After it admission into the Union, the legislative power of the
State of Ohio was not restricted in any way by the provisions of
Article 2 of the Northwest Ordinance of 1787, except as limited by
its own constitution, and that state has every power of eminent
domain which pertain to the other states.
Article 2 of the Northwest Ordinance did not forbid the
appropriation by eminent domain of a contract dedicating land to
the common use and benefit of a town.
The Act of the Ohio Legislature of 1908, § 3283, and the
ordinance of
Page 223 U. S. 391
the City of Cincinnati thereunder, condemning a right of way
across the public landing at Cincinnati are not unconstitutional as
impairing the obligation of the contract dedicating the landing as
a common for the use and benefit of the town forever.
A dedication of land as a common for use and benefits of the
town forever as shown on a plan, and the acceptance by the town and
the sale of lots under the plan constitute a contract, the
obligation whereof is protected by the contract clause of the
federal Constitution.
The right of every state to exercise the power of eminent domain
as to every description of property is an inherent power without
which it cannot perform its functions.
The power of eminent domain was not surrendered by the states to
the United States or affected by the federal Constitution except
that it must be exercised with due process of law and on
compensation's being made.
The power of eminent domain extends to tangibles and
intangibles, including choses in action, contracts, and
charters.
An appropriation under eminent domain with compensation of a
contract neither challenges its validity nor impairs the
obligation. It is a taking, not an impairment, of its
obligation.
Every contract, whether between the state and an individual or
between individuals only, is subject to the law of eminent domain,
for there enters into every engagement the unwritten condition that
it is subject to appropriation for public use.
The ordinance of the Northwest Territory ceased to be, in
itself, obligatory upon the states carved from that territory after
their admission into the Union as states, except so far as adopted
by the states themselves and made a part of the laws thereof.
On its admission, whatever the conditions may have been prior
thereto, whether from the conditions of the Northwest Ordinance or
other territorial government, a state at once becomes entitled to
and possessed of all the rights of dominion and sovereignty which
belonged to the original states, and all limitations on sovereignty
in the Act of admission not subsequently adopted by the state
itself are inoperative.
Coyle v. Oklahoma, 221 U.
S. 559.
When the United States as an independent sovereign creates a
territorial government with legislative authority, subject only to
limitations of the creating act, it will be presumed to grant to
the new dependent government the vital powers incident to and
necessary to sovereignty unless it plainly appears to be
withheld.
The right to appropriate property being a necessary incident to
sovereignty,
Page 223 U. S. 392
Art. 2 of the Northwest Ordinance, giving power only to take
property in a public exigency for compensation, will be broadly
construed as simply limiting the general right of eminent domain by
the requirement that compensation be made.
A public exigency exists for the common preservation when the
legislature declares that, for a
bona fide public purpose,
there should be a right of way for a common carrier across a
particular piece of property, and in such a case, the propriety of
the appropriation cannot be questioned by any other authority.
United States v. Jones, 109 U. S.
519.
Quaere whether the only power of eminent domain to
which a contract is subordinate is the power as it existed at the
time that the contract was made or at the time of
appropriation.
82 Oh.St. 466 affirmed.
The facts, which involve the constitutionality of a municipal
ordinance of Cincinnati and statute under which it was passed
permitting condemnation for a right of way, are stated in the
opinion.
Page 223 U. S. 398
MR. JUSTICE LURTON delivered the opinion of the Court.
Under an Act of the Legislature of the State of Ohio of May 9,
1908, being § 3283a, and an ordinance of the City of Cincinnati in
pursuance of that act, the defendant railroad company instituted,
in a court of the State of Ohio, a suit to condemn a right of way
for an elevated railroad track across the public landing at
Cincinnati. Pending the condemnation proceeding, the City of
Cincinnati filed a bill in one of the common pleas courts to enjoin
the railroad company from constructing its railway across said
public landing, in pursuance of its agreement and contract with the
city under the ordinance mentioned, and to restrain the prosecution
of its pending petition for the condemnation of an easement of way
across the landing. The ground upon which it was sought to stop the
condemnation proceeding and prevent the company from constructing
its elevated tracks across the public landing was that § 3283a,
Revised Statutes of Ohio, under which alone an easement of way
might be appropriated, was repugnant to Art. I, § 10 of the
Constitution of the United States, forbidding any state to pass any
law impairing the obligation of a contract, insofar as § 3283a
applied to the particular property across which an easement of way
was sought to be appropriated.
