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Amendment V



Document 25

Livingston v. Mayor of New York

8 Wend. 85 N.Y. 1831

By the Chancellor [Reuben H. Walworth]. . . . But it is said that the law which authorizes the taking of private property in the city of New York for a public street is unconstitutional, on the ground that the legislature can not authorize private property to be taken for public use without the intervention of a jury. If the plaintiff is right on this point, then no damages could be awarded to him, and his right to the street remains as it was before the commencement of these proceedings; and all the streets which have been laid out in the city of New York for the last twenty years are wholly unauthorized and invalid, except in those cases where the owners of the land have voluntarily given up their property for the use of streets. I apprehend, however, this court will not arrive at such a conclusion. The assessment of damages by commissioners, instead of a jury, is supposed to be in violation of those amendments of the constitution of the United States which provide that no person shall be deprived of his property without due process of law; that private property shall not be taken for public use without just compensation; and that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. I have formerly had occasion to examine the question how far these amendments of the constitution of the United States were restrictive upon the power of the individual states; and the conclusion at which I arrived was, that all the amendments adopted by congress at its first session, and afterwards sanctioned by the requisite number of states, were intended to be restrictive upon the government of the United States and upon its officers exclusively (see Jackson v. Wood, 2 Cowen, 818, n. b). The preamble which was prefixed to these amendments, as adopted by congress, is important to show in what light that body considered them. This preamble has not usually been published in connection with these amendments; it will be found in the journal of the federal convention, as published in conformity to a resolution of congress, and is as follows: "The conventions of a number of the states having at the time of their adopting the constitution expressed a desire, in order to prevent misconstruction and abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the grounds of public confidence in the government will best ensure the beneficent ends of its institution: resolved," &c., that the following articles be proposed, &c. When we take into consideration the fact that this preamble was added by the senate, after they had amended the resolution of the house by expunging therefrom the only article proposed as restrictive upon the powers of the states; and when it is known that these amendments were introduced into congress by Mr. Madison, in consequence of the objections which had been made in the state conventions to the unlimited powers given by the constitution to the general government, I think it is very evident that the amendments were intended to apply to the general government only, for the purpose of restricting and limiting its powers, but without any intention of limiting or controlling state legislation. But as the same provisions substantially are now contained in the constitution of this state, it becomes necessary to inquire whether there is any thing in the manner in which the property of individuals is taken for public streets in the city of New York, or in the mode of ascertaining compensation therefor, which conflicts with the provisions of that instrument.

It is not denied that the legislature have the power to authorize the taking of private property for the purpose of public streets, upon making just compensation to the owners; but it is insisted by the plaintiff's counsel that the increased value of adjacent property belonging to the same individual can not be set off against the loss or damage sustained by him in taking his property for a street, and be considered as a just compensation for the property so taken: and that in all cases the damage must be ascertained by the verdict of a jury. I have recently had occasion to examine these questions also, in the case of Beekman v. The Saratoga and Schenectady Rail Road Company (which is not yet reported), and came to the conclusion that both of these objections were untenable. The owner of the property taken is entitled to a full compensation for the damage he sustains thereby, but if the taking of his property for the public improvement is a benefit rather than an injury to him, he certainly has no equitable claim to damages. Besides, it is a well settled principle, that where any particular county, district or neighborhood is exclusively benefited by a public improvement, the inhabitants of that district may be taxed for the whole expenses of the improvement, and in proportion to the supposed benefit received by each. In this case, if the whole value of the property taken for a street in the city of New York is allowed to the individual owner, the proprietors of the adjacent lots must be assessed for the purpose of paying that amount, and if the individual whose property is taken is the owner of a lot adjacent, that lot must be assessed rateably with the others. It therefore makes no difference whether he is allowed the whole value of the property taken in the first instance, and is assessed for his portion of the damage, or whether the one sum is offset against the other in the first place, and the balance only is allowed.

The mode of ascertaining damages by commissioners, had been extensively practiced in this state previous to the adoption of the new constitution. As this was well known to the members of the convention who framed that instrument, and to the people who adopted it, when they directed that private property should not be taken for public use without just compensation, but said nothing as to the manner in which such compensation should be ascertained, it is to be presumed they intended to leave that subject to the discretion of the legislature, to be regulated in such manner as might be prescribed by law.

The provision of the constitution relative to the trial by jury relates to the trial of issues of fact, in civil and criminal proceedings in courts of justice, and has no relation to cases of this kind. Although damages have frequently been ascertained by the oaths of twelve freeholders, both before and since the adoption of the constitution, yet these are not jury trials within the spirit or meaning of that provision.

I am therefore of opinion that the plaintiff in error has received full compensation for the land taken for the street, by the enhanced value which he must have obtained on the sale of the lots adjacent to the same, and that the amount of nominal damages, to which he was probably entitled, has been legally ascertained and allowed to him in the report of the commissioners of estimate and assessment. The judgment of the supreme court should therefore be affirmed.

Sherman, Senator. . . . As to the constitutional question, I admit that taking a man's property without his consent, is one of the highest powers that is exercised under the constitution, and ought to be used with great caution. Yet such are the terms of that instrument or compact, made by the sovereign people of this state, of whom Mr. Livingston is one, that private property may be taken for public purposes, on making a just compensation therefor. This compact has been reconfirmed by the people since the passage of the act in question. The next inquiry is, has this property been taken by due process of law, and has a just compensation been made therefor? On this last point I have given my views. On the other, I am of opinion that if the mode of taking rests with the legislature, and they have prescribed one which operates alike on all whom it affects, and is not individual or partial, that it is valid, and embraced within the constitutional limits.

Without entering further into this inquiry, I must say that the arguments advanced are not sufficient to convince my mind that the law under which the commissioners acted is invalid. The law has been so long recognized by the state courts, and by various acts of the legislature, and the principle introduced into so many other laws, that I should require other and stronger reasons than those urged in argument, to convince my mind of its unconstitutionality; the effect of which would probably be to throw open to litigation all acts done under the same, for the twenty years it has been in operation. I am of opinion that justice has been done in this case, and am therefore in favor of affirming the judgment.

The court being unanimously of the opinion that the judgment of the supreme court ought to be affirmed, it was affirmed accordingly.


The Founders' Constitution
Volume 5, Amendment V, Document 25
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs25.html
The University of Chicago Press

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