PART III.

CHAPTER VI.

THE RIGHT OF EMINENT DOMAIN.

If we examine the subject critically, we shall find that the most important consideration in the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step farther, and that step is in the same direction. . . . The butcher in the vicinity of whose premises a village has grown up finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has become inconsistent with the superior right of the community to the enjoyment of pure air and the accompanying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the property, because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood. Eminent domain only recognizes and enforces the superior right of the community . . . in a similar way.-COOLEY, J., for the court, in People v. Salem, 20 Mich. 452 (1870); and so Cooley, Const. Lim. 6th ed. 660, note (1890).

The phrase Eminent Domain appears to have originated with Grotius, and the nature of the power which it designates is accurately described by him. That power is a universal one, and is as old as political society. Writers on public law who succeeded Grotius found some fault with the name, as seeming to import State ownership of all private property; but they agreed as to the real scope of the power in question, and all recognized the name as an accepted one.

The statements of Grotius, and some passages from the leading writers among his successors down to the middle of the last century, sometimes cited in our reports, are given below. To these are added observations from Blackstone. These passages will bring out the conceptions upon this subject which the framers of our first constitutions entertained. It was said by Chief Justice Marshall, in 1827 (Ogden v. Saunders, 12 Wheat. 213, 353), in discussing the meaning of the phrase, "obligation of contracts," that, "When we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the framers of our Constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subject of obligation and contract." This is peculiarly true and peculiarly applicable, as regards the topic now in hand.

The effect of our constitutional restraints in their usual form, that which we find in the earlier instruments (e. g. supra, p. 412, art. 5), is simply to add to the moral duty of compensation, described by Grotius, a legal sanction. They do not change the scope or nature of the power itself. That power has to do merely with depriving a person of his property for the benefit of the State. It will be observed that another matter was suggested by Bynkershoek (infra, pp. 949, 950 n.), an extension of the doctrine of Eminent Domain: Quidni generaliter statuamus omne damnum quod privati ferunt pro necessitate vel utilitate communi, commune, et proinde ex arca publica refarciendum esse? To this question he gives no decisive answer; but his own opinion seems to incline in favor of this doctrine, that every citizen should be reimbursed for any loss suffered for the public benefit. Undoubtedly no such doctrine was recognized by the writers on public law as an established one. As a broad and universal maxim, English usage knew nothing of it. Our early constitutions did not introduce it. They dealt with this great, well-known, universal power of all governments, to apply to the use of the State, in an exigency, any private property whatever; and gave a legal sanction, not elsewhere existing, to those moral limitations upon it which all the writers on public law had acknowledged.

Some of the later American constitutions, however, (e. g. Colorado, supra, p. 435, s. 15), beginning with Illinois in 1870, have accepted the moral obligation which Bynkershoek suggested, and have given a legal sanction to that also, requiring compensation where property is damaged by public authority and not merely where it is taken away. And in some cases, even the courts, without the aid of any such clause, moved by the inconsiderate action of legislatures, have sought to reach the same result by their interpretation of the words "property" and "taking." The legitimacy of this latter course of action may be doubted. As to the former, that of changing the constitutions, the propriety of this method cannot be questioned, if any community has come to think so considerable a tying-up of their legislature to be necessary or desirable. That compensation is often omitted when it should be given, is true enough; the remedy for this is another matter. See infra, pp. 954, 983 n.1

From GROTIUS, De Jure Belli et Pacis, lib. i. c. 1 (1625). III. In naming this treatise De Jure Belli, we mean to suggest first, what has just been said, Whether any war is just; and, second, In war, what is just? For jus, here, means merely what is just; and that rather in a negative than a positive sense, that jus is what is not unjust. That is unjust which is contrary to the nature of a society of rational creatures. . . . IV. There is another meaning of jus, different from this, yet derived from it, which refers to a person ["as when we say my right," Whewell's Translation]; in which sense right [jus] is a moral quality belonging to a person, whereby he may justly have or do anything. .. A moral quality, when perfect, we call facultas; when not perfect, aptitudo. V. Facultas is so called by the jurists, - by its own name. We, hereafter, shall call it jus, in the strict and proper sense of that word. Under this are included (1) Potestas, - whether over one's self, which is

