1 Chand. 71 | Wis. | 1849
Lead Opinion
If the act of 1840, under which this complaint was brought, is not in conflict with the constitution of the United States, or the ordinance of 1787, the judgment of the court below must be reversed.
The overflowing of the land of the plaintiff in error, by reason of the dam of defendant in error, is not denied, but the owner of the dam contends that he is prosecuted for the damage done, in an irregular manner; that he ought t® have been proceeded against by writ and pleadings at common law, and not by complaint under the statute. It would be right, I think, to tell the plaintiff in error he must define his position. If the law of 1840 is unconstitutional, he has no justification for raising a dam and overflowing his neighbor’s lands ; and on his own showing he comes into court a trespasser, and is not entitled to be heard. If, on the contrary, that law is valid, the proceedings against him were regular, and he has no ground to complain. But as the question involved in this case is one of wide-spread interest, and public confidence may be unsettled until the mam point shall be decided by this court, I will proceed to its examination with as much brevity as possible.
It never could be urged against the people of the United States or their ancestors in England, that they did not maintain a sacred regard for the rights of private property. More than six hundred years ago it was declared in Magna Charta, chapter 29, “ That no freeman'should be disseized of his freehold but by the law of the land.” Lord Coke expounds “ the law of the land ” to mean “ due process of law.” The constitution of the United States adopts the language of
The ordinance of 1787, which was the fundamental law of Wisconsin at the time the present suit was commenced, declares that “ no man shall be deprived of his liberty or property but by the judgment of his peers or the law of the land.” But for these wise restraints upon legislative power, the right of government, as a sovereign authority, to take the property of individuals for public use, would be absolute ; and that,, too, without even allowing any direct compensation. See 5 Term. 794; 1 Nott & McCord, 387; Vattel, Book 1, ch. 9, § 103.
The right to appropriate private property for private use has been deemed to be precluded by the provision authorizing it to be taken for public use, only upon just compensation. The main question in the present case is, whether the land overflowed by reason of the mill-dam erected by the defendant in error, was taken for public use. A preliminary question is raised, whether the proceeding by complaint under the statute is by “ due process of law,” and “ according to the course of the common law.”
The act of the territorial legislature, approved January 13, 1840, contains the following provisions :
Seo. 1. Any person may erect and maintain a water-mill and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions, and subject to the regulations hereinafter expressed.
Seo. 2. No such dam shall be erected to the injury of any mill lawfully existing either above or below it, on the same stream, nor to the injury of any mill-site on the same stream on which a mill or mill-dam shall have been lawfully erected and used or is in the process of erection, unless the right to
Sec. 3. The height to which the water may be raised, and the length or period of time for which it may be kept up in each year, shall be hable to be restricted and regulated by the verdict of a jury, as hereinafter provided.
Sec. 4. Any person whose land is overflowed, or otherwise injured by such dam, may obtain compensation therefor upon his complaint before the district court for the county where the land lies, etc.
The subsequent sections prescribe the mode of proceeding and estimating the damages, by a trial by jury, and judgment of the court. The jury are directed to find the annual damage and also the gross amount of damage; and the complainant may elect between them, and may also have a new assessment at the end of every ten years. Section 28 is as follows : “No action shall be sustained at common law, for the recovery of damages, for the erecting, maintainiug or using any mill or mill-dam, except as provided in this act.”
This act technically takes away the right to sue “ at common law.” The ordinance of ’87 declares that the inhabitants of - the northwest territory shall be entitled to “judicial proceedings, according to the course of the common law,” while the constitution of the United States, as we have seen, prohibits the taking of private property except by “ due course of law.” It is contended that the complaint authorized by the statute is in derogation of this common right of the citizens of Wisconsin ; that they are subject only to process known to the common law. If this were admitted, the rights of our people would be dependent upon mere matters of form; very many of our legal proceedings, such as suits
It remains to be seen whether the act can be sustained under the other branch of inquiry. Is the appropriation of land for the use of water-mills, in any right sense, a “public use ? ” ■ To arrive at a correct conclusion on this subject, we must look at the acts and judicial decisions of other states. We should commit a great error if we assumed that public use is confined to such appropriations as the government may have occasion to make for the common defense and safety, when acting by its officers and agents in cases of emergency.
