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Subject Area: Law
Topic: The American Revolution and Constitution

§ 166.: Involuntary alienation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 166.

Involuntary alienation.—

It is true with personal as with real property, that as a general rule the property of one man cannot by legislative enactment be taken away and given to another. Not only is this true in respect to known and recognized owners of personal property, but it is also true, where the property is not claimed by any visible or known owner. Thus it was held in North Carolina to be unconstitutional for the State by statute to appropriate the unclaimed dividends of private corporations to public uses.2 For the same reasons the legislative diversion of a bequest to a different use, than what was provided by the donor, was held to be unconstitutional, although in both cases the State was the beneficiary. The diversion was an interference with the reversionary interest of the donor’s heirs.3 But, notwithstanding this general rule, there are a few exceptional cases in which the State may lawfully dispose of one’s personal property against his will. They are princicipally the same as have already been explained and justified in reference to the involuntary alienation of real property;1 and, the reasons for this exercise of police power being the same in both cases, there is no need for a repetition in this place. It seems to be very doubtful whether there is any room for the application of the principles of eminent domain to personal property. Mr. Cooley says that the State may in the exercise of its eminent domain, appropriate to a public use private property of every description.2 This is confounding the meaning of terms. Eminent domain means that superior and absolute right of property which the State, as the legal representative of organized society, has in the lands within its borders, and subordinate to which all private property therein is held. In cases of extreme public necessity, it is quite probable that the State may appropriate the personal property of the citizen on payment of its full value. At least this is the case in time of war. The governments of all civilized nations exercise this power of appropriation of personal property, in order to supply themselves with whatever is needful in the prosecution of the war; and the forcible and irregular seizure of property by military commanders has been justified, when the necessity was urgent and such as will admit of no delay, and where the civil authority would be too late in providing the means required for the occasion.3 Not only does the State, in time of war, appropriate whatever personal property it may need for the prosecution of the war, as food or ammunition or weapons of warfare, but it more frequently makes forced loans of capital from its people by compelling them to accept its treasury notes as legal tender in payment of debts both public and private.4 And it is quite likely that the State may, in any other case of extreme necessity, appropriate whatever of private property may be neeedful to satisfy some urgent general want. Suppose, for example, in the case of a general failure of the crops, a famine should occur, and those who did possess stocks of provisions refused to sell at any reasonable price, or refused to sell at all, while people were brought to the extremity of starvation. Could not the State compel those, who had a “corner” on the provision market, to deliver up their property for the public good, on payment of a reasonable price? Every one has a right to put on his goods whatever price his judgment, his cupidity, or other feeling, may prompt, and the State cannot ordinarily regulate the price of commodities.1 But when the public want of food becomes so great, that the failure to satisfy it will be sure to give rise to serious disturbances of the public peace and the violent appropriation of the food that is denied them, it is idle to speak of the sacredness of private property. It cannot be doubted that an official appropriation of articles of food, under circumstances of such urgent necessity, would be judicially justified on the plea of necessity, however illogical it may seem. But all other means of satisfying the public hunger must first have been exhausted, before the selfish proprietor of the scarce articles of food may be forcibly subjected to instruction in the graces of Christian charity.2

[2]University of North Carolina v. N. C. R. R., 76 N. C. 103 (22 Am. Rep. 671).

[3]Trustees Brooks Academy v. George, 14 W. Va. 411 (35 Am. Rep. 760).

[1]See ante, § 138.

[2]Cooley Const. Lim. 649, 652, 653.

[3]Farmer v. Lewis, 1 Bush (Ky.), 66. See Harmony v. Mitchell, 1 Blatchf. 549; Mitchell v. Harmony, 13 How. 115. See Republica v. Sparhawk, 1 Dallas, 363; Parham v. Justices, 9 Ga. 341.

[4]See ante, § 91.

[1]See ante, § 107.

[2]As to the sale of estrays, see post, § 175.