[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Pete Buttplug's Butt Plugger Trying to Turn Kids into Faggots

Mark Levin: I'm sick and tired of these attacks

Questioning the Big Bang

James Webb Data Contradicts the Big Bang

Pssst! Don't tell the creationists, but scientists don't have a clue how life began

A fine romance: how humans and chimps just couldn't let go

Early humans had sex with chimps

O’Keefe dons bulletproof vest to extract undercover journalist from NGO camp.

Biblical Contradictions (Alleged)

Catholic Church Praising Lucifer

Raising the Knife

One Of The HARDEST Videos I Had To Make..

Houthi rebels' attack severely damages a Belize-flagged ship in key strait leading to the Red Sea (British Ship)

Chinese Illegal Alien. I'm here for the moneuy

Red Tides Plague Gulf Beaches

Tucker Carlson calls out Nikki Haley, Ben Shapiro, and every other person calling for war:

{Are there 7 Deadly Sins?} I’ve heard people refer to the “7 Deadly Sins,” but I haven’t been able to find that sort of list in Scripture.

Abomination of Desolation | THEORY, BIBLE STUDY

Bible Help

Libertysflame Database Updated

Crush EVERYONE with the Alien Gambit!

Vladimir Putin tells Tucker Carlson US should stop arming Ukraine to end war

Putin hints Moscow and Washington in back-channel talks in revealing Tucker Carlson interview

Trump accuses Fulton County DA Fani Willis of lying in court response to Roman's motion

Mandatory anti-white racism at Disney.

Iceland Volcano Erupts For Third Time In 2 Months, State Of Emergency Declared

Tucker Carlson Interview with Vladamir Putin

How will Ar Mageddon / WW III End?

What on EARTH is going on in Acts 16:11? New Discovery!

2023 Hottest in over 120 Million Years

2024 and beyond in prophecy

Questions

This Speech Just Broke the Internet

This AMAZING Math Formula Will Teach You About God!

The GOSPEL of the ALIENS | Fallen Angels | Giants | Anunnaki

The IMAGE of the BEAST Revealed (REV 13) - WARNING: Not for Everyone

WEF Calls for AI to Replace Voters: ‘Why Do We Need Elections?’

The OCCULT Burger king EXPOSED

PANERA BREAD Antichrist message EXPOSED

The OCCULT Cheesecake Factory EXPOSED

Satanist And Witches Encounter The Cross

History and Beliefs of the Waldensians

Rome’s Persecution of the Bible

Evolutionists, You’ve Been Caught Lying About Fossils

Raw Streets of NYC Migrant Crisis that they don't show on Tv

Meet DarkBERT - AI Model Trained On DARK WEB

[NEW!] Jaw-dropping 666 Discovery Utterly Proves the King James Bible is God's Preserved Word

ALERT!!! THE MOST IMPORTANT INFORMATION WILL SOON BE POSTED HERE

Pinguinite You have mail..

What did Bill Clinton and Gavin Newsom talk about in Mexico? I have an idea


Status: Not Logged In; Sign In

politics and politicians
See other politics and politicians Articles

Title: EXCLUSIVE: Donald Trump Pushes Back Against Critics of His Eminent Domain Position
Source: Breitbart
URL Source: http://www.breitbart.com/big-govern ... itics-eminent-domain-position/
Published: Oct 9, 2015
Author: Michael Patrck Leahy
Post Date: 2015-10-09 08:30:36 by cranky
Keywords: None
Views: 294
Comments: 5

Many conservative pundits and Tea Party activists are criticizing GOP frontrunner Donald Trump’s ongoing support of eminent domain, but the real estate billionaire is not backing down.

“It would have been easy to say I’m totally against eminent domain but that is not a fair thing to say because without it, states couldn’t function,” GOP Presidential frontrunner Donald Trump tells Breitbart News in an exclusive interview.

