of the railway right of way for a site for the elevator, and does not authorize the condemnation of private property adjoining the right of way, which private property is sometimes equally as available as an elevator site, is as follows; The legislature has undoubted constitutional power to give the petitioner a right to select either a site on the right of way or on private property (Cooley, Const. Law (5th Ed.) 668), and the constitutional provisions were not intended to prohibit this. If the legislature has the power to delegate to the petitioner the right to select the right of way, it must have the power to make the selection itself, as the power is peculiarly a legisla tive one. The fountain cannot rise higher than its source. The delegated power cannot be greater than the source of that power. It is clearly, then, a case where the clause of the constitution prohibiting class legislation does not apply.

Sec. 227. What is a public use-Power of legislature to decide. A city has no power to grant a privilege for the construction of electric conduits under its streets for any other than public uses; and any such grant should be held void unless the city reserves the power of control over their construction, maintenance and use. State ex rel. St. L. Und. Serv. Co. v. Murphy, 134 Mo. 548 (34 S. W. Rep. 51). The legislature has no power, under the constitution, to enact a law authorizing one person to improve his own or the lands of another, by draining or otherwise and compel the person benefitted to pay therefor unless the public health is also benefitted thereby. The drainage of a man's farm simply to render it more valuable to the owner would not be a work of public utility in the constitutional sense of the term. It is not within the power of the legislature to determine what is a public use, within the meaning of the constitution. A private use cannot be transformed into a public one by mere legislative declaration. The mere fact that a system of drainage would render lands tillable, more productive, or increase their value, does not authorize the exercise of either the police power or the power of eminent domain. Gifford Drainage Dist. v. Shroer, 145 Ind. 572 (44 N. E. Rep. 636). For cases which depend upon particular facts and illustrate what constitutes a public use see Hodgerson v. St. Louis. C. & St. P. R. Co., 160 Ill. 430 (43 N. E. Rep. 614). The Washington statute, act 1895, Ch. 117, authorizing a portion of a county to organize into a docking district to establish a system of docks by special assessment on the property benefitted and to take land for such purposes by condemnation proceedings, is held constitutional. Hansen v. Hammer, 15 Wash. St. 315 (46 Pac. Rep. 332). Land may be condemned for the construction of a railroad through a sparsely settled country without any town or other railroad at its termini, and though the road is not to be equipped with coaches and no fare is to be charged to

passengers. Bridal Veil Lum. Co. v. Johnson, 30 Ore. 205 (46 Pac. Rep. 790; 60 Am. St. Rep. 818. The court say: "The necessity or expediency of taking private property for public use, the instrumentalities through which it may be done, and the mode of procedure, are legisla. tive, and not judicial, questions. But, whether the proposed use thereof is in fact public, so as to justify its taking without the consent of the owner, has always been a question for the courts to determine; and in doing so they are not confined to the description of the objects and purposes of the corporation as set forth in its articles of incorporation, but may resort to evidence aliunde showing the actual business proposed to be conducted by it." Citing, Lewis Em. Dom., § 158; In re Niagara Falls & W. R. Co., 108 N. Y. 375 (15 N. E. Rep. 429); Railroad Co. v. Wiltse, 116 Ill. 449 (6 N. E. Rep. 49). For cases and notes on what constitutes such public use as will authorize a taking, see Vol. II, § 198; Vol. III, § 261; Vol. IV, §§ 217, 218.

Sec. 228. Constitutional law-Legislative power. The statute empowering cities to annex territory by ordinance and limiting the right of appeal to resident freeholders is held not to be unconstitutional. Taggart v. Claypool, 145 Ind. 590 (44 N. E. Rep. 18; 32 L. R. A. 586). The legislature of Washington may authorize a boom company to condemn land under the right of eminent domain. Const., Art. 2, § 28, subd. 6, construed. North River Boom Co. v. Smith, 15 Wash. 138 (45 Pac. Rep. 750). For a collection of authorities on the power of the legis iature to make a compulsory purchase of a railroad for less than its value, see In re Opinion of the Justices, 66 N. H. 629 (33 Atl. Rep. 1076), Georgia Acts 1892, p. 42, conferring upon a railroad company power "to take," "for obtaining gravel and other material, as much land as may be necessary for the proper construction, operation, and security of its railroad," is constitutional and authorizes the taking of land outside of the right-of-way of such railroad for the purpose of obtaining such gravel and other material. Hopkins v. Florida Cent. & P. R. Co., 97 Ga: 107 (25 S. E. Rep. 452). A statute (85 Ohio Laws, 34) providing that buildings of a certain height in cities of a certain class shall be provided with fire escapes and for procedure in equity to enjoin the use or occupation of such buildings until the provisions of the statute are complied with, is not unconstitutional as depriving the owner of the use of property with out the intervention of a jury or due process of law, but may be upheld as a valid police regulation. Cincinnati v. Steinkamp, 54 O. St. 284 (43 N. E. Rep. 490). A statute authorizing the appropriation of land is not unconstitutional because of its failure to provide for interest upon damages allowed from the time of the appropriation until the taking of actual possession. Norcross v. Cambridge, 166 Mass. 508 (44 N. E. Rep. 615).

