*1 v. SCHOTTLER. VALLEY WATER WORKS SPRING 347 Syllabus. loss of his actual in the extent outlay fairly
damaged curred. in this case form of not to petition ought particular claimant from not what was recovering fairly
preclude to be the sustained him. the' evidence damage .shown that he does aris- it is true pray judgment damages Though he also for the prays yet judgment from profits, loss ing. less amount realized his outlay expenses amount The claim for on .hand. if of materials the sale profits, from not to recovery ought preclude not sustained by proof, In a losses sustained by outlay expenses. pro- claim for the claimant sets forth, like the present, ceeding facts without technical statement plain way petition, in a or in an manner, relief either general and prays formality, hold, the court form, or cumulative ought alternative rules but should technical strict' pleading, give claimant and afford him liberal interpretation, to his statement entitled to if himself within show substantially as he relief the facts as exhibited set forth claim fair scope the petition. of the Court Claims was think that judgment
We and it right,
Is affirmed. v. WORKS SCHOTTLE WATER SPRING VALLEY R& Others, Supervisors.
' OE CALIFORNIA. THE SUPREME COURT IN ERROR TO
Argued February 4th, 1884. 1883. Decided 20th, 21st, November Corporations.
Constitutional Law — companies corporations and other of like requiring gas companies, water Laws municipal fixed prices supply their customers character to' au: legislative scope unless locality, are thorities of the within (cid:127) obligation. or valid contract by constitutional prohibited limitation! might be corporations formed provided of a The Constitution State act, munic- by special except for be created general iaws, and should not OCTOBER TERM, Court, Opinion of the ipal.purposes, laws, all general special, passed pursuant to that provision might be from time to time altered and repealed. general A law *2 was enacted the legislature for the formation of corporations for supply- cities, ing counties and water, towns with provided that the rates to be charged for water should be fixed a board of commissioners to ap-. pointed part by corporations and in part by municipal authorities. The Constitution and laws of the State were subsequently changed so toas away take from corporations which had been organized put into oper- ation under the old Constitution and power laws the to name of members the boards of commissioners, and so as to place in municipal authorities the sole fixing of rates Held, for water: That changes these violated no provision of the Constitution of the United States. plaintiffs error were petitioners in the courts Cal- ifornia for a writ of mandamus against defendants in error. The constitutional question issue was the of the State of California alter the plaintiff’s charter. The facts making case to raise this are question stated in .the opinion court.
Mr. Charles W. Fox for error.
Mr. Francis G. Mewlands for same. A. L.
Mr. for Rhodes defendants in error.
Mr. George F. Fdmwnds for plaintiff in error. Me. Chief Justice.Waite delivered the opinion the court. Art. IY., sec. 31, of the Constitútion of California adopted in 1849 is as follows:
“ Corporations bemay formed under general laws, but shall not be created by special act for except municipal purposes. All gen- eral laws and special acts passed pursuant to this section altered from time to time, or repealed.” Acts were passed under legislature this on authority 14th April, 1853, the 30th of April, 1855,providing for the formation of corporations for certain and on purposes, the 22d of these acts April,1858, were extended so as to in- clude the formation of corporations for the purpose supply- cities, ing counties, towns with water. Under this exten- v. SCHOTTLER. WORKS WATER SPRING VALLEY Court. Opinion lands and to acquire were empowered companies sion and, condemnation, their works purchase for waters authorities, public direction reasonable subject their roads laying alleys, streets, ways, use enacted amendment anby provided, was expressly but pipes; 1861— “ and all ditches, aqueducts, reservoirs, pipes, canals, all That purpose exclusively be used shall . . . conduits State, in this towns, cities or or any or county, any supplying water.” fresh thereof, pure, with inhabitants as follows: 4 is
Sec. “ provisions All formed corporations Sec. shall furnish same, privileges act, claiming *3 or county, and such city inhabitants to the fresh water pure, permits, as supply long so uses, town, family for or city proper of persons, distinction and rates, without reasonable of their extent water, to the and shall furnish therefor, demand or fire case of town, in or city or and county, means, to such city rates to And charge. free necessity, great other commission- a board by be determined shall for water charged or county, and such city : Two follows selected ers, to be ; and in company the water authorities, and two or town city case, then, in that valuation, four cannot agree that case a mem- shall become and he a fifth person, choose shall the four agree upon cannot four commissioners if; of said'board ber fifth per- such shall appoint sheriff county fifth, then determine shall board of said aof majority The decision' son. and until . one year, for for charged rates to be or the of supervisors, board The established-. shall be rates new px-oper other authorities, prescribe may or town city proper this with water, inconsistent delivery relating'td rules this State.” and Constitution and laws act formed was Works Company Water Spring Valley .The time and since June, 19th of on tbe act the erection iti money amount large .very has expended and of the city for supply works and substantial extensive 350 TERM, 1883.
Opinion of the Court. n of San Francisco with In water'. 1878, January, board of and supervisors city Isaac B. county appointed Friedlander and H. B. and the .Williams, W. company appointed F. Babcock and Charles Webb and Howard, these four after- wards Jerome Lincoln, appointed constitute a board of com- missioners determine, under the of section 4, the provisions the, rates to be charged by water. This board met fixed the tariff of rates to into effect on the 1st of go 1878.' In of the same June, July, one of Friedlander, year, commissioners appointed died. his supervisors, By death a created vacancy the board which has never been filled.
In 1879 of California people a new Constitution; adopted went into on the effect 1st of' Art. January, XIY., 1880. 2 of this Constitution are as follows: §§
“ARTICLE, XIY. “Water Water Rights* uses'of all water now or ' “SectioN appropriated, n hereafter be sale,,rental, appropriated, or distribution, is declared to be hereby use, subject regulation and control of the State, to be manner : prescribed by law Provided, that the rates or compensation to be collected by any or person, company, this State for the use of water supplied any city or county, town, or city or inhabit- thereof, ants shall fixed, the board annually, supervis- ors, or city or county,'or city council, town or other govern-' of such ing body town, county, ordinance or otherwise,in the manner that other ordinances or legislátive ácts or resolutions are passed force . n *4 such by and shall continue in body, for one year and no Such longer. ordinances or resolutions shall be in the passed of month of each February and take year, effect on the first day July thereafter. board or Any body failing the pass necessary t.o ordinances or resolutions rates, water fixing where within such necessary, time, shall be subject to peremptory process action at compel the suit of interested, any and party shall liable be to' such further processes penalties as the legis- lature may prescribe; Any person, or company, col- corporation lecting water rates in any city or county, or town in this v. SCHOTTLER. 351 VALLEY WATER WORKS SPRING. Opinion of the Court. forfeit the franchises established, than as shall
State, otherwise so or to the works, such person, company, water collected, are the same town,-where or county, or.city the use. public for the use The .to collect .compensation rates or right “Sec. town, or or county, city county, water supplied franchise, and cannot exercised thereof, except is a
inhabitants law.” manner by of and by prescribed authority and the this legislation Under prevision Constitution claim thereon, based board supervisors for water, to fix the rates to be company charged by power in the boаrd fill the and refuse to a'member to vacancy appoint incum- of the former occasioned the death of commissioners by Court, the State. in the bent. This suit was Supreme begun the board for a writ of mandamus supervisors requiring (cid:127) court on The fill take action in matter and the vacancy. This dismissed final refused the writ petition. hearing review writ of error the company was brought by - judgment. water is whether
The case involved question general 1858 before the act of forjned under in California, companies have a 1879,. right, Constitution of adoption of the United States the Constitution the State is by prohibited their customers to.charge away, from impairing taking a com- fixed from time time be by as may prices two selected by of two company, mission made persons up if a fifth and, be, need of 'the authorities locality, by The the sheriff county.- four,- the other selected of this no character claims rights Valley Company Spring formed other every company not also claimed under'the same act.- all-the water must sell reasonable
That prices companies fixed and that consumers, prices are able to furnish for. they, as a commission of such time the.honest-judgment being reasona- be deemed must act, for -in 'was specially provided is denied. and the both ble, public, the. under the State, prohibitions
dispute *5 352 TERM,
Opinion Court. of the ÍJnited substitute for this com- States, the Constitution of the com- another, mission selected without co-operation character, other tribunal of a different like or some pany, authorities of the The Com- municipal locality. Spring "Valley that it under has, claims its the main- charter, pany right tenance of the commission which сreated was requisite in and the of this suit is to 1878, appointments object compel fill- board that commission supervisors perpetuate that exists in So its ing vacancy membership. whole here is as to of water controversy companies that availed act of 1858 to themselves of the privileges secure a virtual at a trade water monopoly particular place, for in to demand the of the commission appointment provided act, the Constitution 1879 legis- notwithstanding lation under it.
