3 F. Cas. 821 | U.S. Circuit Court for the District of New Jersey | 1830
The eleventh section of the judiciary act gives jurisdiction to this court, in all cases of a civil nature at common law or in equity. 1 Story [Laws] 57 [Act Sept. 24,1789; 1 Stat. 78]. The complainant has therefore a right to sue here, independently of any state law. It attaches to his character of an alien, which is admitted in this case, and as he holds his land by the law of this state, it matters not whether it is a general or special one, his right of property gives him the same remedy for its violation, as to an alien residing abroad or a citizen of another state. Although it may well be doubted whether the alienage of Mr. Bill-borough could be taken advantage of by a mere suggestion in the answer, the same effect will be given to it as to a plea. It is not necessary to inquire, whether it would affect the jurisdiction of the court if the corporation was the only defendant, because Mr. Stephens and Mr. Sloan, two of the defendants are admitted to be citizens of the state, and competent parties to the suit. The court can take cognizance of the case as to them, though it could not as to the corporation, as has been heretofore decided by this court. Kirkpatrick v. White [Case No. 7,850]. These defendants too are members, directors, and agents of the company for laying out and constructing the road; they act in the name and by the authority of the company, who must be represented by agents, but this gives the agent no exemption from legal responsibility. If they exceed, abuse, or depart from the power given by the law, they are answerable in the same manner as if they acted in their own right, without making the company parties to the suit, if they are not within the jurisdiction of the court, or are exempted from being sued; there is the same remedy against the agent as against the principal, if suable. The privilege or exemption of the principal, is not communicated to the agent, though the principal is a state which cannot be sued at law or in equity, and the agent a public officer acting in execution of a law of the state, and the subject matter of the suit was money actually in the treasury, in the custody of the defendants for the use of the state. Osborn v. Bank of U. S., 9 Wheat. [22 U. S.] 743, 744. In that case the state was not a party, yet an injunction was awarded. The court, looking only to the illegality of the law by which the money had been obtained, through the instrumentality of the agents of the state, disregarded all considerations relating to the principal, for whose benefit or by whose orders the illegal acts had been committed. There are then proper parties before the court to enable them to make a final decree, and to enforce it against the agents of the company, if a proper case is made out for an injunction in other respects. The adjudged cases on this subject support this position. 1 Pet. C. C. 317. 320 [Willings v. Consequa, Case No. 17,767]; Jay v. Wirtz
The principles settled by the supreme court in Osborn v. Bank of U. S. [supra] would seem to remove all objections to the power of this court to grant an injunction against persons acting under a law of a state, authorizing the construction of works of public improvement. But the doubt expressed by Judge Washington in 4 Wash. C. C. 601, 608 [Haight v. Morris Aqueduct, Case No. 5,902], whether a court of equity could treat such acts as a private nuisance, however injuriously it might affect a complainant, is deserving of serious consideration. There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction: but that will not be awarded in doubtful cases, or new ones, not coming within well established principles; for if it issues erroneously, an irreparable injury is inflicted, for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the court are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act; in such a case the court owes it to its suitors and its own principles, to administer the only remedy which the law allows to prevent the commission of such act. We know of no rule which excludes from this process any persons over whom the court has jurisdiction, on account of the character or capacity in which he acts, although it is conferred upon him by a law of a state or of congress. If the law is unconstitutional, it can give no authority, if the power it confers is abused or exceeded, the person who acts by colour of law merely is a trespasser; and wherever the court have power to take cognizance of an action of trespass for an offence, a court of equity may, in a case otherwise proper, prevent its commission, as was decided in Osborn’s Case, 9 Wheat. [22 U. S.] 738. An injunction was granted against the United States by this court (Armstrong v. U. S. [Case No. 549]); so by the supreme court against the overseers of the poor of a parish (Terrett v. Taylor, 9 Cranch [13 U. S.] 43, 55); by Chancellor Kent against a corporation, claiming to act in pursuance of a law of the state (Gardner’s Case, 2 Johns. Ch. 162); and in Belknap v. Belknap, Id. 463, against the inspectors of a corporation for draining marshes. The chancellor cites with approbation the cases in England, where injunctions have been granted against the trustees of a college (1 Ves. Sr. 188), the commissioners of a turnpike (Id.) a canal company incorporated by act of parliament (Coop. 77), canal commissioners (2 Dow, P. C. 519; S. P., 1 Swanst. 244, 250; 4 Johns. Ch. 26; 2 Dickens, 600; vide 2 Johns. Ch. 376-380). In Jerome v. Ross, 7 Johns. Ch. 334, and Rogers v. Bradshaw, this distinguished jurist asserted the same principle, in its application to the commissioners for the construction of the great New York canal (20 Johns. 745), as an established rule of courts of equity; to which may be added the declaration of Judge Washington, in 4 Wash. C. C. 605 [Haight v. Morris Aqueduct, Case No. 5,902]. It must then be taken as settled, that the circumstance of a defendant acting under colour of a law, or as the agent of a corporation for making a road, canal or other improvement, is not of itself a good objection to the granting an injunction. When there is a reasonable doubt whether the law set up as a justification authorises the acts done, it will not be granted (2 Dickens, 600; Coop. 77); or if a discretionary power is given, which is not abused or misapplied, but exercised in good faith, sound discretion, and according to the best judgment of those to whom its execution is confided, the party complaining will be left to his remedy at law. 1 Johns. Ch. 184; 4 Johns. Ch. 352; T Johns. Ch. 340; 20 Johns. 739, 740. The court cannot control them in mere matters of discretion (vide [U. S. v. Arredondo] 6 Pet. [31 U. S.] 739); they must keep strictly within their powers, must not deviate from the line or route prescribed, abuse, misapply, or exceed their authority; when they do so, a court of equity will leave a complaining party to resort to the special tribunal designated by the law, to decide on all questions arising in its execution; but if they act otherwise, the court will proceed in the usual way, by injunction. 2 Dow, P. C. 521, 523.
