
    John Dunn, vs. The City Council of Charleston.
    
      Phe act of the legislature, of 1817, authorising the City Council of Charleston, for the purpose of widening the streets, to cause “lots” to be assessed, and to tal'e them at the assessed value, only relates to such portions of land as shall be actually necessary for the street.
    
    
      If so construed as to give the council the power of taking snore, the act would be unconstitutional.
    
    This was an application to a judge at. Chambers, for a prohibition, to restrain the city council from taking from the plaintiff a certain lot of land- in Charleston, for the taking of which, they pretended to have derived an authority from an act -of the legislature, passed in December 1817.
    The suggestion states “that the city council, under color of certain acts of assembly, had pretended to a right to take -the lands of the plaintiff a part of which was necessary for a public street. That the plaintiff did not object to yield up so much of his land as was required'for the street, but the remainder of his land, consisting of a large and valuable lot, he stiff held. But the city council pretended, that the legislature authorized them to take not only what was wanted for a street, but the whole; and they had actually sold the whole lot, after taking all that was necessary for public purposes, for double the amount which they offered to give him for if.”
    In the answer of' the city council to this suggestion, they admit they have taken the whole lot of the plaintiff, alledging that they had a right to do so by the act of the legislature above-jnentioned.
    The first clause of the act, is in the following words: “Whenever the city council of Charleston shall think it expedient tó widen any street, lane or alley, they shall first submit the plan of the intended improvement to aboard of nine eoin#-missioners, to be named and appointed from time to time by the legislature, and if approved and sanctioned by the said board, then the said city council shall have full power to purchase the Jots fronting on such street, alley or lane, and the fee-simple of such lot or lots shall he vested in the city council from the day of the deed of sale.” The second clause provides “that in case the owner or owners of such lot or lots, fronting on such street, alley, or lane, shall refuse to sell his or her lot or lots, or shall demand for the same what may be deemed an unreasonable price by the city council, then the city council shall nominate and appoint not less than three freeholders, resident in the city who shall meet an equal number to be named and appointed on the part of the owner or owners, to determine and fix on the real and true value of such lot or lots, with full power in the commissioners, appointed as aforesaid, in case of disagreement, to call in one other commissioner, and on the city council paying the full value of said lot or lots, fixed and determined on in the manner above designated, the fee-simple of the said lot or lots shall be vested in them. The'judge being of opinion that the act authorised the city council to appropriate the whole of the lot belonging to the plaintiff and that they had proceeded according to its provisions, refused the prohibition. A motion was now made to reverse that decision, and for an order that a prohibition should issue.
    
      Hunt, for the motion.
    If the city council claims by contract, it might have gone into a court of equity, to enforce it. The contract should have been proved, and the disputed facts tried by a jury, not by certificates and affidavits. If the right-rests on contract, the council should he prohibited from gaining possession, under pretext of executing the act of the legislature.
    I am to enquire first, whether the act of the legislature au-thorised this proceeding, on the part of the city council; and next, if it did, whether the act was constitutional.
    A statute is to be construed according to its object. What the object of this act was,_we may collect from it’s title. It is “an act to appoint aboard” &c. “with power to declare in what cases, the streets, lanes and alleys of the city, shall be widened.” The object of this act, was, the widening and improvement of. the streets; and we do not perceive how that object is to be pro-' moted bj’ a construction which will give to the council the power of speculating on the property of the citizens; which has been done in this instance, by selling the lot at an advanced price.
    They are authorized to cause “lots” to be assessed, and to take them at the assessed price. No precise definition can be given to the word lot; other than that it is a portion of land. The portions of land actually requisite for the street, are lots; and we think that the words of,the act, will be satisfied and its spirit conformed to, by thus restricting its meaning. (ML Hunt, was stopped by the’court, who requested to hear the ether side.)
    
