Appeal of Palairet

• Citation: 67 Pa. 479
• Parties: Palairet's Appeal.
• Decision Date: 08 May 1871
• Court: United States State Supreme Court of Pennsylvania

67 Pa. 479

Palairet's Appeal.

Supreme Court of Pennsylvania.

May 8, 1871

February 14, 1871

1. Retrospective legislation is not of itself unconstitutional except so far as it has an effect prohibited by the fundamental law.

2. An act which operates retrospectively to take what is by the existing law one man's and without his consent transfer it to another, with or without compensation, violates the Bill of Rights.

3. " The law of the land" means due process of law by which what one alleges to be his property is adjudged not to be his, or it is forfeited upon conviction by his peers of a crime for which by law it was subject to forfeiture when the crime was committed.

4. The right of eminent domain being for the safety and advantage of the public overrides all rights of private property.

5. The legislature with the executive is upon all questions of policy the exponents of the will of the people.

6. The Act of April 15th 1869 for extinguishment of ground-rents is unconstitutional.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ.

READ J., at Nisi Prius.

Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 221, to January Term 1871.

The proceeding was commenced February 24th 1871, by a petition in the name of the Commonwealth, at the relation of John Ganser against John G. Palairet and others, trustees, & c., of Mary Ann Palairet, under the Act of April 15th 1869, Pamph L 1869, p. 47, Purd. 1570, which is as follows:--

" An Act to provide for the extinction of irredeemable rents.

Whereas there were formerly reserved or created in Philadelphia and other parts of this Commonwealth, yearly rents, which in their nature or by lapse of time are or have been irredeemable by the owners of the land whereout they issue; in consequence whereof the power of such landowners to sell or mortgage their land is greatly limited.

And whereas, the policy of this Commonwealth has always been to encourage the free transmission of real estate, and to remove restrictions on alienation, so that it is and is hereby declared to be necessary for the public use to provide a method of extinguishing such irredeemable rents, having a due regard for private rights: therefore,

Section 1. Be it enacted, & c., That it shall be lawful for any owner of land, on or out of which any irredeemable rent has been charged or reserved, to apply by petition, in the name of this Commonwealth, at his own relation, to the Court of Common Pleas for the county in which such land shall be situated, for an order on the owner of such rent, to show cause why a decree for the extinguishment thereof should not be made on his being compensated therefor, in the manner hereinafter provided; whereupon the court shall cause a citation to issue to the owner of the rent, according to the practice of the said court; and if he shall be unknown, or not a resident of the said county, the court shall cause notice to be given to him by advertisement, as they shall deem advisable, and the notice so given shall be deemed and taken to be actual service for all purposes.

Section 2. On the return of such citation, or after publication as aforesaid, if the owner of the land and the owner of the rent do not agree on the terms on which the former shall be allowed to purchase the rent, then the court shall cause a venire to issue, directed to the sheriff, requiring him to summon a jury of twelve disinterested freeholders of the county, who shall assess and determine the damages which the owner of the said rent will suffer by the compulsory extinction of the same, which shall not be estimated at less than twenty years' purchase thereof; and the damages being so assessed, and the inquest confirmed by the court, it shall be lawful for the owner of the land to pay or tender to or for the use of the owner of the rent, in such manner as the court shall direct, the sum so found, together with all the costs of the proceedings; and whereupon the court, upon due evidence of such payment or tender, shall enter a judgment that the said rent shall thenceforward be taken to be extinguished, and no action thereafter for the recovery thereof shall be brought in any court of this Commonwealth.

Section 3. If such rent shall be held wholly or partly by any person under any disability, or absent from the country, or by persons for successive estates, or on trust, then the court shall have all such power to direct in what way the said damages, so assessed, shall be tendered, paid or secured, as a court of equity could have in the premises; and if the owner of the rent shall be unknown, then the money shall be paid into court, to be invested in the loan of this Commonwealth to the use of such owner; and if no claimant shall appear therefor within the space of ten years thereafter, such loan shall be transferred by the state treasurer to the sinking fund provided by law. * * *

Section 5. That if the petitioner in any such case shall, after the confirmation of the return of the inquest, fail for the space of three months to pay or tender the damages and costs aforesaid, according to the directions of the court, it shall be lawful for the court thereupon, at the option of the respondent, to enter a judgment for the payment of such damages and costs by the petitioner, to be enforced by execution, as other judgments in the said court, or else to dismiss the petition, and vacate the proceedings thereon at the petitioner's costs."

The petition set forth that the relator was seised of two lots of land in Philadelphia, subject to three irredeemable ground-rents, which are now owned by J. G. Palairet and others, trustees above named.

The petition prayed for--

An order and citation against the defendants to show cause why a decree for the extinguishment of the above-named ground-rents should not be made, upon their being compensated therefor, according to the terms and in the manner set forth in the above Act of Assembly.

The answer of the defendants admitted that they were seised of the three irredeemable ground-rents, as stated in the petition, and submitted to the court that their title to the said three yearly ground-rents, so held by them in trust, could not be divested or taken away from them, unless the same should be required by the Commonwealth for public use, in exercise of her right of eminent domain; and that where no public right is involved, and the question was merely between the said John Ganser, as owner of the property, and themselves, as the owners of an estate or encumbrance thereon, no act of the legislature could divest, or at all affect their right or title in and to the same.

After argument the Court of Common Pleas decreed the extinguishment of the ground-rents, Ludlow, J., delivering the following opinion:--

" Upon the 15th day of April 1869, the legislative department of the government of Pennsylvania, with the approval of the executive of the Commonwealth, declared in the most formal manner, that the policy of the state, which has always encouraged the free transmission of real estate and removed restrictions upon alienation, required the absolute extinguishment of irredeemable rents, and thereupon because of a public necessity, which existed, and for the public use, a method is provided by which these rents may be extinguished, only, however, upon due notice to all parties interested, and upon ample compensation being awarded, which ‘ shall not be estimated at less than twenty years' purchase thereof.’ Is this act constitutional? That question can be determined only by the judicial department of the government, and in order to settle it the petition and answer have in this case been filed, and this Act of Assembly must now receive a judicial construction. It may be noticed, in passing, that the preamble of the law is not the law itself; it, however, serves a useful purpose, because it explains the object and intention of the legislature, and we may therefore safely affirm, that the legislature intended to accomplish an act, not for private ends, but for the public good; reasons of state policy affecting the masses of the people led to the passage of the act, and the governor must have concurred in the views entertained by the legislature, for he gave his official approval to the act.

Here, then, is the exercise of the right of eminent domain, and because it embraces a class of cases of a peculiar nature, challenges our careful consideration.

It cannot be denied that a cursory view of this legislation inclines one to reject it as unconstitutional; first, because it divests a vested estate; and secondly, because it appears to violate that cardinal doctrine of our organic national law, which declares that a contract is a sacred thing, and when once made shall not be destroyed; this view, however will either be very seriously shaken, or wholly changed by a more deliberate examination of the subject. Jurists and other writers have based the origin of the right of eminent domain upon various grounds; one calls it the ‘ transcendental right; ’ another declares that title to all real estate is so vested in the Commonwealth, that the right to use and enjoy exists, only subject to the paramount authority of the state; but, after all, we think the true origin of this right, as well as the occasion for the exercise of it, depends upon that public and overwhelming necessity which compels the supreme power, for the welfare of the entire community, to enact laws which, in particular cases, work hardships to individuals, but which must inevitably benefit the public. Property may, therefore, be taken, but never without paying to the owner thereof just compensation. What but a political necessity justified the legislature of Pennsylvania, on the 27th...