That section, so far as necessary to be here stated, provides
that, upon compliance therewith, any railroad
Page 223 U. S. 399
company owning or operating a railroad wholly or partially
within the state might
"use and occupy for an elevated track any portion of any public
ground lying within the limits of a municipality and dedicated to
the public for use as a public ground, common, landing, or wharf,
or for any other public purpose,"
excepting streets, alleys, and public roads. It is provided
that, before instituting a proceeding for the appropriation of the
needed easement, which is to be according to a general statute
referred to, such company shall submit plans for the structure, and
come to an agreement with the city council of the municipality
concerned as to the terms and conditions upon which the easement
shall be occupied.
The proprietors of the grant of land upon which the City of
Cincinnati was originally laid out made a plan or plat of the
proposed town, according to which plan a strip of ground between
Front Street and the Ohio River was set apart "as a common for the
use and benefit of the town forever." The effect of the sale of the
town lots under this plan has long since been held to constitute a
dedication of the riverfront strip to the public use, and to have
vested in the City of Cincinnati a valid title in trust for the
public use in the same manner that streets were held under the same
plat or plan.
Cincinnati v.
White, 6 Pet. 431. This dedication was made in
1789, and the property has ever since been used as a public landing
or wharf.
A demurrer to the petition was sustained by the court of common
pleas, and the bill dismissed. This was affirmed upon appeal to the
circuit court, and again affirmed upon appeal to the supreme court
of the state.
That the dedication in 1789, and acceptance by the then Town of
Cincinnati, constitute a contract with the dedicators, obligatory
upon the town and its successor, the City of Cincinnati, may be
conceded. The contention is that the Ohio Act of May 9, 1908, now §
3283a,
Page 223 U. S. 400
Revised Statutes of Ohio, is an impairment of the contract,
forbidden by the 10th section of the first article of the
Constitution of the United States. But the right of every state to
authorize the appropriation of every description of property for a
public use is one of those inherent powers which belong to state
governments, without which they could not well perform their great
functions. It is a power not surrendered to the United States, and
is untouched by any of the provisions of the federal Constitution,
provided there be due process of law -- that is, a law authorizing
it, and provision made for compensation. This power extends to
tangibles and intangibles alike. A chose in action, a charter, or
any kind of contract are, along with land and movables, within the
sweep of this sovereign authority.
The constitutional inhibition upon any state law impairing the
obligation of contracts is not a limitation upon the power of
eminent domain. The obligation of a contract is not impaired when
it is appropriated to a public use and compensation made therefor.
Such an exertion of power neither challenges its validity nor
impairs its obligation. Both are recognized, for it is appropriated
as an existing, enforceable contract. It is a taking, not an
impairment of its obligation. If compensation be made, no
constitutional right is violated. All of this has been so long
settled as to need only the citation of some of the many cases.
Charles River Bridge v. Warren
Bridge, 11 Pet. 420;
West River
Bridge Co. v. Dix, 6 How. 507;
N.O. Gas Co. v.
La. Light Co., 115 U. S. 650;
Long Island Water Supply Co. v. Brooklyn, 166 U.
S. 685;
Offield v. Railroad Co., 203 U.
S. 372.
Every contract, whether between the state and an individual or
between individuals only, is subject to this general law. There
enters into every engagement the unwritten condition that it is
subordinate to the right of appropriation to a public use.
West River Bridge
Co.
Page 223 U. S. 401
v. Dix, 6 How. 507;
Long Island Water Supply Co. v.
Brooklyn, 166 U. S. 691,
166 U. S.
692.
These general propositions are not challenged.
But it is said that the right of appropriating private property
to a public use possessed by the State of Ohio is only that which
is defined and limited by the second article of the ordinance of
1787, creating a government for the Northwest Territory, which
embraced the territory which later became the State of Ohio. That
ordinance, after providing for a territorial government, declares
certain political principles to be fundamental, and that they
should constitute the "basis of all laws, constitutions, and
governments," thereafter organized out of that territory, and
should be regarded as "articles of compact between the original
states and the people and states in the said territory, and be
unalterable unless by common consent." The article referred to, and
claimed now to be still obligatory, is in these words:
"No man shall be deprived of his liberty or property but by the
judgment of his peers or the law of the land, and should the public
exigencies make it necessary for the common preservation to take
any person's property or to demand his particular services, full
compensation shall be made for the same."
