It is for the legislature to determine, in its discretion, the propriety of exercising the power of eminent domain in cases in which it may constitutionally be exercised; that is to say, the legislature determines by statute, either general or special, in what cases private property may be taken for a public use, subject, however, to the supervision of the courts, which have the final power to decide whether or not the use is in such sense public that private property may be condemned for that purpose. Thus, conceding that land may be constitutionally taken for a public park, it is for the legislature to provide by statute how and under what circumstances this shall be done. If it makes no provision for public parks, then private property cannot be taken for such purpose; if it does provide for such taking, then the method prescribed by the statute must be followed. Indeed, the determination by the legislature that any specified purpose is a public purpose for which private property may be taken, is prima facie valid, and the courts will not override the judgment of the legislature in that matter except in a clear case.

The legislature must also provide some method of ascertaining the just compensation required by the usual constitutional provision and enforcing its payment; else the attempt to confer authority to take will be ineffectual on account of the constitutional limitation; but in general, the method to be pursued is discretionary with the legislature.

Judicial proceedings for the condemnation of property are required in some states; but the constitutional requirement as to due process of law does not necessitate an action in court to determine the amount of the damage to be paid in order that just compensation shall be made. It is usual to provide for the selection, by the sheriff or some other ministerial officer, of appraisers or commissioners to view the premises and report the amount which the owner shall receive for his property taken, and the damage suffered by him in case he is entitled to any damages beyond the value of the property taken. It is, however, further provided in many if not all of the states in which it is not required that the original proceeding be in a court, that there may be an appeal from the finding of the appraisers or commissioners to a court, in which the question as to the amount to be paid shall be judicially determined. In many states it is specifically required that the compensation thus determined be paid before the property is taken. Where this is not required by the constitution, it is usually required by statute, unless it may be in cases where the property is taken directly for the use of the state or a public corporation.