author: Wood, C. J. Read, J.,

text:
    Morris Symonds and Joseph Symonds v. The City of Cincinnati.
    In an action for the value of private property taken for public uses, it is competent to the defense, to show the benefit conferred on the owner by the appropriation. Such benefit may he considered by the jury, in estimating the damages.
    This is a special action on the case, reserved in the county of Hamilton, on a motion for a new trial.
    *Tbe plaintiffs are the owners of a city lot on the north side of Lower Market street, between Sycamore and Broadway. The city council, by an ordinance passed February 5, 1840, in pursuance of the city charter and its amendments, ordered Lower Market street to be widened on the north side, and, for that purpose, appropriated for the public use, twenty-six feet of the plaintiffs’ lot, leaving it thirty-eight, instead of sixty-four feet deep. The object of this suit was the recovery of the value of tho ground thus appropriated, with the buildings thereon, which were removed by order of the city council.
    A trial was had in the Supreme Court for Hamilton county, at the April term, 1843, and a verdict rendered by the jury for the plaintiffs, for $4,292, the supposed value of the property appropriated.
    The defendant filed her motion for a new trial, and assigned the following reasons:
    1. That the court refused to instruct the jury that the record of tho proceedings of the city council was a bar to the action.
    2. That the court would not admit in evidence the difference in value of the plaintiffs’ premises, before and since the opening of the street.
    3. That the court instructed the jury that they must leave out of view, in estimating the plaintiffs’ damages, the benefits which accrued to the remainder, after the appropriation of the twenty-six feet of the plaintiffs’ lot.
    4. That now evidence had been discovered.
    5. That the damages were excessive.
    The questions, arising on this motion, were reserved for decision in this court.
    Hart & Pugh, for defendant, in support of the motion :
    Waiving, for the present, the other points raised, we propose to confine ourselves to those presented by the second and third reasons assigned for a new trial.
    *Our proposition is, that the term “compensation” means nothing but a redress of the damage done by a public work. We are strengthened in it by divers considerations.
    1. By the doctrine of “collateral damages” itself, as the fashionable though rather indefinite term is. For land taken, we are told by the supporters of this faith, the full price must be paid in money; but against collateral damage — such as occurs in the case put by Mr. Fox, on the fifth page of his Symonds brief, where the grade of a street is raised so as to render useless one story of a house — benefits may be set off. Now we beg to have the distinction drawn which shall bring the instance of land taken within the scope of the constitution, and exclude the instance of collateral damage like this. Is not the rendering useless one story of a citizen’s house as much a violation of private property, as taking ten feet of his land? The constitution says that “private property” — not land alone, but “property” of all kinds, and the right to its perfect enjoyment, wheth ersuch “property ” be in a house or in anything else — “private property ought and shall ever be hold inviolate.” It seems to us that both branches of this doctrine about “ collateral damages ” can not be sustained. If benefits accruing to an individual in other respects, from the same act, may be recouped from the sum assessed for an injury to his house, where is the pretense of an argument that they ¿an not likewise be recouped from the sum assessed for his land taken? We have yet to learn that property in the soil is more sacred, in the eye of the constitution, than property in a house, or in anything else; and, until so informed, we shall hold the two cases mentioned above, the same in principle.
    Again, the city of Cincinnati does not appropriate, the land for a street, but only takes a right of way. For, although by statute, the fee of land dedicated for a street is vested in the corporation, yet this does not apply to the case of a street opened by the corporation itself. The’ statute, on the subject of the latter, merely ordains that “all streets and alleys in towns, which are or may be laid out agreeably to law, shall *be, and the same are hereby declared, public highways for every purpose whatever." Swan’s Stat. 809. By this, a right of way only is given to the corporation — such as the king has in highways at the common law. Now “it*is laid down in the old books,” says Vfoolryeh, “that, in a highway, the king has nothing except the passage for himself and his people, but that the freehold and all the profits, as trees, etc., appertain to the lord of the soil.” Woolrych on Ways, 5; S. P., Goodtitle v. Alker, 1 Burr. 143, per Lord Mansfield ; Bingham v. Doane, 9 Ohio, 167. The whole estate remains in the citizen, subject to the easement of the public. And as the city, in raising the grade of a street, merely obstructs the citizen in a complete enjoyment.of his house, so, in widening a street, she simply obstructs his dominion over the land by vesting a right of way in others. There can not, therefore, be any distinction in the cases. But even if the court should hold the case of streets opened by the corporation, to bo identical with that of streets dedicated, the argument needs a slight change merely. The fee which the corporation takes in the case of streets dedicated, is not an absolute one, but for the uses and purposes only which are “set forth and expressed or intended ” in the deed of dedication. Swan’s Stat. 937. The corporation, can not use the property in any other way than that. The Town of Lebanon v. The Commissioners of Warren County, 9 Ohio, 80. Nor can the legislature authorize the corporation to use it otherwise. Le Clercq v. The Town of Gallipolis, 7 Ohio, 221, pt. 1. The fee is, therefore, a base or qualified fee within Blackstone’s definition— “such a one,” namely, “ as hath a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As, in the case of a grant to A. and his heirs, tenants of the manor of Bale; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated.” 2 Bla. Com. 109.- Whenever the land ceases to bo used for the purposes of the dedication, it reverts to the owner. Really, the estate of the public, even in this view, is *nothing but a right of way. It is an estate so long as the land is used for a street, and no longer. In practice, therefore, it matters not whether Rower Market street come under the statutory provision firstly or secondly above mentioned. Neither makes this a case of confiscation — that is, a ease where the whole interest of the citizen is extinguished, as where wheat is taken for the subsistence of an army, or personal property otherwise consumed — but a case in principle, like that supposed by Mr. Fox, whore the citizen is merely obstructed in the perfect enjoyment of his estate. It is no answer to say that the easement or the base fee, whichever we declare the title of the city to be, may long incumber the land; for in proportion to its probable continuance, of course, must the rate of damage be.
    2. It is clear, we think, also, from the very nature of this action, that damages are what the citizen has to claim of the government when his property is condemned to public use. If so, the argument just made derives force from the decisions of the Queen v. The Eastern Counties Railway Company, 1 Gal. & Dav. 589, and Dodge v. The Commissioners of Essex, 3 Met. 380, that property may be damaged by a public wox-k, though not so much as touched by it. But we refer to the point as supporting, separately from this, our main px-oposition.
    3. By the ancient common law on the subject of public wox-ks. Although, indeed, the principle of compensating for the injury thereby done was not x-ecognized, yet our cautious ancestox-s permitted no such work to be undertaken till after an inquest of its expediency. This was by suing out the writ of ad quod damnum, which Rox-d Chief Bai-on Comyn defines as “awx-it to inquire whether a grant intended to be made by the king will be to the damage of him or others.” Com. Dig. title Ad Quod Damnum, A. Thus, also, in Thomas v. Sorrel, Vaugh. 341, it is said to be a writ had for the turning of ancient highways, which may not be done without the king’s license obtained by this writ, on inquisition found that such a change will not be detx-imental to the public.
    So in Hind v. *Mansfield, Noy, 103, the river Thames is said to be a highway, and can not be diverted without an ad quod damnum, and to do such a thing ought to be by patent of the king. And so Fitzhei-bort: “If there be an ancient trench or ditch coming from the sea, by which boats and vessels use to pass to the town, if the same be stopped in any part by outrageousness of the sea, and a man will sue to the kina: to make a new tx-ench, and to ’ stop the ancient trench, etc., they ought first to sue a writ of ad quod damnum,, to inquire what damage it will be to the king or others.” F. N. B. 225, E. In times of the pure common law, therefore, we see that tho principle of estimating damage was pursued whenever a public work was intended. That is the principle upon which we insist in the present ease.
    4. To this the law of England, as administered in our time, fully agrees. Their railway and canal and turnpike acts all provide for compensation to the owners of property in the manner intended by our constitution. Their modern legislation, in this respect, is' an improvement on the common law. Upon what principle, let us ask, do they proceed in assessing damages ? Not upon that of paying the value of the land taken, but that of redressing the injury done. For proof of'this, we refer to the fact that the court of Icing’s bench, in construing the acts of parliament, use the words “satisfaction ” and “ indemnity ” as synonymous with “compensation.” Boyfield v. Porter, 13 East, 200; Lister v. Lobley, 7 Ad. & E. 124.
    5. Another point is suggested to us by the language of Lord Denman, in the last case cited. That was an action of trespass quare clausum fregit against the trustees of a turnpike, who were empowered by parliament to enter upon the lands, etc., “ making or tendering satisfaction to the owners or proprietoi’S,” but who had taken the plaintiff’s land for their road, without previously making him compensation. It was argued on their behalf that, although the words of the act did certainly favor the idea that compensation must be made or ^tendered, at the time of entry upon the lands, and before actual seizure to road purposes; yet that idea must be rejected, because the amount of compensation could not be ascertained till the turnpike was fiuished. The court thought this argument unanswerable, and stopped the discussion. “ The effect of the words in question is,” said Lord Den-man, “ that they (the trustees) shall not do it without being liable to make compensation,” because, as his lordship had just before remarked, “the amount of compensation can not, generally, bo ascertained till the work is done.” Et per Littledale, J.: “I am of the same opinion. There may be a damage done which was not intended. The lord of a manor often has a power reserved to him to enter lands and dig mines, making compensation ; but, in: justifying under such a right, he need not plead that he made compensation before entering.” Now if the doctrine contended for by the plaintiff’s counsel here be sound, the argument to which the court of king’s bench attached so much force is futile. If the price of land taken be the true criterion of damage, it is absurd to say that the amount of compensation can not be estimated till the work is done. It can be estimated before the work is begun— so soon, in fact, as the plat is made, or even the route determined. But if our doctrine bo sound — that it is the damage, the injury less the benefit, which must be estimated — the court of king’s bench were undoubtedly correct in their decision. It does seem to us that, when to such authority are joined arguments drawn from all the analogies of the law, as well as the decisions of two of the greatest states of the Union, the matter ought to admit of no further controversy.
    6. Lastly, we have to urge the history of this clause, as affording proof of the truth of our construction. No such principle, we have already intimated, is known to the common law as the king’s making compensation to a subject for property seized to public uses. It exists in America only by force of our federal and state constitutions. That it was introduced originally with sole reference to a state of war, seems to *us almost certain. The language of the ordinance of 1787, which was prior to all our constitutions, can leave little doubt upon this point. The language is: “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.” Surely, we do not need to mention, with much particularity, the various sacrifices of private property demanded by war, the seizure of provisions and beasts of burden, the destruction of bridges and houses, tho laying waste whole districts of countiy. For all these, at the common law, there was no redress; the damage was done in defense of the state, for which end, it used to be argued, the citizen ought freely to give up all his property, and even his life. The founders of the American constitutions, however, had other notions of justice, and they thought it only fair that an injury done by the government to one citizen for the-safety of the citizens at large ought to be borne by a general contribution. Such, wo are convinced, was the origin of this principle in our frame of jurisprudence; its operation, however, has proved so benign, that by the constitutions founded subsequent to 1787 it has been extended to sacrifices by an individual to the public benefits, even in the season of peace. If this be so, we are referred back, for the proper application of this principle, to the usages of the country in time of war. We shall not tire the court by detailed discussion of them. Surely, it was never considered that a citizen could claim more of his government for the seizure of his property to feed the army, or retard the progress of the foe, than mere compensation. That compensation, in the case of perishable articles, would, in general, be their full value; but, in the case of a farm laid waste, it would only be annual profits, with interest. In other words, it would be the simple damage done.