      Toomer, contra.
    Thought that the legislature intended to authorize the city council to purchase compulsorily, the whole of lots, lying on streets intended to be widened, and that this would appear upon referring to the several acts of the legislature on the subject, and the inconveniences which had been found to result'fromevery other mode, in which it had been attempted to-exercise this power. He referred to" the acts of 1810, 1811, '1812, 1817 & 1818.
    First the council were authorized to take so much land as should he necessary for the actual street. Upon this, individuals complained that fragments of lots of no value were left on their hands. To remedy this, the council were required to purchase such mutulated lots as were rendered of no value, and to pay for them by causing assessments to be made on such property lying on the street, as had been enhanced in value by the improvement of the street' This was not found to be satisfactory, and it was thought advisable to give the eouncil the power of taking, iu every instance, the whole lot. The object of the legislature was not merely to provide for widening the street, but to prevent complaints and embarrassment.
    That the lot has been sold at an advance of price, does not shew’that the plaintiff has suffered* any injustice. The increase of price has been cccasioned by the improvement of the street, and if he had retained his lot, he would have been liable -<o be assessed for the enhanced value,.
    
      We do not strictly claim the land .by contract; bat- we rely on the consent of tile plaintiff, to subject his lot to the dispositions of the act of the legislature. Three cases are provided' for by the act: First, if the proprietor will sell, the council are-authorised to purchase. If the proprietor consents to sell, but ■there is a disagreement respecting the price, commissioners shall be mutually appointed to assess. If he refuses to sell or neglects to name his commissioners, the council may appoint alone.-
    Powers of government are original or supreme, and delegated. The government of the United States is one of delegated powers. In the case of Maryland and M‘ Cullock, ’4. Wheat. 415, it was held that the government • might exercise implied powers, as means pf executing its delegated powers; and that if the means were appropriate, the degree of their necessity was a matter of legislative .discretion, and not to be •judged of by the court. If the state government were of this description, the doctrine would embrace our case. No one -doubts the power of the legislature to make roads. To au- ■ thorise the city council to take lots for. the purpose, at an assessed price, was an appropriate means of exercising this power, and according to the case quoted, was a matter for legislative-discretion.
    But on how much stronger ground do we .stand, when it -Is recollected that the state government is one of original pow- • ers and the legislature supreme; unless in so far as restrained by the constitution. Before the adoption of the constitution^ there was no limit to the power of the legislature: Thomasf vs. Daniel, 1 Cord, 359, 60. The legislature possesses this -power unless the constitutionjias taken it away. Whatprovi-sion of the constitution has restrained them in this respect.
    The 2d sec. of the 9th art. of the constitution, provides that no one shall be deprived of property, but by the judgment of his peers, or the law of the land. The right of eminent domain was the law of the land, previous to the adoption of the constitution, and was not abolished by it. Lindsay and others, vs.. The Commissioners of East Bay street, 2 Bay, 38. It-may be-considered as a constitutional exception to the constitution itself, •3 Eq. Rep. 78. No one contends that this provision restrains fhe legislature from taking the land of individuals, which is Actually necessary for roads. They may take property fin? purposes of public necessity or utility. But who is to judge of thi» necessity or utility? According to the opinion of the court of the United States, the legislature itself. The taking of w hole lots, was an appropriate means of effecting the object — the widening of the street: and courts are not to judge of the degree of the necessity.
    There are analagous instances of the exercise of power, the constitutionality of which every one admits. The labor of the citizens is taken by law, for the purpose of repairing roads; nor arc courts and juries called upon to decide when repairs are necessary. Not only is land taken for roads, but timber and other materials, adjacent. The assessing of property which is enhanced in value by the improvement of the street, is the taking away of the property of the citizen.
    
