The opinion of the Court was delivered by
Gibson, C. J.
The question for decision depends on considerations that did riot enter into the case of The Union Canal Co. v. Landis, (9 Watts 228). In that case, the grant to the individual contained a reservation in favour of the company to whom a prior right had been granted, which put at rest every pretence of claim to damages for acts subsequently done to the prejudice of the second grantee. The reservation was perhaps superfluous; but it seems to have been thought a judicious precaution, because a license followed by a permanent erection for the enjoyment of it is generally irrevocable; and it might have been deemed a contract, in that instance, which the State could not impair. But what grant is there in the statute of 1803 to require a reservation? That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams, without being indictable for a nuisance; and their exercise of it was consequently to be attended with expenditure of money and labour. But was this liberty to be perpetual, and for ever to tie up the power of the State? or is not the contrary to be inferred from the nature of the license ? The object was not to give a new and an irrevocable right; but. to restore the qualified use of an old one, so long as it should consist with the public good, by remitting the owner of the soil to the situation in which he stood before the stream was made a highway; and the statute did no more than operate a partial repeal of the Act which had declared it to be so. It reconciled a modified enjoyment of the owner's ancient right, to the present enjoyment of the public right of navigation and fishery. Hence it provided that the owner of land on the shore of a navigable river, declared by law to be a highway, might erect a dam on it, [113]*113if it were so constructed as not to “ obstruct or impede the navigation, or prevent the fish from passing up the same.” Is there anything like the offer of a bargain in that? So far was ,the Legislature from seeming to abate one jot of the State’s control, that it barely agreed not to prefer an indictment for a nuisance, except on the report of viewers, to the Quarter Sessions. But the repeal of a penalty is not a charter; and the alleged grant was no more than a mitigation of the penal law. It barely placed the owner of the soil in a position almost as favourable as that in which the declarative law had found him; and if that position were to secure him from disturbance, by any further measure of public improvement, the State would be incompetent to declare any river a highway on which thefe happened to be a mill-dam.' The statute is pro tanto a repealing one, which offers no express compact to any one; and such a compact is never to be implied. It was ruled in The Charles River Bridge v. The Warren Bridge, (11 Peters 420), that the State is not presumed to have surrendered a public franchise, in the absence of proof of an unequivocal intention to do so. It would seem that the public dominion may be parted with, but not without an expljcit renunciation of it. And this relieves the case from the pressure of that clause in the Constitution which declares that no State shall pass a law impairing the obligation of contracts.
It is contended, however, not so much that the power of the Legislature falls short of a case like the present, as that it can be exerted only on the basis of compensation made or secured ; and that for damage done by the authority of the State, there is, in every case without it, redress by action : in other words, that the authority is void. We must not forget, however, that the State is a sovereign who cannot be sued against her consent; and that there are no other limitations to her power over private property than those that are placed upon it by the Constitution. What are they? “No person shall, for the same offence, be twice put in jeopardy of life or limb; nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being given.” Again: “In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favour; and, in prosecutions by indictment or information, a speedy trial by an impartial jury of the vicinage: he cannot be compelled to give evidence against himself; nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.” Now, it cannot be said that the plaintiff’s mill was taken or applied, in any legitimate sense, by the State, or by the company invested with its power; nor can it be said that he was deprived of it. In the case of The Philadelphia and Trenton Rail[114]*114road, (6 Whart. 25), the words in the first paragraph were allowed to have their obvious and popular meaning, so as to be restrained to property taken away, and not extended to property injured by an act which did not amount to an assumption of the possession; and the same rule of interpretation would give the same meaning to the word “ deprived,” in the second. It is true, that a nuisance by flooding a man’s land was originally considered so far a species of ouster, that he might have had remedy for it by assize of novel disseisin, or assize of nuisance, at his election; but we are not to suppose that the framers of the Constitution meant to entangle their meaning in the mazes of the jus antiquum. It was aptly said by Chief Justice Tilghman, in The Farmers’ and Mechanics’ Bank v. Smith, (3 Serg. & Rawle 69), that conventions to regulate the conduct of nations are not to be interpreted like articles of agreement at the common law; and that where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention. And the reason for it is an obvious one. A constitution is made, not particularly for the jnspection of lawyers, but for the inspection of the million, that they may read and discern in it their rights and their duties; and it is consequently expressed in the terms that are most familiar to them. Words, therefore, which do not of themselves denote that they are used in a technical sense, are to have their plain, popular, obvious, and natural meaning; and, applying this rule to the context of the Constitution, we have no difficulty in saying that the State is not bound beyqnd her will to pay for property which she has not taken to herself for the public use.