The is an artificial created Spring Talley Company being or under the of California. The authority legislature when State, first their people established they govern ment, terms that other provided than express corporations, for should not be formed municipal purposes, except at all laws, times to general alteration or subject repeal. reservation of alter power the charters of repeal corpora tions was for new, almost after the immediately judgment of this court in the Dartmouth Case (Dartmouth College v. 4 College Woodward, Wheat. States, them, 518), many charters acted on the. granting of Mr. Justice suggestion in his Story and inserted concurring opinion (p. 712), provisions which such retained. Even before authority expressly this decision it was intimated Judicial Court of Supreme ; Massachusetts in Wales v. 2 that such a Stetson, Mass. reservation would save to the In State of control.- California the Constitution this reservation into put every .and charter, was from the moment consequently of its creation subject alteration, and, legislative power if deemed of absolute as a expedient, extinguishment corporate body.
Water domesticjrses was difficult to be in some got parts of the State. amounts of were needed to secure Large money v. SCHOTTLER. WATER WORKS YALLEY SPRING of the Court. Opinion the inhabitants localities, a sufficient many supply *6 for such the act of a means of 1858 purposes combining capital had been enacted before statutes to was effect .Other passed. not the but it is said were such as a same they object, company San Francisco to was to with enough supply willing capital of 1858 was The act sufficiently favorable, thought accept. after under it, and the ex Company, organizing Spring Yallfey to the means amount money provide pended large the San Francisco is on which built, territory supplying it make to there. All this possible support great population was done the face of limitations of the Constitution on the ,a the of the to create private corporation-and power legislature not control, it the reach of as to its put beyond legislative only to-its and franchises. continued but as One existence, privileges assumed of the the was to sell water at obligations law for a reasonable and the commis provided prices, special what, to be deemed determine should reasonable both sion by the the but there is nowhere to be consumers company, found of even evidence contract willingness away another of the mode of power settling legislature prescribe In the same if should be considered desirable. .question whatever Fund 99 S. it was said that Cases, U. Sinking rules for of the affairs of a government corporation might have been the charter could after- when put into granted wards be established reserved by legislature power of amendment. before the Constitution 1879 Long statutes had been adopted California, many passed States and other requiring companies, gas companies, character to like their customers at companies supply prices to be fixed authorities of the and, municipal locality; as án we see no reason such a independent proposition, why is not within regulation scope unless legislative power, constitutional limitations or prohibited valid contract obli Whether or not is a gations. expedient question legis lature, the courts.
It is that' said, however, to fix appointing officers municipal prices between the seller and the is in effect’ buyers appointing elect the buyers themselves, officers, since buyers'
VAT. AT-93 TERM,
Opinion of the Court.
that this is a
violation
that no man shall
principle
be a
own
his
case. But the officers
judge
here selected are the
board of the
governing
municipality,
are to act in
they
their official
as such a board
capacity
when
performing
duty
which has been
them. Their
imposed upon
general duty is,
within
limit
of their
administer the local
powers, to
govern
and in so
ment,
that all
so conduct
doing
shall
them
provide
selves, and so use their own
as not
property,
unnecessarily
others.
injure
are elected
They
for that
people
purpose,
is within
whatever
just scope
purpose may
be’entrusted to them
properly
at the discretion of the legisla
ture.
it is
That
within the
government
regu
late the
at which water
prices
shall be sold
one who
enjoys
a virtual
we do
monopoly
sale,
not doubt. That ques
tion is settled
what
was decided on full consideration in
*7
Illinois,
Munn v.
But it is that as the laws argued fixing formation water companies, рrovided authorities, not accepted rates were. municipal 1858, pro- without Valley Spring Company, with contracted it inferred that the State is to be was, vision, authori- of such this not to it to judgment subject were If the interests. so vital to its question ties in a matter have but force, this one of construction might only, argument action. as to now is legislative power, legislative dispute one in 1849 prohibited The Constitution of California adopted succeeding power away legislature bargaining from to-, of a the affairs control the administration legislatures Of the State. the laws formed private corporation had Company Valley disability Spring legislative act of notice when privileges accepted its' its it must be to have built works expended presumed nor in the that neither a succeeding legislature, moneys hope a Consti- in their when framing collective people capacity, the old mode deem it to return tution, would ever expedient if so, to do rates, rather than on want power fixing the buyer found The is not between desirable. here question one of the State and the seller as to but between prices, have been as to what corporations privileges corporate is no doubt charters to amend granted. corporate are the amendments one that bad men but when abuse, *8 interfere with cannot the courts within scope power, invested'with been that have the'discretion legislatures to make them. aúthority not a
The Company organization Valley Spring as and the between the State company business arrangement do a new the creation of corporation but contracting parties, natural business the State and to be persons within governed char- are the be. Neither or other were or might corporations to be under law tered rights acquired TERM, Dissenting Opinion: Field, J.
looked as contracts with the city county San The Francisco. was created corporation State. All its came from the State and none from the powers or county. it can contract with the corporation As but law, allowed its way any powers obligations, except those which out of contracts grow made, lawfully depend alone n on the statute under it which was and such organized, altera- tions and amendments thereof as from time may, time, made by proper authority. can- rates fixing statute, not be from the remainder of the separated by calling it a' contract. It was a condition attached to the franchises on formed under conferred corporation statute and connected with reserved indissolubly alteration and repeal.
