While the legislative power to amend or repeal a statute cannot
be availed of to take away property already acquired or to deprive
a corporation of fruits of contracts lawfully made already reduced
to possession, the capacity to acquire land by condemnation for the
construction of a railroad attends the franchise to be a railroad
corporation, and, when unexecuted, cannot be held to be, in itself,
a vested right surviving the existence of the franchise or an
authorized circumscription of its scope.
The highest court of the New York having held that there is no
property in a naked railroad route in that state which the state is
obliged to pay for when it needs the land covered by that route for
a great public use, and its officers are by appropriate legislation
authorized to act, this Court accepts the views of that court, and
thinks that the proceedings on the part of the state which are
complained of in this case impaired the obligation of no contract
between it and the railway company.
The necessity or expediency of appropriating particular property
for public use is not a matter of judicial cognizance, but one for
the determination of the legislative branch of the government, and
this must obviously be so when the state takes for its own
purposes.
Page 176 U. S. 336
This is a writ of error to a judgment of the Court of Appeals of
the State of New York affirming a final judgment of the supreme
court of New York perpetually enjoining the Adirondack Railway
Company from taking certain lands by condemnation proceedings. The
People of the State of New York brought the action, and obtained
Judgment at a special term of the supreme court, which was reversed
by the appellate division, 39 App.Div. 34, whose order was in turn
reversed by the Court of Appeals, and the original judgment
affirmed. 160 N.Y. 225.
The case is thus stated in the opinion of the Court of Appeals
by Vann, J.:
"In 1882, the Adirondack Railway Company was incorporated for
the term of one thousand years to construct and operate a railroad
from Saratoga Springs to the River St.Lawrence, near the City of
Ogdensburg. It was a reorganization of an older corporation known
as the Adirondack Company, which was organized in 1863, under the
provisions of chapter 236 of the Laws of that year. Prior to the
foreclosure which resulted in the reorganization, the Adirondack
Company had constructed a railroad from Saratoga Springs to North
Creek, in the County of Warren, and this railroad, together with
the right to extend the same, became the property of the Adirondack
Railway Company, which, in April, 1892, applied to the railroad
commissioners for a certificate, under chapter 565 of the Laws of
1890, to relieve it from the statutory obligation of extending its
lines; on the 9th of May following, the commissioners issued their
certificate accordingly. The Adirondack Railway Company,
thenceforth called the defendant, made no attempt to extend its
road until the early part of 1897, when a survey was made for a
proposed extension from North Creek through the Counties of Warren,
Hamilton, and Essex, to the outlet of Long Lake in Hamilton County,
where it was expected that, by connecting with other roads, a route
would be secured to the St.Lawrence River. Before anything further
was done to extend the road, certain action taken by the state
should be briefly alluded to."
"In 1885 the forest preserve was created by statute,
embracing
Page 176 U. S. 337
'all the lands now owned, or which may be hereafter acquired, by
the State of New York within' certain counties, and the area was
extended by subsequent legislation.Laws 1885, c. 283; Laws 1887, c.
639; Laws 1893, c. 332. These acts required said lands to be
forever kept as wild forest lands, and provided that they should
not be sold, leased, or taken by any corporation, public or
private. A forest commission with appropriate powers was created to
care for the forest preserve, and appropriations were made from
time to time to enable it to properly discharge its duties."
"In 1890, the forest commission was authorized to 'purchase
lands so located within such counties as include the forest
preserve, as shall be available for the purposes of a state park,'
and in 1892, the Adirondack Park was established and placed under
the control of said commission. (L. 1890, c. 37; L. 1892, c.
707)."
"The revised Constitution, which went into effect on the 1st of
January, 1895, provides that"
"the lands of the state, now owned or hereafter acquired,
constituting the forest preserve as now fixed by law, shall be
forever kept as wild forest lands. They shall not be leased, sold,
or exchanged, or be taken by any corporation, public or private,
nor shall the timber thereon be sold, removed, or destroyed."
(Const. art. 7, § 7.)
"In 1895, the legislation relating to the forest preserve and
the Adirondack Park was extended by the fisheries, game, and forest
law, and it was declared by section 290 that"
"such park shall be forever reserved, maintained, and cared for
as ground open for the free use of all the people for their health
and pleasure, and as forest lands necessary to the preservation of
the headwaters of the chief rivers of the state, and a future
timber supply, and shall remain part of the forest preserve."
