11 Nev. 394 | Nev. | 1876
By the Court,
The petitioner applies for a writ of mandamus to compel the respondent, as district judge of the third judicial district, to forthwith proceed to hear a certain petition by it filed and presented under the provisions of the statute of this state entitled: “An act to encourage the mining, milling, .smelting, or other reduction of ores in the State of Nevada” (approved.March 1, 1875), wherein it is, among other things, alleged that petitioner desires to acquire a strip of land in possession of, and claimed by, one James "Waddell; that it is necessary for petitioner to obtain this land in order to transport the wood, lumber, timbers and other materials to enable it to conduct apd carry on its business of mining; and petitioner therefore prays that respondent may be compelled to appoint commissions, Avliose duty it shall be to determine and assess the compensation to be paid for such land, and in all respects to proceed and make such orders as may be necessary, or proper, in pursuance of the provisions of said act. The respondent refused to act in the premises, because, in his judgment, the act in question is unconstitutional and void. He claims that the act is in direct violation of the provision of section
The law, in our judgment, is well settled that, under this provision of the constitution, private property cannot be taken for a private use. The property of a citizen can only be taken by an- act of the legislature for a public use, when a necessity exists therefor, and when compensation to the owner has first been made or secured. Whenever, therefore, the legislative power of appropriation of the private property of a citizen is attempted to be exercised, the true test of its validity is, whether or not, the use for which the property is to be appropriated is a “public use,” within the meaning of these words as used in the constitution.
The first section of the act in question declares that “the production and reduction of ores are of vital necessity to. the people of this state; are pursuits in which all are interested and from which all derive a benefit; so the mining, milling, smelting, or other reduction of ores are hereby declared to be for the public use, and the right of eminent domain may be exercised therefor.” (Stat. 1875, 111.)
It is contended by petitioner that this declaration of the legislature is conclusive upon the courts; in other words, that it is not within the legitimate province of the judiciary to control the judgment or decision of the legislature. There are some very respectable opinions which tend to support this view; but the decided weight of the authorities as well as reason is against it. As we construe the provision of the constitution, there is a limit upon the exercise of legislative power which prohibits that body from enacting any law which takes the property of one citizen and gives it to another for a private use, and if the legislature has, in the passage of this act, gone beyond this limitation it is the clear and positive duty of this court to declare the act unconstitutional and void. But in this connection it must, as we think, be admitted that although the action of the legislature is not final, its decision upon this point is to
Before we discuss the main questions presented for our decision, it is proper to state that we have nothing to do with the wisdom, policy, justice, or expediency of the law. These are matters of which the legislative and executive departments of the state government are the sole judges; and even if we differed in opinion with them upon any of these grounds, we could not, for such reason, declare the act invalid. In the consideration of this case, these questions will be treated as settled by the passage and approval of the act. The remedy for unwise or oppressive legislation, when within constitutional limits, is by an appeal to the justice, intelligence, patriotism, and protection of the representatives pf the people. It is only in cases where the federal, or state, constitution limits the legislative power, and controls the will of the legislature by 9, paramount law that courts are authorized to interfere and declare any legislative enactment void. These general principles are axiomatic in the jurisprudence of this country.