Sec. 229. Constitutional law-Creating" Park Systems." A provision in a city charter providing for a park system, is not unconstitutional because it casts the burden of paying for a park

upon the real estate of a "benefit district" created under its provisions, composed of a part only of the area of the city instead of placing it upon the entire city. Kansas City v. Ward, 134 Mo. 172 (35 S. W. Rep. 600). The court say: "Public parks in the densely-populated cities are manifestly essential to the health, comfort and prosperity of their citizens. It is universally conceded, and not disputed in this case, that such improvements are a public use, within the meaning of the constitution, for the purposes for which the land of the citizen may be taken upon payment of a just compensation. County Court v. Griswold, 58 Mo. 175; Shoemaker v. U. S., 147 U. S. 297 (13 Sup. Ct. Rep. 361), and cases cited. They confer not only a general benefit upon all the citizens of the municipality, but, over and above this, a special and peculiar benefit, upon the citizens owning real estate in the immediate vicinity thereof, in the enhancement of the pecuniary value of their property. The law in question casts the burden of the general benefit upon the city, and of this special and peculiar benefit upon the property of those who are its recipients, and, in so doing, violates no constitutional provision, is eminently just and proper, and within the principle upon which special assessments for local bene. fits derived from public improvements have been uniformly sustained.”

EPITOME OF CASES.

A con

Sec. 230. As to the right of eminent domain. demnation proceeding under the right of eminent domain can be legally maintained only to subject the private property of one owner to the public use of another. A condemnation proceeding under the right of eminent domain cannot be instituted by a corporation to quiet its title to land it claims to already own, nor can it be instituted for the purpose of compelling a specific performance of a contract already entered into between a corporation and others. Florence, E. D. & W. V. R. Co. v, Lilley, 3 Kan. App. 588 (43 Pac. Rep. 857). The unexercised right of eminent domain is no justification for a corporation violating a criminal statute which prohibits the cutting of trees upon the land of another. Farrow v. Nashville, C. & St. L. Ry. Co., 109 Ala. 448 (20 So. Rep. 303). Condemnation proceedings cannot be instituted by a railway corporation for the special purpose of condemning a mere mortgage lien on land, the absolute title. of which is vested in such corporation, subject to the lien. The law does not recognize a mere lien as an interest in real estate which is subject to such proceedings. Chicago, K. &

W. Ry. Co. v. Need, 2 Kan. App. 492 (43 Pac. Rep. 997). The power of eminent domain is one of the inalienable incidents of sovereignty, which, treated simply as a question of power, may be exercised in favor of public uses over any and all private and even public property. The property and franchises of corporations, as well as individuals, although dedicated to public uses, may be taken for other public uses more necessary. Southern Pacific R. R. Co. v. Southern California Ry. Co., 111 Cal. 221 (43 Pac. Rep. 602). There is no such thing as extinguishing the right of eminent domain, but this inalienable power is to be exercised under and by virtue of the legislative will as expressed by the law making power. Southern Pacific R. R. Co. v. Southern California Ry. Co., 111 Cal. 221 (43 Pac. Rep. 602).

Sec. 231. Police power distinguished from eminent domain. In the exercise of police power, the legislature may authorize a city to fill up low lots which its board of health may have declared to be a public nuisance and recover the costs thereof from the landowner. City Council v. Werner, 46 S. C. 323 (24 S. E. Rep. 207). Affirming City Council v. Werner, 38 N. C. 488 (17 S. E. Rep. 33). In the latter case it is said: "The state, though the lawmaking body, certainly possesses the police power, which, from its very nature, has no well-defined limits, but must be as extensive as the necessities which call for its exercise. Although not clearly defined, it is an extensive power, distinguished not only from the power of taxation, but also from that of eminent domain, and, in its widest sense, is said to be the general power of a government to preserve and promote the general welfare, even at the expense of private rights."

Sec. 232. Taking property without due process of law-Assessments for improvements. The enforcement of a local assessment for improvements to a street, where the person of whom the assessment is exacted has had no opportunity to appear and contest the legality, justice and correctness of the assessment before it is finally determined upon, and a lien fixed on his property, is the taking of his property without due process of law, within the meaning of the pro

vision of the federal constitution. Violett's Heirs v. City Council of Alexandria, 92 Va. 561 (23 S. E. Rep. 909; 53 Am. St. Rep. 825). The court say: "In every instance where the rights of property are involved, before the liability of the tax payer is finally determined, he must have some kind of notice of the proceedings, and an opportunity to be heard with reference to the value of his property and the amount of the charge. 2 Hare, Const. Law, 871, and cases cited in note 3. In Cooper v. Board, 108 E. C. L. 181, involving the action of the board of public works, in pursuance of a statute which did not require notice, Willis, J., said: 'I apprehend that a tribunal which is by law invested with power to affect the property of one of her majesty's subjects is bound to give such subject an opportunity of being heard before it proceeds. And that rule is of universal application, and founded upon the plainest principles of justice.' Judge Earl, in an elaborate opinion of the court of appeals of New York in Stuart v. Palmer, 74 N. Y. 191 (30 Am. Rep. 289), said: 'It is diffi cult to define with precision the exact meaning and scope of the phrase "due process of law." Any definition which could be given would probably fail to comprehend all the cases to which it would apply. It is probably better, as recently stated by Mr. Justice Miller, of the United States supreme court, "to leave the meaning to be evolved by the gradual process of judicial inclusion and exclusion, as the cases presented for decisions shall require, with the reasoning on which decisions may be founded." Davidson v. New Orleans, 96 U. S. 104. It may, however, be stated generally, that due process of law requires an orderly proceeding, adapted to the. nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce and protect his rights. We cannot conceive of due process of law without this.' And, again: 'It has always been the general rule in this country, in every system of assessment and taxation, to give the person to be assessed an opportunity to be heard at some stage of the proceedings. That due process of law requires this has been quite uniformly recognized.""

Sec. 233. As to what may be taken-Railroad lands. The Massachusetts statute, 1892, ch. 341, § 1, as amended by