|
The provision in the Fifth Amendment to
the Constitution of the United States declaring that private property
shall not be taken for public use without just compensation is intended
solely as a limitation on the exercise of power by the Government of the
United States, and is not applicable to the legislation of the States.
The Constitution was ordained and established by the people of the
United States for themselves, for their own government, and not for the
government of individual States. Each State established a constitution
for itself, and in that constitution provided such limitations and
restrictions on the powers of its particular government as its judgment
dictated. The people of the United States framed such a government for
the United States as they supposed best adapted to their situation, and
best calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself, and the limitations on
power, if expressed in general terms, are naturally and necessarily
applicable to the government created by the instrument. They are
limitations of power granted in the instrument itself, not of distinct
governments framed by different persons and for different purposes.
This case was instituted by the plaintiff in error, against the City of
Baltimore, under its corporate title of "The Mayor and City Council
of Baltimore," to recover damages for injuries to the wharf
property of the plaintiff, arising from the acts of the corporation.
Craig & Barron, of whom the plaintiff was survivor, were owners of
an extensive and highly productive wharf in the eastern section of
Baltimore, enjoying, at the period of their purchase of it, the deepest
water in the harbor. The city, in the asserted exercise of its corporate
authority over the harbor, the paving of streets, and regulating grades
for paving, and over the health of Baltimore, diverted from their
accustomed and natural course certain streams of water which flow from
the range of hills bordering the city, and diverted them, partly by
adopting new grades of streets, and partly by the necessary results of
paving, and partly by mounds, [p*244] embankments and other artificial
means purposely adapted to bend the course of the water to the wharf in
question. These streams becoming very full and violent in rains, carried
down with them from the hills and the soil over which they ran large
masses of sand and earth, which they deposited along, and widely in
front of the wharf of the plaintiff. The alleged consequence was that
the water was rendered so shallow that it ceased to be useful for
vessels of an important burden, lost its income, and became of little or
no value as a wharf. This injury was asserted to have been inflicted by
a series of ordinances of the corporation, between the years 1815 and
1821; and that the evil was progressive; and that it was active and
increasing even at the institution of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff
gave evidence tending to prove the original and natural course of the
streams, the various works of the corporation from time to time to turn
them in the direction of this wharf, and the ruinous consequences of
these measures to the interests of the plaintiff. It was not asserted by
the defendants, that any compensation for the injury was ever made or
proffered, but they justified under the authority they deduced from the
charter of the city, granted by the legislature of Maryland, and under
several acts of the legislature conferring powers on the corporation in
regard to the grading and paving of streets, the regulation of the
harbor and its waters, and to the health of the city. They also denied,
that the plaintiff had shown any cause of action in the declaration,
asserting that the injury complained of was a matter of public nuisance,
and not of special or individual grievance in the eye of the law. This
latter ground was taken on exception, and was also urged as a reason for
a motion in arrest of judgment. On all points, the decision of Baltimore
county court was against the defendants, and a verdict for $4,500 was
rendered for the plaintiff. An appeal was taken to the court of appeals,
which reversed the judgment of Baltimore county court, and did not
remand the case to that court for a further trial. From this judgment,
the defendant in the court of appeals prosecuted a writ of error to this
court. [p*245]
The counsel for the plaintiff presented the following points: the
plaintiff in error will contend that apart from the legislative
sanctions of the state of Maryland, and the acts of the corporation of
Baltimore, holding out special encouragement and protection to interests
in wharves constructed on the shores of the Patapsco river, and
particularly of the wharf erected by Craig and the plaintiff, Barron;
the right and profit of wharfage, and use of the water at the wharf, for
the objects of navigation, was a vested interest and incorporeal
hereditament, inviolable even by the state except on just compensation
for the privation; but the act of assembly and the ordinance of the City
are relied on as enforcing the claim to the undisturbed enjoyment of the
right.
This right was interfered with, and the benefit of this property taken
away from the plaintiff by the corporation avowedly, as the defence
showed, for public use, for an object of public interest -- the benefit
more immediately of the community of Baltimore, the individuals, part of
the population of Maryland, known by the corporate title of the Mayor
and City Council of Baltimore. The "inhabitants" of Baltimore
are thus incorporated by the Acts of 1796, ch. 68. As a corporation,
they are made liable to be sued, and authorized to sue, to acquire and
hold and dispose of property and, within the scope of the powers
conferred by the charter, are allowed to pass ordinance and legislative
acts, which it is declared by the charter shall have the same effect as
acts of assembly, and be operative, provided they be not repugnant to
the laws of the state, or the constitution of the state, or of the
United States. The plaintiff will contend accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a
municipal corporation, is liable for tort and actual misfeasance, and
that it is a tort, and would be so even in the state, acting in her
immediate sovereignty to deprive a citizen of his property, though for
public uses, without indemnification; that, regarding the corporation as
acting with the delegated power of the state, the act complained of is
not the less an actionable tort.