In some cases public tolls have been exacted, or specific burdens or duties imposed, though this has never been considered essential to the right. 3 Johns. Ch. 166; 4 Wend. 1; 3 Paige, 12; 18 Wend. 45.
The same principle may be pursued through the legislative acts and judicial proceedings of every state in the Union, and it will be found as diversified in its objects as in the modes and means of its application. In Beekman v. the Saratoga & S. R. R. Co., supra, the subject was discussed with great learning and ability, and the doctrine laid down by Chancellor Walwoeth, in language so clear and appropriate, that I will quote it at length: ‘ ‘ The right of eminent domain, however, does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. And if the legislature should attempt thus to transfer the property of one individual to another, where there can be no pretense of benefit to the public by such exchange, it would probably be a violation of the contract by which the land was granted by the
It is upon this principle that the legislatures of several of the states have authorized the appropriation 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 land thus appropriated. 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 and canals ; of erecting and constructing wharves and basins; of establishing ferries and draining swamps and marshes, and of bringing water to cities and villages. In all such cases, the object of the legislative grant of power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies or of individual enterprise. And, according to the opinion of Chief Justice Marshall, in the case of Wilson v. Black Bird Creek Marsh Co., 2 Pet. 251, measures calculated to produce such benefits to the public, though effected through the medium of a private incorporation, are undoubtedly within the powers reserved to the states.”
It thus appears that the constitutionality of the right has never been measured by the precise amount or degree of the public benefit to be conferred. Is there any good reason why water-mills should not be regarded as public improvements ?
The objections to this law are addressed to the wrong tribunal. They relate to its expediency and not to its constitu
Were the question open for a discussion of the expediency of this act, many weighty reasons might be assigned for continuing it in force. Aside from disturbing vested interests and deranging business relations, there is to my mind a public utility, both in the good which it aims to accomplish and the evils it is designed to remedy, which commend it to public favor.
The law abhors a miiltiplicity of actions. It favors peace and repose. No tyranny has been found more odious in the older states than is sometimes exhibited in the pertinacious obstinacy of one man, who pursues his common-law right of resisting the occupation of his land, perhaps of some small and insignificant but indispensable portion, for the puipose of a null. The graceless privilege of commencing daily suits for the daily infringement of constitutional rights is often less detrimental to the enterprising individual, who may be its victim, than to the community, who are common sufferers. The statute which cuts off the common-law privilege of such a man to indulge in litigious malice, and which secures to him ample compensation by a single action for his property taken for. public use, is surely benign in its effects, and harmonious with the spirit if not the letter of the constitution. Such a law, also', by inviting capital into the interior of the state, by
In making these suggestions, I am not unmindful that a different view of the matter was urged by the counsel in the argument. It was ably and earnestly contended that the law in question infringes upon common right; that even the slightest departures from abstract justice are dangerous, and that public liberty requires perpetual vigilance in resisting the exercise of unauthorized power. These positions, in the abstract, are not denied. But they come far short of warranting a direct interference by this court to assert the paramount authority of the constitution over the discretion, wisdom and authority of the legislature. I forbear, however, to pursue the discussion.
The judgment of the circuit court is reversed, with costs.
Dissenting Opinion
delivered the dissenting opinion of himself and Chief Justice Stow.
We must dissent entirely from the opinion of our brethren ; and while expressing a proper respect for- the decisions of sister states, which seem to sustain their views, still, we deny that the restrictions upon the exercise of sovereign power, or the rights guaranteed to their citizens, are identical with those arising under the territorial government.
It by no means follows that, because an act of the legislature of Massachusetts has been held to be constitutional and valid, a precisely similar act of the territorial assembly of Wisconsin is not in direct contravention of some right guaranteed by the ordinance of 1787 to the people of the territory northwest of the river Ohio. The one act may be the offspring of a power clearly delegated, while the other may be a despotic encroachment upon the rights of the citizen, just as clearly guaranteed. The powers of the former are defined and limited by a written constitution ; and so. were the powers of
First. The ordinance of 1787.
