Takings in the Early 20th Century

This week we return to our series on the development of the law of physical takings. After our discussions on the 14th Amendment and Chicago, Burlington & Quincy Railroad Corp. v. City of Chicago, we are fairly caught up to the beginning of the modern era of Supreme Court doctrine on physical takings.

Recall that after CB&Q RR v. Chicago, the Takings Clause of the Fifth Amendment was held to bind state and local governments (it was “incorporated” against the states via the 14th Amendment). In that case, the Court decided that “due process” required substantively just outcomes, not just observance of legalistic procedures. Since then, the main stream of the Court’s physical taking doctrine has concerned another question.

At this point, another reminder is due: The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” That is, it states that no property can be taken by the government, except for public use (that is, it cannot take property for private use). Further, it states that when government must take property for public use, it must compensate the owner for the taken property. Thus, after CB&Q RR v. Chicago these precepts bind the states (and by extension, local governments) as well as the federal government.

The text of the Fifth Amendment is fairly straightforward (unless you ask a lawyer, of course). As a result, there has been relatively little litigation on the Fifth Amendment, compared to the sexier amendments – especially the First (people seem to get much more excited about free speech and religion than government confiscation of property – at least until someone threatens their property!). The mainstream of the Supreme Court’s Takings doctrine since 1897 has concerned the meaning of “public use” – yes, lawyers consider that contestable. That is, the Court has sought to define what sorts of things count as “public uses” for which property can be taken from individuals.

For much of American history, public use was understood to mean actual use by the public. Land could be taken for things such as public roads, bridges, schools – that is, things that the public actually uses. Eminent domain was later used to gain lands and easements for railroads, which were private but heavily regulated by government due to their being “affected with public interest.” Over time, governments pushed at the limits of what “public use” might mean. This development continues today, but we’ll start with the beginning of modern public use doctrine.

Rindge Company et al. v. County of Los Angeles

In this case the County of Los Angeles used eminent domain to acquire property from a number of individuals and corporations in order to build a highway. Several of these property owners sued the county, alleging that the taking unlawfully deprived them of their property in violation of the 14th Amendment (recall that because of the way incorporation works, alleged rights violations by state or local governments fall under the 14th Amendment).

Justice Sanford, writing for the Court, argued that “The nature of a use, whether public or private, is ultimately a judicial question. However, the determination of this question is influenced by local conditions.” Still the Supreme Court held that “a taking of property for a highway is a taking for public use has been universally recognized, from time immemorial” so consideration of local conditions in this case is not terribly pressing. The owners in fact concede that taking for a genuine highway is a public use. Their argument is that the highway in question is not an actual highway, but rather a segment that does not constitute a road of necessity or convenience for the general public (that is, they are arguing that the road doesn’t really connect two places in the conventional sense). Importantly though, the Court held that “It is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in any improvement in order to constitute a public use.” That is, the Court held that entire public does not have to use the road (or any other public work) to satisfy the public use requirement, and implies that the work has only to be open to the public for their use. And further, since roads are frequently built in pieces, the seemingly incomplete nature of the road to be built does not render the taking invalid.

Very importantly, the Court also discusses the necessity of any given taking. Sutherland writes “The necessity for appropriating private property for public use is not a judicial question. This power resides in the legislature, and may either be exercised by the legislature or delegated by it to public officers.” That is, the Court will not second guess a legislatures’ decision to use eminent domain as opposed to some other theoretical method of obtaining property. [Put differently, the Court will not hear cases in which individuals allege that it is inappropriate to use eminent domain because some other less injurious method was available to the government.]

In summary, the Supreme Court here held that the determination of Public Use is a judicial question, but that Public Necessity is a legislative question. Thus, future challenges to uses of eminent domain will center on the uses to which legislatures want to put expropriated property. The case of Rindge Co. v. Los Angeles is important because it establishes in very clear language that the Public Use does not require that the entire public actually use that property to satisfy the Constitution. This holding will be very important in the future development of the Court’s Takings Doctrine.

Chicago, Burlington & Quincy RR v. Chicago, part 2

I recently wrote about a foundational case in takings doctrine, Chicago, Burlington & Quincy RR v. Chicago. Today, I’m going to talk briefly about Justice Brewer’s dissenting opinion in that case, and a little more about the case’s enduring importance in American constitutionalism.

Recall that the Supreme Court ruled 7-1 that the Due Process clause of the 14th Amendment requires a substantively just outcome, not mere attention to defined procedures. With regards to the specifics of the case, the Court held that the $1 award to the Chicago, Burlington and Quincy Railroad for its taken rights-of-way was in fact adequate to satisfy this requirement for substantive justice.

Justice Brewer dissented from the Court’s opinion CBQ RR v. Chicago. He argued that the due process clause does indeed require just compensation, but disagreed with the majority’s finding that the Railroad had in fact received such just compensation. Brewer wrote that “It is disappointing, after reading so strong a declaration of the protecting reach of the fourteenth amendment, and the power and duty of this court in enforcing it as against action by a state by any of its officers and agencies, to find sustained a judgment, depriving a party – even though a railroad corporation – of valuable property without any, or at least only nominal, compensation.”

So in the end, the Chicago, Burlington & Quincy Railroad won on principle, but lost in practice; the Court agreed that just compensation was due when property was taken, but also held that a nominal award could, at least, be considered “just.”

This case is tremendously important in American constitutional development because it is the first time that Supreme Court held a provision of the Bill of Rights to be enforceable against state and local governments. We call this “incorporation doctrine” – when a provision of the Bill of Rights is held by the Supreme Court to apply to the states it is said to be “incorporated.” Thus, Chicago, Burlington & Quincy RR v. Chicago marks the beginning of this major transformation in American constitutionalism.

Incorporation has been a long and uneven process, and is still going on today. The first provision incorporated was the subject of today’s post, in 1897. The next provision of the Bill of Rights to be incorporated was the freedom of speech (guaranteed by the First Amendmen), but it was not incorporated until 1925 (Gitlow v. New York). The most recent component of the Bill of Rights to be incorporated against the states was the right to bear arms (guaranteed by the Second Amendment), which was incorporated in McDonald v. City of Chicago in 2010. Moreover, several provisions have yet to be incorporated: freedom from quartering soldiers in peacetime (Amend. III), right to indictment by a grand jury (Amend. V), the right to a jury selected from the state and district where a crime was committed (Amend VI), right to a jury trial in civil cases (Amend VII), and protection against excessive fines (Amend VIII) are not presently incorporated.

Still, it is fair to say that most of major components of the Bill of Rights have been incorporated today. That is why individuals and groups can sue state or local governments in federal courts for many types of alleged rights violations – including violations of speech rights, religious liberty, protections for the accused, and property rights.

Chicago, Burlington  & Quincy Railroad Co. v. City of Chicago is an important case in the history of takings law, then, because it sets the stage for future battles over property rights in the federal courts. Many well-known modern cases, such as Hawaii v. Midkiff and Kelo v. New London would not have been heard in federal courts if the Takings Clause of the 5th Amendment had not been incorporated. It is because of CB&Q Railroad that we are able to talk about these more contemporary cases, which will be the subject of upcoming posts.

Suggested reading:

Ackerman, Bruce. 1998. We the People, Volume II: Transformations. Belknap Press of Harvard University Press.

Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.

Chicago, Burlington & Quincy Railroad Corp. v. City of Chicago 166 U.S. 226 (1897)

Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.