      Haig, against the motion.
    We are not warranted in giving to the Word “lots,” any signification but such as is attributed to it by it, by general usage. The portions of ground so designated are universally understood.
    Mr. Haig, quoted Judge Patterson’s opinion, 2d. Dallas, 313, that the legislature may take private property for publió purposes, making compensation to the individual. The compensation may be ascertained in three ways; 1st. by the verdict of a jury; 2d. by agreement, and 3d. by commissioners mutually appointed. The last of these modes was adopted in the present instance, and if the plaintiff had any constitutional right to resist the taking of his lot; he abandoned it, by joining in the Appointment of commissioners.
    • Hunt, in reply.
    The court must decide, first, whether the legislature had a right to take land for the actual street; and secondly, whether it could take any thing more.' 1
    The power of the legislature, is rested on the right Of eminent domain, which is described by writers oh the subject", to be the right of taking the property of individuals for purposes of -public necessity or utility, of which necessity or utility the government is the sole judge. This is emphatically the right of despotism, and is so termed. If this right exists, all property ijmst be held at the. will of the legisiaturej which is opposed tQ fell the notions of the people of this country on the subject of limited and constitutional government.
    Wc deny that the power of the legislature is supreme. Supreme power, according to our constitutions,- resides no where but in the people assembled in original convention. Legislative pow'er is delegated to the two houses of general assembly, -in matters where they are not restrained by the constitution. Bui It does hot appear that this right is a part of legislative power, it seems to appertain, in part at least, to the executive. It is fof those who contend for the right, however, to shew where it is vested.
    Unquestionably there must be roads in every civilized country, and if there is no constitutional authority to warrant it, the public must do wrong to individuals and take the right of way over their lands. If it depends on this right of necessity, the principle cannot be extended further than the most absolute necessity requires. Necessity, does not mean convenience. But for the purposes of roads, it is not necessary to take the soil at .all. The right of way is all that is required, which docs a temporary injury to the individual, without divesting him of the title to his property. If we are right in supposing the power of the legislature delegated, there' cannot be a sub-delegation of that power to the City Council of Charleston.
    The argument against the motion, is, that the legislature, having the power to make roads, may at their discretion, use al] means which they may think appropriate to that object. If so,, the power is unlimited and despotic, and there can be no question for courts, on the subject of tlie violation of the rights of property, by the government. If the courts can exercise any con.rol, it is no longer the right of eminent domain. The case of Lindsay and others, vs, the Commissioners of East Bay Street, is not authority, for the judges were equally divided. The rights of the citizens of this country, are guarded not by-the constitution alone, but by the general and universally recognized principles' of right and wrong. If the legislature may. take' from this individual, property to the amount of one or two-thousand dollars and give it to the City Council, they may do so to any amount, they may take his whole property.
    
      The constitution provides that the right of trial by jury, shall be preserved inviolate as heretofore. The rights of the citizen are not to be submitted to extraordinary tribunals. 2 Dali. 213;'Serf, on Common Lena, 347. The compensation to be given, under this act of the legislature, is fixed by commissioners, not deciding under oath nor having power to compel the attendance of witnesses. The citizen has not only the right to a trial by jury, but by a jury as heretofore, instructed by independent judges, selected for tlícir knowledge and integrity, and placed above the reach-of ordinary temptation.
    We deny that the legislature has the right, which is assumed to be admitted, to assess property which is enhanced in value by the improvement of the street, to pay the expense of making it. On the same principle, property lying any where else might be taxed for the same purpose. The legislature has no right to improve my property, against my will, at my ex' pence.
   The opinion of the court isas delivered by

Mr. Justice JVott.

This case presents the two following questions for the consideration of the court:

1st. Whether the act of 1817, authorizes the City Council to take any more of the land belonging to the plaintiff) than was necessary for the purpose of widening the street?

2d. If it does, whether the legislature, in delegating such authority, have exceeded their constitutional powers?

The argument appears to me to have taken a much more .extensive range than was necessary to the decision of the question submitted. In the course of the discussion, an inquiry has been made, not only into the power, and the extent of the power which a government possesses to appropriate the property of individuals to public purposes; (which by civilians, is called the eminent domain;) but also in what branch or department of the government that power is vested.

With regard to the first, 1 think, we may, without any affectation of learning, venture unhesitatingly to affirm that every government, whatever may be its form, must possess such a power. It is an essential attribute of sovereignty, without which no government can exist. To what other various-■objects the principle extends, is not now necessary to be in-*-quired; but that it embraces the right to take private property for any public purpose, I think, too clear to admit of doubt^ The laying out of roads, cutting canals, building fortifications,. erecting public buildings, and even establishing of towns, are •matters of public interest and utility, which frequently render it indispensable that private right should yield to public necessity, and that individual interest should sometimes be sacrifi.ced to the public good.

