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The convention resumed the third reading of the amendments heretofore made on second reading, in the seventh article of the constitution.
The question pending was on the motion, viz: That the convention resolve itself into a comunittee of the whole, for the purpose of amending the fourth section of the said article, by striking therefrom, in the second line, the word “ appropriating,” and inserting in lieu thereof the word “ taking;" and by striking therefrom, in the third line, the words “ to its," and inserting in lieu thereof the words " for public;" and by striking from the end of the section the word “ appropriated,” and inserting in lieu thereof the word “ taken."
Mr. Dunlop, of Franklin, suggested that the convention had better resolve itself into committee of the whole to amend the section generally. He would make that motion if the gentleman from Northampton, (Mr. Porter) had no objection. Mr. STERIGERE, of Montgomery, hoped the motion would be agreed
He thought it would be well io insert the words " for any purpose,' in lieu of the words • its use,” which would embrace both public and private. He was of opinion that the convention had better go into committee for general purposes.
Mr. Porter, of Northampton, said the objections urged by the gentleman from Montgomery, went to show that private property could be taken for public use. It could be taken for nothing else ; and that was the reason why he accepted the amendment suggested by the gentleman from the city of Philadelphia, (Mr. Meredith.)
Mr. STERIGERE remarked that if the fact were so, there were a great many unconstitutional laws. 'Ile could refer to several giving companies the right to the exclusive use of roads. Private companies have both used and destroyed private property ; and although bound in their charters to make compensation, they have failed to do so, because of their ivsolvency or some other reason.
Mr. DUNLOP observed that the gentleman from Northampton had said nothing in relation to his (Mr. D's.) proposition. His idea was that we should say that no corporation shall be empowered to take private prop erty. Mí. D. then moved to go into committee for general purposes.
The PRESIDENT said, it would be better to divide the motion so as to end with the word "commit.”
Mr. DUNLOP asked for a division accordingly.
Mr. INGERSOLL hoped that the convention would agree to commit generally. It was a very important subject.
Mr. FULLER, of Fayette, said that if the motion of the gentleman should prevail, we would be out to sea again. He was opposed 10 the motion. Before going into committee of the whole, gentlemen oughi to know what they were then going to do. He thought that no corporate body should be allowed to take the property of any individual without making conpensation. The section was in the following language:
“ 'The legislature shall not invest any corporate body with the privilege of appropriating private property to its use, without requiring such
corporation to compensate the owners of said property, or give adequate security therefor, before such property shall be appropriated.”
Now, a corporation is a private concern, and the taking of property, a the section now stands, would be for private use.
Mr. Agnew, of Beaver, was in favor of the first branch of the motion. The section, in his opinion, required more amendment than had been suggestell, and so gentlemen would find on examination. An act which was passed in 1832, authorizing the construction of lateral rail-roads, had given rise to this provision. The law was supposed to be unconstituțional; but the committee on the ninth article had reported that it was not unconstitor tional. If the gentleman from Fayette would examine the act in question, he would ascertain that it relates to individuals, not corporate companies. Persons who own lands have rail-roads, and they do injury to the property of individuals through which they may pass.
Now, the amendment does not embrace this case. It applies only to corporate bodies, and not to the case which is contemplated. And I apprehend that the gentleman from Luzerne who drew up the section, (Mr. Sturdevant) and who has its success very much at heart, will find, if he will look closely at it, that it does not provide for the case of which so much complaint has been made.
For this reason, therefore, it seems to me that the convention will find it proper to
go into committee of the whole for the purpose of amending the section, and I trust that we shall do so. Of one thing, however, i feel very confident; and that is, that the section, if allowed to remain in the shape in which it now appears, will fail to answer the purpose which it is designed to effect.
