The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
80. The right of eminent domain is essentially of the police power,
and for State purposes is exclusively within the State. Each State in
the Union regulates its domestic commerce, contracts, the transmission
of estates,—real and personal—and acts upon all internal matters which
relate to its moral and political welfare. Over these subjects the
federal government has no power. The acknowledged police power of a
State extends often to the destruction of property. A nuisance may
be abated.[208] Thus a State constitution, or a statute under it,
prohibiting the manufacture and sale of intoxicating liquors, except
for medicinal, scientific, and mechanical purposes, does not conflict
with the clause of the Fourteenth Amendment which provides that “no
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any State
deprive any person of life, liberty, or property, without due process
of law.” The so-called “right” to manufacture or sell such articles is
not a right growing out of citizenship of the United States.[209] Such
manufacture or sale, or its prohibition is wholly within the power of
the State to control.[210]
Such control is of wholly internal affairs. The right to manufacture
or sell such articles is not a right under a contract as the word
_contract_ is used in the Constitution.[211] Prohibition of the
manufacture and sale of such articles, save as excepted, does not
deprive the citizen of his constitutional rights. Such prohibition is
the policy of the supreme power in the State and is an exercise of a
function within its jurisdiction.
The exercise of the police power of the State by the destruction of
property which is itself a public nuisance, or the prohibition of
its use in a particular way whereby its value becomes depreciated,
is very different from taking property for public use, or from
depriving a person of his property without due process of law. In
one case, a nuisance only is abated; in the other, unoffending
property is taken away from an innocent owner.[212]
81. The provision of the Constitution that private property shall not
be taken for public use without compensation is a limitation on the
power of the federal government, and not on the States,[213] but the
State constitutions usually include the limitation in their Bills of
Rights: the principle is “essentially a part of American constitutional
law.”[214]
82. For consequential injury resulting from the exercise of the power
of eminent domain there is no redress,[215] but where such exercise
of power works effectual destruction of land so as to impair its
usefulness, it is a taking of property for public use and the owner is
entitled to compensation.[216] The principle here is that,
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