Second. The organic act of the territory of Wisconsin, passed in 1836.
The organic act, in strict conformity with a provision of the ordinance, extended the existing laws of congress over the territory so far as they were applicable ; but we find no provision extending the constitution of the United States or any of its restrictions. It is true, the people of the North West territory were made “ subject to the articles of confederation, and to such alterations therein as shall be constitutionally made ; ” or in other words, they were not created a separate, independent government, but were at all times to be under the control and subject to the sovereignty of the confederation. But the constitution was formed by the concessions of independent states — was a compact’ between them —and the North West territory was no party to it, but only a mere provincial government, invested with certain delegated powers, the exercise of which was always to be under the control of congress. There was no single attribute of sovereignty belonging to the territory; the people were no party to the government of the confederation ; they had no delegate in the convention which framed the federal constitution, nor was their assent either asked, nor was it necessaiy to its ratificationi. They were given, it is true, certain rights, before the present organization of the general government, and a solemn compact was made with them that those rights should not be taken away without their consent; and these
. Nor is the judicial power of the territorial courts part of the judicial power of the United States as given in article three of the constitution, but it is only such power as is given by virtue of the general right of sovereignty which exists in the general government, or by virtue of that clause which enables congress to make laws regulating the territories belonging to the United States. The American Insurance Company v. Three hundred and fifty-six bales of Cotton, 1 Pet. 544.
So, the provision in the constitution of the United States, which declares that private property shall not be taken for public use without just compensation, was intended solely as a limitation in the exercise of power by the general government, and was not applicable to the legislatures of the states or of the territories. And the provision of the seventh amendment tó the constitution, which declares that in actions at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, does not apply to the state governments, but restricts only proceedings in the federal courts. Barron v. Mayor and Council of Baltimore, 7 Pet. 343; Livingston v. Mayor of New York, 8 Wend. 85.
The rights guaranteed to the people of the territory of Wisconsin were not those secured to the citizens of the states
Hence it is that no eifort has ever been successful to abrogate any of its provisions, though such efforts have been made. A striking instance occurred at an early day. In answer to a letter to congress, from Gov. HarrisoN, then president of a convention of the people of the Indiana territory, signifying their assent to the suspension of the sixth article of compact, prohibiting slavery or involuntary servitude in that territory, Mr. RaNdolph, of Ya., in bis report of March 2, 1803, which report received the sanction of congress, says : “ That the committee deem it highly dangerous and inexpedient to impair a provision wisely calculated to promote the happiness and prosperity of the northwestern country.” In fact,
To the ordinance, then, and not to the federal constitution, did the people of the territory look ; for it was never enacted that, in addition, they should have the rights under the constitution which are guaranteed to the citizens of the several states, or, in fact, any other rights or immunities than those contained in the ordinance and the subsequent laws of congress.
It follows, then, that the territorial government possessed but limited powers, derived from written laws of congress ; and in all its acts, which in any way related to the rights of person and property, it should have been controlled and governed by the restrictions therein contained. Hence, in the consideration of the case at bar, we cannot see what possible application can be made of the provision of the federal constitution, which declares that “ private property shall not be taken for public use without just compensation.” We are considering an act of the territorial legislature, and not a law of congress. Had congress passed an act authorizing the property of an inhabitant of the territory to be taken for the use of the general government, providing therefor a just compensation, the whole train of argument by which the act of 1840 is sought to be sustained would be pertinent; but here we have no such act.