1 See also Thayer's Orig. and Scope Am. Doct. Const. Law, pp. 29, 30. — ED.

called liberty; or over others, as the father's or the master's power; (2) Dominium, whether full, or not full, as usufruct, or the right of a pledgee (jus pignoris); and (3) Creditum, the right which stands opposed to debt. VI. This facultas, again, is twofold; namely, vulgaris, which exists for private use, and eminens, which is superior to the jus vulgaris, since it belongs to the community, for the common benefit, as against persons and things. Thus the regia potestas has under it the father's and the master's power of control; so, as against what belongs to individuals, the dominium Regis, for the common benefit, is greater than that of private owners; and [as regards Creditum] every one has a greater obligation to the State, for public ends, than to his private creditor.1

Ibid. lib. iii. c. 20. VII. 1. This also is a common question; what may be done for the sake of peace with the goods of individuals, by kings who have no other right over the property of subjects than the regal right. We have elsewhere said, that the property of subjects is under the eminent domain of the State; so that the State, or he who acts for it, may use, and even alienate and destroy such property; not only in case of extreme necessity, in which even private persons have a right over the property of others; but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. 2. But it is to be added, that when this is done, the State is bound to make good the loss to those who lose their property; and to this public purpose, among others, he who has suffered the loss must, if need be, contribute. Nor is the State relieved from this onus, if, for the present, it be unable to discharge it; but at any future time, when the means are there, the obligation which had been suspended revives.2

From PUFENDORF, De Jure Naturæ et Gentium, lib. i. c. 1, s. 19 (1672). Potestas (control), in respect of what is one's own, is called dominium; potestas, in respect of

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1 III. De jure belli cum inscribimus hanc tractationem, primum hoc ipsum intelligimus, quod dictum jam est, sitne bellum aliquod justum, et deinde quid in bello justum sit? Nam jus hic nihil aliud quam quod justum est significat, idque negante magis sensu quam aiente, ut jus sit quod injustum non est. Est autem injustum, quod naturæ societatis ratione utentium repugnat. IV. Ab hac juris significatione diversa est altera, sed ab hac ipsa veniens, quæ ad personam refertur quo sensu jus est, Qualitas moralis persona competens ad aliquid juste habendum vel agendum. . Qualitas autem moralis perfecta, facultas nobis dicitur; minus perfecta, aptitudo. V. Facultatem Jurisconsulti nomine sui appellant, nos posthac jus proprie aut stricte dictum appellabimus: sub quo continentur Potestas, tum in se, quæ libertas dicitur, tum in alios; ut patria, dominica: Dominium, plenum sive minus pleno, ut usufructus, jus pignoris et Creditum, cui ex adverso respondet debitum. VI. Sed hæc facultas rursum duplex est: vulgaris scilicet, quæ usus particularis causa comparata est; et eminens, quæ superior est jure vulgari, utpote communitati competens in partes et res partium, boni communis causa. Sic regia potestas sub se habet et patriam et dominicam potestatem: sic in res singulorum majus est dominium Regis ad bonum commune, quam dominorum singularium: sic reipublicæ quisque ad usus publicos magis obligatur, quam creditori.

2 VII. 1. Disputari et hoc solet, quid in res singulorum possint pacis causa statuere, qui reges sunt, nec in res subditorum aliud jus habent quam regium. Alibi diximus res subditorum sub eminenti dominio esse civitatis, ita ut civitas, aut qui civitatis vice fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex summa necessitate, quæ privatis quoque jus aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere illi ipsi voluisse censendi sunt, qui in civilem coetum coierunt. 2. Sed addendum est, id cum fit, civitatem tenere his, qui suum amittunt, sarcire damnum de publico, in quod publicum nomen et ipse, qui damnum passus est si opus est, contribuet. Neque hoc onere levabitur civitas, si nunc forte ei præstatione par non sit, sed quandocumque copia suppetit, exseret sese quasi sopita obligatio.

