poration shall be allowed to carry on business within the State. But a State cannot, by virtue or under color of this right, prohibit or regulate commerce among the States or with foreign nations, or impose limitations on the power of corporations chartered by other States or countries to make contracts for carrying on interstate or foreign trade.2

The right of a shareholder in an incorporated company is not to a sum fixed by contract, but to his proportion of the capital or profits, as awarded from time to time and regulated by law; and consequently there is no valid objection to an act of Congress providing that the stock of a national bank shall be taxable only by the State where the bank is located, although the owner is not a citizen, or resides elsewhere.3

It was laid down in the Federalist, and has never been controverted, that the right of the United States to tax does not preclude a State from taxing a subject-matter which has been already taxed by Congress, subject to the priority of the United States if the fund is insufficient to meet both demands. Hence a license granted by the United States for the sale of liquor for the purpose of revenue, will not authorize the licensee to sell contrary to the laws of the State, or without paying the tax which it has imposed. Such legislation is restrictive that sales shall not be made without a license, and does not confer any greater right than would exist independently of the law. In other words, it is simply an exercise of the power of Congress to tax, and is not exclusive of the right of the State to impose an additional tax on the same subject-matter, and therefore differs widely from a coasting license granted in pursuance of the commercial power, which implies that the States are not to disturb what Congress have regulated.*

1 Bank of Augusta v. Earle, 13 Peters, 519; Ducat v. Chicago, 10 Wallace, 416; The Philadelphia Tr. Association v. New York, 119 U. S. 110.

2 Paul v. Virginia 8 Wallace, 168; Cooper Manuf. Co. v. Ferguson, 113 U. S. 727, 734.

The National Bank v. The Commonwealth, 9 Wallace, 362; Hepburn v. The School Directors, 79 Pa. St. 159; 23 Wallace, 180.

♦ McGuire v. The Commonwealth, 3 Wallace, 387.

LECTURE XVIII.

Eminent Domain. Its Source and Nature. - Its Exercise limited to Public Purposes. - The Question whether the Purpose is public primarily for the Legislature, but ultimately for the Judiciary; the Question of Expediency for the Legislature alone. -The Right of the Owner to Compensation. Measure of Damages.

THE right of eminent domain is that of taking property for public use, and is called "eminent" because it is vested in the State, and may supersede every private right or title. The public domain of the government is that which it holds or owns in its sovereign capacity as a trustee for the people. Its eminent domain is a power, by virtue of which it is potentially the owner of the entire mass of property within its jurisdiction, and may acquire such portions of it as are requisite for governmental purposes. Like the power to tax, to arrest for the prevention of offences, and to punish them when committed, it is an attribute of sovereignty and essential to the ends for which government is instituted, and is therefore possessed by Congress, although not expressly conferred. It was accordingly declared, in the case last cited, that, there being no constitutional prohibition, the United States have, like other sovereigns, a right which is the offspring of a necessity existing under every form of government, and may exercise it within the boundaries of the several

1 West River Bridge v. Dix, 6 Howard, 507, 510; Von Brocklin v. Tennessee, 117 U. S. 151, 154; The United States v. Great Falls M. Co., 112 U. S. 645; The United States v. Jones, 109 Id. 573.

2 Sinnickson v. Johnsons, 2 Harrison, N. J. 129; Gardner v. Newburgh, 2 Johnson's Ch. 162; Pumpelly v. The Green Bay Co., 13 Wallace, 166; Smith v. The City of Rochester, 92 N. Y. 463, 477; Kohl v. The United States, 91 U. S. 372.