    Let us now proceed to notice some of the most prominent objections to our doctrine:
    1. The constitution says that compensation shall be made in money; and therefore, argues Mr. Fox, the full value of the *land must be paid without any reduction for benefits.
    This objection, like all the rest, takes for granted the very point under argument, namely, whether compensation means the value of the land. To be sure, the party injured must be redressed in money; but compensation, as we define it, can be thus rendered quite as well as the value of the land can be paid. The reason why money is specified as the only medium may*be explained with ease. In England, commissioners to inclose wastes and open roads are empowered by statute to make “ full compensation,” or “just compensation,” in the ter.ms of the constitution of the United States; and yet they are allowed to compensate the parties’ injuries, not in money, but in other property. Doe v. Preston, 7 B. & C. 392; Wingfield v. Tharp, 10 B. & C. 785; Townly v. Gribson, 2 Term, 701; Arundel v. Viscount Falmouth, 2 M. & S. 440; Smith v. Smith, 2 Price, 101; Askew v. Wilkinson, 3 B. & Ad. 152; Ellis v. Arnison, 5 B. & Ald. 47; Thorpe v. Cooper, 5 Bing. 116; Barwick v. Mathews, 5 Taunt. 365. Our constitution, however, provides that the compensation must be made in money. But for this the government might, in evil times, put off upon a party injured other property, real or personal, at a fictitious value. To that imposition the citizens of all other states in the Union except Yermont are exposed.
    2. Mr. Fox asserts that the act of 1839, amending the city charter, demonstrates the intention of the legislature to make “ the actual value of property” the measure of damages in this case. Tho act referred to gives tho city council power to appropriate land for streets, etc., “making the owners compensation for the value thereof, or for the damages they may sustain thereby.” Digest of City Ord. 38, 39. Upon this the learned gentleman claims that tho actual value is to be paid where land is taken, and compensation to bo made whero other injuries are done. But thero is no ground for such a construction. The council, be it remembered, is to make compensation for the value of the land, as well as for damages which accrue. Of course, therefore, the question returns as *to the moaning of the word “compensation.” It seems to us that, in the clause of the act quoted, the legislature contemplated these two cases: 1. Where the whole of a piece of real estate is appropriated. 2. Where a part only is appropriated. In the former, the measure of compensation is the value of the property, for the whole interest of the citizen is extinguished as it would be by a sale. In the latter, the city has merely injured the property, and must pay for the damage done. No other construction accords with the general purview of tho act. This case belongs to the second class, where the damage only is to be compensated; and, in fact, the plaintiff has adopted such a form 'of action as to indicate this.
    Every argument, therefore, which legal ingenuity can devise results at last in the question : What docs compensation mean? That question has been answered by a reference to the analogies of tho law, and to the judgment of the great English tribunals. The word has also been specially defined by the courts of last resort in Pennsylvania and New York, between whose constitutions and ours the sole difference is; that wo are confined to money as the means of compensation, while they are not. Nor does the constitution of Vermont, to which we have been referred as a parallel to our own, at all militate against this argument. There the doctrine of our opponents may possibly prevail, because there the owner receives an equivalent in money, and not compensation, as he would under our law. This question has' been settled, too, as Mr. Fox admits, by a uniform course of legislation ever since the first statute was promulgated in Ohio. But he tells th9 court to set that at naught, because, forsooth, last winter it decided that “ healing acts ” were unconstitutional. Wo ask no favor from this court; we do not wish to bo protected by any error, however ancient or generally received. When, hpwever, a grave question arises upon the constitution, the whole object of this court must bo to ascertain the intention of those who framed that instrument; and we submit that the construction which it received from its founders, and which has been followed without misgiving for half a century, ought to go very far toward *deciding the question. This case presents no feature kindred to the cases instanced, for the very passage of those healing statutes indicated the opinion of the legislature that the practice theretofore existing was illegal.
    We have said that we ask no favors. We claim for the city of Cincinnati a faithful application of those rules which have been wisely ordained to protect suitors and quiet litigation — without which, indeed, trial by jury is an utter farce. And wo .challenge for this clause of the constitution its natural construction — one that does not fritter away the sense of its most important word, and smuggle in a doctrine foreign to the context, and hitherto unknown to the legislature and the profession. In all respects, we desire nothing but the full measure of the law, and its consequent, exact justice.
    Charles Fox, for the plaintiff:
    The principal question arising in this cause is, as to the right of the city to set off against the amount of damages sustained by the plaintiff, in the value of his property, taken for public purposes, any supposed benefit conferred on other property belonging to the plaintiff, by the alleged improvement.
    The proposition I maintain is, that when the city takes individual property for public purposes, they are bound to pay the value of the property so taken. This is a right secured to every individual by the constitution.
    By section 4 of article 8 of the constitution, it is declared that “ private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a; compensation in money be made to the owner.” Here, then, is an express provision declaring that a compensation shall be made only in money. T he proposition of the city counsel is, that they have the right to pay for the property taken, by improving other property owned by the plaintiff,, against his wishes. It would seem there could hardly be a difference in ^opinion as to the meaning of the words of the constitution — a compensation in money is to be made to tho owner. How can the court say that a compensation can be made in any other way than in money ? If the principle is to be tolerated, as contended for by the city, then it follows that a man’s house may be taken down and half his lot taken, and he is to be compensated by bringing visionary men into court, who swear that, in their opinion, the improvement made, will make his remaining half-lot equal in value to the house and whole lot.
    Again : Independent of the constitutional objection urged, I maintain a true construction of the amendment to the city charter, upon which the city founds its right to take property for public purposes, leads to the same result.
    Section 2 of the act amending the city charter, passed March 16, 1839, confers authority on the city to condemn and appropriate any real estate necessary for such improvements, by making the owners compensation for the value thereof, or for the damages they may sustain thereby; they shall have power to make any ordinance, not inconsistent with this act; to ascertain all damages and benefits that may accrue to the real estate in the section or sections in the vicinity of, or through which such street, lane, alley, market space, or'common may pass or be made; or by going beyond the vicinity, when in their opinion, it shall be just and equitable so to do, and to provide for a final adjustment of the same, by the assessment and collection of a special tax from the real estate bounding on, and in the vicinity of such street, lane, alley, market space, or common benefited thereby.