Let us inquire what rights were secured to the people of Wisconsin ; in what cases the legislature could authorize the seizure of private property, even for the use of the government
Here we have, in comprehensive language, the strongest and most sacred guaranty of the enjoyment of rights fjnd property. It is more expressive than magna charta or even the constitution of the United States. Magna charta provides that no “ freeman shall be disseized or divested of his freehold or bis liberties, but by the judgment of bis peers .or the law of the land.” The constitution, “that no person shall be deprived of life, liberty or property without due process of law ; nor shall private'property be taken for public use without just compensation; ” while the ordinance declares that “ no man shall be deprived of his liberty or property but by the judgment of his peers or the law of the land; and should
But as tbe act of 1840 is sought to be justified, on tbe ground that tbe person whose property is authorized to be' taken by its provisions-is deprived of it only by “ tbe judgment of bis peers or tbe law of tbe land,” it will be necessary to examine still further this provision of tbe ordinance. It will be observed that there is a 'strict analogy between tbe provisions as found in tbe ordinance and in tbe constitution. That branch which provides that no person shall be deprived of liberty or property but by tbe judgment of his peers or tbe law of tbe land, is a distinct right, independent of that secured in tbe latter clause. It secures to every man bis liberty and property from tbe mere arbitrary encroachments of private persons. When, from bis own act or negligence, or tbe act or negligence of another, be shall be, brought within tbe control of a court of justice, then be shall not lose bis liberty or property but by tbe judgment of bis peers or the law of tbe land. He well knows, what the law. is ; fo.r,
This view is clearly enforced by BboNSON, J., in delivering the opinion of the majority of the court in the case of Taylor v. Porter, 4 Hill, 140, where he says : “ Of course, I shall not be understood as saying that a trial and judgment are necessary in exercising the right of eminent domain. When private property is taken for public use, the only restriction is, that just compensation shall be made to the owner. But when one man wants the property of another, I mean to say the legislature cannot aid him in making the acquisition.” And it has been uniformly held that any equitable and fair mode of ascertaining the compensation may be provided by the legislature, in cases where private property is thken for public use ; and that the trial by jury is only required on issues in fact, in civil and criminal cases, in courts of justice. Buonaparte v. Camden & Amboy R. R. Co., 1 Bald. C. C. 205; Beekman v. S. & R. R. Co., 3 Paige, 45; Railroad Company v. Davis, 2 Dev. & Bat. 451; 2 Kent’s Com. 339.
It follows, then, tbat under the fundamental law of tbe territory of Wisconsin, as bas been repeatedly beld by tbe federal and state courts, in relation to tbe analogous provisions of tbe constitution of tbe United States, tbat tbe only provision, in any way authorizing tbe taking of private property for tbe use of tbe government, is tbe one which relates to tbe “ common preservation.”
This provision was just as much a part of tbe fundamental law of tbe territory, and just as restrictive of legislature power as tbat noble and original principle immediately following, which declares that, “in tbe just preservation of rights and property, it is understood and declared tbat no law ought ever to be made, or have force in tbe said territory tbat shall in any manner whatever interfere with or affect private contracts or engagements bona fide, and without fraud previously formed j” a provision which it may be justly feared tbe lawmaking power bas overlooked in an act of more recent date.
If, then, in tbe examination of tbe question presented in this case we shall lay aside entirely, as a matter with which we have nothing to do, tbe phraseology of tbe federal constitution, and confine ourselves to tbe powers of tbe territorial legislature as they are found in tbe ordinance and acts of congress, we shall escape tbe whole train of false premises and reasoning by which this law is sought to be sustained. If we but keep in view, tbat if tbe territorial legislature bad power to take private property at all, it could only take it when tbe public exigencies made it necessary for the common preservation — that this was tbe only emergency upon wbicb.it could
The act of 1840,
This act authorizes any person owning lands upon a stream of water, to erect and maintain thereon a “ water-mill,” and a dam to raise water for wqrlring it, and to flow permanently lands not belonging to the owner of the mill; or, in other words, provides that such owner may obtain an easement in the soil of another, which nearly or quite deprives the proprietor of all the benefit of his lands forever. There is no pretense, either by express words or by the remotest implication, that the “ common preservation” requires this exercise of sovereign power ; no.r is the act sought to be sustained on that ground. It, in fact, in no manner differs in principle from an act authorizing any person to take and enjoy the property of another for any other purpose whatever, a steam-mill, a distillery, or a corn-field. It is sought, however, to be sustained on the ground, and on that alone, that “ mills ” have always been regarded as things of great public utility ; that the public good, the “public use,” requires their erection, and justifies the taking private property for their maintenance. But this right of taking property for the “public use,” we have shown, did not exist in the fundamental law of Wisconsin; and even if it did, or could be in any way derived as necessary to carry into effect powers expressly granted, it would be easy to show that this act is far from being justified or warranted by it. It does not even declare that “ water-mills ” are required for the public use ; nor can we ascertain from any of its provisions that the legislature so considered them. The provincial law of Massachusetts (12