2. That this is the case of an authority exercised under a [p*246]
State, the corporation appealing to the legislative acts of Maryland for
the discretional power which it has exercised.
3. That this exercise of authority was repugnant to the constitution of
the United States, contravening the fifth article of the amendments to
the constitution, which declares that "private property shall not
be taken for public use, without just compensation," the plaintiff
contending, that this article declares principles which regulate the
legislation of the states for the protection of the people in each and
all the states, regarded as citizens of the United States or as
inhabitants subject to the laws of the Union.
4. That under the evidence, prayers, and pleadings in the case, the
constitutionality of this authority exercised under the state must have
been drawn in question, and that this court has appellate jurisdiction
of the point, from the judgment of the Court of Appeals of Maryland, the
highest court of that state, that point being the essential ground of
the plaintiff's pretention in opposition to the power and discussion of
the corporation.
5. That this court, in such appellate cognisance, is not confined to the
establishment of an abstract point of construction, but is empowered to
pass upon the right or title of either party, and may therefore
determine all points incidental or preliminary to the question of title
and necessary in the course to that inquiry; that consequently, the
question is for this court's determination whether the declaration avers
actionable matter, or whether the complaint is only of a public
nuisance, and on that head, the plaintiff will contend, that special
damage is fully shown here, within the principle of the cases where an
individual injury resulting from a public nuisance is deemed actionable,
the wrong being merely public only so long as the law suffered in the
particular case is no more than all members of the community suffer.
Upon these views, the plaintiff contends that the judgment of the court
of appeals ought to be reversed. [p*247] | |
| Mr.
Chief Justice MARSHALL delivered the opinion of the court.
The judgment brought up by this writ of error having been rendered by
the court of a State, this tribunal can exercise no jurisdiction over it
unless it be shown to come within the provisions of the 25th section of
the Judiciary Act. The plaintiff in error contends that it comes within
that clause in the Fifth Amendment to the Constitution which inhibits
the taking of private property for public use without just compensation.
He insists that this amendment, being in favor of the liberty of the
citizen, ought to be so construed as to restrain the legislative power
of a state, as well as that of the United States. If this proposition be
untrue, the court can take no jurisdiction of the cause.
The question thus presented is, we think, of great importance, but not
of much difficulty. The Constitution was ordained and established by the
people of the United States for themselves, for their own government,
and not for the government of the individual States. Each State
established a constitution for itself, and in that constitution provided
such limitations and restrictions on the powers of its particular
government as its judgment dictated. The people of the United States
framed such a government for the United States as they supposed best
adapted to their situation and best calculated to promote their
interests. The powers they conferred on this government were to be
exercised by itself, and the limitations on power, if expressed in
general terms, are naturally, and we think necessarily, applicable to
the government created by the instrument. They are limitations of power
granted in the instrument itself, not of distinct governments framed by
different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood
as restraining the power of the General Government, not as applicable to
the States. In their several Constitutions, they have imposed such
restrictions on their respective [p*248] governments, as their own
wisdom suggested, such as they deemed most proper for themselves. It is
a subject on which they judge exclusively, and with which others
interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was
intended to secure the people of the several States against the undue
exercise of power by their respective State governments, as well as
against that which might be attempted by their General Government. It
support of this argument he relies on the inhibitions contained in the
tenth section of the first article. We think that section affords a
strong, if not a conclusive, argument in support of the opinion already
indicated by the court. The preceding section contains restrictions
which are obviously intended for the exclusive purpose of restraining
the exercise of power by the departments of the General Government. Some
of them use language applicable only to Congress, others are expressed
in general terms. The third clause, for example, declares, that "no
bill of attainder or ex post facto law shall be passed." No
language can be more general, yet the demonstration is complete that it
applies solely to the Government of the United States. In addition to
the general arguments furnished by the instrument itself, some of which
have been already suggested, the succeeding section, the avowed purpose
of which is to restrain State legislation, contains in terms the very
prohibition. It declares, that "no State shall pass any bill of
attainder or ex post facto law." This provision, then, of
the ninth section, however comprehensive its language, contains no
restriction on State legislation.
