Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1864-06-23
AxT kins and a.

1
/ Of the court the answer 10 the bill that this
subetting BY Hawkins to the Government was
| with the consent OF Aurd0ck Is directly re-
| sponsiVe to the bilLs and meets the objection
urged by Tesson Of the provisions Of cur code
| EgaIDst 5ublsttng without the consent of the
owner, and therefore Hawkins, having been in
| possession with the knowledge of Horne, and
ocsapying the premises, directly over his head
l for q considerable space Of time, and being in
| possession at the time be leased to the Govern
noent, and their being IN possession of tbe same
under the lease st the time Of the fling of this
bill, We are of opinion that the injunction grant
cd in this case De, and the sAEs is hereby, dis
missed. The charge that q hospital is a nuis-
anee not being, in our opinion, sustained to the
extent thAt demands equity interPosition to pre-
vent its establishment, il being matter arising
out CT the manner of keeping such hospital, and
| hospitals being necessary to the protection OF
our sick and wounded soldiers, we cannot en-
! join their establishment.
Il is not the province Of this court to De ide
| upon the suitability or want Of fitness of places
selected toT hospital purposes, while we concur
with the opinions Of the very respectable and
intelligent witnesses examined in this case, that
hospitals down il the center of the town, with
heavy brick walls surrounding them, wanting
proper veBsiistion, and the approaching warm
weather, viii render saeh places unhealthy and
I
ais on the hills surrounding the town with
free access of sir, shade, water and grounds for
exercise could be made. Still over this Subject
we are not made the judges and cannot be con-
tToled by our private opInisns or feelings in the
expression of our Judgments.
The next question is one more serious and
eubsZ sssiGg IN Its proper adjudication. 1t is
c5ntenied for the government that the right ex-
lists and the power to exercise it is lodged ip
these officers to lake every house IN the city Of
Macon for hospital purposes without limitation
without restrsint-Eithout any control save
tho discretion Of the officers. As we have been
asked for our opinions fully On these subjects
we will proceed to give them. We do not as
sent to this general and unlimited power, con-
ceding the right in cases of urgent ead immedi-
ste necessity to take private property for public
use under the law; ne hold tbs; this power is
rghtfaily in the Limitation OF the courts to pre-
vent unrsgs9l abe seizures Of houses, snd also
to p event oppressive and hsgrant iBjus les
The principle than in this broad sense Is limited
BY the eguTs under she provisions Of the COnsti
tation
Tas U-scTuzferr s87;aaua -,r natter b-,,- mat
and gsntemsnly, cannot be substituted 4 Iis /
of the Constitution. The house meant By the
Constitution, IN the opinion CT Judge LOehrRne,
who writes this decision, is the house or douni-
ell, and there Is 70 power, no law, no necessity,
no Judge, no military officer, thss can by force,
take the freeman's castle and throw him heme-
less and houseless into the streets, with his
family and household gods, exeept it be neces-
sRry tor the public defense, or to avert great
public danger The establishment of hospitals,
ihoagh great necessity, are not of the kind or
class embraced, and do not come up 70 that sxi-
gency where "satEs RopsLi sst suYTsRa Is1 /"
Such act would be not only unreasonable but
oppressive, and the exercise of q power elsimed
by no constitutional government and one which
ne think is within the control of courts to PEE
vent
The power to take stores or public buildings
in proper construction Of. law does exist in cir
c1mstsnces which render the appropriation ne
essssry and subject to the rules and regulations
We will now proceed to lay down when tho ne
eessity is actual and urgent. As by illustration,
| If 500 or loco wounded soldiers sTe- landed in
Macon and there is no accommodation provided
for their shslteF, this court Will not snj0in the
| qusrteTmasteg Ct this post from imprsssing
stores or public buildings for their immediate
use in a Gaze of such actual and urgent neces-
| sitg. While we are of opinion that the govern
ment, now in possession Of large stores, and be-
lisve its goods could be stored % its own build
| ings, and that the large government works go
| ing up might possibly be ussd for the purpose !;
and the control ofrAilrcads saw mills, and other
appliances might be put in requisition TO sstsb-
Ilisb hospitals, without inconVenisneing tie pub
lie, ssill, over thsss questions va have no con-
troll. and must lssvs the citizens to petition in
/ case the government itself could afford the ne
/ eessary accommodation and does net Go 50.
! In such event, tho citzens- who have lsrge
! taxes to pay are entitled 10 protection from
the Government, and, while the sick and
wounded must be sheltered, it must not be over
looked that the merchant pays his heavy taxes
/ tor this purpose in part, and should, not be
| drown into the streets to make room for thcul
out of bis store, when the Government 'ssofs
may be used, and should be used for the pur-
| pOas Ths issue Of battle has been loBg
looked for, but the necessity the law recognizes
| is an actual and immediate necessity not an
anticipated necessity-snd preparation may be
made Of cooking nsensils, Of beds, etc, and 81
held ready for use when the necessity actually
takes place. Il the Government officers do not
make these preparations, and sick and wounded
soldiers arrive in. Macon, the same necessity
might be urged to take the bed oat Of man 3
house, or has cooking utensils from bis family
| to supply them. We assert that thsae thiHgs
are easisr for the Governments to get tbsn ,indi-
( viduals with money, and transportation, and
agents everywhere, it must make provision foI
the sick and wounded. Il is disgrace to pui