Having no doubt of our jurisdiction, both of the parties and the subject matter in this case, we proceed to the grounds of the injunction.
1. It is alleged that the act incorporating this company is repugnant to the constitution of the state, in appointing commissioners to ascertain damages instead of a jury, This isa question of great delicacy and importance, affecting the rights of every man, and perhaps of every government in the union, the constitution of which does not define the mode of making compensation for private property, taken for public use. If the law
It is a settled principle of American jurisprudence, that the transcendent powers of parliament devolved on the people of the several states by the revolution [Dartmouth College v. Woodward] 4 Wheat. [17 U. S.] 651; [Johnson v. M'Intosh] 8 Wheat. [21 U. S.] 584; [Wilkinson v. Leland] 2 Pet. [27 U. S.] 656. It necessarily follows, that the only restraint on their legislative power, is that imposed by their own, or the constitution of the United States. [Satterlee v. Matthewson] Id. 410, 414. That of New Jersey contains no bill of rights, or any other restriction on the legislative power than the twenty-second article which has been referred to; of course its action is uncontrolled, if the right of trial by jury is preserved inviolate in the cases contemplated by the constitution. It is silent on the subject now before us for an obvious reason, it is an incident to the sovereignty of every government, that it may take private property for public use; of the necessity or expediency of which, the government must judge, but the obligation to make just compensation is concomitant with the right. Vatt. Law Nat. 112; Ruth. Inst. 43; Burlam. Nat. 150; Puff. Law Nat. 829; Gro. De Jure B. 333. This principle of public law is recognised in the fifth amendment to the constitution of the United States, as to the right and obligation, which may be deemed a bill of rights for the people of each state. [Fletcher v. Peck] 6 Cranch [10 U. S.] 138. Though it may well be doubted whether as a constitutional provision, this applies to the state governments,
2. It is next objected to the validity of this law, that it is to effect a private object, in making a road for the benefit of the corporation, and not for public use; that consequently the legislature have no power to authorize the appropriation of any part of the complainant’s property for such purpose without his consent If the law is clearly open to this objection, it is a fatal one, as it is opposed to every constitutional principle which protects the rights of property, to-take it from the lawful owner- and appropriate it to the private use of another, or a private corporation for its own use. Generally speaking, public corporations are towns, cities, counties, parishes, existing for public purposes; private corporations are for banks, insurance, roads, canals, bridges, &c., where the stock is owned by individuals, but their use may be public. [Dartmouth College v. Woodward] 4 Wheat. [17 U. S.] 664. A road or canal constructed by the public or a corporation, is a public highway for the public benefit, if the public have a right of passage thereon by paying a reasonable, stipulated, uniform toll; its exaction does not make its use private. If the public can pass and repass, and enjoy its. benefits by right, it matters not whether the toll is due to the public or a private corporation; the true criterion is, whether the objects, uses and purposes of the incorporation are for public convenience or private emolument, and whether the public can participate in them by right, or only by permission. To ascertain this, the provisions of the law must be examined. The second section gives all the powers necessary to “perfect an expeditious and complete line of communication from Philadelphia to New York;” this is undoubtedly a great public and useful purpose, than which none can be more important, as a link in the great chain of national communication. The twenty-eighth section declares the road to be a public highway, and we should feel bound to so consider it,, if other parts of the law did not give it a different character. The sixteenth section authorizes a toll which, estimating the length of the road at sixty miles, would amount to 6 dollars for each passenger, and 4 dollars 80 cents a ton for merchandise transported upon it, and the company is incorporated as a “transportation company.” In this there are strong features of a monopoly for the sole benefit of the corporation; the toll cannot be called a reasonable one, and the public cannot use the road by right, when they may be subject to the payment of a toll, which is equivalent to a prohibition. These considerations have led our minds to strong doubts whether the declaration of the legislature is not in direct collision with the provisions of the law, but not so strong and clear as to justify us in declaring the law unconstitutional and void, on an application for an injunction.
