s,[630] decided in
1878, was in the negative; and on the ground of the omission of the
clause found in the Fifth Amendment from the terms of the Fourteenth, it
refused to equate the just compensation with due process. Within less
than a decade thereafter, however, the Court modified its position, and
in Chicago, B. & Q.R. Co. _v._ Chicago,[631] seven Justices
unequivocally rejected the contention, obviously based on the Davidson
Case that "the question as to the amount of compensation to be awarded
to the railroad company was one of local law merely, and [insofar as]
that question was determined in the mode prescribed by the Constitution
and [State] law, the [property owner] appearing and having full
opportunity to be heard, the requirement of due process of law was
observed." On the contrary, the seven Justices maintained that although
a State "legislature may prescribe a form of procedure to be observed in
the taking of private property for public use, * * * it is not due
process of law if provision be not made for compensation * * * The mere
form of the proceeding instituted against the owner, * * *, cannot
convert the process used into due process of law, if the necessary
result be to deprive him of his property without compensation."

Public Use

While acknowledging that agreement was virtually nonexistent as to "what
are public uses for which the right of compulsory taking may be
employed," the Court, until 1946, continued to reiterate "the nature of
the uses, whether public or private, is ultimately a judicial
question."[632] But because of proclaimed willingness to defer to local
authorities, especially "the highest court of the State" in resolving
such an issue,[633] the Court, as early as 1908, was obliged to admit
that, notwithstanding its retention of the power of judicial review, "no
case is recalled where this Court has condemned as a violation of the
Fourteenth Amendment a taking upheld by the State court as a taking for
public uses * * *"[634] In 1946, however, without endeavoring to
ascertain whether "the scope of the judicial power to determine what is
a 'public use' in Fourteenth Amendment controversies, * * *" is the
same as under the Fifth Amendment, a majority of the Justices, in a
decision involving the Federal Government, declared that "it is the
function of * * * [the legislative branch] to decide what type of taking
is for a public use * * *"[635]

Necessity for a Taking

"Once it is a