This brings us to the direct question: What is the meaning of the words “public use’ as contained in the provision of our state constitution?” It is contended by respondent that these words should be construed with the utmost rigor against those who try t.o seize property, and in favor of those whose property is to be seized. In other words, that in favor of private rights the construction should be strict; that the words mean possession, occupation, or direct enjoyment by the public. On the other hand, it is claimed by petitioner that courts should give to the words a broader and more extended meaning, viz., that of utility, advantage or benefit; that any appropriation of private property under the right of eminent domain for any purpose of great public benefit, interest or advantage to the community is a taking for a public use. No question has ever been submitted to the courts upon which there is a greater variety and con
It has frequently been decided that the public have an interest in the use of a railroad because it increases the facility for travel and transportation from one xiart of the country to another, and every citizen may use it by paying the usual rates of fare; the owners may also be xirosecuted for any damage sustained by their refusal to transport individuals or their property upon the payment of the fare or freight. A turnpike is said to be for a public use because every man can, with his own horses and teams, or on foot, travel upon it for a fixed compensation, and the legislature may, from time to time, limit the amouñt of toll which the owners may take, and regulate the franchise under which their
Chancellor Walworth, in Beekman v. Saratoga and Schenectady Railroad Co., advanced the doctrine that if the public interest could in any way be promoted by the taking of private property, that it must rest in the wisdom of the legislature to determine whether the benefit to the public would be of sufficient importance to render it expedient for them to exercise an interference with the private rights of individuals for that purpose, and said: “It is upon this principle that the legislature of several of the states have authorized the condemnation of the lands of individuals for mill-sites, where from the nature of the country such mill-sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the.same principle of public benefit not only the agents of the government, but also individuals and corporate bodies, have been authorized to take private property for the purpose of making public highways, turnpike roads
In Gibson v. Mason, Lewis, C. J., after declaring that property could only be taken for public uses, says: “A railroad must, then, whenever the right to take private property is given to it, * * * be held to be a public work, and for the public benefit.” (5 Nev. 308.) And in this opinion the language of Chancellor Walworth, in. the case of Beekman v. The M. & S. R. R. Co., is quoted with approval. But the cases .more directly in point, where the decisions are solely based upon this ground, are to be found in the states where a construction is given to what are known as the “mill-dam” or “flowage” acts. It is true that these acts in Massachusetts, owing to some of the provisions of the constitution of that state, could perhaps have been upheld under the existing colonial laws in force in that state, in relation to the rights of proprietors of land traversed by mill streams, at the time of the adoption of the state constitution; but the reasoning of the courts in sustaining the acts is generally, if not universally, based upon the grounds relied upon to sustain the validity of the statute of this state.
In Boston and Roxbury Mill Corporation v. Newman, wherein the validity of a special act which authorized the taking of private property of certain flat grounds to constitute a receiving basin, so as to enable the corporation to carry on its enterprise, was drawn in question; the court after tracing the history of the mill-dam acts back to their provincial origin, and declaring that there was no difference in principle between the special act and the mill-dam acts under the colonial laws, sustained the validity of the act, and in the course of the opinion say: “The principle is,
But still clearer and more direct is the language of Bigelow, C. J., speaking for the court in the subsequent case of Talbot v. Hudson. ‘ ‘ In many cases, there can be no difficulty in determining-whether an appropriation of property is for a public or private use. ' If land is taken for a fort, a canal, or a highway, it would clearly fall, within the first-class; if it is transferred from one person to another, or to several ¡Dersons solely for their peculiar benefit and advantage, it would as clearly come within the second-class. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must
The principle announced in these cases was approved
In Connecticut the doctrines advanced in the Massachusetts cases are fully supported. Especially is this true of the reasoning of the supreme court in Olmstead v. Camp, sustaining the validity of the flowage act of that state. It was there contended that the act manifestly authorized the taking of property for private use; that in order to sustain the law it must affirmatively appear that the public have an interest in the thing to be taken; that there must be a public right of control of the thing taken as property in which the state has an interest; that the thing taken is to be used by the public, and is taken that it may bo so used. In discussing this question the court say: “One of the most common meanings of tbe word ‘use’ as defined by Webster, is ‘usefulness, utility, advantage, productive of benefit.’ Public uso- may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use.” (33 Conn. 546.) This decision directly declaring that the “term ‘public use’ is synonymous with public benefit or advantage” was concurred in by all the judges except Hinman, C. J., who dissented. In the subsequent case of Todd v. Austin, 34 Conn. 79, the court, notwithstanding the able arguments of learned counsel, who sought by numerous references to decided cases to show that the reasoning of the courts in sustaining the mill acts of Massachusetts did not apply in support of the flowage act of Connecticut,
The supreme court of New Jersey, in the case of The Tide Water Co. v. Coster, held that the right of eminent domain could be employed for the purpose of reclaiming large tracts of tide-water land, and based its decision upon the ground that “it is the resulting general utility which gives such entei’prises a kind of public aspect, and invests them with privileges which do not belong to mere private interests.” (18 N. J. 521.) These views were approved
The cases of Hays v. Risher (32 Penn. Stat. 169), sustaining the constitutionality of the lateral railroad act, and The West Vir. Trans. Co. v. The Volcanic Oil and Coal Co., (5 W. Va. 382), sustaining the constitutionality of an act authorizing the plaintiff to construct and maintain a line or lines of tubing for transporting petroleum or other oils through pipes of iron or other materials to any railroad, navigable stream, etc., are not in my judgment distinguishable in principle from the act under consideration; but the reasoning of the courts in support of the validity of said acts is to some extent based upon other grounds.
