4
The Green Bag
the direct benefits (that is, the profits, of the state or nation in its organized if any) would go to the taxpayers whose political capacity as a government. It money is taken; and in the other they results from this distinction that prop would not. No court has gone to the erty might well be taken under the length of holding that money raised by power of eminent domain, which would taxation can be donated to a private remain the subject of a perpetual use corporation." by the individuals who compose the On a rehearing Mr. Sloan took up public as the people of the state, although other questions not before considered. the title be transferred to a private cor Among these questions is the right of poration. It would in such a case be eminent domain. His exposition of the a matter of comparative insignificance subject is certainly a law classic. He to the owner of the property taken, says: "It is said that the power of emi whether the title went to the government nent domain can be exercised only when or to a private corporation, as in either the property is taken for a public use. case full compensation must be made before it can be taken. And it would And it is assumed that the same pub lic use which will authorize a right of be of as little importance to the people way to be taken under the power of generally, as the use for which it would eminent domain, will also authorize be taken and held would be secured to money to be raised by taxation and paid them equally in either case, for the over to any individual or private cor moment such use ceased it would revert poration in whose favor the power of to the original owner. But the use of eminent domain can be exercised. But money raised by taxation consists wholly these two branches of sovereign power in its exchangeable value or purchasing are distinct, and proceed upon different power; and it can only be exacted by the principles. The one takes specific prop state or nation to defray the public erty for public use, but awards full charges. In other words, the state takes compensation. The other is defined to money from individuals as their share be a rate or sum of money assessed on of the public burdens. And it is an the person or property of a citizen by inexact use of language to say that government, for the use of the nation or money raised by taxation is taken for state. We apprehend that an important the public use, without distinguishing distinction between these powers is, between a use by the people in their that property taken by the power of individual capacity as citizens, and a eminent domain may be taken for the use by the government in its organized The legislature can raise use of the persons who compose the capacity. public, in their individual capacity. money by taxation without limit for Such is the case when the right of way the use of the government of the state, is taken for a railroad, or when land is or to discharge the burdens resting upon taken to create water power for a mill, it; but it cannot raise money by taxa or for a turnpike. In none of these tion for the use of, or to discharge the cases has the government of the state burdens resting upon, the persons who any connection or concern beyond the compose the public, in their individual act of delegating the power of eminent capacity as citizens. It is this distinc domain to the individuals or private tion which makes the boundary line between the power of eminent domain corporations engaged in these enter prises. On the other hand, money and that of taxation." A summary of Mr. Sloan's most cogent raised by taxation is taken for the use
