The opinion
Hill, J.
(concurring). I concur in the result. Neither the commerce clause of the Federal Constitution nor the Transportation Act of 1920 is in any wise involved. “ The power to take private property, contrary to the decision of the owner, for a public use reaches back of all constitutional provisions.” (Matter of City of Rochester v. Holden, 224 N. Y. 386, 392 .) “ * * * The right of every State to authorize the appropriation of every description of property for a public use is one of those inherent powers which belong to State governments, without which they could not well perform their great functions. It is a power not surrendered to the United States and is untouched by any of the provisions of the Federal Constitution, provided there be due process of law, that is, a law authorizing it, and provision made for compensation. This power extends to tangibles and intangibles alike. A chose in action, a charter, or any kind of contract, are, along with land and movables, within the sweep of this sovereign authority.” (Cincinnati v. Louisville & Nashville R. R. Co., 223 U. S. 390, 400 .) “ This right of appropriating private property to a public use is one of the powers vital to the public welfare of every self-governing community.” It is a power “ incident to sovereignty,” which “ belongs to every independent government.” (Id. 404. See, also, Pennsylvania Hospital v. Philadelphia, 245 U. S. 20 ; Georgia v. Chattanooga, 264 id. 472.)
Davis, J., concurs.
Judgment and final order affirmed, with costs.