1. 261 U.S. 525 (1923); in Bailey v. Drexel Furniture Company, 259 U.S. 20 (1922), the Court voided the Child Labor Tax Law, passed in 1918. This was an active Court, sensitive to issues of economic regulation; but it is wrong to describe it as relentlessly reactionary. The same Court struck down the Nebraska law which outlawed foreign language teaching in grade schools, Meyer v. Nebraska, 262 U.S. 390 (1923), and upheld the Packers and Stockyards Act of 1921, Stafford v. Wallace, 258 U.S. 495 (1922).

2. 260 U.S. 393 (1922).

3. See Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 924, 60 Atl. 924 (1905). The right was implied in a contract for the sale of mineral rights, according to the Pennsylvania cases, although the Supreme Court of West Virginia held otherwise, in Griffin v. Fairmont Coal Co., 59 W.Va. 480, 53 S.E. 24 (1905). Since the deed in Mahon specifically covered the situation and excluded any right to damages for nonsupport, these cases did not affect Pennsylvania Coal Co. v. Mahon one way or another.

4. Brief on behalf of the City of Scranton, Intervenor, Pennsylvania Coal Co. v. Mahon, 3. Pennsylvania, as early as 1891, had passed a law requiring ‘owners of adjoining coal properties to leave … a pillar of coal … along the line of adjoining property, of such width, that … will be a sufficient barrier for the safety of the employees …’. This act was upheld in Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).

5. Pennsylvania Coal Co. v. Mahon, Brief of the Att'y Gen'l of Pennsylvania, Amicus Curiae, 5.

6. Brief, City of Scranton, 3. The city claimed, too, that many coal companies subleased coal lands to ‘scavenger’ companies, that is, ‘small corporations … to whom one of the large operators leases upon royalty a limited section of pillar coal that is too dangerous for the large operators to take a chance with’.

7. Pennsylvania Coal Co. v. Mahon, Brief on Behalf of the City of Scranton, Intervenor, 10–11.

8. Laws Pa. 1921, No. 445, p. 1198.

9. Quoted in Brief for Plaintiff-in-Error, Pennsylvania Coal Co. v. Mahon, 3.

10. Mahon v. Pennsylvania Coal Co., 274 Pa.St. 489, 118 Atl. 491, 493 (1922). One judge, Kephart, wrote a bitter dissent. The legislature, in his view, ‘stood by, watched the growth of this enterprise, noted the subsidences, and did nothing’; then, when ‘the great anthracite industry reached its most flourishing state’, the legislature ‘passed an act that nullifies … contracts solemnly made on the faith of the … state’. Under the statute, rights were ‘summarily destroyed, and property transferred to individuals without compensation’. Ibid. at 498.

11. On Davis, see Harbaugh's, William H. fine biography, Lawyer's Lawyer, The Life of John W. Davis (New York, 1973)Google Scholar.

12. Holmes sent a copy of the opinion to SirFrederick Pollock. See Howe, Mark deWolfe, ed., Holmes-Pollock Letters, 2 vols. (Cambridge, Mass., 1941) ii, 109Google Scholar (letter of December 31, 1922): ‘I used to think that the main-spring was broken by 80, although my father kept on writing. I hope I was wrong…. I enclose one of my last decisions that you may judge whether there is any falling off. It was unpopular in Pennsylvania of course.’ Holmes also sent a copy to Harold Laski, and explained that the case ‘was a question of degree, upon which people natually differ but the lads were with me, except B[randeis]’. de Wolfe Howe, Mark, ed., Holmes-Laski Letters, 2 vols. (Cambridge, Mass., 1953) i, 462Google Scholar (letter of December 14, 1922). See also Bickel, Alexander M., The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, Mass., 1957) 227–30Google Scholar.

13. A commentator in the Michigan Law Review, praising the Holmes opinion, was less calm and matter of fact. The Pennsylvania law was an example of the use of ‘the popular will’ to ‘strip a person of his property rights without compensation’, turning the Fifth and Fourteenth Amendments into ‘nullities’. ‘It is better that popular desires going to the roots of modern society should struggle through the process of constitutional enactment than that every whim of opportunism should find easy repose in statutory law.’ 21 Michigan Law Review 581, 583–4 (1923)Google Scholar.

