E. Shore Land Co. v. Peckham

Decision Date18 March 1912
Citation82 A. 487,33 R.I. 541
PartiesEAST SHORE LAND CO. v. PECKHAM et al.
CourtRhode Island Supreme Court

Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Suit by the East Shore Land Company against Fenner H. Peckham and others. On certified constitutional questions from the superior court. Questions answered, and papers remitted for further proceedings.

Henry W. Hayes and Frank T. Easton, for complainant. Harry P. Cross, Asst. Atty. Gen., for respondents.

DUBOIS, C. J. In the above-entitled cause, which is a suit in equity brought in the superior court, the constitutionality of Pub. Laws, c. 569, approved April 27, 1910, has been brought in question upon the record by the complainant's amendment of the third paragraph in its bill of complaint, wherein it is alleged: "That said chapter 569 of the Public Laws passed at the January session, 1910, was and is in conflict with article 5 of the articles in addition to and amendment of the Constitution of the United States of America, which provides that 'no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation,' and is also in violation of section 10 of article 1 of the Constitution of Rhode Island, which provides that 'no person shall be deprived of life, liberty or property unless by the judgment of his peers or the law of the land,' and is also in violation of section 16 of article 1 of the Constitution of Rhode Island, which provides that 'private property shall not be taken for public use without just compensation.'" The constitutional questions aforesaid have been certified to this court for hearing and determination by the superior court under the provisions of Gen. Laws 1009, c. 298, § 1.

The act in question is entitled "An act to condemn certain land by the state for metropolitan park purposes" and includes in the description of the lands that may be taken thereunder land belonging to the complainant. The complainant alleges that the respondents undertook to take and condemn, under the provisions of said act, and in the manner therein prescribed, a certain portion of its said land, but that said taking and condemnation were ineffectual and void because of the unconstitutionality of said act hereinbefore alluded to. The portions of said act material to the present consideration read as follows:

"Section 1. * * * And if any party shall agree with the executive committee of said commission for the price of the land so taken, or for the value of his right or interest therein, the same shall be paid to him forthwith, upon the order of said executive committee, by the general treasurer, out of any funds available therefor.

"Sec. 2. Any owner of, or any person entitled to any estate in, or interested in, any part of the land so taken, who cannot agree with the executive committee of said commission for the price of the land so taken, or of his right or interest therein, may, within three months after personal notice of said taking, or, if he have no personal notice, may within one year from the filing of the description and statement aforesaid, apply by petition to the superior court in the county of Providence setting forth the taking of his land and praying for an assessment of damages by a jury. Upon the filing of such petition, said court shall cause twenty days' notice of the pendency thereof to be given to said commission by serving the secretary thereof with a certified copy thereof, and may proceed, after such notice, to the trial thereof, and such trial shall determine all questions of facts relating to the value of such land and the amount thereof, and such case and the verdict of the jury shall be subject to all rights of exception, of motions or petitions for new trial, and of appeal, as are now provided by law, and upon the recovery of final judgment, execution shall be issued therefor and shall be forthwith paid by the general treasurer out of any funds available therefor.

"Sec. 3. In case any owner or any person having an estate or interest in such land shall fail to receive personal notice of the taking of such land, and shall fail to file his petition, as provided in section 2 hereof, said court, in its discretion, may permit the filing of such petition subsequent to said period of one year from the filing of such description and statement: Provided, such person shall have had no actual knowledge of the taking of such land in season to file such petition, and provided the state shall not have paid any other person or persons, claiming to own such land, the value thereof, or be liable to pay for the same under any judgment rendered against said commission under the provisions of this act.

"Sec. 4. The land authorized to be taken under this act shall be taken within one year after the passage hereof."

Although the complainant had attacked the constitutionality of the act upon three grounds, in the amended paragraph of its bill of complaint aforesaid, at the argument before this court it waived its claim that said act violated the provisions of the fifth amendment to the Constitution of the United States. The complainant lost nothing by its conduct in so doing, for this court has uniformly concurred in the doctrine announced by Chief Justice Marshall in the case of Barron v. Mayor and City Council of Baltimore, 7 Pet. at page 247, 8 L. Ed. 672: "The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a Constitution for itself, and in that Constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several Constitutions, they have imposed such restrictions on their respective governments as their own wisdom suggested— such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest." In State v. Paul, 5 R. I. at page 196, Chief Justice Ames, referring to the fifth and sixth amendments to the Constitution of the United States, used the following language: "So far as this objection is claimed by virtue of the articles in amendment of the Constitution of the United States, it is certainly without foundation. From the history of these amendments, as well as from the necessary import of most of them, they have no reference to the state governments, but are restricted in their operation to the government of the United States. The states had already provided, or could provide, by their local Constitutions, for the preservation of the rights of trial against the action of their local authorities; and the articles in question originated in the well-known jealousy of the power of the general government which so nearly prevented the adoption of the federal Constitution"—and added: "The lucid opinion of the late Chief Justice Marshall [hereinbefore cited] is an authority from the highest source upon this point, and fully sustains the above position in regard to it." Very likely the complainant may have intended to invoke the protection of that provision of section 1 of the fourteenth amendment of the Constitution of the United States, which reads as follows: "Nor shall any state deprive any person of life, liberty or property, without due process of law."

The second violation complained of has reference to the Constitution of Rhode Island (article 1, § .10), which relates to certain rights of the accused, and reads as follows: "Sec. 10. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defense, and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land." It is to be noted that the language relied upon in the third paragraph of the complainant's bill of complaint as amended, viz., "No person shall be deprived of life, liberty, or property unless by the judgment of his peers or the law of the land," differs from the words used in the section above quoted, which are, "Nor shall he [the accused] be deprived of life, liberty or property," etc. Concerning this section, in the case of State v. Keeran, 5 R. I. at page 505, Chief Justice Ames, inter alia, made the following statements: "Surely, if any clause in the Constitution has a definite meaning, which should exclude all vagaries which would render courts the tyrants of the Constitution, this clause, embodying, as it does, with improvements, the precious fruits of our English liberty, can claim to have, both from its history and long-received interpretation. It is no vague declaration concerning the rights of property, which can be made to mean anything and everything, but an intensely practical, and somewhat minute provision,...

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    ...This principle has been adopted by this court without a contrary opinion down to the present time. In East Shore Land Co. v. Peckham, 33 R. I. 511, at page 518, 82 Atl. 487, 491, this court "All statutes are presumed to be valid and constitutional, and the burden of proving the unconstituti......
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