If, then, the State would not be bound to pay for the damage done to the plaintiffs’ mill, had she been the immediate cause of it, how is the defendant bound 1 The company acted by her authority, as well as for the public benefit; and consequently,with no greater responsibility than is imposed by the Constitution, which, it must be admitted, has narrowed the protection that the delegation of her power would otherwise have afforded. “ The Legislature,” it is said in the tenth article and fourth section, “ shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of such property, or give adequate security therefor before
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The opinion of the Court was delivered by
Gibson, C. J.
The question for decision depends on considerations that did riot enter into the case of The Union Canal Co. v. Landis, (9 Watts 228). In that case, the grant to the individual contained a reservation in favour of the company to whom a prior right had been granted, which put at rest every pretence of claim to damages for acts subsequently done to the prejudice of the second grantee. The reservation was perhaps superfluous; but it seems to have been thought a judicious precaution, because a license followed by a permanent erection for the enjoyment of it is generally irrevocable; and it might have been deemed a contract, in that instance, which the State could not impair. But what grant is there in the statute of 1803 to require a reservation? That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams, without being indictable for a nuisance; and their exercise of it was consequently to be attended with expenditure of money and labour. But was this liberty to be perpetual, and for ever to tie up the power of the State? or is not the contrary to be inferred from the nature of the license ? The object was not to give a new and an irrevocable right; but. to restore the qualified use of an old one, so long as it should consist with the public good, by remitting the owner of the soil to the situation in which he stood before the stream was made a highway; and the statute did no more than operate a partial repeal of the Act which had declared it to be so. It reconciled a modified enjoyment of the owner's ancient right, to the present enjoyment of the public right of navigation and fishery. Hence it provided that the owner of land on the shore of a navigable river, declared by law to be a highway, might erect a dam on it, [113]*113if it were so constructed as not to “ obstruct or impede the navigation, or prevent the fish from passing up the same.” Is there anything like the offer of a bargain in that? So far was ,the Legislature from seeming to abate one jot of the State’s control, that it barely agreed not to prefer an indictment for a nuisance, except on the report of viewers, to the Quarter Sessions. But the repeal of a penalty is not a charter; and the alleged grant was no more than a mitigation of the penal law. It barely placed the owner of the soil in a position almost as favourable as that in which the declarative law had found him; and if that position were to secure him from disturbance, by any further measure of public improvement, the State would be incompetent to declare any river a highway on which thefe happened to be a mill-dam.' The statute is pro tanto a repealing one, which offers no express compact to any one; and such a compact is never to be implied. It was ruled in The Charles River Bridge v. The Warren Bridge, (11 Peters 420), that the State is not presumed to have surrendered a public franchise, in the absence of proof of an unequivocal intention to do so. It would seem that the public dominion may be parted with, but not without an expljcit renunciation of it. And this relieves the case from the pressure of that clause in the Constitution which declares that no State shall pass a law impairing the obligation of contracts.