"(Laws 1895, c. 395, §§ 270, 295.) During the same
year, the forest commission was authorized to purchase 80,000 acres
for the use of the Adirondack Park. (L. 1895, c. 561.) In 1897, an
act was passed the object of which, according to its title, was 'to
provide for the acquisition of land in the territory embraced in
the Adirondack Park, and making an appropriation therefor.' (L.
1897, c. 220.) By this act, the appointment
Page 176 U. S. 338
of a forest preserve board was authorized, and it was made its
duty"
"to acquire for the state, by purchase or otherwise, land,
structures, or waters, or such portion thereof in the territory
embraced in the Adirondack Park, as defined and limited by the
fisheries, game, and forest law, as it may deem advisable for the
interests of the state."
"Section 3 of said act provides that"
"the forest preserve board may enter on and take possession of
any land, structures, and waters in the territory embraced in the
Adirondack Park, the appropriation of which in its judgment shall
be necessary for the purposes specified in section 290 of the
fisheries, game, and forest law, and in section 7 of article 7 of
the Constitution."
"It is provided by the next section that,"
"upon the request of the forest preserve board, an accurate
description of such lands so to be appropriated shall be made by
the state engineer and surveyor, or the superintendent of the state
land survey, and certified by him to be correct, and such board, or
a majority thereof, shall indorse on such description a certificate
stating that the lands described therein have been appropriated by
the state for the purpose of making them a part of the Adirondack
Park, and such description and certificate shall be filed in the
office of the Secretary of State. The forest preserve board shall
thereupon serve on the owner of any real property so appropriated a
notice of the filing and the date of filing of such description,
and containing a general description of the real property belonging
to such owner which has been so appropriated, and from the time of
such service, the entry upon and appropriation by the state of the
real property described in such notice for the uses and purposes
above specified shall be deemed complete, and thereupon such
property shall be deemed and be the property of the state. Such
notice shall be conclusive evidence of an entry and appropriation
by the state. § 4. Provision is made by the next section for
the payment for lands so taken, and for damages resulting from the
appropriation by agreement with the owner and the delivery of a
certificate payable by the state treasurer upon the warrant of the
comptroller. § 5. If the forest preserve board is unable to
agree with the owner upon
Page 176 U. S. 339
the value of the property appropriated, the owner, within two
years after the service upon him of the notice of appropriation,
may present a claim for the value of the land to the Court of
Claims, which has jurisdiction to hear and determine the same and
to render judgment thereon. The amount of the final judgment is
payable by the treasurer upon the warrant of the comptroller.
§ 6. No provision is made by the act for the payment of any
lien upon the lands except that when a judgment for damages is
rendered and it appears that there is a lien or encumbrance upon
the property appropriated, the amount thereof shall be stated in
the judgment, and the comptroller may deposit the amount awarded in
the proper bank to be paid and distributed to the person entitled
to the same as directed by the judgment. § 19. The sum of
$600,000 was appropriated for the purposes specified in the act,
and the comptroller was authorized to borrow $400,000 more upon the
request of the forest preserve board to be expended under its
direction."
"On the 6th of August, 1897, after certain negotiations with the
owners of a part of an extensive tract of land known as the Totten
& Crossfield purchase, the forest preserve board passed a
resolution accepting the offer of the owners of about 18,000 acres
of township 23, and 32,000 acres of township 15 of that purchase
for the sum of $149,000, of which $99,000 was for the land and
$50,000 was for certain improvements at Indian Lake for the use of
the state, to be made in accordance with the plans and
specifications to be furnished by the state engineer. Township 15
of the Totten & Crossfield purchase lies, as is admitted in the
answer, 'wholly within the bounds of the forest preserve and also
of the Adriondack Park.' Upon the 15th of August, 1897, a
representative of the state engineer with a surveying party began
surveying at Indian Lake for the purpose of constructing a dam at
its mouth in order to stow water for the use of the Champlain Canal
and for water power on the Hudson River. Upon the completion of the
survey, plans and specifications were prepared and the construction
of the dam was commenced."
