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CRS Annotated Constitution

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[p.385]

Doctrine of Inalienability as Applied to Eminent Domain, Taxing, and Police Powers.—The second of the doctrines mentioned above, whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the State has been fortified, is the doctrine that certain of the State’s powers are inalienable, and that any attempt by a State to alienate them, upon any consideration whatsoever, is ipso facto void and hence incapable to producing a “contract” within the meaning of Article I, Sec. 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New York, having conveyed certain lands for the purposes of a church and cemetery together with a covenant for quiet enjoyment, later passed a by–law forbidding their use as a cemetery. In denying an action against the city for breach of covenant, the state court said the defendants “had no power as a party, [to the covenant] to make a contract which should control or embarrass their legislative powers and duties.”1938

The Supreme Court first applied similar doctrine in 1848 in a case involving a grant of exclusive right to construct a bridge at a specified locality. Sustaining the right of the State of Vermont to make a new grant to a competing company, the Court held that the obligation of the earlier exclusive grant was sufficiently recognized in making just compensation for it; and that corporate franchises, like all other forms of property, are subject to the overruling power of eminent domain.1939 This reasoning was reinforced by an appeal to the theory of state sovereignty, which was held to involve the corollary of the inalienability of all the principal powers of a State.

The subordination of all charter rights and privileges to the power of eminent domain has been maintained by the Court ever since; not even an explicit agreement by the State to forego the exercise of the power will avail against it.1940 Conversely, the State may revoke an improvident grant of public property without recourse to the power of eminent domain, such a grant being inherently beyond the power of the State to make. So when the legislature of Illinois in 1869 devised to the Illinois Central Railroad Company, its successors and assigns, the State’s right and title to nearly a thousand acres of submerged land under Lake Michigan[p.386]along the harbor front of Chicago, and four years later sought to repeal the grant, the Court, a four–to–three decision, sustained an action by the State to recover the lands in question. Said Justice Field, speaking for the majority: “Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. . . . Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the State can be resumed at any time.”1941

On the other hand, repeated endeavors to subject tax exemptions to the doctrine of inalienability, though at times supported by powerful minorities on the Bench, have failed.1942 As recently as January, 1952, the Court ruled that the Georgia Railway Company was entitled to seek an injunction in the federal courts against an attempt by Georgia’s Revenue Commission to compel it to pay ad valorem taxes contrary to the terms of its special charter issued in 1833. In answer to the argument that this was a suit contrary to the Eleventh Amendment, the Court declared that the immunity from federal jurisdiction created by the Amendment “does not extend to individuals who act as officers without constitutional authority.”1943

The leading case involving the police power is Stone v. Mississippi.1944 In 1867, the legislature of Mississippi chartered a company to which it expressly granted the power to conduct a lottery. Two years later, the State adopted a new Constitution which contained a provision forbidding lotteries, and a year later the legislature passed an act to put this provision into effect. In upholding this act and the constitutional provision on which it was based, the Court said: “The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights,” and these agencies can neither give away nor sell their discretion. All that[p.387]one can get by a charter permitting the business of conducting a lottery “is suspension of certain governmental rights in his favor, subject to withdrawal at will.”1945

The Court shortly afterward applied the same reasoning in a case in which was challenged the right of Louisiana to invade the exclusive privilege of a corporation engaged in the slaughter of cattle in New Orleans by granting another company the right to engage in the same business. Although the State did not offer to compensate the older company for the lost monopoly, its action was sustained on the ground that it had been taken in the interest of the public health.1946 When, however, the City of New Orleans, in reliance on this precedent, sought to repeal an exclusive franchise which it had granted a company for fifty years to supply gas to its inhabitants, the Court interposed its veto, explaining that in this instance neither the public health, the public morals, nor the public safety was involved.1947

Later decisions, nonetheless, apply the principle of inalienability broadly. To quote from one: “It is settled that neither the ‘contract’ clause nor the ‘due process’ clause has the effect of overriding the power to the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and all contract and property rights are held subject to its fair exercise.”1948

It would scarcely suffice today for a company to rely upon its charter privileges or upon special concessions from a State in resisting the application to it of measures alleged to have been enacted under the police power thereof; if this claim is sustained, the obligation of the contract clause will not avail, and if it is not, the due process of law clause of the Fourteenth Amendment will furnish a sufficient reliance. That is to say, the discrepancy that once existed between the Court’s theory of an overriding police power in these two adjoining fields of constitutional law is today apparently at an end. Indeed, there is usually no sound reason why rights based on public grant should be regarded as more sacrosanct than[p.388]rights that involve the same subject matter but are of different provenience.