It follows court below was refusing award the Writ mandamus which was and its prayed, judg- ment to that effect is
Affirmed. Me. Justice Field, dissenting. I am not able to concur with the court in its decision, nor :
can assent to the reasons for it. It seems to assigned I. me . goes all beyond former adjudications sanctioning .legislation of contracts impairing made obligation . State with declares, corporations. effect, that Avhenever (cid:127)a is created with the reservation that the legisla- alter ture or may or charter, under a repeal law or Consti- tution which such a reservation of no imposes power, contract can be made between it and the State, which shall bind the State any than she longer choose to be may bound;' that she provide that certain may shall be secured, that cer- rights tain payments shall be made in consideration work to be performed be advanced to. capital created by corporation \yhen her laws; the work is done and the capital is i she expended, her legally, repudiate constitutionally, In pledges. other words, the decision to me to seems sanction the doctrine, that a contract a State and .between a corpora- tion, created with the only mentioned, reservation binding *9 SCHOTTLER. WORKS v. WATER VALLEY SPRING Opinion: Field, Dissenting J. I endeavor to stow that this doc- stall the corporation.
upon in case, in this and all others unsound, trine is believing ' work asserted, will injustice. where it California, 14th, 1853, of law passed April aBy general of for man- made for the formation corporations was or and chemical for mechanical, purposes, mining, ufacturing, trade or commerce, in of any species engaging purpose of ' . or more It enacted that three domestic. persons, or foreign men- desired to form a. any purposes who before some and make, should acknowledge, tioned, sign, n of deeds, a to take the officer acknowledgments competent name,of ob- certificate company, stating corporate . the time formation, stock, the amount of its its capital jects num- exceed which"could not existence, fifty of its yearn, number of was to consist, of which the stock ber of shares their, should the concerns names, who trustees manage n first three and the name of the months, for the the company which the of busi- town, county principal place city, was to be and file the certificate located, ness of the company of the clerk in the office county principal such un- located, thereof, was certified business copy place clerk and seal of the Court, der the hand County and that State; cer- of the'Secretary upon filing office it, their tificate,, signing acknowledging persons name should successors, body politic corporate certificate, have succession for the in the period stated also, such as are conferred usually limited, powers bodies. corporate 1855, act of and an act, amendatory corporations Under n the inhabitants of
were formed purpose supplying of San Francisco with fresh water. pure, .and in some whether Doubts were expressed quarters sup however trade or the water com engaging species plying of those acts. merce v. Blake, meaning Heyneman within-the the 22d of 19 Cal. on Accordingly, April, gen 579. for. eral law was passed! incorporation companies, of 1853, which referred the act and of the provisions act of and declared that should 1855; amendatory they apply TERM, .358 to all formed or that corporations, afterwards already might *10 be formed under mid for the of acts, supplying purpose any and or Or the or the city county, towns, State, cities inhabitants On the thereof, with fresh water. pure, following' 23d, another which author- day, 1858, act-was April passed, ized H. the and other owners of George Ensign Spring Talley Works to Water down water the streets of lay pipes public the and of On the 19th Francisco. of city June, county San the 1858, as a plaintiff organized corporation, referring its certificate to these last as the acts; two but act special to and others was declared un- relating Ensign subsequently State, constitutional Court of the the incor- Supreme of the of the act 22d, 1858, poration rests'upon April or rather acts 1854 and of to refers. upon act of 1858 thus This formed the gave corporation or to and take and of, use and purchase appropriate possession hold all such lands and waters as be for the might required of the there- purposes company,-upon making compensation ; reservoirs, with that all however, canals, for ditches, proviso, and conduits constructed aqueducts, pipes, corporation, be used should for the exclusively purpose supplying and and the inhabitants thereof with fresh county city pure, wnter. for the of the
Having .provided incorporation company, of 1858- act the terms which water proceeded prescribe be should to the and and to their inhabit- supplied "city county, and the which the ants, should receive compensation company therefor. It declared that the should furnish pure, to the fresh water inhabitants for so uses, as the' family long at reasonable and without rates, distinction supply permitted, and therefor,, demand should furnish persons, upon proper water, to the extent of to the and “in its.means, city county,- case of fire or other free of The act great necessity, charge.” the rates for further water should declared charged a board to be commissioners, be determined selected -by as. two authorities, follows: two city county not and in case the four could the wаter company; agree fifth. choose a the four should then, case, valuation, WORKS SCHOTTLER. VALLEY WATER v. SPRING Field, J. a member if board; become be should person, fifth, then the could agree upon four commissioners and that the him; decision should appoint sheriff determine' rates to be the board should aof majority until rates should be new for one for water year, charged that, declared the board act also super- established. other rules proper relating visors might prescribe a,nd not inconsistent-with laws act water, delivery that the should ; of the State and and Constitution the reasonable direction of the city have the subject right, manner to use it, the mode and as to exercising authorities streets, ways, alleys county, much of so road therein, necessary laying might or of water into county, through conducting pipes thereof. any part *11 declared that certificate of plaintiff
The incorporation to intro- was formed were company objects and of San Fran- into the county fresh water city duce pure, from thereof, any point place, and into cisco, any part the inhabitants and city county supplying purpose transact, all such and to do and business same, with the relating and inconsistent with necessary thereto as proper, might of the State. and Constitution the laws not be obtained1from of water could
The necessary supply on the natural streams lakes peninsula, upon upper A and are small lake of which the situated. end city and inferior furnished an insufficient near supply city after its therefore, The soon incorporation, company, quality. in artificial reser to collect the undertook required quantity iñ rain from the heavens. as descended voirs, - from thе there is At a distance of about miles city, twenty (cid:127) near the ocean mountains a natural ravine between the lying The com- Francisco. and the hills of San Bay bordering its sides, and on this ravine the lands within pany acquired counsel, to thousand as eighteen- represented by amounting, distances in it walls and erected acres, long apart,. heavy col- into which the water was reservoirs, thus great making several miles lected until lakes were formed length-. extending OCTOBER TERM, 1883. Dissenting Opinion: and With other conduits pipes, aqueducts, thus collected carried to the was city distributed in mains. is said the cost of these works to the amounted company fifteen millions of dollars. nearly Before their construction and the introduction of this water, inhabitants of the city were poorly .inadequately With the supplied. completion of the works of the all this was Water changed. to all furnished for it persons at their calling houses, and if every desired in and to the room-; in abundance city for all its needs.. stated, required to fur- law.-of
nish water,' extent of its -to the means, county, “ in case of fire or other great free necessity, This charge.” had been construed Court of Supreme -the State to also to require furnish, without- charge, water to the streets of the sprinkle to flush its city, sewers, and to irrigate Its effects will squares parks. only partially those appreciated who from judge merely and the fact that the city, size residences are chiefly constructed of wood. There are other uses for a much larger of water. The is situated at supply end of a upper width whose a little (cid:127)peninsula over six only miles. The land consists there aof succession of sand principally hills, breezes of the' ocean dally the sand in keep almost, constant motion, where has fixed except vegetation its roots. For this water is essential. vegetation it, With every. plant will even in the thrive, sand, shrubs trees will grow luxuriance. The of Water great absence from them for évén a,few months will cause the *12 and shrubs to plants wither, droop, are perish. public squares numerous, city “ the Golden Gate .park Park,” because it is near —termed ” the entrance of the termed bay the Golden Gate n “ ' —covers more than a mile of thése Sand square -hills. On these and this the constant .squares park, use of water from réServ-oirs the is-necessary keep grasses, t.o and shrubs alive. Yet all Water plants, needed for these pur- in is, law poses' furnished by-the question, without charge. That one. the burdens imposed plaintiff, SPRING VALLEY WATER WORKS v. SCHOTTLER. 361
Dissenting Opinion: addition to tbe requirement that its works, costly consisting aqueducts extending nearly miles thirty out city, mains within it one exceeding hundred miles, should used for the exclusively purpose supplying county , with water. The reasonable rates allowed for the water furnished to the inhabitants of the county constituted the only compensation of the for the enormous out- to which it lay was necessarily subjected, and for all the bene- fits it undertook to confer. The law in that a com- declaring pany formed under it should water to supply the city and cases of great free of necessity and to charge, their inhabitants on demand at reasonable rates, effect declared that the company with such complying terms should receive those rates for water thus supplied the inhabitants. When, therefore, the plaintiff organized under the law introduced the water, a contract was completed between it on the one part and the State on the other, that so as it long existed and furnished the water as it should required receive this compen- sation. The provision for the creation of an impartial tribunal to determine each year what rates should be deemed reason- able, was the life of very stipulation a reasonable com- pensation. would not have done to leave the compens,ation to be fixed company alone, as it thus might make its charges exorbitant; it would not have done to leave the rate to be fixed city authorities alone, as would they be con- under a stantly great pressure reduce the rates below re- munerative prices, the representatives of the itself city, large consumer for public and as buildings, representatives of individual consumers, by whom they were elected and to whom were they to look for the approval their acts, and because the individuals those composing authorities would also be con- sumers of the water with equally their constituents. It was, therefore, provided that the rates should be fixed com- missioners, to be selected as stated above. It would be difficult conceive a tribunal fairer organization, more likely to act justly wisely both parties, guard equally against extortion in on the prices one hand and their unjust reduction on other. Such a *13 TERM, 1883.