This is essentially different from the act of 1840. No provision is anywhere made for determining, in any given case, whether the public convenience or public good requires the erection of the mill ; nor is there any specification of the kind of mill, whether a grist or saw-mill, a distillery or a fulling-mill. Any man can, under our act, erect a mill of any kind and enjoy the lands of another for his own private benefit. It is never declared or ascertained, either by the legislature in the act itself, or by the court or jury in enforcing its provisions, that the taking a person’s property in any given case is for the “public use.” But the right to determine tins exigency is delegated to “ any person ” who may choose, for his own-advantage or spite, to erect a “water-mill.” The fundamental law on the one hand, secures to every man the protection of liberty and property, guaranteeing that his property shall only be taken when the “ common preservation,” or, if you please, the “public use’’requires it, and only then upon just compensation ; while on the other hand, this provincial legislature, acting under the same law, strikes at the very foundation of the whole fabric, and gives to “ any person ” the right to take another’s property whenever it suits his whim, his malice, or his convenience. The public use is a secondary consideration ; in fact it is lost sight of entirely —is never ascertained or declared.
Again : this act is justified by appeals to similar provisions in the statutes of several of our sister states. But it»is believed that in all the states, with the single exception of Massachusetts, there is some method provided for determining in each case, either by the verdict of a jury, or it is
Again : Another writer, speaking of the Massachusetts law, says: “ Such an invasion of private property can only be defended in a case of great public necessity and utility. And yet the legislature, as well as the courts of law, in that state, seem to have been disposed rather to enlarge than curtail the power' of mill owners, who have unwarrantably been alloAved in cases where no public necessity or utility called for it, to take private property for their own private uses.” Note to Stowell v. Flagg, 11 Mass. 366.
In the comparison which we have made between the Massachusetts act and the one under consideration, it will be observed, that we have treated the former as if it had been passed subject to the constitution of the United States, or to the similar provisions which are common to most, if not all, of our state constitutions. But it is to be borne in mind that that act, so far from being passed in subjection to the guarantees of the rights of person and property, which the revolution seemed to the American people, was one of the
Enough has been said to show that no pretense can be found in the whole act, that the property of the citizen is allowed to be taken even for the “ public use,” to say nothing of the “ common preservation.” It is nothing more nor less than an arbitrary seizure of one man’s property, and giving it to another, under pretense of converting it to the use of a water-mill, which mill may or may not be required for the public convenience. It authorizes the seizure and appropriation of my wheat' field, orchard or dwelling house for the purposes of a water-mill; delegates to the owner of that mill, and to him alone, the power of determining whether the public good requires such appropriation, and gives to me precisely that “just compensation ” which a law-suit may or may not secure, in the shape of a judgment, and a lien upon a mill and dam that is just as likely to be worth less than my lands, as it is to be worth more. But upon this feature we shall have occasion to remark hereafter, in considering a different branch of the argument. We might here appropriately rest, and decline any further consideration of the cause j but as the questions presented are of vital interest, as perhaps influencing in some measure the future legislation of our state, we
The provision in our constitution, which is analogous to the one we have been considering, as found in the ordinance of 1787, is modified from the stringency of the ordinance, and is similar to the one in the federal constitution. If, then, we should consider the act of 1840 in its bearings upon this provision, it will be necessary to inquire, what is the proper and legitimate meaning of the words “public use?” This inquiry is appropriate and necessary when it is recollected that the act in question is sought to be defended as entirely analogous to the taking of private property for the construction of canals, roads, bridges, etc. By the term public is meant the whole body politic, or all the citizens of a state. Weeks v. Sparke, 1 M. & S. 690. A distinction, however, seems to have been made between the terms public and general, and they are sometimes used as synonymous. The former term is applied strictly to that which concerns all the citizens, and every member of the state, while the latter includes a lesser, though still a large portion of the community. 1 Greenl. Ev. \ 128. This distinction has been constantly recognized and enforced by writers upon public law. The same definition is so forcibly and clearly set forth in the opinion of Senator Truer, in the case of Bloodgood v. M. & H. R. R. Company, 18 Wend. 56, that we cannot forbear quoting it at length: “We are then to inquire, first, whether the term public use is not to be confined to its simple sense of direct possession, occupation and enjoyment by the public; and second, 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 sovereign, acting through public political agents, and cannot be delegated to individuals or corporations not public political agents, to be by them exercised at their own discretion and for their own benefit? When we depart from the natural import of the term 1 public
