Amoskeag Manufacturing Co. v. Head

• Decision Date: 20 March 1876
• Citation: 56 N.H. 386
• Parties: Amoskeag Manufacturing Co. v. Head.
• Court: New Hampshire Supreme Court

56 N.H. 386

Amoskeag Manufacturing Co. v. Head.

Supreme Court of New Hampshire

March 20, 1876

Constitutionality of the flowage act of 1868.

The flowage act of 1868---Laws of 1868, ch. 20---is not unconstitutional

From MERRIMACK Circuit Court

This is a petition for the assessment of the defendant's land damages, under chapter 20 of the laws of 1868, entitled "An act to encourage manufactures." The petition states, among other things, "That said Amoskeag Manufacturing Company, under the authority so granted,

have purchased the land on both sides of Merrimack river at Amoskeag falls, and including the river and falls, and have there erected mills, dug canals, and established works, at a cost of several millions of dollars, and have encouraged others to also erect mills and works at an expenditure of several millions of dollars more, and intend erecting other works and mills at a large expense, and for the purpose of rendering the water-power of said river at said falls available for the use of such mills and works, have there constructed a dam across said river, and placed flash-boards thereon as part of said dam; that the construction of said mills and dam, and placing flash-boards thereon to raise the water for working said mills and works, and for creating a reservoir of water, and for equalizing the flow of the same for the use of such mills, is of public use and benefit to the people of this state, and that the same is necessary for the use of the mills for which it is designed."

The defendant filed a demurrer, and assigned as cause that "The statute, by which the plaintiff proposes to take the defendant's land and have the damages assessed, is unconstitutional and void."

The questions thereupon arising were transferred to this court for determination by FOSTER, C. J.

C. R Morrison, for the defendant

I. The public have no other or different rights, in respect to the property or business of the plaintiffs, than in respect to the property and business of any and every person and corporation in the state.

II. If the legislature can authorize the taking of the defendant's property by the plaintiffs, without his consent, it can authorize the taking of his property by any corporation or person, whether engaged in manufacturing trading, farming, or mechanical business: for every useful business is conducive to the public welfare.

III. And it can authorize towns and cities to loan their credit and impose taxes in aid not only of the plaintiffs' business, but of any laudable private and mere private enterprise, for it can impose taxes for any object for which it can take private property.

IV. And it can also take the plaintiffs' mills and water-power not only for the use of some other corporation engaged in like business, but even for the benefit of any lawful scheme for making money, by which the public would be more or less benefited.

V. On the contrary, we say that a taking for "public uses," within the meaning of our constitution, is only where there is a taking for the use of the public in some form, and that use not permissive but of right, and by compulsion if need be. Tyler v. Beacher, 44 Vt. 648; Loan Association v. Topeka, 20 Wall. 655; Allen v. Joy, 60 Me. 124; Cleaveland v. City of Iola, 9 Kan. 684; Curtis v. Whipple, 24 Wis. 350; Whiting v. Ford, 25 Wis. 188; Jenkins v. Sanderson, 103 Mass. 74; Lowell v. Boston, Law Review, July, 1873; Stewart v. Supervisors, 30 Iowa 24;---see, also, Mr. Carpenter's argument in Ash v. Cummings, 50 N.H. 591, and a brief herewith presented, prepared in the same case.

VI. It follows that a taking of the defendant's property without his consent, as prayed for in the plaintiffs' petition, would be contrary to our bill of rights, and against first principles. Concord Railroad v. Greeley, 17 N.H. 47; Loan Association v. Topeka, before cited.

VII. It follows, also, that such a taking falls within the prohibitions of the fourteenth amendment to the constitution of the United States. Mayo v. Wilson, 1 N.H. 57; Hutchins v. Edson, 1 N.H. 140; Cooley on Const. Lim., 2d ed., *294.

