Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/13

 terms. Eminent Domain being an incident of sovereignty its exercise can be granted by the State to municipal corporations and quasi public corporations. Of course, the people of a State can determine the exercise of this power by means of appropriate provisions in its Constitution. There are no express provisions in the Oregon Constitution giving this power. It therefore rests wholly in the Legislature unless Section 2 of Article XI, as now existing, grants the right to exercise such power. The only power given is as follows:

"The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon."

It must be borne in mind that the power to enact and amend charters is subject to the Constitution of the State, and to the sovereignty of the State; and that the exercise of the power of Eminent Domain is a matter which concerns all the people and the State itself. That this power may be delegated to a city or town through proper authority needs no citation of authorities. Can it be truly said that the mere right to enact or amend a charter is a grant or a delegation of the sovereign power of Eminent Domain without limitation? And, if limited, are its limitations other than Section 18 of Article I of the Oregon Constitution, which is:

"Private property shall not be taken for public use, nor the particular service of any man be demanded, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered."

Prior to the adoption of the amendment of 1906 the Oregon Supreme Court had passed on questions involved in the power of Eminent Domain in a numiber of cases, among which are the following:

In Dallas Lumbering Co. v. Urquhart, 16 Ogn. 67, Mr. Justice Strahan said (pages 69, 70):

It is not for the Courts to say in what particular instances or for what purposes the power of eminent domain may be exercised; that power belongs exclusively- to the Legislature, limited only by the Constitution, and that is, the use must be public and just compensation must be made.

Says an eminent American author: 'As the power to take is universal, so it is absolute; that is to say, the Legislature are the sole