this guy wants to build a hotel on Souter's property.
Sounds like a good idea right?
freestarmedia.com;
I am unclear what the above is about but you need to read up on Eminent Domain.....not that it will do much good but at least I then can tell you, you're an idiot. Now I have to assume that you are ignorant on the subject:
NATIONAL EMINENT DOMAIN POWER
Overview
''The Fifth Amendment to the Constitution says 'nor shall private property be taken for public use, without just compensation.' This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.'' Eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.'' 161 In the early years of the nation the federal power of eminent domain lay dormant, 162 and it was not until 1876 that its existence was recognized by the Supreme Court. In Kohl v. United States 163 any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any State. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power, 164 but once this is conceded the ambit of national powers is so wide- ranging that vast numbers of objects may be effected. 165 This prerogative of the National Government can neither be enlarged nor diminished by a State. 166 Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State. 167
''Prior to the adoption of the Fourteenth Amendment,'' the power of eminent domain of state governments ''was unrestrained by any federal authority.'' 168 The just compensation provision of the Fifth Amendment did not apply to the States, 169 and at first the contention that the due process clause of the Fourteenth Amendment afforded property owners the same measure of protection against the States as the Fifth Amendment did against the Federal Government was rejected. 170 However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state ''legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation. . . . The mere form of the proceeding instituted against the owner . . . cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.'' 171 While the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings.
It should be borne in mind that while the power of eminent domain, though it is inherent in organized governments, may only be exercised through legislation or through legislative delegation, usually to another governmental body, the power may be delegated as well to private corporations, such as public utilities, railroad and bridge companies, when they are promoting a valid public purpose. Such delegation has long been approved. 172
Public Use
Explicit in the just compensation clause is the requirement that the taking of private property be for a public use; the Court has long accepted the principle that one is deprived of his property in violation of this guarantee if a State takes the property for any reason other than a public use. 173 The question whether a particular intended use is a public use is clearly a judicial one, 174 but the Court has always insisted on a high degree of judicial deference to the legislative determination. ''The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one.'' 175 When it is state action being challenged under the Fourteenth Amendment, there is the additional factor of the Court's willingness to defer to the highest court of the State in resolving such an issue. 176 As early as 1908, the Court was obligated to admit that notwithstanding its retention of the power of judicial review, ''no case is recalled where this Court has condemned as a violation of the Fourteenth Amendment a taking upheld by the State court as a taking for public uses. . . .'' 177 How ever, in a 1946 case involving federal eminent domain power, the Court cast considerable doubt upon the power of courts to review the issue of public use. ''We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.'' 178 There is some suggestion that ''the scope of the judicial power to determine what is a 'public use''' may be different as between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former, 179 but it may well be that the case simply stands for the necessity for great judicial restraint. 180 Once it is admitted or determined that the taking is for a public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature or the body to which the legislature has delegated the decision, and is not subject to judicial review. 181
At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term ''public use'' was synonymous with ''use by the public'' and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago. 182 The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such ''definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. . . . Public safety, public health, morality, peace and quiet, law and order--these are some of the . . . traditional application[s] of the police power. . . .'' Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. ''For the power of eminent domain is merely the means to the end.'' 183 Traditionally, eminent domain has been utilized to facilitate transportation, the supplying of water, and the like, 184 but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent. 185
The Supreme Court has approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker, 186 a unanimous Court ob served: ''The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.'' For ''public use,'' then, it may well be that ''public interest'' or ''public welfare'' is the more correct phrase. Berman was applied in Hawaii Housing Auth. v. Midkiff, 187 upholding the Hawaii Land Reform Act as a ''rational'' effort to ''correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly.'' Direct transfer of land from lessors to lessees was permissible, the Court held, there being no requirement ''that government possess and use property at some point during a taking.'' 188 ''The 'public use' requirement is . . . coterminous with the scope of a sovereign's police powers,'' the Court concluded. 189
caselaw.lp.findlaw.com |
