18 Wend. 9 | N.Y. Sup. Ct. | 1837
After advisement, the following opinions were delivered:
[14] [15] [16] The first and most important question in this case is, as to' the constitutional power of the legislature to authorize the taking of private property for the use of a railroad, upon paying a just compensation to the owner for the property thus taken. In the case of Beekman v. The Saratoga and Schenectady Railroad Company, (3 Paige’s R., 45,) which came before me in another court, I decided that railroads for the conveyance of travellers, or the transportation of merchandise from one part of the State to another, were public improvements and for the public benefit, tor the construction of which private property might be taken under the authority of the legislature, upon paying a just compensation therefor to the owners. That the eminent domain, or the right to resume the possession of private property for the public use, upon paying a just compensation therefor, remained in the government or the people in their sovereign capacity; and that such right of resumption might be exercised, not only for the public safety, but also where tlie interest or even the convenience of the State or of its inhabitants were concerned, as for the purpose of making turnpike and other roads, railways, canals, ferries, and bridges, for the accommodation of the public. That it belonged to the legislative power of the State to determine whether the benefit, which the public were to derive from such improvements, were of sufficient importance to justify the exercise of this right of eminent domain, in thus interfering with the private rights of individuals; and that the right itself might be exercised by the government through its immediate officers or agents; or indirectly through the medium of corporate bodies or private individuals. The reasons upon which these conclusions were founded, are stated at length in the report of that case, and it is therefore unnecessary to repeat them here. In .the subsequent case of Varick v. Smith and the Attorney General, (5 Paige’s R., 137,) I also arrived at the conclusion that this right of eminent domain did not authorize the government to take the property of one citizen for the mere purpose of transferring it to another, even for a full compensation, where the public was not interested in such transfer ; and that such an arbitrary exercise of power would be an infringement of the spirit of the constitution, as not being within the powers delegated by the people to the legislature. To justify the exercise of the right there must be a necessity, or at least an evident utility on the part of the public. (Ersk. Inst. B. 2, tit. 1, § 2. Per Lane, J. 4, Ohio R. 286. Per Green, J. 3 Yerg. R., 52.) Upon a further argument and examination of this subject, 1 have seen no reason to change the opinion I had expressed in the cases above referred to. On the contrary, since the decision in the case of Beekman v. The Saratoga and Schenectady Railroad Company, decisions have been- made in the
[17] [18] Another very important question which arises in this case is, whether the legislature in fact authorized the defendants to enter upon the private property of the plaintiff and to construct their railroad thereon before his damages were actually assessed and paid, or offered to be paid to him; and if such is the construction of the law, whether such a power is authorized by the constitution. In the case of Rogers v. Bradshaw, (20 Johns. R. 735,) this court decided that where private property was taken for public use, it was not necessary that the amount of the compensation should be actually ascertained and paid for before such property was appropriated to the public use; that it was sufficient if a certain and adequate remedy was provided by which the individual could obtain such compensation without any unreasonable delay. This decision has been followed by the courts of several of our sister states. To this extent the opinion of Chancellor Kent, in the case of Rogers v. Bradshaw, must be considered as the settled construction of the constitutional provision on this subject, at least in this state. I cannot, however, agree with my learned predecessor, in his subsequent reasoning in that case, upon which he afterwards acted in the case of Jerome v. Ross. (7 Johns. Oh. R. 344,) that it is not necessary to the. validity of a statute authorizing private property to be taken for the public use that a remedy for obtaining compensation by the owner should be provided. On the contrary, I hold that before the legislature can authorize the agents of the state and others to enter upon and occupy, or destroy or materially injure the private property of an individual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation, I do not mean to be understood that the legislature may not authorize a mere entry upon the land of another for the purpose of examination, or of making preliminary surveys, See., which would otherwise be a technical trespass, but no real injury to the owner of the land, although no previous provision was made by law to compensate the individual for his property if it should afterwards be taken for the public use. But it certainly was not the intention of the framers of the constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided and upon an adequate fund, whereby he may obtain such compensation through the medium of the' courts of justice, if those whose duty it is to make such compensation refuse to do so. In the ordinary case of lands taken for the making of public highways, or for the use of the state canal, such a remedy is provided; and if the town, county, or state officers refuse to do their duty in ascertaining, raising, or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the legislature to compel the passage of the necessary laws to ascertain
[19] I cannot, however, agree with the learned judge who delivered the opinion of the supreme court in this case, that such is the fair and legitimate eónstruction and meaning of the defendant’s charter. It is a primary rule ip the construction of statutes in those countries where the limits of the legislative power are restricted by the provisions of a written constitution, to endeavor if possible to interpret the language of the legislature in such a manner as to make it consistent with the constitution or fundamental law. Applying that principle to the statute under consideration, and having ascertained that it would be inconsistent with the fundamental law of the state, to authorize the defendants to take possession of the lands of an individual without having made an adequate and certain provision for the recovery of the damages which he would necessarily sustain by such permanent occupation of his property for the purposes of the road, there appears to be no difficulty in giving such a construction to' this statute as will be consistent with the constitution and also with the probable intention of the legislature. This may be done effectually by considering what is very inartificially appended as a proviso to the seventh section, as in the nature of a condition precedent, riot only to the acquisition of the legal title to the land, but also to the right to enter and take the permanent possession of the land for the use of the corporation. Indeed, such appears to me to be the more reasonable and fair construction of this section, independent of any constitutional difficulty in the way of a different construction. For upon the supposition that no injustice was intended by the legislature, it can hardly be presumed they meant to authorize the company to enter upon the lands of individuals, pull down their buildings, &c., and then take their own time to get the damages appraised and to pay the same; leaving the individuals injured thereby to seek for some uncertain remedy by action, if the company neglected to get the damages assessed within a reasonable time.
[20] The conclusion at which I have arrived, therefore, is, that the defendants’ plea is imperfect, in not averring that the damages had been regularly assessed and paid before the defendants entered upon the plaintiff’s land and appropriated it to"the use of the road; and that if they in fact entered and commenced the. construction of the "road before the damages were actually assessed and paid, the plaintiff has a technical right to re.covér in this action for all damages which he really sustained by such unauthorized entry, although these requisites of the statute were afterwards complied with. In that case, the defence arising from the subsequent assessment and payment of the damages, can only be pleaded to that part of the declaration which charges a continuance of the trespass after the damages were assessed and paid as required by the statute.
For these reasons I think the demurrer is well taken, and that the judgment
The important questions which appear to me to be presented in this case for examination, are, first, whether the act is constitutional under which the defendants attempt to justify ? If not, no plea, however well pleaded, could justify the trespass. And secondly, if the act is constitutional, was the plea correctly pleaded ?
The principal objection, in my opinion, urged against the constitutionality of the act is, that the property was taken for a use not authorized by the constitution. The constitution authorizes private property to be taken for public use, on allowing the owner a just compensation.
