the exercise of a public right. In some States it has been held that there is no taking of property unless there is a transfer of title. That this view has been generally abandoned is due chiefly to the great opinion of Judge Smith in Eaton v. Boston, Concord & Montreal Ry. (1872), 51 N. H. 504; Thayer, Cases on Constitutional Law, I, 1064. The defendant built a railroad across the plaintiff's land, and cut through a natural ridge which protected the land from a neighboring stream. In times of freshet water poured through the cut and deposited quantities of earth and stone upon the land making it unfit for cultivation or use. This was held to be a taking of the plaintiff's property for which he was entitled to compensation, even though he was not divested of title to the land. This principle has been applied by the Federal Supreme Court in numerous cases among which are Pumpelly v. Green Bay Company (1871), 13 Wallace, 166; United States v. Lynah (1903), 188 U. S. 445, United States v. Welch (1910), 217 U. S. 333, and United States v.

Cress (1917), 243 U. S. 316. In Portsmouth Harbor Land and Hotel Co. v. United States (1922), 260 U. S. 327, it was held that the installation of batteries at a neighboring fort with the purpose of firing across the plaintiff's land (chiefly valuable as a summer resort) whenever the officers should see fit constitutes a taking. Such cases are to be distinguished from cases of incidental damage to private rights in consequence of the exercise of a public right. Typical examples are found in damage to riparian owners through the construction of dams or other means of improving navigation. In Manigault v. Springs (1905), 199 U. S. 473, the State of South Carolina authorized the construction of a dam in a stream as part of a plan for draining certain lowlands and provided for payment for any damage caused thereby. The plaintiff sought to enjoin construction on the ground that it would make access to his lands more difficult and by raising the height of the water would compel him to raise the dykes about his lands. In denying his petition the Court said, "We think the rule... is that where there is a practical destruction or material impairment of the value of plaintiff's lands, there is a taking which demands compensation; but otherwise where, as in this case, plaintiff is merely put to some extra expense in warding off the consequences of the overflow." If the United States, in exercise of its authority under the commerce clause, undertakes the improvement of a navigable stream by the erection of piers or other structures which make access to riparian lands more difficult, there is no ground for compensation, Gibson v. United States (1897), 166 U. S. 269. Such damage is not a taking of property but is merely incidental to the exercise of a servitude to which the land was always subject. Likewise, in furtherance of navigation, the removal of structures, such as bridges, lawfully placed in a river by riparian owners may be required without compensation, Union Bridge Co. v. United States (1907), 204 U. S. 364. The principles underlying such cases are well discussed in United States v. Chandler-Dunbar Water Power Co. (1913), 229 U. S. 53. See also Transportation Company v. Chicago (1879), 99 U. S. 635 (no compensation to riparian owner because of temporary obstruction to access to his land on account of construction of a tunnel under the Chicago river); Bedford v. United States (1904), 192 U. S. 217 (no compensation to riparian owner whose land on the Mississippi was eroded by construction of revetments above his land to prevent erosion); Chicago, Burlington & Quincy Ry. v. Illinois (1906), 200 U. S. 561 (no compensation for enlargement of a bridge made necessary by the State's widening of the channel of the stream); Sauer v. City of New York (1907), 206 U. S. 536 (no compensation to owner of land for deprivation of light, air and access from the street through the construction of a viaduct which was held to be a street improvement); Willink v. United States (1916), 240 U. S. 572 (no compensation to owner of plant for repairing vessels because of substantial injury to his business by the establishment of new harbor lines); John Horstman Company v. United States (1921), 257 U. S. 138 (no compensation for unforeseeable damage to plaintiff's property by the construction of public irrigation works); Keokuk & Hamilton Bridge

Co. v. United States (1922), 260 U. S. 125 (no compensation for damage to the pier of a bridge caused by blasting in connection with the improvement of navigation).

When private property is taken for public use and there is a market price prevailing at the time and place of taking, that price is just compensation, United States v. New River Collieries Co. (1923), 262 U. S. 341, even though the owner, under long-time purchase contracts, was later obliged to pay a higher price, Vogelstein & Co. v. United States (1923), 262 U. S. 337. But the compensation to which the owner is entitled is the full and perfect equivalent of the property taken, Monongahela Navigation Co. v. United States (1893), 148 U. S. 312. "When the United States condemns and takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the property at the time of the taking; he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added," Seaboard Air Line Ry. v. United States (1923), 261 U. S. 299. The Constitution does not require that the amount of compensation to be paid for property taken shall be ascertained by a jury. It may be entrusted to commissioners appointed for the purpose by a court or by an executive or to an inquest consisting of a body of men either more or less numerous than a jury, Bauman v. Ross (1897), 167 U. S. 548.

The relation of the police power to due process is considered in Chapter XII.





100 United States, 303.

Error to the Supreme Court of Appeals of the State of West Virginia.

[The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced, and his conviction was affirmed by the Supreme Court of the State. The present case is a writ of error to that court, the chief assignment of error being that the prisoner was convicted without due process of law since the laws of West Virginia excluded the members of his race from jury service.]

MR. JUSTICE STRONG delivered the opinion of the court. . .

In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?

It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he

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