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As finally adopted the provision read: "The General Assembly may provide for establishing and opening roads and cart ways connected with a public road for private and public use."

Similar provisions are found in several states.100 Legislation has been passed in Illinois under the authority of this section.101

Condemnation of land for drainage purposes. The constitutions of 1818 and 1848 did not contain any clause expressly authorizing the condemnation of land for the construction of drains and ditches, nor was any act passed by the general assembly during this period which squarely presented the question of constitutionality under the general eminent domain clause. In other states it had been held that land could be condemned under general eminent domain clauses for the purpose of draining swamp lands.102 The public purpose was found in the beneficial effect upon public health. In other cases similar acts were sustained on broader grounds. But this doctrine was not uniform. In New York before the drainage amendment was adopted it was held that such an act would not be valid unless the project could be related to the public health.103

In the convention of 1869-70 the drainage question came up quite early, 104 A resolution was introduced calling upon the committee on the bill of rights to inquire into the necessity for amending the constitution so as to authorize the enactment of drainage laws applicable to private property. The question was not debated but the committee (doubtless having in mind the decision in Nesbit v. Trumbo,105 which held invalid an act of the legislature authorizing the condemnation of land for private rights of way and the conflict of authority on this question in other states) reported in favor of inserting such a provision. Accordingly section 31 of Art. IV was inserted. This section provided: "The General Assembly may pass laws permitting the owners or occupants of land to construct drains and ditches for agricultural and sanitary purposes across the lands of others."

This provision was limited to the construction of drains and ditches for the two purposes specified. Since the effect of the clause was to operate as a limitation, there was no power to construct levees as independent projects. Furthermore, the general assembly could not authorize the organization of drainage districts with the power of levying special assessments because Section 9 of Article IX of the constitution limited the exercise of the power of levying special assessments "to cities, towns, and villages." Legislation attempting to authorize the condemnation of land for levee purposes, and the levying of special

100 Alabama, Arizona, Colorado, Georgia, Michigan, Mississippi, Missouri, • Montana, Oklahoma, New York, Washington, Wyoming. Usually the road is referred to as a private way of necessity, occasionally as a right of way or private road. or a private and public road.

101 See Hurd's R. S. Ch. 121 Sec. 98.

102 Tidewater Co. v. Coster 18 N. J. Eq. 518.

103 In re Ryers 72 N. Y. 1.

104 Debates, p. 74.

105 39 Ill. 110 (1866).

assessments to pay for the improvement, was accordingly held invalid.106

In the year following this decision the General Assembly proposed an amendment to remedy the defects in section 31 of Art. IV, which had been disclosed by the decision in Updike v. Wright. This resolution authorized the organization of levee districts, conferred authority to levy special assessments, added mining purposes to those of agriculture and sanitation contained in the original section, and amplified the phraseology generally. The proposed amendment was adopted at the election in November, 1878. This section now provides: "The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts, and vest the corporate authorities thereof with power to construct and maintain levees, drains and ditches and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby.107

The provisions contained in the general eminent domain clauses apply to proceedings under this section.108 Damage caused merely by increasing the flow of natural drainage gives no right to compensation, 109

Corporate franchises and property. Under the constitutions of 1818 and 1848 there was no provision expressly authorizing the taking, under the power of eminent domain, of corporate franchises and property. In the convention of 1869-70 there seemed to have been some fear that the general eminent domain clause would not authorize the condemnation of corporate properties.110 It was apparently thought that the grant of a franchise might carry with it an obligation not to exercise the power of eminent domain. The court has since held, in accordance with the general rule, that this power cannot be irrevocably bartered away. The breach of an agreement not to exercise the power of eminent domain is not an impairment of the obligation of a contract. But the following provision was inserted: "The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent

111

108 Updike v. Wright. 81 Ill. 49 (1876).

107 Provisions expressly authorizing the condemnation of land for drainage purposes have been adopted in the following states: Arizona, Colorado, Florida, Idaho, Iowa, Missouri, Mississippi, Montana, New Mexico, New York, Oklahoma. South Carolina, Washington, Wyoming.

108 Wabash R. R. v. Coon Run Drainage District. 194 111. 310 (1901). 109 C. B. & Q. Ry. Co. v. People, 212 Ill. 103 (1904), 200 U. S. 561.

119 See Debates, pages 262. 703, 713.

111 Village of Hyde Park v. Cemetery Association, 119 Ill. 141, (1886); Long Island Water Supply Co. v. Brooklyn, 168 U. S. 685.

domain, any incorporated company shall be interested either for or against the exercise of said right."12

The general effect of this constitutional clause was the subject of examination in L. S. & M. S. Ry. Co. v. C. & W. I. R. R. Co.,113 where the court took occasion to say: "The power of eminent domain was conferred upon the general assembly by that clause which vested in that body the legislative power of the state. That power is not granted but it merely recognized by the state by Sec. 13 Art. 2, and the purpose of that section is to limit and regulate its exercise. Sec. 14 of Art. XI was inserted out of an abundance of caution."