[21] [22] Let us inquire, then, whether the act incorporating this company authorized it to take the property of the plaintiff for public use. The use for which it was taken is declared in the act. The company were authorized by the act to take it for the purpose of constructing a single or double railroad or way, between the Mohawk and Hudson rivers, &c.; to transport, take and carry property and persons upon the same, by the power and force of steam, of animals, or of any mechanical or other power, or of any com bination of them which the company might choose to employ. Does the fact that the power to construct the road is given to a company alter the nature of the grant ? Surely not. It is entirely immaterial who constructs the road, or who defrays the expense of the construction. The object for which it is constructed must determine the nature of the grant, whether for public or private use. What object had the legislature in view in authorizing this company to construct the road in question over the plaintiff’s land? It was not the private emolument the company was to receive for the use of the road. For such a purpose the' right would never have been conferred. The legislature, who are constituted the judges of the expediency of taking private property for public use, came to the conclusion that the public required the use of a railroad between the cities of Albany and Schenectady. It deemed it inexpedient to construct it at the public expense, and adopted the policy of having a company construct it at its own expense and risk, having the money expended refunded by way of tolls or fare from the individuals who should travel upon it; reserving the right, however, to take it as the property of the state within a certain period. Because the legislature permitted the company to remunerate itself for the expense of constructing the road, from those who should travel upon it, its private character is not established; it does not destroy the public nature of' the road, or convert it from a public to a private use. If such would be the effect in relation to railroads, the receipt of tolls for the use of turnpike roads would also determine the question that they too were for private instead of public use. The public have an interest in the use of these roads ; any individual has a right to be transported upon them, at all reasonable times, on paying the usual fare, as much as he has the right of using a turnpike or a ferry on paying the usual toll. In the case of Beekman v. The Saratoga and Schenectady Railroad Company, (8 Paige’s R., 75,) the chancellor says : “ The privilege of making a road and taking tolls thereon, is a franchise, as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same. The public have an interest in the use of the road, and the owners may be prosecuted for the damages sustained, if they should refuse to transport an individual or his property, without any reasonable excuse, on being paid the usual rate of fare.’’ If it is a public franchise, and granted to the company for the purpose of providing a mode of public conveyance, the company in accepting it, engages on its part to use it in such manner as will accomplish the object for which the legislature designed it. While the company, therefore, holds the property of individuals which it is authorized by the act to hold and use, it cannot convert it from the
[23] [24] A difference in principle has often been attempted to be established between those acts of the legislature which authorize companies to take private property for the construction of railroads, and those which authorize it to be taken for the maintenance of ferries,, the erection of bridges and the construction of turnpike roads; but from the best reflection I have been able to give the subject, I have been unable to discover any such difference in principle. In the use of railroads, the company furnish the cars and receive the fare for the transportation of passengers and their property; so in the use of ferries, the company furnishes the boat and receives the fare for the like services. The latter have been considered and treated as public franchises from the earliest grants; why, therefore, should not the former ? I admit that in the use of. bridges and turnpikes there is more latitude given to the individual who wishes to transport his person or his property, as to the mode and manner in which it shall be done, than there is in the use of railroads or ferries. In the use of the former, he accomplishes his object by the aid of his own vehicle, and takes his own time to effect it; while in the latter, he and his property are to be transported in such vehicles as the companies provide.' But the mode does not alter the nature of the object; either method is to effect the same purpose, to wit, the transportation of the person and his property. The difference in the mode of accomplishing the object arises from the nature and necessity of the case. In the one case, safety and expedition render it necessary that the company should furnish the vehicle ; in the other, the traveller may secure both of these objects by furnishing his own. In the one case it is practicable, in the other it is not, consistently with the safety of the traveller. It is not only necessary that railroad companies should provide the cars, and ferry companies the boats, to secure to the traveller safety and expedition, but it is so also as a matter of economy. The privileges therefore allowed these companies, to provide the vehicles for the accommodation of travellers, is a public benefit, and this is an additional fact to show their design for public use, rather than evidence in favor of a contrary inference. I cannot, therefore, realize any material difference in principle in these two classes of acts of incorporation; and it has been repeatedly held that the acts authorizing private property to be taken for the" use of ferries, bridges and turnpikes, are acts authorizing it to be taken for public use, although the individual companies to whom these privileges are granted receive the emoluments arising from the grants. In the case of The Charles River Bridge Company v. The Warren Bridge Company, (7 Pick. R., 496), Putnam, J. says, that “ Bridges and ferries are-puhliei juris ; a toll is grantéd for services rendered to the publicand again he says, “ The proprietors of a bridge or ferry are under great liabilities to the public, and compellable to permit the públic to use them on paying toll.” In the case of The State v. The Town of Hampton, (2 N. Hamp. R. 25), Woodbury, judge, says: “ It has always been understood in this state, and all turnpike grants have been made on the hypothesis, that lands taken for'turnpike roads are taken for public purposes.” In the case of Rogers § Magee v. Bradshaw, (20 Johns. R. 742), Chancellor Kent, in delivering the opinion of the court, remarks that “ Turnpike roads are in point of fact the most public roads or highways that are known to exist, and in point of law they are made entirely for public use, and the community have á deep interest in their construction and preservation.” If the acts authorizing companies to take private property for
[25] Formerly, much diversity of opinion seems to have existed as to the true rule of pleading statutes with provisos and exceptions. In the case of Cathcart v. Hurdy, (2 Maule & Sel., 540), Lord Ellenborough said, “ The rule was inflexible ; if there be a substantive proviso creating an exception, it was for the party who would bring himself within it to plead it.” Bacon, however, declared the rule to be, that if there be in that clause of an act of parliament which is plead, any proviso or exception, this must be recited, although it should make against the party reciting it; for as the proviso or exception is parcel of the clause which is plead, if this should be omitted, it would amount to a misrecital of the clause (6 Bac. Abr. stat. L., 395) ; but the rule which seems to have prevailed, and which has been adopted by our judicial tribunals, is the one, with a single exception, laid down by Treby, Ch. J., in the case of Joes v. Axer, (1 Id. Raym. 120). He says, “ Where an exception is incorporated in the body of a clause, he who pleads the clause ought also to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause and leave it to his adversary to shew the proviso.” In the case of Teal v. Fonda, (4 Johns. R., 305) Mr. Justice Van Bess says the only error in this rule of Chief Justice Treby is, in restricting it to provisos contained in a subsequent section or statute which was not warranted by the cases; and in the case of Bart v. Oléis, (8 Johns. R., 48), the court says, “ If the exception or proviso forms no part of the plaintiff’s title or right of action, but merely a matter of excuse for the defendant, it need not be plead, but left to the opposite party. I think, therefore, we may fairly infer from the authorities, that it is immaterial whether the proviso or exception is in the same clause or a subsequent one : if the proviso or exception is necessary to give the party pleading the clause the right he claims under it, he must plead it. If, on the other hand, the proviso or exception forms no part of such right, but merely a matter of excuse for the opposite party, he need not plead it, but may leave it to the party who is to avail himself of the benefit of it.
[26] [27] The defendants in this plea set out substantially the part of the clause authorizing them to enter and take the plaintiff’s property for the construction of their road, without setting out the proviso ; and in order to determine whether it was necessary for them to set out the proviso, it becomes necessary to consider its nature and character. The proviso prescribes the condition on which the property of individuals is to bp taken from them and converted to public use. It is a condition required by the constitution, and without which the property cannot be taken for the purposes contemplated by the act; it therefore constitutes an essential part of the clause to show the very existence of the right the parties claim under it. The plea treats the act in the same manner it would, had it not contained the proviso. Suppose the act had been passed, authorizing the company to enter upon and take possession of and use all such lands and real estate as might be indispensable for the construction and maintenance of their road, without requiring the company to pay a compensation to the individuals whose property should be taken, could the company justify the taking of the property under it ? Would not such an act be in direct violation of the constitu
[28] [29] I am aware that under the statutes authorizing the construction of canals, the commissioners are authorized to take private property ; and that the damages are afterwards to be appraised and paid for by the state; and that the right of the commissioners to enter upon and take the property of individuals before the state compensates the owner;.has been sanctioned by the judicial decisions.of this state. (See Rogers & Magee v. Bradshaw, 20 Johns. R. 744; Jerome v. Ross, 7 Johns. Ch. R. 343; Wheelock v. Pratt, 4 Wendell, 650.) And although I am decidedly of the opinion that the construction given to the constitution under these, decisions, is a"forced construction, and one which was pressed upon the court, from the extreme necessity of the case, I do not feel disposed to controvert them, nor is
From the view, therefore, I have taken of this case, I feel myself bound to come to the conclusion that the proviso in the clause granting the right of entry was an inseparable part of it, and essential to its very existence ; that without it the act would be imperfect, and form no ground on which the defendants could justify ; and that in order to justify, they were bound to set out the proviso as well as the enacting clause which preceded it; and not haying done so, their plea is insufficient, and the demurrer is well taken. I am, therefore, for reversing the judgment of the supreme court, with leave to the defendants to amend their plea on payment of costs.