But the ordinance of 1787, as an instrument limiting the powers
of government of the Northwest Territory, and declaratory of
certain fundamental principles which must find place in the organic
law of states to be carved out of that territory, ceased to be in
itself obligatory upon such states from and after their admission
into the Union as states except insofar as adopted by such states
and made a part of the law thereof. This has been the view of this
Court, so often announced as to need no further argument.
Pollard's Lessee v.
Hagan, 3 How. 212;
Permoli v.
New Orleans, 3 How. 589;
Escanaba Co. v.
Chicago, 107 U. S. 678,
107 U. S.
688.
Page 223 U. S. 402
In the
Escanaba Co. v. Chicago, supra, it was said:
"Whatever the limitation upon her powers as a government whilst
in a territorial condition, whether from the ordinance of 1787 or
the legislation of Congress, it ceased to have any operative force,
except as voluntarily adopted by her, after she became a state of
the Union. On her admission, she at once became entitled to and
possessed of all the rights of dominion and sovereignty which
belonged to the original states. She was admitted, and could be
admitted, only on the same footing with them. The language of the
resolution admitting her is 'on an equal footing with the original
states, in all respects whatever.' 3 Stat. 536. Equality of
constitutional right and power is the condition of all the states
of the Union, old and new. Illinois therefore, as was well observed
by counsel, could afterwards exercise the same power over rivers
within her limits that Delaware exercised over Black Bird Creek and
Pennsylvania over the Schuylkill River."
In
Coyle v. Oklahoma, 221 U. S. 559, the
case of
Escanaba Co. v. Chicago, and the cases cited
therein, were fully reviewed and held applicable to conditions
imposed by Congress in the Enabling Act under which Oklahoma was
admitted, and all limitations in that act were held inoperative
after admission insofar as they had not been subsequently adopted
by the state, and were in derogation of the equality in power of
that state with the other states of the Union.
It is next contended that, whether the provisions of Art. 2 now
constitute the irrevocable fundamental law of Ohio or not, that
provision was the only law of eminent domain existing in 1789, and
as such is to be regarded as read into the contract of dedication,
and therefore is the only power of eminent domain to which that
contract was subordinate. Upon this hypothesis is based the
contention that any subsequent law of Ohio authorizing a taking of
this property for a purpose or use not within
Page 223 U. S. 403
the terms of the ordinance of 1787 is a law impairing the
obligation of a contract.
But the assumption that the power of eminent domain possessed by
the Northwest Territory in 1787 was limited as claimed is
untenable. The clause referred to assumes the existence of a
general power of eminent domain in the government, and provides
that, when exerted, there must be full compensation for the
property taken or the services required. That this is so is
apparent not only from the language of the clause, but from a
general consideration of the purpose and object of the
congressional act in which the article appears. The ordinance of
1787 was a law providing for the government of the territory of the
United States northwest of the River Ohio. It provided for the
appointment of a governor and secretary and for the appointment of
judges and the organization of courts with common law jurisdiction.
To the governor and judges was granted legislative power to adopt
and publish such laws of the original states as should seem to be
adapted to the conditions, which were to be and remain in force
unless disapproved by Congress. Authority to elect a legislature
was conferred when there should be five thousand inhabitants.
Upon this Article 2, heretofore set out, is claimed to be a
contractual limitation, based upon the contract of dedication, by
which this particular strip of riverfront is forever protected
against an exercise of the power of eminent domain by the State of
Ohio except where "the public exigency makes it necessary for the
common preservation." If we assume, for argument, that an
affirmative limitation upon the right of appropriating property to
any public purpose would so enter into any contract as to forever
afterwards bind the hands of the state, no such situation is here
presented. Article 2 is not a grant of power, but a limitation upon
the power of eminent domain assumed to exist. It was conferred upon
the governor and judges
Page 223 U. S. 404
by the power to adopt and publish the laws of any original state
deemed appropriate, and by the second section there was conferred
upon the governor and legislature, when organized, "authority to
make laws in all cases . . . not repugnant to the principles and
articles in this ordinance established and declared." This
legislative power, temporarily in the governor and a majority of
the judges, and then in the governor and the legislature, when
organized, included, by necessary implication, the general power to
provide for the appropriation of private property for public
purposes. If this is not the case, then the ordinance granted no
power of that kind whatever, for the clause above cited is
obviously a mere restriction by which compensation is required.