I am also of opinion, that as a general principle, the branch of the government in which such power is vested, must judge of the necessity of exercising it, and the extent to which it may be exercised; and in the exercise of which discretion^ it- cannot be controlled by any other-' branch. I do not know that it is necessary to inquire to what branch of the government the power belongs. But if it were necessary,, it does not appear to me that it would be a question of difficult solution. I have already said that it is an essential attribute of sovereignty. Wherever the sovereign power is lodged, that constitutes a part. In absolute monarchies, all power centres in the monarch; in mixed governments, it will depend upon the structure .of the constitution. In England, I take it, that it is vested in the king and parliament jointly. For although the parliament is said to be omnipotent; yet as the king has a negative upon the laws, the expression regards him as constituting an integral part of the parliament. In republics, the sovereign power is in the .people, but éxcept in pure democracies is exercised by their representatives. The American.states maybe called representative republics. In some of them, the executive constitutes a part of the legislative authority, as in England; in which case, this eminent domain is in these two branches of the government. In South Carolina, I think, it is lodged in the legislative body, which consists of a senate and house of representatives.

I do not consider the judiciary as possessing any part of it.. The judges are the ministers of the law. Their province is limited to the exposition of the law and of the constitution. The legislature therefore possesses all the power which the people j&emselves possess; where it is not restricted by theyonstitutipjt Hnd where the power is not delegated to any other branch of 'department of the government. It is said, that the power exercised over the life and liberty of the citizen, is a part of the eminent domain, in which the judiciary participates, and therefore it may exercise a controlling power over the acts of the legislature. But 1 apprehend that this is a mistake. The judiciary cannot create an offence nor prescribe a punishment. It can only administer the law according to the constitution. An act of the legislature is never referred to the judiciary, to determine whether it is just or unjust, but whether it is constitutional. I am not aware of any case where the judiciary can declare a constitutional law void. If the legislature should declare that picking an apple from a neighbour’s orchard, or a cabbage from his garden, should be a capital felony, although sve might think it severe and cruel, we should be bound to obey.

The right of the court to'control the legislature, is derived from the constitution. It is indeed the constitution itself •which controls and not the court. Being the supreme or fundamental law, the legislature, as well as the judiciary, must conform to it. Whenevér, therefore, an act of the legislature-, comes in contact with the constitution, the latter must prevail. It is thus that the judges, as the organs of the constitution, declare an act of the legislature inoperative, because it clashes with the supreme law. I cannot conceive upon what grounds the judiciary can claim a supremacy over the legislature, as long as they confine themselves within the pale of the constitu- - tion. Thy people have consigned to each branch of the government its respective powers, and - the limits of its authority are to he found only in the constitution, and it would be an usurpation in either to invade the province of the other. .

But it is unnecessary to pursue this subject in the present; case, since we profess only to enquire what the legislature have done, and whether they have acted within the scope of their" constitutional power. The first depends upon the construction to he given to the act'of 1817. If we confine ourselves to the letter of .the law, it certainly will admit of the construction contended for on the part of the city council: but Lord Coke says, “ Qui hmret in litera, heeret in cortice.” It is taking a superficial view of m act; to adhere to its letter. We must look to the spirit and design of the law. When we look through •the several acts of the legislature, the object is apparent. The first act on the subject authorized the council to take as much as should he necessary for the purpose cf widening the street and no more. This led to complaints on the part of the landholders, that they received compensation for the part which was taken off only, while the fragment which was left, was of no value to them. The next, required the council to take the whole, where the owner did1 not wish to retain the remaining; part. The provisions of the last act have been quoted.