Private Contracts.—The term “private contract” is, naturally, not all–inclusive. A judgment, though granted in favor of a creditor, is not a contract in the sense of the Constitution,1949 nor is marriage.1950 And whether a particular agreement is a valid contract is a question for the courts, and finally for the Supreme Court, when the protection of the contract clause is invoked.1951

The question of the nature and source of the obligation of a contract, which went by default in Fletcher v. Peck and the Dartmouth College Case, with such vastly important consequences, had eventually to be met and answered by the Court in connection with private contracts. The first case involving such a contract to reach the Supreme Court was Sturges v. Crowninshield,1952 in which a debtor sought escape behind a state insolvency act of later date than his note. The act was held inoperative, but whether this was because of its retroactivity in this particular case or for the broader reason that it assumed to excuse debtors from their promises was not at the time made clear. As noted earlier, Chief Justice Marshall’s definition on this occasion of the obligation of a contract as the law that binds the parties to perform their undertakings was not free from ambiguity, owing to the uncertain connotation of the term law.

These obscurities were finally cleared up for most cases in Ogden v. Saunders,1953 in which the temporal relation of the statute and the contract involved was exactly reversed—the former antedating the latter. Marshall contended, but unsuccessfully, that the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation that always attaches under natural law to the acts of free agents. “When,” he wrote, “we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the framers of our[p.389]Constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature and nations have guided public opinion on the subjects of obligation and contracts,” and that they took their views on these subjects from those sources. He also posed the question of what would happen to the obligation of contracts clause if States might pass acts declaring that all contracts made subsequently thereto should be subject to legislative control.1954


Footnotes

1938 Brick Presbyterian Church v. New York, 5 Cow. (N.Y.) 538, 540 (1826).
1939 West River Bridge Company v. Dix, 6 How. (47 U.S.) 507 (1848). See also Backus v. Lebanon, 11N.H.19 (1840); White River Turnpike Co. v. Vermont Cent. R. Co., 21Vt.590 (1849); and Bonaparte v. Camden & A.R. Co., 3Fed. Cas.821 (No.1617) (C.C.D.N.J. 1830).
1940 Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917).
1941 Illinois Central R. Co. v. Illinois, 146 U.S. 387, 453, 455 (1892).
1942 See especially Home of the Friendless v. Rouse, 8 Wall. (75 U.S.) 430 (1869), and The Washington University v. Rouse, 8 Wall. (75 U.S.) 439 (1869).
1943 Georgia R. Co. v. Redwine, 342 U.S. 299, 305–306 (1952). The Court distinguished In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was barred “as one in substance directed at the State merely to obtain specific performance of a contract with the State.” 342 U.S., 305.
1944 101 U.S. 814 (1880).
1945 Id., 820–821.
1946 Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746 (1884).
1947 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885).
1948 Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558 (1914). See also Chicago & Alton Railroad v. Tranbarger, 238 U.S. 67 (1915); Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917); where the police power and eminent domain are treated on the same basis in respect of inalienability; Wabash Railroad Company v. Defiance, 167 U.S. 88, 97 (1897); Home Tel. & Tel. v. City of Los Angeles, 211 U.S. 265 (1908).
1949 Morley v. Lake Shore Railway Co., 146 U.S. 162 (1892); New Orleans v. N.O. Water Works Co., 142 U.S. 79 (1891); Missouri & Ark L. & M. Co. v. Sebastion County, 249 U.S. 170 (1919). But cf. Livingston’s Lessee v. Moore, 7 Pet. (32 U.S.) 469, 549 (1833); and Garrison v. New York, 21 Wall. (88 U.S.) 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt.
1950 Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 629 (1819). Cf. Andrews v. Andrews, 188 U.S. 14 (1903). The question whether a wife’s rights in the community property under the laws of California were of a contractual nature was raised but not determined in Moffit v. Kelly, 218 U.S. 400 (1910).
1951 New Orleans v. New Orleans Water Works Co., 142 U.S. 79 (1891); Zane v. Hamilton County, 189 U.S. 370, 381 (1903).
1952 4 Wheat. (17 U.S.) 122 (1819).
1953 12 Wheat. (25 U.S.) 213 (1827).
1954 Id., 353–354.
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