362 Field, Dissenting Opinion: J. time, time to reasonable rates from and, formed
tribunal was it. But in established people for water were declared that the Constitution, which formed a new California that thereafter be or then might all use of water aрpropriated, use, was a distribution, or rental, sale, public appropriated, and in and control State to regulation, subject the rates or law; to be compensa- manner prescribed or be collected by any person, company, tion to to its to or any city county, usé of water for the Supplied fixedi the board of be annually should inhabitants, super- other county, body governing visors city tljLe in the manner that other otherwise, ordinance same, by acts or resolutions are such ordinances or passed legislative continue, in and no force for one year longer; and should body, should resolutions ordinances or that such passed first of each take effect on the month of February year, And it further declared thereafter. any day July or reso- to ordinances necessary board or pass body failing time, within such rates, when necessary, lutions fixing to action at process compel should subject peremptory of-, should, interested, and be liable the suit any party as the further penalties legislature might pre- processes dr and' that ; any corporation collect- person, company, scribe .than as So- and. otherwise water rates city county, ing' and water works should- forfeit franchises established, for, same are collected, where and .county sec. use.' (Art./.XIV., 1.) the board of commis-
In July, vacancy occurred authorities, the' after the sioners, wnich city- adoption n refused to Constitution, that,.under'its new fill,'contending rates. The were fix the water they provisions, authorized them and com- was to compel present proceeding proceed Constitution, is whether that board.; plete quеstion and. in the the entire board of vesting supervisors —the Francisco— San authority county, governing State, between the contract company, impairs- There federal Constitution. prohibition .Within in water, no the continuance of a of- virtual question monopoly SPRING VALLEY WATER WORKS v. SCHOTTLER. 363 *14 as the court. There is by supposed to a nothing mo- relating in the case. five or' more nopoly Any persons California can, form time, themselves into a any bring water into the of San city Francisco on the same terms with the and such new plaintiff; corporation can,- the same form reservoirs in in the hills way, and collect the.ravines water for sale, from the mountain bring lakes. Until within a few three or more could years any form persons The statement corporation. that the ahas monop- kind in oly water, desires to secure forever certain must therefore be taken as one charges, made, inadvertently due (cid:127)without consideration of the facts. The contention only in the case whether is, the clause the new Constitution abro- the gating stipulation reasonable rates to be established by a commission created ás is a valid mentioned, exercise power the State. by That the of the law of provision that making stipula- State, was a
tion, contract between part thé and the is not denied nor it company, by court; is denied that it “ ” also a was contract that the part reasonable rates should be determined by commissioners But designated. I if taken, understand it, is, that position provision their is that the rates only shall be appointment established by not an tribunal, one impartial necessarily created there by -and that the State has a prescribеd; determine what tribunal shall be deemed an. one,-and, the four- impartial article of the teenth new Constitution, has done so and made board of that and that supervisors tribunal; this action within reserved act of incor- ,original poration.-
Of all course view substance and destroys value of the. for reasonable rates and it stipulation delu- renders utterly sive. of very creation of the object tribunal desig- nated the law of 1858 was to take the establishment of the from the rates authorities, it who, was believed as it then, is known would be now, influenced controlled their relation as of the consumers representatives whom are they fact, as well as elected, individual members ' TERM, those authorities would be themselves consumers.
composing for the that the Admitting argument meaning shall an tribunal, have only impartial the one created as seems to not it me necessarily designated, that such new tribunal cannot to be consist plain authorities, exclusive control the con- whose against original tract of rates Placing expressly stipulated. regulation another tribunal with them is furnishing equally impartial From the with the one mentioned. nature of its creation very its relation to board an elective others, supervisors, cannot be however honorable tribunal, No body, impartial. the character of the be, is, high persons composing are can in a Avhen individ- be, sense, legal they impartial, itself, and the tribunal in its interested, ually *15 representative is interested in the determination to be made. character, It need be said that it is an hardly elementary principle man in natural that no shall sit where he is justice judgment no matter how his interested, unimpeachable personal integ- is not limited to cases The in the ordi- rity. principle arising in courts of law the administration of nary but regular justice, extends to all cases where a tribunal of kind is established to decide of different upon parties. rights In 12 London v. it City Wood, Modern, 669, was held by Bench in that an action the names of the King’s mayor of London could not be and.commonalty before the brought court held and said Chief mayor aldermen; for, Justice “it is all that Holt, laws the same against should be person ” in the same party cause; and judge that the.objection Lord as head Mayor, acted in his corporation, in his natural political capacity he an- judged capacity, “ It is true in swered acts different he capacities, yet per- son is the same, difference in which capacities acts does not he make a which would difference,” remove the disqualification.
