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county of San Francisco, instead of water from its*reservoirs, granite from its quarries, and the act had provided that, having brought the granite, it should sell it to individuals at a designated price per cubic foot for paving the sidewalks, and to the city for the construction of a court room, or a public hall, would it be pretended that by virtue of its reserved power over the corporation the state could compel the sale and delivery of the granite at a different price? The natural and just answer would be that the contract with the corporation for the purchase of the granite is a different matter from the contract by which the corporators became a corporation; and would the answer be less just and perfect if the contract had stipulated that the price of the stone should be fixed by a commission of stone-cutters, or parties familiar with the value of the material? The different mode of reaching the price would work no change in the binding force of the contract.

Again, suppose that the plaintiff had been incorporated with power to loan money under an act requiring it to make a loan to the city at a specified rate of interest, and, acting upon the authority, it had made a loan for years at such rate, could the state, by virtue of its reserved power over the corporation created, compel it to receive a less rate of interest than that stipulated, and make further loans at such reduced rates ? The obvious answer to such a question would be that the contract authorized by the law was not the contract by which the lender became a corporation, and it is to the latter alone that the reserved power applies. Would it make any difference if the contract had stipulated that the interest should be annually fixed by the secretary of the treasury, or a commission appointed by him? The mode of reaching the rate of interest would not affect the binding character of the contract. The cases thus supposed in no respect differ in principle from the one before us. If the contract in this case cannot be upheld the contracts in those could not be. Indeed, no contract between the state and a corporation created with the reservation mentioned could bind the state, though every term of obligation and every pledge of honor which language could express should be embodied in it.

It must be that it is within the competence of the sovereign*power of a state to make a bargain which it cannot break. As observed by one of the distinguished counsel who argued this case, the very notion of the existence of a state-and it does not require a constitutional provision for that-is that, being a political body, it has a right to make a business arrangement with a particular party, corporate or personal, about a particular thing, which shall bind both. And, in my judgment, it is the plain duty of the court, when such an arrangement comes up for consideration, to assert its binding character, and, so far as practicable, hold the parties to it.

I proceed to consider the position that the public of California had acquired such an interest in the water of the plaintiff as to authorize the state to fix the rates at which it shall be sold. The new constitution declares, in its fourteenth article, that the use of all water appropriated for sale, rental, or distribution is a public use, and subject to the regulation and control of the state. I do not suppose that by this declaration the state intended to take possession of, or assert an interest in, all the water within its limits appropriated for sale, rental, or distribution, without regard to the rights of individuals who may have collected it in reservoirs, or stored it in other ways to enable them to dispose of it advantageously. A proceeding to enforce such a declaration would be open to constitutional objections against taking private property for public use without compensation to the owners. The object of the constitutional declaration, as I understand it, was to assert such a control by the state over the sale and distribution of water as to prevent it from being diverted by those who had appropriated, or might appropriate, it from the necessary uses of the public, or from being held at extravagant prices. To such a declaration no one can reasonably object, and, if carried

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out with the observance of the rules which govern in other cases where private property is taken for public use, no legal obstacle can be raised to its enforcement. The right to take private property for public use is inherent in all governments. It requires no constitutional declaration for its recognition; it appertains to sovereignty. The conditions upon which it shall be exercised are the only matters requiring constitutional guaranties, and those conditions are that just compensation shall be made to the owner of the property, and that this compensation shall be ascertained by an impartial tribunal. A compliance with these conditions is essential, without which the taking of the property would be a mere exercise of arbitrary power not recognized as legitimate by any principles obtaining in the government of this country, state or federal. When the use is public,—and within certain limits the state may determine that it is so,-any property which the state may deem necessary for that use it may appropriate. The necessity or expediency of the appropriation is not a matter for judicial inquiry. The supplying of pure water to a city and its inhabitants is a matter of public con

The taking of water held by private parties for that purpose is an appropriation of it for a public use; and the same conditions for its lawfnl appropriation must be followed as when property of a different character is thus taken. There must be the just compensation for it to the owner, and the impartial tribunal to appraise its value and determine the amount of the compensation.

In Gardner v. Trustees of the Village of Newburgh, Chancellor KENT held that the owner of land over which a stream of water ran had a legal right to the use of the water, of which he could not be deprived against his consent without just compensation for it. A statute of New York had authorized the trustees of the village to supply its inhabitants with water, and the chancellor enjoined them from diverting for that purpose the water of a stream which ran through the plaintiff's

land, because the statute had made no provision for compensation for it. What gives special significance to this decision is the fact that the constitution of New York at that time contained no provision, such as is found in all state constitutions since adopted, against taking private property for public use without compensation. The chancellor showed that on general principles of justice recognized by all free governments, and by the writings of eminent jurists, such a provision for compensation is an indispensable attendant on the due and constitutional exercise of the power of depriving an individual of his property; and he said that*" a right to a stream of water is as sacred as right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by lawful judgment of his peers, or by due process of law. 2 Johns. Ch. 162.

