Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/11



It is proper first to consider some phases of the law as they were established and had become stare decisis prior to these amendments. I call particular attention to the law as so established on the following powers and subjects, viz.:

First. The law of Eminent Domain.

Second. The power to grant franchises and the control of highways.

Third. The law relating to bridges on navigable rivers wholly within a State.

In ''10 Am. and Eng. Ency. of Law'' (2d Ed.), page 1049, it is said:

"The right to exercise the power of eminent domain is inherent in sovereignty, necessary to it and inseparable from it. From the very nature of society and organized government this right must belong to the State. It is a part of the sovereign power of every nation. * * * It lies dormant in the State until legislative action is had pointing out the occasions, the modes and the agencies for its exercise."

In Lewis on Eminent Domain, Sections 237 and 238, it is said:

"Sec. 237. The power of eminent domain, being an incident of sovereignty, is inherent in the Federal Government and in the several States, by virtue of their sovereignty. It does not exist in any subordinate political division or public corporation unless granted by the sovereign power. Consequently it does not exist in any territorial government unless it has been expressly granted by Congress. This power, with all its incidents, is vested in the Legislatures of the several States by the general grant of legislative powers contained in the Constitution. From this it follows, first, that the power can only be exercised by virtue of a legislative enactment; second, that the time, manner and occasion of its exercise are wholly in the control and discretion of the Legislature, except as restrained by the Constitution.

Sec. 238. The necessity for exercising the power is exclusively for the Legislature. Whether the power of eminent domain shall be put in motion for any particular purpose, and whether the exigencies of the occasion and the public welfare require or justify its exercise, are questions which rest entirely with the Legislature."

In Mills on Eminent Domain, Section 1, it is said:

Eminent domain, or the power of the sovereign to condemn private property for public use, has been recognized and treated of by