But Trump offers a somewhat more nuanced understanding of eminent domain to Breitbart News, one that seems to acknowledge that using it for exclusively private gain is the wrong thing to do.

“If you were going [to use eminent domain] to rip down a house and build another house, no way,” Trump says.

On that point, Trump and Judson Phillips, founder of Tea Party Nation, seem to be in agreement.

“Having the government take one person’s property for another’s gain is not a conservative principle,” Phillips tells Breitbart News.

“But if you’re going to build a factory that’s going to have 5,000 jobs, that’s entirely different,” Trump says.

And here is where Trump and his critics differ.

In 1946, the Supreme Court ruled in United States v. Carmack that:

The Fifth Amendment to the Constitution says “nor shall private property be taken for public use, without just compensation.” This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.

Trump and his critics have different views on what constitutes “public use.”

Unfortunately for critics of a more expanded view of eminent domain, the Supreme Court’s very unpopular 2005 decision in Kelo v. New London supports Trump’s more expanded view.

Pundits are almost unanimous in their criticisms of Trump for his eminent domain position, but Tea Party activists are more varied in their assessments.

It remains to be seen, however, how significant the eminent domain issue will be and whether it will derail the Trump for President juggernaut.

The Club for Growth, for instance, one of Trump’s staunchest critics, launched a $1 million anti-Trump television ad buy in Iowa on September 15 that hit him for his support for eminent domain. While a poll paid for by the Club now claims Trump trails Dr. Ben Carson in Iowa, other recent polls show that Trump remains the GOP frontrunner by a nationally as well as in the key states of Pennsylvania, Ohio, and Florida. In Iowa, the recent NBC News/WSJ/Marist poll shows Trump still in the lead, ahead of the second place Carson by 5 points.

Early returns suggest that eminent domain may not be a big enough issue to move the needle either up or down for Trump.

Trump’s comments Tuesday night on Fox News Channel’s Special Report with Bret Baier doubling down on his support for eminent domain and the unpopular Kelo v. New London Supreme Court decision have not been well received by many in the conservative grassroots community.

Trump appears to be correct–from a limited government perspective–on 4 big issues–illegal immigration, defending gun rights, opposing ObamaCare, and opposing ObamaTrade.

Most who subscribe to the limited government world view believe Trump is wrong on eminent domain, at least as it relates to taking private property for private development with tangential public benefit, as opposed to direct public benefit.

For his part, Trump is confident that he can persuade voters that eminent domain, properly used, can be a significant benefit.

“I was just talking with some very conservative people today, and they just don’t understand eminent domain,” Trump tells Breitbart News.

“These people, they’re not just being thrown out. Everyone said ‘you’re taking their property,’ but they’re getting paid at least fair market value,” Trump says.

“What people don’t know is, usually you go through a condemnation, and [the property owner] will get 2, 3, 4 times the value of their house. People don’t know that,” Trump tells Breitbart News.

Trump acknowledged that the condemnation process is difficult.

“It’s always unpleasant,” he says. “They always say you pay them fair market value, but politically, they will pay you much more.”

Trump is enthusiastic in describing the benefits of eminent domain in helping communities economically.

“You can’t build a road without eminent domain,” he says. “In order to survive as a country, how you can not have roads?” Trump asks rhetorically.

“There are things like this… you have a community that’s doing poorly…. if people can’t make it there, they’re going to move to a different state or different city,” Trump tells Breitbart News.

Despite his energetic defense of eminent domain, critics remain unconvinced.

“Donald Trump thinks the issue of eminent domains has not been properly ‘explained to most conservatives.’ Perhaps Trump might explain why the Constitution should be read to permit the government to kick elderly widows out their homes for the direct benefit of people like him,” says Reason Magazine’s Damon Root in response to Trump’s comments to Bret Baier.

While Fox News, the Club for Growth, National Review, and conservative pundits are hammering Trump on the issue, Tea Party activists who spoke with Breitbart News say his eminent domain position won’t sway them one way or the other.

