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§ 216. “The Acquisition of Property.”

This sub-section expressly confers on the Commonwealth, through the Federal Parliament, the right—technically called the right of “eminent domain”—to compulsorily take property, both private and provincial, for Federal purposes. In the Constitution of the United States there is no section exactly similar to this; there is one (Art. 1 sec. 8, subs. 18) giving Congress power to make all laws which may be necessary and proper “for carrying into execution the foregoing powers.” Under this it has been held that the right of eminent domain is vested in the Federal Government, and that it may be exercised within the States, when necessary, for the enjoyment and exercise of the powers conferred upon the Government by the Constitution. Hence in the case of Kohl v. United States, 91 U.S. 367, it was decided by the Supreme Court that the United States could, under the Acts of Congress of 2nd March and 10th June, 1872, acquire land in Cincinnati upon which to build a Customs House, and that the right could not be prejudiced either by the unwillingness of property-holders to sell, or by the action of a State in prohibiting sale to the Federal Government. In the case of the United States v. Jones, 109 U.S. 513, the opinion was further expressed that the right of eminent domain was an incident of sovereignty, which required no special constitutional provision to call it into existence.

It may be pointed out that a grant of “ways and means” power, similar to that of Art. 1 sec. 8 subs. 18 of the Constitution of the United States, is to be found in sec. 51—xxxix. of this Constitution. However, it was not considered advisable to allow the


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right of eminent domain in the Commonwealth to be dependent upon any implied or incidental power. Although the American Courts have given the above decisions it must be remembered that they were given under the Constitution of a sovereign State. The Commonwealth is not a sovereign State, but a federated community possessing many political powers approaching, and elements resembling, sovereignty, but falling short of it. Its Parliament can only exercise delegated powers carved out for it, and assigned to it, by the sovereign Parliament of Great Britain and Ireland. No implied power will be founded on any conception of latent unexpressed sovereignty, as in the case of the Government of the United States. Hence all possible doubt as to the right of the Commonwealth to acquire property for federal purposes has been removed by this sub-section, which renders it unnecessary to resort to the “ways and means” sub-sec. xxxix.

A railroad, although constructed and owned by a private corporation, is for public use, and the power of eminent domain may be exercised to condemn its right of way. (Olcott v. Supervisors, 16 Wall. 678. Baker, Annot. Const. 182.)

The United States may exercise the right of eminent domain in the territories, as well as in the States, for purposes necessary to the execution of the powers of the government. All lands held by private persons, within the limits of the United States, are subject to this authority. A railway, being primarily a public highway, may exercise this power, when so authorized by proper legislative sanction. (Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641. Id.)

When in the judgment of Congress the public good requires a bridge over the navigable waters of the nation to be removed or altered, the United States is not bound to make compensation for damages incurred, although the bridge was constructed so as to comply substantially with the provisions of law relating thereto. (Newport, &c. Bridge Co. v. United States, 105 U.S. 470. Id.)

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