    Now the clear reading of this charter shows that the legislature intended:
    1. To authorize the city to take the property of individuals, by making the owners compensation for the value thereof.

    2. The city is to make compensation for the damages they (the owners) may sustain thereby. That is, the property of persons may be damaged by the opening of the street, although *none of this property is taken, and for this damage, compensation is to be made.
    And in the third place, the city is authorized to pass ordinances to ascertain all damages and benefits that may accrue to the real estate in the section or sections in the vicinity, or by going beyond the vicinity.
    And fourthly, the city council are to provide for a final adjustment of the same, by the assessment of a fpocial tax from the real estate bounding on and in the vicinity of the street, etc., benefited thereby.

    As I understand the meaning of this charter, it follows the constitution. It directs that the city shall make the owners compensation for the value of the property actually taken. This, without any regard to any collateral damage sustained, or benefit received by the owner in consequence of the improvement. And to show more clearly that this was the intention of the legislature, ,it is expressly provided that an ordinance shall be passed to ascertain all these collateral damages and benefits that may accrue to the real estate in the section, etc.; and to pay the difference between the damage and benefit, a special tax is to be assessed on the real estate bounding on the street, etc., so far as the same may be benefited. For instance, in this particular case, supposing the twenty-six feet taken by the city in this case, belonging to A., should just reach the south line of B.’s lot, but should not take an inch of his ground; as they had taken none of his lot, they would not have to make compensation for the value thereof. But suppose B. had a valuable building on his lot, and the council should find it necessary to raise the street ten feet higher than it originally was, and thereby cover up or render useless one story of B.’s house, it is very clear that B. would sustain a collateral damage, say of $>300. But as no property is taken, this damage may be compensated by the benefit conferred upon B.’s property, by the street running along the south side of his lot, thus giving him a front on a valuable street, which he did not before possess. Now in such a case, it is evidently proper that the collateral benefits *and damages should all be taken into consideration, and if the benefits conferred are greater than the damages sustained, it is clear they ought to be set off against each other. If these benefits conferred on the class of persons thus collaterally damaged, are equal to the collateral damage in each case, nothing further need be done. But as tho collateral damages may be greater than the benefits conferred, it is further provided that the council shall provide for a final adjuntment of the same, by collecting a special tax from the real est-ato hounding on the street which shall be “ benefited thereby." Test is, all the property on the street which is benefited, shall contri'o&te to the extent of the benefit received, to making compensation for the collateral damages sustained by individuals, over and above tiu particular damage sustained. The present case also shows the pro-propriety of such an assessment for benefits.
    All the eastern portion of the block stood back twenty-six feet, and thus standing, was not so valuable as the western portion ; but as soon as the twenty-six feet was taken off the western part of the block, the eastern part became more valuable, and ought to contribute toward the improvement.
    The proposition, then, that I maintain is, that by the words of the charter, the city council have authority to condemn and appropriate individual property “by making the owners compensation for the value thereof,” and on no other terms.
    Second, that to ascertain other damages sustained, the city may make ordinances, and when ascertained, they are to assess and collect a special tax on the property benefited. But this last provision to ascertain damages and collect a tax, etc., has nothing to do with regard to the value of property actually taken. This view of the case makes the charter consistent with the constitution, and it is the duty of the court so to construe the acts of the legislature as to make them agree with the fundamental law, whenever the language pei’mits of such a construction.
    If the court should take a different view, and say that the ^ordinance to be passed to ascertain all damages and benefits, is to include in the term damages the actual value of the land, then I contend that the benefits conferred on the real estate are to be assessed only on the property benefited, and one piece of property equally with another is to be taxed, and thus the burden divided among all who are benefited, and not be thrown all upon one person, as is contended for on the other side, by the set-off principle.
    I will now consider the claim set up in bar of the plaintiff’s right to recover at all.
    It is claimed by the counsel for the city, that there is a special provision made in the charter that the city council shall provide, by ordinance, a mode to ascertain all damages and benefits, and that the amount so ascertained shall be assessed by way of special tax on the real estate bounding, etc. And that such an ordinance has been passed, and therefore the plaintiff’s remedy is under the provision of the ordinance.
    The first answer to this provision is already given, if my construction of the charter is correct. I maintain that no power or authority is given to the council, by this charter, to pass any ordinance to ascertain the value of the property actually taken. But the city is bound, by the constitution and the charter, to make the owners compensation for the value of the necessary land. The charter makes no provision for ascertaining the value of the land taken, and therefore it is to be ascertained, as in all other cases, by the judicial tribunals of the country. 11 Ohio, 410. It is the value of the land and buildings only these plaintiffs seek to recover. They do not seek to recover for any collateral damage. And there being no provision made to ascertain the value of property actually taken for streets, and as the owners are undoubtedly entitled to compensation, the only mode left by which the plaintiffs can obtain that compensation, is by action. 5 Ohio, 143; Foot v. City of Cincinnati, 11 Ohio, 408; 2 Kent’s Com. 339.
    ^Again, it is clear that neither the city nor the state can take individual property without first declaring, “by law, that the public welfare requires it, and directing the mode of ascertaining its value, and providing for its payment.

