James S. Holden Co. v. Connor ( 1932 )

I dissent from the opinion of Mr. Chief Justice CLARK. The ordinance, quoted in his opinion, was passed after plaintiff acquired the real estate in question. The ordinance may not, in my opinion, be sustained under the police power. It could be sustained under the power of eminent domain if it provided for just compensation to plaintiff. It does not do this, and is, therefore, unconstitutional and void.

(a) That one shall not be deprived of property without due process of law, and just compensation therefor, is a fundamental right, guaranteed both by Federal and State Constitutions. The fifth amendment to the Constitution of the United States provides:

"No person shall * * * be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The 14th Amendment to the Constitution of the United States provides:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law."

The Constitution of this State provides:

"Private property shall not be taken by the public nor by any corporation for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law." Section 1, art. 13.

(b) What is property? The idea of property was imbedded in the jurisprudence of imperial Rome. Grotius and Puffendorf sought to base the idea on agreement or compact. Blackstone criticizes the views of Grotius, Puffendorf, Barbeyrac, Tacitus, and Locke, and insists the basis of property is occupancy. Blackstone's views have been criticized by Sir Henry Maine, Chief Baron Pollock, and others. Herbert Spencer and Lorimer thought property was naturally created by the economic necessity of individual existence. Hegel conceived it resulted from projecting the individual will over external objects. Ihering says, "Property is but the periphery of my person extended to things." Kohler says, "The totality of a person's proprietary powers constitute his property."

(c) At the time of the separation of the American colonies from Great Britain, Entick v. Carrington, 19 Howell's State Trials, 1030, had just been decided. Lord Chief Justice Camden, speaking for the court, said (1066):

"The great end, for which man entered into society, was to secure their property."

Madison, in the tenth Federalist, spoke of: "The diversity in the faculties of men, from which the rights of property originate." Gouverneur Morris, in the constitutional, convention, said life and liberty were said to be of more value than property. "An accurate view of the matter would nevertheless prove that property was the main object of society."

John Rutledge expressed the view that property was the principal object of society. Rufus King supported the same doctrine. Charles C. Pinckney spoke of this as "A government instituted for the protection of property." Pierce Butler called it, "A government instituted principally for the protection of property." James Wilson did not agree property was the sole and primary object of government.

(d) The legal conception of property has often beenconsidered and defined.

"Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. * * * Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land."Buchanan v. Warley, 245 U.S. 60, 74 (38 Sup. Ct. 16, L.R.A. 1918C, 210, Ann. Cas. 1918A, 1201).

"Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership becomes a barren right. Therefore a law which forbids the use of a certain kind of property strips it of an essential attribute and in actual result prescribes its ownership."Spann v. City of Dallas, 111 Tex. 350 (235 S.W. 513, 19 A.L.R. 1387).

"Of what does property practically consist, but of the incidents which the law has recognized as attached to the title, or right of property? Is not the idea of property in, or title to lands, apart from, and stripped of all its incidents, a purely metaphysical abstraction, as immaterial and useless to the owner as 'the stuff that dreams are made of?' Is it not a much less injury to him, if it can injure him at all, to deprive him of this abstraction, than of the incidents of property, which alone render it practically valuable to him? And among the incidents of property in land, or anything else, is not the right to enjoy its beneficial use, and so far to control it as to exclude others from that use, the most beneficial, the one most real and practicable idea of property, of which it is a much greater wrong to deprive a man, than of the mere abstract idea of property without incidents? This use, or the right to control it with reference to its use, constitutes, in fact, all that is beneficial in ownership, except the right to dispose of it; and this latter right or incident would be rendered barren and worthless, stripped of the right to the use." Grand RapidsBooming Co. v. Jarvis, 30 Mich. 308.

"Property may be defined as certain rights in things which pertain to persons, and which are created and sanctioned by law. These rights are the right of user, the right of exclusion and the right of disposition." 1 Lewis, Eminent Domain (3d Ed.), § 63.

