Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Syllabus 

The provision in the Fifth Amendment to the Constitution of the United 
States declaring that private property shall not be taken for public use 
without just compensation is intended solely as a limitation on the exercise 
of power by the Government of the United States, and is not applicable to 
the legislation of the States.

The Constitution was ordained and established by the pBarron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Syllabus 

The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without
just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the
legislation of the States.

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the
government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they
supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be
exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by
the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different
purposes.

This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of "The Mayor and City Council of Baltimore," to
recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was
survivor, were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the
deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for
paving, and over the health of Baltimore, diverted from their accustomed and natural course certain streams of water which flow from the range of hills
bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds,
[p*244] embankments and other artificial means purposely adapted to bend the course of the water to the wharf in question. These streams becoming
very full and violent in rains, carried down with them from the hills and the soil over which they ran large masses of sand and earth, which they
deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased to
be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. This injury was asserted to have been inflicted
by a series of ordinances of the corporation, between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing
even at the institution of this suit in 1822.

At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the original and natural course of the streams, the
various works of the corporation from time to time to turn them in the direction of this wharf, and the ruinous consequences of these measures to the
interests of the plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or proffered, but they justified
under the authority they deduced from the charter of the city, granted by the legislature of Maryland, and under several acts of the legislature conferring
powers on the corporation in regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health of the city. They
also denied, that the plaintiff had shown any cause of action in the declaration, asserting that the injury complained of was a matter of public nuisance,
and not of special or individual grievance in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a motion
in arrest of judgment. On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the
plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that
court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. [p*245]

The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart from the legislative sanctions of the state of
Maryland, and the acts of the corporation of Baltimore, holding out special encouragement and protection to interests in wharves constructed on the
shores of the Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the
water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just
compensation for the privation; but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the undisturbed enjoyment
of the right.

This right was interfered with, and the benefit of this property taken away from the plaintiff by the corporation avowedly, as the defence showed, for
public use, for an object of public interest -- the benefit more immediately of the community of Baltimore, the individuals, part of the population of
Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts
of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the
scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the
same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the
United States. The plaintiff will contend accordingly:

1. That the Mayor and City Council of Baltimore, though viewed even as a 
municipal corporation, is liable for tort and actual misfeasance, and that 
it is a tort, and would be so even in the state, acting in her immediate 
sovereignty to deprive a citizen of his property, though for public uses, 
without indemnification; that, regarding the corporation as acting with the 
delegated power of the state, the act complained of is not the less an 
actionable tort.

2. That this is the case of an authority exercised under a [p*246]

State, the corporation appealing to the legislative acts of Maryland for the 
discretional power which it has exercised.

3. That this exercise of authority was repugnant to the constitution of the 
United States, contravening the fifth article of the amendments to the 
constitution, which declares that "private property shall not be taken for 
public use, without just compensation," the plaintiff contending, that this 
article declares principles which regulate the legislation of the states for 
the protection of the people in each and all the states, regarded as 
citizens of the United States or as inhabitants subject to the laws of the 
Union.

4. That under the evidence, prayers, and pleadings in the case, the 
constitutionality of this authority exercised under the state must have been 
drawn in question, and that this court has appellate jurisdiction of the 
point, from the judgment of the Court of Appeals of Maryland, the highest 
court of that state, that point being the essential ground of the 
plaintiff's pretention in opposition to the power and discussion of the 
corporation.

5. That this court, in such appellate cognisance, is not confined to the 
establishment of an abstract point of construction, but is empowered to pass 
upon the right or title of either party, and may therefore determine all 
points incidental or preliminary to the question of title and necessary in 
the course to that inquiry; that consequently, the question is for this 
court's determination whether the declaration avers actionable matter, or 
whether the complaint is only of a public nuisance, and on that head, the 
plaintiff will contend, that special damage is fully shown here, within the 
principle of the cases where an individual injury resulting from a public 
nuisance is deemed actionable, the wrong being merely public only so long as 
the law suffered in the particular case is no more than all members of the 
community suffer.

Upon these views, the plaintiff contends that the judgment of the court of 
appeals ought to be reversed. [p*247] eople of the United States for 
themselves, for their own government, and not for the government of 
individual States. Each State established a constitution for itself, and in 
that constitution provided such limitations and restrictions on the powers 
of its particular government as its judgment dictated. The people of the 
United States framed such a government for the United States as they 
supposed best adapted to their situation, and best calculated to promote 
their interests. The powers they conferred on this government were to be 
exercised by itself, and the limitations on power, if expressed in general 
terms, are naturally and necessarily applicable to the government created by 
the instrument. They are limitations of power granted in the instrument 
itself, not of distinct governments framed by different persons and for 
different purposes.

