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3. We are ready, by this time, to dispose of one or two practical questions, the answers to which depend on principles now sufficiently discussed. And first, can the legislature, under constitutions like ours, make a grant of exclusive privileges?

If such a grant imply anything impairing or abridging the sovereign power, we are prepared to answer it, on the grounds taken within the last few pages, in the negative. Our question then is reduced to this, whether there be anything of this character, in such a grant; for, otherwise, we are not aware of any objection that can be raised against it.

And it would seem clearly, that there is no implication in a grant of exclusive privileges, (such, e. g., as a grant of the exclu sive right to build and maintain a bridge within certain limits,) that shuts off the free action of sovereign power. For the legislature may certainly grant land or a franchise, and, so far as it may go, it may grant the exclusive possession. If it grant the right to build and maintain a bridge, the right is certainly exclusive, so far as the space occupied by the bridge itself is concerned; otherwise the grant is nugatory; but it is not exclusive of the sovereign, acting as sovereign, as we saw some time since; no such idea of exclusion is attached to the grant. How does the case differ, if, e. g., the legislature grant to a corporation in express terms, the exclusive right within a line of five miles along the river? Why shall it be said here that the sovereign is excluded? Is such a construction necessary? Is not the other construction a natural and fair one? 1

4. But suppose the legislature to make a grant similar to the one first mentioned, and, instead of making it in terms exclusive, to add a stipulation, (to take, e. g., the case of a railroad,) that no other party shall be authorized by the State, to build or maintain a railroad within certain limits mentioned, during a certain term of years; here we have an express contract of restraint.

But

In considering this question, a distinction suggests itself which has already been once adverted to.2 A bare contract of restraint, is one which undertakes only to bind the action of the legislature or the State, and the one first instanced is of this character. if we suppose a legislature to contract, e. g., "that no railroad shall be allowed to be constructed" within the limits named,- - these terms have a more extended meaning than the former; for they undertake to bind the legislature, not merely to refuse its authority to build another road, but to prevent another from being built; i. e., to render it unlawful for private parties to build another, if they should undertake it without seeking authority of the State. The manifest intention of such a provision is to confer the exclu

1 West. Riv. Br. Co. v. Dix, 6 How. 504; Pisc. Br. Co. v. N. H. Br. Co., 7 N. H. 35.

2 See supra, III., 3, (4.)

sive privilege, and such a contract might be construed, it seems, as a grant of an exclusive privilege.

But a bare contract of restraint does not appear susceptible of such a construction. This relates to no action other than that of the State or its agents. The legislature is bound, if the contract be good, not to give its sanction to another road; but it is not bound to forbid it, if its sanction is not necessary.

Such a contract purports to suspend the Right of Eminent Domain for a certain number of years, and to strip the legislature of power to take certain private property, whatever may be the public exigencies, and although they may flatly demand it. So far as it does this, our previous argument seems to prove that it is no good contract. No legislature is bound by it, to this extent, and the judiciary must continue to regard the region to which it relates, as still subject to the Right of Eminent Domain.

It is said, on the other side, by way of maintaining that such a contract of restraint actually binds the legislature, that the power to grant franchises implies the power to fix the term of their continuance; that the power to grant is unlimited, but the power to impair the contract is expressly limited. And thus, by indirection, we get at the conclusion that the legislative body may, at least, restrict the Right of Eminent Domain, in the hands of itself and its successors.

But, on the contrary, we have aimed to show that the power to grant or make contracts does not imply the power to fix the limits of the continuance of the grant or contract, in such a sense as to trench on sovereignty; that such a power appears to be denied in our constitutions; and, therefore, that the power to grant is, to this extent, and in this sense, limited; and, as a consequence, that the provision in the Federal Constitution forbidding to impair the obligation of contracts is irrelevant, when cited in support of such unauthorized agreements.3

It is further said, that, at least the legislature cannot grant a rival franchise within the given limits, in the case supposed, whatever else it may do or require, in virtue of its Right of Eminent Domain. But that seems to depend altogether upon the question whether the public exigencies demand it. If they do, the legisla ture may certainly require the building of another bridge within those limits; and if the corporation already in possession will not build and maintain it satisfactorily, the State may build and maintain it for itself; and if so, why may it not do the same thing, if the public exigency require, through another corporation? If it can do it at all, it must act through agents; and if it may act

1 2 Pars. Cont. 523.