"Property, then; in a determinate object, is composed of certain constituent elements, to-wit, the unrestricted right of use, enjoyment and disposal, of that object." City of St. Louis v. Hill, 116 Mo. 527 (22 S.W. 861, 21 L.R.A. 226).

"The term 'property' includes every interest any one may have in any and everything that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same." Bailey v. People, 190 Ill. 28 (60 N.E. 98, 54 L.R.A. 838, 83 Am. St. Rep. 116).

"Property itself in a legal sense is nothing more than the exclusive right of possessing, enjoying and disposing of a thing which of course includes the use of a thing." Chicago W. I. R. Co. v. Railroad Co., 115 Ill. 375 (4 N.E. 246, 56 Am.Rep. 173).

"Property * * * is not alone the chattel or the land itself, but the right to freely possess, use and alienate the same."City of Denver v. Bayer, 7 Colo. 113 (2 P. 6).

"The right of private property secured by guaranties in the Federal and State Constitutions, includes the right to acquire, possess, protect, enjoy, and dispose of such property." 12 C. J. p. 945.

"The right to own property carries with it the right to exercise dominion and control over it. When the dominion, control, and management of one's property is taken away from him, the right to private property is violated. To take away the dominion and control over property is to take the property itself, for the absolute right to property includes the right of dominion, control, and the management thereof."Fisher v. Bountiful City, 21 Utah, 29 (59 P. 520).

"The word 'property' in the tenth article of the bill of rights, which provides that 'whenver the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor,' should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such." Old Colony Fall River R.Co. v. County of Plymouth, 14 Gray (80 Mass.), 155.

(e) What constitutes a taking of property?

In commenting on the case of Duke of Buccleuch v.Metropolitan Board of Public Works, L. R. 5 H. L. 418, it was said in Delaplaine v. Railway Co., 42 Wis. 214, 233 (24 Am.Rep. 386):

"The test applied to determine the proper meaning of the words, 'injuriously affected' as giving a right to compensation was whether the act done in carrying out the works in question was an act which would have given a right of action if the works had not been authorized by act of parliament. * * * In other words, if the act affecting the land had been done by an individual, he would be liable for the damages."

"If land is injured and in consequence of an act which would have been the subject of an action at common law but for the statute, compensation may be required and awarded." Mills on Eminent Domain (2d Ed.), § 183.

"If a railway company * * * in constructing its road did an act injurious to an adjacent neighboring proprietor for which if done by the original owner he would have been responsible at common law, the company should be liable to compensate the proprietor so injured." Texas Sabine R. Co. v. Meadows, 73 Tex. 32 (11 S.W. 145, 3 L.R.A. 565).

"The test is, would the injury, if caused by a private person without authority of statute, give the plaintiff a cause of action against such person? If so, then he is entitled to compensation notwithstanding the statute which legalizes the damaging work." Peel v. The City of Atlanta, 85 Ga. 138 (11 S.E. 582, 8 L.R.A. 787).

"From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner is 'property.' If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes 'property' — although the owner may still have left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property that he formerly had. Then, he had an unlimited right; now, he has only a limited right. His absolute ownership has been reduced to a qualified ownership. Restricting A's unlimited right of using 100 acres of land to a limited right of using the same land, may work a far greater injury to A than to take from him the title in fee simple to one acre, leaving him the unrestricted right of using the remaining 99 acres. Nobody doubts that the latter transaction would constitute a 'taking of property.' "Eaton v. Railroad Co., 51 N.H. 504, 511 (12 Am. Rep. 147).

"It does not appeal to one's sense of justice to say that the exercise of a right possessed is not of as much benefit to the possessor as the taking of that right from the owner would be to the trespasser." Stock v. Township of Jefferson, 114 Mich. 357,360 (38 L.R.A. 355).