This section is also spoken of as "reinforcing" Art. II, Sec. 13.114

112 Art. XI. Sec. 14. Similar provisions are found in the Constitutions of Alabama, Arizona, Arkansas, California, Colorado, Georgia, Idaho, Kentucky, Mississippi, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, Virginia, Washington, West Virginia, Wyoming.

113 97 Ill. 506 (1881).

114 Mitchell v. R. R. Co. 68 Ill. 286 (1873).

IV. EXTENSION OF THE POWER OF EMINENT
DOMAIN.

Types of constitutional provisions in general. In recent years a number of constitutional provisions have been adopted which extend the power of eminent domain. . Uses which heretofore were not generally regarded as public have by this means become public uses. These constitutional provisions fall into three groups: (1) There is a class which adds new functions of government to the state or to its subdivisions but which does not expressly confer the power of eminent domain as one of the means of their accomplishment. The ultimate effect, however, may be to draw the power of eminent domain to the added functions. This class is the most numerous. (2) In the second group, the sphere of government is extended and the power of eminent domain is expressly mentioned as one of the means of effectuating the new purpose. Amendments falling in these two classes comprise a wide range of subjects: conservation of natural resources, forests, reclamation work, internal improvements, municipal ownership of public utilities, state insurance, mining, manufacture of cement, operation of grain elevators and flour mills, sale of necessaries, and building of homes. (3) In the third class of amendments, the power of eminent domain is authorized to be employed in a new direction, but for a purpose distinctly incidental to the accomplishment of other functions, as for example when a city, in the location or widening of streets or in the construction of public works, seeks to condemn land lying outside the proposed improvement for the purpose of further insuring the success of the improvement, or for other collateral objects. The properties taken are not directly and continuously used in the project but are sold after the incidental benefit arising from their temporary possession has been realized.

The first and second classes of constitutional amendments simply expand the power of eminent domain. Constitutional provisions of the third class likewise extend the power of eminent domain but the difference in the objects sought to be accomplished thereby has caused the introduction of the term "excess condemnation" as descriptive of this additional authority.

Constitutional provisions extending state functions. Constitutional provisions recently adopted, which extend state functions but which do not expressly confer the power of eminent domain with

respect to such new functions, relate either to the conservation of natural resources or to the conduct of some business enterprise.

Constitutional provisions authorizing the creation of forest preserves have been in force for some time.1 In the absence of a constitutional provision authorizing the condemnation of land for the purpose of creating a forest preserve, a statute which confers this power probably would be constitutional. No case has been found. which directly presents this question but the purpose might be regarded as analogous to that of public parks. It has been held in Illinois that it is proper to employ the taxing power to maintain forest preserves.2

The broader policy of conservation of all natural resources has been adopted in some states. The constitution of Idaho declares that the use of lands for the development of the natural resources of the state or the preservation of the health of the inhabitants shall constitute a public use. By an amendment adopted in 1918, Massachusetts authorizes the condemnation of land for the conservation of natural resources. In 1919 Texas provided for the conservation of natural resources and the creation of conservation districts. The preservation and distribution of water, irrigation, reclamation, drainage, forests, water and hydro-electric power were expressly referred to as being within the objects of the Texas amendment. The power of eminent domain was not expressly mentioned in the Texas amendment. South Dakota has recently authorized the state to invest its funds in, and to lend its credit to, corporations organized for the development of natural resources.

The reclamation of privately owned swamp and arid land is not usually undertaken by the state directly, but express constitutional provisions are common which authorize quasi-public corporations to condemn land for such purposes. There is but slight evidence of a desire to change this policy. Within certain limits, not clearly marked out, the state, under general constitutional provisions, may condemn, reclaim and sell land. The condemnation and reclamation of the Back Bay flats district in Boston harbor by the state was one of the most extensive of such reclamation projects. The statute which authorized this work was held constitutional under the general eminent domain clause, but its validity was made more certain because of its close relation to the promotion of commerce. Condemnation of land on a broad scale in furtherance of a definite policy of state reclamation work could scarcely be attempted in the absence of express constitutional provision." The legislature of the state of Washington at its last session proposed an amendment to be voted on in 1920 which declares that the taking of private property by the state for land reclamation and settlement purposes shall be a public use. An amendment which would have authorized the state to contract indebtedness

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1 Constitutional provisions relating to forest preserves will be found in Ohio, New York, Wisconsin, Washington, Montana, Idaho and Arizona.

Perkins v. Commissioners of Cook Co. 271 Ill. 449 (1916).
Moore v. Sanford, 151 Mass. 285 (1890).

Opinion of the Justices, 204 Mass. 607.

5 Cooley, Constitutional Limitations (7th Ed.) Sec. 766.

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