Mercer v. M'Williams

WRIGHT, J. The question most pressed upon the court, is the supposed constitutional inhibition to taking private property for public use, without compensation in money be first made. Con. Art. 8, sec. 4. This question has been repeatedly before this court, and the courts of other states, and it has been uniformly held, that the state, by virtue of its transcendental or sovereign power, its eminent domain, may take the .private property of one citizen for the good of the whole. The constitution limits the exercise of- this power to cases where a compensation in money is made. In practice, this clause has been deemed complied with, where the [134] legislature has provided by law for the assessment and payment of damages, if they are claimed; 4 O. 288; 5 O. 118; 2 Kent, 274. Judge Kent has indeed carried the doctrine much farther; but we have now no occasion for going beyond former decisions. Unless the provision for the assessment and payment of damages was sufficient, the public could never get the use of private property for great public works, without the owner chose first to move to get his damages paid. If left to his own will, the provision would become useless, because if he chose to sell he could do so, and there would be no need of sovereign interference to appropriate the property. Public works should not be so subject to the will of an individual. The party in this case has sought his damages, and the refusal to pay does not affect the question. The remedy of the party is for the damages — the road is complete without payment. The supervisor is justified. So is Bethel, who assisted, whether in his own district or not. The supervisor may employ hands out of his district. Judgment for the defendant.