The question presented in this case is, whether the defendants have shown enough in their plea to justify themselves in taking possession of, and using the plaintiff’s property, in the manner they in their plea have admitted; and this involves the consideration, whether the act of the legislature of this state, as far as set forth in the plea, is or can be deemed a cunstitutional law ; for if it be unconstitutional, then clearly the defendants must fail in the justification which they have set forth in their‘plea, and the demurrant must prevail.
[30] [31] [32]Our States and union are governed by written constitutions, the provisions of which are framed with the most studied caution, and designed to relieve tne people from an uncontrollable despotic power,under which they had lived, and to interpose barriers to the exercise of that power, to the preservation of their lives, liberty and property, which they saw and knew were so eminently endangered while subjected to the caprice of a parliament, whose political power was omnipotent, unregulated, and uncontrolled by any written constitution. We read from Biachstone’s Commentaries, 1st vol., 160 that “ the power and jurisdiction of par
[33] Fortunately, in the case under consideration, the legislature of this state are not obnoxious to the imputation of usurping despotic power in violation of the constitution, by the grant which they have made to the defendants in error, authorizing the construction of their railroad, to take private property for public use' without rendering compensation, as the plea which they have interposed to the plaintiff’s declaration would seem to indicate. That plea insists that the defendants stand justified of the trespass, because the legislature of this state has given them a right to enter upon, take possession of, and use the plaintiff’s land .for the purposes of their road, without alleging in that plea, as they should have done, that they had made to the plaintiff in error a compensation for the land thus used. I have, therefore, no hesitation in declaring, that any statute to the extent only as set forth in this plea, would be unconstitutional and void, and would consequently afford no justification for the trespasses charged. In coming to this conclusion, I have anticipated the decision of another question raised in this case, to wit, whether it was incumbent on the defendants to set forth in their plea, that they had made to the plaintiff compensation for his lands, or whether this was matter for the plaintiff to reply. On this branch of the case we have heard much of exceptions and provisos in statutes, and what their legal effects are when found in the enacting clause, and when in a subsequent section. It is unnecessary to pass in review the great number and variety of cases, which have been cited to us on this point, as they are all resolvable into a very plain and simple proposition, and that is, that a party in pleading must make out his case, clearly and distinctly; showing a state of facts which, if true, would entitle him to judgment. Testing this plea by this rule, it is evident that the plea is defective, in that it reposes upon a void and unconstitutional law, (I mean if the law be only to the extent as set forth in the plea, and only so far can we regard it in this case,) for a justification, which is no justification, and upon which no judgment could be rendered for the defendants. The fact of having made compensation for the land taken, is indispensable to a perfect justification; it is a fact intimately connected with the defendants’ case, and indeed the vitally important fact to be alleged, without which the plea cannot be sustained, unless we can sanction the constitutionality of a law authorizing the taking of private property for public use without compensation. The act incorporating the defendants is declared, in the 20th section, to be a public act, and although the courts will, ex officio, take notice of a public act, without its being stated in the pleadings, yet it is incumbent on the party to state all the facts necessary to bring his case within the protection afforded by the statute. (See Bennet v. Hurd, 3 Johns. R., 438 ; Ted v. Fonda, 4 id. 306 ; Hart v. Clies, 8 id. 43.) The fact of compensation having been made, is a link in the chain of a perfect defence, and as we cannot presume that payment has been made, it is necessary for the party in his pleading to allege it. The plaintiff cannot be called upon to reply to the defendants’ plea, unless that plea make out a perfect defence. Can it with any reason be pretended, that the plaintiff should be held to reply that the defendants had not made him compensation for the lands taken ? This would cast upon the plaintiff the burden of proving a negative. How could he prove that the defendants had never naid him? and yet how perfectly within the power
[34] [35] I have thus far remarked upon the plea without any particular reference to the provisions of the act under which the defendants seek to justify. Let us examine that act, with a view of ascertaining the correctness of the conelusions to which I have arrived. We are not to presume that the legislature intended to deprive the plaintiff of his lands without compensation ; and we are bound to give such construction to this section as will carry out the intention of the legislature, without infringing upon or violating the provisions .of the constitution. Their enactments are to be intended to be made in subordination to, and not in violation of that instrument. What, then, did the legislature understand, and what do we understand by the expression nor shall private property be taken for public use,” and what did they, and should we understand by the expression “ without júst compensationThe entering upon land and making the necessary surveys and examinations thereof, for the purpose of determining the most advantageous route, place or places, for the proper line, course, road and way, whereon to construct the single or double railroad or ways, is not, in ordinary acceptation or legal contemplation, the taking of land , there is no exercise of conclusive control or authority over the soil. A mere passing over for the purpose o"f examining and surveying the most feasible route for the road, and of the lands necessary to bejtaken, on which to construct the road, cannot be said to be taking the land thus examined and surveyed. But when the examinations and surveys are completed, and the defendants in pursuance thereof have selected the lands intended for the objects of the incorporation ; ^Mien they enter upon the possession of and use the lands thus selected in the construction of their road, regardless and in defiance of the rights and possession of the owner of the fee, then may it be said in common parlance and in legal sense, that the defendants have taken the plaintiff’s land ; they are using it as their own, in exclusion of the plaintiff’s right to use it. Although the legal fee may not be in them, yet are they exercising all the attributes of absolute ownership ; they tear down houses and out-houses ; they cut up gardens, meadows, fields and farms ; they reduce hills and fill up valleys ; they tear down fences, cut up and use the soil, as best answers their purposes, and do every act in relation thereto, which the absolute owner of the fee can do. If this is not taking land, I know not what act shall be deemed evidence of taking. Can land be thus taken and used, and cutup, and disfigured, and occupied, without making compensation to the owner ? The defendant’s plea in this case insists that it can, and we are called upon solemnly to determine that such pretensions are well founded and according to constitutional law. It is pretended that the taking of land, means the taking the fee of the land, that no citizen shall be deprived of the fee of his land without just compensation ? Is it, then, to be understood that the legislature can do any thing and every thing with the property of the citizen; and authorize its use and occupancy for all time to come, and that too, under constitutional sanction, so long as they do not interfere with the fee ? Such a position would shock the common sense of the community—outrage public justice, and desecrate, upon the altar' of unrestrained omnipotent legislation, which is despotism, the life-blood ,and spirit of the constitution. But private property shall not be taken without just compensation. There can be no diversity of opinion as to the meaning of the words just compensation. It is a fair equivalent in money, a quid pro quo ; it is a recompense in value for the property taken. When the compensation is to be made, may perhaps be a matter of doubt; whether before the property is taken or used, or afterwards. It must either be paid before the property is taken, or within a reasonable time thereafter; and the making of this compensation must be as absolutely certain, as that the property is taken ; it must not be dependent on any hazard, casualty ór contingency
[36] The 16th section of the act to regulate highways, (2 R. L. 217,) authorizes the laying out of roads, through improved and cultivated lands, and declares that the owner or owners thereof shall be paid such damages as he or they may. sustain by reason thereof. The section then prescribes the manner in which such damages shall be ascertained; and declares that the whole of said damages, together with the charges of the commissioners, justices and freeholders, and summoning the jury, shall be presented to the board of supervisors of the county, who shall cause the same to be raised, levied and collected in the town in which the lands lie, in the same manner as the other town charges are by law directed to be raised, levied and collected, and order the same to be paid to the commissioners of the town, who shall pay the owner the sum assessed to him, and appropriate the residue to satisfy the costs. Here, the faith and solvency of the town are pledged to the owner, that he shall certainly be paid for his property taken for the road. In such case the property is allowed to be taken and used before payment, and for the reason that the payment will certainly be made without hazard or doubt. (Cadwalladers’ heirs v. McIlvoy, 1 A. K. Marsh. R. 84. Jackson v. Winns’ heirs, 4 Litt. R. 323.)