In Minnesota the supreme court, in Miller v. Troost, held that the act relating to “dams and mills” ivent to the extreme limit of legislative power, and after expressing the opinion that if such laws had not been sustained by the •courts of other states, they would hesitate long before upholding the act, say: “The decisions, however, are so numerous, and by courts of so great authority, that we are constrained to hold the law to be constitutional.” (14 Minn. 369.)
In the light of these authorities, nearly all of which were decided prior to the adoption of our state constitution, I think it would be an .unwarranted assumption upon our part to declare that the framers of the constitution did not intend to give to the term “public use” the meaning of public utility, benefit and advantage, as construed in the decisions we have quoted.
The reasons in favor of sustaining the-act- under consideration are certainly as strong as any that has been given in
But it is argued, that in sustaining this act upon tbe principles we liave announced, there is no limitation to the exercise of legislative will in the appropriation of private property. After a thorough investigation of this question, I am of opinion that this argument is more specious than sound. It is an easy, task to imagine occasional cases of individual hardship in the practical operation of any law, and this statement is certainly true of all laws passed in the exercise of the power of. eminent domain, because it will always be difficult in following any rule to mark out with precision the boundary line beyond which the legislature cannot go. Each case when presented must stand or fall upon its own merits, or want of merits. But the danger of an improper invasion of private rights is not, in my judgment, as great by following the construction we have given to the constitution as by a. strict adherence to the principles contended for by respondent. If public occuptition and enjoyment of the object for ivhich land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. "Why not ? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed conrpensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad.
One purpose is, so far as the legal rights of the citizen aro concerned, as public as the other. The same principle is applicable to theaters. All citizens have the undoubted right, upon the payment of the price of admission, to attend all places of public amusement. Stage coaches and city hacks would also be proper objects for the legislature to make provision for, for these vehicles can, at any time, be used by the public upon paying a stipulated compensation. It is certain that this view, if literally carried out to the utmost extent, would lead to very absurd results, if it did not entirely destroy the security of the private rights of
The property of the citizen is sufficiently guarded by the constitution, and he is protected in its enjoyment and use, except in the extreme cases of necessity where it is liable to be taken for the purpose, of. advancing some great and paramount interest which teuds to promote the general welfare and prosperity of the state; and when it is understood that the exercise of this power, even for uses confessedly for the public benefit, can only be resorted to when the benefit which is to result to the public is of paramount importance compared with the individual loss or inconvenience, and then only after an ample and certain provision has been made for a just, full and adequate compensation
We are of opinion that the present law can be enforced by the courts so as to prevent its being used as an instrument of oppression to any one. But if, in its practical operations, it is found to be incompatible with a just preservation of the rights of individuals in private property, it will be the duty of the legislature to repeal the act, and to that tribunal instead of this must the argument of injustice be made. Whether we look at this act in the light of the interpretation which has been given to the term “public use ” in the constitution of other states, to our own reasoning and construction of the language of the state constitution, or, to the character of the business and the natural production and resources of this state, we are irresistibly drawn to the conclusion that the act is constitutional 'and valid.
It is, therefore, ordered that the writ of peremptory mandamus be issued.