Maumee express. [volume] (Maumee City, Ohio) 1837-1838, 1838-02-10

in the State IS asserted; Whilst ~ secures
the principle Unnatural justice, awarding
compensation for propertyappropriated
10 public use, givessfull and plenary au-
thority for such appropriation, subject,
however. to one condition: that it shall
be necessary for the general welfare.
The phraseology used excludes the as
sumption Of the power for any other
purpose. State necessity can, then, on
ly be resorted to as a reason for -lnva-
ding private property, when the gene
raj welfare demands sacrifice. sas
A channel, constructed by, and atthe
expense of the government, is work
which, by the direct benefits conferred
upon all. essentially conduces to the gen
eral welfare. 1t affords facilities for
transportation and travel and affects the
market value reproduction. These ben
efits are common to the whole commune
sty, who are subject to q uniform tax, in
the shape Of. tolls, for the use Of them.
Whenever, therefore, it becomes neces-
sary 10 appropriate water for the pur-
pose Of supplying canal for navigation,
thus diverting it from its natural channel.
and depriying the owners Of the land
through which it passes of its use, pub
lie policy, the general welfare, authori-
zes such appropriation, and the lndlvldu-
al proprietors must seek their compen-
sation in money from the State. II, by
such appropriation, lowing to the nature
Of the ground over which the water
must be passed, or other adventurous
causes,) valuable hydraulic power is Gre
ated, the State may, by the same unques-
.tionable authority, avail itselfot the pro-
fits arising from its sale. The hydraulic
power thus created, however, must be
adventitious. lfmore water be diverted
from the natural channel than is neces-
ary for navigation, and especially ifit be
Withdrawn with direct view and inten-
tion to create such power, it cannot be
considered as an appropriation Of such
excess to the public welfare, but to the
purposes Of speculation and individual
profit; the proceeds Of the rent or sale
Of the water are, it is true, paid into the
general treasury, but the particular ben
eft conferredis confined to the lessee or
purchaser.
To take water from the land Of A. for
the purpose Of ofcreating power to propel
machinery, thereby to raise a revenue
by the sale of that power to B, to be by
him used exclusively for his own profit,
is surely not rendering the property of
A subservlent to the general welfare.
Sucha principle has never been recog-
nized in the legislation Of the State, in
relation to the Public works. And al
though the Public Agents are authorized
to purchase mill sites, &c, when the in
terest Of The State may be served by so
doing, vet such purchases are required
TO be predicated upon fair contract with
the owners Of the property to be pur-
chased.
The Committee, therefore, are deci-
dedly OF opinion, that the taking OF wa
ter from the ordinary channel Of this RI
yer, or from its tributary streams, for
any purpose ether than that OF naviga-
ton, in the Canal, is not authorized by
the Constitution and Laws, of the State.
The Committee are, however, OF opin-
ion, that discretionary power in the
Board ofPublic Works, in relation TO
The mannerin which the Public improve
ments, committed to their superintend-
ence, shall be constructed, is essential,
and that it might be productive Of en-
barrassments detrimental 10 the Public
interests to attempt, by legislative enact
nents, to limit or direct that discretion
The Constitution Of Ohio, and the laws
prescribing powers and duties OF those
agents, are before them, and are believed
TO be free from ambiguity. These pub
lie officers are clothed with no greater
power than The laws confer. II, in the
exercise Of these powers, they transcend
their authority, those who are thereby
injured are provided with ample reme-
dy. The courts Of the state are open to
them. Equity will adjudicaie upon the
conduct of the public agents, restrain and
enioin their irregularities, and do COM
plete Justice. This principle is fully re-
cognized in England, and inthis country.
IN ire case Of Shawd vs.. The Aberdeen
Canal Commissioners, 2 Dow 5l9, Lord
Eldon said. lfthe Canl Commissioners
exceed their powers, they become tres
passers, but Chancery would restrain,
BY injunction, and keep them strictly
within the limits oftheir powers" In a
still later case, Cooper's Equity Reports,
III, the same principle is asserted.
cLa.ao1los. IL anf 10 Inhnsnn Ch,x Ifia.