[37] So the act in relation to the opening and laying out streets in the city of New York, (2 R. L. 409, § 178,) provides that when any lands, &c., shall be required fpr the purpose of opening any public square, place, street, or avenue, &c., or for the purpose of laying out and forming or extending, enlarging, straightening, altering or otherwise improving any street, or public place, so to be laid out, &c., the same may be taken, and compensation and recompense made to the parties, &c., and the mayor, aldermen and commonalty of the city may make application to the supreme court for the appointment of commissioners, who are to assess the damages to the owners whose lands are taken, &c., in the manner prescribed by the act, and to make report thereof to the supreme court, &c.; upon the final confirmation of the report, the corporation are declared seized in fee of the lands, &e., thus required for the public use, and may immediately take possession thereof, &c. In this act, also, provision for certain payment, without hazard, is made; the 183 section, page 418, declares that the damages assessed, &c., shall, within four months after the confirmation of the report, be paid by the mayor, aldermen and commonalty; and the damages are to be .raised by tax, upon those of the citizens who ought to pay the same. The faith and solvency of the city are here pledged for payment. To the same purport is the “ act for opening and improving the great roads within this state,” (3 Greenleaf’s ed. of the Laws, 284,) which provides for the assessment of damages, and directs payment out of the proceeds of three successive lotteries by that act authorized.
[38] [39] The 3d section of the Canal Act (Sess. L. of 1817, ch. 262), declares it shall be lawful for the canal commissioners to enter upon, take possession of, and use all and singular, any lands, &c., for the promotion of the improvements intended by that act. 'lhe section' then prescribes the mode in which the damages are to be assessed, and declares “ the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated shall be vested in the people of this state.” The act does not provide any funds for the payment of the damages thus assessed; and although the faith of the state is impliedly pledged for, the payment of these damages, yet was their payment dependent upon the contingency of the legislature being willing to make provision for their payment. With all due respect for the decision of the court in the case of Rogers v. Bradshaw, (20 Johns. R., 735), and while I am not disposed to arraign or question the high honor and integrity of the people’s representatives, 1 cannot subscribe to ihe constitutionality of the law. depriving the citizen of his property, without providing an, absolute, certain mean for making
[40] The act relative to turnpike companies, 1 R. L., 231, has been died to us as more clearly indicative of the sense of the legislature, as to the extent of their constitutional power, in the particulars under consideration. The third section of that act authorizes the commissioners appointed by the governor to layout the road directed by the act of incorporation, and directs the commissioners to file an accurate map of the survey of the same; and in case of disagreement between the company and the owner of the land as to the value thereof necessary for the use of the company, and the damages (if any) to be done to said land, the damages are to be assessed in the manner prescribed by the act, “ which each or any of the owner or owners of any parcel of land used, and to be used for such road, have sustained or will sustain; and the company, upon paying said owner or owners their damages, may have and hold to them and their successors and
[41] [42] [43] [44] We are now prepared to look into the law incorporating this railroad company, with a view of ascertaining whether its provisions are in accordance with the constitution, or its spirit; whether it directs payment to the plaintiff, or whether provision is made that he shall most certainly be paid for the land taken by the defendants for their road. If no provision be made for an absolute and certain payment at a future day, then we are bound so to construe the law as to make it conform with the provisions of the constitution. The act provides that th'e corporation shall pay the owner or owners for the land taken. When is this payment to be made ? There is no precise specified time of payment particularly designated in the act, nor is there any safe and unquestioned fund provided for payment, nor any security provided therefor, except the solvency of the corporation. It cannot be admitted that the legislature intended to deprive the plaintiff of his property, compelling him to rely on the solvency of this company for compensation. There is no certainty of payment in this; for non constat but that the company may be utterly insolvent before they shall have completed their enterprise. I have no doubt of the perfect solvency of this corporation, and their unquestioned ability to make compensation, either before they commenced or after they had completed their road; but we are looking for a principle which shall be of general application, irrespective of the solvency of any particular corporation—a principle which shall shield and protect the citizen from all hazard of loss, securing to him absolute certainty of compensation for his property taken for public use. To render the law constitutional, then, we must intend that the legislature, in the provisions they have made,, have declared that compensation shall be made before the property can be taken. This is no forced construction of the act. In the construction of statutes made in favor of corporations or particular persons, and in derogation of common right, which are statutes not deserving of much favor, we are not only not to extend them beyond their express words and their clear import, (Sprague v. Birdsall, 2 Cowen’s R., 420,) but are to confine them within the bounds and limits prescribed by the constitution; they are to be construed in favor of the legal owner, and in the preservation of his constitutiona. rights. The act declares that the corporation may enter upon, and take possession of, and use all such lands and real estate, &c., próvided that all lands or real estate thus entered and taken possession of and used by the corporation, shall be purchased by the said corporation of the owner or owners of the same, at a price
[45] But it is said that the corporation will be compelled by due course of law to make remuneration, or in the language of the learned judge below, “ That the plaintiff would have an ample remedy in such a case in some form of ación, there can be no question.” What form of action ? I know of no action so simple and so well adapted to the attainment of full and equal justice as an action of trespass, particularly when trespass has been in point of fact committed, unjustified by any constitutional law, as that law would be, as set forth in the defendant’s plea as a justification. It is further contended that the ascertainment of damages, and the payment thereof, are conditions subsequent. Subsequent to what ? to the vesting of the fee ? The fee is vested simultaneously with the payment of the damages, and not before. Subsequent to the use and occupation of the land ? Then may the owner be prohibited from asking indemnification until the corporation shall have ended by its own limitation. Subsequent to the completion of the road ? where is the law declaratory of this, and where the tribunal or authority to determine when the road shall be deemed to be completed ? But the road may never be completed ? the corporators may abandon their enterprise in despair, from a conviction that it is absolutely profitless not only, but that if persevered in, would involve every one concerned in insolvency and ruin. Must, then, the owner’s compensation for his land depend upon the contingency of the enterprise being a profitable or successful one ? Who can subscribe to a proposition so monstrous and absurd ? If there be any one act, thing or event which can be named, subsequent to which the owner is to be paid for his land, what is the consequence of non-payment ? A forfeiture, it is answered. A forfeiture of what? not of the fee, for that does not vest till payment, but of the right to use and occupy the plaintiff’s land for a railroad; a right which never 'existed; and never can exist but upon a just compensation made. But admit the right to exist, and that it be forfeited for non-payment of the damages, is this forfeiture compensation? Is this payment to the owner for the loss of his buildings, the disfiguration and mutilation of his property, his deprivation of the use of it, and the expense of replacing his buildings and fences, and restoring his fields to a condition fit for cultivation ? Indeed, if this be the law of the land, far better would it be for us to be ruled with Asiatic despotism, (for then we should know we were slaves,) rather than live in a land of freedom, of written constitutions, guaranteeing to every citizen the enjoyment of his property, with assurance that
In Jackson v. Winne’s Heirs, (4 Litt. R. 328,) it was held that it was not competent to the legislature to take or apply to public use the property of any individual, without just compensation being previously made therefor; and Parker, Ch. J., in Stevens v. The Proprietors of the Middlesex Canal, (12 Mass. R. 468,) said: “ If the legislature should, for public advantage and convenience, authorize any improvement, the execution of which would require or produce the destruction or diminution of private property, without affording at the sanie time means of relief and indemnification, the owner of the property destroyed or injured would undoubtedly have his action at common law against those who should cause the injury, for his damages. For although it might be lawful to do what the legislature should authorize, yet, to enforce the principles of the constitution for the security of private property, it might be necessary to consider such a legislative act as inoperative, so far as it trenched on the rights of individuals.” (See also Callendar v. Marsh, 1 Pickering, 431.)