And some Tea Party activists, especially those with small business experience, seemed to express some sympathy for Trump’s view.

“As an independent oilman since 1984, I fully understand eminent domain and its true process,” Eric Olsen, founder of the Montana Tea Party, tells Breitbart News.

“Trump spent much time explaining it to Bret Baier. Bret seemed confused on the issue which does not surprise me,” Olsen adds.

“I support the majority of Trump’s comments on eminent domain. Singling out a case like Kelo vs New London does make a point that eminent domain is abused at times but we have to remember that majority of business does use eminent domain for direct public benefit. But keep in mind that the taxes received through the Kelo type case do benefit public directly through public spending of those tax dollars. Of course, as Teaparty conservatives we believe that governments do not spend money wisely,” Olsen continues.

“America needs pipelines, roads, sewers, powerlines, etc to move on with a growing infrastructure,” Olsen concludes.

“Trump’s views are not out of step with the history of the application of eminent domain,” Tennessee Tea Party activist Mark Skoda, a Trump supporter, tells Breitbart News.

“In my opinion, he is simply taking a position that can be seen as good business, so long as it is applied fairly and with just compensation. At least he is clear about his views on this matter and one can take a decision about his campaign in this context,” Skoda adds.

Supporters of Sen. Ted Cruz (R-TX) see Trump’s position on eminent domain as yet another reason to back their man.

“I support another candidate, Ted Cruz,” Toby Marie Walker, founder of the Waco, Texas Tea Party tells Breitbart News.

“Trump’s position on eminent domain doesn’t sway me one way or the other. Many of his supporters don’t seem to care what positions he holds or has held, they just want someone who tells it like it is and damned the consequences. Principles and policies are not a high priority to them, Trump’s rhetoric is his selling point,” Walker adds.

“Trump’s attitude is typical of big real estate developers who are eager to lock arms with big government and run roughshod over the rights of the individual,” Nashville Tea Party founder Ben Cunningham tells Breitbart News.

“Private property rights represent absolutely essential limitations on the power of big government and the fact that Trump is willing to violate these principles to make a buck is repugnant,” Cunningham adds.

“There are many things to like about Trump but his stance on eminent domain endangers our foundational private property rights and makes me even more willing to get out and work hard to elect Ted Cruz,” Cunningham concludes.

“Trump is strong on a lot of good issues,” Tea Party Nation’s Phillips tells Breitbart News.

“He is saying things that the American people want to hear. He is missing the boat on eminent domain. I’m not sure how much it will hurt him since he is so strong on Immigration and Trade. But I think there will be some backlash on it,” Phillips, who has endorsed Ted Cruz, adds.

Trump’s opponents for the 2016 GOP Presidential nomination have criticized Trump on eminent domain, but so far, those criticisms have not had much impact on the race.

Senator Sen. Rand Paul (R-KY), lagging far behind in the polls, tried to hit Trump in August on the issue of eminent domain, but his critique failed to hurt Trump or help Paul.

In fact, Paul was in eighth place among the candidates seeking the 2016 GOP Presidential nomination at 4.3 percent in the polls when he began that attack, according to the Real Clear Politics average of polls taken between August 9 and August 16.

Paul now stands at an even more distant tenth place with the support of only 2.3 percent of GOP primary voters, according to the Real Clear Politics average of polls taken between September 17 and October 4.

During that same time period, Trump has remained in first place, and his poll numbers have increased from 22 percent to 23.2 percent.

Despite Paul’s lack of success, critics still attack Trump for his history using eminent domain.

Reason’s Root describes Trump’s unsuccessful attempts to use eminent domain to obtain the house of an Atlantic City widow, Vera Coking, two decades ago:

In 1994 Trump sought to personally profit from eminent domain abuse by using government power to kick an elderly widow out of her Atlantic City home.

