Page:United States Reports, Volume 545.djvu/564

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Cite as: 545 U. S. 469 (2005)

Thomas, J., dissenting

chise or another form of state monopoly, or to companies that operated in conditions of natural monopoly”).

To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads. See Lewis §167, at 230. These statutes were mixed; some required the private land owner to keep the road open to the public, and others did not. See id., §167, at 230–234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common carrier duties. See, e. g., M. Horwitz, The Transformation of American Law 1780–1860, pp. 51–52 (1977).

These early uses of the eminent domain power are often cited as evidence for the broad “public purpose” interpretation of the Public Use Clause, see, e. g., ante, at 479480, n. 8 (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae 6–7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of “public use.”[1] As noted above,

  1. Compare ante, at 479, and n. 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “‘use by the public’ test” “eroded over time”), with, e. g., Ryerson v. Brown, 35 Mich. 333, 338–339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago, 204 Ill. 576, 581–584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt. 648, 652–656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332–334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin, 21 W. Va. 534, 546–548, 556–557, 566–567 (1883) (grist mill and private road had to be open to public for them to