of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the Constitution, and must be disregarded - - treated as if never enacted - by all courts recognizing the Constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. . . . However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts."

This doctrine can have no application to claims against municipal corporations, founded upon torts of the character mentioned. Whether or not the State, in so limiting the power of the city to raise funds by taxation that it cannot satisfy all claims against it recognized by law, though not resting upon contract, does a wrong to the relators, which a wise policy and a just sense of public honor should not sanction, is not a question upon which this court can pass. If the action of the State does not fall within any prohibition of the Federal Constitution, it lies beyond the reach of our authority.

The question of the effect of legislation upon the means of enforc ing an ordinary judgment of damages for a tort, rendered against the person committing it, in favor of the person injured, may involve other considerations, and is not presented by the case before us. Judgment affirmed.

SECTION III. EMINENT DOMAIN.

MUGLER v. KANSAS.

123 United States, 623. 1887.
[See supra, p. 938.]

PUMPELLY v. GREEN BAY COMPANY.

13 Wallace, 166. 1871.

[ACTION was brought in the Circuit Court of the United States to recover damages against defendant company for overflowing

1 MR. JUSTICE BRADLEY delivered a dissenting opinion.

plaintiff's land by means of a dam erected across Fox River in Wisconsin. Defendant attempted to justify under authority from the legislature of Wisconsin authorizing the construction of such a dam; and this defence being held good on demurrer, plaintiff brought the case to this court by writ of error.]

MR. JUSTICE MILLER delivered the opinion of the court.

Counsel for the defendant, with becoming candor, argue that the damages of which the plaintiff complains are such as the State had a right to inflict in improving the navigation of the Fox River, without making any compensation for them.

This requires a construction of the constitution of Wisconsin; for though the Constitution of the United States provides that private property shall not be taken for public use without just compensation, it is well settled that this is a limitation on the power of the Federal government, and not on the States. The constitution of Wisconsin, however, has a provision almost identical in language, viz.: that "the property of no person shall be taken for public use without just compensation therefor." Sec. 13, Article 1. Indeed this limitation on the exercise of the right of eminent domain is so essentially a part of American constitutional law that it is believed that no State is now without it, and the only question that we are to consider is whether the injury to plaintiff's property, as set forth in his declaration, is within its protection.

The declaration states that, by reason of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the overflow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declaration are such as show that it worked an almost complete destruction of the value of the land.

The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation.

It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent,

can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.

We are not unaware of the numerous cases in the State courts in which the doctrine has been successfully invoked that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one, in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other State constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle. Beyond this we do not go, and this case calls us to go no further.

We are, therefore, of opinion that the second plea set up no valid defence, and that the demurrer to it should have been sustained.

CENTRAL BRIDGE CORPORATION v. CITY OF LOWELL.

4 Gray, 474. 1855.

[THE plaintiff corporation sought to enjoin the defendant city from proceeding under the authority of a statute of Massachusetts to enter upon, take, and lay out as a public highway a bridge already constructed by the plaintiff under a charter granted by the State authorizing the corporation to construct such bridge and receive toll and income therefrom.]

BIGELOW, J., delivered the opinion of the court.

The whole controversy in the present case turns upon the validity of the acts of the defendants, by which they proceeded in July, 1855, to take, lay out, and appropriate the bridge constructed and owned by the plaintiffs, as and for a town way. This was done in pursuance of a power expressly granted to the defendants by St. 1853, c. 356, § 3; and it is clear that if this act was originally valid and still continues in force, and the defendants have done nothing by which they have surrendered or lost the power and authority conferred upon them by it, their doings have been legal, and there is no ground for maintaining this suit.

1. The plaintiffs rely upon various objections to defeat and annul these proceedings, the first and most important of which is, that the section of the statute above cited, which gives to the defendants the right to enter upon and take the bridge of the plaintiffs, and lay it out as a town way, is unconstitutional and void. This posi tion is based on the familiar principle, that the act incorporating the plaintiffs is a contract with the government, which it cannot legitimately impair or destroy. Starting with this, the plaintiffs then contend that the effect and necessary consequence of the power given to the defendants by the act in question is to infringe. on the obligation of this contract, because it takes away their franchise and deprives them of the rights and privileges conferred upon them by their original act of incorporation.

It is true that the plaintiffs, by accepting and acting under the act by which they were created, and by advancing their money and building the bridge upon the faith of it, are entitled to insist that the legislature shall not invalidate or disregard the power granted to them or the right created and vested by their charter. But it is also true that their powers and privileges, including everything which constitutes their franchise, are held and enjoyed in the same manner and by the like tenure as all other property and every species of valuable right and interest are possessed and owned under our Constitution and laws. They can claim no special exemption or privilege for their franchise. It is subject to the same sovereign right of eminent domain, by which the property and rights of all subjects and individuals are liable to be taken and appropriated to a public use, in the manner provided in the Constitution, whenever the legislature shall deem that the public exigencies require it. This principle is too well settled by the highest authority to be now open to question. West River Bridge v. Dix, 6 How. 507; Richmond, Fredericksburg, & Potomac Railroad v. Louisa Railroad, 13 How. 83; Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 35; Springfield v. Connecticut River Railroad, 4 Cush. 63. In the case first cited, it was fully recognized and applied to facts very similar to those in the case at

bar. It was there held, that a franchise to build and maintain a bridge might be taken and appropriated to a public use, and that the right of a corporation, under a charter from a State legislature, to erect and keep up a bridge and take tolls thereon, might be taken for a highway in the due exercise of the right of eminent domain.

Nor is the principle thus recognized any violation of justice or sound policy, nor does it in any degree tend to impair the obligation or infringe upon the sanctity of contracts. It rests on the basis that public convenience and necessity are of paramount importance and obligation, to which, when duly ascertained and declared by the sovereign authority, all minor considerations and private rights and interests must be held, in a measure and to a certain extent, subordinate. By the grant of a franchise to individuals for one public purpose, the legislature do not forever debar themselves from giving to others new and paramount rights and privileges when required by public exigencies, although it may be necessary in the exercise of such rights and privileges to take and appropriate a franchise previously granted. If such were the rule, great public improvements, rendered necessary by the increasing wants of society in the development of civilization and the progress of the arts, might be prevented by legislative grants which were wise and expedient in their time, but which the public necessities have outgrown and rendered obsolete. The only true rule of policy, as well as of law, is that a grant for one public purpose must yield to another more urgent and important, and this can be effected without any infringement on the constitutional rights of the subject. If in such cases suitable and adequate provision is made by the legislature for the compensation of those whose property or franchise is injured or taken away, there is no violation of public faith or private right. The obligation of the contract created by the original charter is thereby recognized. The property of individuals in it, and the rights acquired by them under it, like other property appropriated for public uses, form proper subjects for indemnity in damages under the provision in the tenth article of our Declaration of Rights.

These well-established principles leave no room for doubt as to the validity and binding force of the provision contained in St. 1853, c. 356, § 3, under which the acts set forth in the bill have been done by the defendants. The intent of the legislature to empower them to enter upon and take the bridge of the plaintiffs for a public use is unequivocally expressed; and adequate provision is made, by which the plaintiffs can seek and obtain compensation for all injuries and damage which they may sustain by reason of such appropriation.

[Other questions are considered, and the bill of the plaintiff is dismissed.]