"Whenever the lawful rights of an individual to the possession, use and enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain his property is, pro tanto, taken, and he is entitled to compensation." 1 Lewis on Eminent Domain (2d Ed.), § 56.

It has always been a basic principle of the law that "If the work is of great public benefit, the public can afford to pay for it." Eaton v. Railroad Co., supra, 518.

"To say to a man that he shall not use his property as he pleases, under certain conditions, is to deprive him pro tanto of the enjoyment of such property." Ronayne v. Loranger,66 Mich. 373, 378.

"To deprive him of such enjoyment is to deprive him of the property itself, wholly, or to the extent of the mischief."Stock v. Township of Jefferson, supra, 361, quoting fromKoopman v. Blodgett, 70 Mich. 610 (14 Am. St. Rep. 527).

"It is a transparent fallacy to say that this is not a taking of his property, because the land itself is not taken, and he utterly excluded from it, and because the title, nominally, still remains in him, and he is merely deprived of its beneficial use, which is not the property, but simply an incident of property. Such a proposition, though in some instances something very like it has been sanctioned by courts, cannot be rendered sound, nor even respectable, by the authority of great names." Grand Rapids Booming Co. v.Jarvis, supra, 320.

"To deprive him of any valuable use of his land is to deprive him of his land pro tanto. So that, the principle of the Constitution is as applicable where the owner is partially deprived of the uses of his land as where he is wholly deprived of it. Taking a part is as much forbidden by the Constitution as taking the whole." Mansfield v. Balliett, 65 Ohio St. 451 (63 N.E. 86, 58 L.R.A. 628).

"The term 'taking' should not be used in an unreasonable and narrow sense. It should not be limited to the absolute conversion of property, and applied to land only; but it should include cases where the value is destroyed by the action of the government, or serious injury is inflicted to the property itself, or exclusion of the owner from its enjoyment, or from any of the appurtenances thereto. In either of these cases it is a taking within the meaning of the provision of the Constitution. * * * If the public take any action which becomes necessary to subserve public use, and valuable rights of an individual are thereby interfered with, and damaged or destroyed, he is entitled to the compensation which the Constitution gives therefor, and such damage or destruction must be regarded as a 'taking.' " Pearsall v. Supervisors,74 Mich. 558, 561 (4 L.R.A. 193).

"Any injury to the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation. * * * And any regulation which deprives any person of the profitable use of his property constitutes a taking, and entitles him to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power." 2 Cooley's Constitutional Limitations (8th Ed.), pp. 1158, 1160, 1161.

"It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use." Pumpelly v. Green Bay Co., 13 Wall. (U.S.) 166.

It seems to have been a settled principle of universal law that the right to compensation is an incident to the exercise of the power of eminent domain; the one is inseparably connected with the other; and they may be said to exist, not as separate and distinct principles, but as parts of one and the same principle. Sinnickson v. Johnson, 2 Har. (17 N.J. Law) 129 (34 Am. Dec. 184), quoted with approval in Pumpelly v. GreenBay Co., supra; United States v. Lynah, 188 U.S. 445 (23 Sup. Ct. 349); United States v. Cress, 243 U.S. 316 (37 Sup. Ct. 380).

(f) We are concerned with the limitations thrown around private property by the Constitution, beyond which the police power may not operate.

"The (police) power is subject to the limitations imposed by the Federal and State Constitutions upon every power of government, and it will not be suffered to invade or impair the fundamental liberties of the citizen." 2 Cooley's Constitutional Limitations (8th Ed.), p. 1229.

"The police power of the legislature in this State is not omnipotent. It cannot, under the guise of regulation, destroy property rights arbitrarily and without reason." City of GrandRapids v. Powers, 89 Mich. 94, 113 (14 L.R.A. 498, 28 Am. St. Rep. 276).

"I am not yet prepared to hold the police power absolute and omnipotent; that the legislature can arbitrarily and without reason, and in defiance of right, pass any statute it may see fit under this power, provided it does not run against some express provision of our State or Federal Constitutions."Whitney v. Township Board, 71 Mich. 234, 237.

