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It
appears from the foregoing statement that the Monongahela Company had,
under express authority from the state of Pennsylvania, expended large
sums of money in improving the Monongahela river by means of locks and
dams, and that the particular lock and dam in controversy here were
built not only by virtue of this authority from the state of
Pennsylvania, but also at the instance and suggestion of the United
States. By means of these improvements, the Monongahela river, which
theretofore was only navigable for boats of small tonnage, and at
certain seasons of the year, now carries large steamboats at all
seasons, and an extensive commerce by means thereof. The question
presented is not whether the United States has the power to condemn and
appropriate this property of the Monongahela Company, for that is
conceded, but how much it must pay as compensation therefor. Obviously
this question, as all others which run along the line of the extent of
the protection the individual has under the constitution against the
demands of the government, is of importance, for in any society the
fullness and sufficiency of the securities which surround the individual
in the use and enjoyment of his property constitute one of the most
certain tests of the character and value of the government. The first 10
amendments to the constitution, adopted as they were soon after the
adoption of the constitution, are in the nature of a bill of rights, and
were adopted in order to quiet the apprehension of many that without
some such declaration of rights the government would assume, and might
be held to possess, the power to trespass upon those rights of persons
and property which by the Declaration of Independence were affirmed to
be
unalienable
rights.
In the case of Sinnickson v. Johnson, 17 N. J. Law, 129, 145, cited in
the case of
Pumpelly v. Green Bay Co., 13 Wall. 166, 178, it was said that ‘this
power to take private property reaches back of all constitutional
provisions; and it seems to have been considered a settled principle of
universal *325
law that the right to compensation is an incident to the exercise of
that power; that the one is so inseparably connected with the other that
they may be said to exist, not as separate and distinct principles, but
**626 as
parts of one and the same principle.’ And in
Gardner v. Newburgh, 2 Johns. Ch. 162, Chancellor Kent affirmed
substantially the same doctrine. And in this there is a natural equity
which commends it to every one. It in no wise detracts from the power of
the public to take whatever may be necessary for its uses; while, on the
other hand, it prevents the public from loading upon one individual more
than his just share of the burdens of government, and says that when he
surrenders to the public something more and different from that which is
exacted from other members of the public, a full and just equivalent
shall be returned to him.
But we need not have recourse to this natural equity, nor is it
necessary to look through the constitution to the affirmations lying
behind it in the Declaration of Independence, for in this fifth
amendment there is stated the exact limitation on the power of the
government to take private property for public uses. And with
respect to constitutional provisions of this nature, it was well said by
Mr. Justice Bradley, speaking for the court, in
Boyd v. U. S. 116 U. S. 616, 635, 6 Sup. Ct. Rep. 524: ‘Illegitimate
and unconstitutional practices get their first footing in that way,
namely, by silent approaches and slight deviations from legal modes of
procedure. This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property should
be liberally construed. A close and literal construction deprives them
of half their efficacy, and leads to gradual depreciation of the right,
as if it consisted more in sound than in substance. It is the duty of
courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. Their motto should be obsta
principiis.’
The language used in the fifth amendment in respect to this matter is
happily chosen. The entire amendment is a series of negations, denials
of right or power in the government; the last (the one in point here)
being: ‘Nor shall private
*326
property be taken for public use without just compensation.’ The noun
‘compensation,’ standing by itself, carries the idea of an equivalent.
Thus we speak of damages by was of compensation, or
compensatory damages, as distinguished from punitive or exemplary
damages; the former being the equivalent for the injury done, and the
latter imposed by way of punishment. So that, if the adjective
‘just’ had been omitted, and the provision was simply that property
should not be taken without compensation, the natural import of the
language would be that the compensation should be the equivalent of the
property. And this is made emphatic by the adjective ‘just.’ There can,
in view of the combination of those two words, be no doubt that the
compensation must be a full and perfect equivalent for the property
taken; and this just compensation, it will be noticed, is for the
property, and not to the owner. Every other clause in this fifth
amendment is personal. ‘No person shall be held to answer for a capital
or otherwise infamous crime,’ etc. Instead of continuing that form of
statement, and saying that no person shall be deprived of his property
without just compensation, the personal element is left out, and the
‘just compensation’ is to be a full equivalent for the property taken.
This excludes the taking into account as an element in the compensation
any supposed benefit that the owner may receive in common with all from
the public uses to which his private property is appropriated, and
leaves it to stand as a declaration that no private property shall be
appropriated to public uses unless a full and exact equivalent for it be
returned to the owner.
We do not in this refer to the case where only a portion of a tract is
taken, or express any opinion on the vexed question as to the extent to
which the benefits or injuries to the portion not taken may be brought
into consideration. This is a question which may arise possibly in this
case, if the seven locks and dams belonging to the navigation company
are so situated as to be fairly considered one property,-a matter in
respect to which the record before us furnishes no positive evidence. It
seems to be assumed that each lock and dam by themselves constitute a
separate structure and separate property,
*327 and
the thoughts we have suggested are pertinent to such a case.
By this legislation congress seems to have assumed the right to
determine what shall be the measure of compensation. But this is a
judicial, and not a legislative, question. The legislature may determine
what private property is needed for public purposes; that is a question
of a political and legislative character. But when the taking has been
ordered, then the question of compensation is judicial. It does not rest
with the public, taking the property, through congress or the
legislature, its representative, to say what compensation shall be paid,
or even what shall be the rule of compensation. The constitution has
declared that just compensation shall be paid, and the ascertainment of
that is a judicial inquiry. In
Charles River Bridge v. Warren Bridge, 11 Pet. 420, 571, Mr. Justice
McLean in his opinion, referring to a provision for compensation found
in the charter of the Warren bridge, uses this language: ‘They [the
legislature] provide that the new company shall pay annually to the
college, in behalf of the old one, a hundred pounds. By this provision
it appears that the legislature has undertaken to do what a jury of the
country only could constitutionally do,-assess the amount of
compensation to which the complainants are entitled.’ See, also, the
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following authorities: Com. v. Pittsburg & C. R. Co., 58 Pa. St. 26, 50;
Pennsylvania R. Co. v. Baltimore & O. R. Co., 60 Md. 263;
Isom v. Mississippi Cent. R. Co., 36 Miss. 300.
In the last of these cases, and on page 315, will be found these
observations of the court: ‘The right of the legislature of the state by
law to apply the property of the citizen to the public use, and then to
constitute itself the judge of its own case, to determine what is the
‘just compensation’ it ought to pay therefor, or how much benefit it has
conferred upon the citizen by thus taking his property without his
consent, or to extinguish any part of such ‘compensation’ by prospective
conjectural advantage, or in any manner to interfere with the just
powers and province of courts and juries in administrating right and
justice, cannot for a moment be admitted
*328 or
tolerated under our constitution. If anything can be clear and
undeniable, upon principles of natural justice or constitutional law, it
seems that this must be so.'
We are not, therefore, concluded by the declaration in the act that the
franchise to collect tolls is not to be considered in estimating the sum
to be paid for the property.
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