[46] Upon the whole, I am of opinion that an action of trespass well lies in this case, and that the defendants’ plea is radically defective, in that it does not aver payment made to the plaintiff for his land, in one or the other of the modes prescribed by the act, and that the judgment of the supreme court, based upon contrary principles, should be reversed. The decision, on this point, in my judgment, disposes of this case.
The chancellor, however, at the argument, desired the court to pass distinctly on the question, whether the law incorporating the defendants was a constitutional law, and. as a sufficient number of the members of the court had manifested their assent to the proposition of the chancellor, I shall proceed very briefly to consider that question. I might perhaps be permitted to observe, that little remains to be said after the very able and elaborate argument of the counsel in the case of Beekman v. The Saratoga and Schenectady Railroad Company, (3 Paige, 45,) and the no less able and satisfactory opinion of the present chancellor, delivered on that occasion. Indeed, after the decision of that case, I had supposed there was no longer any room for doubt upon the subject. Doubts, however, it seems, do exist, and it is meet and proper that that question should be put at rest by an express adjudication of this court. Vattel, (Book 1, ch. 9, § 100,) says : “ The utility of highways, bridges, canals, and in a word, of all safe and commodious ways of communication, cannot be doubted. They facilitate the trade between one place and another, and render the conveyance of merchandise less expensive, as well as more certain and easy. The merchants are enabled to sell at a better price, and obtain preference; an attraction is held out to foreigners, whose merchandise is carried through the country, and who diffuse wealth in all places through which they pass. § 101. One of the principal things that ought to employ the attention of the government, with respect to the welfare of the public in general and of trade in particular, must then relate to the highways, canals, &c., in which nothing ought to be neglected to render them safe and commodious. § 103. The construction and preservation of all these wSrks being attended with great expense, the nation may very justly oblige all those to contribute to them who receive advantage from their use. This is the legitimate origin of the right of toll.”
[47] [48] These propositions have the ready assent of every enlightened individual in every country, and under any and every kind of government. In the days of Vattel there were no railroads, and in all probability the obligation of government to construct railroads in no measure entered into his consideration when inditing those general propositions; they nevertheless come within, the spirit of national obligation in a most emphatic manner, as the government are thereby most effectually enabled to fulfil the just expectations and serve the most substantial
[49] [50] It is insisted that laws authorizing the construction of railroads are not constitutional, because the citizen cannot travel upon them with his own carriage, when and as he pleases. Admit the fact to be so, are railroad laws to be deemed unconstitutional for this cause ? Laws authorizing the construction of canals and turnpikes, are conceded to be constitutional; yet can no citizen
[51] It is objected to the constitutionality of this law, that the value of the property taken for the road is directed to be assessed by commissioners, and not by a jury ; and that the provision of the constitution of this state, declaring “ that no person shall be deprived of his property without due process of law,” is violated.^ It does not follow, as is contended, that these damages are to be assessed by a jury in court. If this rigid construction should prevail, the decrees of the chancellor and of the vice-chancellors, and the judgments of courts of record on the' reports of referees, whereby property, both real and personal, to an immense amount is sold by execution, and the title of one citizen thereto transferred to another, must be adjudged unconstitutional and void. It is' unnecessary to enlarge on this point, as common sense and express judicial decision in this court, (Livingston v. Mayor of New York, 8 Wendell, 102,) and the practice of this state since 1797, (3 Greenleaf's ed. of Laws, 286,)
It is further objected, that the company are not obligated to carry passengers or property, nor are they compelled to keep their road constantly in repair. This is an’ objection which might, perhaps, be" successfully urged, were we acting in a legislative capacity ; but it certainly can have no influence in any decision to be made as to the constitutionality of the law. The public, however, are not remediless as against the evils suggested. The chancellor has full and ample power to correct any violation of the letter or spirit of the act, and to reform any abuses the company may venture to practice on the community. (4 Wheaton’s R., 676.) And superadded to this, the legislature have reserved to themselves the right to alter, amend or modify the act of incorporation.
[52] Giving to the act incorporating the defendants, the construction I hare given it, in relation to their obligation to make just compensation to the owner, before his land can be used and occupied in defiance of his rights, I have no hesitancy in saying it is a valid and constitutional law. If, however, the court shall determine that such construction shall be given to it as will authorize the defendants to use and occupy this land without making just compensation, in one of the modes directed by the act, then I am equally clear in saying that it is unconstitutional and void.
The first question in this case is, whether the proviso in the 7th section of the act incorporating the defendants is matter precedent or subsequent ; that is, whether it contemplates that the railroad company should make compensation for the lands necessary for the construction of their road before they took possession of and converted them to their use, or merely imposes an obligation to pay for such lands as they should have taken possession of and converted to their use. If the first is the true construction of the proviso, then the plea is bad, for no principle of pleading is better settled than that where the authority relied upon for defence is dependent for its existence on a precedent act or event, the performance of that act or the occurrence of that event must be shown by the party seeking to justify under the authority; and this indeed is nothing more than saying, that a party seeking to justify, must show sufficient matter to justify. If, however, the proviso of the 7th section is' merely an obligation on the defendants in. case they shall have entered, and not a condition on the performance of which they may enter, then the plea is sufficient, if the legislature had the power of conferring upon the defendants the authority which the act expresses.
[53] If the construction that should be given to the proviso in connection with the whole act be doubtful, there are two considerations which should incline the court to regard it as a condition; one is, that powers granted by the legislature to corporations or to individuals, in derogation of common right should be construed strictly,, and not extended beyond
[54] The power accorded to our judicial tribunals of pronouncing upon the constitutionality of laws, is essentially original to the institutions of this country; at any rate, peculiarly appropriate and indeed indispensable to the adjustment and regulation of the action of a government purely democratic. The exertion of this power imposes upon'the judiciary a delicate and often an unwelcome responsibility ; but it is in the firm and fearless fulfilment of this responsibility that is found the most powerful if not the only effectual barrier that can be erected against the tyrannical exercise of political power. We are not at liberty, therefore, in the present case, to pervert the plain language, or disregard the explicit expressions of the statute, either from considerations of the hardships it may work to individuals, or from motives of delicacy, or feelings of respect towards the authority that enacted it; but if, on careful examination, we. find its meaning and intention to be -clear and positive, we must give effect to them, if that effect be constitutional, and if it be not, it is our province and duty explicitly to say so.
The act, in the most direct terms, authorizes the defendants to cause such surveys and examinatións to be made as they should deem necessary to determine the most advantageous way or course in which to construct their railroad, and then expressly declares that it shall be lawful for them to enter upon, and take possession of and use all such lands and real estate as may be indispensable for the construction and maintenance of their railroad; and then comes the additional enactment, that lands thus taken possession of and used by the corporation, which are not donations, shall be purchased by the corporation of the owners, at a price mutually agreed upon ; and if the parties cannot agree, commissioners are to be appointed to determine the damages which the owners of the lands so enüred upon by the corporation have sustained by the occupation thereof, &c.
[55] If we confine ourselves to the language of the statute, and disregard all considerations of convenience or supposed necessity, which, from the nature of the subject the legislature must be supposed to have had in view, it would be difficult to find words which would more distinctly authorize the defendants to enter upon-the lands required for the construction of the road, in the first instance, and previously to any effort to obtain them of their owners by purchase or appraisement. And when we come to the provision enabling the defendants to obtain the fee of the lands, no language could more aptly express the intention of the legislature that it was only of those lands, in the use and occupation of which the defendants already were, that the fee could be obtained.
