Thompson v. Grand Gulf Railroad & Banking

4 Miss. 240

• Court: Mississippi Supreme Court
• Decided: January 15, 1839
• Status: Published

Opinion

Mr. Chief Justice Sharkev

delivered the opinion of the court at a subsequent day of the term.

The present controversy arose out of an application by the appellees to the circuit court of Clairborne county, to have the damages assessed to the appellee, which he might sustain by running the railroad through his land. The proceeding was instituted under the 4th sect, of the charter, which authorises the company to purchase of individuals any lands, or the use and occupation of any lands which they may deem necessary; and in case they cannot agree upon the terms of purchase, -with the owners of land, they may petition the circuit court of Clairborne county to empannel a jury of twelve freeholders, who shall be sworn to view and value the land without favor or partiality, and report their valuation to the circuit court, and the court shall thereupon cause a conveyance to be made to the company, and adjudge the assessed value thereof to the owner of the land. The amendment to the charter, passed in 1837, provides in addition, that in assessing the damages, the jury shall take into consideration the benefits resulting to the owner of land from constructing such road, but only towards the extinguishment of the damages, and that the court shall -grant a conveyance, and render judgment and award execution against the company for the amount of the damages assessed. •

Several objections are made to the regularity of the proceedings of the circuit court, but it will be unnecessary to notice them in detail, as the case must be disposed of on the grave question of the constitutionality of the charter, taken and relied upon in the argument. That part of the charter which is said to conflict with the constitution, is the latter clause of the first section of the amendment. The ground taken arises, under the provision in the bill of rights, which declares that “ no person’s property shall be taken or applied to public use without the consent of the legislature, and without just compensation first made therefor.”

It is insisted that the compensation should be first made, and that a judgment is not compensation. On the other hand it is said that it is sufficient for the legislature to provide the means by which compensation is to be acquired. To determine between the constitution and the legislature, is often embarrassing, and always demands a cautious and deliberate investigation. In the inquiry is involved the highest function of the judicial department. The acts of the legislature should be sustained, if possible; the constitution must be preserved inviolate. We have approached this question under a dne sense of its importance, and have given to it such investigation as the limit of our time would admit, and we are entirely satisfied with the correctness of the result to which that investigation has led.

It is a sound rule in construing constitutions, that no word' is to be rejected or disregarded which may have a material bearing on the rights of the citizen, and such construction should be given as will best protect private rights, because constitutions are limitations, which confine each department of the government to the exercise of such powers only as have been delegated. The word “ first,” used in the bill of rights, cannot be regarded as useless; nor are we at liberty to suppose that it was inserted without design or by accident. The sentence is perfectly intelligible as it stands, and in accordance with first principles. By-regarding the word “ first” as material, there can be no difficulty in carrying the provision into execution by proper legislation; but by rejecting it, and assuming the position that it is sufficient for the legislature to provide the means or the mode of obtaining compensation, the provision might be wholly defeated, and owners compelled to part with their property without compensation. If the law be sustainable, it must operate generally, there is no exception to it. Suppose that a company or corporation, to whom private property is adjudged, should be wholly irresponsible, and it is not straining too much to suppose such a case, what compensation has the owner for his property? But even if it should be responsible, is it fair or just to convey away private property, and only provide the owner with a legal remedy for the value, which may easily be exhausted in the pursuit of the remedy. These, amongst others, are evils which might follow .under an administration of the provisions of the charter, if they are sufficient, and being evils so apparent, it is fair to presume that the convention intended to guard against them, and the presumption derives strength from the fact that the words they employed, if literally construed, are of all others, best calculated to effect this object. The power in a state to appropriate private property by virtue of its right of eminent domain, should be exercised only in the strictest justice towards the owner of the property. Blackstone, in his Commentaries, says, “the public is now considered as an individual, treating with an individual for an exchange.” 1 Black. Comm. 139. If this remark be true, it is obvious that neither party would have a right to enforce terms on the other, which are not acceptable. We cannot presume that the convention intended that this right should be exercised unless on terms the most favorable to individuals. Life, liberty and property are three great objects of governmental protection, and we must infer that due precaution has been used for the protection of each of them. To divest the right to property without ample compensation, would be unjust. The judgment in this case is ■not compensation. A judgment is but a security for compensation or satisfaction, which may or may not prove productive. In principle there is no difference between a judgment and a bond, except that one is a security of a higher nature than the other. Suppose the legislature had said that the railroad company should, give bond for the payment of the damages assessed, could it be said to be a compensation? And yet it might be quite as available as a judgment. Angelí, in a note on this subject, says, “there can be no other just equivalent but money.” Angelí on Water Courses, 40. We must, therefore, understand that when the convention said that private property should not be taken without compensation first made, that they did not intend that a mere security should be subsituted for compensation.

