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)]