“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 the right or power in subordination to the constitutional authority, which authority they cannot enlarge or modify. The condition that the properly 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 may be taken for 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 meaning of the constitution. The nature of the use to which
“ Therefore, to insist that the determination or expression by the legislature, that it is for the public interest and expedient in a particular case to exert the right of eminent domain, or the power of sovereignty, ipso facto establishes that the power of sovereignty is rightfully exerted, is in effect to insist that the power of the legislature is above the power of the constitution, and to prove that, instead of possessing a government of defined and limited powers, we have one with powers more extensive and irresponsible than those of the regal governments of Europe. I concede freely to the legislature the right to appropriate private property to the public use, but confidently deny to it the power of maldng that a public use which, in its nature, is not.”
In speaking of a decision of 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 the ground that the mill was necessary for the neighborhood, and the miller a public agent, he says : “If, however, this case decides the general proposition that the legislature can appropriate the land of one citizen to make a mill-dam for another, it must, also, in effect decide the more startling proposition, which, I am sure, neither the courts nor the people of this state are prepared to admit, that the legislature can transfer the unimproved mill-site of one citizen to another, for the purpose of enabling the latter to build a mill for the public accommodation.”
We have quoted from’ this case at length ; but have done so because we did not wish to impair the force of the argument. It is, perhaps, the most lucid and convincing argument upon this interesting and, strange to say, somewhat vexed question, that can be found anywhere in the books. The
And here will at once be seen -the wide departure between the acts of the legislature of New York and the law of 1840, which we have under consideration. In this act, the seizure and absolute appropriation of the land is authorized in the first instance — not by the government, through its political
But not only is no adequate provision found in the law of 1840 for compensation, but it is further provided that the advantages resulting to his property, by the erection of the mill, shall be deducted by the jury from the gross value of his lands ; in other words, a direct appropriation is made of private property for the purposes of a water-mill;' and this appropriation not made by the government for the public use, but undeniably, in nine cases out of ten, for the mere private advantage of an individual at the expense of his neighbor.
This doctrine, however, has never been sanctioned by the courts of Kentucky' — the actual value of the property taken being secured to the owner without any deduction for mere speculative enhancements of value. Rice v. Turnpike Co., 7 Dana, 81; Dutton v. Louisville, 5 id. 28; Jacob v. Louisville, 9 id. 114.
It is an undeniable fact, that in most of the instances in the states of the Union, where the right of eminent domain has been exercised, the seizure of private property has been in a more arbitrary manner and with less regard to the right of property, than has been shown by the parliament of Great Britain. In all the acts of parliament since the revolution of 1688, which authorize the taking of private property for public purposes, provision is either made for compensation first, or a certain and adequate fund provided; and in no case that we have been able to find is the mere speculative advantage to the owner, made an offset to the value of the property taken. And even Napoleon, when at the height of his imperial power, did not dare to seize the humble stall of the cooper, though the ground upon which it stood was absolutely necessary for the erection of a public edifice.
It becomes, too, a pertinent inquiry whether the right of eminent, domain existed at all in the territorial government. The sovereignty was undoubtedly vested in the general government up to the time of the admission of Wisconsin into the Union on an equal footing with the original states. It could not exist in the two governments at the same time, for one was entirely dependent upon the other for its very existence. If this position is correct, it follows that the restriction in the ordinance was designed to operate only upon the power of congress, and consequently no power was given to the territorial legislature to take private property for any purpose ; and there being no power expressly given, or necessarily inherent, there could be no necessity for a restriction upon it. But we forbear to pursue this branch of the case further.
