Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/12

 jurists for centuries. The commentators on the civil law treat it as an established power of long standing. Puffendorf calls it the 'exercise of transcendental propriety'; as if the sovereign thereby resumed possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the sovereign. * * * In the United States this right of the subject is secured by the Federal Constitution, and by a separate clause in the Bill of Rights of almost every State in the Union. In the absence of provisions in the Constitutions, the Courts have considered that the principle was so universal and fundamental that laws not recognizing the right of the subject to compensation would be void. The Constitutions of the States do not confer upon the Legislatures the power of eminent domain, but they recognize its existence and attach conditions upon the exercise of the power. The right existed prior to the Constitutions.

In 2 Elliott on Railroads (2nd Ed.), Section 950 (page 473), it is said:

"The power of eminent domain has existed in all ages as an acknowledged attribute of sovereignty. It is inherent in every sovereign Government, and is not conferred by Constitutions, but is limited and regulated by them. It cannot be surrendered by grant or contract, since its continued exercise is essential to the existence of organized society. This power exists in each of the States of the Union, whether it is expressly conferred by the Constitution or not."

In the case of Leeds v. The City of Richmond, 102 Ind. 377, speaking of the right of a municipal corporation to exercise the powers of Eminent Domain, the Supreme Court of Indiana said:

"The high and extraordinary power of eminent domain may not exist without a special grant of power," Citing 2 Dillon Mun. Cor. (3rd Ed.), Sections 574, 575."

In Cooley on Constitutional Limitations (7th Ed.), page 753, Eminent Domain is defined as:

"That superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for the public benefit without regards to the wishes of its owners."

The power of Eminent Domain is not inherent in a municipal corporation, nor is it granted, nor can it be exercised merely by implication. It must be granted by the Legislature, unless the Legislature is prohibited from so doing by the Constitution, or be granted by the Constitution of the State, by express terms, or by a necessary implication equivalent to express