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Report of Cases Argued and Determined in the Supreme Court of Alabama |
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| January Term, 1864 p. 307 |
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Alabama & Florida R. R. Co. v. Kenney
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[Bill for Injunction Against Government Impressing Agents]
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1. Amendment of bill, on motion to dissolve injunction in vacation.
On motion to dissolve an injunction in vacation, all amendable defects
in the bill will be considered as amended.
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2. Right of government to take private property for public use.
The constitutional right of the general government to take private property
for public use, just compensation being made, extends to all property;
and neither the fact that the property is under mortgage, nor the fact
that it belongs to a corporation chartered by a state law, exempts it
from the operation of the principle.
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Appeal from the Chancery Court of Butler |
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Heard before the Hon. N. W. Cocke |
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The bill (or petition) in this case was filed, on the
12th September, 1863, by the Alabama & Florida Railroad Company of
Florida, (a corporation chartered by an act of the legislature of
Florida) and was addressed to the Hon. Jno. K. Henry, the judge of the
eleventh judicial circuit. It alleged, that said railroad company had
received, under the laws of Florida, a large grant of public lands, to
aid in the construction of its road, "and, on account thereof,
the said railroad is pledged to the State of Florida to the amount of
the value of said lands"; that the company had also executed and
sold, in the purchase of iron and other materials necessary for the
construction and equipment of its road, a large number of bonds, which
were secured by a mortgage on the road and its property, and which
were held by divers creditors and purchasers; that D. H. Kenney and
Charles F. M. Garnett "have seized, and intend carrying away, a
large amount of rolling-stock, iron, and other property belonging and
attached to said road"; that said seizure was illegal and unjust,
would destroy the security of innocent bond holders, and would
"take away from the sovereign State of Florida, without her
consent, the only security she has for the advances made by her to
said road." The petition concluded thus: "The premises
considered, your orators pray that your Honor grant to them the writ
of injunction, to be directed to the said Charles F. M. Garnett and D.
H. Kenney, to restrain them, and all other persons acting through or
under them, from seizing or carrying away the rolling-stock, iron, and
other property belonging to said road, under such penalties as may
seem proper to your Honor; and that your Honor do every other matter
and thing that may be right and equitable in the premises, at the same
time relieving your orators from the delay which the formal notice of
this application upon the said Garnett and Kenney would require, and
which the pressing nature of the case will not admit without manifest
injury to the interests of your orators." |
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An injunction having been granted by Judge Henry, Kenney
filed an answer, admitting the seizure of the rolling-stock, &c.,
belonging to the complainant's road, and justifying the seizure under
authority conferred on Garnett and himself, as impressing agents of
the Confederate States, under written orders from the secretary of
war, which were made exhibits to his answer. On motion, made in
vacation, the chancellor dissolved the injunction, and dismissed the
bill, for want of equity; and his decree is now assigned as error. |
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Goldthwaite, Rice & Semple, for appellant |
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Elmore & Gunter, contra |
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A. J. Walker, C. J. The pleading of the complainant
in this case is in the form of a petition, addressed to a circuit
judge, praying alone for an injunction, and neither making any persons
parties, nor seeking process as to any parties. There are, besides,
greater or less defects in the form of the allegations. It is
insisted, that all these imperfections were amendable, and, upon the
principle in the second head-note to the case of Nelson & Hatch
v. Dunn, (15 Ala. 501,) should be regarded as mended when a motion
to dissolve an injunction is made in vacation. This proposition is
probably correct; and without discussing it, or giving it any careful
reflection, we will consider this case as if those imperfections were
amended; for such a course will not change the result. |
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[2.] The correctness of the chancellor's decision upon the
merits is assailed, upon two, and only two grounds. Those grounds are
-- that taking of private property which is under mortgage, for the
use of the general government, impairs the obligations of a contract;
and that the taking in this case effected the destruction of a
franchise granted by a state, and was therefore invalid. These
questions we shall consider upon the supposition, that the general
government is under the restrictions, as to the power to impair the
obligation of contracts, which the constitution makes applicable to
the states; though we wish to be understood as conceding the point,
only because it is not necessary to decide it, and not because we
intend to announce any opinion upon it. |
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The provision of the constitution of the Confederate
States, and of the constitution of most of the states, is the same, so
far as it affects the question of the power to take private property
for public use. There is a power, alike in the general government and
in the states, to take private property for public use, qualified by
the restriction that just compensation must be made. Under all
established governments, it is a recognized principle, that all
property is held subject to an inherent right in the government to
appropriate it to the public use, when the public good may require it
to be done. Whether this principle is deduced from the law of eminent
domain, extended to personal property as its increasing value
required, or to an original contract implied from "the mutual
necessities of the individuals about to constitute a political
community," it is not necessary now to speculate. Bloodgood v.
