The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-03-13


struction of the right of property in them
The right of property in an article involves
the power to sell and dispose OF such artl,
Giles as well as to use and enjoy 1t. ANY acl
which declares that the owner shall neither
sell it, nor dispose of 1t, nor use and ENJOY
it, confscates it, depriving him OF his prop
erty without due process Of law. Agalnst
such arbitrary legislation by any state the
fourteenth amendment attords protectlon.
In the subsequent case of the beer company
versus Massachusetts, 81 u. ). 20, the court
thus refers to this matter: 'If the public
safety or the public morals require the dis
continuance of any manufacture or traffic,
the hand of the legislature cannot be stayed
from providing for its discontinuance by an
incidental inconvenience which individuals
or corporations may suffer. All rights are
held subject to the police power of the State.
We do not mean to say thatprOperty actually
in existence, and in which the right of the
owner has become vested, may be taken for
the public good without compensation, but
we infer that the liquor law in this case, as
in the case of Bartemyer vs. Iowa, was not
in existence when the liquor law OF Massa-
chuSettS was passed.
In the light of this declaration Oh tne sn-
preme court, that when man owns, with
the unrestricted right to use or sell, a glass
of LIQUOR. mere personal property winch with
out injury or depreciation In value can pc
carried outside the Jurisdiction OF tne otate,
legislation of a state prohibiting us sale, anu
To LQdb extent Only
presents a grave question under tne TOUT
teenth amendment, the further pOsltlye as
sertion of one of the justices that sucn legls-
lation is void under that amendment, anu q
still further intimation of the court IN q iaIeI
csSe that vested rights of property cannot pc
DESTROYED for the public good without COM
pensasion, it would seem cOntempIu0uS
disregard by a subordinate tribunal OF INC
Judgment of its superior for me to hold tnat
that legislation of State, destroying tne
value by prohibiting the use OF properly
which cannot be moved, and in whose use
the owner had prior thereto an absolute ana
unrestricted title, Is clearly not in conflict
with that amendment, and presents aDsQ,,
lutely no question for the cOgnlZance ana
Judgment of the federal tribunals.
But am not content to leave this case
upon these authoritative suggestions OF the
Supreme court. As new matter, itils clear
to me that there is a federal question giving
right of REMOVAL and here | assert these
propositions: First, debarring man by ex-
press prohibition from the use of his proper
ty for the sake of the public, is taking 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 flour mill coupled with an
absolute prohibition on its use, and Of what
value is it to him? In the most common and
ordinary cases of taking private property for
public uses, the condemnation OF the right OF
way for railraad, the title Is not Invested;
The owner still retains the fee simple, and
he is only debarred from the use. When
the railroad abandons the use he retakes it.
In the leading case of Pumpelly VS.. Green
BAY Co, 10 Wall, 166, which was case
where land was overfiowed in consequence
of the erection of a dam, the Supreme court
thus disposes of the matter:
ut would be very curious ana unsatls.
factory result if, in constituting provision OF
constitutional law, always understood to
have been adopted for protection and secu-
rity to the rights of the individual as against
the government, and which has received the
commendation Of jursts, statesmen and COM
mentators, as placing the just principles OF
the common law on that subject beyond the
power of ordinary legislation to change or
control them, it shall be held that II the gov
eminent refrains from the absolute CONVEX
sion of real property to the uses of the pubic
it can destroy its value entirely; can lnfilct
irreparable and permanent injury to any ex-
tent; can, in effect, subject 1t to total de-
structiOn without making any compensation,
because, in the narrowest sense OF that WORD,
it is not taken for the public use. such
construction would peryert the constitution
al provision into restriction upon the rights
of the citizen, as those rights stood at the
common law, instead Of the government and
make it an authority for invasion OF private
rights under the pretext of the public good,
which had no warrantin the laws or prac-
tices of our ancestors.
al, Justice Field uses this language: All
that is beneficial in property arises from It's
use; and whatever deprives person OF
them, deprives him of all that is desirable or
valuable in the title and possession. Ii the
constitutional guaranty extends no further
than to prevent deprivation of title and
possession, and allows deprivation OF use,
and thelfruits of that use, it does not merit
the encomiums it has received
l meet here the common argument that
when private property is taken Tor pubic
use, there is always a 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
consequential injuries resulting from
change of policy on the part of the state for
which no compensation or redress is al
lowed. 1t is ddmaatna dbsque i1yugid. The
argument is not sound. As a matter of fact,
in condemnation cases, seldom is the partlc-
ular use to which the property has been put
transferred. Almost always that use is de-
stroved in order that another may be ac-
quired. The farmer surrenders 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
" and directly for the benefit of the public.
For no other reason and upon no other
ground could it be disturbed. OF course in
this as in other cases SOME use remains 10
the owner, but here, as elsewhere, the use
which is of special value 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 a 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 forDldS the use
of the premises for brewery.
assert secondly that natural equity as
well as constitutional guarantee forbids such
taking OF private properly tor the puDilc
good without compensation. In the case OF
the State VS.. Mugler, 20, Kansas 252, this
question was presented to the Supreme court
of Kansas, and as memter OF that court
then expressed this opinion. l 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 l shall have little to say in respect
to the guarantees in the State constitution;
| may, however, be permitted to say, ana L
do it with the highest respect for the mem
berS of that court, and with the utmost DEL
erence to its opinion and judgments, that III
the light of the frequent discussions OF the
question since that decision. and the more L
have reflected thereon the more profoundly
am convinced that the guarantees OF safety
and protection to private property contained
within our State constitution forbid that any
man should thus be despoiled of that which
gives value to his property for the sake of
the public good without first receiving COM
pensation for that which is taken from him.
Turning to the opinions of other courts
find strong endorsement of the proposition |
have asserted. In the case of Lake View VS..
Rose Hill cemetery company, 20 Ills, 10l, the
court says "We are unwilling to cOncede
the existence of an indefnable power, supe--
rior to the constitution, that may be invoked
whenever the legislature may deem the pub
lie exigency may require it, by which party
may be caprici0usly deprived of its property
or its use, whether such property consists OF
franchises or tangible forms of property"
The constitution of New Jersey contains
no such guarantee as ours, yet the Supreme
court of that State, in Sinnickson VS.. John
son, 2 Harrison, 129, declares:
THAT this power to take private property
reaches back of all constitutional provision,
and it seems to have been settled principle
of universal law that the right to compensa-
ton is an incident to the exercise Of that
power, that the one is inseparably connected
with the other, that they may be said to eX-
ist not as separate and distinct principles,
but as parts of one and the same principle"
The constitution of New York was SINH
larly deficient, and yet in Gardner VS.. New
burg, Johns, Oh. 1872, Chancellor Kent
granted an injunction to prevent the trus-
tees of Newburg from diverting the water of
certain stream flowing over plaintiffs land
from its usual course, because the act of the
legislature which authorized it had made no
provision for compromising the plaintiff for
thq iniurV Tins dome tn his land flor citing