(g) Constitutions were framed to protect the rights and liberties of individuals; to mark out the scope of the powers of government; define the limits of individual autonomy, into which neither the State nor any subordinate governmental agency thereof may enter.

"The constitutional provision is adopted for the protection of, and security to, the rights of the individual as against the government." Pearsall v. Supervisors, supra, 561.

"The legal protections of property are the same against artificial persons as against others, and the State itself, or any one of its municipalities, has no more power to deprive the owner of his possessions than has the private citizen."Burford v. Grand Rapids, 53 Mich. 98, 102 (51 Am. Rep. 105).

We have sought to ascertain what constitutes property, a taking of property, the limitations upon the exercise of the police power by the State and the subordinate governmental subdivisions thereof, the meaning of the language of the Constitutions of the State and Federal governments when such language was used and adopted. Changing by judicial construction the settled meaning of words aptly used in the Constitution is more than the exercise of legislative power. It wrests private rights from their moorings, lets down constitutional barriers, and alters the foundation of government.

If the Constitution is wrong it may be amended, but so long as it remains unamended courts are to construe its language now to mean what it plainly meant when used by those who framed and adopted it. No one will contend plaintiff could have been deprived of a part of his property by a mere police regulation then. We cannot give the language of the Constitution a meaning it did not then have; except the exercise of the police power from the prohibitions of the Constitution; and say the police power may be exercised, not in accordance with the Constitution, but in violation of its provisions.

(h) It seems clear, independent of judicial decisions elsewhere, this ordinance is in violation of the Constitution of Michigan. The best considered cases elsewhere sustain this position.

Building lines beyond which the owner cannot build may not be established under the police power. Willison v. Cooke,54 Colo. 320 (130 P. 828, 44 L.R.A. [N. S.] 1030); City of St. Louis v. Hill, supra; Romar Realty Co. v. Haddonfield,96 N.J. Law, 117 (114 A. 248); People, ex rel. Dilzer, v. Calder,89 App. Div. 503 (85 N.Y. Supp. 1015); Fruth v. Board ofAffairs of Charleston, 75 W. Va. 456 (84 S.E. 105, L.R.A. 1915C, 981); Eubank v. City of Richmond, 226 U.S. 137 (33 Sup. Ct. 76, 42 L.R.A. [N. S.] 1123, Ann. Cas. 1914B, 192); Byrne v. Maryland Realty Co., 129 Md. 202 (98 A. 547, L.R.A. 1917A, 1216); Kansas City v. Liebi, 298 Mo. 569 (252 S.W. 404, 28 A.L.R. 295); White's Appeal, 287 Pa. 259 (134 A. 409, 53 A.L.R. 1215); Fitzhugh v. Cityof Jackson, 132 Miss. 585 (97 So. 190, 33 A.L.R. 279);Opinion of Justices, 124 Me. 501 (128 A. 181); Ricci v.Meyer, 5 N.J. Misc. 102 (135 A. 666); 1 Lewis, Eminent Domain (3d Ed.), § 227; 2 Dillon, Municipal Corp. (5th Ed.), § 695; Tiedeman's Limitation of Police Power, § 121a. They may be established only under the power of eminent domain. Ricci v.Meyer, supra; Byrne v. Maryland Realty Co., supra; Romar RealtyCo. v. Haddonfield, supra; Inhabitants of Watertown v. Dana,255 Mass. 67 (150 N.E. 860); Eaton v. South Orange, 3 N.J. Misc. 956 (130 A. 362), affirmed in 103 N.J. Law, 182 (134 A. 917); Opinion of Justices, supra; Franklin Real Estate Mortgage Co. v. South Orange, 4 N.J. Misc. 109 (132 A. 81), affirmed in 103 N.J. Law, 194 (134 A. 917).

Judgment is reversed.