Misc.] Court of Claims, November, 1921. are not included under tangible value, viz: such items as overhead expense during construction, accidents occurring in construction not covered by insurance, or the cost of insurance against accident, fire insurance, taxes and interest on investment, engineering and supervision expenses, cost of maintenance and losses in the operation of the plant, until such time as the plant is tuned up and operated profitably. In fact all that enters into the construction and tuning up of the plant, exclusive of tangible properties. "Good will has been construed to include the value of brands, trademarks, a reputation for good product, fair and honorable dealing, and all those elements which contribute to the ready merchandising of the product of the company." The claimant is entitled to recover the value of its physical property as it existed at the time of the appropriation. That does not mean that its value is to be arrived at by taking the value of the various elements and items making up the property separately, and considering them without reference to each other, and then adding together these sums. The claimant is entitled to compensation, not merely for so much land, so much brick, lumber, materials and machinery considered separately, but if they have been combined, adjusted, synchronized and perfected into an efficient, functioning unit of property, then it must be paid for that unit, so combined, adjusted, synchronized and perfected, as it existed at the moment of appropriation. In that limited sense, it is entitled to the "going value," if such a term is permissible, of its physical property. In fixing the amount of award we will be guided by that principle. But it is evident from the claimant's definitions, that it has no such limitation in mind. The going value for which it asks recovery is included, as it Court of Claims, November, 1921. [Vol. 117. frankly confesses, in the usual legal conception of good will. So what we have to say in reference to the latter is applicable to the former. Our attention first is directed to article I, section 6, State Constitution, providing, nor shall private property be taken for public use, without just compensation," and to the Fifth Amendment, United States Constitution. Of course the Fifth Amendment to the Federal Constitution has no application, because it is elementary that the first ten amendments to that instrument are applicable only to the federal government, are restrictions upon its action and are not limitations upon the powers of the states. U. S. Const. 10th Amendt. However, the provisions of both Constitutions are identical. The claimant's counsel, with sedulous care, have collated numerous authorities defining good will and going value as property for various purposes, within the purview of certain statutes, and in divers relationships. These authorities define good will as property within the provisions of the transfer tax statute (Von Bremen v. MacMonnies, 200 N. Y. 41, 51; Matter of Ball, 161 App. Div. 79; Slater v. Slater, 175 N. Y. 143, 150; Godley v. Crandall & Godley Co., 153 App. Div. 697, 713); also for the purpose of other taxation laws (Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 218; Parker v. Elmira, C. & N. R. Co., 165 N. Y. 274, 280; Matter of Brooklyn, 143 id. 596; Monongahela Navigation Company v. United States, 148 U. S. 312-345); also as a firm asset (White Corbin & Co. v. Jones, 79 App. Div. 373, 376). On authorities such as these, the claimant predicates its argument that going value and good will, thus judicially being included in the term property, cannot be appropriated by the state without just compensation. We note that in the array of precedents is not to be found one which defines Misc.] Court of Claims, November, 1921. good will as property, within the meaning of the constitutional provision quoted, except in the single instance where the plant or business of a public service corporation has been taken. It seems that some courts have said that going value, in this instance, is property. The decisions cited by the claimant, where such statements are made, are limited to this single class and are typified by People ex rel. Kings Co. L. Co. v. Willcox, 210 N. Y. 479, and Denver v. Denver Union Water Co., 246 U. S. 178, 192. The claimant, therefore, has failed to cite any authority for its contention. We are not concerned here with mere theory, nor speculation concerning the policy which ought to underlie wise condemnation legislation. This matter is not novel. Text writers and courts have passed upon it many times since the constitutional provision was indited. The meaning of the term "property is firmly established. It is well settled that in the absence of statutory provision expressly providing compensation for good will or going business taken or injured, they are not included in the term property. 2 Lewis Em. Dom. 1271, § 727 (487); 20 C. J. 779, and cases cited; 10 Am. & Eng. Ency. of Law (2d ed.), 1114, and cases cited; Edmands v. City of Boston, 108 Mass. 535; Monongahela Nav. Co. v. United States, 148 U. S. 312. The law is succinctly stated in Lewis on Eminent Domain, supra: "While it is proper to show how the property is used, it is incompetent to go into the profits of the business carried on upon the property. No damages can be allowed for injury to business. The reason is that the constitution and the statutes, as ordinarily worded, require only that just compensation shall be made for the property taken. Just compensation, as we have already seen, where an entire property is taken, is the market value of the property, and where Court of Claims, November, 1921. [Vol. 117. frankly confesses, in the usual legal conception of good will. So what we have to say in reference to the latter is applicable to the former. Our attention first is directed to article I, section 6, State Constitution, providing, nor shall private property be taken for public use, without just compensation," and to the Fifth Amendment, United States Constitution. Of course the Fifth Amendment to the Federal Constitution has no application, because it is elementary that the first ten amendments to that instrument are applicable only to the federal government, are restrictions upon its action and are not limitations upon the powers of the states. U. S. Const. 10th Amendt. However, the provisions of both Constitutions are identical. The claimant's counsel, with sedulous care, have collated numerous authorities defining good will and going value as property for various purposes, within the purview of certain statutes, and in divers relationships. These authorities define good will as property within the provisions of the transfer tax statute (Von Bremen v. MacMonnies, 200 N. Y. 41, 51; Matter of Ball, 161 App. Div. 79; Slater v. Slater, 175 N. Y. 143, 150; Godley v. Crandall & Godley Co., 153 App. Div. 697, 713); also for the purpose of other taxation laws (Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 218; Parker v. Elmira, C. & N. R. Co., 165 N. Y. 274, 280; Matter of Brooklyn, 143 id. 596; Monongahela Navigation Company v. United States, 148 U. S. 312-345); also as a firm asset (White Corbin & Co. v. Jones, 79 App. Div. 373, 376). On authorities such as these, the claimant predicates its argument that going value and good will, thus judicially being included in the term property, cannot be appropriated by the state without just compensation. We note that in the array of precedents is not to be found one which defines Misc.] Court of Claims, November, 1921. good will as property, within the meaning of the constitutional provision quoted, except in the single instance where the plant or business of a public service corporation has been taken. It seems that some courts have said that going value, in this instance, is property. The decisions cited by the claimant, where such statements are made, are limited to this single class and are typified by People ex rel. Kings Co. L. Co. v. Willcox, 210 N. Y. 479, and Denver v. Denver Union Water Co., 246 U. S. 178, 192. The claimant, therefore, has failed to cite any authority for its contention. We are not concerned here with mere theory, nor speculation concerning the policy which ought to underlie wise condemnation legislation. This matter is not novel. Text writers and courts have passed upon it many times since the constitutional provision was indited. The meaning of the term " property " is firmly established. It is well settled that in the absence of statutory provision expressly providing compensation for good will or going business taken or injured, they are not included in the term property. 2 Lewis Em. Dom. 1271, § 727 (487); 20 C. J. 779, and cases cited; 10 Am. & Eng. Ency. of Law (2d ed.), 1114, and cases cited; Edmands v. City of Boston, 108 Mass. 535; Monongahela Nav. Co. v. United States, 148 U. S. 312. The law is succinctly stated in Lewis on Eminent Domain, supra: "While it is proper to show how the property is used, it is incompetent to go into the profits of the business carried on upon the property. No damages can be allowed for injury to business. The reason is that the constitution and the statutes, as ordinarily worded, require only that just compensation shall be made for the property taken. Just compensation, as we have already seen, where an entire property is taken, is the market value of the property, and where |