This right of appropriating private property to a public use is
one of the powers vital to the public welfare of every
self-governing community. It is a power which this Court has
described as an "incident to sovereignty" -- a power which "belongs
to every independent government." In
United States v.
Jones, 109 U. S. 518,
it was said:
"The provision found in the Fifth Amendment to the federal
Constitution and in the Constitutions of the several states, for
just compensation for the property taken, is merely a limitation
upon the use of the power. It is no part of the power itself, but a
condition upon which the power may be exercised. It is undoubtedly
true that the power of appropriating private property to public
uses, vested in the general government -- its right of eminent
domain, which Vattel defines to be the right of disposing, in case
of necessity and for the public safety, of all the wealth of the
country -- cannot be transferred to a state any more than its other
sovereign attributes, and that, when the use to which the property
taken is applied is public, the propriety or expediency of the
appropriation cannot be called in question by any other
authority."
That the Northwest Territory was not a state, but a
Page 223 U. S. 405
mere territorial dependency, is of no consequence. The United
States was an independent sovereign, and when it created a
territorial government with legislative authority subject only to
the limitations of the creating act, it granted to this new
dependent government this vital power unless it plainly appears
that it was withheld.
The denial of such a power to this new government intended as
the forerunner of a group of states west of the Ohio, or its
restriction to purposes of necessary defense only, as plaintiff in
error would construe the language of the article above set out, is
not to be easily or lightly presumed. The power was one necessary
to the work which this pioneer community was set on doing. It was a
power well nigh as essential to the existence of the government as
the taxing power. The language of Chief Justice Taney in the
Charles River Bridge
Case, 11 Pet. 421,
36 U. S. 547,
when speaking of a contention that the State of Massachusetts had
surrendered the power, by granting a charter for the construction
of a particular bridge, to appropriate that bridge so authorized,
is apt and appropriate, when we are asked to construe the ordinance
of 1787 as denying to the government of the Northwest Territory a
power so important to the welfare of its people. Upon this he
said:
"But the object and end of all government is to promote the
happiness and prosperity of the community by which it is
established, and it can never be assumed that the government
intended to diminish its power of accomplishing the end for which
it was created. And in a country like ours, free, active, and
enterprising, continually advancing in numbers and wealth, new
channels of communication are daily found necessary both for travel
and trade, and are essential to the comfort, convenience, and
prosperity of the people. A state ought never to be presumed to
surrender this power, because, like the taxing power, the whole
community have an interest in preserving
Page 223 U. S. 406
it undiminished. And when a corporation alleges that a state has
surrendered, for seventy years, its power of improvement and public
accommodation in a great and important line of travel, along which
a vast number of its citizens must daily pass, the community have a
right to insist, in the language of this Court, above quoted, 'that
its abandonment ought not to be presumed in a case in which the
deliberate purpose of the state to abandon it does not appear.' The
continued existence of a government would be of no great value if,
by implications and presumptions, it was disarmed of the powers
necessary to accomplish the ends of its creation, and the functions
it was designed to perform transferred to the hands of privileged
corporations. The rule of construction announced by the court was
not confined to the taxing power, nor is it so limited in the
opinion delivered. On the contrary, it was distinctly placed on the
ground that the interests of the community were concerned in
preserving, undiminished, the power then in question, and whenever
any power of the state is said to be surrendered or diminished,
whether it be the taxing power or any other affecting the public
interest, the same principle applies, and the rule of construction
must be the same."
Nor should the particular language of the article above set out
be given a narrow or hypercritical meaning. The plain purpose was
but to limit the general right of eminent domain by the requirement
that compensation should be made. A public "exigency" exists, for
the "common preservation," when the legislature declares that, for
a
bona fide public purpose, there should be a right of way
for a common carrier across a particular piece of property. The
uses to which § 3283a authorizes a condemnation of a right of way
are undeniably public, and not private, uses. When that is the
case, "the propriety or expediency of the appropriation cannot be
called in question by any other authority."
United States v.
Jones, 109 U. S.
519.
It follows, then, first that the legislative power of the State
of Ohio was not restricted in any way by the provisions of the
second article of the ordinance of 1787 after its admission to the
Union, and it has every power of eminent domain which pertains to
other states, unless limited by its own Constitution, and second
that, if the law of eminent domain as it existed at the time of the
dedication is to be read into the contract, that that law, properly
interpreted, was not such as to forbid an appropriation such as is
here involved.
The judgment of the Supreme Court of Ohio must therefore be
Affirmed.