The ninth section having enumerated, in the nature of a bill of rights,
the limitations intended to be imposed on the powers of the General
Government, the tenth proceeds to enumerate those which were to operate
on the State legislatures. These restrictions are brought together in
the same section, and are by express words applied to the States. "No
State shall enter into any treaty," &c. Perceiving, that in a
constitution framed by the people of the United States, for the
government of all, no limitation of the action of government on [p*249]
the people would apply to the State government, unless expressed in
terms, the restrictions contained in the tenth section are in direct
words so applied to the States.
It is worthy of remark, too, that these inhibitions generally restrain
State legislation on subjects intrusted to the General Government, or in
which the people of all the States feel an interest. A State is
forbidden to enter into any treaty, alliance or confederation. If these
compacts are with foreign nations, they interfere with the treaty-making
power, which is conferred entirely on the General Government; if with
each other, for political purposes, they can scarcely fail to interfere
with the general purpose and intent of the Constitution. To grant
letters of marque and reprisal, would lead directly to war, the power of
declaring which is expressly given to Congress. To coin money is also
the exercise of a power conferred on Congress. It would be tedious to
recapitulate the several limitations on the powers of the States which
are contained in this section. They will be found generally to restrain
State legislation on subjects intrusted to the government of the Union,
in which the citizens of all the States are interested. In these alone
were the whole people concerned. The question of their application to
States is not left to construction. It is averred in positive words.
If the original Constitution, in the ninth and tenth sections of the
first article, draws this plain and marked line of discrimination
between the limitations it imposes on the powers of the General
Government and on those of the State; if, in every inhibition intended
to act on State power, words are employed which directly express that
intent; some strong reason must be assigned for departing from this safe
and judicious course in framing the amendments before that departure can
be assumed. We search in vain for that reason.
Had the people of the several States, or any of them, required changes
in their Constitutions, had they required additional safeguards to
liberty from the apprehended encroachments of their particular
governments, the remedy was in their own hands, and could have been
applied by themselves. A [p*250] convention could have been assembled by
the discontented State, and the required improvements could have been
made by itself. The unwieldy and cumbrous machinery of procuring a
recommendation from two-thirds of Congress and the assent of
three-fourths of their sister States could never have occurred to any
human being as a mode of doing that which might be effected by the State
itself. Had the framers of these amendments intended them to be
limitations on the powers of the State governments, they would have
imitated the framers of the original Constitution, and have expressed
that intention. Had Congress engaged in the extraordinary occupation of
improving the Constitutions of the several States by affording the
people additional protection from the exercise of power by their own
governments in matters which concerned themselves alone, they would have
declared this purpose in plain and intelligible language.
But it is universally understood, it is a part of the history of the
day, that the great revolution which established the Constitution of the
United States was not effected without immense opposition. Serious fears
were extensively entertained that those powers which the patriot
statesmen who then watched over the interests of our country deemed
essential to union, and to the attainment of those invaluable objects
for which union was sought, might be exercised in a manner dangerous to
liberty. In almost every convention by which the Constitution was
adopted, amendments to guard against the abuse of power were
recommended. These amendments demanded security against the apprehended
encroachments of the General Government -- not against those of the
local governments. In compliance with a sentiment thus generally
expressed, to quiet fears thus extensively entertained, amendments were
proposed by the required majority in Congress and adopted by the States.
These amendments contain no expression indicating an intention to apply
them to the State governments. This court cannot so apply them.
We are of opinion that the provision in the Fifth Amendment to the
Constitution declaring that private property shall not be taken for
public use without just compensation is intended solely as a limitation
on the exercise of power by the [p*251] Government of the United States,
and is not applicable to the legislation of the States. We are therefore
of opinion that there is no repugnancy between the several acts of the
general assembly of Maryland, given in evidence by the defendants at the
trial of this cause, in the court of that State, and the Constitution of
the United States. This court, therefore, has no jurisdiction of the
cause, and it is dismissed.
This cause came on to be heard on the transcript of the record from the
Court of Appeals for the Western Shore of the State of Maryland, and was
argued by counsel. On consideration whereof, it is the opinion of this
Court that there is no repugnancy between the several acts of the
General Assembly of Maryland given in evidence by the defendants at the
trial of this cause in the court of that State and the Constitution of
the United States; whereupon it is ordered and adjudged by this court
that this writ of error be, and the same is hereby, dismissed for the
want of jurisdiction. | |