[56] Whether the act be or be not constitutional, is the next and by far the most interesting point of this case. The act is alleged to be in conflict with the provision of the constitution of this state, that private property shall not be taken for public use without just compensation. And under this point two questions arise : 1. Whether the use of the property by the defendants, for the purposes of a railroad, is a public use within the meaning of the constitution; and 2. Whether a just compensation for the property is secured to the owner. It is necessary that both these questions should be answered affirmatively in order to sustain the constitutionality of the law. But as I am clear in the opinion that the latter question cannot be answered affirmatively, it does not, in my view of the case, become necessary to determine absolutely the answer that should be given to the other question; and I am the less disposed to assume unnecessarily the present decision of it, not only because it is one of the most difficult, and perhaps altogether the most important question that has ever been presented to this court since I have been a member of it, hut also because the limited opportunity which I have had since the argument for its examination, does not assure me that 1 fully comprehend and accurately estimate all the considerations that should he regarded in the final disposition of it. But still, as the question, if not now definitely settled, will probably soon come here again, and in a form to require a direct decision, I feel that it may not be improper, nor wholly useless, to present, though in an imperfect form, a few considerations which some reflection upon the subject has suggested to my mind.
[57] [58] [59] It has never been allowed to be a rightful attribute of sovereignty in any government professing to be founded upon fixed laws, however despotic the form of the government might be, to take the property of one individual or subject, and bestow it upon another. The possession and exertion of such a power would be incompatible with the nature and object of all government; for it being admitted that a chief end for which government is instituted is, that every man may enjoy his own, it follows necessarily that the rightful exertion of a power by the government of taking arbitrarily from any man what is his own, tur the purpose of giving it to another, would subvert the foundation principle upon which the government was organized, and resolve the political community into its original chaotic elements. Ibis power, therefore, instead of being acknowledged, was expressly repudiated uy the Roman law at the height of imperial
[60] No doubt it was in full view to the discordant opinions expressed by writers on public law, in regard to the application of the principle of supereminent dominion, and with a matured design of affording special and additional protection to the citizen against the exertion of it by the government, that the framers of our national constitution adopted the clause in question; and it is reasonable to presume, that from the same motives and for the same object, it was transcribed literally from that instrument into the present constitution of this state. In both instruments, it is designed to be as well a limitation as a definition of the right of the respective governments as sovereign political powers, to interfere with the otherwise absolute right of the citizen to the undisturbed possession and enjoyment of his own property. It is therefore, I think, to be construed in both cases as equivalent to a constitutional declaration, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation. It is not very certain that the constitution of the United States contemplates by this provision any other than a direct use by the government itself through its officers, and for the purposes of the government as a political being; as in cases of impressment for military service, or the taking of lands for forts, light-houses, dock-yards, &c.; and it may be doubted whether the national government has the power by virtue of sovereignty, to take private property, without the consent of its owner, for the purpose of dedicating it to a popular public use, by which is meant a use by the people generally as. individual beings, as for a common highway. If it be correct that the constitution of the United States does not reach a case of a mere popular use, but is restricted in the meaning of public use to a use by the government as an organized political being, a question possibly might arise whether the same words transferred to the constitution of this state, are to be restricted to the same meaning, and whether the introduction of them into our constitution does not so far operate as a new limitation of the powers of the state functionaries, as to make the legislative acts, appropriating private property, passed previously to the new constitution, at best but questionable precedents for those that may be passed subsequently to its adoption. But admitting that the general welfare, and even imperative public necessityfrequire such a construction of legislative power as shall authorize the appropriation of private property, not only for the use of the state in its political character, as in the case of canals or other public works, where the whole property remains in the state, but also for the use of the people distributively, or as individual members or parts of the political community, as in case of highways, streets, squares, &c., we are then to inquire, 1st, whether the term public use, is not in either case to be confined to its simple sense of direct possession, occupation and enjoyment by the public; and 2d, is not the power of taking private property for public use, in any event, such an attribute of sovereignty that it must be exercised directly by the sovereignty acting through public political ao-ents and cannot be delegated to individuals or
[61] [62] When we depart from the natural import of the term “ public use,” and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience, or that still more indefinite term public improvement, is there any limitation which can be set to the exertion of legislative will in the appropriation of private property. The moment the mode of its use is disregarded, and we permit ourselves to be governed by speculation's, upon the benefits that may result to localities from the use which a man or set of men propose to make of the property of another, that moment we are afloat without any certain principle to guide us.' One man, unwisely, perhaps, prefers to suffer his lands to lie unoccupied, or his water power to remain unimproved, which another is anxious to convert to uses highly advantageous to the public. On what principle shall a law, transferring the title from the owner to his more enterprising neighbor, on the payment of a just compensation, be pronounced unconstitutional, if using property beneficially to the public is to be deemed a public use of it ? The remark of an eminent jurist, (2 Kent's Comm., 340,) that “ it must undoubtedly rest in the wisdom of the legislature to determine when public uses require the assumption of private property ; and if they should take it for a purpose not of a public nature, as if the legislature should take the property of A. and give it to B., the law would be unconstitutional and void,” is correct, if intended to concede to the legislature merely the power of determining what property in a particular case shall be taken for the public use ; but it cannot be correct if intended to concede to the legislature the power of determining what constitutes a public use of private property; and therefore I must dissent from the position taken by the chancellor in Beekman v. Saratoga and Schenectady Railroad Company, (3 Paige, 73,) where he says : If the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals.” This position, it will be seen, disregards the distinction between a public use and a public interest in a particular use of private property, and confers on the legislature the right of determining, first, that the public interest will be promoted by the particular use of private property ; and next, because the public interest will be promoted by such use, that therefore it is a public use; and finally, it being a public use, it becomes a mere question of expediency with the legislature whether they shall authorize private property to be taken to subserve it or not. It seems to me that such a construction of legislative powers is inconsistent with the secure possession and enjoyment of private property, and repugnant to the language and object of the constitutional provision. Indeed it concedes to legislative discretion a wider range than 1 think could be maintained for it on the principles of natural law, if we had no written constitution.
[63] It is not denied that the legislature is the most appropriate organ of the sovereignty of the state for exercising the right of eminent domain, but they can only exercise right or power in subordination to the constitutional authority; which authority they cannot enlarge or modify. The condition that the property must be taken for public use is as much above their reach and control as it is above the reach and control of the lowest functionary of the government, who, like them may have occasion to invoke this attribute of “sovereignty in an emergency of some humble department of the public service, with which he may have been charged. The legislature may fitly determine when and under what circumstances—as to the mode of taking—private property shall be taken for the public use. But it by no means follows, as seems to have been supposed, that the legislature can determine that a particular use is a public use of private property, within the
[64] It can scarcely be urged that the mere circumstance that the defendants are a corporation, makes their case different from what it would be, were they a simple association or copartnership; for the shareholders or proprietors are equally private citizens and no more public agents in a political sense, in the one case than in the other. Their obligation to the public and their liability to individuals, whatever that obligation and liability may be, are not affected by the fact of being incorporated; for had the legislature granted to enumerated individuals without the forms of incorporation, the same privileges and powers, their duties and responsibilities would have been the same. A franchise may be granted to persons in their natural capacity as well as to them in a corporate capacity. The road, therefore, is none the less the private property of the defendants ; and the construction, possession and occupation of it are none the less for private emolument, than it would be were the owners of it unincorporated. In looking at tins question in this aspect, it will be found essentially disembarrassed from all other considerations than such as relate to the fact, whether railroads, built, owned and possessed by individuals, but for the purpose of transporting for pay, such passengers as may desire to be transported on them, are for that reason public roads, or roads in the making of which the public in its sovereign sense, has that degree
[65] It is not to be doubted that railroads are in many cases public improvements of great value and usefulness ; and when limited in number and extent to tlie means and wants of the country, productive of an increase of comfort and convenience to individuals, and of wealth and power to the communities in which they exist, and that such is the character of the particular railroad owned by the defendants in this case, should be freely admitted. But is this enough to justify the conclusion, that because the use to which it is dedicated by its owners, accommodates individuals, and thereby advances the public interest, therefore it is such a public use that private property may be taken to promote it. Can the constitutional expression, public use, be made synonymous with public improvement, or general convenience and advantage, without involving consequences inconsistent with the reasonable security of private property; much more with that security which the constitution guarantees. If an incidental benefit, resulting to the public from the mode in which individuals in pursuit of their own interest use their property, will constitute a public use of it, within the intention of the constitution, it will be found very difficult to set limits to the power of appropriating private property. It is hardly necessary to illustrate by supposed cases the extent to which such a doctrine could be legitimately carried. A person anxious to establish a line of stages for the public accommodation, certainly might ask the interposition of the legislature to enable him to appropriate his neighbor’s horses for the public use; and even in the present case, the legislature might have authorized the corporation to take personal property, such as horses, cars, &c., which was necessary for the main tenance of their railroad, on the same principle as that on which rests the authority to take the lands of the plaintiff. It is not sufficient to say that the legisla ture will exercise this power of appropriating private property with discretion, when the inquiry is, whether the security of the citizen rests in the discretion of the legislature, or in the guaranty of the constitution.
