Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/480

 § 470.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VIII. fundamental rules that no man's property shall be taken with- out (1) due process of law, and (2) just compensation. The first is a restriction on the power of eminent domain and the power to tax, the second only on the power of eminent domain and on such instances of the exercise of the police power as raise the question whether property has been taken, and not merely regulated. 1 § 470. By the exercise of its power of eminent domain, 2 the Eminent state may take the property of corporations for Restrict public purposes, on making due compensation, just tions. as the state may take other property. 3 The exer- 1 No compensation need be made when private property is regulated by the police power. Talbot v. Hud- son, 10 Gray (Mass.), 417. 2 Eminent domain (or the right or power of eminent domain) "is the rightful authority which exists in every sovereignty to control and regulate those rights of a public na- ture which pertain to its citizens in common, and to appropriate and con- trol individual property for the public benefit as the public safety, necessity, convenience, or welfare may demand." Cooley, Cons. Lim'ns, 524; People v. Humphrey, 23 Mich. 471. It will be noticed that the notion of eminent domain given by this definition resembles in some respects notions of the police power. See infra, §§ 474 et seq.; also §§ 171 et seq. The power of eminent domain is not granted by the state constitution to the legislature, but is inherent in the legislature, limited only by constitutional restrictions. Central Branch U. P. R. R. Co. v. Atchison, T. and S. F. R. R. Co., 28 Kan. 45:5. A state may condemn property for the use of the United States. Orr v. Quimby, 53 N. H. 590. 8 A bridge held by an incorporated 460 company under a charter from a state may be condemned and taken as part of a public road, under the laws of that state. This charter, although a contract between the state and the company, is, like all other private property, subject to the right of eminent domain. The Federal constitution does not take away this right, the exercise of which does not interfere with the inviola- bility of contracts. All property and contracts are subject to eminent domain, and property held by an in- corporated company stands on the same footing with that held by an individual, and a franchise cannot be distinguished from other property. West River Bridge Co. v. Dix, How. 507. Accord, Central Bridge Co. v. City of Lowell, 4 Gray, 474; Metropolitan City R'y Co. v. Chicago West Div. R'y Co., 87 111. 317; Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 330; Backus «. Lebanon, 11 N. H. 10; Philadelphia Passenger R'y Co. 'b Appeal, 102 Pa. St. 123; Boston and L. R. R. Co. v. Salem, etc., R. R. Co., 2 Gray (Mass.), 1; compare Enfield Toll Bridge Co. v. Hartford and New Haven R. R. Co., 17 Conn. 453; S. C, 17 Conn. 40; Pennsylvania R. R. Co.'s Appeal, 93 Pa. St. 150.