Alabama & Florida Railroad v. Kenney , 39 Ala. 307 ( 1864 )

A. J. WALKER, C. J.

Tbe pleading of tbe complainant in this case is in tbe form of a petition, addressed to a circuit judge, praying alone for an injunction, and neither making any persons parties, nor seeking process as to any parties. There are, besides, greater or less defects in tbe form of tbe allegations. It is insisted, that all these imperfections were amendable, and, upon tbe principle in tbe second head-note to tbe case of Nelson & Hatch v. Dunn, (15 Ala. 501,) should be regarded as amended when a motion to dissolve an injunction is made in vacation.- This proposition is probably correct; and without discussing it, or giving it any careful reflection, we will consider this case as if those imperfections were amended; for such a course will not change the result.

[2.] The correctness of the chancellor’s decision upon the merits is assailed, upon two, and only two grounds. Those grounds are — that the taking of private property. which is under mortgage, for the use of the general government, impairs the obligations of a contract; and that the taking in this case effected the destruction of a franchise granted by a state, and was therefore invalid. These questions we shall consider upon the supposition, that the general government is under the restrictions, as to the power to impair the obligation of* contracts, which the constitution makes applicable to the states; though we wish to be understood as conceding the point, only because it is not necessary to decide it, and not because we intend to announce any opinion upon it.

The provision of the constitution of the Confederate States, and of the constitution of most of the states, is the same, so far as it affects the question of the power to take private property for public use. There is a power, alike in the general government and in the states, to take private property for public use, qualified by the restriction that just compensation must be made. Under all established governments, it is a recognized principle, that all property is held subject to an inherent right in the government to appropriate it to the public use, when the public good may require it to be done. Whether this principle is deduced from the law of eminent domain, extended to personal property as its increasing value required, or to an original contract implied from “ the mutual necessities of the individuals about to constitute a political community,” it is not necessary now to speculate. — Bloodgood v. M. & H. R. R. Co., 18 Wend. 9-57; Dyer v. Tusk. Bridge Co., 2 Porter, 296; West River Bridge Co. v. Dix, 6 How. 507-516, 532. It is sufficient for the purposes of this opinion, that the principle is universally acknowledged by publicists and jurists.

All property, except that which has been inherited, is held under contract; and its title and enjoyment are frequently, if not generally, guarantied. If, therefore, it be understood that property cannot be taken for public use, where ib is derived by a contract, it would result, that the great mass of property in the country would be beyond the reach of the government, no matter how great might be the necessity. 'The principle, however, which subjects private property to public use, compensation being made, is said to be illimitable, and to apply to all property. — See Sedgwick on Stat. and Con. Law, 512. To take property for the public use does not, in the sense of the constitution, impair the obligation of the contract, under which the property is held. It transfers to the government the rights.of property given by the contract; and compensation for the benefits of the contract is required to be made. The constitutional power of taking private property “ operates upon the property, and not on the contract.”

While the question has usually been decided upon the ground above stated, an eminent judge has given a reason somewhat different. In the West River Bridge Co. v. Dix, (6 Howard, 507-532,) Judge Daniel says : “Into all contracts, whether made between states and individuals, or between individuals only, there enter condibions, which arise not out of the literal terms of the contracb itself they are superinduced by the pre-existing and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all; are binding upon all, and need never therefore be carried into express stipulation, for this could add nothing to their, force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur. Such a condition is the right of eminent domain. This right does not operate to impair the contract affected by it, but recognizes its obligation in the fullest extent, claiming only the fulfillment of an essential and inseparable condition.”

While there may be some difference in the reasons given, there is a current of authorities, holding, with unvarying ■uniformity, tbat tbe taking of private property for tbe public use does not infringe tbe clause of tbe constitution designed to protect tbe obligation of contracts, and tbat a state may take even tbe franchise of a corporation chartered by itself, or any of its property, for tbe public use, when tbe charter contains no stipulation restrictive of tbe power.— West River Bridge Co. v. Dix, supra, and tbe cases collected by Judge Woodbury in bis opinion, p. 543 ; R. F. & P. R. Co. v. Louisa R. Co., 13 How. 82; Charles River Bridge v. Warren Bridge, 11 Peters, 420; Crosly v. Hanover, 36 N. H. 404; Northern R. R. v. C. & C. R. R. Co., 7 Foster, 183 ; Enfield T. B. Co. v. H. & N. R. R. Co., 17 N. H. 454; Backus v. Lebanon, 11 N. H. 19 ; Brewster v. Hough, 10 N. H. 138 ; Piscataqua Br. v. N. H. Bridge, 7 N. H. 36, 68; Red River Br. Co. v. M. & A. of Clarksville, 1 Sneed, 176; Bailey v. Millenberger, 31 Penn. St. 37; N. Penn. R. R. Co. v. Davis, 26 Penn. St. 238; James River & Kan. Co. v. Thompson, 3 Grat. 270; White River T. Co. v. V. C. R. R. Co., 21 Ver. 590; Board &c., v. Ohio & N. J. R. Co., 14 Ill. 314; U. S. v. R. Br. Co., 6 McL. 517 ; Young v. McKenzie, Harrison & Co., 3 Kelly, 31; Boston & Lowell Cor. v. S. & L. R. Co., 2 Gray, 1; Miller v. N. Y. & E. R. Co., 21 Barb. 513; Dyer v. Tusk. Br. Co., 2 Porter, 298; Sedgwick on Stcat. & Con. Law, 664.

Of tbe several cases above cited, we remark only upon tbe facts of one — North Penn. R. R. Co. v. Davis. In tbat case, tbe persons in possession of tbe land sought to be condemned held under a lease, with a covenant on tbe part of tbe lessors to renew tbe lease for three years at a specified price. It was contended, tbat tbe contract for the" renewal of tbe lease would be impaired by appropriating tbe property to public use, because its performance would be rendered impossible. This argument was overruled, and tbe appropriation sustained; tbe court bolding, that tbe lessee was entitled to compensation for tbe loss of tbe benefit of the covenant for renewal. Tbe principle settled by these oases is, tbat all property is liable to be taken for public use. Mortgaged property cannot constitute an exception to tbe rule. There may be more difficulty in ascertaining tbe damages where such property is taken; but there can be no variation in the principle.

While it is well settled by the cases to which we have referred above, that a franchise is property, and that it, as well as the property by means of which it exists, may be taken for public use; there is no case which we have found, holding that it may be taken by the general government, when it exists by virtue of a state charter. What would be the law in such a case, we need not decide. The government did not, in this case, take the franchise, nor property indispensable to the existence of the franchise, or to the exercise of the privileges bestowed by the act of incorporation.

The pleadings raise no question as to the making of compensation, or as to the regularity of the proceedings for condemnation, or for the ascertainment of the damages. So far as the bill discloses, there is no ground of complaint, or dissatisfaction, on those points, in any quarter.

The decree of the chancellor is affirmed.