The true doctrine on this is stated with clear subject great ness Court of Massachusetts in the recent Supreme cases 105 Hall v. Mass 219, where held Thayer, was that the interest probate judge disqualified personal VALLEY WATER v. SPRING WORKS SCHOTTLER. administrator of the bis wife’s brother estate of a appoint her father was deceased of which creditor. principal person of article 29 of the Declaration of Referring provision “ that it is the citizen to of that State, every Rights a,s fair, tried as the impartial independent judges the court lot of will said: admit,” humanity “The rests so and so provision principle obviously just for the of the citizen protection against necessary injustice it, no but it must be argument necessary accepted sustain an inca- truth. which it elementary impartiality requires one to act as a matter in he has pacitates which judge any pe- or in interest, his near is one which relative or connection cuniary causes, to civil as well as criminal parties. applies of courts of common law only judges equity but to tribunals and to authorized on persons probate, special special occasion to decide between to their parties respect rights." after had to several decisions where [And, referring principle been the court “These decisions applied, : show said] is to have it is construction, no technical or strict but to be to all classes of one is broadly cases where applied ap- to decide the of his pointed fellow-citizens.” rights I admit that tri- the interest which'will disqualify special from bunal in a matter acting affecting conflicting rights either in its mem- be a ‘direct interest parties pecuniary must be in- it, bers or may, persons represented creased or the determination reached. Such is diminished by *16 of of the condition of the board the supervisors precise to of Francisco with be respect prices San the The for furnished consumers the water plaintiff. paid few where a well of the with constitute, water exceptions may of that been sunk, district, have the entire including people all, are therefore, the themselves, they directly supervisors to to If the board were seek to interested reduce its price. a new or to erect street, land whereon to acquire open public no one that the which Avould compensation pretend buildings, the be make to could be fixed owner, Avould necessary or it should It would board, whom by appraisers appoint. TERM, 1883. 366 Field, J. on the and, therefore, an interested that party, on subject in the matter could not act where stated, .the already prinóiple concerned. others were of rights a héld of law of The Court Wisconsin Supreme cor-, council of a the common void authorized municipal which to the owner of to assess jurors damages poration appoint of oth- of the uses taken city, place public a of the for that ers judge purpose by previously appointed had or refused but who Court, Circuit or County neglected serve. “ “
(cid:127) of selected court, A said the all jurors even majority,” refuse to to establish the taking property, necessity casé the common act in the amount which fixing damages, which council, jury one of the parte, may appoint ex parties, It is must pay. shall determine the amount damages in a manner sucli provision to comment impossible upon proper fairness, our justice, right.” which confounds all notions City, Lumsden Milwaukee Wis. v. (cid:127) desire to should of land per- acquire
If instead board for the buildings city, paving sonal property —fuel for its fire streets, department, any its engines material for one would needs—no pretend, independ- other property there would jus- any on subject, law ently alone to determine body tice or fairness allowing to be paid. price said, as have great I be, .pressure,
There will always regulate the it to price the board by people electing to that interest, company. without regard their mem- thus exerted judgment to Warp influence from that of an of the body the character bers and change (cid:127) of its constitu- in the interest to one tribunal acting impartial would man with dealing ents, practical every All the influences usually brought and act upon. appreciate will of those who carry secure choice at elections to bear to see should voters, applied we expect out the Wishes fix thus candidates empowered election to secure*the And the' consume. voters daily of the article price *17 WORKS, SPRING VALLEY WATER v. SCHOTTLER. 36? Meld, DissentingOpinion: J. n
what we thus has occurred at election might expect every A was new Constitution went into effect. suit since Circuit Court recently brought United States for the District of California mayor against of San Francisco to of an supervisors passage enjoin then ordinance, fix the of its water under this proposed, price new Constitution. other reasons con- Among urged upon of the court was the fact the mayor super- sideration visors, before had election, themselves to make 'a pledged material reduction in the if carried com- rates, which, out, the contended would be destructive of interests. The pany fact that such controverted, were made but pledges the court answered that all, If it be at under the competent question, “ in: San Francisco their people through representatives
board ordinance, it is supervisors pass proposed difficult around for perceive why, looking agents representatives out their will, it is unlawful carry to ask advance whether them those will seeking represent their command in these obey or to particulars, to that effect before require pledge committing n „ . the trust to them.” . And in the same case the court referred to the clause in the new Constitution declaring any corporation collecting water rates in any city otherwise than as established county the board of district, should supervisors forfeit its franchises and water works to the for the use and said:' public, “ It would seem to' be . only to make brief state- necessary ment the case to enable one of ordinary intelligence, endowed awith reasonable share of moral sense, to the monstrous perceive of thus injustice placing investments large of complainant, made under the stimulus of the inducement held out the act by. at the absolute of an mercy senti- irresponsible public ment, or of This last cupidity. seem to provision would offer a large premium of a perpetration wrong large—a inducement to the purchaser to fix the un- (the price consumer) rates, remunerative in order to secure for- large property by TERM, *18 diminish its value as confiscation, and or to so to
feiture largely It far its real value. was force a sale to the at below price of denied, to be matter in the and alleged argument, are authorized to take of which we history public notoriety, notice, that been avowed such have designs openly publicly speakers.” and advocated by public con- man, difficult to how carefully is understand just It any that the can hold board stated, has been thus what sidering 1858 as- tribunal as the law constitutes an impartial for its an inducement the as large expenditures, sured plaintiff, rates are reasonable. have to determine what it should always the sub- done to by plaintiff The wrong injustice great its it shall receive the the determination of rates jecting interested thus tribunal deeply judgment property them an to reduce exacting it, by impelled against court to are declared by constituency, constantly pressing State, and in law and Constitution be by justified Consti- federal contract clause forbidden no way the observance to insure good tution which was designed Au- State action. in the against parties faith stipulation of the contract rights to with and interfere destroy thority reserved stated, power is claimed, already plaintiff alter time, force Constitution, to the State was incorpo- to which plaintiff the law pursuant repeal interest from public asserted is also rated. Such authority of the in the use to have acquired the State is which alleged furnished plaintiff. words a few say. I have each these grounds Upon of them in the first referred Constitution clause State these words: laws, shall not but under general formed bemay Corporations “ All municipal purposes. act, except created special section pursuant acts- passed and special laws general or repealed.”' to time from time be altered to alter repeal thus reserved . is contended incorporated, law, under the general n VALLEY WATER SPRING WORKS v. SCHOTTLER. 369 oyer to' authorized the State exercise control the busi- greater ness and than it could have exercised over like business of natural that as the property, persons; law would an end to the repeal general put corporation, the State could the conditions of its continued exist- prescribe could ence, and, therefore, restrictions legitimately impose and limitations, however burdensome, upon subsequent and use of its possession property, require with' there seems to an Indeed, comрly them- impres- sion in the minds of from the counsel, and, not infre- language used some in their minds also, the res- quently judges, ervation charters and in laws corporations authorizing the formation of of a to alter or corporations, repeal *19 such- charters or laws, as a to the State and to operates gift of uncontrolled over the legislature authority business And no doctrine is more property -corporations. yet unfounded in or less When principle by .. supported authority. carried out in it is destructive of all of practice, utterly rights of bodies. Those wbo entertain it oVerlook property corporate the occasion tq which led of the clause adoption containing and the it reservation, Avas object designed accomplish. court, in the
When this Dartmouth case, decided College a of that the charter Avasa contract be- private corporation and the Avithin tween State therefore corporators, the inhibition of -the federal of Constitution protection against State it of contracts Avas legislation, suggested 'impairment Avho in the concurred .that this unal- decision, Story, by Judge terable and character of the contract be irrepealable might in the avoided a reservation charter. power original said, he “In “it is clear perfectly act my judgment,” or of a takes franchises vested Avhich legislature away any powers in officers, its charter or its or corporate private corporation them, restrains or controls the exercise of or which legitimate assent, transfers them to other without its is a violation persons that charter. If the meаn to obligation legislature in claim such an it must reserved authority, grant.' charter contains no such I College reservation, of Dartmouth