3. The next ground taken by the complainant is, that the law gives the company no right to locate the road on his land; inasmuch as they were not authorized to construct any other but a lateral road to Bor-dentown, and the main route, as now located
4. Assuming the validity of the law, the next objection to the proceedings of the company is, that they have not complied with its provisions, so as to have acquired any authority to enter upon and take private property for the purpose of constructing the road. This depends on the eleventh section, which authorizes the company to enter for two distinct purposes, 1st, to locate, 2d, to construct the road. For the purposes of location they may enter at all times, and erect necessary works and buildings, with no other restriction or condition than that they shall do “no unnecessary injury to private property;” but whenever they have exercised this authority, by which they are enabled to make a location, the law directs that it shall be determined on, and a survey of the route to be deposited; and then provides, “that when the location is determined on, and the survey is deposited in the office of the secretary of state, it shall be lawful for the said company, by its officers, &e. to enter upon, take possession of, use, occupy, and excavate any such lands, &c. for the purposes of constructing the road.” This language can admit of no construction, it limits the authority to the case provided for, imposes two conditions which must be performed before the power arises, and which can be performed by no other persons than the officers or agent of the corporation. The marked distinction between the right of entering at all times to survey and locate, and to enter to construct only on the performance of the conditions precedent, leaves no doubt that the intention of the legislature corresponded with their words. Independently of the positive terms of the law, the nature- of the conditions is such as to make the authority dependent on their performance. It would be most unreasonable, as well as unjust, to permit private property to be taken for the construction of a road before its location had been determined on by the company. And nothing can be more reasonable and just, than that after a definitive location is so made, there should be some authentic evidence of its route in a public office, to which all persons can have access. Unless this is done, no person could know what part of his property was put in requisition, or have any check on the company against altering or deviating from the route determined on. It could not have been the intention of the legislature to confer a power so undefined and illimitable, and as it is not given by the words of the law, we cannot do it by construction. The defendants, in their answer, admit that the final location of the road is not yet determined on, and that the survey is not yet deposited; they cannot therefore have the authority of the law for entering on or taking possession of any part of complainant’s property, for the purpose of constructing the road. The omission is exclusively their own, the law gave them ample powers to enter on the premises of individuals for every purpose of location, it pointed to the acts on which their power to construct depended; they have not thought proper to comply with the conditions imposed, the consequence is obvious. The company will be trespassers if they disturb the possession, of the complainant, and the court must proceed in the usual way, if he has made out his case.
Compensation is the next subject to be considered. Taking it as an universal principle, that the right of every government to take private property for public use, and the obligation to make just compensation are unquestionable and concomitant; taking it also
- As compensation is a necessary qualification to the exercise of any corporate authority over the property of individuals, it must be made previously to the divestiture of their right, and its final appropriation to the public use. 2 Johns. Ch. 166. We do not say that the sum due must in all cases be actually paid, before the company may proceed Jo execute the law by commencing the construction of the road. Though the fifth amendment of the constitution may not apply to, cases arising under the legislative powers of the state (20 Johns. 106), it may be taken as a correct definition of the rule of public law; there must be “just compensation” made to the owner. The public is considered as an individual treating with another for the exchange of property, or rather compelling the owner to alienate his property for a reasonable price. Vide 2 Co. Inst. 45; 1 Bl. Comm. 139; 2 Johns. Ch. 167. “When the law makes provision for compensation, prescribes a mode of assessment, an obligation for its payment in a reasonable time, undoubted security and efficient means for its prompt collection, and the company comply with all the requisitions of the law, so that compensation is certain, we are not prepared to say, that it was not a substantial fulfilment of the duties of the
The only remaining question, is whether the complainant has made out a case for an injunction. He is the acknowledged owner of the land on which it is intended to construct the road; he has the perfect right to use, occupy and enjoy it as he has been accustomed to do according to his own pleasure; he may devote it to whatever purposes
We therefore feel hound to enjoin any further proceedings, after the road is finally located and the survey deposited, until the filing the report of commissioners, pursuant to the thirteenth section of the charter.
Since this opinion was prepared, the supreme court have decided, that this amendment does not apply to the states, but only to the general government. Barron v. Baltimore, 7 Pet. [32 U. S.] 247; Lessee of Livingston v. Moore, Id. 551, 552.