Before taking leave of the subject, I will call the attention of gentlemea so the act of May 5th, 1832, which is entitled “ an act regulating lateral rail-roads. The first section of the act holds the following language :
“Section 1. If any owner or owners of land, mills, quarries, coal mines, lime-kilns, or other real estate, in the vicinity of any rail-road, canal, or slack-water navigation, made or to be made by any company, or by the state of Penusylvania, and not more than three miles distant there from, shall desire to make a rail-road thereto over any intervening lands, he or they, their engineers, agents, and artists, may enter upon any landa, and survey and mark such route as he or they shall think proper to adopt. doing no damage to the property explored, and thereupon may present a petition to the court of common pleas of the county in which said intervening land is situated, setting forth his or their desire to be allowed to construct and finish a rail-road in and upon the said route, and the beginning, courses and distances thereof, and place of intersection of the main rail-road, canal, or slack.water navigation, which shall be filed and entered on record in the said court, whereupon the said court shall appoint," &c. &c.
The act (Mr. A. continued) then goes on to invest the right of way in the person, his heirs and assigns, not in the body corporate, but having reference only to individuals and not to corporators: for it is declared by the third section of the same act that the right of property in the said rail-road, shall be vested in him or them, his or their heirs and assigns who shall have submitted the said petition for the said rail-road, and
whose funds shall have been contributed and paid for the construction thereof," &c.
These are the reasons, continued Mr. A., which induce me to urge that the convention should go into committee of the whole, and there amend the section. I concur in the opinion which has been expressed by the gentleman from Northampton, (Mr. Porter) that the provisions of the section as it now stands, night lead to some difficulty. Unquestionably it never could have been the intention of the framers of the constitution of 1790 to give to the public the right to take private property for private
On this point, I take it for granted, there can be no difference of opinion amongst us. And the gentleman from Fayette, (Mr. Fuller) is obviously mistaken in his view, when he says that because an individual or corporation which takes the property is private, that, therefore, the use ought to be private. I do not subscribe to this opinion. The object may be public, although the means taken to accomplish it may be private. An individual, or a private corporatian, may be authorized to construct bridges or other works, and yet the works themselves may be of a public character--such as the people themselves are interested in. It is only another means taken by the commonwealth of doing certain acts for the public benefit—doing them through individual enterprise, capital and skill ;- but the nature of the act itself is public. Now, there is a clear distinction here. I agree with the gentleman from Northampton, that the word “ appropriate,” and the words “ to its use" might lead to some misconception as to the right of the commonwealth herself. There is some ambiguity here. Where a company appropriales a thing, we mean that it takes it to its own use. I dislike these expressions, and would be glad to see them changed, because they differ from the language of the constitution of 1790. What is the language of the tenth section of the ninth article of the constitution, to which reference has several times been made in this and in a former discussion upon the same subject. It says:
* Nor shall any man's property be taken or applied to publie use, without the consent of his representatives, and without just compensation being made."
This is the language of your bill of rights; and there is nothing in the constitution of 1790 which gives a colour to the notion that the public have a right to take private property for private use. Nor, at the same time, is there any thing there to be found which says, in express terins, that property
shall not be taken in that manner, but from the tenor of the instrument, the unquestionable inference which we should draw is,
that it shall not be so taken; because it lays down those rights which are inherent and indefeasible, and afterwards expressly provides that private property may be taken for public use, so as not to leave an implication that property can be taken for private use. It is my conviction that this section as it now stands, might lead to the implication that persons could take private property for public use. We have indeed been told, in the course of this debate, that any one who was acquainted with the causes which gave rise to the introduction of this section as an amendment to the constitution, could give no construction to it except that which the convention intend it should bear. Well, this might be so, I do not doubt that the members of the convention understand what they intend to enactó,
that is to say, they do not intend to confer the right to take private property for private use. But this is not the point to which it is our duty to look. So far from leaving any thing doubtful, any thing which may tend to mis-construction, and, therefore, to difficulty, it is our duty to anticipate, and to guard against any difficulty which might hereafter arise in reference to all the amendments which we may make to the constitution. A judge before whom a case might be brought, might decide that it was not the intention of the convention to extend the public rights in this respect; yet we must take into view the fact that the decision may not be speedily made, and that it may be made under such circumstances as to affect the issue 10 a considerable extent. The legislature may go on step by step. After the lapse of twenty years, valuable rights may have been acquired under laws which go to the very verge of the constitutional provision, and when at last the legislature does overstep the boundary, rights may have vested in purchasers, and thus the interests of the parties might be affected to a great extent. Much embarrassment, difficulty and loss might follow. The court will hesitate long before it attempts to reverse these laws.
