In re Opinion of the Justices

• Decision Date: 31 March 1891
• Citation: 66 N.H. 629,33 A. 1076
• Parties: In re OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

33 A. 1076

66 N.H. 629

In re OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

March 31, 1891.

Advisory opinion from the justices of the supreme court in response to a resolution of the house of representatives.

Wayne MacVeagh and H. G. Sargent, for Austin Corbin. D. Barnard, Atty. Gen., for the State. P. S. Streeter, for the Concord Railroad.

To the House of Representatives:

The undersigned have received a copy of a resolution passed by your honorable body requiring our opinions on the right of the state to purchase the property described in the resolution as the "Concord Railroad." That property is no exception to the rule that private property may be taken for public use on payment of its value to its owners, and the property in question cannot be purchased or taken by the state, for less than its value, without the owner's consent. As this answer seems to be, for practical purposes, a compliance with the requisition of the house, it is deemed unnecessary, at the present time, to give a more specific and extended opinion. Understanding that the house desire an immediate answer, we submit the conclusion at which we have arrived, without stating reasons, which will be given at a future day. 45 N. H. 596.

Concord, March 31, 1891.

C. DOE.

W. H. H. ALLEN.

ISAAC W. SMITH.

LEWIS W. CLARK.

I. N. BLODGETT.

A. P. CARPENTER.

Notice of a public hearing having been given, the questions proposed by the house were argued by counsel March 30, 1891. This statement of the reasons of the opinion that was given the next day follows the course of the argument that was presented in support of the opposite opinion.

1. The first ground on which it was claimed that the state can take the Concord Railroad, on paying its owners less than its value, is that the constitution of New Hampshire does not require compensation to be made for private property taken for public use, and that the state is not bound, by contract or otherwise, to refrain from partial confiscation. By the first section of the Concord charter, Isaac Hill and others, and their associates, successors, and assigns, "are made a body politic and corporate under the name of the Concord Railroad Corporation." Laws 1835, Priv. Acts, c. 1. The stockholders are the corporation. 1 Kyd, Corp. 13-18; Mor. Priv. Corp. preface, and section 227; U. S. v. Trinidad Coal & Coking Co., 137 U. S. 160, 169, 11 Sup. Ct. 57; State v. Standard Oil Co., 49 Ohio St. 137, 177, 30 N. E. 279. They hold the entire equitable title and beneficial interest of the property by them put in the corporate trust, and they are the trustee in whom is vested the legal title. Their constitutional rights are not affected by mere incorporation, or by the division of their title into legal and equitable parts. Trustees v. Woodward, 1 N. H. 111, 115, 116, 120. "There can be no valid distinction between property held in trust and that owned by individuals, in respect to the protection afforded to it by the constitution" People v. O'Brien, 111 N. Y. 1, 57, 18 N. E. 692. "The corporation, like the individual, is guarded from a despotic exercise of power. Whatever is taken must be paid for.' Backus v. Lebanon, 11 N. H. 19, 23. The equal protection of the laws, secured by our bill of rights and by the federal constitution, is not an exclusive privilege of unincorporated persons. Santa Clara Co. v. Southern Pac. R. Co., 118 U. S. 394, 396, 6 Sup. Ct. 1132; Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 189, 8 Sup. Ct. 737; Railway Co. v. Mackey, 127 U. S. 205, 209, 8 Sup. Ct. 1161; Railway Co. v. Beckwith, 129 U. S. 26, 28, 9 Sup. Ct. 207; Railroad Co. v. Gibbes, 142 U. S. 386, 391, 12 Sup. Ct. 255. The law "places natural persons and corporations precisely upon the same ground" of "liability to legislative control." "It is the true ground, and the only one upon which equal rights and just liabilities and duties can be fairly based." Thorpe v. Railroad Co., 27 Vt. 140, 145; Stone v. Trust Co., 116 U. S. 307, 329, 6 Sup. Ct. 334, 388, 1191. The public power of taking private property is limited by the necessity from which it is held to be implied. Kohl v. U. S., 91 U. S. 367, 371, 373, 374. As it is not necessary to take land for a highway, or to make a public use of other property, without buying it or paying for the use of it, the state cannot forcibly dispossess the owner, without indemnifying him. Eminent domain is the power of compelling him to sell. Milldam Corp. v. Newman, 12 Pick. 467, 480. The sale includes compensation, which is the payment, not of a large or small portion of the value, but of the whole of it. Sinnickson v. Johnsons, 17 N. J. Law, 129, 145; Gardner v. Newburgh, 2 Johns. Ch. 162, 166-168; Bonaparte v. Railroad Co., Baldw. 205, 220, 221, 226, Fed. Cas. No. 1,617; Hooker v. New Haven & N. Co., 14 Conn. 146, 152, 153; Pumpelly v. Bay Co., 13 Wall. 166, 178, 179; Monongahela Nav. Co. v. U. S., 148 U. S. 312, 324, 325, 327-329, 337, 341-343, 13 Sup. Ct. 622; Bristol v. New Chester, 3 N. H. 524, 535; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35, 66, 67, 69; Backus v. Lebanon, 11 N. H. 19, 25; Petition of Mt. Washington Road Co., 35 N. H. 134, 142; Manufacturing Co. v. Fernald, 47 N. H. 444, 455; Ash v. Cummings, 50 N. H. 591, 612; Eaton v. Railroad Co., 51 N. H. 504, 510, 511; Thompson v. Androscoggin Co., 54 N. H. 545, 557, 558; Orr v. Quimby, Id. 590, 594, 599; Adden v. Railroad Co., 55 N. H. 413-415, 418; Thompson v. Androscoggin Co., 58 N. H. 108, 111; Low v. Railroad Co., 63 N. H. 557, 562, 3 Atl. 739; 1 Bl. Comm. 138, 139; 1 Hare, Const. Law, 333, 347, 349, 415; Cooley, Const. Lim. 691, 697-700.