"September 18, 1897, the defendant caused a map and profile
Page 176 U. S. 340
to be filed in the Counties of Hamilton, Warren, and Essex for
the extension of its road across township 15, which the forest
preserve board had agreed to purchase as aforesaid, and which lies
partly in each of said three counties. It also gave notice of such
filing to the occupants as required by statute, but did nothing
else. About the 1st of October following, as the owners were about
to convey to the state the lands covered by the resolution of
August 6, and receive their money, they were restrained from so
doing by an injunction issued in an action brought by the
Adirondack Railway Company against them. Thereupon they placed the
deed
in escrow, to be delivered when the injunction was
dissolved, made another deed embracing the same premises, except
the land described in the railroad survey, delivered it to the
forest preserve board, and received the $99,000, according to
agreement. Immediate steps were taken to vacate the injunction, but
they were not at first successful, and on the 7th of October, the
forest preserve board met, and, learning that the justice who
granted the injunction had declined to vacate it, they took steps
to appropriate the land in question for a park under the power of
eminent domain. The state engineer having furnished a description
in writing of the six-rod strip, which the defendant desires for a
railroad, and certified that the same was correct, the three
members of the forest preserve board, acting under chapter 220 of
the Laws of 1897, annexed thereto a certificate of condemnation and
signed the same as the forest preserve board, in these words:"
"New York, County of Albany, City of Albany,
ss. We,
Timothy L. Woodruff, Charles H. Babcock, and Campbell W. Adams,
being the forest preserve board, acting under and in pursuance to
an act of the legislature of the State of New York, being chapter
220 of the Laws of 1897, entitled 'An Act to Provide for the
Acquisition of Land in the Territory Embraced in the Adirondack
Park and Making an Appropriation Therefor,' do hereby certify that
the lands in township 15, Totten & Crossfield purchase, in the
Counties of Hamilton, Essex, and Warren, of the State of New York,
described in the foregoing certificate of the state engineer, have
been and hereby are
Page 176 U. S. 341
duly appropriated by the State of New York for the purpose of
making them a part of the Adirondack Park."
"These papers, indorsed 'state engineer's certificate and
description and forest preserve board's certificate of
condemnation,' were filed in the office of the Secretary of State
on the 7th of October, 1897. On the same day, a notice of this
action of the board, with a general description of the property
appropriated and a copy of the papers above mentioned, were served
on William McEchron, the president of the Indian River Company,
which then owned the lands involved. This service was made, as the
special term is presumed to have found, at ten minutes before noon.
On the same day, the defendant began proceedings to condemn said
strip for the purpose of extending its railroad, but, as the
special term is also presumed to have found, they did not file the
lis pendens until afternoon, and hence not until after the
aforesaid proceeding in behalf of the state had been completed. No
notice of condemnation was served on the defendant."
"On the 2d of March, 1898, the injunction restraining the
conveyance of said lands to the state was reversed on appeal by the
appellate division, and thereupon the original deed in escrow was
delivered and recorded. The defendant went on with its condemnation
proceedings until it was restrained by a temporary injunction
granted in this action, which was brought to restrain that company
and the other defendants from further continuing the proceedings to
condemn."
"The defendant alone answered, and after a trial, the special
term rendered judgment for the people perpetually enjoining it from
taking the land. Upon appeal, the judgment was reversed by the
appellate division and a new trial ordered, by a divided vote, upon
the ground that the company, by the filing of its map on the 18th
of September, had impressed upon the land a lien that was good as
against the State of New York. The people have appealed to this
Court, giving the usual stipulation for judgment absolute. "
Page 176 U. S. 342
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The Court of Appeals ruled that, on the record, it must be
presumed that all the facts warranted by the evidence and necessary
to support the judgment were found by the courts below; that it was
to be assumed that the condemnation proceedings instituted by the
forest preserve board were fully completed as required by the
statute of 1897 before proceedings to condemn on its part were
commenced by the railroad company, and that thereby, if the
condemnation act under which the board proceeded was valid, title
to the strip of land in question passed to the state, became a part
of the forest preserve, and the railroad company was forbidden by
the constitution to take it. The court sustained the validity of
the law, and, without discussing "whether the state became the
equitable owner through contract, possession, and performance,"
held that "it became the legal owner through the power of eminent
domain."
Plaintiff in error contends in substance that it possessed by
contract a vested right to construct its road over the six-rod
strip in question, and to take that strip by the exercise of the
power of eminent domain, and that the condemnation features of the
act of 1897, as construed by the Court of Appeals, are void because
impairing the obligation of the contract; that the condemnation
features of the act as construed to confer authority on the state
to acquire, by the proceedings in question, title to the six-rod
strip are unconstitutional and void in that they authorize the
taking from plaintiff in error its vested property right to
construct, maintain, and operate its railroad over said strip
"without any notice whatsoever or opportunity to be heard, and
without the making of any compensation therefor;" that the
proceedings authorized by the act of 1897 do not constitute due
process of law.