The translation of this last passage from Grotius is mainly taken from Dr. Whewell's edition (Cambridge, University Press, 1853). His rendering of the former one is inaccurate, and another is substituted. For a third passage from Grotius, see infra, p. 982, note. — - ED.

other persons is, properly speaking, imperium; potestas, in respect of the property of other persons, constitutes a servitude.1

Ibid. lib. viii. c. 5, s. 7. As regards eminent domain, some persons condemn, not so much the thing itself, as its name. For they say that the very nature of supreme rule (imperium) established for the public welfare, gives a sufficient title to the prince, when necessity presses, for using the property of his subjects; since all must be understood to be surrendered, without which the common good cannot be obtained; and, further, that it is a swelling phrase, which bad rulers may abuse to squander the resources of their subjects. But it is idle to contend over words; and it is not unreasonable to designate by a specific name a portion of the supreme rule which manifests itself in a specific way about a specific matter. What the import is of this dominium may be gathered from these considerations. It is a matter of natural equity, when there is to be a contribution towards the preservation of anything possessed in common, by those who share in it, that individuals should contribute only a proportional share, and that no one should be oppressively loaded beyond others. The same thing holds in States. But since often the exigencies of a government are such that either urgent necessity does not allow the fixing of the proportions of what is to be collected from individuals, or else some specific possession of one citizen, or of a few, is required for the necessary uses of the State, the supreme government must be able to apply this thing to the public necessities: provided, nevertheless, that what exceeds the proportional share of its owners shall be refunded by the other citizens.8

From HEINECCIUS, Elem. Jur. Nat. et Gent. lib. ii. c. 8, s 168 (1730) Among the inherent rights of supreme power there is, furthermore, the right of imposing taxes and tribute upon its citizens, nay, even of applying to the use of the State their property, when necessity requires it, -a right which is usually called the right of eminent domain. [Note] We confess, however, that this use of the word is not quite apt, for the conception of dominium and that of imperium are different things it is the latter and not the former which belongs to rulers (imperantibus). For this reason what Grotius, de jure belli et pacis, i. 1, 6, first styled dominium eminens, Seneca, de benef. vii. 4, more accurately called potestas. To kings, he said, belongs the control of all things (potestas omnium), to individuals the ownership (proprietas) of them. . . . But, so long as the controversy is about the name and origin of the thing, and no one doubts about the actual right of rulers, when necessity requires, to apply to the use of

1 Potestas in res proprias, vocatur dominium. Potestas in personas alias, imperium proprie est; potestas in rem alienam, servitus.

2 It behoves a democracy, like our own, to remember that this objection has a distinct application to them. A ruler who is ignorant or careless is no less a bad ruler, because he means well. The evil in question is a specific result; it does not matter what the motives of the ruler are. —ED.

tates.

3 Dominii eminentis non tam rem, quam vocabulum aliqui damnant. Ipsam enim vim imperii propter salutem publicam instituti, sufficientem principi titulum præbere, urgente necessitate utendi bonis suorum subditorum; eo quod omnia simul concessa intelligantur, sine quibus obtineri bonum commune non potest. Ambitiosum quoque esse id vocabulum, quo mali principes abuti possint ad dissipandas subditorum faculVerum uti super vocabulis litigare supervacuum est; ita particulam summi imperii, quæ certo sese modo circa certam rem exserit, peculiari nomine insignire, nos præter rationem est. Ejus autem dominii quæ vis sit, ex hisce intelligetur. Naturalis est æquitatis, ut si ad communem quampiam rem conservandam ab iis qui de eadem participant, conferendum quid sit, singuli ratam duntaxat partem conferant, nec unus supra cæteros graviter oneretur. Idem et in civitatibus obtinet. Sed cum sæpe ea sint reipublicæ tempora, ut vel urgens necessitas non admittat ratas partes a singulis colligi, vel certa quæpiam res unius aut paucorum civium ad necessarios usus reipublicæ requiratur, poterit summum imperium eam rem publicis necessitatibus adhibere; ita tamen, ut quod ratam partem dominorum excedit, a cæteris civibus sit ipsis refundendum.

