In re Constitutionality of Substitute for Senate Bill No. 83

21 Colo. 69

• Court: Supreme Court of Colorado
• Decided: January 15, 1895
• Status: Published

Opinion

Per Curiam.

After as careful and full an investigation as we have been able to give, we answer that none of the provisions of the constitution referred to will be violated by the enactment into law of the bill in question. We recognize the doctrine that, without constitutional or legislative authority, the state in its sovereign' capacity cannot be sued. No such authority exists in this state. This being so, no liability upon contract or tort, if any there be, can be enforced against the state in any of its courts.

But section 15 of article 2 of the constitution provides that private property shall not be taken for public use without just compensation. This bill recites that the state, in the prosecution of a public improvement, has taken private property without paying any compensation. There being no other way whereby the value of the property taken can be ascertained or paid, it is clearly competent for the legislature to agree with the owner upon the amount which the state shall pay, and to make an appropriation for that purpose. Were the law otherwise, the state might forcibly take private property for its use, and refuse or neglect to make provision for the payment of its value, and thus annul the constitutional provision under which, and under which only, can it take private property against the owner’s consent.

The mere fact that the association or institution for whose benefit this appropriation is made is or may be sectarian does not make the appropriation one which the constitution inhibits. The appropriation for such institution is made not as a gift, or for its support or maintenance, but for the payment for property which belonged to the association, and which was taken by the state for a public use.