Section 1 of Article VIII. of the Constitution of New York
authorized the formation of corporations under general laws, and by
special act (for municipal purposes and) in cases where in the
judgment of the legislature the objects of the corporation
Page 176 U. S. 343
could not be attained under general laws, but provided that "all
general laws and special acts passed pursuant to this section may
be altered from time to time or repealed."
The Adirondack Company was organized in 1863 under the general
railroad law of New York of April 2, 1850, which reserved the right
of the legislature to "at any time annul or dissolve any
incorporation formed under this act."
The Revised Statutes, in force from 1829 to 1882, provided:
"The charter of every corporation that shall hereafter be
granted by the legislature shall be subject to alteration,
suspension, and repeal in the discretion of the legislature."
By an Act of March 31, 1865, the Adirondack Company was
authorized to "amend its articles of association so as to enable
it, under the general law, to extend its railroad to some point on
Lake Ontario or River St.Lawrence."
April 25, 1867, the railroad law of April 2, 1850, was amended
so as to provide that, if corporations formed under the act should
not, within five years after the filing and recording of its
articles of association, commence construction or finish its road
and put it in operation within ten years, its corporate existence
and powers should cease.
In 1882, the railroad of the Adirondack Company extended from
Saratoga Springs to North Creek, and in that year the Adirondack
Railway Company acquired all the rights of the Adirondack Company,
and, under the reorganization laws of New York, organized itself
with a life of a thousand years.
The eighty-third section of the railroad law of June 7, 1890,
provided as follows:
"A railroad corporation, reorganized under the provisions of law
relating to the formation of new or reorganized corporations upon
the sale of their property or franchise, shall not be compelled or
required to extend its road beyond the portion thereof constructed
at the time the new or reorganized corporation acquired title to
such railroad property and franchise, provided the board of
railroad commissioners of the state shall certify that in their
opinion the public interests under all the circumstances do not
require such extension. If such board shall so certify, and shall
file in their office such certificate, which certificate
Page 176 U. S. 344
shall be irreversible by such board, such corporation shall not
be deemed to have incurred any obligation so to extend its road,
and such certificate shall be a bar to any proceedings to compel it
to make such extension, or to annul its existence for failure so to
do, and shall be final and conclusive in all courts and proceedings
whatever. This section shall not authorize the abandonment of any
portion of a railroad which has been constructed or operated or
apply to Kings County."
On the ninth of May, 1892, on the application of the Adirondack
Railway Company, the board of railroad commissioners issued its
certificate certifying that, in its opinion, the public interests,
under all the circumstances, did not require the extension of the
road of the Adirondack Railway Company beyond the portion thereof
constructed at the time the said company acquired title to said
railroad property and franchises -- namely, beyond North Creek, in
the County of Warren.
Counsel argue that the contract with the state was that
plaintiff in error should avail itself of the grant and complete
the road within ten years from the filing of its articles of
association or forfeit its existence and powers, that this was one
of the conditions of the contract, that it was perfectly competent
for the state to release the other party from the fulfillment of
such condition without in any way withdrawing its own grant if it
chose to do so, and that this was the sole effect of the
application for and the obtaining of the certificate. In other
words, that the Adirondack Railway Company was released from the
obligation to extend its road, but retained the right to do so at
any time within nine hundred and ninety years, and that although
the company still possessed and operated the road so far as
constructed, and had asked and received a dispensation from
carrying its enterprise further except as it might choose during
the passage of centuries, the state was bound by contract not to
withdraw the bare right, notwithstanding the contract, according to
its express terms, might be changed or abrogated.
Undoubtedly the power to amend or repeal cannot be availed of to
take away property already acquired, or to deprive a
corporation
Page 176 U. S. 345
of the fruits already reduced to possession of contracts
lawfully made. But the capacity to acquire land by condemnation for
the construction of a railroad attends the franchise to be a
railroad corporation, and, when unexecuted, cannot be held to be in
itself a vested right surviving the existence of the franchise or
an authorized circumscription of its scope.
People v.
Cook, 148 U. S. 397;
Pearsall v. Great Northern Railway Co., 161 U.
S. 646;
Bank of Commerce v. Tennessee,
163 U. S.
424.
But it is said that, by the filing of the map across township
fifteen and the service of its notices, the railroad company so far
exerted its capacity to extend and construct as to secure rights in
the strip of land which could not be taken at all, or, if so, not
without compensation.