If water cannot be taken by the state for public purposes from a stream running through the land of a private party without just compensation to him, surely the water collected in reservoirs on the lands of the plaintiff as it descends from the heavens cannot be taken for public uses without like compensation. The water thus collected, as already stated, is the property of the plaintiff, to which its title is as perfect as to the reservoirs and aqueducts which it has constructed. It is taken for public use; the use of the city and county, and of their inhabitants. If the plaintiff were dealing with the city or city and county alone, and were compelled to deliver its water at a pre scribed price per gallon or hogshead, or according to some other mode of measurement, there could be no question that it would be a case of appropriating private property to public use. Is the character of the transaction at all changed because the water is to be delivered in part to the city and county, and in part to individual consumers, and that the latter are required to mako compensation for what they take? There is the same appropriation of the property for public use in the one case as in the other, and it is for the protection of the owner, that he may not be despoiled of his property, that tho constitutional guaranty was adopted. It matters not to whom the law may compel the delivery of the property, whether to one or many, if it is appropriated to public use. Water cannot be applied for the purposes required by the city and county or by their inhabitants, without being consumed. So that language employed with respect to regulating compensation for the use of articles of a durable character, such as vehicles, cars, and roads, is inappropriate and misleading when applied to water used for domestic purposes, or for sprinkling streets, extinguishing fires, Alushing sewers, and irrigating parks. Regulating the price to be paid for the use of water in such cases is determining the compensation to be made to the owner for transferring his * title. The body of the water passes by its use from his ownership. In all such cases the great principle applies as when property of a durable character is appropriated for public use, that compensation, to be ascertained by an impartial tribunal, must be made to the owner.

Asin Pumpelly v. Green Bay Co.13 Wall. 177, in considering whether, in the execution of a public improvement authorized by law, a flooding by water of land so as to deprive its owner of its use was a taking of it in the sense of the constitution so as to entitle him to compensation, this court said: “It would be a very curious and unsatisfactory result if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely,-can inHict irreparable and permanent injury to any extent,-can in effect subject it to total destruction without making any compensation, because in the narrowest sense of that word it is not taking it for the public use.

So I say it would be a very curious and unsatisfactory result if in construing this constitutional provision, designed to protect the property of the citizen against spoliation by the government, and to insure to him when taken for public uses just compensation, to be ascertained by an impartial tribunal, it should be held that when the owner is required to surrender the property taken in parcels to different parties and receive compensation as delivered to them, such compensation need be only such as the government its discretion may think proper to prescribe. As stated in the Pumpelly case, it would make the constitutional provision an authority for the invasion of private rights under the pretext of the public good, which has no warrant in the laws and practice of our ancestors.

*All the authorities lay down the doctrine that the property must be appraised and compensation therefor fixed by an impartial tribunal. It need not be a court of law; it may be composed of commissioners appointed for the special purpose. Whatever its form, its members must be free from interest and should be uninfluenced by prejudice, passion, or partisanship. And its proceedings must be conducted in some fair and just mode, either with or without a jury, as may be provided by law, with opportunity to the par interested to present evidence as to the value of the property, and to be heard thereon. The legislature which determines the public purpose to be accomplished and designates the property to be taken, cannot act as such tribunal and fix the compensation, for that would be equivalent to allowing the legislature to take the property on its own terms. “The proceeding” to assess the compensation, says Cooley, "is judicial in its character, and the party in interest is entitled to have an impartial tribunal and the usual rights and privileges which attend judicial investigations. It is not competent for the state to fix the compensation through the legislature, for this would make it the judge in its own cause." Const. Lim. 704. For the same reason à cor


poration which has the power to condemn cannot ix the compensation. It would thus become a purchaser at its own price, without regard to the estimato of others as to the value of the property taken. Nor can the corporation appoint the appraisers of the property, for they would, in that case, be its agents, and as such disqualified. Relationship to the parties whose property is to be appropriated, or interest in the property, would disqualify the members of the tribunal as it would jurors before a court.

