Cunningham v. Campbell

• Decision Date: 30 November 1863
• Parties: Hardie C. Cunningham, plaintiff in error. vs. David L. Campbell, et al. defendants in error.
• Court: Georgia Supreme Court

33 Ga. 625

Hardie C. Cunningham, plaintiff in error. vs. David L. Campbell, et al. defendants in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1863.

Possessory Warrant, decided by Judge Lochrane, 1st September, 1863.

The statement of the case will appear in the opinion of the Court.

E. A. Nisbet and A. Iverson, for plaintiff in error.

C. B. Cole and B. Hill, for defendants in error.

By the Court.—Jenkins, J., delivering the opinion.

At Macon, on or about the 1st day of June, 1863, H. C. Cunningham, Assistant Commissary of the Confederate States for the District of Georgia, seized certain parcels of sugar, severally owned and possessed by Collins & Lewis, Singleton & Collins, and David L. Campbell, under an Act passed by the Congress of the Confederate States, to regulate impressments. Compensation for said sugars was tendered by the impressing officer to the owners, at the price of seventy-five cents per pound, specified in a schedule arranged and published in advance by commissioners appointed for the State of Georgia under the 5th section of the Act, and declined. About the 1st of September following, these parties applied for and obtained from the Hon. O. A. Lochrane, Judge of the Superior Courts of the Macon District, possessory warrants, under sections 3932 to 3939 inclusive, of the Code. These warrants having been executed by bringing before Judge Lochrane the said Cunningham and the property so seized, it was agreed that the cases be considered together, and disposed of by one judgment. In the response of Cunningham, his official character, the authority under which he acted, the regular appointment of the commissioners, and their adoption and publication of the schedule, to which he referred, were averred, and were admitted by the other party. He also plead to the jurisdiction of the Court, under and by virtue of this statutory proceeding.

It was admitted that the owners of the sugars had offered to sell them to the Commissary at market prices, and proven that they had paid for the same $1 00 per pound, and that they were worth $1 20 to $1 25 per pound when seized. After argument his Honor ordered that the sugars be restored to the possession of the movants, unless the Government assess the price of and pay for them according to the first and second sections of the Act, and the defendant excepted.

Before proceeding to consider the questions essentially involving the merits of the case, I must endeavor to disencumber it of some considerations which the able counsel have urged with great force and ingenuity. Much has been said of " necessity, " of " urgent necessity, " of a law older than and superior to the Constitution, styled the "salus populi." Labored efforts have been made to prove on the one hand that this is, and on the other that it is not, a case of urgent necessity; on the one hand that the seizure was, and on theother that it was not made in virtue of that unwritten "suprema lex." I remark, first, that inexorable necessity is the corner stone of the supreme law, here characterized as above all written constitutions, recognized and obeyed, because without it there is no safety for the people. This necessity is everywhere, and at all times a creature of the present, is never discovered by provision, but looms up and asserts itself in the inevitable now. It discloses present evil menacing the body politic, and demands a present and sure remedy. The procedure, of which the defendants in error complained in the Court below, is the result of forecast, intended to provide for the future foreseen wants. This appears from the facts: 1st, that the identical course prescribed to accumulate supples for the army in magazines, posts and depots, was pursued. The second paragraph, second section of General Orders No. 37, issued by the Adjutant and Inspector General, April 6, 1863, is in these words: "Impressments may be made under orders from Generals commanding armies, departments, corps, divisions, brigades, and by commanders of detached parties and posts, when a necessity arises, which orders may be executed by quartermasters, commissaries, etc., for their respective departments." Here we have an army regulation providing for cases of urgent necessity.