Under all the circumstances, then, it seems to me that this section, in its present form, will introduce a new rule, and that hereafter, in the course of time, when rights have been vested under certain laws, the court will feel itself in a very difficult situation wheu called upon to decide, as it may be, that these laws are unconstitutional.
Mr. Dunlop, of Franklin, said. I will claim the attention of the convention for a few minutes. I wish I had a sieam-whistle such as we have seen used on rail roads, or that I had a voice of thunder or something of that kind, so that I might have a chance to make myself heard. As things are now, I almost despair of being heard even by my immediate neighbors. The confusion in the hall is so great, and we have become so indifferent to the business before us, that we do those things which we ought not to do, and we leave undone those things which it is most essential that we should do. A day or two ago, we passed a portion of the amendments to the constitution which ought not to have been passed; and I hope that the members of this convention may be prevailed upon to give at least as much attention to what they are doing as to save from ridicule the clause we have passed, and which was passed in a great hurry. No gentleman ought to be in a hurry in forming a constitution—it is about the last piece of business in which he should suffer himself to act from excitement, haste or impulse.
But I say that this clause was passed in a hurry ;--and that we are again in a hurry at this time, so much so as scarcely to know what we are about, or whither our constitutional legislation tends.
By the constitution as it now stands, people can take private property for their own particular uses. I am sure that the gentleman from Fayette (Mr. Fuller) will not be willing to go home, and iell his constituents, in answer to their inquiries, that it was his intention, or the intention of this body, that private property should be taken for private use. The consti. tulion expressly says: “Nor shall any man's property be taken, or applied to public use, without the consent of his representatives, and without just compensation being made."
Now, authority which a corporation has to take private property, is based
upon the principle that it is taken not for the use of the corporation, but for the use of the public; because it is expressly forbidden that one man's property shall be taken for the private use of another man, or for the private use of any set of men. Sir, it is absurd to assert such a principle, and yet we actually have embodied it in the amendment which we have passed to this seventh article. Whal are its terms ?
“Section 4. The legislature shall not invest any corporale body with the privilege of appropriating private property to its use, without requiring such corporation to compensate the owners of said property, or give adequate security therefor, before such property shall be appropriated."
Can the legislature, continued Mr. D., appropriate property to the use of a corporation? Undoubtedly so, if the appropriation be for a work which is for the public use. But the clause which I have read contains no restriction. It implies that the legislature can take private property for the use of the corporation, whether it is public or private whether it is to be used in a public manner or for the use of a private corporation alone. Does the gentleman from Fayette desire to go home, and to tell his constituents that he has given his vote for such a clause as this? I do not think he does. What will the judges say? They will say
that we intend to change the whole face of the law, and to confer upon corporations the right of taking private property for private use.
What says the gentleman from the county of Philadetphia, (Mr. Brown) who is so fond of taking a little cut at myself? I got a corporation, it is true, though I never made any use of it. But suppose that I had done so, and that I had pursued and executed the law. Could the legislature confer the right upon me to take my neighbor's properly, because I wanted it for my own use? Will the gentleman froin Fayette, when he goes honie to his constituents, advocate such a doctrine as this? I think he will scarcely have the boldness to do so. And
clause now before us, would justify or seem to imply that we have opened a new power to the legislature, and given them a power which was so grossly complained of in the constitution of 1770. I hope that we shall go into committee of the whole upon this section, and make the necesaary alterations in it. Why should we be afraid of going 10 sea, as the gentleman from Fayette says ? Go to sea upon a single section! Sir, the apprehension is groundless ; and if it were not so, any thing is preferable to sending out this section in the imperfect form in which it stands at present.
The gentleman from Mifflin, (Mr. Banks) has suggested to me an amendment which, with a little modification of my own, would answer, I think, every purpose.
[Mr. D. here read the amendment which was, in substance, that the legislature should not authorize any corporation, nor any individual to take private property except for the use of the public, and upon compensation being made before the property is taken.]
The act of May 5, 1832, continued Mr. D., gives a sort of general right to persons who run lateral rail roads, to take private property. The legislature will of course judge, whether the work be for public use or not. The legislature will confer the right to take private property for works