    Now the legislature, in the amended charter, have not provided for anything, as 1 understand it, but a final adjustment of the collateral damage and benefits, that a provision is made by taxing the property benefited.
    Again, suppose I am wrong in my interpretation of the act, I can not be wrong in this proposition, that the only provision made is an authority to provide for a final adjustment of the same, by the assessment and collection of a special tax from the real estate bounding on, and in the vicinity of such street, lane, etc., “ benefited thereby.”
    Now it is very clear that the only authority given to council to tax property for the payment of damages, either direct or collateral, is to the extent of the benefits actually conferred on the property. In New York this question has been decided, that although the city may tax adjoining property for the actual benefit conferred, yet the city can not tax one cent beyond that benefit, and the benefit is not to bo speculative and distant, depending upon remote and uncertain contingencies, but it should be substantial, certain, and capable of being realized within a reasonable and convenient time. 3 Wend. 452 ; 9 Wend. 257.
    In the last case the court say, “the parties can not be assessed beyond the benefits received, and if the statute can not be executed without this, the statute must fail.” And it follows that if the assessment, when made, was beyond the benefit received, the same could not be legally collected, because it would be unauthorized, and therefore void. 12 Wend. 165.
    The error of Mr. Hart, in his argument, consists in the supposition that the council have the power to assess all the damages sustained on the adjoining property of individuals, without regard to the extent of benefits conferred. No such authority is conferred by the charter.
    *Here, then, the difficulty is presented. The owner of the property is entitled to compensation for the value of his land taken. The provision for payment is only a tax on other property, which may be benefited by the improvement. Of course, if there is no property benefited, the owner has no provision for his compensation; and, therefore, the case comes directly within the ease of 5 Ohio, 143, where the court hold the legislature are bouud to “direct the mode of ascertaining its value and providing for its payment.”
    If the owner is thus to be thrown upon the contingency of there .being sufficient benefits conferred upon other property, for obtaining compensation, is it not, in effect, repealing the constitution ? The man’s property is taken away for the public use. He is entitled for that to compensation in money. But instead of money, the legislature say he is to be satisfied if there is sufficient benefit conferred upon other people’s property — if no such benefit is conferred, he is to have nothing. And this is claimed to be a “compensation in money.”

    I claim, then : 1. That the charter, authorizing the individual property to be taken for public use, to have a fair constitutional interpretation, must be held to authorize the city to take the property only on paying the value thereof.
    2. That no provision is made, in the charter, for ascertaining the value of property taken for streets (although there is such provision made for valuing property taken for wharves and landings).
    3. That the provision attempted to be made is not certain, but contingent (depending upon finding property benefited), and there is not such a provision for compensation in money as the constitution requires.
    Now, I suppose the owner of property is not to be dealt with in this manner. His means of obtaining his compensation must be certain, and not contingent; and nothing short of an absolute certain provision for payment can be set up as a bar to his right of action.
    Thus far I have only referred to the provisions contained in'the ^charter. I will now examine the provision made by ordinance, with a view of complying with the requirements of the charter. I maintain that the ordinance of May 29, 1839, is not such an ordinance as is required by the charter.
    The charter confers power on the counsel “ to make any ordinance not inconsistent with this act, to ascertain all damages and benefits that may accrue to the real estate, etc., in the section or vicinity, or by going beyond the vicinity, when in their opinion it shall be just so to do ; also to provide for a final adjustment of the same, by the assessment and collection of a special tax from the real estate bounding on, and in the vicinity of such street, etc., benefited thereby.”

    The first, thing, then, to be done by the city, is to provide, by ordinance, a mode of ascertaining the damages or benefits.
    The council are to determine whether it is just and equitable to go beyond the vicinity.
    Then the council are to provide for the adjustment, by the assessment of a special tax from the real estate benefited thereby.

