Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/481

 CHAP. Vni.] CORPORATION AND STATE. [§ 471. cise of this power either by the United States 1 or by a state, is subject to two restrictions contained in the Federal consti- tution (as well as in state constitutions) : (1) no person shall be deprived of his property without due process of law ; (2) nor shall private property be taken for public use without just com- pensation. 2 §471. The phrase "due process of law" is one that seems likely for many years to remain without adequate .. Duepro. definition. It means the "law of the land," as cess of those words are used in Magna Carta; 3 and, conse- quently, it means something which is continuously undergoing modification and development. The provision in Magna Carta is a restriction on the power of the Crown rather than on that of Parliament ; but the provision in our constitution that no person shall be deprived of his property without due 1 The United States, directly or through a railroad corporation char- tered by it, may in the exercise of its constitutional powers take lands by eminent domain in the territories (even lands held by Indians) or in a state. Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641. See Darling- ton v. United States, 82 Pa. St. 382. 2 Am'd't V., which does not apply to the states; Withers v. Buckley, 20 How. 84; and Am'd't XIV., which does apply to the states. The provi- sion that private property shall not be taken without just compensation is not in Am'd't XIV.; but is con- tained in most of the state constitu- tions. And the Federal Supreme Court holds that for a state to take private property for a public use without compensation is " wanting in the due process of law required by the Fourteenth Amendment." Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226, 241. See Matter of Tuthill, 36 App. Div. (N. Y.) 492, 498, aff'd, 163 N. Y. 163. The state cannot take private property on pay- ment of less than its value. Opinion of the Justices, 66 N. H. 629. That the right of eminent domain exists in the government of the United States, and may be exercised by it within the states so far as is necessary to the exercise of the powers conferred on the Federal government by the constitution, was held in Kohl v. United States, 91 U. S. 367. The state cannot delegate a right to take property by eminent domain, for a private purpose. § 163, ante. 3 Murray's Lessee v. Hoboken Land Co., 18 How. 272. Magna Carta was granted or enacted by John "per consilium" of his pri- mate, his barons, and the papal legate. The thirty-ninth section, which contains the phrase in ques- tion, runs thus: " Nullus liber homo capiatur, vel imprisonetur, aut dis- saisiatur, aut utlagetur, aut exule- tur, aut aliquomodo destruatur, nee super eum ibimus, nee super eum mittimus, nisi per legale judicium parium suorum vel per legem ter- rae." Stubb's Select Charters, 276- 291. See § 492. 461