The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-04-18
WRONG AND REMEDY.

A decision of Judge Tuthill in the
case of Carbine against the Illinois
Central Railroad, may be worth our
consideration even here, because of the
basis of the decision, though the case
itself has no interest to u.s. of course.
The case was one where a hotel owner
brought suit against the company
for damages caused to his property by
the elevation of the railroad tracks. The
elevation of the track bed was made
in compliance with a city ordinance to
that effect, and the court held that
when track elevation is done in pursu-
ance of a city ordinance no liability
exists for damages which abutting
property may sustain. The basis of this
decision is that the individual property
owner must suffer loss without compen-
sation for the benefit of the public well
fare.
This decision has met with considera-
BILE comment, and as the question is
burning one here as to compensation of
individuals for suffering loss for the
public welfare, it may be applicable 10
consider them. If such a decision is
good law it would sweep away a ma
jority of the claims for the burning
of Chinatown One of the old legal
maxims was that where there is a
wrong there is a remedy" The consti-
tuition of the United States provides
that property shall not be taken for
public use without just compensation,
and the Illinois papers, in commenting
upon the decision, point out that the
constitution of their own state, and of
every other state, contains the same
provision.
The constitution of Illinois declares
that every person within the state
ought to find a certain remedy in the
laws for all injuries he may receive in
his person, property or character" This,
after all, is only the stating in other
words the legal maxim quoted above,
that where there is a wrong there is a
remedy"
One of the comments says:
Under the principle of eminent do
main it is true that the state has the
power to apply private property to
public purposes, but only on payment
of just compensation to the owner. The
property of the individual may be taken
against his will, for the public con-
Venience or advantage, but the owner
must be compensated; and every decis-
ion which permits property to be taken
or injured without compensation Vio-
lates every rule of law and OverlooKs
the constitution of the state and ma
ton.
IF a railroad company is not re-
sponsible for the damages it infiicts in
the pursuance of the law then is not
the city which compels it to do so? The
logical effect of Judge Tuthiil's decision
is to make a city ordinance, enacted
for public benefit, accomplish that
which the Supreme court of the United
States has never done, because it could
not. The decision seems to proceed on
the theory that if the municipal ordi-
nance is valid and a necessary police
provision, the railroad company may
then proceed Hereunder without any
liability. The city ordinance may be
valid however and he a wise and nee
essary measure, and yet not deprive
the property owner of his right to dam
ares: for this ordinance could not and
did not contemplate a conflict with the
organic laws of the country"
This view will certainly be satisfac-
tory to all who have suffered loss dur
ing the fight against the plague. But
it opens up a vista of enormous sums
which may have to be raised to meet
the compensation. The argument for
those who. have claims will run upon
these lines, should their claims be Le-
jected upon the basis which Judge Tut
hill used in the case cited above.