vol. cx—24 TERM,
370 1883. bound to declare that the acts of therefore, ám, legislature pow do question impair of that obligation New Hampshire charter, are consequently unconstitutional void.” Wheat. his he refers to an decision
In opinion early another part Massachusetts, which had Court declared of the Supreme in a could vested not be legally rights ‘ n ' n unlessa statute, subsequent dr destroyed controlled reserved to the the aot legislature that purpose power for 4 "Wheat. 708. incorporation.” the decision in the character Dart- "When general the States acted known, became very case gen- mouth College and few charters Story, Judge the suggestion erally upon without a clause reserving granted were subsequently n legislature In or them. some in- to alter repeal that all enacted, corpora- was declaring law stances general to this should be reserved subject created tions subsequently a new Constitution where was cases, some (cid:127)power; was inserted. a clause of similar a State, import adopted form in whatever was reservation, expressed, The object control over franchises, corporate to the State to preserve in her which, sovereign legislative and privileges rights, existence; into other to en- words, called had she (cid:127)capacity, that which she had created. to annul modify her able with contracts' interfere which the corpo- not its object make, nor with the created, might once when ration, acquire. might *20 in Tomlinson v. of our is the Jessup, Such language . purport of the reservation to we stated the where object 15 Wall. n “ - and in a rights privileges corporate gra/nt prevent interference with their will legislative form which preclude time, should, interest any if the exercise, require ” and that interference; “ relation between the entire State The reservation affects under, all control legislative rights, and and the places corporation, charter, derived, directly immunities and privileges, from the State.” v. SCHOTTLER. WORKS WATER 371; VALLEY
SPRING
Opinion:
Dissenting
(cid:127)
v)
where á law
containing the reserva that by the same thing; substantially expressed act of alter the incorpora-. retains tion the State power “ it of corporate constituting grant tion in all particulars ” “ the existence that immunities a/nd j rights, privileges, immunities, derived its franchises of the corporation from, add control, under her are thus State,” kept directly “ the com interests acquired however, rights ing, of the contract á incorporation, not part constituting pany, a different stand footing.” contract only the reservation
As thus seen, applies existence, franchises, privi- corporate incorporation, else, With respect everything State.. granted leges not had without would State no .have power gives never, State to that which the it cannot it. Necessarily apply It could not leaves therefore, created, and, or grant. possessed where exactly its business they property, corporation, in the Dart- held, Court had been, would have Supreme not contracts are within the that charters case, mouth College constitutional legislative impairment. against prohibition more; and doctrine accomplished beyond nothing going would subversive of the which security property the se- and in the end Would held, corporations destroy of all created Behind the artificial curity private body rights. who stand the natural legislature corporators, persons, have their united their means to an object beyond accomplish, under the entitled, individual are much resources, .who as. to be secured Constitution, guaranties possession and use of their had asso- thus held as before they ciated themselves Whatever together. State over in their creation or possess corporations passing altered, the laws are formed and amending they it cannot the Federal withdraw them from the guarantees Constitution. As I said on another occasion:
“The State cannot the condition that impose shall resort to the courts of for the redress of law injuries *21 TERM, 372 Dissenting Opinion: its protection ; when in property court, that it [or shall be to different rules subjected of evidence and be required to prove two witnesses what individuals establish may one ;] that it shall make no if its complaint are goods plundered and its prem- ; ises invaded that it shall ask no if its indemnity lands be seized use, or be taken without due process of law, or that it shall submit without objection to unequal and oppressive burdens arbitrarily imposed it; that, in upon other words, towards it and its property State exercise may unlimited and irresponsible Whatever the power. State do even may with the creations of will, its own must do subordination to the inhibitions of the It, Federal Constitution. confer may its general laws upon- certain corporations capacities of business, and doing of having succession in perpetual its members. It may make its grant in these revocable respects ; it pleasure make it subject to ; it modifications may impose conditions upon use, and reserve right these change at will. But whatever property acquires the exercise of the capacities conferred, it holds under the same guarantees which protect the property individuals from It cannot be spoliation. taken public use without ; it cannot compensation be taken without due process ; law nor can it be subjected burdens different from those laid upon of individuals under like circumstances.” In Detroit Howell Plank Road v. 43 Company, Mich. 140, Court of Supreme Michigan, this sub considering similar uses ject, Mr. language. Justice Speaking by Cooley, it said: “ But for the Constitution of the United States which forbids impairing obligation contracts, the amend and repeal corporate charters would be ample without be- ing expressly reserved. The reservation leaves right State where any be, would if sovereignty unrestrained by express constitutional limitations and with the it would powers then pos- sess. therefore, might, do it what would be admissible for any constitutional government to do when not restrained, thus but it could do not what would inconsistent with constitutional prin- ciples. And. it cannot be at this to enter day necessary discussion denial of the government take from SCHOTTLER. v. WATER WORKS VALLEY SPRING Field, J. *22 which they may any property or corporations individuals either times such an arbitrary most In the have acquired. rightfully been forbidden in it has as pure tyranny, act recognized was country always. Gharta, and Magna since ever England lawfully acquired, the way property in what It is immaterial or de- life, by gift of vocations ordinary labor in the b.y whether the by granted of a franchise use profitable or scent, making by and it is property, has private it become that State; it is enough ‘ land.’ of the law the by then protected us it case before will seen the to these views Applying with State, respect the asserted by the right cannot be Water Company, up- the Valley of Spring property to form right to certain State parties gave held. of conveying purpose into that corporation themselves Francisco. of San and county to city fresh water pure which that water is the reservoirs to them by did not grant aoueducts which by to them it not did ; grant accumulated did it not to county; is carried to city grant the water is distributed which through them the by pipes of the water for the conveyance facilities it only gave city; It could not, therefore, for its distribution. over appropriate reserved corporation, mains com- without making reservoirs, these aqueducts, them, could it divert like nor .them; except upon pensation constructed, were for which they from terms, purposes salt instead fresh with the supplying to other uses. them or oil, devote with or water, gas It was company. is the itself property The water lake'; nor from stream; nor from any a running from taken that it alone could had assert source where government the com- It was collected use it. to control the right Whatever the heavens. from it descended as pany waters, toas the ownership running differences opinion has never lakes, or of it been streams, waters of navigable from the individual collected agency, that water doubted reservoirs, barrels, or inor house, hogsheads, of one’s roof property as much clouds, private from as it descends TERM, Z: else that is reduced to which other- anything possession, to the uses of man. would be lost it is Indeed, wise a gen- both natural and law, eral where principle positive, animate or could inanimate, otherwise not be subject, man, under the control or use of is reduced to such brought or use individual labor a in it is right property control such labor. The wild bird the air acquired belongs but when the fowler one, no it to the earth and it takes brings into his it is his has it reduced to his He possession property. his and the law of nature and labor, control own the law of his exclusive to it. The' at the society recognize pearl bottom of the sea no but the diver who enters one, belongs in the the waters and has He brings light gem. *23 reduced it to in all labor, his own and com- has,, by possession, all law his to munities it is So the by right recognized. on the and the hunter the north have a trapper plains in the furs have animals property they gathered, though from which were taken roamed at to they large belonged no one. have added their labor to uses of They by .man án article his comfort which, without labor, promoting would have been lost to him. have a to They therefore, right, furs, court in Christendom maintain it. every would So when fisherman his fish net from the he sea, drags by has a in them, which no one property despoil permitted him. It was with that this court, this conformity principle in Atchison v. Peterson, 20 Wall., 507, 512, in speaking lands made free for general occupation public mining, and the of the first of lands rights appropriator containing ' said that mines,
“ He who first connects his own thus situ- labor with property open ate^, general does, in natural exploration, justice, a better to its acquire right use.and than others who enjoyment have not given labor. the miners, So on lands the Pacific throughout States and Territories, customs, their usages, regulations, everywhere the inherent recognize justice of this and the principle, itself was, at an principle day, early recognized by legislation enforced of those courts States and Territories.”