2 Ch. R. Br. Co. v. Warren Br. Co., 11 Pet. 644, 645, per Story, J.; Richmond R. R. v. La. R. R., 13 How. 71, per Curtis, J.

32 Pars. Cont. 523; 2 Greenl. Cr. Tit. 27, s. 29, n.

through one class of agents, why not in an exigent case, (of which it is the judge,) through another? 1

The Right of Eminent Domain implies the power of judging when a public exigency has occurred, and what it requires; and if one legislature may not deprive its successors of this Right, neither, it would seem, can it take from them this power of deciding on what the exigency demands. If, therefore, the legislature may exercise the Right of Eminent Domain over certain property, at all, it may exercise it in full; since it is not a reasonable construction of the clause in the United States Constitution forbidding the impairing of the obligation of contracts, to make it transfer to the judiciary any portion of the legislative right, or to make them joint-holders with the legislature.

The true construction of this clause would seem to leave the Right of Eminent Domain, in the several States, unaffected; so that wherever the action of a State legislature may be referred to this head, wherever it amounts to an appropriation of private property to satisfy a real public exigency, there the mouth of the judiciary, so far as this clause is concerned, would be closed.2

And, therefore, consistently with this, it might well be held that an attempt to make the public creditors accept their money before the time fixed in the contract, by recalling the public securities in private hands, would be unconstitutional. Such a proceeding could not be referred to the Right of Eminent Domain, for the State could never need the mere paper on which they were written. The whole object of such a proceeding must be, to oblige the creditors to accept their money before the time fixed; if this object be a legitimate one, it does not require the surrender of the paper; and, although, in some sense, the public debt (abstracted from the public securities) may be said to be private property, yet it would be doing violence to language, to say that an attempt to pay the public debt was a taking of private property under the Right of Eminent Domain.

So, too, the transfer of real property or a corporate franchise from one private party to another, merely for private purposes, would be a violation of the clause in question; 3 it could not be referred to the Right of Eminent Domain, for, by the statement of the case, there is no public exigency.

V. We come now to an inquiry into the proper construction of that clause in the constitutions of the Federal Union and a majority of the United States, which provides that "private property shall not be taken for public purposes without just compen

sation."

It has been attempted, on a preceding page, to show that, where

1 11 Pet. 562, Op. of McLean, J.

2 11 Pet. 420, McLean, J.

3

Kent, 240; Beekman v. R. R. Co., 3 Paige, 45; Fletcher v. Peck, 6

Cranch, 88.

no such constitutional provision exists or can be necessarily implied, the legislature might take private property for public purposes, without making or providing for compensation at the time; i. e., that it would have this power, in such a sense that the judiciary could not interfere.'

Where this provision does exist, there may be several views as to its precise effect.

1. It may be regarded as simply the expression of an obligation resting on the legislature by the principles of universal law. According to this view, the legislature might take private property by the Right of Eminent Domain, and omit to make or provide for compensation; that is, it might do so, and yet the judiciary could not interfere, although, in a political sense, the legislature would violate its duty in so doing.

But this construction is justly rejected, by reason of the uncertainty, delay, difficulty and possible expense to which the citizen would be subjected in obtaining his compensation.2 Besides, if the provision in question means only this, there is no need of it.

2. Another view would regard the legislature as absolutely forbidden to authorize the taking of private property, without compensation made on the spot, contemporaneously with the taking.