[66] The circumstance that the privilege of making a railroad and taking tolls thereon is a franchise, seems to me to have less force in determining this question than has been attributed to it. All corporate privileges are franchises, and the use of them may he regulated or restricted by legislation as much as the franchises of railroad corporations. Banking corporations, insurance corporations, and many others, are franchises, and the grant of them has been as distinctly on tlie ground of promoting the public interest, as the grant of railroads. In every sense bearing on this question, a license to keep a tavern is a franchise, and the obligation of the tavern-keeper to the public and to individuals is as defined and as extensive in its nature as that of a railroad company; and there is the additional analogy of the license being granted for pubuc accommodation and benefit. But when we come to cases like these, the distinction between the taking of private property for public use, and the taking of it for an individual use, beneficial to the public, becomes marked and obvious.
I find only one decision, out of our state, that palpably confounds this distinction, and this was by a court in Tennessee, where it was held that under a law passed in 1777, the land of one citizen could be taken for the use of the mill of another, on tlie ground that the mill was necessary for the neighborhood, and the miller a public agent. But even this is founded on assumptions not maintain
[67] [68] The distinction between the taking of private property for a canal or othei works oxrned by the state, or for a common public highway, and the taking of it for a railroad to be owned by a corporation or by individuals, is too obvious to need particular, illustration. But the distinction between taking private property for a turnpike road and the taking of it for a railroad, is certainly much less so. It is indeed not easy to draw the line, for at some points the txvo cases approximate and almost blend, so as scarcely to admit of separation. Still, I think, there is a distinction founded on sensible circumstances, and they xvho insist there is not, should bear in mind that by confounding them they do not necessarily prove that the power granted to railroad companies of appropriating private property is constitutional—they may only prove that the power granted to turnpike companies is not. This distinction will be seen, I think, both in the different modes of using the txvo roads and in the nature of the property xvhich the respective companies have in them. In the case of turnpikes, it is not only that the use of them by all persons is unrestrained, and direct, in their oxvn vehicles, with their own motive powers, and according to their oxvn inclination as to time and speed; while in the case of railroads, the entire immediate use is by the owners of them, subjected to no rules but such as are prompted by a regard for their own interest or convenience. Also in the case of turnpikes, every person has the power and right of using the road so as to make the use of it a means of profit to himself, as by running carriages for the transportation of persons or property; while in the case of railroads, the immediate use of the road being with the proprietors of it, it can be a means of direct profit only to them. The property, also, xvhich the companies have in the txvo descriptions of road will be found materially different. A turnpike company has a limited or qualified, and not an absolute estate in its road. The 16th section of the general turnpike law (1 R. S., 584), and xvhich is but a general enactment of a provision inserted in almost every previous turnpike charter, provides that every turnpike corporation, when it shall have been compensated all moneys expended, &c., with ten per cent interest, maybe dissolved by the legislature, and then “ all the rights and property of such corporation shall vest in the people of this state.” The effect of this provision, it will be seen, is to secure the ultimate property of the road to the people, and to alloxv the corporation to keep the road, and levy tolls for the use of it, only until they are reasonably compensated for the moneys they have expended in its construction and maintenance. The corporation are quasi mortgagees of the road, in possession for the purpose of reimbursing themselves, by tolls, for the moneys advanced by them in that behalf for the public ; and the case, in this respect, is not essentially different from what it would be if the state made these roads and imposed tolls for the mere purpose of obtaining repayment of the moneys expended, xvith interest, to compensate for the risk. In the one case as in the other, the public at large has a benefit in the reception of the tolls, inasmuch as their application must be to discharge the incumbrance xvhich is on the road, and to make it in every sense a free public highv ay. It xvas no doubt in view of this peculiar
[69] [70] [71] The next inquiry in order which is suggested is, whether the taking of private property for public use, be not an act’ of sovereign power that can only be exerted directly through political agents or public officers, and cannot be delegated to private individuals or to a private corporation, for them to exert at their own discretion and for their own benefit ? That the defendants are a private corporation, as distinguished from a public or political corporation, will not admit of any dispute. It is not sufficient to give a corporation the character of a public corporation, that its operations are beneficial to the public; for in such sense almost every corporation having its origin in individual enterprise and" its object in individual gains, would be denominated public; and not only banks and insurance companies, but transportation and manufacturing companies be embraced. “ Strictly speaking,” says Mr. Justice Story, Dartmouth College v. Woodward, (4 Wheat., 468, 494,) “ public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the governmént, such as towns, cities, counties; but a bank whose stock is owned by private persons is a private corporation, although it is erected by the government, and its objects and operations partake of a public nature." The same doctrine may be affirmed of insurance, bridge and turnpike companies.” It will be seen that the term public should be confined to corporations constituting political or municipal communities which are clothed with extensive civil authority, and have for their object the government of particular portions of the state. The Civil Code of Louisiana, tit. 10, ch. 1, art. 420, makes the only division of corporations into political and private. The first are those which have principally for their object the administration of the government of a portion of the state, and to whom a part of the powers of the government is delegated to that effect; and although such a corporation may have involved in it some private interests, yet as its principal object is the exercise of municipal or political functions, it seems to be appropriately termed a political or public corporation. The civil or municipal powers of such corporations may be regarded rather as distributions than as delegations of the sovereign powers of the political commonwealth of which théy are organized parts; for, being recognized by the constitution or original compact of the community, they possess within their prescribed spheres of action a right to the discretionary exercise of certain political faculties, which does not and cannot attach to a citizen or association of citizens, not .distinctly clothed with a- public official or political character. Town officers, for instance, though elected by a local corporation, as a particular town, are in every sense public officers, and in their appropriate spheres of action, the legitimate organs or representatives of the sovereignty of' the whole state, as much as the governor of the state when acting within his constitutional sphere; and the exertion by them of the right of sovereignty to appropriate private property for a necessary public use, as land for a highway, or materials for repairing it, is as legitimate and as direct an exertion of the right of sovereignty, as the dedication of particular property to the public use by a legislative act. But this is a power or right which from the nature of the case, cannot be exerted by pri vate individuals and consequently not by. a private corporation through agents
[72] This, it will be seen, is a delegation of a power of the sovereignty of the state ; not to public officers or to a political corporation, or even to designated individuals, but to a private corporation, to be by that corporation exerted according to its own judgment of its own necessities. This case must not be confounded with one where the legislature has appropriated, or directed to be appropriated, specific property to the public use; nor with one where it has devolved upon subordinate political agents the power and duty of selecting and determining what property shall be appropriated to a particular public use, as in the case of the canal commissioners, or even in that of lands taken for a turnpike road. In the latter case, which has been supposed to be in strict analogy with the present case, it will be found that this political power is never proposed to be conferred on the corporation. Section 17 of the general turnpike law, provides that the road shall be laid out by commissioners appointed by the governor, who shall not be interested in the road, nor live in any county through which it passes. When, therefore, the lands of a citizen are appropriated for a turnpike road, it is upon the judgment and decision of public political agents of the sovereignty, and is therefore the act of the sovereign power. But here we find no judgment or decision upon the particular subject matter, by any person or tribunal in political relation with the government. Admit that the use of private property for the purposes of the railroad is a public use, and that the legislature could make the appropriation, has the legislature in fact made the appropriation ? Certainly it has not passed on the fact, that any particular property should be taken for this purpose ; nor has any other agent or organ of the sovereign power passed on this fact. How then does it appear that the state, by virtue of its sovereign right, has resumed this particular property ? It cannot be contended that the right of eminent domain in the sovereignty is an alienable right, and transferrable. It would be a solecism to say so. Yet it would seem to be on this notion only, that a private corporation through its own agents, could exert this great political prerogative. For unless it be assumed that the sovereign right of eminent domain was vested by the legislature in the corporation, to be by the corporation exerted according to its views of public necessities, it cannot be shown, that in respect to the particular premises in controversy, it has ever been exerted at all. And if this be assumed, it follows that the highest responsibilities of the government may be devolved on a moral non-entity, which, from its nature, is incapable of exercising political responsibilities.
