Public Purpose Doctrine

• Author: Harry N. Scheiber
• Pages: 2073-2076

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The DOCTRINE of public purpose has been used, in the course of American constitutional history, as a standard by which courts have determined the legitimacy of state EMINENT DOMAIN and taxation legislation. In different periods the doctrine has been mobilized to advance divergent ideological causes and varying constitutional interpretations.

The first distinct phase in the doctrine's history ran from the early nineteenth century to the 1870s, when it was prominent as a justification for new and often far-reaching uses of eminent domain and taxation. During that period the doctrine was a bulwark of positive government. From the 1870s to the WORLD WAR I period, the doctrine became something quite different in the hands of conservatives who sought to enshrine laissez-faire policy as constitutional law. Arguments treating the public purpose doctrine as a limitation on government action were often prominent, in the new constitutional view of VESTED RIGHTS, as arguments based on FREEDOM OF CONTRACT. A third phase began in the 1930s, when state and federal courts were confronted with challenges to urban slum clearances and redevelopment projects that involved new uses of both eminent domain and taxation powers. Again the doctrine of public purpose found a prominent place in constitutional law, with legal opinion and judicial rulings seriously divided for a time as to what view of public purpose ought to prevail.

Formulation of a "public purpose" standard as a canon for testing the legitimacy of governmental action first became prominent in American decisions when states began to expand the reach of their transportation policies in the early nineteenth century. Projects such as the great Erie Canal enterprise in New York, and similar public works in other states, required powers of eminent domain for the agencies responsible for construction. When legislatures devolved the eminent domain power upon private chartered corporations that built bridges, roads, canals, and railroads, there was widespread agreement that some constitutional limitation should be formulated to prevent indiscriminate delegation of such high sovereign powers. Legal commentators and judges often invoked the Fifth

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Amendment's reference to PUBLIC USE as a limitation upon eminent domain TAKINGS OF PROPERTY by state authority; many state constitutions used the same phrase in their takings clauses, and even when no express constitutional limitation referred to public use the state courts read it into their law as a fundamental principle of justice. Was a privately owned turnpike corporation engaged in a "public" activity, however? How was the distinction between "public" activities and those merely "private" to be drawn?

Gradually the phrase "public purpose" assumed nearly the same standing, as a measure of legitimacy, as "public use." One of the early decisions on turnpikes, for example, acknowledged the uniquely "public" character of such roads. They were, a New York judge declared in 1823, "the most public roads or highways that are known to exist, and in point of law, they are made entirely for public use, and the community has a deep interest in their construction and preservation." A few years later, New York's chancery court upheld the exercise of eminent domain powers by a privately owned railroad corporation. It was legitimate for the state to devolve the power to expropriate, on payment of compensation, the court declared, "not only where the safety but also where the interest or even the expediency of the state is concerned." In WEST RIVER BRIDGE V. DIX (1848), the earliest Supreme Court case during the first sixty years of the Republic's history where the eminent domain power was ruled upon directly, it was a direct taking by a state?not devolution of the power on a corporation?that was challenged; but the opinions in the case left no doubt that states enjoyed wide discretion in deciding what activities should qualify as "public" in use or purpose, hence were eligible to exercise the eminent domain power if vested in them by the legislatures.

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