This despicable event was made possible by a shadowy state agency known as the Casino Reinvestment Development Corporation (CRDC), which sought to take the home of a woman named Vera Coking, who lived just off of Atlantic City’s famous beachfront boardwalk, and replace it with a new limousine parking lot for the nearby Trump Plaza hotel and casino.

Thanks to the expert legal help of the Institute for Justice, whose lawyers represented Coking, the CRDC’s desire to wield eminent domain on Trump’s behalf was laughed out of court. “What has occurred here is analogous to giving Trump a blank check with respect to future development on the property for casino hotel purposes,” declared the Superior Court of New Jersey in a sharp ruling against Trump and the CRDC. Vera Coking stayed in her home.

Not surprisingly, Trump offers a different interpretation of his business dealings with Vera Coking.

“I was going to expand this hotel for 2,000 rooms. I couldn’t make a deal with her. In the end I didn’t do it. I would have paid up to $5 million for her house,” Trump tells Breitbart News.

“Fortunately she held me up [in the development of that hotel]. I would have paid her $5 million and she saved me a fortune I would have spent had I built [the expansion],” Trump adds.

Trump points out that he was willing to pay Mrs. Coking about ten times what her house finally sold for.

“It sold for half a million dollars a few years ago,” Trump notes.

Mrs. Coking now lives in a retirement home near her grandson in California. (1 image)

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

#1. To: cranky (#0)

BobCeleste  posted on  2015-10-09   10:07:44 ET  (1 image) Reply   Trace   Private Reply  


#2. To: cranky (#0)

If you don't like what's being done with eminent domain in your state, get off your lazy f**king ass and petition your state legislature to pass a law limiting it, effectively blocking Kelo. 42 states have already done so.

This is a non-issue.

misterwhite  posted on  2015-10-09   10:18:11 ET  Reply   Trace   Private Reply  


#3. To: cranky (#0) (Edited)

America needs pipelines, roads, sewers, powerlines, etc to move on with a growing infrastructure,” Olsen concludes.

all legitimate uses for eminent domain. Trump goes too far when he says it should be used to build private businesses.

“Trump’s attitude is typical of big real estate developers who are eager to lock arms with big government and run roughshod over the rights of the individual,” Nashville Tea Party founder Ben Cunningham tells Breitbart News.

Right on !

Quis custodiet ipsos custodes?

tomder55  posted on  2015-10-09   12:17:35 ET  Reply   Trace   Private Reply  


#4. To: cranky (#0)

Unfortunately for critics of a more expanded view of eminent domain, the Supreme Court’s very unpopular 2005 decision in Kelo v. New London supports Trump’s more expanded view.

There is Kelo and the century-plus of Supreme Court and other judicial precedent cited by the Supreme Court in Kelo.

What the court actually said.

Kelo v. New London, 545 US 469 (2005) (footnotes omitted)

Opinion of the Court Justice Stevens delivered the opinion of the Court.

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.

[...]

III

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with commoncarrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case. As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”

On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e. g., what proportion of the public need have access to the property? at what price?), but it proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e. g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 531 (1906). We have repeatedly and consistently rejected that narrow test ever since.

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.

[...]

In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.

The judgment of the Supreme Court of Connecticut is affirmed.

Dayton Mining Co v Seawell, 11 Nev 394 (1876)

At 402:

The issue is clearly presented and it ought to be fairly met. That the purposes mentioned in the act “are of vital necessity to the people of this state,” cannot be denied; that mining is the paramount interest of the state is not questioned; that anything which tends directly to encourage mineral developments and increase the mineral resources of the state is for the benefit of the public and is calculated to advance the general welfare and prosperity of the people of this state, is a self-evident proposition. Hence, it necessarily follows that if the position contended for by petitioner is correct, and I believe it is, then the act is constitutional and should be upheld. Although other and weaker reasons have more frequently been assigned, it seems to me that this is the true interpretation upon which courts have really acted in sustaining the right of eminent domain in favor of railroads and other objects, and in several of the decided cases this reason is expressly given.

