The Public Purpose
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
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.
(1937)("one person's property may not be taken for the benefit of
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:
Housing Communities of Washington v. Washington, 13 P.3d 183 (Wash.
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
You may read the dissents
in this case at the foregoing link.
Regulations have also been found unconstitutional because
they violate substantive due process, whether or not a total taking or
physical invasion has actually occurred.5 See Guimont v. Clarke,
121 Wn.2d 586, 608, 854 P.2d 1 (1993); Margola,121 Wn.2d at 649.
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.
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: