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 111 106 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 97 111. 506 (1881). 114 Mitchell v. R. R. Co. 68 Ill. 286 (1873). IV. EXTENSION OF THE POWER OF EMINENT 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 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 II. 449 (1916). Moore v. Sanford. 151 Mass. 285 (1890). 4 Opinion of the Justices. 204 Mass. 607. Cooley, Constitutional Limitations (7th Ed.) Sec. 766. for the reclamation of wild lands failed of adoption in Arizona in 1914; and a similar proposal increasing the state debt limit for building roads, constructing irrigation and power projects and developing untilled lands, was rejected in Oregon in the same year. A few constitutional provisions empower the state to enter generally into the construction of works of internal improvement. In some states the power to construct such works is prohibited. But the construction of public roads and the improvement of lands donated to the state are commonly excepted from the prohibition. In this connection mention should be made of the act passed at the 1919 session of the General Assembly of Illinois which grants power to the Department of Public Works and Buildings: "To acquire by condemnation under the eminent domain laws of this state, lands, mines, quarries, gravel beds, clay beds, mineral deposits, or other property for procuring materials or producing manufactured products necessary in the construction and maintenance of public improvements by the state of Illinois; "To lease, purchase, construct, maintain and operate lands, mines, plants and factories for the production of any raw materials or manufactured products necessary in the construction and maintenance of public improvements by the state of Illinois." Constitutional amendments have been adopted in North Dakota and in South Dakota which authorize the state to engage in works of internal improvement. Wyoming permits the state to engage in works of internal improvement when authorized by two-thirds vote of the people. The power of eminent domain has been employed in European countries for the purpose of abating insanitary areas, and while it has been discussed to some extent in this country, this policy has not been acted upon. It is unlikely that the courts would sustain, under the general eminent domain clause, a statute which authorized the condemnation of properties for the purpose of changing the character of the neighborhood. The nearest approach to a policy of this character is that contained in the Massachusetts amendment of 1915 which authorizes the state to take land for the purpose of relieving congestion and for providing homes for citizens. A city may, of course, cut wide thoroughfares through an insanitary area; and in states which, by recent amendment, permit the condemnation of land bordering upon an improvement for the purpose of protecting it, a much. greater portion of the district could be changed. The employment of the power of eminent domain to abate slum districts has been discussed and proposed," but the great expense and the likelihood that the abatement of one area would merely cause its re-appearance elsewhere has led others to oppose its use.1o Illinois Laws, 1919. p. 712. South Dakota, 1918, authorizes the State to engage in works of internal improvements and to lend its credit to corporations for this purpose. North Dakota, 1918, authorizes the state or any of its subdivisions to make internal improvements or to engage in any industry not prohibited. S Salisbury Land Co. v. Commonwealth. 215 Mass. 371. See Proceedings of Conference on City Planning. 1912. p. 100. 10 Dewsnup, Housing Problems, p. 233; Swan, Excess Condemnation, p. 481. |