M. & H. R. R. Co., 18 Wend. 9-57; Dyer v. Tusk Bridge Co., 2
Porter, 296; West River Bridge Co. v. Dix, 6 How. 507-516, 532.
It is sufficient for the purposes of this opinion, that the principle
is universally acknowledged by publicists and jurists. |
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All property, except that which has been inherited, is
held under contract; and its title and enjoyment are frequently, if
not generally, guarantied. If, therefore, it be understood that
property cannot be taken for public use, where it is derived by a
contract, it would result, that the great mass of property in the
country would be beyond the reach of the government, no matter how
great might be the necessity. The principle, however, which subjects
private property to public use, compensation being made, is said to be
illimitable, and to apply to all property. -- See Sedgwick on Stat.
and Con. Law, 512. To take property for the public use does not, in
the sense of the constitution, impair the obligation of the contract,
under which the property is held. It transfers to the government the
rights of property given by the contract; and compensation for the
benefits of the contract is required to be made. The constitutional
power of taking private property "operates upon the property, and
not on the contract." |
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While the question has usually been decided upon the
ground above stated, and eminent judge has given a reason somewhat
different. In the West River Bridge Co. v. Dix, (6 Howard,
507-532,) Judge Daniel says: "Into all contracts, whether made
between states and individuals, or between individuals only, there
enter conditions, which arise not out of the literal terms of the
contract itself they are superinduced by the pre-existing and higher
authority of the laws of nature, of nations, or of the community to
which the parties belong; they are always presumed, and must be
presumed, to be known and recognized by all; are binding upon all, and
need never therefore be carried into express stipulation, for this
could add nothing to their force. Every contract is made in
subordination to them, and must yield to their control, as conditions
inherent and paramount, wherever a necessity for their execution shall
occur. Such a condition is the right of eminent domain. This right
does not operate to impair the contract affected by it, but recognizes
its obligation in the fullest extent, claiming only the fulfillment of
an essential and inseparable condition." |
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While there may be some difference in the reasons given,
there is a current of authorities, holding, with unvarying uniformity,
that the taking of private property for the public use does not
infringe the clause of the constitution designed to protect the
obligation of contracts, and that a state may take even the franchise
of a corporation chartered by itself, or any of its property, for the
public use, when the charter contains no stipulation restrictive of
the power. {21 cases are cited, not transcribed} |
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Of the several cases above cited, we remark only upon the
facts of one -- North Penn. R. R. Co. v. Davis. In that case,
the persons in possession of the land sought to be condemned held
under a lease, with a covenant on the part of the lessors to renew the
lease for three years at a specified price. It was contended, that the
contract for the renewal of the lease would be impaired by
appropriating the property to public use, because its performance
would be rendered impossible. This argument was overruled, and the
appropriation sustained; the court holding, that the lessee was
entitled to compensation for the loss of the benefit of the covenant
for renewal. The principle settled by these cases is, that all
property is liable to be taken for public use. Mortgaged property
cannot constitute an exception to the rule. There may be more
difficulty in ascertaining the damages where such property is taken;
but there can be no variation in the principle. |
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While it is well settled by the cases to which we have
referred above, that a franchise is property, and that it, as well as
the property by means of which it exists, may be taken for public use;
there is no case which we have found holding that it may be taken by
the general government, when it exists by virtue of a state charter.
What would be the law in such a case, we need not decide. The
government did not, in this case, take the franchise, nor property
indispensable to the existence of the franchise, or to the exercise of
the privileges bestowed by the act of incorporation. |
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The pleadings raise no question as to the making of
compensation, or as to the regularity of the proceedings for
condemnation, or for the ascertainment of the damages. So far as the
bill discloses, there is no ground of complaint, or dissatisfaction,
on those points, in any quarter. |
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The decree of the chancellor is affirmed. |
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