The opinion of the Court was delivered by
The question for decision depends on considerations that did riot enter into the case of The Union Canal Co. v. Landis, (9 Watts 228). In that case, the grant to the individual contained a reservation in favour of the company to whom a prior right had been granted, which put at rest every pretence of claim to damages for acts subsequently done to the prejudice of the second grantee. The reservation was perhaps superfluous; but it seems to have been thought a judicious precaution, because a license followed by a permanent erection for the enjoyment of it is generally irrevocable; and it might have been deemed a contract, in that instance, which the State could not impair. But what grant is there in the statute of 1803 to require a reservation? That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams, without being indictable for a nuisance; and their exercise of it was consequently to be attended with expenditure of money and labour. But was this liberty to be perpetual, and for ever to tie up the power of the State? or is not the contrary to be inferred from the nature of the license ? The object was not to give a new and an irrevocable right; but. to restore the qualified use of an old one, so long as it should consist with the public good, by remitting the owner of the soil to the situation in which he stood before the stream was made a highway; and the statute did no more than operate a partial repeal of the Act which had declared it to be so. It reconciled a modified enjoyment of the owner's ancient right, to the present enjoyment of the public right of navigation and fishery. Hence it provided that the owner of land on the shore of a navigable river, declared by law to be a highway, might erect a dam on it,
It is contended, however, not so much that the power of the Legislature falls short of a case like the present, as that it can be exerted only on the basis of compensation made or secured ; and that for damage done by the authority of the State, there is, in every case without it, redress by action : in other words, that the authority is void. We must not forget, however, that the State is a sovereign who cannot be sued against her consent; and that there are no other limitations to her power over private property than those that are placed upon it by the Constitution. What are they? “No person shall, for the same offence, be twice put in jeopardy of life or limb; nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being given.” Again: “In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favour; and, in prosecutions by indictment or information, a speedy trial by an impartial jury of the vicinage: he cannot be compelled to give evidence against himself; nor can he be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.” Now, it cannot be said that the plaintiff’s mill was taken or applied, in any legitimate sense, by the State, or by the company invested with its power; nor can it be said that he was deprived of it. In the case of The Philadelphia and Trenton Rail
If, then, the State would not be bound to pay for the damage done to the plaintiffs’ mill, had she been the immediate cause of it, how is the defendant bound 1 The company acted by her authority, as well as for the public benefit; and consequently,with no greater responsibility than is imposed by the Constitution, which, it must be admitted, has narrowed the protection that the delegation of her power would otherwise have afforded. “ The Legislature,” it is said in the tenth article and fourth section, “ shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of such property, or give adequate security therefor before such property shall be taken.” A corporation, then, must pay or secure the price of the property before it is taken; but the State must provide the means of payment at the passing of the Act. The difference is less in reality than appearance; and, in every other respect, the delegation of a valid authority protects the agents of the State as amply as it protects the State herself. Still, it is only to a case of taking that the obligation extends; and when a corporation acts by virtue of a constitutional law, it is subject to no other responsibility for acts of consequential damage, than is spe
It is not, therefore, enough to set before us a case of moral wrong, without showing us that we have legal power to redress it. Beyond constitutional restraint or legislative power, thei^e is none but the legislative will, tempered by its sense of justice, which has happily been sufficient, in most cases, to protect the citizen. Compensation has been provided for every injury which could be foreseen, whether within the constitutional injunction or not, in all laws for public works by- the State or a corporation; though cases of damage have occurred'which could neither be anticipated nor brought within the benefit of the provision by the most strained construction. In one instance, a profitable ferry on the Susquehanna, at its confluence with the Juniata, was destroyed by the Pennsylvania canal; and, in another, an invaluable spring of water, at the margin of the river, near Selinsgrove, was drowned. These losses, like casualties in the prosecution of every public work, are accidental, but unavoidable; and they are but samples of a multitude of others; so that the plaintiffs have at least the miserable good luck to know that they have companions in misfortune: would that it were in our power to afford them more solid consolation !