Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1846-06-11
BRATTLEBORO, THURSDAY, JUNE II, 1916


IT, then, this proceeding is obnoxious 10 the OBJ
lection of violating the Constitution, it must be for
some other reason than because private property
once granted by the State has been resumed for
public use in the manner pointed out by the Con-
stiiuiion and laws Of the State.
Ii this restriction does not forbid the exercise Of
the power, does it limit and control tl
Unquestionably 1t does A grant is a contract,
and any thing which defeats or mpairs rights grow.
ing out Of 1t in manner inconsistent with the con-
s,ituton and laws OF the State may be said TO i'm
pair its obligation. Thus to take private property
for public use without compensation where the
State constitution forbids such taking, is doubtless
prohibited by that clause OF the Constitution Of the
United States which provides that no law shall be
passed impairing the obligation of contracts.
In order, then, 10 render the exercise Of eminent
domain ustifable and consistent with the Conslitu-
ton of the United States, il is admitted there
should be, first, compensation to the owner
where the State constitution requires il; and Sec
ondly such necessity for the act as rational exer-
else Of the power keeping in view its end and pur-
pose, requires.
As to the compensation, it is in this instance fully
provided for
So scrupulous is the law Of the State on this
point, that not only the whole property of the
plaintiffs compensated for at its appraised value in
this instance. but provision is made by the statue
see statutes Of Vermont, p. 1881 for revision OF
the subject in certain by the Judicial tribu-
nails
1t was objected before the State court. tina, no
notice was given to the plaintiffs by the commission
ers before proceeding to assess damages.
The State court, doubtless, found that notice
was given, as the return Of the commissioners so
states. But If the fact were otherwise the omis.
sion does not vtiate the proceeding, the statute
just alluded 10 provides remedy in such n case.
The value Of the plaintiffs property, aud the a.
mount Of compensation, having been ascertained
by Judicial determination, this court will not en-
quire whether it was in fact reasonable or not
The adjudication of the State court is conclusive,
and an Of judgment, in this particular, would
not yitate the proceeding.
The next enquiry is as TO the necessity for the
exercise Of the power in this instance.
1t is admitted that the right to take private prop
erty for public use depends upon necessity. Yet
tina, need not be Of the most stringent character
an unavoidable uncomfortable necessity. Its E.
nough If the public interest convenience require
IT; IN short, If 1t be measure Of public expedi-
ency
Upon this principle has the power been exe.cis-
ed in vast majority Of cases throughout the coun-
try All modern improvements in the means Of
communication stand upon this footing. New
roads substituted for old ones for convenience
alone. Canals and railroads are not Indispensable
the country may subsist, as it has DONE without
them yet they intimately connected with
the great interests Of the country, and have such
important bearing upon its prosperity and welfare
that the proprcy and legality of the exercise of this
right OF eminent domain for their establishment has
never been doubted.
1.-THE power exis, in the State governments, the
power Of Judging of the reasonabeness of its exer-
else in given case, and Of the degree of necessity
generally which ustlfes the appropriation private
property TO public use, must exist there also.
This power is admitted to appertan to the State
Legislatures, and may without question: be delegat-
ed by them to the judicial tribunals as il is often
delegated to private corporations and mere execu-
tive officers. When exercised by the latter il is Of
course subject TO Judicial revision and control
Upon this ground stands the proceeding in chan
Gerry in the State court which has been brought
hither by writ of error.
This Judicial function must be vested somewhere,
and from the very nature of it, it having reference
to matter Of mere internal and domestic policy,
1t must be in the State government
The decision of the State court is therefore, up
this point, oOHolusice, and the necessity for the
exercise of the power in this case is judiciay es-
fdbhShcd.
If, then, the power has been exercised agreeably
to the provision Of the State constitution and upon
sufficient necessity, for proper and rational objects,
and in proper legal manner, the plaintiffs are
driven TO the alternative of either admitting the
consiitutonaity and validity of the proceeding or
denying the power altogether. For, ifsuch an ex-
ercise Of it be forbidden by the prohibition in the
Constitution of the United States, all and every ex-
ercise of it is equally
But that prohibition was not intended TO override
or abrogate the right Of eminent domain. The lat
ter remains full ample, and unimpared 10 be ex-
erted in a sound legislative and Judicial discretion
in proper cases aud for proper ends.
The proceeding in question does not impair the
obligation of the grant 10 the plaintiffs in I705.
Every grant of this kind is made subject to the
right of eminent domain, and of course upon the
implied condition that the property may be resum-
ed for public use whenever the public necessities
require it, This is universally admitted in respect
to land, and shall endeavor to show that there is
no difference in this respect between land and a
franchise like the one in question. The resump.
ton, therefore, whenever the public exigencies re.
qulre IT, Is IN harmony with the original intent and
tenor of the grant.
1t is not an attempt to repeal or annual the grant
but the proceeding recognises its validity and the
rights derived from il. 1t is on this ground thai
compensation is made.
II is purchase by the State Of the plaintiff
franchise and may be illustrated by its analogy ic
purchase by grantor of title derived originally
from his own conveyance.
II is, am aware, proceeding in invitHm /; but
being purchase, il is no more in derogaton Of The
grant, than the of creditor who, by virtue
OF legal process seizes property OF his debtor, helt
by force of conveyance from himself is in deroga
ton of that conveyance.
Whether the right of State to compel sl'
from the plaintiffs to itself is derived from in phi
ed condition in The grant, or from power nheren
in It's sovereignty, is unimportant legally effect