[73] But leaving the discussion of these questions, into which I have gone much
The supreme court suggests the idea that an unreasonable delajy in acquiring the title, might render the corporation trespassers ab initio. But is this idea well founded ? If the corporation had lawful authority to enter upon the lands of the plaintiff, and do the acts complained of previously to making compensation, there would be no occasion for them to do anything afterwards which could constitute them trespassers. The Six Carpenters’ case, (8 Coke, 290,) which carries the doctrine of trespass ab initio to the extremes! verge of sense or reason, does not reach a case like the present one. It is there ruled that not doing cannot make the party who has authority or license a trespasser ab initio, because not doing is no trespass. This sensible distinction is recognized in the case, (5 Barn. § Cress. 27 9) in which it is decided that it is only where the subsequent act is a trespass of itself, that the party can be made a trespasser ab initio. No argument seems necessary to show that where the corporation is law fully in possession, under and for the purposes of the statute, a delay to acquire the fee would not be in itself* a trespass, but at most a “ not doing,” within the meaning of the Six Carpenters’ case.
[74] I confess I am not able to see as plainly as the supreme court seem to have done, that there can be no question but “ that the plaintiff would have an ample remedy in some form of actionand I regret that that court- has not pointed out the particular form of action by which this ample remedy could be obtained. The counsel has attempted to supply the omission by urging the catholicon, action on the case, as affording this ample remedy. Bul I am not satisfied that the plea which has been put in would not be as available to an action
[75] [76 [77] But if it be admitted, that in the event of an unreasonable delay by the defendants to proceed according to the proviso to obtain the fee of the land, the plaintiff might maintain an action on the case, or otherwise, to recover his damages, the inquiry then recurs whether a subsequent and contingent right to an action at law to recover damages against corporations or individuals of undefined responsibility, is that “just compensation,” without which the constitution declares private property shall not be taken. If it be, one is constrained to feel that our boasted constitutional guaranty, against the encroachments of the government upon the sacred rights of private property, is at best hut solemn mockery—a provision “ that keeps the word of promise to our ear and breaks it to our hope.” Assuming that land taken for the construction of a railroad is taken for .public use, as much as when taken for a canal owned by the state, or for a public road laid out by the town officers under the highway act, or for a turnpike road, it is vain to seek an analogy in respect to the certainty of the compensation secured in the one case and in the others. In regard to lands taken for state canals or for common highways, the fund from which compensation is secured is a public one and certain, and the means for ascertaining the damages and for reaching the fund, are defined, specific, and at the command of the party injured; and in regard to lands appropriated to a turnpike road, the statute requires not only that the damages shall be assessed, but actually paid or tendered before the lands can be entered upon by the corporation. I am aware of the intimation, by high authority, in Jerome v. Ross, (7 Johns., Ch. R., 344,) that it is not necessary to the validity of a statute, authorizing private property to be taken for public use, that a remedy should also be provided for the owner of it to obtain compensation; but what was subsequently said by the same distinguished judge, (2 Kents Comm., 389,) affords reason for supposing that he doubted the correctness of this intimation. In speaking of the right of the government to take private property for public use, he says : “In these and other instances that might be enumerated, the interest of the public is deemed paramount to that of any individual; and yet even here the constitution of the United States, and most of the states of the union, have imposed a just and valuable check upon the exercise of legislative power, by declaring that private property should not ‘ be taken for public use without a just compensation.’ A provision for compensation is a necessary attendant on the due and constitutional exercise of the power given to deprive an individual of his property -without his consent; and this principle, in, American constitutional jurisprudence, is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.” If it be not that a provision for compensation is an indispensable ingredient of a law appropriating private property to public use, then are the citizens of this country less secure in the possession and enjoyment of their property under constitutional guaranties than the subjects of the British government, whose rights are undefined by any written constitution, and whose political privileges are supposed by many to be entirely subject to the omnipotent legislation of parliament. Blackstone, speaking of the sovereign right of the legislature to take the property of .a subject for public use, says, its interference in such a case is “ not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual treating with an indi vidual for exchange. All that the legislature does is to oblige the owner to alienate his possessions at a reasonable price, and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature
I conclude, therefore, that in the present case, where there, was no public fund, which in law and in fact must be deemed always adequate to insure the payment of such damages as shall be found to have accrued, that the legislature could not authorize the defendants to enter upon and possess and use the lands belonging to the plaintiff, until they had first paid, or offered to pay to him, a just compensation therefor; and that the plea in this case, containing no averment that compensation had been made or offered, is bad, and therefore the judgment of the- supreme court which sustains the sufficiency of the plea, should be reversed.
On the question being put, Shall this judgment he reversed ? the members of the court divided as follows: '
In the affirmative: The Chancellor, and Senators Armstrong, Beckwith, Downing, Edwards, Fox, Lacy, Lawyer, Loomis, Maison, Powers, Speaker, Sterling, Tallmadge, Tracy, Van Dtck, Wager, Willes, Works—19. . \
In the negative: Senators L. Beardsley, Johnson, J. P. Jones, Livingston—4.
A resolution was then offered declaring, in substance, that the legislature of this state have the constitutional power to authorize the taking of private property for the purpose of making railroads or other public improvements of the like nature—whether such improvements be made by the state itself, or through the medium of a corporation or joint stock company—on making ample provision for a just compensation for the property taken, to the owners thereof. On the question being put, Shall this resolution be adopted ? the members of the court divided as follows:
[78] In the affirmative: The Chancellor and Senators Armstrong, L. Beardsley, Beckwith, Downing, Edwards, Fox, Johnson, J P
In the negative: Senators Lacy, Looms, Works—3.
Whereupon the following judgment was entered :
Counsel having been heard in this cause, and due deliberation being thereupon had, it is declared and adjudged that the legislature of this state has the constitutional power and right to authorize the taking of private property for the purpose of making railroads or other public improvements of the like nature, paying the owners of such property a full compensation therefor, whether such public improvements are made by the state itself or through the medium of a corporation or joint stock company ; but that by the true construction of the defendants’ charter or act of incorporation, they were not authorized to take and appropriate the plaintiff’s land to their use, for the purpose of making their railway thereon, until his damages were appraised and paid, or deposited for his use, as provided for in the act of incorporation. It is therefore ordered and adjudged, that the judgment of the supreme court in this cause, be, and the same is hereby reversed, and that the plaintiff be restored to all things which he has lost thereby; and it is further ordered and adjudged, that the second plea of the defendants, and the matters therein contained, are not sufficient in law to bar the plaintiff from having and maintaining his action against the defendants; but that the defendants have leave to amend their plea within such time as the supreme court may direct, upon payment of the costs upon the demurrer in that court; and it is further ordered and adjudged, that the plaintiff recover against the defendants his costs in this court to be taxed, and that the record and proceedings be remitted, &c.
) S. C., 14 Wend., 54.