Humphrey v. People ex rel. Trombley

• Decision Date: 10 October 1871
• Court: Michigan Supreme Court
• Parties: The People on the relation of Joseph Trombley v. William Humphrey, Auditor-General of the State

23 Mich. 471

The People on the relation of Joseph Trombley v. William Humphrey, Auditor-General of the State

Supreme Court of Michigan

October 10, 1871

Heard October 4, 1871

Application for mandamus.

A sufficient statement of the case is given in the opinion.

Writ applied for denied.

S. M Green and Isaac Marston, for the relator.

Dwight May, Attorney-General, and G. V. N. Lothrop, for the respondent.

Cooley J. Christiancy, J., and Campbell, Ch. J., concurred. Graves J., concurred in the result.

OPINION

Cooley, J.:

On the 27th day of March, 1867, the legislature of this state passed an act purporting to authorize and empower the governor to seize and take possession of any land, not exceeding one hundred and sixty acres, within the state, for the purpose of conveying the same to the United States, for the erection and maintenance of light-houses thereon. For this purpose he was to appoint three commissioners, who were to enter upon, and take possession of, the land in the name of the state, cause the same to be surveyed and platted, assess the value thereof, to fix the compensation to be paid by the state therefor. Their decision was to be filed within twenty days after being made, and thereupon the title to the land seized was to be vested absolutely in the state, and the owners and claimants of the land were to be paid from the state treasury the sum awarded. And the governor was further empowered to convey the land, so seized, to the United States on being paid the amount awarded, together with the expenses incurred in the proceedings. On the 24th day of February, 1869, certain amendments were made to this act, which, however, are not of importance in our present discussion.

On the 14th day of November, 1870, the governor having previously been notified from the office of light-house engineers, of the desire of the United States to acquire a certain site for a light-house, at or near the mouth of the Saginaw river, appointed three commissioners to enter upon, and take possession of, the same, and appraise the value and fix and determine the compensation to be paid therefor conformably to the requirements of the act aforesaid as so amended. These commissioners proceeded as directed, appraised the value of the land and fixed the compensation to be paid at the sum of seventeen thousand four hundred and ninety-six dollars and eighty-four cents, and duly filed their report as required by the act. The officer in charge of the light-house department, however, when informed of this report and award, immediately notified the governor that the sum awarded was regarded as excessive, and was, moreover, greater than the appropriation made by congress for the purpose; and for these reasons the acceptance of the land for light-house purposes was declined. Thereupon the governor apprised the commissioners of the conclusion, but the owners of the land, claiming that the title had passed by the proceedings to the state, insisted on being paid the sum awarded, and having demanded from the auditor-general a warrant for such payment and been refused, one of them has instituted this proceeding to compel the issue and delivery of such warrant.

The state resists this application on various grounds, some of which go to the regularity of the proceedings merely. The view we take of the legislation, however, does not render it necessary to consider objections of mere form, because we think the acts in question have no constitutional warrant, and consequently all the proceedings taken to condemn land under them are void.

If the state has authority to condemn the lands, it must be by virtue of its eminent domain; and it is to this that the right is referred by the relator's counsel. The eminent domain may be said to be 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. The authority springs from no contract or arrangement between the government and the citizen whose property may be appropriated, but it has its foundation in the imperative law of necessity, and is recognized, and may be defended and enforced, upon the ground that no government could perpetuate its existence and further the prosperity of its people, if the means for the exercise of any of its sovereign powers might be withheld at the option of individuals. The right being thus found to rest upon necessity, the power to appropriate in any case must be justified and limited by the necessity; and whenever in any instance the government or its officials shall attempt to seize and appropriate that which cannot be needful to the due execution of its sovereign powers or the proper discharge of any of its public functions, the same means of resistance and legal redress are open to the owner that would be available in case of a like seizure by lawless individuals: Matter of Albany Street, 11 Wend. 151. Any employment of the power for other purposes than to enable the government to exercise and give effect to its proper authority, effectuate the purpose of its creation and carry out the policy of its laws, could not be rested upon the justification and basis which underlie the power, and consequently would be wholly unauthorized and inadmissible.

The states of this Union possess the eminent domain for all legitimate purposes under their own sovereignty. They may take and appropriate lands for roads, canals, state-houses, court-houses, school-houses and many other purposes needful to enable them to accomplish the objects for which their governments have been created by their people. But there are other public objects which, though to be accomplished within their territorial limits, are just as much beyond the scope of the eminent domain as possessed and exercised by them, as they would be if to be accomplished within the exclusive jurisdiction of a foreign nation. Under the division of powers between the United States and the individual states, each has its sphere of sovereignty, within which it moves and operates without let or hindrance from the other, and within that sphere it employs the eminent domain wherever needful to the complete and effectual exercise of its powers, and with as little occasion or necessity for the permission or assistance of the other as if the two governments were wholly foreign to each other, instead of being constructed as parts of one harmonious system. For the one to enter the sphere of the other and employ its officers and machinery in the exercise of its eminent domain for the benefit of the other would not only be as much without warrant, but also as much a work of supererogation, as for the United States to exercise the like authority and employ the like agencies in a foreign country in order to appropriate individual property therein for the benefit of the government of such foreign country, which, as a sovereignty, had powers of its own fully adequate to the purpose.

In the exercise of its sovereignty, and as a part of its provision for the regulation, control and protection of commerce, the United States erects light-houses, and may without question seize the property of individuals for the purpose, observing the constitutional requirement of making due compensation therefor. To do this, would be but an ordinary exercise of the right of eminent domain. But when the state undertakes to do the same, not for any purposes of its own, but in order to turn the property over to the United States, the difficulties appear to us insurmountable. In the first place there can be no necessity for the exercise of this right by the states for this purpose, for the authority of the nation is ample for the supply of its own needs in this regard under all circumstances. In the second place, the eminent domain in any sovereignty exists only for its own purposes; and to furnish machinery to the general government under, and by means of, which it is to appropriate lands for national objects, is not among the ends contemplated in the creation of the state government. Thus we perceive that the foundation upon which must repose the right to appropriate individual property against the will of the owner under the eminent domain, is wholly wanting in the case before us. We do not doubt that the appropriation would have been effectual had the United States seen fit to accept the land and the owners to receive the compensation awarded; for a statute may transfer the title to land in any form the parties mutually assent to-- Embury v. Conner, 3 N.Y. 511; but until the assent of both is signified, the proceedings are and must be wholly inoperative.

When we look into the legislation of congress, we discover also that the United States has never undertaken to confer upon the states authority to judge of its needs of lands for national purposes, or to assess the compensation it should pay. Any such judgment and assessment must consequently be wholly provisional, and subject to its acceptance and ratification. If in the mean time the title of land seized could vest in the state, and the state could be required to make payment therefor as is attempted by this proceeding, we reach the extraordinary result, that the state may seize and appropriate the lands of an individual for the sole purpose of turning it over to the Union for its needs; while on the other hand the Union is at liberty to accept it or not at its option, and if it shall refuse, the state, whose position in the taking was that of agent merely, without any interest whatever of its own, must, nevertheless, retain and pay for the land, while the owner,...