SPRING YALLEY WATER WORKS v. SCHOTTLER. n 'of San When the water to Fran- plaintiff brought it had' a sell the at such reasonable cisco, prices as it could as it have sold or fruit, or obtain, might grain, to market. coal, had those articles If the State brought could interfere and insist that such reasonable prices should than the other determined by authority company, authority must other than that also have been of the consumers or of their Of the limitations the State agents. power óf its and for what contract, respect, independently, compensa- tion it can its sell I shall compel property, hereafter It is sufficientat that the speak. present say reserved over the act of the State no control incorporation gave (cid:127) over such which it did not without the compensation possess reservation. Its control here is limited stipulations oh the contract with can, company. legislature the act under course, which plaintiff repeal incorporated, existence, an end to its but so thus .put corporate long contract remains remains the with all bind- the corporation force. ing and the the State
The contract corporators, between is not to be cоnfounded with became corporation, and the the State when created. the contract between are contained in the same law, contracts the two they Although from each if and distinct other as are to be treated as separate statutes; Private different were embraced in corporations, they can be California, only the Constitution formed *24 law of that but all that is embraced laws; by general general in- the contract of character be part may necessarily into a themselves body corporate parties forming corporation no to cor- under it. It refer matters relation having may oh, rules of forms of evidence, such as bodies, procedure, porate and it contain contracts for descent of specific property; created. No con- work greater legislative by corporation would result from their association in trol matters over such authorized the formation of the the same law which corpora- If, than if were contained acts. tion, they separate had been incorporated example, plaintiff' bring instead of from of San- its res- Francisco, TERM, from its ervoirs, and tbe act had granite quarries, that, provided should it it sell to individuals at a having brought granite, cubic foot for and to sidewalks, designated per paving price for the construction of a court or a room, the'city hall; it be would virtue its reserved by over pretended power the State could the sale and corporation compel delivery at a different ? The natural and granite price answer just would be that the contract with the for the corporation pur- chase of the is a different matter from the contract granite by which the became a and would the corporators corporation; answer be less if the contract had just perfect stipulated that the of the stone should be fixed a commission price stone-cutters, familiar with the value of the material? parties The different mode of would work no reaching price change in the force of the contract. binding that the had been
Again, suppose with incorporated to loan under an act it to power money make a loan requiring at interest, rate specified acting upon it had made a loan for authority, could years rate, virtue of State, reserved over the corporation it created, a less compel receive rate of interest than that and make further loans stipulated, at-such reduced rates ? The obvious answer to such a would question be that the contract authorized the law was not the contract which the lender became a and it is corporation, to the latter alone that reserved power applies. Would make difference if. the contract had stipulated the interest should be annually fixed Secretary Treasury, a. commission ap him ? The pointed by Of mode the rate of reaching interest , would not affect the binding'character contract. The cases thus in no supposed differ in from respect the one principle us. before If the contract in this case cannot- be upheld, contracts those could not be. no Indeed, contract between the State and a created Avith the reservation men tioned could bind State, term of though every obligation of honor every pledge could should language express be embodied in it. that it be, must competence within the of the sovereign *25 YALLEY SPRING WATER WORKS v. SCHOTTLER. SW Field, J. of a State to make a which it cannot break. As bargain this one of the observed counsel who distinguished argued notion of the existence of a case, State—and it very ,a does not constitutional for that —is require that, it has a make a business ar- body, being political right awith or rangement about particular party, corporate personal, shall which bind both. And in particular thing, my judgment it is of the court, when such an plain duty arrangement comes for to assert its consideration, up character and, binding so far as bold the to it. practicable, parties
I to consider the proceed of California position public had such an interest the water of the acquired as to authorize the State to fix the rates at it which shall be sold. The new Constitution in' declares its fourteenth article that the use of all water for sale, rental, distribution appropriated use, to the public control of subject regulation State. I do not declaration the State suppose intended to take of or an interest in assert all possession water within its limits sale, rental, for or distribu- appropriated without tion, regard who rights individuals have collected it in reservoirs, or stored it other to enable ways them to A of it dispose enforce advantageously. proceeding such a declaration would be to constitutional open objections for against use without com- taking private property public to the owners. The pensation constitutional object qs I declaration, understand it, was to such a control assert the State over the sale and distribution of water as prevent it from diverted those had who being appropriated, might' it, from the uses of the or from appropriate necessary public, held at no To such a declaration one being extravagant prices. can and if carried out with the observance of reasonably object, the rules which in other cases where govern private property is taken for no can be raised use, obstacle to its en- public legal forcement.
The to take use is inherent private property in all declaration no constitutional governments. requires it con- recognition; appertains sovereignty. ditions shall be exercised are the matters only TERM,
Dissenting Opinion: *26 constitutional and those requiring conditions are guarantees, shall be made to the just owner of the compensation property, and that this shall be ascertained an compensation impartial tribunal. A with these compliance conditions is essential, with- out which the of the would be a mere talcing exercise property of as arbitrary power recognized legitimate by any principles in the of this obtaining State or government federal. country, When the use' is within public certain limits, State —and determine that it is may which the State any property so— deem that use it for necessary The may appropriate. necessity of the is not a expediency matter for appropriation judicial The water inquiry. to a and its pure inhabi- supplying tants is a matter of concern. public of water held taking for that by private parties an of it purpose’is appropriation for use; same conditions public for its lawful appropria- tion must be followed as when of a different property character is thus taken. There must be the for it to just compensation owner, tribunal to its value and impartial appraise determine the amount of the In Gardner v. The compensation. Trustees 2 Johns. Village Ch. Newburg, 162, Chan- Kent held cellor that the owner of land over which a stream of water ran had a to the use of the legal right water, which he could not be consent his without deprived against just compen- sation for it. statute of New York A had authorized the trustees of inhabitants with supply water, and village from chancellor them for that diverting enjoined purpose of a water stream which ran. land, through plaintiff’s because the no for statute had made provision compensation for it. What .to is the decision, gives special significance fact that the at that Constitution of New time York contained no as is found in all State Constitutions since provision, use for without' adopted, against taking private public property The chancellor compensation. showed that oh princi- general ples all justice free recognized by governments, of eminent such a writings for jurists, compensation an is ex-, attendant on the due and indispensable constitutional ercise an individual of his depriving property. (cid:127) , And he said that ' 379 WATER WORKS v. SCHOTTLER. VALLEY SPRING Field, J. “ soil over as sacred as is water to stream A right n can no man freehold of which It is part it flows. which due his proc- but lawful judgment peers, disseized be of law.” ess the State taken public purposes cannot
If of a the land private party through a stream running from the water collected to him, surely without' just compensation as it descends from lands on the in reservoirs com- like uses without cannot taken heavens stated, as collected, already thus The water pensation. is as its title perfect to which of the plaintiff, It is constructed. it has the reservoirs aqueducts *27 and of and county, the the use of use; city for taken public the with were If dealing inhabitants. their deliver to alone, were and county compelled or city or accord- or hogshead, gallon at a price per Water prescribed be no there could measurement, mode of other to some ing be case of private it would a prop- that appropriating question all of the .transaction at Is character use. to erty public in to the is to be. delivered the water part because changed and that consumers, to in individual part county, take ? for what they to make are compensation latter required for use of the same public There is the appropriation property in as and it is for other, case in the one protection that his be that he -property, owner, despoiled to It matters not constitutional adopted.' guaranty law delivery property, whom the may compel to one or if it is public whether to many, appropriated qse. the city for the cannot required Water purposes applied without consumed. inhabitants, being and county by their to compen- with respect regulating that So language employed character, of a durable for the use of articles sation when roads, misleading is vehicles, сars, inappropriate or for used for domestic sprinkling to water purposes, applied sewers, and irrigating fires, flushing streets, extinguishing of water for use paid price parks. Regulating made to be compensation such cases determining 380 TERM,