    The counsel have, by a general ordinance, ordained that the damages and benefits, including costs and expenses, that may accrue to the real estate in the section or sections in the vicinity or through which the street, etc., may pass, shall be finally ascertained and assessed by three freeholders of said city, to be appointed by the city council, if application be made for the purpose in six months from the day of establishing the same, upon the real estate bounding on, and in the vicinity, or beyond the vicinity, as the said freeholders may deem just and equitable, taking into consideration the nature of the estate injured, and all the advantages that each party will derive from such improvement. And the appraisers are to enter their proceedings to the city clerk. At the expiration of four weeks, the clerk is to deliver a certified copy of such assessment to such persons as the council may appoint to collect — when collected, it is to be paid to the person entitled, by order of the council.
    *It is clear, from the previous decisions of the court, that, if the legislature required private property for public use, a law must be passed “to direct the mode of ascertaining its value, and provide for its payment.” Admitting, for the sake of argument, that the legislature'can delegate this power of legislation to the city council, yet it is clear the city council must make the same provision to secure compensation as the legislature must have done. There is no mode fixed in this ordinance for ascertaining the value of property actually taken for streets; but the ordinance only provides that “ the damages, including costs and expenses, that may accrue to the real estate, etc., shall bG ascertained and assessed, if application is made in six months.” Is this such a provision as ought to be made ? The right to apply is limited to six months. There is no mode pointed out by which owners are to be notified of the city’s intention to condemn — or of its having been condemned. Under this ordinance, a man’s property may be condemned without any notice, and the city may lay by for six months after “ the day of establishing the same,” and then order the buildings torn down, and the owner then is too late to apply, because the six months have elapsed.
    Again: When the damages are ascertained, I claim they must be reported to the council, and then the city council must declare their opinion whether it is just and equitable to go beyond the vicinity in order to assess damages. The charter requires the council to exercise its judgment and determine this question, and this can only be done by ordinance. Instead of doing this, the council, by the ordinance, havo left this matter to bo ascertained by “ three freeholders," thereby substituting the judgment of the three freeholders for the judgment of the whole city council. This can not be legally done, and of course no assessment so made can be collected; and therefore the ordinance does not make a legal provision for the payment of the value of the land taken.
    Again : The city council is to provide for a final adjustment of the same, by the assessment and collection of a special tax from the real estate bounding, and in the vicinity, etc.
    *Now, the city council have made no ordinance by which they have assessed a special tax on the property benefited. And can it be pretended that any tax or assessment can be collected unless it is assessed by the city council ? It is made the special duty of the council to assess this tax; and, before they can do that, they must first determine what portion of the property in 'or beyond the vicinity shall contribute ; yet these two important matters, instead of being acted on by council, have been delegated by them to three freeholders, and the clerk, after four weeks, is to deliver a copy of the assessment of the freeholders to the collector.
    I maintain that, in order to carry out the provisions of the charter, the city council ought first to provide for the ascertaining the damages. After the amount is ascertained and reported, then the city council must, by ordinance, determine whether it is “ just and equitable to go beyond the vicinity” to assess for benefits; and, after the benefits are ascertained, an ordinance must be passed assessing a special tax on the property so found to be benefited. This tax can only be assessed by council, and yet the council claim that, without such ordinances, we must rely upon this right to collect the special tax, for our constitutional right to a compensation in money.
    Again: I claim that this ordinance is void, because it seeks to compel the owners of adjoining property to pay the “ costs and expenses,” which the charter does not authorize; and, not being authorized, can not be assessed. 9 Wend. 257.
    In my estimation, the council have made no provision for the payment of our claim — have made no provision by which we can legally assert our right in any other way, than by coming into court.
    Again : Take the ordinance as it is, and supposing it to be perfect, the council has disregarded their own ordinance, and the charter also, in the proceedings on the review. Both the charter and the ordinance secure to the owner the right to select two persons, who, with two to be selected by the city, and one by the four, are to determine the value, etc. Now, in this *case, the plaintiffs applied for this review, and named their appraisers; the city also named theirs ;.and afterward, without notice to the plaintiffs, under the pretense that the appraisers refused to act, and, on the application of Mr. Yolant, they appointed another set of appraisers, none of whom were selected by those plaintiffs; and now they claim that these plaintiffs are bound by this assessment, made directly contrary to the charter and ordinance. Surely, no such proposition can be sustained. These plaintiffs did all they could do, and all the law required them to do, by naming their appraiser. That is all they had to do, and they are not responsible for the appraisers or reviewers not acting; they had no control over their actions. But the fact is, the reviewers could not find any property which had been benefited by the opening of the street; and the council would not receive the report, because they could not assess benefits to the amount of damages sustained.
    The city council have acted, from the beginning, under the impression that they could take any man’s property for a street, and whatever the property taken should be found to be worth, they could pay for by assessing a tax on adjoining property to the same amount, no matter whether that adjoining property was benefited or not. This erroneous notion has regulated and controlled all the city legislation and proceedings on this subject. And it is in consequence of this erroneous impression, that they never have made any legal provision for the payment of the value of the property, or for damages sustained. Now, the owners of the property can not prevent the legislature from taking the same. If the government will take it, the owner can not object or resist; but the govment “ must have the value ascertained, and pay for it.” 5 Ohio, 184.
    An ordinance which does not provide a clear, precise, and adequate remedy to the owner to ascertain the value of the property taken, and a certain, unquestionable fund for the payment of the value of the property, is null and void. 20 Johns. 105. The ordinance must itself provide a fund for the payment of the compensation required by the constitution, or the party may resort to his common-law remedy. ,
    *1 maintain that, if all the necessary ordinances had been passed ; if the assessments had been regularly made, and the benefits conferred were sufficient to pay for the value of the land taken, and other damages sustained, still the owner can not be thrown on the assessments. The owner is entitled to his constitutional compensation, whether the assessment for benefits is or is not collected, and the city or legislature must provide the fund for, payment.
    Again : I claim, the city council, being the party liable to pay these damages, ought not to have the whole control of these proceedings. I maintain that the ordinance which the council ought to pass, to carry out the powers conferred by the charter, should make provision for the determination of the matters in controversy between the owners of' property and the city, by a judicial tribunal. I claim this power can not bo honestly exercised by one of the parties in the controversy. Is it not strange that the city, who is to pay the value of the property, and compensate for damage done, should be selected to decide every controversy which may arise in proceedings of this nature ? Can it be said that such an ordinance is not “inconsistent with the act,” in the language of the charter? The city council is authorized to pass all ordinances to carry into effect the provisions of the charter; but is it a fair interpretation of this grant of power, to say that the city council may pass an ordinance giving to the council judicial powers ? To invest themselves with the power of deciding all controversies between the city and individuals? Surely no such power can be claimed. And yet the counsel for the defendants claim such powers for the council. The ordinance is founded on this supposition. The city claims the right, by ordinance, to name the appraisers, if application is made in six months. The ordinance prohibits the paying over the money collected for benefits, except by order of the city council.
    In all other cities and countries, provision is made by law for settling all the controversies which so frequently arise in carrying out these powers to appropriate private property to public use, by judicial bodies. In New York, the proceedings must *be had in the Supreme Court; and some of the most intricate questions of law have originated in these matters, requiring the utmost research and reflection. By this ordinance, all these matters are to be decided, if decided at all, by the city council of Cincinnati. Is this giving a remedy “ by due course of law, and administering justice without denial or delay ? ” I should say not; but, on the contrary, it is a declaration that the power of my client to obtain payment for his land, depends upon the mere will and pleasure of the city council.
    Again, in this very case, the city own the market-house property, 400 feet in length, and this is to be assessed for benefits; and the city market house, not benefited ten cents, is charged with |1,844, because it was considered necessary to raise the amount by assessment, not because the property was in fact benefited. And yet the city council, having to pay the largest sum of any property holder, are permitted to act judicially in this matter, and decide every important question which may arise. Is it not a mockery to send these plaintiffs to such a body to obtain redress, or even to complain of grievances? I would meet such an ordinance at once, by declaring it inconsistent with the charter, viola» tivo of every principle of justice, and not sanctioned by the constitution or laws of the land. Such an ordinance ought to be condemned at once by every man who wishes to preserve the distinction between legislative and judicial functions ; who wishes a fair and impartial administration of justice. Why should this council bo tolerated in passing an ordinance of the character of the one in question, making themselves the judge in their own case? The charter has established the office of mayor, to whom exclusive jurisdiction is given to determine violations of the ordinances of the city. And he is “to perform such duties, and exercise such powers as, from time to time, may devolve upon him by the ordinances of the city.” Now the amended charter authorizes the council to pass any ordinance to carry its provisions into effect, not inconsistent with the act.
    And is it not clear, that such an ordinance must bo passed as *will confer on the mayor, the judicial officer of the city, the power of deciding the several questions that may arise, in the execution of his duty, in opening streets? By the passage of such an ordinance, an effectual mode of settling all these difficulties and controversies would have been provided, satisfactory to individuals, and consistent with our notions of right. But to make the members of the council the judges in these matters, shocks all our notions of justice. Chancellor Kent, in his note, 2 Kent, 339, says, the government “is bound to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms.” And he appears to hold the opinion that the money must be paid when the property is condemned. This is so held in Mississippi. 3 How. 249; so in 1 Dana, 90, 91, 233.
    This court, in 5 Ohio, 393, decided that the council had no power to declare a forfeiture of gunpowder; but if the city had the power, it was held the forfeiture could only be enforced by a judicial proceeding. They could not, by ordinance, forfeit the powder — there must be a legal investigation; and any “ ordinance which violates this principle, is not consistent with the spirit of the laws of the United States or of this state.” I maintain the spirit of the law is equally violated, by constituting the council the active agents of the corporation, the judges and regulators of these proceedings; and that the ordinance, on this account, is inconsistent with the charter.
    My objections, then, to this ordinance, are:
    1. Because it does not provide for valuing the property taken, or paying for the same.
    2. That the right even to apply for damages, is limited to six months.
    3. That the council are bound to have a valuation made at the same time they condemn, whether application is or is not made; and the ordinance only provides for a valuation if damages shall be claimed.
    *4. The ordinance is void, because it provides no mode of giving notice to the owners.
    5. Because it delegates to freeholders the power of deciding what property shall be assessed for benefits, whereas it is the duty of the council to decide what extent beyond the block the proporty shall bo assessed.
    6. Because, after the return of the amount of benefits conferred by the appraisers, nothing can be collected until a special ordinance is passed, assessing the tax, which is not done.
    7. It is void, because it seeks to add the “ costs and expenses ” of the proceedings to the amount authorized by the charter.
    8. Because it does not provide a disinterested tribunal to investigate and decide upon the matters in controversy, before which each party may meet and discuss their claims.
    9. Because it is inconsistent with the principles of justice to permit the city to be the judge,-where it is the party directly in interest.
    10. Because there is no certain mode provided for the payment of damages, but the right to compensation is made to depend upon the contingency of finding property benefited by the improvement.

    11. Because, even after the tax is collected, the owners of the property can not receive, unless the council see proper to order it to be paid.

    12. Because the ordinance is based upon the supposition that all the losses and damages sustained by individual owners must bemiado out of the property of other owners, whether the latter.property is benefited or not.

