The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-01-23

out from the District Court enioining defend
ants absolutely from the manufacture of beer
Thus, in strict conformity to the laws of the
State, the defendants prohibited from using
their property for the purposes for which alone
it is designed, adapted and valuable, and are re-
qulred, without compensation, to surrender 3d.
600 of value which they had acquired under
every solemn, unlimited guarantee of protection
to property which constitutional declaration
and the underlying thought of just and stable
government could give. The action in which
this injunction was granted they now seek to re-
move to this court, and insist that matter
what the State may think or do the fourteenth
amendment to the federal Constitution does
give protection or, at least, they are entitled to
the opinion and iugdment of the federal courts
upon the question whether that portion of the
fourteenth amendment which forbids a State TO
deprive any person of life, liberty, or property
without due process of law and to deny any per-
son within its jurisdiction the equal protection
of the laws is not violated by this action of the
State respects them.
1T is idle to deny that the question here pre-
sented Is one of difficulty and grave Importance.
On the one hand it is insisted that both the
amendment and the laws were duly, and in COM
pliance with established forms of procedure,
adopted and enacted; that the withholding of the
permit was the act of a judicial officer in the eX
ercise OF a proper and granted discretion; that
the injunction was issued out of the regular
court of general original jurisdiction, and in an
ordinary and familiar form of action; that thus
there has been due process OF law, and that the
amendment does not prohibit State from de-
priving person OF his property, but only prohb
its such deprivation without due process of law.
On the other hand, it is apparent that the de-
PENDANTS having invested large properties in a
perfectly legal business, stripped of the value
Of such properties, and that not as the indirect
and consequential result of legislative changes
in the law. but by direct prohibition upon the
only use for which such properties are desig
nated adapted and valuable. Is State potent
through the forms of law, to take from citizen,
by direct action the value of his property with
out compensation"
The Judge then refers to various decisions of
the higher courts touching arbitrary legislation
the condemnation and coniscation of property
and establishing the fact that the case in point
presents federal question giving the right of
removal The decision continues:
DECLARING man by express prohibition from
lie is taxing of private property for public
uses 1t is the power to use, and not the mere
title, which gives value to property. Give man
the fee simple title to four-mll, coupled with
an absolute prohibition on its use, and of what
value is it to him2 In the most common and
binary cases of taking private property for pub
lie uses-the condemnation of the right-of-way
for a railroad-the title is not Invested. The
owner still retains the fee-simple, and he is
only debarred from the use When the
it. L meet here the common argument
that when private property is taken for
public use there is always transfer of the use
from one party to another that here the use is
not transferred but only forbidden; and that this
deprivation of the use is only one of the conse-
quential injuries resulting from a change of pol
icy on the part Of the State for which no COM
pensation or redress is allowed. It is dominum
absque injura. The arguments not sound. AS
matter of fact, in condemnation cases, seldom
ia he or tn wi iph fha rtU hac
been put transferred Almost always that use
is destroyed in order that another may be ac-
quired. The farmer surrenders a part of his
farm to the railroad company, not that
the company may continue its use
for farming purposes. but that the public
may acquire the benefit in another direction.
So where land is flowed by mill dam; and thus
it is generally Here the use is taken away sole
ly and directly for the benefit of the public. For
no other reason and upon no other grounds
could it be disturbed. OF course, in this as in
other cases, some use remains to the owner; but
here, as elsewhere the use which is of special
statute is taken from him for the benefit of the
public and this is not consequential result.
1t is not that the profits of his manufacture are
reduced by reason of prohibition upon sales.
The law speaks to him by direct command, and
says, stop your manufacturing" 1t is idle to
talk of consequential results and injuries when
the law in direct language forbidS the use of the
premises for a brewery
81 assert, secondly, that national equity as
we'll as constitutional guarantee forbids such
taking OF private property for the public good
without compensation. In the case of the State
VS.. Mugler (29 Kansas, 1921 this question was
presented to the Supreme Court of Kansas, and
as member of the court then expressed this
opinion. am aware that my brethren differed
with me, and that the court held that the State
Constitution carried no such proposition. In
view of that decision shall have little to say in
respect to the guarantees in the State Constitu
ton. / may, however, be permitted to say-and
do it with the highest respect for the members
of that court. and with the utmost difference to
its opinion and judgments-that in the light of
the frequent discussions of the question since
that decison-and the more / have reflected
thereon the more profoundly am l convinced
the guarantees of safety and protection to pri-
vate property contained within our State Con-
stitution forbid that any man should thus be de-
spoiled of that which gives value to MS property
for the sake of the public good without first re-
ceiving compensation for that which is taken
from him." /.
Judge Brewer then rehearses the opinions of
other courts in Endorsement Of his position The
decision concludes as follows:
snow, in the case at BAR while judicial pro-
ceedings are prescribed, yet the spolation is the
direct command of the Legislature, and the
judicial proceedings are only the machinery TO
execute that command. No discretion is left to
the courts. The Legislature has in terms said
to defendants: Stop your use of your brewery
and has directed the courts to enforce that COM
mand There is nothing but mere machinery
between the Legislative edict and unused
valueless mandatory. AS well might the ex-
ecutive as the courts be charged with the en-
forcement of this command. Such command
no matter how enforced, operative to deprive the
citizen of the value of his property without COM
pensation, is, in the language of Mr.. Justice
Bradley arbitrary, oppressive and unjust and
therefore should be declared tc be not due pro
cess of law.
''Fourthly, and as necessary consequence of
the preceding legislation, which operates upon
the defendants as does this. in conflict with the
least it presents question arising under such
amendment as to whether they are entitled to
the opinion and judgment of the federal courts,
as the amount in controversy is unquestion-