Dissenting Opinion: Field, J. owner for his title. The transferring body water passes its use from his In all ownership. such cases the- great as when principle applies of a property durable character is use, that appropriated compensation, be ascer- tained an tribunal, must impartial be made to the owner. As in v. Green Pumpelly Bay Company, Wall. 166-177, whether, considering execution aby public improve ment authorized law, water of flooding land so as to de its owner of its use prive was a itof taking the sense of the Constitution' so as to entitle him to this compensation, court said:
“It would be a very curious and unsatisfactory result if in con- struing constitutional law, always understood to have been adopted protection security to the of- rights individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles common law on that subject beyond legislation to ordinary change or control them, it shall - be held if the government refrains from the absolute con- version of veal uses of the public, it can destroy its value entirely inflict irreparable and permanent —can injury any extent—can in effect subject it to total destruction without making any compensation, because in the narrowest sense of word it is not it for taking the public use.” So I it would be say curious and very result unsatisfactory if in construing constitutional provision, designed pro- *28 tect the of the property citizen against spoliation the govern- ment, and to insure to him when taken for uses public just compensation, to be ascertained an impartial it tribunal, should be held that when the owner is required to surrender the taken property to parcels different parties and receive compensation as delivered to such them, compensation need be only as the in its government discretion think may proper to prescribe. As stated in the it Pumpelly case, would make the constitutional an for the authority invasion of private rights the pretext the public good, which has no warrant in the laws and of our practice ancestors. v. SCHOTTLER. WORKS VALLEY WATER
SPRING Dissenting Opinion: that the the doctrine property down lay the authorities
All fixed an im- therefor and compensation must be appraised it be law; be a court may It need tribunal. partial for the special purpose. commissioners appointed composed interest be free must from members its its form, Whatever . or partisanship. uninfluenced passion, be by prejudice, should fair and in some just be conducted must And its proceedings without provided jury, with either mode, evi- to the interested to present law, parties' with opportunity to be heard thereon. the value property, as to dence to be ac- the determines which public purpose The legislature cannot act taken, to be and designates property complished that would be for fix the tribunal as such compensation, on take to property to legislature allowing equivalent own its terms. Cooley, assess the compensation, says to “The proсeeding”
“ is entitled character, and the interest its party is judicial usual and the rights privileges tribunal have impartial an is not competent investigations. attend judicial which for this legislature, through fix compensation State Lim- Constitutional cause.” in its own the judge would make itations, has reason
For the same thus become It would cannot fix the compensation. condemn to the estimate without regard own price, purchaser the cor- can taken. Nor to the value property others as would, for they property, the appraisers appoint poration Relation- as such disqualified. be its case, in that agents, in- to be appropriated, whose property the parties ship members would disqualify terest in property, a court. before as it would tribunal jurors for taking Minnesota provided An legislature act without use, appointed, certain to deter- as commissioners three owners, persons consent of without made, requiring mine the compensation that they or providing of the proceeding the owners notice to commissioners, before stage appear at any might *29 382' OCTOBER TERM, 1883.,
DissentingOpinion:Field,J. Court of the State held the law to Supreme be unconstitutional . and void. The Constitution of the State contained no express as to mode which the to be compensation paid
should be determined, the court said:
“ While the is the legislature judge or necessity expe exercise of the diency domain, eminent it is not of the amount or judge justness compensation to be ” made when the ; exercised While, power.is again there [and :] fore, the Constitution no prescribes mode in proper shall be determined, it compensation would seem tо follow that as to the of the amount question compensation, owner of land taken for use has that require an impar tial tribunal be for its determination, provided gov ernment bound such cases to provide tribunal, before which both parties meet and discuss their claims on equal terms. And such seems to the tenor of the authorities .be question. act in question does not provide such a tri bunal. The commissioners to determine the. compensation are citizens, private appointed directly by legislature, without the consent,of the persons whose land is taken public. No notice of the before the proceedings commissioners is ; the given land owner is not authorized to appear stage pro ceedings object ; commissioners to introduce any proof or allegation before‘them. The are proceedings exparte. entirely certainly cannot said that this ais or just equitable mode to determine the compensation due to a citizen for taken for''public-use.” Langford v. County Commissioners Ram sey County, Minn. 16
Objections are often made in the courts law to the reports of commissioners of them appraisement, set upon applicatiori on aside, the members have been ground improperly influenced have'allowed others, their to judgment warped by solicitations, by prejudice partisanship, when such sustained been objections have proper proofs have been iávalid. (cid:127)reports adjudged If, of these turn decisions, we light the board of supervisors San seem Francisco, us would impossible v. SCHOTTLER. WORKS WATER VALLEY SPRING Field, J *30 an can it be deemed no that in respect declaring to hesitate its mеmbers honest tribunal, personally however impartial the the owners of which the compensation determine to be, receive. should and its the" inhabitants delivered water to. water,'as the as of consumers are, its members as Interested elected, con- consumer, also a of the city, large agents it is consumer, wanting whom is daily one of stituents, every an in a sense, it, legal to render essential particular every show, as I have therefore, If, attempted tribunal. impartial its is prop- the shown, plaintiff think have and I the State for of pub- law it is taken the" when erty, board is entitled just compensation, the use, lic plaintiff that compensation what act determining is incompetent more,liable tribunal of to conceive is difficult be. shall against of interests the influences external controlled by to. be the company. other to all yrith reference action supervisors Upon for protection found necessary, been it has
matters, im- them, Without restrictions. numerous to impose public, would behalf on contracts the. provident under- improvement supposed schemes made, extravagant which, this body, And yet be depleted. and its treasury, taken, its mem- integrity the personal any imputation without of humanity, weakness to the common but out bers, regard guards without matters trust in other not will community influ- to every is and which exposed its improvidence, against is action, its and pervert its can judgment warp ence which almost,unlimited over property control allowed it, respecting to be paid compensation plaintiff as a except to be heard not is permitted which of favor. matter exhibited— can case in which in& be. every aspect act of in the contained contract whether we regard of it a taking of the property delivery treat’ compulsory authorized acts no feature use—there which does its .property with respect Constitution new en- In the of the plaintiff. constitutional rights violate agents fixed prices sale forced TERM, Opinion of the Court. the line is consumers, passed separates regulation = from spoliation. For the reasons thus stated I cannot assent to the judgment of the court.
HOWARD COUNTY v. PADDOCK IN ERROR TO THE CIRCUIT. COURT OR THE UNITED STATES FOR THE
WESTERN OF DISTRICT MISSOURI. Argued January 22d, 1884. DecidedFebruary 4th, 1884. *31 Municipal Oorporation. Municipal Missouri — Bonds— The Louisiana and Railroad, Missouri, Missouri through Howard'Couuty, was constructed under authority original granted derived from the charter 1859, and the power conferred act to subscribe capital stock company of the railroad people without a vote of the Callaway was affected amendment to the Constitution in 1865. Coupes Foster, 567, U. v. S. affirmed and followed.
Mr, John JD.Stevenson for error. plaintiff- Mr. John H. defendant in Overall error. delivered of the court. opinion
Mr. Chief
Justice Waite
It was conceded
on
this case that under the
argument
charter of the Louisiana
Missouri River Railroad
original
Howard
had
Company
County
granted
authority
subscribe to the
stock of the
without a vote of
capital
and that this
not taken
ivas
people,
away by
authority
Constitution of 1865. The claim
the amend
however,
is,
so
act of 1868
as to
it
charter
ing
changed
subject
original
Constitution as to
prohibitions
municipal subscrip
tions
that act
made after
was
the com
passed
accepted
it
As to this
is sufficient that in
Callaw
pany.
County
say