The
Public Purpose Doctrine
(links provided Aug. 18, 2017)
(links provided Aug. 18, 2017)
Via the United States Constitution, taxes are imposed for public purposes and the power of eminent domain can only be exercised to take private property for a public use. In the early days of our Republic, the use of the power of taxation for a private purpose was abusively exercised, resulting in decisions reversing this trend. See Citizen's Savings & Loan Assn v. Topeka, 87 U.S. 655, 664 (1874)("To lay, with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less robbery because it is done under the form of law and is called taxation. This is not legislation. It is a decree under legislative forms"); and City of Parkersburg v. Brown, 106 U.S. 487 (1882) (private purpose bonds were not authorized by the state constitution). However today, these principles are ignored almost with impunity. We have social security, corporate welfare, Medicare, etc., for which there are no real constitutional restraints. Without some defined limits, government can assume to itself the objective of providing for all endless wants and needs, which assuredly will result in limitless government.
Similarly in the past the restraint upon takings solely for public purposes had some teeth. See Missouri Pac. R.R. Co. v. Nebraska, 164 U.S. 403 (1896), and Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364 (1937)("one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid"). But even these prohibitions have been ignored over the years.
If you are a student interested in the eminent domain power of government, the following are recent authorities showing the limits thereof:
Manufactured Housing Communities of Washington v. Washington, 13 P.3d 183 (Wash. 2000):
Under existing Washington and federal law, a
police power measure can violate amended article I, section 16
of the Washington State Constitution or the Fifth Amendment of
the United States Constitution and thus be subject to a
categorical "facial" taking challenge when: (1) a regulation
effects a total taking of all economically viable use of one's
property, Lucas v. So. Carolina Coastal Council, 505 U. S.
1003, 1019, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992); or (2)
the regulation has resulted in an actual physical invasion
upon one's property, Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868
(1982); or (3) a regulation destroys one or more of the
fundamental attributes of ownership (the right to possess,
exclude other and to dispose of property), Presbytery of
Seattle v. King County, 114 Wn.2d 320, 330, 787 P.2d 907
(1990); or (4) the regulations were employed to enhance
the value of publicly held property, Orion Corp. v. State, 109
Wn.2d 621, 651, 747 P.2d 1062 (1987).
Regulations have also been found unconstitutional because they violate substantive due process, whether or not a total taking or physical invasion has actually occurred. See Guimont v. Clarke, 121 Wn.2d 586, 608, 854 P.2d 1 (1993); Margola,121 Wn.2d at 649.
Read the dissents in
this case. Regulations have also been found unconstitutional because they violate substantive due process, whether or not a total taking or physical invasion has actually occurred. See Guimont v. Clarke, 121 Wn.2d 586, 608, 854 P.2d 1 (1993); Margola,121 Wn.2d at 649.
In Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 768 N.E.2d 1 (Ill. 2002), the Illinois Supremes struck down an eminent domain taking of property, consequently protecting private rights, and thus posing problems for land use planners. In Georgia Department of Transportation v. Jasper County, 586 S.E.2d 853 (S.C. 2003), the court held:
The public use implies possession, occupation,
and enjoyment of the land by the public at large or by public
agencies; and the due protection of the rights of private
property will preclude the government from seizing it in the
hands of the owner, and turning it over to another on vague
grounds of public benefit to spring from a more profitable use
to which the latter will devote it.
In County of Wayne v. Hathcock, 684 NW.2d 765 (Mich. 2004), and Bailey v. Myers, 206 Ariz. 224, 76 P.3d 898 (2003), it was held that "takings" of private property from private landowners so that such property could be sold to other private owners were not constitutional "takings" for "public use."
Here are some essays of articles discussing this issue which are posted on the Net:
