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U.S. Supreme Court

Cincinnati v. Louisville & Nashville R. Co., 223 U.S. 390 (1912)

Cincinnati v. Louisville & Nashville Railroad Co.

No. 385

Submitted January 9, 1912

Decided February 19, 1912

223 U.S. 390


After it admission into the Union, the legislative power of the State of Ohio was not restricted in any way by the provisions of Article 2 of the Northwest Ordinance of 1787, except as limited by its own constitution, and that state has every power of eminent domain which pertain to the other states.

Article 2 of the Northwest Ordinance did not forbid the appropriation by eminent domain of a contract dedicating land to the common use and benefit of a town.

The Act of the Ohio Legislature of 1908, § 3283, and the ordinance of

Page 223 U. S. 391

the City of Cincinnati thereunder, condemning a right of way across the public landing at Cincinnati are not unconstitutional as impairing the obligation of the contract dedicating the landing as a common for the use and benefit of the town forever.

A dedication of land as a common for use and benefits of the town forever as shown on a plan, and the acceptance by the town and the sale of lots under the plan constitute a contract, the obligation whereof is protected by the contract clause of the federal Constitution.

The right of every state to exercise the power of eminent domain as to every description of property is an inherent power without which it cannot perform its functions.

The power of eminent domain was not surrendered by the states to the United States or affected by the federal Constitution except that it must be exercised with due process of law and on compensation's being made.

The power of eminent domain extends to tangibles and intangibles, including choses in action, contracts, and charters.

An appropriation under eminent domain with compensation of a contract neither challenges its validity nor impairs the obligation. It is a taking, not an impairment, of its obligation.

Every contract, whether between the state and an individual or between individuals only, is subject to the law of eminent domain, for there enters into every engagement the unwritten condition that it is subject to appropriation for public use.

The ordinance of the Northwest Territory ceased to be, in itself, obligatory upon the states carved from that territory after their admission into the Union as states, except so far as adopted by the states themselves and made a part of the laws thereof.

On its admission, whatever the conditions may have been prior thereto, whether from the conditions of the Northwest Ordinance or other territorial government, a state at once becomes entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states, and all limitations on sovereignty in the Act of admission not subsequently adopted by the state itself are inoperative. Coyle v. Oklahoma, 221 U. S. 559.

When the United States as an independent sovereign creates a territorial government with legislative authority, subject only to limitations of the creating act, it will be presumed to grant to the new dependent government the vital powers incident to and necessary to sovereignty unless it plainly appears to be withheld.

The right to appropriate property being a necessary incident to sovereignty,

Page 223 U. S. 392

Art. 2 of the Northwest Ordinance, giving power only to take property in a public exigency for compensation, will be broadly construed as simply limiting the general right of eminent domain by the requirement that compensation be made.

A public exigency exists for the common preservation when the legislature declares that, for a bona fide public purpose, there should be a right of way for a common carrier across a particular piece of property, and in such a case, the propriety of the appropriation cannot be questioned by any other authority. United States v. Jones, 109 U. S. 519.

Quaere whether the only power of eminent domain to which a contract is subordinate is the power as it existed at the time that the contract was made or at the time of appropriation.

82 Oh.St. 466 affirmed.

The facts, which involve the constitutionality of a municipal ordinance of Cincinnati and statute under which it was passed permitting condemnation for a right of way, are stated in the opinion.

Page 223 U. S. 398

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