The railroad law provided that companies formed under it before
constructing any part of their road into or through any county
named in their articles of association should make a map and
profile of the route intended to be adopted, file the same in the
office of the clerk of the county in which the road was to be made,
and give written notices to all actual occupants of the route so
designated, and that any party feeling aggrieved by the location
might, within fifteen days after receiving notice, apply to a
justice of the supreme court by petition, who could affirm or alter
the proposed route in such manner as might be consistent with the
just rights of all parties and the public. The Code of Civil
Procedure provided for proceedings to be taken to acquire title to
real property for a public use by condemnation.
In this case, the railroad company filed its map on September 18
and served its notices September 23, 1897. The Forest Preserve
Board, on August 6, 1897, had accepted an offer by the owners of
lands over which the route was projected, and conveyance thereof
was about to be delivered, when on September 30, 1897, an
injunction was granted at the suit of the railway company
restraining the owners from conveying. The fifteen days for
objections to the proposed route prescribed by the railroad law had
not then expired. The state condemned October 7, and on the same
day, but subsequently,
Page 176 U. S. 346
the company commenced proceedings condemn under the Code.
The Court of Appeals held that, assuming that the filing of the
map created a lien or something in the nature of a lien, as this
was by statute and not by contract, it could be done away with by
statute without liability to make compensation unless some vested
right had accrued under it. The court further held that no lien nor
any right in the nature of a lien could be created as against the
state by the mere filing of a route map under the railroad law;
that the filing established no right against the owners, because
that would be in violation of the constitution, and that it
established none against the state because the power of the state
was paramount. But the court was of opinion that, as against all
other railroad companies, and as against all other creatures of the
state empowered to use the right of eminent domain,
"it gave the exclusive right to occupy the particular strip of
land for railroad purposes until the legislature authorized it to
be devoted to some other public use."
And the court said:
"The claim that a lien, good as against the creator of the
corporation, was placed upon the land simply by the grant of a
franchise to exist as a corporation in order to build a road,
followed by the filing of a map of the proposed route and notice
thereof to the occupants, but by nothing else, cannot be sustained.
There is no property in a naked railroad route existing on paper
only, that the state is obliged to pay for when it needs the land
covered by that route for a great public use, and its officers are
authorized to act by appropriate legislation."
In arriving at these conclusions, the Court of Appeals was
construing and applying the laws of the State of New York, and we
perceive no adequate ground for declining to accept its views in
accordance with the general rule on that subject. In any view, we
think that the proceedings on the part of the state impaired the
obligation of no contract between it and the railway company.
Counsel concedes that the sovereign power of eminent domain is
inherent in government as such, requiring no constitutional
recognition, and is as indestructible as the state itself,
Page 176 U. S. 347
and
"that all private property, tangible and intangible, is held
subject to the exercise of the right by the sovereign power, even
that which may already be devoted to a public use."
It is insisted however, that the constitutional limitations on
the exercise of the power, though conditions merely, and not part
of the power itself, require that the owner shall have an
opportunity to contest the legality of the taking, and that
ultimate payment of just compensation must be secured.
And the constitutionality of the act of 1897 is attacked as
authorizing the deprivation of property without due process of law,
and the taking thereof without provision for compensation.
The forest preserve was created by an Act of May 15, 1885, and
consisted of "all the lands now owned or which may hereafter be
acquired by the State of New York" within the Counties of Essex,
Warren, Hamilton, and other counties.
Section eight read:
"The lands now or hereafter constituting the forest preserve
shall be forever kept as wild forest lands. They shall not be sold,
nor shall they be leased or taken by any person or corporation,
public or private."
The forest commission was created by the act, and in 1890 was
authorized to "purchase lands so located within such counties as
include the forest preserve, as shall be available for the purposes
of a state park," and an appropriation was made for that purpose.
By an Act of May 20, 1892, the Adirondack Park was established in
the Counties of Hamilton, Herkimer, St.Lawrence, Franklin, Essex,
and Warren, was made part of the forest preserve, and declared to
be
"forever reserved, maintained, and cared for as ground open for
the free use of all the people for their health or pleasure, and as
forest lands necessary to the preservation of the headwaters of the
chief rivers of the state and a future timber supply,"
and the forest commission was given power to contract for the
purchase of land subject to restrictions therein mentioned. Laws on
the subject of this park were passed in 1893, 1894, and 1895, and
in the latter year, a new state constitution came into effect, of
which section 7 of article VII was as follows:
"The lands of the state now owned or hereafter acquired,
constituting the forest preserve, as now fixed by law, shall be
forever kept as wild forest lands.
