The right of taking private property for public use is an incident to the sovereignty of every government; eminent domain, or inherent sovereign power, gives this control to the legislature—the interest of the public is deemed paramount to the individual, but the obliation is concomitant that in the exercise of the right full compensation shall be made. This is a fundamental doctrine, founded on national equity and a principle of universal law. As we have seen, however, there is a distinction made between property taken by right of eminent domain and that taken under the police power. In the former case just compensation must be made, in the latter none, although the act prohibited may have been lawful under previous statutes. There would seem to be no just reason for this difference. In either case the individual suffers for the benefit of the state. Indeed, in the exercise of the latter power the injury is often greater, in that it is unexpected, and hence can not be provided against.
Again, in the case of a contract made by a State directly with her citizens, as in the issue of bonds for the raising of revenue, there being no remedy by a suit against the State, the contract is substantially without sanction except that which arises out of the honor and good faith of the State itself, and these are not subject to coercion (Louisiana vs. Jumel, 17 Otto, 711). And although the State may, at the inception of the contract, have consented as one of its conditions to subject itself to suit, it may subsequently withdraw that consent and resume its original immunity without a violation of the obligation of its contract in the constitutional sense. Thus the State of Louisiana entered into certain engagements with her creditors; she embodied them in the most solemn form in her statutes and in her organic law; she provided for the levying of a tax to pay them; she prescribed certain duties for designated officers to perform in their collection and disbursement; she declared that no further legislation should be necessary for the collection of a tax or the appropriation of the proceeds, and that for the collection of the tax the judicial power should be exercised whenever necessary. In spite of all these seeming obligations and safeguards the Supreme Court, by a divided bench, decided that there was no power to stay repudiation. Substantially the same decree was made in the Virginia tax cases (exparte Ayres, 123 United States, 443). In these instances the States, after entering into the most solemn obligations with their citizens, deliberately and openly violated every principle of honor and good faith. To say nothing of the infamous wrongs inflicted, the influence of such actions on the morals of the people must be widespread.
The complications arising under the divorce laws of the various States have been dwelt upon at length of late by various
