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Argument for Appellant.

constitution of 1879, in adopting the provision in words which had received a settled construction, adopted the existing interpretation, rather than one founded on a principle of the Spanish and French laws, which had been in part abandoned for the parish of Concordia as early as 1829, and altogether abandoned for the parish of Tensas in 1848, and which is in conflict with the spirit of our institutions.

Moreover, although it is not directly at issue in this cause, the court can take judicial notice of the fact that the public levees of the State, on the shores of the Mississippi River, are now a part of a system of public works undertaken by the United States for the improvement of the navigation of the river, and incidentally in coöperation with the State, for the protection of the country from overflow, by confining the waters of the river, and that such levees, whether made by the United States or by the State, are parts of one and the same system, and are planned and executed for both purposes.

The judges of the United States Circuit Court, in Hollingsworth v. Parish of Tensas, 4 Woods, 280, considered that the exercise of the police powers of the State, and the right of eminent domain, were questions of general jurisprudence, and not of local law, and held that according to the principles of general jurisprudence, private property could not be taken or damaged for public use without compensation, either by authority of the police powers of the State, or under the right of eminent domain.

This opinion remained the law of the Federal court until the decree in this case, but the state court, adhered to its doctrine that property can be taken, damaged, and destroyed without compensation, for the purpose of making and repairing public levees, in the exercise of the police power.

If any doubt could ever have existed that the distinction between the police power and the right of eminent domain is a question of general jurisprudence, and not of local law, such doubt has been solved by the prohibition of the Fourteenth Amendment, that no State shall deprive any person of property without due process of law. The words "due process of law," as used in the Federal constitution, do not mean the law and

Argument for Appellant.

jurisprudence of the State by which the wrong is worked. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would say to the States, you shall not deprive any person of property without due process of law, but you shall be the judges of what is due process of law; in other words, you shall not do the wrong unless you choose to do it. Due process of law in each particular case means such an exertion of the power of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.

It was in recognition of this principle that, in Head v. Amoskeag Manufacturing Co., 113 U. S. 9, this court said that, by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166. Being a constitutional exercise of legislative power, and providing a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.

To determine under what circumstances property can be taken in the exercise of the police power, as distinguished from the right of eminent domain, this court does not look to the jurisprudence of the State, but to the settled maxims of law, always understood to have been adopted for protection and security to the rights of the individual as against the government. The maxim, "Sic utere tuo ut alienum non ladas," is that which lies at the foundation of the power, and it is distinct from the right of eminent domain.

These police powers rest upon the maxim "salus populi est suprema lex." This power to restrain a private injurious use of property is very different from the right of eminent domain. It is not taking private property from the owner, but a salutary restraint on the noxious use by the owner contrary to the maxim "Sic utere tuo ut alienum non lædas."

Argument for Appellant.

The prohibition of the Fourteenth Amendment is directed to the States, and if the State, by its legislature, or by its courts, or other agency, can evade the prohibition by deciding for itself that such imperative necessity exists, and there is to be no appeal from its decision, the restriction would be rendered nugatory, and this part of the Constitution turned into mere nonsense.

Whether such imperative necessity exists as to justify the State in taking, damaging, and destroying private property for public purposes without compensation, in the exercise of the police power, is a question of Federal law, depending upon the facts of each case, which this court must determine for itself, and without regard to the decisions of the courts of the State.

It would be no answer to the complaint that the State was depriving a person of life, liberty, or property, to say that the State has decided that a condition of things exists to justify such violation of the prohibition, or has decided that it has not deprived the person of life, liberty, or property without due process of law.

As said by the court in Penrice v. Wallis, ubi sup., the answer does not present such a plea. It does not pretend to set up such overwhelming necessity, in the face of the facts stated in the bill.

The only contention of the defendants, admitting all the facts stated in the bill, is that plaintiff holds his property subject to a servitude imposed by the laws of Louisiana, and that the construction of public levees is a matter within the police power of the State.

If such be the law of Louisiana, that the lands of plaintiff, being adjacent to the Mississippi River, are subject to a servitude or easement, in the exercise of which the State can take, damage, and destroy his property for the purpose of making and repairing levees, roads, and other public or common works, without compensation, such a law is repugnant to and in conflict with the prohibition of the Fourteenth Amendment of the Constitution of the United States, unless it be pleaded and shown that there exists such imperative necessity as to justify the exercise of the police power of the State.

Argument for Appellant.

The restriction imposed by the Federal constitution upon the power of the State to deprive persons of life, liberty, or property, cannot be subordinated to the customs of France and of Spain, embodied in the statute laws of the State, nor can the Constitution of the United States be so interpreted that the State can decide for itself in each case what constitutes depriving a person of life, liberty, or property without due process of law, and such decision be binding on the courts of the United States.

Unless the statutes relied on by defendants provide a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury, they are null and void, and the defendants were made trespassers, without warrant or authority of law.

If, on the other hand, the general provision, embodied in article 156 of the state constitution, and in article 497 of the civil code, provide a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury to plaintiff's property, the compensation should have been first paid, and the defendants were proceeding to take, damage, and destroy the property of the plaintiff, in violation of the constitution and laws of the State.

In either case the plaintiff had a plain right to the equitable remedy by injunction, and the more so, because he would have had no remedy at all against the State, for the torts of its officers and agents.

The District Judge, with too much regard for the public interest, and too little regard for private right, allowed the defendants to proceed to construct the levee, by an ex parte order, upon their furnishing bond and security in the sum of only four thousand dollars.

This was manifest error, as just and equitable compensation had not been first made, and the plaintiff is left without a remedy, except by an action at law on the bond, and a personal action against the defendants for the balance.

It is therefore respectfully submitted that the judgment appealed from should be reversed, and the injunction reinstated, and the right of plaintiff to recover his compensation

Opinion of the Court.

for the injury by an action on the bond, and by a personal action against the defendants, be recognized and reserved, and the cause remanded for further proceedings.

Mr. M. J. Cunningham, Attorney General of the State of Louisiana, and Mr. T. M. Miller for appellees.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

By an act of the general assembly of the State of Louisiana, approved February 14, 1879, there was created a board of state engineers, whose duty it was to make a survey of the watercourses, public works, and levees of the State. They were to report to the governor of the State the improvements which they should deem necessary, and the construction of such levees as were of prime importance to the State at large and were beyond the means of the parochial authorities. They' were also, in said report, to furnish estimates and specifications of work necessary to be done. It was thereupon made the duty of the governor to advertise for proposals to make such improvements and construct such levees as were recommended, and to award the contracts to the lowest responsible bidder, under proper and sufficient bonds for the faithful performance of their contracts; and upon completion of said works it was made the duty of the board of engineers to examine and measure the work and to certify to its correctness; and, upon approval by the governor, the auditor of public accounts of the State was to draw his warrant therefor, payable out of the general engineer fund, or such fund as should be provided by law.

In the exercise of the powers thus conferred, the board of engineers reported to the governor that it was necessary to construct a levee across complainant's plantation; that such levee was of prime importance to the State at large; would have to be of large size; that the river front was a dangerous and constantly caving bank, and that necessarily the levee had to be located some distance from the river; and they

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