The authorities cited for the defendants in error, cannot be considered as entirely applicable. The constitution of New York is different from ours, in not requiring that compensation shall be first made; it merely declares that private property shall not be appropriated to public purposes without just compensation. The authorities, however, do not fairly cover the point in controversy. The most recent opinion directly op the point, and the one which we rely on as an authority, is that of Chancellor Kent, in a copious note to the third edition of his Commentaries. After citing many authorities in regard to the right of eminent domain, he proceeds to say: “ The better opinion is, that the compensation, or offer of it, must precede or be concurrent with'the seizure and entry upon private property under the authority of the state. The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceeds without taking these steps, their officers and agents may, and ought to be restrained by injunction.” 2 Kent, 339, note. He says further: “ The settled and fundamental doctrine is, that government has no right to take private property for public purposes without giving a just compensation; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception concurrently, in point of time with, the actual exercise of the right of eminent domain.” It is worthy of remark too, that Chancellor Kent has not given the foregoing opinion in view of any constistation requiring, in direct terms, a previous indemnity, but in reference to constitutions containing nothing more than the general provision, that private property shall not be taken for public uses without full compensation being made; and in reference also, to the universal principles of justice, independent of all constitutions; for in support of it, he cites Puftendorf, Grotius and others. He also cites the Civil Code, and Code Napoleon, as both requiring previous indemnity; and says the American constitutions being substantially the same in these provisions, though not in the same words, would seem to require the same construction; from which we may infer that under these codes, previous indemnity is required to be made. The provision in the Civil Code, is, that “no one can be divested of his property, unless for some purpose of public utility, and on consideration of a previous and equitable indemnity, and in a manner previously prescribed by law.’’ Civil Code of Louisiana, art. 4S9. The idea is not new, that compensation should precede or be concurrent with the appropriation of private property, nor is the provision peculiar to our constitution. As the right to apply private property to public uses, is an incident of inherent sovereignty which might be exercised to the prejudice of individuals, it is fair to infer that the convention were not content that the restriction should rest upon the uncertain application of the general principles of justice, and, therefore, incorporated it into the constitution, thus placing it out of the power of the legislature to exercise the light on any other than equitable and just terms. Under this view, we think it was incompetent for the legislature to authorise the railroad company to take private property, giving the owner no other compensation than a judgment and execution.

But it is contended that an imperfect mode of compensation does not necessarily make the charter void. That is true, if it could be carried into effect. This was held to be the law in the authorities cited. An act appropriating private property without providing adequate means for making compensation, was held sufficient to protect the agents from an action of trespass. The act, it seems, is to be considered, prima facie good, until the party be judicially prevented from acting under it. But when there is no mode prescribed for making the necessary compensation, a court of chancery would prevent-the party from proceeding under it by injunction, as was done in the case of Gardner v. The Tillage of Newburg, cited by the counsel. That is precisely the case here. The legislature have prescribed no mode of making the required compensation, or what is the same thing, have prescribed a mode which cannot be constitutionally carried into effect, and the plaintiff in error refuses to give up his property, and he cannot be compelled to do so. The consequence is, that that portion of the charter which authorises the taking of private property, must be inoperative, and we do not wish to be understood as interfering with any other part of it. If there was any mode of construing the charter by which a constitutional remedy could be given, we should think it our duty to give it that construction. But the legislature has provided that the owner of land in wdiose favor damages are assessed, shall have judgment and execution for the amount. This is the only remedy that is given, and we say it is not sufficient; but we cannot make a remedy that is sufficient, by authorising the court to give a different judgment from that which is directed by the legislature. That is the business of the legislature itself, if it should be deemed necessary. If the money had been paid on the rendition of the judgment, we should not be prepared to say that it would not have been sufficient; but this was not done, and the party has nothing but the judgment. It was competent for the legislature to prescribe the mode of assessing the damages as they did.

In support of this opinion, it may not be out of place to remark that one of the members of this court was also a member of the convention, and recollects that the above mentioned provision in the bill of rights was discussed, and it was framed as it is on due deliberation, and with a view to secure to individuals a previous indemnity for property taken.

Under these views, we feel constrained to reverse the judgment, and dismiss the application.