THE FOURTEENTH

1.- POWER OF ILLINOIS, UNDER AMENDMENT, TO AID OWNERS OF WET LANDS TO DRAIN THEM FOR AGRICULTURAL PURPOSES a On the merits, the Federal Supreme Court affirmed, in part, the State decision in Chicago, Burlington & Quincy R.R. Co. v. Illinois, 200 U. S., 561, 26 Sup. Ct. Rep., 341,1 three Justices, White, McKenna, and Holmes, concurring specially in the judgment, but dissenting practically in toto from the opinion, and one Justice, Brewer, dissenting in toto from both the judgment and opinion. Just what was the question in the case, "of profound importance," as Mr. Justice Brewer said? The case was fought, and decided, solely upon the point of the right of the Company to just compensation for pecuniary losses that would result from obedience to the order of the Drainage District, the order making no provision for such compensation. The words "due process of law" in the Fourteenth Amendment require a State to make just compensation when it takes private property for

a [1 Ill. Law Rev., 116, June, 1906.]

1 1 [For author's comment as to jurisdictional phase of this case, see ante, p. 113.]

public use (Chicago, B. & Q. Ry. Co., v. Chicago, 166 U. S., 226), and the word "deprive" in the Amendment perhaps means the same thing, certainly as much, as the word "taken" in the Fifth Amendment (whether it means more in Illinois, see Chicago v. Taylor, 125 U. S. 161, and Muehlker v. Harlem R. R. Co., 197 U. S., 544). The Company was a corporation created by the State, and it appears to have been taken for granted that the Company got its right to go across Rob Roy creek from the State, i. e., that the State created the right. But it may be doubted whether the Company's right to go across the creek, it being non-navigable, had, or could have, any other or different origin than the right of a natural person owning land on opposite sides of the creek to go across it. (But see Ry. Co. v. Moffit, 67 Ill., 524.) But accepting that proposition, that the State did, in a substantial sense, create the Company's abstract right to go across, it was noticed that the right was created, so far as appeared, durante bene placito, and that the right was not, as against the State, either a vested corporate contract right, under the obligation of contracts clause, or a right embraced within the meaning of the word property in the Fourth Amendment. The State was not attempting to take the abstract right of passage away from the Company. Compliance with the order of the State, acting by the Drainage District, would have left the Company in possession and enjoyment, as owner, of a heap of rubbish that once was a railroad bridge and culvert, and of the abstract right and, therefore, of course, of the correlative duty, to go across the creek in some way or other. The order of the State was held good, because it was not a State attempt to take private property without paying for it, but was only a State regulation of the use of private property. Obviously, however, since the pulling down of a bridge stops the use of it, the only private property

the use of which could have been regulated by the order was, either the abstract, unrevoked right of the Company to go across the creek, or the real estate of the Company lying on opposite sides of, and at the bottom of the creek, or both. The majority did not say, however much the thought may have had to do with the result reached in the case, that the State's reserved, or unalienated, power to revoke, without pay, the Company's abstract right of passage over the creek, involved, necessarily, a power in the State to regulate the use of the abstract right by ordering, without any provision for pay, the Company to pull down an old, and build a new and bigger bridge and culvert; nor could the majority have said that in words, for the same reason that a State's power to pass a prohibiting liquor law (Mugler v. Kansas, 123 U. S., 623) does not, necessarily, involve a power in the State, whether for independent use or for use in aid of a prohibiting liquor law, to pull down, by the methods of a Carrie Nation, buildings used as saloons or breweries. (See Lawton v. Steel, 152 U. S., 133.) It should be observed also, that, so far as appeared, the Company's old bridge and culvert did not obstruct the natural channel of the non-navigable creek, or, if one pleases, the natural channel of the natural drain or ditch. Viewing the order of the State, then, as in all common sense it must be viewed, not as a regulation of the use of the Company's old bridge and culvert, which the order marked for destruction, but as an actual physical taking of them for the purpose of regulating the use of the Company's abstract right to go across the creek, and the use of the Company's realty on opposite sides of, and at the bottom of, the creek, the sole inquiry was whether the State's end, as evidenced by the order, read in the light of the surrounding conditions, justified, upon any rationally permissible view, the means employed by the State

to attain its end. In plain English, the position of the State in the case was that Illinois may, without violating rights of private property protected by the Fourteenth Amendment, give a combination of farmers the power to drain their wet lands, for agricultural purposes, by artificial means, and to compel other people, against their wills, to pay a part of the cost, if such other people happen to own a railroad in the neighborhood across whose right of way the main, and most expensive, artificial drainage ditch must go. A majority of the Justices of the Federal Supreme Court thought the State's position was fully sanctioned by those familiar adjudications giving full effect to State commands directing public service corporations to make large pecuniary outlays to alter the mode and manner of their exercise of their rights to use public highways and public, navigable streams, by elevating railroad tracks, pulling down and rebuilding. bridges and viaducts, shifting gas pipes, water pipes, sewer pipes, electric lighting, telegraph, telephone, and trolley wires and poles, and tunnels or bores, from one place to another place on, over, or under the surface of the highway or stream. But in all those cases it appeared that the State was confronted with the practical situation where the prosecution of one admittedly governmental enterprise, in private hands on sufferance by the State, operated as a blockade upon the prosecution of another and different admittedly governmental enterprise, either conducted by private persons as an agency of the State, by the State itself directly, or by a municipal corporation as a State agency, the blockade occurring on, over, or under ground or water, if not owned by, at least under the exclusive control of, the State. In such cases, the ultimate beneficiaries, that is to say, the people generally, each one of the people having a right to use the property ("public use") employed in prosecuting each of the