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The Right Of Eminent Domain

The Right Of Eminent Domain image
Parent Issue
Day
5
Month
December
Year
1902
Copyright
Public Domain
OCR Text

Judge Newkirk's Paper Before Webter Farmers Club

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Read at a Recent Meeting - He Explains for what Purposes the Public Can Take Private Property

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The following is a synopsis of a paper read by Judge Newkirk before the Farmers' club, which is here printed at the request of the club, on What Rights Has the Public in Private Property?":

This is the subject given me, and as it context implies, alludes to a principle of law known as "The Right of Eminent Domain," or the right inherent in the government to take the property of the individual for the use of the public.

Judge Cooley in Trombley vs. Humphrey defines "Eminent Domain" as follows:

"Eminent Domain is the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience and welfare may demand.

"It has its foundation in the imperative law of necessity which alone justifies and limits its exercise."

The U. S. supreme court has defined it more tersely and quite as comprehensively in these words: "Eminent Domain is the power of the state to apply private property to public purposes on payment of just compensation to the owner."

This right has been recognized as long as governments have existed.

It is a right inherent in sovereignty necessary to and inseparable from it. It exists independent of constitutional recognition, and existed prior to constitutions. It lies dormant in the state until legislative motion is had pointing out the occasions, the modes, and the agencies for its exercise.

And even the legislature cannot deprive the state of this power. A case in Illinois illustrates this point: A cemetery association was created by an act of the legislature, land was purchased and dedicated to public use. Afterwards an attempt was made to take this land by right of eminent domain for some public purpose, on rendering proper compensation as required by all state constitutions; but the association claimed that the action of the legislature, the dedication to public use, constituted a contract between the State and the corporators within the constitutional provision, which prohibits legislation impairing the obligation of contract, and that any legislation tending to nullify this contract was against the constitutional provision and void.

But the supreme court said: "the right of eminent domain is an element of sovereignty and any contract in restraint of a free exercise of this right is not obligatory on the state and does not fall within the inhibition of constitution of the United States."

The fundamental principle upon which the right of eminent domain is based, is that the right must be exercised for the use and benefit of the public. Just what constitutes public use has never yet been fully settled, and probably never will be, as each involving this question is upon differing circumstances.

In the case of railroads, school houses, court houses, canals, etc., the law is plain as to course of procedure and propriety of exercising the right of eminent domain. But the great majority of cases that occupy the attention of our courts, come from an attempt on the part of corporations to extend business in different directions by right of eminent domain, or in other words, it is a question whether it is for private or public benefit.

The constitutions of many states specify the uses that shall be considered public uses, and when this constitutional provision exists the courts refuse to interfere unless the wrong is so palpable as to permit of no other course.

The constitutions of the United States and of all the states but North Carolina contain provisions relative to the power of eminent domain. These provision require that private property shall not be taken for public use without compensation. This compensation is generally determined by a jury or commission provided by law.

While the individual state cannot take property under this power for the use of or transfer to the U. S. government, the government may enter any state and take land under this power for the use of the government.

Many of you have noticed as I did during the recent coal strike, reference in the papers to the seizure of coal in transit to private parties, by the railroads, and appropriated to their own use. I at first thought they acted under a plea of eminent domain on the ground that it was a public necessity, that the roads should be operated, but I can find no authority for such action and hence conclude that the railroads took the coal simply because they needed it and had it in their possession. Of course paid for it.

During the coal strike many newspapers urged the government to take possession of the mines under the plea of eminent domain, and mine them for the benefit of the public. If there ever was a case where such an act on the part of the U. S. government was justified it was in this case. The public at large were suffering. Business in many localities was at a standstill for lack of fuel, and people were actually suffering in large cities because of the strike preventing the mining of coal. It would seem as though this property could be taken on the ground of public necessity and for the public good, and jet the law seems aw be against such a procedure.

In my opinion the seizure of such an article as coal under the circumstances such as prevailed last summer, for the purpose of relieving suffering would more properly come under the domination of the police power of the government than under eminent domain. In support of this opinion I quote from Blackstone as follows: Police is in general a system of precaution either for the prevention of crime or of calamities. The burning of houses to get rid of infectious disease is taking private property for the benefit of the public in one sense of the word, but the very nature of the act places it more nearly under police regulations than under the exercise of eminent domain.

Mill dams have been condemned and destroyed because they held back stagnant water and endangered public health, under this police power. It often happens in time of war that immense quantities of food, crops, fuel, clothing, etc., are burned to prevent the enemy profiting by their capture. This property is taken for the public good in a sense, and yet it is taken under the police power of the government as a matter of necessity, and necessity knows no law.

So I say that the proposed seizure of the coal mines as proposed would more properly come under the police powers of the state or general government rather than under the right of eminent domain.

While I am speaking of this matter I might as well say that the rapid growth of great corporations in this country and the possibility of their placing in jeopardy the comfort, happiness and very lives of our people by such an exercise of arbitrary power as has been seen in the action of the coal mine owners, in refusing to arbitrate the coal strike, will bring about, and that very soon, the passage of such laws as will place in the hands of the central government the police power to deal immediately and summarily with such corporations, and to serve to the citizen the inherent right of a reasonable enjoyment of the manifold bounties God has placed in the earth and on the earth for the enjoyment and benefit of all his children.

With a few men controlling the railroads, a few the coal mines and a few more out oil fields, it is imperative that steps be taken to the end that a repetition of such a catastrophe as has threatened this nation by the shutting down of the coal mines would be an impossibility.

With such a power placed in the hands of such a man as Theodore Roosevelt the health, comfort and happiness of the people would be assured.

Condemnation proceedings in Michigan, as in nearly all states, is regulated entirely by statute. A petition must be filed setting forth the necessity of the proceedings and describing the property. A jury is selected who pass upon the necessity and value of the property.

The building of electric and telephone lines is done under a general law; but all damages to the adjacent property must be paid for.

Thus it will be seen in what I have given to you that the answer to the question "What right has the public in the property of the individual?" is governed by the necessity of the public need, and not by the wish of the individual.

The sovereign power of the state or nation based upon the needs of the public is supreme; were it not so, a government of the people, by the people and for the people would be a misnomer.