At 403-04:

“The principle is, that the lands of individuals are holden subject to the requisitions of the public exigencies, a reasonable compensation being paid for the damage. It is not taking the property of one man and giving it to another. At most, it is a forced sale to satisfy the pressing want of the public.” (12 Pick. 480.)

At 405:

It has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or par ticipate in an improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the state.

At 406:

In Connecticut the doctrines advanced in the Massachusetts cases are fully supported. Especially is this true of the reasoning of the supr eme court in Olmstead v. Camp, sustaining the validity of the flowage act of that state. It was there contended that the act manifestly authorized the taking of property for private use; that in order to sustain the law it must affirmatively appear that th e public have an interest in the thing to be taken; that there must be a public right of control of the thing taken as property in which the state has an interest; that the thing taken is to be used by the public, and is taken that it may be so used. In di scussing this question the court say: “One of the most common meanings of the word ‘use' as defined by Webster, is ‘usefulness, utility, advantage, productive of benefit.' Public use may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use.” (33 Conn. 546.) This decision directly declaring t hat the “term ‘public use’ is synonymous with public benefit or advantage” was concurred in by all the judges except Hinman, C. J., who dissented.

At 409:

Now it so happens, or, at least, is liable to happen, that individuals, by securing a title to the barren lands adjacent to the mines, mills or works, have it within their power, by unreasonably refusing to part with their lands for a just and fair compensation, which capital is always willing to give without litigation, to greatly embarra ss if not entirely defeat the business of mining in such localities. In my opinion, the mineral wealth of this state ought not to be left undeveloped for the want of any quantity of land actually necessary to enable the owner or owners of mines to conduct and carry on the business of mining.

At 410:

But it is argued, that in sustaining this act upon the principles we have announced, there is no limitation to the exercise of legislative will in the appropriation of private property. After a thorough investigation of this question, I am of opinion that this argument is more specious than sound.

At 410:

If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon railroad.

Fallbrook Irrigation Dist v Bradley, 164 US 112 (1896)

164 U. S. 158

[...]

Coming to a review of these various objections, we think the first, that the water is not for a public use, is not well founded. The question what constitutes a public use has been before the courts of many of the states, and their decisions have not been harmonious, the inclination of some of these courts being towards a narrower and more limited definition of such use than those of others.

There is no specific prohibition in the federal Constitution which acts upon the states in regard to their taking private property for any but a public use. The Fifth Amendment, which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided. Spies v. Illinois, 123 U. S. 313; Thorington v. Montgomery, 147 U. S. 490. In the Fourteenth Amendment the provision regarding the taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property without due process of law. It is claimed, however, that the citizen is deprived of his property without due process of law if it be taken by or under state authority for any other than a public use, either under the guise of taxation or by the assumption of the right of eminent domain. In that way, the question whether private property has been taken for any other than a public use becomes material in this Court even where the taking is under the authority of the state, instead of the federal, government.

Is this assessment for the nonpayment of which the land of the plaintiff was to be sold, levied for a public purpose? The question has in substance been answered in the affirmative by the people of California, and by the legislative and

164 U. S. 159

judicial branches of the state government. The people of the state adopted a Constitution, which contains this provision:

"Water and Water Rights. SEC. 1. The use of all water apportioned, or that may hereafter be apportioned, for sale, rental or distribution is hereby declared to be a public use, and subject to the regulation and control of the state in the manner to be prescribed by law."

Constitution of California, Art. 14.

The latter part of § 12 of the act now under consideration, as amended in March, 1891, reads as follows:

"The use of all water required for the irrigation of the lands of any district formed under the provisions of this act, together with the rights of way for canals and ditches, sites for reservoirs, and all other property required in fully carrying out the provisions of this act, is hereby declared to be for a public use, subject to the regulation and control of the state, in the manner prescribed by law."

