SPAFFORD CASE.
Ellis, J.,concurring in opinion by Whitfield, J.:
Upon the first hearing of this case the order of the court in which proceedings for the c'ondemnation of a strip of land for road purposes were begun was quashed,the ground being .that the agencies of the state had not proceeded properly under the statute vesting them with power to subject private property to public use.
A petition for rehearing was filed. The basis of the petition is that the word “corporation,” as used in Section 29, Article 16 of the Constitution, does not apply to a State agency which may have been vested with the powers of a corporation.
But the argument contains a fallacy which is quite apparent. Some corporations are empowered by law to exercise the power of eminent domain.
They are prohibited by. the article above referred to from appropriating any private property to their use until full compensation therefor shall be first made to the owner, which compensation shall be determined by a jury of twelve men in a court of competent jurisdiction. If the State Road Board may be distinguished from other corporations in being a state agency and the property which it appropriates is not for its own use but for that of the state does it follow that the property of citizens may be taken for a public or state purpose without due process of law?
*634The words “eminent domain” relate to an authority existing in every sovereignty to own, possess, control and take property. In some cases the authority is complete without any action on the part of the state, in other cases it becomes complete by displacing the right of ownership. This is accomplished in three ways: by contract with the owner, by accepting his gift or by appropriating his property against his will.
It is the last phase of the power of eminent domain with which this case deals.
Our constitution provides that no person shall be deprived of property without due process of law nor shall his property be taken without just compensation.
This guaranty implies orderly judicial process it matters not whom the parties may be, whether state or individual. Does it therefore matter that in this ease it is the state through its agencies which seeks to acquire the private property of an individual without due process of law ?
I think not.