This would be going to the other extreme, and is objectionable as denying to the legislature power to provide for cases of actual State necessity, and as limiting too strictly the power of promoting the public welfare; in other words, as being inharmonious with the ends of government, and attended with too many practical difficulties.3

(3.) A third view would look at the provision in question as rendering compensation itself, or a legislative provision for compensation, essential to the constitutional exercise of the Right of Eminent Domain.

A law which contained no provision for compensation might, nevertheless, even on this view, be constitutional; for although it should professedly authorize the taking of private property, yet it might be construed as a permission to the party taking, to take on agreement with the owner.4 Nor would such a construction be nugatory; as, e. g., in the case of a corporation. And again such

1 Rerford v. Knight, 1 Kernan, 308; Lindsay v. Com'rs, 2 Bay, 38; Dawson v. State, Riley's Law Cas. 103.

2 Comins v. Bradbury, 1 Fairf. 447; Pisc. Br. v. N. H. Br., 7 N. H. 35; Thatcher v. Dartmouth Br. Co., 18 Pick. 501; Bloodgood v. R. R. Co., 18 Wend. 9.

People v. Hayden, 6 Hill, 359; Rogers v. Bradshaw, 20 Johns. 740; Cragie v. Weller, 6 Mass. 7.

Pisc. Br. v. N. H. Br., 7 N. H. 35; Thatcher v. Dartm. Br. Co., 18 Pick. 501.

a law would be constitutional, if amended, subsequently and before the taking, by a provision for compensation.'

And, therefore, it has been held, that the true and best way of enforcing the provision of the constitution is by means of injunctions. Such a view, however, would leave those States unprovided for, where there is no power of granting injunctions.

Both on principle and authority, that seems to be the best doctrine on this head, which empowers the judiciary, (subject to the qualifications suggested in the paragraph but one preceding,) to declare that law, to be without the compass of legislative power and void, which undertakes to authorize the taking of private property, and makes no provision for compensation.3 Such a construction seems to be necessary, as well for the due execution of the sovereign will declared in the constitution, as for the complete protection of the citizen.

Should the law do nothing more than direct the State agents to make compensation, without fixing any way of ascertaining it, this would be no advance on a law which should say nothing at all upon the subject; since the State agent may have one idea of compensation and the property-owner another, and there is no umpire. The owner is not to be compelled, under such a law, to submit to the decision of the agent, or to that of any tribunal or umpire he may name; it would be as reasonable, to oblige the State agent to pay the owner whatever he insisted on, and that would be entirely out of the question. So that, under such a law, the only fair construction of the word compensation, would be, such compensation as the parties may agree upon; and this would be as if no provision had been made, because the parties would then have had the same power to agree, and so to authorize the State agent to take.

Therefore the law, in order to be constitutional, must, in general, provide not merely for compensation, but for a method of ascertaining it.4

We have seen that the State itself need not provide always for contemporaneous payment, and it would seem that the same should hold good of any legislature, acting under the provision in ques tion. Such a construction is necessary, lest the sovereign power be unduly trammelled, and this important Right of Eminent Domain be "frittered away to a mere right of preemption.” 5

But, in strictness, such a delay is allowable, only where the public good appears to demand it. Where this is the case, the

1 Bonaparte v. C. & A. R. R., 1 Bald. C. C. 205; 2 Kent, 339, n. 22 Kent, 339, n.

3 Tuck. Can. Co. v. R. R. Co., 11 Leigh, 42; Gould v. Glass, 19 Barb. 179; Thatcher v. Dartm. Br. Co., 18 Pick. 501; Pisc. Br. v. N. H. Br. Co., 7 N. H. 35; Bloodgood v. R. R. Co., 18 Wend. 9; Comins v. Bradbury, 1 Fairf. 447.

4 Bloodgood v. R. R. Co., 18 Wend. 9.

♣ Ch. Riv. Br. Co. v. Warren Br. Co., 11 Pet. 420, Greenleaf, arguendo.

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