It is contended, however, not so much that the power of the Legislature falls short of a case like the present, as that it can be exerted only on the basis of compensation made or secured ; and that for damage done by the authority of the State, there is, in every case without it, redress by action : in other words, that the authority is void. We must not forget, however, that the State is a sovereign who cannot be sued against her consent; and that there are no other limitations to her power over private property than those that are placed upon it by the Constitution. What are they? “No person shall, for the same offence, be twice put in jeopardy of life or limb; nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being given.” Again: “In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favour; and, in prosecutions by indictment or information, a speedy trial by an impartial jury of the vicinage: he cannot be compelled to give evidence against himself; nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.” Now, it cannot be said that the plaintiff’s mill was taken or applied, in any legitimate sense, by the State, or by the company invested with its power; nor can it be said that he was deprived of it. In the case of The Philadelphia and Trenton Rail[114]*114road, (6 Whart. 25), the words in the first paragraph were allowed to have their obvious and popular meaning, so as to be restrained to property taken away, and not extended to property injured by an act which did not amount to an assumption of the possession; and the same rule of interpretation would give the same meaning to the word “ deprived,” in the second. It is true, that a nuisance by flooding a man’s land was originally considered so far a species of ouster, that he might have had remedy for it by assize of novel disseisin, or assize of nuisance, at his election; but we are not to suppose that the framers of the Constitution meant to entangle their meaning in the mazes of the jus antiquum. It was aptly said by Chief Justice Tilghman, in The Farmers’ and Mechanics’ Bank v. Smith, (3 Serg. & Rawle 69), that conventions to regulate the conduct of nations are not to be interpreted like articles of agreement at the common law; and that where multitudes are to be affected by the construction of an instrument, great regard should be paid to the spirit and intention. And the reason for it is an obvious one. A constitution is made, not particularly for the jnspection of lawyers, but for the inspection of the million, that they may read and discern in it their rights and their duties; and it is consequently expressed in the terms that are most familiar to them. Words, therefore, which do not of themselves denote that they are used in a technical sense, are to have their plain, popular, obvious, and natural meaning; and, applying this rule to the context of the Constitution, we have no difficulty in saying that the State is not bound beyqnd her will to pay for property which she has not taken to herself for the public use.
If, then, the State would not be bound to pay for the damage done to the plaintiffs’ mill, had she been the immediate cause of it, how is the defendant bound 1 The company acted by her authority, as well as for the public benefit; and consequently,with no greater responsibility than is imposed by the Constitution, which, it must be admitted, has narrowed the protection that the delegation of her power would otherwise have afforded. “ The Legislature,” it is said in the tenth article and fourth section, “ shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of such property, or give adequate security therefor before such property shall be taken.” A corporation, then, must pay or secure the price of the property before it is taken; but the State must provide the means of payment at the passing of the Act. The difference is less in reality than appearance; and, in every other respect, the delegation of a valid authority protects the agents of the State as amply as it protects the State herself. Still, it is only to a case of taking that the obligation extends; and when a corporation acts by virtue of a constitutional law, it is subject to no other responsibility for acts of consequential damage, than is spe[115]*115cially provided for. But there is no provision for consequential damage in the statute by which the defendant has been incorporated. The eighth section provides for damage to the shores; and the sixteenth, which authorized the owners of private dams to make them part of the public works, has been repealed without giving them the same compensation for damages to their mills, as suggested by the company, that is given to the owners of the shores for damage to the soil. . But the suggested provision would scarce have reached the case before us; for the plaintiffs’ mill is seated, not on the Monongahela, which is the river that was in legislative view, but on the Youghiogeny, several miles above its confluence. Moreover, the compensation could have been had only by an award of freeholders, appointed by the parties or a justice of the peace, pursuant to the act of incorporation, and not by an action at the common law. If, then, the statute is constitutional, as it undoubtedly is, there is an end of the question; for a valid law necessarily affords a defence for acts commanded or authorized by it.
It is not, therefore, enough to set before us a case of moral wrong, without showing us that we have legal power to redress it. Beyond constitutional restraint or legislative power, thei^e is none but the legislative will, tempered by its sense of justice, which has happily been sufficient, in most cases, to protect the citizen. Compensation has been provided for every injury which could be foreseen, whether within the constitutional injunction or not, in all laws for public works by- the State or a corporation; though cases of damage have occurred'which could neither be anticipated nor brought within the benefit of the provision by the most strained construction. In one instance, a profitable ferry on the Susquehanna, at its confluence with the Juniata, was destroyed by the Pennsylvania canal; and, in another, an invaluable spring of water, at the margin of the river, near Selinsgrove, was drowned. These losses, like casualties in the prosecution of every public work, are accidental, but unavoidable; and they are but samples of a multitude of others; so that the plaintiffs have at least the miserable good luck to know that they have companions in misfortune: would that it were in our power to afford them more solid consolation !