The paragraph concludes in these words: " The Quartermaster General, Commissary General and Surgeon General may designate the officers and persons who shall be competent to make impressments, to accumulate supplies at posts and depots." It does not appear that the seizures in this case were made by order of any General commanding an army, a department, corps, division, brigade, or detached party or post. We are, therefore, unauthorized to assume that they were made to meet an immediate necessity. The order came from the Chief Commissary in the district of Georgia, who acts in direct subordination to the Commissary General, under whose direction impressments to accumulate supplies are made. The correctness of this view appears, secondly, from the fact that these sugars were neither consumed nor removed in the interval between the seizure andthe date of the warrants, a period of three months. This, then, was not a case of " extreme necessity " inducing and justifying action upon the principle "salus populi, suprema lex." It was a proceeding authorized by statute, for which conformity to a written constitution is claimed.

Again, I remark, that the word necessity does not occur in the clause of the Constitution conferring or recognizing the power of impressment. The, 16th paragraph, 9th section, 1st article, after providing sundry safeguards to personal rights, concludes thus: "nor shall private property be taken for public use, without just compensation." It is not, " nor shall private property be taken to meet a public necessity, but for public use, " etc.

It is under this clause of the Constitution, or similar clauses in the Constitution of the several States, that in our day authority is claimed to appropriate property for the construction of public highways, railroads and bridges, and the opening of streets. I by no means intend to say that it did not pre-exist in the States, nor that it is not a power inherent in all governments. My position is, that by unavoidable implication it is here granted with a condition annexed. It is very clear that when applied to the objects above enumerated, and many others of like character, the exercise of the power cannot be justified upon the plea of necessity. These purposes are not analogous to the repulsion of an invading army, the stay of pestilence, or the arrest of conflagration—instances usually employed to illustrate the idea of great public necessity. They are intended not to prevent public loss, but to promote public gain—not to avert public calamity, but to advance public improvement. Hence we learn that all cases of justifiable seizure of private property are not reducible to stern necessity, very many of them being found, by severe analysis, to rest on no higher sanction than public utility. So numerous and so concurrent are the authorities in support of such seizures, that it would be a waste of time to cite them.

I refer to but two, which are controlling with this Court, and in one of which the distinction between cases of necessi-ty and those of utility is taken. In Parham vs. The Justices, etc., 9th Georgia 841, on page 348, 349, this Court said: "It is not to be doubted that there are cases in which private property may be taken for public use, without the consent of the owner, and without compensation, and without any provision of law for making compensation; these are cases of urgent public necessity, which no law has anticipated, and which cannot await the action of the Legislature. These cases illustrate the maxim, \'salus populi, supreme lex.\' This rule of necessity has a very narrow application, and is an exception indeed, to the general rule, which is, that when public necessity or utility requires the assumption of private property, it can only be done by the Act of the Legislature, and the Legislature must make provision for compensation. If it does not the Courts may pronounce the law a nullity."

And in Cox & Hill vs. Cummings, (yet unpublished) we held: " It is obvious that Congress can pass no law depriving the owner of his property, even for public use, unless adequate compensation is secured by the law." And again: "It is the duty of the Government to provide some fair and proper mode to ascertain the value of the property taken. And to pay for it without delay. The citizen may be compelled to submit to this encroachment upon his private rights when the public good requires it. But whenever he is forced to make the surrender he is entitled to the value of the property taken at the time it is taken, " etc.

Thus we see further it is the settled doctrine of this Court, that when the Congress of the Confederate States enact a law, authorizing the seizure of private property for public use, they will be presumed to proceed under the clause of the Constitution above quoted, and should be held to the observance of the condition, viz: a provision for "just compensation." It would seem to me that whatever may be said of the existence of the power to seize, independently of this clause, there can be no question as to the limitation thus placed upon its exercise. Indeed, the terms in which this clause is expressed, are adapted rather to limiting an inherent or preexisting power, than to an original grant of it. To the latter, language such as this would have been more appropriate: "private property may be taken for public use, and just compensation therefor shall be made." Hence, in treating of this clause as a grant of power, Courts usually say it is so by necessary or unavoidable implication. Be that as it may, there is the clear, positive prohibition, "private property shall not be taken for public use without just compensation." Chancellor Kent in his Commentaries, says: "A...