City of Cincinnati v. Louisville Nashville Railroad Company

• Decision Date: 19 February 1912
• Docket Number: No. 385,385
• Citation: 223 U.S. 390,32 S.Ct. 267,56 L.Ed. 481
• Parties: CITY OF CINCINNATI, Plff. in Err., v. LOUISVILLE & NASHVILLE RAILROAD COMPANY
• Court: U.S. Supreme Court

223 U.S. 390

32 S.Ct. 267

56 L.Ed. 481

CITY OF CINCINNATI, Plff. in Err.,

v LOUISVILLE & NASHVILLE RAILROAD COMPANY.

No. 385.

Submitted January 9, 1912.

Decided February 19, 1912.

[Syllabus from pages 390-392 intentionally omitted] Messrs. Edward M. Ballard and Albert Bettinger for plaintiff in error.

[Argument of Counsel from pages 392-396 intentionally omitted] Messrs. J. B. Foraker and Ellis G. Kinkead for defendants in error.

[Argument of Counsel from pages 396-398 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

Under an act of the legislature of the state of Ohio of May 9, 1908, being § 3283a, and an ordinance of the city of Cincinnati in pursuance of that act, the defendant railroad company instituted, in a court of the state of Ohio, a suit to condemn a right of way for an elevated railroad track across the public landing at Cincinnati. Pending the condemnation proceeding the city of Cincinnati filed a bill in one of the common pleas courts to enjoin the railroad company from constructing its railway across said public landing, in pursuance of its agreement and contract with the city under the ordinance mentioned, and to restrain the prosecution of its pending petition for the condemnation of an easement of way across the landing. The ground upon which it was sought to stop the condemnation proceeding and prevent the company from constructing its elevated tracks across the public landing was that § 3283a, Revised Statutes of Ohio, under which alone an easement of way might be appropriated, was repugnant to article 1, § 10 of the Constitution of the United States, forbidding any state to pass any law impairing the obligation of a contract, in so far as § 3283a applied to the particular property across which an easement of way was sought to be appropriated.

That section, so far as necessary to be here stated, provides that upon compliance therewith any railroad company owning or operating a railroad wholly or partially within the state might 'use and occupy for an elevated track any portion of any public ground lying within the limits of a municipality and dedicated to the public for use as a public ground, common, landing, or wharf, or for any other public purpose,' excepting streets, alleys, and public roads. It is provided that before instituting a proceeding for the appropriation of the needed easement, which is to be according to a general statute referred to, such company shall submit plans for the structure, and come to an agreement with the city council of the municipality concerned, as to the terms and conditions upon which the easement shall be occupied.

The proprietors of the grant of land upon which the city of Cincinnati was originally laid out made a plan or plat of the proposed town, according to which plan a strip of ground between Front street and the Ohio river was set apart 'as a common for the use and benefit of the town forever.' The effect of the sale of the town lots under this plan has long since been held to constitute a dedication of the river front strip to the public use, and to have vested in the city of Cincinnati a valid title in trust for the public use in the same manner that streets were held under the same plat or plan. Cincinnati v. White, 6 Pet. 431, 8 L. ed. 452. This dedication was made in 1789, and the property has ever since been used as a public landing or wharf.

A demurrer to the petition was sustained by the court of common pleas, and the bill dismissed. This was affirmed upon appeal to the circuit court, and again affirmed upon appeal to the supreme court of the state.

That the dedication in 1789, and acceptance by the then town of Cincinnati, constitute a contract with the dedicators, obligatory upon the town and its successor, the city of Cincinnati, may be conceded. The contention is that the Ohio act of May 9, 1908, now § 3283a Revised Statutes of Ohio, is an impairment of the contract, forbidden by the 10th section of the first article of the Constitution of the United States. But the right of every state to authorize the appropriation of every description of property for a public use is one of those inherent powers which belong to state governments, without which they could not well perform their great functions. It is a power not surrendered to the United States, and is untouched by any of the provisions of the Federal Constitution, provided there be due process of law; that is, a law authorizing it, and provision made for compensation. This power extends to tangibles and intangibles alike. A chose in action, a charter, or any kind of contract, are, along with land and movables, within the sweep of this sovereign authority.

The constitutional inhibition upon any state law impairing the obligation of contracts is not a limitation upon the power of eminent domain. The obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefor. Such an exertion of power neither challenges its validity nor impairs its obligation. Both are recognized, for it is appropriated as an existing, enforceable contract. It is a taking, not an impairment of its obligation. If compensation be made, no constitutional right is violated. All of this has been so long settled as to need only the citation of some of the many cases. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. ed. 773; West River Bridge Co. v. Dix, 6 How. 507, 12 L. ed. 535; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep. 252; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. Rep. 718; Offield v. New York, N. H. & H. R. Co. 203 U. S. 372, 51 L. ed. 231, 27 Sup. Ct. Rep. 72.

Every contract, whether between the state and an individual, or between individuals only, is subject to this general law. There enters into every engagement the unwritten condition that it is subordinate to the right of appropriation to a public use. West River Bridge Co v. Dix, 6 How. 507, 12 L. ed. 535; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 691, 692, 41 L. ed. 1167, 17 Sup. Ct. Rep. 718.

These general propositions are not challenged.

But it is said that the right of appropriating private property to a public use possessed by the state of Ohio is only that which is defined and limited by the second article of the ordinance of 1787, creating a government for the Northwest territory, which embraced the territory which later became the state of Ohio. That ordinance, after providing for a territorial government, declares certain political principles to be fundamental, and that they should constitute the 'basis of all laws, constitutions, and governments,' thereafter organized out of that territory, and should be regarded as 'articles of compact between the original states and the people and states in the said territory, and be unalterable unless by common consent.' The article referred to, and claimed now to be still obligatory, is in these words:

'No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same.'

But the ordinance of 1787, as an instrument limiting the powers of government of the Northwest territory, and declaratory of certain fundamental principles which must find place in the organic law of states to be carved out of that territory, ceased to be, in itself, obligatory upon such states from and after their admission into the Union as states, except in so far as adopted by such states and made a part of the law thereof. This has been the view of this court, so often announced as to need no further argument. Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Permoli v. New Orleans, 3 How. 589, 11 L. ed. 739; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 688, 27 L. ed. 442, 446, 2 Sup. Ct. Rep. 185.

In the Escanaba & L. M. Transp. Co. Case, it was said:

'Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a state of the Union. On her admission she at once became entitled to and...