The Supreme Court of California has held in a number of cases that the irrigation act is in accordance with the state constitution, and that it does not deprive the landowners of any property without due process of law; that the use of the water for irrigating purposes under the provisions of the act is a public use, and the corporations organized by virtue of the act for the purpose of irrigation are public municipal corporations, organized for the promotion of the prosperity and welfare of the people. Turlock Irrigation District v. Williams, 76 Cal. 360; Central Irrigation District v. De Lappe, 79 Cal. 351; In re Madera Irrigation District, 92 Cal. 296.

We do not assume that these various statements, constitutional and legislative, together with the decisions of the state court, are conclusive and binding upon this Court upon the question as to what is due process of law, and, as incident thereto, what is a public use. As here presented, these are questions which also arise under the federal Constitution, and we must decide them in accordance with our views of constitutional law.

It is obvious, however, that what is a public use frequently

164 U. S. 160

and largely depends upon the facts and circumstances surrounding the particular subject matter in regard to which the character of the use is questioned.

To provide for the irrigation of lands in states where there is no color of necessity therefor within any fair meaning of the term, and simply for the purpose of gratifying the taste of the owner or his desire to enter upon the cultivation of an entirely new kind of crop, not necessary for the purpose of rendering the ordinary cultivation of the land reasonably remunerative, might be regarded by courts as an improper exercise of legislative will, and the use might not be held to be public in any constitutional sense, no matter how many owners were interested in the scheme. On the other hand, in a state like California, which confessedly embraces millions of acres of arid lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power. The people of California and the members of her legislature must, in the nature of things, be more familiar with the facts and circumstances which surround the subject, and with the necessities and the occasion for the irrigation of the lands, than can anyone be who is a stranger to her soil. This knowledge and familiarity must have their due weight with the state courts which are to pass upon the question of public use in the light of the facts which surround the subject in their own state. For these reasons, while not regarding the matter as concluded by these various declarations and acts and decisions of the people and legislature and courts of California, we yet, in the consideration of the subject, accord to and treat them with very great respect, and we regard the decisions as embodying the deliberate judgment and matured thought of the courts of that state on this question.

Viewing the subject for ourselves and in the light of these considerations, we have very little difficulty in coming to the same conclusion reached by the courts of California.

The use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be

164 U. S. 161

formed or carried into effect. In general, the water to be used must be carried for some distance, and over or through private property, which cannot be taken in invitum if the use to which it is to be put be not public, and if there be no power to take property by condemnation, it may be impossible to acquire it at all. The use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation. Cole v. La Grange, 113 U. S. 1. A private company or corporation, without the power to acquire the land in invitum, would be of no real benefit, and at any rate the cost of the undertaking would be so greatly enhanced by the knowledge that the land must be acquired by purchase that it would be practically impossible to build the works or obtain the water. Individual enterprise would be equally ineffectual. No one owner would find it possible to construct and maintain waterworks and canals any better than private corporations or companies, and unless they had the power of eminent domain, they could accomplish nothing. If that power could be conferred upon them, it could only be upon the ground that the property they took was to be taken for a public purpose.

While the consideration that the work of irrigation must be abandoned if the use of the water may not be held to be or constitute a public use is not to be regarded as conclusive in favor of such use, yet that fact is in this case a most important consideration. Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual obstacle will therefore remain in the way of the advance of a large portion of the state in material wealth and prosperity. To irrigate, and thus to bring into possible cultivation, these large masses of otherwise worthless lands would seem to be a public purpose, and a matter of public interest not confined to the landowners, or even to any one section of the state. The fact that the use of the water is limited to the landowner is not, therefore, a fatal objection to this legislation. It is not essential that the entire community, or even any considerable portion thereof, should directly enjoy or participate in an improvement in order to constitute a

164 U. S. 162

public use. All landowners in the district have the right to a proportionate share of the water, and no one landowner is favored above his fellow in his right to the use of the water. It is not necessary, in order that the use should be public, that every resident in the district should have the right to the use of the water. The water is not used for general, domestic, or for drinking purposes, and it is plain from the scheme of the act that the water is intended for the use of those who will have occasion to use it on their lands. Nevertheless, if it should so happen that at any particular time the landowner should have more water than he wanted to use on his land, he has the right to sell or assign the surplus or the whole of the water, as he may choose.