This case was instituted by the plaintiff in error, against the City of 
Baltimore, under its corporate title of "The Mayor and City Council of 
Baltimore," to recover damages for injuries to the wharf property of the 
plaintiff, arising from the acts of the corporation. Craig & Barron, of whom 
the plaintiff was survivor, were owners of an extensive and highly 
productive wharf in the eastern section of Baltimore, enjoying, at the 
period of their purchase of it, the deepest water in the harbor. The city, 
in the asserted exercise of its corporate authority over the harbor, the 
paving of streets, and regulating grades for paving, and over the health of 
Baltimore, diverted from their accustomed and natural course certain streams 
of water which flow from the range of hills bordering the city, and diverted 
them, partly by adopting new grades of streets, and partly by the necessary 
results of paving, and partly by mounds, [p*244] embankments and other 
artificial means purposely adapted to bend the course of the water to the 
wharf in question. These streams becoming very full and violent in rains, 
carried down with them from the hills and the soil over which they ran large 
masses of sand and earth, which they deposited along, and widely in front of 
the wharf of the plaintiff. The alleged consequence was that the water was 
rendered so shallow that it ceased to be useful for vessels of an important 
burden, lost its income, and became of little or no value as a wharf. This 
injury was asserted to have been inflicted by a series of ordinances of the 
corporation, between the years 1815 and 1821; and that the evil was 
progressive; and that it was active and increasing even at the institution 
of this suit in 1822.

At the trial of the cause in the Baltimore county court, the plaintiff gave 
evidence tending to prove the original and natural course of the streams, 
the various works of the corporation from time to time to turn them in the 
direction of this wharf, and the ruinous consequences of these measures to 
the interests of the plaintiff. It was not asserted by the defendants, that 
any compensation for the injury was ever made or proffered, but they 
justified under the authority they deduced from the charter of the city, 
granted by the legislature of Maryland, and under several acts of the 
legislature conferring powers on the corporation in regard to the grading 
and paving of streets, the regulation of the harbor and its waters, and to 
the health of the city. They also denied, that the plaintiff had shown any 
cause of action in the declaration, asserting that the injury complained of 
was a matter of public nuisance, and not of special or individual grievance 
in the eye of the law. This latter ground was taken on exception, and was 
also urged as a reason for a motion in arrest of judgment. On all points, 
the decision of Baltimore county court was against the defendants, and a 
verdict for $4,500 was rendered for the plaintiff. An appeal was taken to 
the court of appeals, which reversed the judgment of Baltimore county court, 
and did not remand the case to that court for a further trial. From this 
judgment, the defendant in the court of appeals prosecuted a writ of error 
to this court. [p*245]

The counsel for the plaintiff presented the following points: the plaintiff 
in error will contend that apart from the legislative sanctions of the state 
of Maryland, and the acts of the corporation of Baltimore, holding out 
special encouragement and protection to interests in wharves constructed on 
the shores of the Patapsco river, and particularly of the wharf erected by 
Craig and the plaintiff, Barron; the right and profit of wharfage, and use 
of the water at the wharf, for the objects of navigation, was a vested 
interest and incorporeal hereditament, inviolable even by the state except 
on just compensation for the privation; but the act of assembly and the 
ordinance of the City are relied on as enforcing the claim to the 
undisturbed enjoyment of the right.

This right was interfered with, and the benefit of this property taken away 
from the plaintiff by the corporation avowedly, as the defence showed, for 
public use, for an object of public interest -- the benefit more immediately 
of the community of Baltimore, the individuals, part of the population of 
Maryland, known by the corporate title of the Mayor and City Council of 
Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts 
of 1796, ch. 68. As a corporation, they are made liable to be sued, and 
authorized to sue, to acquire and hold and dispose of property and, within 
the scope of the powers conferred by the charter, are allowed to pass 
ordinance and legislative acts, which it is declared by the charter shall 
have the same effect as acts of assembly, and be operative, provided they be 
not repugnant to the laws of the state, or the constitution of the state, or 
of the United States. The plaintiff will contend accordingly:

1. That the Mayor and City Council of Baltimore, though viewed even as a 
municipal corporation, is liable for tort and actual misfeasance, and that 
it is a tort, and would be so even in the state, acting in her immediate 
sovereignty to deprive a citizen of his property, though for public uses, 
without indemnification; that, regarding the corporation as acting with the 
delegated power of the state, the act complained of is not the less an 
actionable tort.

2. That this is the case of an authority exercised under a [p*246]

State, the corporation appealing to the legislative acts of Maryland for the 
discretional power which it has exercised.

3. That this exercise of authority was repugnant to the constitution of the 
United States, contravening the fifth article of the amendments to the 
constitution, which declares that "private property shall not be taken for 
public use, without just compensation," the plaintiff contending, that this 
article declares principles which regulate the legislation of the states for 
the protection of the people in each and all the states, regarded as 
citizens of the United States or as inhabitants subject to the laws of the 
Union.

4. That under the evidence, prayers, and pleadings in the case, the 
constitutionality of this authority exercised under the state must have been 
drawn in question, and that this court has appellate jurisdiction of the 
point, from the judgment of the Court of Appeals of Maryland, the highest 
court of that state, that point being the essential ground of the 
plaintiff's pretention in opposition to the power and discussion of the 
corporation.

5. That this court, in such appellate cognisance, is not confined to the 
establishment of an abstract point of construction, but is empowered to pass 
upon the right or title of either party, and may therefore determine all 
points incidental or preliminary to the question of title and necessary in 
the course to that inquiry; that consequently, the question is for this 
court's determination whether the declaration avers actionable matter, or 
whether the complaint is only of a public nuisance, and on that head, the 
plaintiff will contend, that special damage is fully shown here, within the 
principle of the cases where an individual injury resulting from a public 
nuisance is deemed actionable, the wrong being merely public only so long as 
the law suffered in the particular case is no more than all members of the 
community suffer.

Upon these views, the plaintiff contends that the judgment of the court of 
appeals ought to be reversed. [p*247]