Mr. Morrison also furnished the following argument, prepared by him in Ash v. Cummings:

1. The most important question is as to the meaning of the terms "public use" and "public uses," as used in the constitution of the United States and of this state. The fifth article in amendment of the constitution of the United States declares that private property shall not be taken for public use without just compensation. The twelfth article of our bill of rights declares that no part of a man's property shall be applied to public uses without his own consent or that of the representative body of the people. The meaning of these terms seems plain enough upon their face. Any substitution of the words "public benefit," "public advantage," or "public good," for "public use" or "public uses," would be deemed unreasonable if not absurd, were there no motive to arrive at a different result from what the words naturally import; and so of the terms as found in our reported cases, prior to Company v. Fernald. Thus, in 1 N.H. 131, Dartmouth College v. Woodward, RICHARDSON, C. J., after quoting the twelfth article of our bill of rights, says that the cases in which a man's property may be taken from him and applied to public uses, with the consent of the representative body, are not specified;---and so of the opinions pronounced by PARKER, C. J. Thus, in 7 N.H. 68, 69, Piscataqua Bridge v. N. H. Bridge, while holding that corporate property is no more sacred than any other, he says it does not impair the plaintiffs' contract to hold that their franchise may be taken for public use,---that it is liable to be subjected to the public servitude and the public burdens,---but that no part of it can be taken from them except for public use, and upon adequate compensation being made; and throughout the opinion he uses the words public use and public servitude as convertible terms;---and in 8 N.H. 399, Barber v. Andover, in affirming the right of the legislature to authorize the laying out of a common public highway over a turnpike, provided compensation is made for property thus taken "for public use," he says it is true that the public have the right to the use of such turnpike road, under certain restrictions and limitations; but the public may require a further use of it in a different manner, and there is nothing in the nature of the grant to the corporation, or any use of the property, which should prevent the public from taking it for use in such different manner if the public exigencies require it;---and in 10 N.H. 373, 374, Pierce v. Somersworth, in deciding that where a

turnpike is so taken, the land-owners have not for that reason any right to further damages, he says that so far as they are concerned it is the substitution of a public right for a right previously existing, partly public and partly private but co-extensive in its limits and duration for that which is substituted, and that they have already been paid for a perpetual easement and right of passage for the public;---and in 11 N.H. 23, 24, in holding that a turnpike charter although a contract is not exempted from the right of eminent domain, he says that the corporation, like the individual, is guarded from a despotic exercise of power,---for whatever is taken must be paid for,---and that it may be true that the power does not extend to the destruction of rights, whether individual or corporate, merely because an opinion exists that it may be beneficial to the public that they should be extinguished. It may be (he says) that the power does not extend to cases where no public use can be had of what is taken, even if a provision for compensation was made; but that no decision was necessary upon that point. In Concord R. R. v. Greeley, the court held, only after elaborate discussion, that a railroad of a private corporation, if for the use of the public by paying a toll to the owner, and subject to be regulated by law, may be authorized to take private property, and that such taking is for public uses. The whole course of argument is wholly opposed to the loose construction given in Company v. Fernald; and even in the Petition of the Mount Washington Road Company, 35 N.H. 134--140, in which the opinion was given by PERLEY, C. J., the validity of the act was sustained upon the ground that the corporation was created for the purpose of opening, constructing, and maintaining a road for public travel, subject to a toll granted and limited by the act of incorporation, and that the road in its general objects and use was in no respect different from the numerous turnpike roads which have been made in this state. If, says the learned chief justice, the enterprise was of a public character and the road opened to public use, the legislature would have the power to authorize the taking of private property to accomplish the public object; and that whether the public good required the legislature to exercise that power, in the particular instance, was a question for their discretion, and their decision could not be reversed in a judicial tribunal. It is obvious enough that, in the passages quoted, the term "public uses" is not by any means synonymous with public benefit, or public advantage; and there is nothing in our reports, before Company v. Fernald, to give any countenance for such transmutation. The nearest approach to it is the language of Chief Justice RICHARDSON, in 3 N.H. 534, where, in speaking of grants of the right to make a turnpike, he says that the power of the legislature to take the property of individuals for "public purposes" is indisputable; and the language of WOODBURY, J., in 2 N.H. 25, that it has been always understood in this state, and...