the State the property of citizens, we see no fit reason whatever for wholly condemning the word, when once it has been accepted.1

From BYNKERSHOEK, Quest. Jur. Pub. lib. ii. c. 15 (1737). That power (potestas) wherein a prince excels (eminet) his subjects, is what the writers on public law call dominium eminens or supereminens, following Grotius, who led in this. L. i. De Jure B. & P. c. 3, s. 6, n. 2, and 1. ii. c. 14, s. 7 & 8. But I agree with Thomasius, ad Huberum de jure civitatis 1. i. s. 3, c. 6, n. 38, in thinking it more accurately called imperium eminens, rather than dominium eminens, for whatever of this right princes use, proceeds from their supreme power. . . . That potestas eminens extends to the persons and property of the subjects, and if this were taken away all will readily allow that the State could not be preserved. By this power, if so it seem good to the prince, war is declared, peace made, treaties entered into, tribute and taxes im posed, obligations laid upon subjects and their property, even the whole of them, nay, even the possessions of single individuals seized upon. Of this power none of the wise ever doubted; the whole dispute is over fixing the limits of it. . . . But before you can accurately fix these, all the details (species) of supreme power (imperii eminentis) must be reckoned up, and we must carefully deliberate and pass upon each. ... I have determined to treat merely of that part by which the prince, out of his supreme power (imperio eminenti), takes away from his subjects an acquired right, whether it consists in a thing itself (in re), whether movable or immovable, or in a claim (in actione). That the prince may do this, all agree; but it is not equally agreed on what occasion he may do it. Pufendorf, 1. viii. De Jure Nat. et Gent. c. 5, s. 7, where he treats of this right of the prince, thought that there was no place for the right of eminent domain unless the necessity of the State should call for it, not meaning, however, that the last extreme of necessity should be demanded. Grotius was contented with utility (utilitate) only. L. ii. De Jure B. & P. c. 14, s. 7; for he said, that in order to take away an acquired right from subjects by virtue of eminent domain, (ex vi supereminentis dominui), there must be, first, a public use (utilitas), and then, if possible, compensation must be made, out of the common funds, to him who has lost what was his. And afterwards, s. 6, the right of subjects is subordinated to this right of eminent domain (ei dominio), so far as public uses demand. It is, indeed, true enough that both formerly and now, on all hands, princes have exercised this right for both reasons, as well necessity as utility but convenience often shades off into necessity, so that you cannot easily tell this from that; and what one man will call utility another will call necessity. For my part I do not urge, nor do I know of any one who does, that the prince may not exercise this right for both reasons. . . . But when a fit reason requires it, whatever he takes away, let him take it with as little harm to his subjects as may be, and upon paying the price out of the common chest. Whoever purposes anything else is rather a robber than a prince. . . . He who requires, as I do, in order to the exercise of the supreme power (imperium eminens) public necessity or a public use (utilitatem), excludes all other causes, without exception Since the subject, then, is bound to part with his property for both reasons, as I said, must he also lose it for purposes of public pleasure or æsthetic gratification, or even public decoration alone? I should not think so, nor did the Roman Senate think so in the case of Marcus Licinius Crassus, who objected to leading through his farm

Inter immanentia majestatis jura est etiam jus tributa et vectigalia imperandi civibus; quin et eorum bona, exigente necessitate, reipublicæ usibus adplicandi, quod jus dominium eminens adpellare mos est. [Author's note. Fatemur tamen non satis commode hoc adhiberi vocabulum, quum diversi sint dominii et imperii conceptus; et non illud, sed hoc competat imperantibus. Unde quod Grotius, de jure belli et pac. i 1, 6, primus vocavit dominium eminens, id Seneca, de benef. vii. 4, rectius denominavit potestatem. Ad reges, inquit, potestas omnium, ad singulos proprietas pertinet. . . . Sed dum lis est de vocabulo reique origine, et de ipso jure imperantium bona civium urgente necessitate reipublicæ usibus adplicandi, nemo dubitat, cur vocabulum semel receptum plane proscribendum putaremus, nullam omnino idoneam rationem vidimus.]