Opinion of the Court.

On the other hand, the counsel for the corporation insists, that none of the guarantees of the constitution, as to the inviolability of private property, have any application to the exercise of the right of eminent domain; that it is the attribute of political sovereignty, an inherent political right, whose exercise is an act of public administration, and the form and manner of its performance is such as the legislature may prescribe; that "the State, through the legislature, is only restricted in the exercise of the power by the express limitation on the power, eo nomine, contained in the constitution, to-wit: the making of just compensation." He claims that, notwithstanding this limitation upon the power, it is a subject resting entirely within legislative discretion, and beyond the domain of the judicial department, for he says, that "the constitutional provisions, as to the division of the powers of government, have no application to the exercise of the right of eminent domain."

If we correctly understand the position of the counsel, it is that of legislative supremacy over private property, taken or applied to public use, as absolute as that asserted and conceded on behalf of the British parliament. The absolutism of the English parliament is fully asserted in the following decision: In speaking of turnpike acts, paving acts, etc., Lord KENYON said: "If the legislature thought it necessary, as they do in many cases, they would enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction." Governor, etc. v. Meredith, 4 Term R. 795.

We had supposed, that the restraints which have been placed upon the supremacy of legislatures over the rights of private property, was a distinguishing feature of the American from the English system.

The right to "just compensation," required by our constitution to be made as a condition precedent to the exercise of the

Opinion of the Court.

right of eminent domain, is of little value if the legislature may vest the power of final adjudication in any sort of a tribunal it chooses. Of what value would all the vaunted rights of freemen be, if the legislature could clothe every petty magistrate in the land with authority to pass final decrees of forfeiture of such rights as caprice, malice, or popular clamor, might dictate?

Rights of persons, and of property, may be recognized in the theory of government as fundamental and sacred; may even be solemnly enunciated in the constitution; still, so long as they exist only in contemplation of law, and are left without the adequate means for their protection and enforcement, they are of no more practical value to the individual than the most barren abstractions of theorists.

The decisions of other States have been cited to show that, in choosing the instrumentalities through which compensation shall be ascertained, the discretion of the legislature has no limit. We can say, with confidence, that the constitutions of some of these States are unlike ours. To those of some of the other States, whose decisions are referred to, we have not access, but, from the decisions themselves, must conclude that they are essentially different. We will take, for example, the language of the supreme court of Pennsylvania, quoted by the counsel for the city: "The assessment by the canal commissioners," say the court, "is as fully authorized by the constitution as an assessment by any other tribunal. A sovereign State is not liable to an action at law against her consent, and the right of trial by jury has no existence in such case. The mode of assessment rests with the legislature, and the common law courts have no authority to question the justice of the decrees of tribunals clothed with power to make final adjudication on the subject." Segat v. Commonwealth, 19 Penn. St. R. 460.

Here, the award is characterized as a "decree"-a "final adjudication of the subject"-and the canal commissioners are termed a tribunal, authorized by the constitution.

Opinion of the Court.

But where, among all the provisions of the constitution of 1848, under which the charter of Chicago was passed, will be found any authority to create such a tribunal?

The commissioners of the board of public works are mere ministerial officers, and the common council a quasi legislative body. Whence does the legislature derive authority to create either, or both, into a tribunal, to hear, and finally determine, questions of law and fact, to pass decrees, and make formal adjudication of the subject?

The counsel says, by virtue of an inherent political right— the attribute of political sovereignty-the power of public administration upon private property, whenever the public might require its appropriation. He says: "The right of eminent domain is inherent in sovereignty, and exists dehors the constitution, and no provision of a constitution, which, by its terms, does not refer to that right, has been held by the courts to be any limitation upon the legislature as to the mode in which the power is to be exercised."

There is no doubt, but the right in question is inherent in sovereignty, like the power of taxation; and, without constitutional restraints, the only security which the citizen would have from an unjust and oppressive exercise of it, would be in the wisdom and justice of the representative body, and its dependence on its constituents. But that security has not been deemed sufficient. Limitations, requiring equality and uniformity, have been placed by the constitution upon the power of taxation, which, when disregarded or transcended by the legislature, may authorize the withdrawal of the subject from what would, otherwise, be the arbitrary discretion of that body, and bring it within judicial cognizance. City of Chicago v. Larned, 34 Ill. 203; The People v. Bradley, 39 ib. 130; 44 ib. 229, 240.

So, in the same spirit of jealousy, the bill of rights declares : "Nor shall any man's property be taken or applied to public use, without the consent of his representatives in the general assembly, nor without just compensation being made to him."

Opinion of the Court.

Is not this a reference, in terms, to the right? And is it not obvious, that the legislature can not do as it chooses, and leave those, who happen to suffer by the exercise of the right, without remedy, or with a nominal one only, as the English parliament may? The language is not directory; it is negative-prohibitory; that is, the right shall not be exercised at all, except upon the condition of just compensation being made to the owner. Who shall determine what is just compensation? If the legislature, in its discretion, can prescribe both the tribunals, and the elements of the judgment, then the decrees of such tribunals, no matter how far short of the constitutional requirement, would be final and conclusive, and the party affected left without other remedy, so long as the particular tribunal kept within its jurisdiction. Such consequences could not have escaped the vigilant attention of the framers of the constitution.

By section 2 of article 9 of the constitution, it is declared that "The general assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property." The act of fixing valuation and making assessments, is judicial in its nature. Weaver v. Devendorf, 3 Denio R. 117; Prosser v. Secor, 5 Barb. R. 607.

But, so careful were the framers of the constitution to preserve harmony of principle in that instrument, and at the same time establish a convenient mode of exercising the power of taxation, as limited, the section further provides: "Such value to be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise." If they had intended that the question of "just compensation," when private property should be taken or applied to public use, should, like that of valuation for the purposes of taxation, be ascertained by such person or persons as the general assembly should direct, would they not have said so? If such had been the intention, why is the authority expressly given in the one case, and omitted

Opinion of the Court.

in the other? We think such was not the intention, and that it is apparent, from the whole instrument, that in exercising the right of eminent domain, it was intended that the legislature should address itself to the judiciary. Limitations are placed upon the sovereign power, both of taxation and eminent domain, by requiring uniformity and valuation to be the standard of the former, and just compensation as a condition to the exercise of the latter. The act of ascertaining the value is, as we have said, judicial in its nature. The constitution. carefully authorizes the designation of persons, not of the judicial department, to ascertain the value for the purposes of taxation, but as carefully withholds authority to designate any person or special tribunal to assess compensation for taking private property. It declares a division of the powers of the government into three distinct departments, and that each of those departments shall be confided to a separate body of magistracy, to-wit those which are legislative to one; those which are executive to another; and those which are judicial to another. Then follows this emphatic prohibition: "No person, or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except as herein expressly directed or permitted; and all acts in contravention of this section shall be void."

If the determination of the question of just compensation, with its incidents, be in its nature a judicial proceeding, then, under which department does the power to make it, properly belong? To this question there can be but one answer, and that is, to the judicial department.

Here, then, the question arises: Is the determination of that question, with its incidents, a judicial act?

"The award," says Pierce, speaking of condemnation of land for railroad purposes, "is a judicial act, and unless appealed from, becomes, like a judgment at law, res judicata, and can not be collaterally impeached." Pierce on Railways, p. 168, and note 1, where many authorities are cited in support of the text.