There is another question which we deem of equal importance with the one just considered. Section 28, of the act of 1840, takes away the common-law right in all cases where the land of another is flowed by the erection of a dam. The entire character of the proceeding is changed, and a complaint under the statute is made to take the place of the common-law
' Blackstone says, book 1, p. 68, that the common law “is that law by which proceedings and determinations in the King’s ordinary courts of justice are guided and directed.”
When the ordinance was framed, the whole northwest territory was, with but few exceptions, an unbroken wilderness. The field was fair and open for the exercise of legislative wisdom, and no ancient rubbish was to be removed. When, then, the “ common law” was adopted as the rule by which judicial proceedings were to be governed, was it not adopted in its broadest and most comprehensive sense ? It cannot be supposed for a moment that the words were used in their limited signification as contradistinguished from equity, but that judicial proceedings were intended to be guaranteed according to the comprehensive scope of the common law of England, including equity and admiralty, as well as law. This right of judicial proceedings, according to the course of the common law, undoubtedly vested in the people of the territory the right to courts of justice comprehending the combined jurisdiction of the Chancery, the King’s Bench, the Common Pleas, and the Exchequer. Though perhaps it may be .said that courts possessing these powers were not
The defendant in error in this cause comes into court and asks : “ By what authority am I brought here ; what sort of a 1 judicial proceeding ’ is this by which I am to be tried ? Is it one at all known to the common law ? For if it is not, I ask to be dismissed.” Is he not entitled to be even heard ? Can it be answered : “ Sir, you are hereby virtue of an act of the legisláture ; that is a sufficient guaranty of your rights, and you have no right to question its validity ; because, forsooth, you would thereby admit yourself to be a trespasser !” The law of the land in bills of rights, says RuffiN, C. J., in Hoke v. Henderson, 4 Dev. 15, “ does not merely mean an act of
Nor can it be said with any show of reason,.that because this act provides for an assessment of damages by a jury in a court of justice, that therefore the act is no infringement upon the right of the citizen to judicial proceedings according to the course of the common law, for trials by jury are not alone known to the common law of England, but are found in all those countries which adopted the feudal system. We conclude, therefore, that this act is in direct violation of the ordinance of 1787, and also of the constitution of the United States:
1. Because there is no pretense that the seizure of private property by virtue of its provisions is necessary for the “ common preservation.”
2. That it is neither declared in the act itself, nor ascertained in any maimer that the seizure is for the “ public use,” either of the body politic itself, in its political or any other capacity, or of any considerable portions of its citizens.
3. That not only is no provision made for a just compensation prior to or concurrent with the seizure, nor is any adequate fund provided for a subsequent compensation, but the owner is left to his action, anda direct appropriation made of a portion of his property for the benefit of the mill owner.
4. That the sacred right seemed to every citizen of the territory northwest of the river Ohio, of judicial proceedings according to the course of the common law, is virtually wrested from him, and a novel, uncertain and insufficient remedy offered in its stead.
But even on the score of expediency, there can be no reason which would warrant the continuing this statute in force. Its tendency is to unsettle that confidence in the secure possession of property which it is so important to cherish in every stable and well regulated government. The example of Massachusetts is hardly the best one for us to follow. Her manufacturing power and wealth may have become so identified with her interests as a state as to actually give tone to her government, and even to the judicial decisions of her enlightened courts. But in the young and vigorous agricultural state of Wisconsin, no such influence can or ought to exist. Now, that this court has failed to declare it void, it is hoped that the legislature of our state will perceive its entire incompatibility with a just preservation of the right to the dominion of private property, and wipe it from the pages of our statutes. We acknowledge that it is at all times a delicate and unwelcome task to interpose the power of a court in declaring an act of the legislature unconstitutional and void. It is, however, clear that whenever a law is in violation of a constitutional principle, that the former must give way ; and it is the duty of a court to pronounce it null and void. “ It is in the fearless discharge of this duty that the only effectual barrier is found against the arbitrary exercise of political power.”
For Hie principal sections of tlie act, see the majority opinion in this canse.
See, also, Story’s Commentaries on the Constitution, vol. 3, 661, and. Taylor v. Porter, 4 Hill, 146.