Page 176 U. S. 348
They shall not be leased, sold, or exchanged, or be taken by any
corporation, public or private, nor shall the timber thereon be
sold, removed, or destroyed."
Then came the act of 1897, creating the forest preserve board,
which was empowered to acquire for the state by purchase or
otherwise such "lands, structures, or waters" within the limits of
Adirondack Park as might be deemed advisable for the interests of
the state, and to enter thereon and take possession thereof.
By section four, it was provided that when the board should have
determined to appropriate certain lands, the state engineer should
furnish it with an accurate description thereof certified by him to
be correct; that a majority of the board should indorse on such
description a certificate setting forth that the lands specified
had been appropriated by the state for the purpose of making them a
part of Adirondack Park, which description and certificate should
thereupon be filed in the office of the Secretary of State; that
the board should then serve on the owner of the property so
appropriated a notice setting forth the fact of such filing, the
date of filing, and a general description thereof, and that,
"from the time of such service, the entry upon and appropriation
by the State of the real property described in such notice for the
uses and purposes above specified shall be deemed complete, and
thereupon such property shall be deemed and be the property of the
state. Such notice shall be conclusive evidence of an entry and
appropriation by the state."
Under the sixth section, the owner, if unable to agree with the
board on the value of the property appropriated or the amount of
damages resulting from such appropriation, might, within two years
after the service upon him of the notice of appropriation, present
to the Court of Claims a claim for the value of the land and for
damages, and the Court of Claims shall have jurisdiction to hear
and determine such claims and render judgment thereon, provision
being made for the payment of such judgment.
By the nineteenth section, it was provided that when a judgment
for damages was rendered,
"and it appears that there is
Page 176 U. S. 349
any lien or encumbrance on the property so appropriated, the
amount of such lien shall be stated in the judgment, and the
comptroller may deposit the amount awarded to the claimant in any
bank in which moneys belonging to the state may be deposited, to
the account of such judgment to be paid and distributed to the
persons entitled to the same as directed by the judgment."
The lands taken for the park were thereby dedicated to a public
use regarded by the state as of such vital importance to the people
that they were expressly put by the constitution beyond the reach
of any other destination. The general rule is that the necessity or
expediency of appropriating particular property for public use is
not a matter of judicial cognizance, but one for the determination
of the legislative branch of the government, and this must
obviously be so where the state takes for its own purposes. The
state possesses the power as a sovereign, and as a sovereign exerts
it. How can its citizens call on the courts to review the grounds
on which the state has acted in the absence of legislation
permitting that to be done?
It is true that the state may delegate the power, and where it
has done so to a railroad corporation, and by its exercise lands
have been subjected to a public use, they cannot be applied to
another public use without specific authority, expressed or
imperatively implied, to that effect. But the sovereign power of
the state cannot be alienated, and where exercised is
exclusive.
In this case, the use for the park was in itself inconsistent
with the use for railroad purposes, and the legislation and the
constitution alike forbade this company to acquire for its use any
portion of that which the state had taken for its own exclusive and
designated purposes.
Compensation must indeed be made, and inquiry as to its amount
in some appropriate way, before some properly constituted tribunal
must be provided for,
Backus v. Fort Street Union Depot
Company, 169 U. S. 557, and
it is the rule in New York that where this is done, and a certain,
definite, and adequate source of payment is provided, compensation
need not actually be made in advance of a taking by the state or
one of its municipal
Page 176 U. S. 350
subdivisions.
In the Matter of the Mayor, &c., 99
N.Y. 569;
Sweet v. Rechel, 159
U. S. 400.
This act fulfills these requirements in that the state treasury
is the source of payment, and an appropriate mode is designated for
the ascertainment of compensation as to owners and those holding
liens and encumbrances. In providing for notice to owners only, the
act seems to contemplate that it will appear in the progress of the
proceedings to ascertain compensation whether there are outstanding
claims, and that such claimants may thereupon come forward and be
heard.
We need not discuss the sufficiency of the provision in this
respect, since we agree with the Court of Appeals, as has already
been indicated, that the railroad company occupies no position
entitling it to raise the question. The steps it had taken had not
culminated in the acquisition of any property or vested right, and
no contract between it and the state was impaired, nor was due
process of law denied to it within the meaning of the Constitution
of the United States under the circumstances disclosed on this
record.
Judgment affirmed.