Compensation is not merely an element of the implied power of coercive purchase. It is parcel of the rights of property and equality which are secured by express guaranties. The bill of rights is a list of rights reserved by the people. By the reservation they limited their grant, and exempted themselves, to the stipulated extent, from the authority of the government they created. Wooster v. Plymouth, 62 N. H. 193, 196-203. The reservation is therefore a controlling definition of "legislative power," in their grant of that power to the senate and house in the second article of the constitution. The right of acquiring property, and the rights of life and liberty, which the second article of the bill puts together in a class of rights there described as natural, essential, and inherent, are reserved for all men. Greenville v. Mason, 53 N. H. 515, 518. The first, tenth, twelfth, fourteenth, fifteenth, and twenty-third articles reinforce the second, and establish a general principle of equal right, which governs all by the same rule, and takes from no one more than his share of public expense. State v. Pennoyer, 65 N. H. 113, 114, 18 Atl. 878, and authorities there cited. Eminent domain would not be a legislative power, in the sense required by the bill, if it trenched upon the right of acquiring and possessing property, or the right of equality. Both rights would be invaded, were land taken for a highway, from an unconsenting owner, without full indemnity. "To provide a mode by which he shall be recompensed for property justly or unjustly taken from him is to protect his property." Railroad Co. v. Greely, 17 N. H. 47, 53. His right is not infringed when he is compelled, by due process of law, to sell a way for public use. Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35, 71. His share of the public expense, including land damages, is taken by taxation when a common road is built by the public across his land, and when a turnpike or other way built by him and other stockholders is bought by the public. More than their shares of a public expense would be taken from them, if their road were taken by the public without payment of its value.

It is not necessary, in the present inquiry, to consider an equal distribution of public expense by the tax power, or an exercise of the police power imposing fines and forfeitures as punishment, or destroying property for the prevention of fire, pestilence, or crime. An order to take property from its incorporated or incorporated owners, without paying them its value, and without their consent, for the sole purpose of enriching the state at their expense, would not be legislation. Law "is a rule, not a transient, sudden order from a superior to or concerning a particular person, but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general. It is rather a sentence than a law." 1 Bl. Comm. 44. The confiscation decree of November 28, 1778, entitled "An act to confiscate the estates of sundry persons therein named," was an exercise of the war power against persons who had, as the preamble alleged, "since the commencement of hostilities between Great Britain and the United States of America, left this and the other United States, and gone over to and joined the enemies thereof." Laws N. H. (Ed. 1789) p. 85; Thompson v. Carr, 5 N. H. 510, 515; Miller v. U. S., 11 Wall. 268, 305, 306, 315. It was a law in the sense of being a lawful order issued by men holding all power, legislative and nonlegislative, before the adoption of the constitution. Atherton v. Johnson, 2 N. H. 31, 34. It was not a law in the true legal sense explained by Blackstone, and by the reservations of the bill of rights which limit and define legislative power. Such retrospective acts are denounced in article 23 of the bill as highly injurious, oppressive, and unjust. And the understanding that they were repugnant to the rights and liberties reserved in 1784, and were prohibited by the bill, appears in the proviso qualifying the exception in article 90 of the constitution. An act of...