CITES BY TOPIC:  eminent domain

Monongahela Nav. Co. v. U S, 148 U.S. 312, 13 S.Ct. 622(U.S. 1893)

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 **627 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.

[Monongahela Nav. Co. v. U S, 148 U.S. 312, 13 S.Ct. 622 (U.S. 1893)]