States without obtaining their assent or co-operation. This does not depend on the language of the Fifth Amendment, that property shall not be taken for public use without compensation, but on an implication which would be irresistible had that not been adopted, because it is unreasonable to suppose that the Constitution as originally framed left the government powerless in so important a particular, and unable to appropriate the land needed for its fortifications, arsenals, and public buildings. The right of eminent domain is so far analogous to taxation that both depend on the right of the State to so much of the property of its subjects as may be requisite for the public needs; but there is this difference, -that while taxation distributes the burden among all, the entire charge may, under the right of eminent domain, be thrown on an individual, who may be compelled to surrender his house, his farm, or some object which use has endeared, without being entitled to a pretium affectionis, or to more than its fair market value. The last-mentioned power operates on land or goods to appropriate them specifically to some end that can be attained in no other way, while the former imposes a pecuniary obligation, or to render things of a certain kind, which may be satisfied by payment. The use to which the proceeds are applied is presumably an equivalent for the loss occasioned by taxation; but there is no room for such an inference as it regards the right of eminent domain, which is accordingly attended with a moral, and, under the organic law of the United States, a legal obligation to compensate the person who is deprived of his property for the general good. This distinguishes the exercise of the right of eminent domain from taxation in kind, which is in other respects much the same. Were the legislature to enact that farmers, or the proprietors of mines, should render a tenth of their wheat or coal, it would be a tax; but if a statute authorizing a general or a board of commissioners to appropriate as much wheat or coal as the exigency requires, is valid, it can be so only as an exercise of the right of eminent domain.

The line of demarcation was accurately drawn by Ruggles,

OF EMINENT DOMAIN.

333

J., in The People v. The Mayor of Brooklyn.1 "Taxation exacts money or services from individuals as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain is taken, not as the owner's share of contribution to a public burden, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to repay, otherwise than in the proper application of the tax. Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals."

It results from what has been said that eminent domain may be described as a right to provide for the common defence and general welfare by purchasing such property as is specifically requisite for these ends, without the consent of the owner, and at a price set, not by contract, but according to certain general rules.2 The right does not ordinarily, therefore, extend to fungible goods; as, for instance, food, clothing, money, or other products, which may in general be obtained at current rates, and where one parcel may presumably take the place of another. It would obviously be unjust and oppressive to compel A to part with what can be obtained in the ordinary course of business from B.

The State should not take compulsorily where it is possible to buy, or infringe private rights unless there is no other way. Taxation is therefore the preferable mode whenever

1 4 Comstock, 419, 424.

2 "The public," says Blackstone, "is now considered as an individual treating with an individual for an exchange; and all that the legislature does is to oblige the owner to alienate his possession for a reasonable price." Such is the view also taken by Chancellor Kent in Gardner v. Newburgh, 2 Johnson's Ch. 162, 167, and it is sanctioned by the judgment in Pumpelly v. The Green Bay Co., 13 Wallace, 166.

People v. rooklyn, 4 Comstock, 419.

it can be successfully employed, and recourse should not be had to the right of eminent domain unless purchasing is impracticable, or would involve a disproportionate cost. Still, there may conceivably be cases where stores, clothing, or money are imperatively required to maintain an army or fit out a fleet, and the supply is limited, or held at an exorbitant rate; and the right of eminent domain may then be invoked with as much reason as if land were needed for a navy-yard or the site of a fortification.1

The right of eminent domain would seem to result from the title of the nation as an organized body politic to the country considered as a whole, as distinguished from the title of the citizen to his land or chattels. In this sense France belongs to the French, England to the English, and our own land to the people of the United States. The right of a people to their country is at least as clear as that of a man to his house or ground, a doctrine that would have seemed indisputable in antiquity, although it may be questioned by the philanthropy of the present time. The right of property in land seems to have originated among most races in the claim of the several tribes or clans to as much territory as each could occupy or defend, and private right is a derivation from that source, and subordinate to the requirements of the community as a whole. Under the feudal system, the title to real estate was held directly or indirectly of the sovereign; and there is hardly an acre of land in the United States that may not be traced back to a grant from the king, from the proprietaries whom he enfeoffed, from the States which succeeded to their rights, or from the General Government. It is by virtue of such ownership that a State may, if the circumstances require it, exclude the citizens or subjects of another, — a right arbitrarily denied by the Europeans to China and Japan, but which may be essential to protect a nation from a peaceful invasion, which, under the guise of emigration, would subvert its religion, institutions, and laws. The power of eminent domain comes from

1 Hammett v. Philadelphia, 65 Pa. St. 146.