Through the whole we observe a scrupulous regard to the rights of the individual and a manifest disposition to do him justice. The object contemplated, is the widening of the street, but the owner of the lot is to be indemnified. The City Council arc authorized to take what is sufficient for the purpose contemplated. They aro required to take the whole, if the owner requires it; but they are not authorized to arrest from him what is not necessary, against his will. The act authorizes them to take the “lot or lots fronting on such street, alley or lane,” &c. The word lot is of ambiguous import, and although when speaking in relation to town lots, we usually have reference to some particular portion or section of the town, yet we have no definite idea of any given quantity of land. The word lot is sometimes used in reference to an enclosure, without regard to the quantity of land embraced. In the present case, it must mean either all the land that the plaintiff owned, or so much as ivas necessary for the street, and from any thing that could have been known a priori, be might have owned several acres more than was necessary for that purpose. Suppose the act had made use of the word land, instead of lot, would it have authorized them to have taken all the land, be it more or less, which he might have had theref I apprehend not. The words “lot” and “land”6 may be considered synonymous in the construction of this act. I am of opinion, therefore, that the construction which best meets the views of the legislature, and which best comports with the true spirit and design of the law, is to give to tbe City Council the power to take as much land, or such parts of U®? lots, as is-necessary for the street and no more.

It has been contended that the legislature may have considered, that more than merely enough to run the street upon, might be necessary, to enable them to carry into effect that specific object, and therefore intended to give the whole, as timber, growing on adjacent land, is sometimes given for the purpose of keeping in repair a road which is authorized tobe laid out: and that the extent as well as the-existence of the necessity, is a matter of legislative and not judicial discretion. If the act had in express terms declared, that the whole was necessary, and had in words too strong to admit of any other construction, authorized the taking of the whole of the plaintiff’s possessions, it might Shave presented a question of no little delicacy and perhaps difficulty. But no such difficulty occurs in this case. The suggestion states expressly that the City Council, after taking what was necessary for the street, have taken the remainder of the lot, and have actually contracted to sell it at a considerable profit. That statement is not denied by the answer, but tbs proceeding is -attempted to be justified under the act ¡of the legislature.

'This brings me to the second question, which is, whether the legislature has the constitutional right of taking the proper ty of one individual and transferring it to another, or to a body corporate for their own individual benefit and emolument. That is a position however, which the council have not-attempted to maintain, and from the construction which’ has •been given to the act, it has become unnecessary that it' Should be decided. • If however, it were necessary, it does not appear to me to be one of difficulty.

The constitution declares, “that the trial by jury shall be preserved as heretofore.” It also further'provides, that no free, man shall be “disseized of his freehold, liberties or privileges, or out-lawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or by the law of .the land.” Various opinions have been enter tinned of the meaning of those words, “the law of the land,” but all the commentators have considered them as intending, in some way or other, to operate as a check upon the exercise of arbitrary power. Our constitution is based upon certain known and recognized principles of common law and common justice. Any act of partial legislation, which operates oppressively upon one individual, in which the community has no interest, is not the law of the land: Thus for instance, to subject a person to a capital or other punishment who had committed no crime, to convict one of an offence, otherwise than according to the or-' dinary course of justice, to take the property of one man aucf give it to another, would all be. contrary to those immutable principles of justice and common law, which have been consecrated by universal consent from time immemorial,’ and which are secured to us by the plain and unequivocal language of the constitution. Such acts as these would go to deprive a man of his “life, property and privileges without the judgment of his peers,” and contrary to “the law of the land.”

Hunt, for motion,

Toomer & J£aig,_ contra:.-.

Such would be the effect of the act in question, to give it the construction contended for by the City Council, because the proceedings admit that they have taken from the complainant more of his land than was necessary for widening the street, and that against his consent. The judges would, therefore, he authorized to declare it inoperative and void. Noton account of any inherent power in the judiciary to control the sovereign authority of the state; but by virtue of their constitutional duty, so to expound, an act of the legislature as to make it conform to the constitution, which is the supreme law of the land. But it is not necessary to pursue this inquiry, as the question does not. necessarily occur in this case, and I have taken it up only, lest it might be supposed I entertained some doubts upon the subjects I am of opinion the prohibition ought to be granted.

It has been intimated in the course of the argument; that the City Council are entitled to the land in question, by purchase from the owner. If so, they may proceed upon their contract, to compel him to make titles. That is a question which could not be heard isi this courts and it is not the intention of the court, by this decision,' to prejudice their claim in that respect.

Jtiichardson & Johnson, Justices concurred».

Huger, Justice

— I concur in this judgment, not because the act has not given the power contended for, hut because that act, ■so "far as relates to the whole lot is unconstitutional.

Colcock, Justice

—I.concur in the result, that the prohibition do issue.  