      13. Because the ordinance is based upon the supposition that the council have the right to set off advantages or benefits, real or supposed, against the actual value of the property taken.
    The council, perceiving that there was a defect in the ordinance of 1839, passed the amended ordinance of June 23, 1841.
    *This' amended ordinance is more defective, if possible, than the one it attempts to amend, for it provides that, if the persons appointed to review can not agree, the original assessment shall stand. Thus, by a very cunning operation, the Gordian knot is loosened, and the charter which secures to the owner a right of having the assessment reviewed, is, in fact, repealed, pro tanto, by this ordinance. I think this is rather inconsistent with the provisions of this charter. •
    As to the cases cited by the defendant’s counsel, the caso of Bates v. Cooper, 5 Ohio, 115, establishes no proposition contrary to what the plaintiffs’ counsel contends for, but that case fully recognizes the principle that the state can not take individual property without making a provision to compensate the owner.
    In Scovil v. Geddings et al., 7 Ohio, the action was brought for a consequential .injury, and the damage claimed was only for an inconvenience sustained, and the court say: “That the indirect injury which may be done to private property, by lowering or raising a street, does not come within section 4 of article 8 of the constitution.”
    The action in that case was not against the city, but against an agent, and all that was decided was, that the city, having authority to do the act, the agent of the city could not be sued.
    In the case of Hickok v. City Council of Cleveland, 8 Ohio, 543, the action was for collateral or consequential damage; and it was held that, inasmuch as the council were authorized to grade the streets, no action could be sustained for consequential injury. The difference between this last and the Goodloe case was this: In the latter case the-improvement was alleged to have been fraudulently done. But in the Hickok case, it is again held not to be a case within the clause of section 4 of article 8 of the constitution, “ that private property is not in reality appropriated to publio uses,” because no property was, in fact, taken.
    *The case of Rhodes v. City of Cleveland, 10 Ohio, 159, decides that corporations, notwithstanding they are authorized by law to grade streets, yet, if the exercise of the lawful right occasions damage to others, an action lies to recover for the injury done, in the same manner as against individuals. This last case does in fact overrule the case in 8 Ohio, so far as the right to sustain the action is concerned. But, in none of these eases has the question been presented which is now before the court. We are not asking damages for consequential injury, but simply asserting our right to recover the actual value of the land taken.
   Wood, C. J.

The principal question, in the case before us, has its origin in the second and third reasons assigned in the motion for a new trial: Whether the defendants can set off against the value of the plaintiff's property, appropriated for public %ises, any increased benefit, arising from the improvements, made by the city, to the balance of the lot?

It is insisted by the defense, that the court erred in rejecting the evidence offered on the trial, of the difference in value of the plaintiffs’ premises, before and after the improvement made, by widening the street; and that the court should have instructed the jury to consider the benefits resulting from the improvement, to the residue of the lot, in estimating the damages.

It is not denied by the plaintiffs but what their property is subject to the public use, when the necessity of the community de-mands its surrender. The right of eminent domain is an incident to sovereignty, and exists in every government. Private mischief, rather than public, of necessity must be endured. The obligation to make compensation, however, follows thjs right, as the shadow does the substance, and is concomitant with it. It is not in all countries a legal obligation; but it is an obligation of natural equity and justice everywhere. That this right of eminent domain may be conferred, not only on municipal ^corporations, but private, can not at this day be questioned, without upsetting the legislation of Ohio for half a century, and the repeated adjudications of our own courts and those of our sister states. 1 Kin. Com. 218.

It is, however, incorporated into our organic law, that compensation in money shall be made to the owner, whenever his property is appropriated for the public welfare. Not as a condition precedent to the appropriation; but provision must be made by law for the assessment of the damages the owner of the property will sustain, in some fair and equitable manner, and before some corn-potent tribunal, where the parties can bo heard; and payment must be provided for, from an unquestionable fund, by law, before permanent possession of property can be taken, or its appropriation made, in the exercise of this incident to sovereign power.

It is contended by the plaintiff’s counsel, that, by compensation to the owner in money, as the words are employed in the constitution, is signified the actual value of the property appropriated, in money, subject to no deduction whatever! Wo can not adopt this opinion. If such were the intention of its authors, they probably would have used language like this: Provided the value of the property be paid, in money, to the owner.

That just, full, -and adequate compensation must be made, and in money, is certain ; more can not bo required; but if, in appropriating property of the value of $4,000, when, by the same appropriation, the value of what remains is increased $2,000 and the value of the property taken is the rule of damages, the owner actually takes $2,000 without the least consideration, and receives more than the constitution enjoins to be paid, because it is more than a compensation.

Other cases may occur where the full value of the property will not be a just compensation. His house may be taken down, and he and his family thrown out of employment, and, in addition to the value of his house, he would clearly be entitled *to consequential damages, or he would not receive full compensation.

The word compensation imports, that a wrong or injury has been inflicted, which must be redressed in money. Money must be paid to the extent of the injury, whether more or less than the value of the property; and then, in our view, is the language of the constitution satisfied.

We are confirmed in our opinion of the correctness of the construction we place on the word compensation, as employed in the constitution, from the fact that such construction has obtained and been acquiesced in, from a period not far short of the organization of the state government. In the opening of roads, constructing turnpikes, and appropriating lands for canals, benefits conferred have been constantly and unceasingly deducted from the value of the property, or damages otherwise sustained. Long contemporaneous construction of an instrument is seldom erroneous, and is always deserving of great consideration, when the meaning of the instrument is obscure.

Under a similar provision, tho Supreme Court of Kentucky is the only tribunal of which we are aware, that has come to a different conclusion. 1 Dana; 9 Dana.

We think the court erred in rejecting the testimony offered, and in the instruction it gave tbe jury; and that a new trial should be granted.

It is, therefore, unnecessary to consider the other points made.

Read, J.,

dissenting. I can not concur in the opinion of a majority of the court, that resulting benefit may be offset against the value of property taken for public use.

,The constitution declares:

“ Private property ought and shall for ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.”

This is the supreme organic law of the land, limiting state ^sovereignty. Its binding force is admitted. The question is, as to the meaning of this clause of the constitution. A resort to any known rule of construction would not seem to leave it in doubt. The words of the constitution are certain and explicit. It asserts:

1. The inviolability of private property.

2. Its subserviency to the public welfare; and,

3. The condition upon which it may be subjected to public use.

The condition of subjecting private property to public use, is defined with equal precision by the following exact phraseology : “Provided a compensation in money be made to the owner. The - condition is compensation — the compensation, money. Such is the constitutional limitation of the right of eminent domain.

The only points, then, upon which the mind can cavil for an instant, is, as to the time when, and the amount to which, compensation shall be made.

As to the time when compensation shall be made.

Compensation must be made before or at the moment the public dispossesses the private owner and subjects his property to public use. The state can not seize private property prior to compensation. The words of the constitution are, private property is “always subservient to tho public welfare, provided a compensation in money be made to the owner.” To render it moro clear, read the constitution, thus: “ Provided a compensation in money be made to the owner,” private property “is always subservient to the public welfare.” This language implies condition, power, possibility, arising upon the happening or existence of a particular event or thing.- If a particular event or thing happen or transpire, such a result follows — or, tho condition happening, the power result^. If compensation be made, private property is subservient' to the public welfare. The power to subject property, results from compensation being made. Hence compensation is a condition precedent to the seizure of private property to public uso. The reason for *this construction is even more strong. If the public may take private property for public use, without compensation being first made, the owner may be de prived of tho means of support. The owner may be an infant sick or disabled, and unable to procure a subsistence. If payment could be postponed for a week or a day, it might be for a year or an indefinite length of time. It has been repeatedly decided that a law subjecting private property to public use, without providing a clear and specific mode of compensation, is invalid. Extreme cases may be put, such as the seizure or destruction of private property in time of war, or the destruction of property tc prevent the spread of fire in a city. These are cases of necessity, and rest upon the principle of self-preservation, and in no respect invalidate the general law. In these cases, the necessity may require the immediate seizure or destruction of property before it is possible to make compensation; but they are like the ease of a man being compelled to kill his adversary to save his own life. The law recognizing the right of self-defence, excuses the homicide. Tho extreme necessity becomes a law of itself.

As to the amount of compensation.

This depends upon the manner in which the state has subjected private property to public use. If a mere injury be done, without disturbing the possession or ownership, the amount pf damage should be to the extent of the injury. If the property has been subjected to a mere temporary use, to the value of the use. If the entire property has been converted to the public use, the compensation should be the full and fair value of the property so taken.

This compensation must be made in money. But a majority of the court held that, where private property has been seized to a public use, that, if any benefit result to the owner, that may be deducted from the value of the property so takou, and payment of the balance, so ascertained, in money, to the owner, is the compensation intended and meant by the constitution. This construction is manifestly opposed to the object, ^spirit, and letter of the constitution. The constitution declares that, if private property be taken for public use, compensation shall bo made the owner in money. But a majority of the court say, if a portion of a man’s private property be taken for public use, and the remainder be benefited to the extent of the value of the property so taken for a public use, no further or additional compensation need be made. That is, the state may take a part of a man’s private property, and make him no direct compensation in money whatever, provided there be a reflected benefit over upon the remaining property of the owner, in the opinion of a jury, equal in value to -the property seized to the public use. The state addresses the owner in this wise: “The public welfare requires that the state should take from you a part of your property for the purpose of public improvements; if the public improvement will not render the remainder of your property mor’e valuable or of equal value to the whole before such part taken, you are entitled to no compensation. ” Is this compensation in money? At most it is but compensation in reflected benefit. It is not compensation in money. To say that it is, strikes mo as a mere mockery of words,

Put the proposition in this form: The state takes for public use a part of a man’s land worth $500 — the whole tract of land, a part of which has been taken, was worth $1,000 — -the remaining part to the owner, after the improvement, is worth $1,000. Upon the construction given by the majority of the court, the account between the state and the private owner would stand thus:

The state debtor to the owner for the land taken............... $500

The constitution requires compensation in money.

Credit to the state for an improvement, estimated to

benefit the remaining land of the owner..................... 500

Balance due the owner.................................................. $500

The argument to sustain this construction runs thus: The constitution requires compensation to be made in money; benefit *to the remaining property of the owner has resulted from the public improvement equal to the value of the property taken; therefore compensation has been made to the owner in money. This argument rests upon tho assumption that a benefit resulting to the owner of land, by the construction of a public work, is a payment of money to such owner, in amount equal in value to such benefit. That is, enhanced value and money are the same thing.

To escape the irresistible force of this conclusion, it is contended that the constitution does not require compensation to be made to the amount of the. value of tho land or property taken ; but to the extent of the injury sustained in consequence of taking such land or property. That to ascertain the amount of injury it is proper to take into consideration the advantages and disadvantages which result to the owner; and that, if the advantage is equal to the value of the property taken, the owner has sustained no injury, and hence is entitled to no compensation. This is arriving at the same result, only in a different mode. It is simply varying the statement of the proposition, without altering its nature or the result. What difference does it make whether you offset the benefit directly against the property taken, and hence hold that no further compensation need be made, or offset the benefit against the value of the property taken, to show that no injury had been sustained, and therefore that the constitution required no compensation to be made? In either view, no compensation is made to the owner in money, for the property taken. It merely results in this, that in one case resulting benefit is regarded as compensation in money ; and in the other, that taking a man’s property without doing him an injury, in consequence of a reflected advantage, is compensation in money to tho owner, to the extent of the value of the property taken. By either mode it comes to this, and no ingenuity can avoid it, that the state may take private property for public use, and make no compensation to the owner in money. The constitution says compensation shall be made to the owner in money.

^Compelled by the pressure of the argument, it is admitted that, if this were a now question, a proper construction of the constitution would require compensation to be made to the owner in money, to the extent of the value of the property taken to the public use. But it is contended that the authorities of the state have uniformly acted upon tho principle of compensating the owner of private property to such amount as he may be deemed entitled, after deducting benefits and advantages from the value of the property taken, and not to the full value of the property. That the courts have also been in the habit of recognizing this as the true constitutional compensation, and that it is now too late to depart from it. Usage and practice can not alter the constitution. It suffers no rust, and is as bright now as upon the morning it came into existence. Sovereignty must reside somewhere. Our theory of government'recognizes it in the people, to whom it belongs, and from whom it must emanate. Government originates with them, and they alone have the right to prescribe the kind, to alter or modify, and to confer and limit the powers of government. This, by them, has been dono by a written constitution, creating the’state government, and assigning and limiting its powers. Now, if the practice of the state authorities, in any or all of the departments, can prevail against the constitution, and acquire to the state powers not delegated by that instrument, or take away rights secured by it to the people, it is an assumption that the powers of the states and the rights of persons depend not upon the constitution, but upon the practice of the state authorities; and that the constitution may be altered and nullified, not by the people only, who made it, but by the action of the state authorities, in disregarding its requisitions. I am certain the most confident advocates of this notion of construing the constitution, from practice violating its provisions, will shrink from this conclusion. True, contemporaneous construction, evidenced by uniform practico, may be resorted to in construing doubtful written laws and constitutions. But where there is no ambiguity, there is no room for construction; and the laws, as written, must prevail. In this instance there is neither doubt nor ambiguity in the wording of the constitution.

It was contended, in the case of Dixon vf. City of Cincinnati, before the court at this term (although, in the opinion of a majority of the court, it was not necessary to decide the point in that case), and has been repeatedly asserted by the legislature, in the grant of municipal charters, that reflected benefit may not only be offset against the value of property taken, but that the owners of adjacent lands may be charged with the cost of constructing the public improvement in proportion to the amount of benefit resulting to each. If the owner of property be charged with the payment of money to the extent of a benefit resulting to his property, by the construction of a public improvement, upon what principle is it to be done? It will not be contended, in this instance, that the money subjected to public use is compensation in money. This would be absurd.

To adopt such a construction of the constitution, the state could subject private property to public use, and construct public improvements to any extent, without any charge whatever upon tho public treasury. Resulting benefit to the owner of property subjected to public use, and those whose property was near to tho public improvement would be charged with the whole expense. This overturns the whole doctrine of representation and taxation. It would authorize the people of a particular section of the state to be charged with the whole cost of a public improvement projected by the state, by the vote of members of the legislature, neither whom nor whose constituents are charged with the pay ment of money imposed by their vote. The legislature represents the entire state, and a vote of theirs creating an obligation to pay money, falls upon the whole people of tho state, and can not be limited to a part. So of a city council, their vote represents the whole city, and binds all the inhabitants of the city. No man can vote, through his representative, to charge his neighbor with the payment of *money for which ho does not, by such vote, become so liable himself- These are truths too obvious to require illustration. But to say that tho legislature could pass a law, imposing the entire burden of constructing a public improvement upon the people of a part of the state, shocks tho-notions of every man, and is denied by all. If the state could do no such thing, much less could the legislature confer power upon a city council, by vote, to charge the cost of a public improvement, constructed for the benefit of the whole city, upon a part only of the inhabitants. The security of the owner of property, that he shall not be plundered under the plea of taxation, is, that taxes must be imposed equally upon the whole community. If the power of special taxation can be supported upon the pretense of benefit resulting from improvements made by the public, the owners of property hold it at the mere hazard of improvident legislation.

It is claimed that, permitting resulting benefit to be set off against the value of property taken for public use, is only construing the constitution in conformity with a principle of natural justice. That it is nothing but right, in compensating the owner, to take into consideration such advantages as result to him from the public improvement. There is nothing in this argument. Natural justice would require that the state should be charged with the enhanced value resulting to the public property from private improvements, or that private property should bo charged with enhanced value resulting from public improvements. To carry out the principle — if the improvement of a man’s private property should increase the value of his neighbor’s property, it should authorize a charge to the extent of the reflected benefit. It is well known that improvements, both public and private, give increased value to. the whole property of the community. It is just as consistent with the principles of natural justice that individuals should obtain pay for benefits resulting to property from their private improvements, as that the public should receive compensation for benefits to private property arising from public improvements. *The idea of permitting private individuals to charge each other with such benefit as may result to each other’s property, from improvements which each may make, strikes every one as perfectly absurd. Why is it not just as absurd to permit the state to charge private persons with the reflected benefit resulting from public improvements, either in the way of compensation for property taken, or directly by way of special tax?

The constitutional requisition of “compensation in money,” excludes every other interpretation except payment in money to the value of the property taken. The word “ money ” refers to the amount to be paid, as well as to the kind of payment. Money is the measure of value, as well as the medium of payment. No other construction will give the word its full meaning. But it is urged that it is not a rule of value to fix the amount to be paid, but only the specified kind of payment, after the amount to be paid is ascertained in some other mode. That it merely forbids the state to compensate the private owner in property. Now, payment to private owners for property taken for public use, in other property, was not the evil which the constitution intendod to guard against; but the evil which the history of governments disclosed was, that governments often seized private property without making any compensation at all, or at least not adequate compensation. The history of governments did not show any great grievance or tyranny on the part of governments, in compelling an exchange of property, of equal value, belonging to the government, for that of private persons. Such a notion, however gravely urged, is idle. What danger is there that the state will compel individuals to barter their property for property of the state of equal value. The state has no such power conferred upon it by the constitution, and not by implication, as all powers not granted by that instrument are reserved to the people. Hence, the word “ money” was not introduced to guard against any such evil, and could only refer to (he value to be paid for property taken for public use, as compensation to the owner.

*The truth is, the constitution will bear but one construction. It requires that compensation shall be.made in money to the full'value of tho property taken to public use. Tho private owner may bo entitled to additional compensation for an injury resulting to the remainder of his property from a seizure of part. If such claim bo made, resulting benefit may be offset against resulting damages. But, at all events, the owner is entitled to the value of the property taken for public use, from which any reflecting advantage can not be deducted.

Any other construction would never have been for a moment entertained, except from the fact that public improvements were deemed of the utmost importance to the growth and welfare of the state. An anxioty to carry out a scheme of internal improvement at the least possible expense, has induced the legislature and the courts to forget the provisions of the constitution. But, however great the public benefit derived from public improvements, it should be remembered that the highest possible public good is to secure every person in the full and complete enjoyment of his property. This clause of the constitution was designed to check the license of power, and secure to every person the full enjoyment of the natural and constitutional right. The right to acquire, possess, and enjoy property of eminent domain is limited, and the state can not seize upon private property, without making full compensation in money. It is urged that the public good may require the sacrifice of tho property of the individual. To guard against this very thing was the design of the constitution. In time of war, and great and imminent public pressure, the sacrifice of person and property is both the dictate of duty and glory. But when tho proper question is, whether tho public shall pay for property taken for public use, or tho private owner shall lose it, no such duty exists. The right to hold and enjoy property, is coupled with the right of life. The maxim of sacrificing the individual to the public, is one of despotism. The public is not consulted when a man is born, nor does a man live by public permission ; he holds life by the right of God; ^and the design of our government is to protect him in these rights. We should be peculiarly careful to preserve the constitutional inviolability of private property, since the legislature has been so free in conferring the right of eminent domain upon municipal and private chartered corporations. Private companies are formed for their own benefit, and seek from the state the right to subject to their use private property, upon the ground that the public will be benefited by their operations. It is well known that the contemplated advantage oftentimes outruns all reason and experience. Let this notion be the measure of benefit to the owners of private property, to the offset against the value of the property taken, materials, etc., for the construction of these works, and you give free license to chartered companies to run riot over the rights of private property. If this may be done without compensation before seizure, private property is exposed to the hazard of every wild scheme which may obtain. How often is it that companies commence and fail? It occurs so frequently that it is well that they are without bodies as well as souls-; otherwise, the numerous dead would be an offense to the nostrils of the land.

We should remember that the highest possible good is to be ' derived from a strict adherence to the constitution, and by securing to every person the full enjoyment of every constitution»1 right.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Henry B. Curtis, Receiver in the matter of the Owl Creek Bank Case, v. John Hawn and others, heirs at law of John Hawn, deceased.
    Scire facias is not the proper mode of reviving a decree in chancery against heirs.
    The appropriate method is by hill of revivor, or some proceeding in the nature of a hill of revivor. '
    This is a scire facias to make the heirs of John Hawn, deceased, parties to a decree rendered against their ancestor. Reserved in the county of Knox.
    *The writ recites that in 1840, in a certain chancery proceeding, wherein G-riffin and others were complainants, and Banning and others were respondents, involving a settlement of the partnership transactions of the Owl Creek Bank, among other things a decree was had against John Hawn and David Hawn, administrators of John Hawn, deceased, for the sum of $436.77 and costs, being the proportion assessed against said Hawn, as owner of fifteen shares of stock; that, in consequence of the insolvency of some of the parties concerned, there was a further assessment of fifty-seven dollars and items of cost, all of which remains undischarged; that the period for the settlement of the estate has expired; that the assets of said estate have been exhausted ; that no property remains yet to be administered — but avers that money and bonds, of more than sufficient value to satisfy said decree, have descended to the heirs of said John Hawn; and the writ requires said heirs to show cause why judgment should not be rendered against them for a sufficient amount to satisfy said decree.
    To this scire facias the defendants demurred, assigning for cause, among others, that it was a process unknown in chancery proceedings.
    Henry B. Curtis, in person, for plaintiff.
    Bartley & Robertson, for defendants.
   Read, J.

The writ of scire facias, to revive judgments m personal actions, is a statutory remedy unknown to the common law, and supposed to have been first introduced and its nature declared by the-statute of Westminster. 2, 13 Edw. I. Its usual office was to revive judgments, and enforce debts of record. By virtue of several statutes in our state, it has been introduced as an appropriate remedy in a variety of cases. But neither by ancient usage nor modern statute is it anything *but a legal remedy. Its nature, structure, and form are adapted only to legal procedure. It has never been introduced into courts of chancery, whore the forms of pleading and the mode of proof and trial are so different from courts of law. The parties to a suit in equity arc authorized to purge the conscience of each on oath; but the writ of scire facias, in its common law form, could not secure this right. A decree, in case of the death of the respondent, is revived against his heirs by a bill of revivor, or petition in the nature of a bill of revivor. A court of chancery has its- own appropriate machinery to accomplish its ends and to carry into effect its decrees. The cases referred to in our own reports, to show that scire facias is the proper remedy to revive a decree against heirs, are all cases of judgments at law.

The objection to this writ, upon the ground that it is not the appropriate remedy, is well taken. •

Demurrer sustained, and writ dismissed with costs.