The method of the distribution of the water for irrigation purposes provided for in section 11 of the act is criticized as amounting to a distribution to individuals, and not to lands, and on that account it is claimed that the use for irrigation may not be achieved, and therefore the only purpose which could render the use a public one may not exist. This claim we consider not well founded in the language and true construction of the act. It is plain that some method for apportioning the use of the water to the various lands to be benefited must be employed, and what better plan than to say that it shall be apportioned ratably to each landowner upon the basis which the last assessment of such owner for district purposes within the district bears to the whole sum assessed upon the district? Such an apportionment, when followed by the right to assign the whole or any portion of the waters apportioned to the landowner, operates with as near an approach to justice and equality as can be hoped for in such matters, and does not alter the use from a public to a private one. This right of assignment may be availed of also by the owner of any lands which, in his judgment, would not be benefited by irrigation, although the board of supervisors may have otherwise decided. We think it clearly appears that all who, by reason of their ownership of or connection with any portion of the lands, would have occasion to use the water, would in truth have the opportunity to use it

164 U. S. 163

upon the same terms as all others similarly situated. In this way, the use, so far as this point is concerned, is public, because all persons have the right to use the water under the same circumstances. This is sufficient.

The case does not essentially differ from that of Hagar v. Reclamation District, 111 U. S. 701, where this Court held that the power of the legislature of California to prescribe a system for reclaiming swamp lands was not inconsistent with any provision of the federal Constitution. The power does not rest simply upon the ground that the reclamation must be necessary for the public health. That, indeed, is one ground for interposition by the state, but not the only one. Statutes authorizing drainage of swamp lands have frequently been upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Head v. Amoskeag Manufacturing Co., 113 U. S. 9, 113 U. S. 22; Wurts v. Hoagland, 114 U. S. 606, 114 U. S. 611; Cooley on Taxation 617, 2d ed. If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made, and the land rendered useful to all and at their joint expense. In such case, the absolute right of each individual owner of land must yield to a certain extent, or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit.

Irrigation is not so different from the reclamation of swamps as to require the application of other and different principles to the case. The fact that, in draining swamp lands, it is a necessity to drain the lands of all owners which are similarly situated goes only to the extent of the peculiarity of situation and the kind of land. Some of the swamp lands may not be nearly so wet and worthless as some others, and yet all may be so situated as to be benefited by the reclamation, and

164 U. S. 164

whether it is so situated or not must be a question of fact. The same reasoning applies to land which is to some extent arid, instead of wet. Indeed, the general principle that arid lands may be provided with water, and the cost thereof provided for by a general tax or by an assessment for local improvement upon the lands benefited, seems to be admitted by counsel for the appellees. This necessarily assumes the proposition that water used for irrigation purposes upon lands which are actually arid is used for a public purpose, and the tax to pay for it is collected for a public use, and the assessment upon lands benefited is also levied for a public purpose. Taking all the facts into consideration, as already touched upon, we have no doubt that the irrigation of really arid lands is a public purpose, and the water thus used is put to a public use.

[...]

nolu chan  posted on  2015-10-09   13:23:23 ET  Reply   Trace   Private Reply  


#5. To: tomder55 (#3)

all legitimate uses for eminent domain.

All are examples of 'for public use' and as such are quite Constitutional, imho.

But using eminent domain to transfer private property from one private party to another private party (even it raises tax revenues) fails that test, as far as I'm concrrned, Kelo notwithstanding.

There are three kinds of people in the world: those that can add and those that can't

cranky  posted on  2015-10-09   15:00:06 ET  Reply   Trace   Private Reply  


TopPage UpFull ThreadPage DownBottom/Latest

[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com