An act of the legislature of Minnesota provided for taking certain property for public use, and appointed, without the consent of the owners, three persons as commissioners to determine the compensation to be made, without requiring any notice to the owners of the proceeding, or providing that they might at any stage appear before the commissioners, and the supreme court of the state held the law to be unconstitutional and void. The constitution of the state contained no express provision as to the mode by which the compensation to be paid should be determined, and the court said: “While the legislature is the judge of the necessity or expediency of the exercise of the power of eminent domain, it is not the judge of the amount or justness of the compensation to be made when the power is exercised.” And again: “While, therefore, the constitution prescribes no proper mode in which the compensation shall be determined, it would seem to follow that as to the question of the amount of compensation, the owner of the land taken for public use has a right to require that an impartial tribunal be provided for its determination, and that the government is bound in such cases to provide such tribunal, before which both parties may meet and discuss their claims on equal terms. And such seems to be the tenor of the authorities upon this question. The act in question does not provide such a tribunal. The commissioners to determine the compensation are private citizens, appointed directly by the legislature, without the consent of the persons whose land is taken by the public. No notice of the proceedings before the commissioners is given; the land-owner is not authorized to appear at any stage of the proceedings to object to the commissioners; to introduce any proof or allegation before them. The proceedings are entirely ex parte. It certainly cannot be said that this is a just or equitable mode to determine the compensation due to a citizen for property taken for public use.” Langford v. Com’rs Ramsey Co. 16 Minn. 375, (Gil. 333.)

Objections are often made in the courts of law to the reports of commig. sioners of appraisement, upon application to set them aside, on the ground that the members have been improperly influenced by others, and have al. lowed their judgment to be warped by solicitations, or by prejudice or partisanship, and when such objections have been sustained by proper proofs the reports have been adjudged invalid.

If, in the light of these decisions, we turn to the board of supervisors of San Francisco, it would seem impossible for us to hesitate in declaring that in no respect can it be deemed an impartial tribunal, however honest its members may personally be, to determine the compensation which the owners of the water delivered to the city and its inhabitants should receive. Interested as its members are, as consumers of the water, as agents of the city, also a large consumer, and elected by constituents, every one of whom is a daily consumer, it is wanting in every essential particular to render it, in a legal sense, an impartial tribunal. If, therefore, as I have attempted to show, and I think have shown, the water of the plaintiff is its property, and when it is taken under the law of the state for public use, the plaintiff is entitled to just compensation, that board is incompetent to act in determining what that compensation shall be. It is difficult to conceive of any tribunal more liable to be controlled by external influences against the interests of the company. Upon the action of the supervisors with reference to all other matters, it has been found necessary, for the protection of the public, to impose

numerous restrictions. Without them improvident contracts on behalf of the city and county would be made, extravagant schemes of supposed improvement would be undertaken, and its treasury be depleted. And yet this body, which, without any imputation upon the personal integrity of its members, but out of regard to the common weakness of humanity, the community will not trust in other matters without guards against its improvidence, and which is exposed to every influence which can warp its judgment and pervert its action, is allowed almost unlimited control over the property of the plaintiff and the compensation to be paid for it, and respecting which the plaintiff is not permitted to be heard except as a matter of favor. So in every aspect in which this case can be exhibited—Whether we regard the contract contained in the act of 1858, or treat the compulsory delivery of the property as a taking of it for public use—there is no feature in the acts authorized by the new constitution with respect to its property which does not violate the. constitutional rights of the plaintiff. In the enforced sale of its property, at prices to be fixed by the agents of the consumers, the line is passed which* separates regulation from spoliation,

For the reasons thus stated I cannot assent to the judgment of the court.

(110 U. S. 192)
CITY OF JONESBORO O. CAIRO & ST. L. R. Co. and others.

(January 21, 1884.)


Power given by charter to a city "to borrow money and issue bonds therefor" does not warrant the issue of bonds to pay for a subscription for railway stock. 2. SAME-STATUTE CURING DEFECTS.

Where a city voted to subscribe for railway stock when no authority existed for such action, held, that a general statute declaring all such elections theretofore

held to be valid was sufficient to cure all defects. 3. SAME-CONSTITUTIONAL PROVISION.

After a city had thus acquired power to issue bonds, a constitutional provision was adopted prohibiting municipal subscriptions for stock, except where already authorized by vote “under existing laws." Held, that the power acquired by the

city was within the exception, and remained intact. 4. SAME-STATUTE EMBRACING MORE THAN ONE SUBJECT-TITLE.

The Illinois constitution of 1848 contained a clause to the effect that no priyate or local law should embrace more than one subject, and that this subject should be expressed in the title. An act entitled "An act to amend the charter of the Cairo & St. Louis Railroad Company," embraced provisions legalizing invalid mu. nicipal elections previously held for the purpose of voting subscriptions to railway stock. Held, that the tenor of the act was sufficiently expressed in its title.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

Wm. S. Day and Sidney Grear, for appellant.
Geo. A. Sanders, for appellees.

HARLAN, J. This is an appeal from a decree in the circuit court of the United States for the Southern district of Illinois, dismissing a bill in equity filed by the city of Jonesboro, in that state, against the Cairo & St. Louis: Railroad Company, an Illinois corporation, the auditor of state, the county clerk, and sheriff of Union county, Illinois, and the “unknown holders of the Janesboro city bonds, issued in aid of the Cairo & St. Louis Railroad Company.” The suit was commenced in one of the courts of the state. Its object was to obtain a decree perpetually enjoining the state and county officers, who were made defendants, from levying, certifying, and extending

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