14. Pennsylvania Coal Co. v. Mahon, at 417.

15. Holmes disagreed with this reading of his argument. See sources quoted in note 12, supra.

16. And not much has been forthcoming since, at least at the level of the United States Supreme Court. See U.S. v. Central Eureka Mining Co., 357 U.S. 155 (1958). A wartime order required gold mine companies to stop mining gold, so as to free workers for vital wartime mining. This was held not to be a taking. Justice Burton admitted that ‘action in the form of regulation can so diminish the value of property as to constitute a taking’; the question turns, however, ‘on the particular circumstances of each case’. Ibid. at 168, citing, of course, Pennsylvania Coal Co. v. Mahon. See also Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962). (‘There is no set formula to determine where regulation ends and taking begins.’) In Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the Supreme Court (6–3) upheld New York City's landmark preservation law, holding that it did not cross the line drawn in Mahon. See also San Diego Gas & Electric Co. v. San Diego, 450 U.S. 62 (1981).

17. See, for example, Sax, Joseph L., ‘Takings and the Police Power’, 74 Yale Law Journal 36 (1964)CrossRefGoogle Scholar. Sax's theory is this: when a person suffers harm to ‘legally acquired existing economic values as a consequence of government activity’ there is a taking, and he must be paid, if the act ‘enhances the economic value of some governmental enterprise’, but not if it merely resolves a ‘conflict within the private sector’. Ibid. at 67. An example of this last category would be a case like Miller v. Schoene, 276 U.S. 262 (1948), where Virginia ordered red cedar trees destroyed to prevent a disease from spreading to apple orchards. Here ‘the regulation at issue did not add to the assets of any government enterprise, but merely resolved a case of conflicting uses between neighboring proprietors’. Ibid. at 69. Under Sax's test, there would have been no right to compensation in Pennsylvania Coal Co. v. Mahon.

See also Michelman, Frank I., ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law’, 80 Harvard Law Review 1165 (1967)CrossRefGoogle Scholar; Kratovil, Robert and Harrison, Frank J. Jr., ‘Eminent Domain—Policy and Concept’, 42 California Law Review 596 (1954)CrossRefGoogle Scholar; Swank, William K., ‘Inverse Condemnation: The Case for Diminution in Property Value as Compensable Damage’, 28 Stanford Law Review 779 (1976)CrossRefGoogle Scholar.

18. There is a large literature on the subject; see especially, Bosselman, Fred P. et al. , The Taking Issue (Washington, DC, 1973)Google Scholar; and the literature cited in note 17, supra.

19. 32 U.S. (7 Pet.) 243 (1833). The Fifth Amendment, said John Marshall, ‘must be understood as restraining the power of the general government, not as applicable to the states’. Ibid. at 247.

20. For example, under the Pennsylvania Constitution of 1874, Art. I, Sec. 10, private property could not ‘be taken or applied to public use, without authority of law and without just compensation being first made or secured’. Wisconsin Constitution 1848, Art. I, Sec. 13: ‘The property of no person shall be taken for public use without just compensation therefor.’ Art. 2, Sec. 13, of the Illinois Constitution of 1870 reads as follows: ‘Private property shall not be taken or damaged for public use without just compensation’ (emphasis added).

21. In Chicago, Burlington and Quincy Ry. Co. v. Chicago. 166 U.S. 226 (1896), the Supreme Court held that the due process clause was ‘applicable to the direct appropriation by the State to public use and without compensation of the private property of the citizen…. Due process of law … means, therefore, such process as recognizes the right of the owner to be compensated,’ Ibid. at 236.

22. Pumpelly v. Green Bay Co., 80 U.S. 166 (1871). The case arose under state law; the court construed not the federal, but the Wisconsin Constitution, which was however almost identical in this regard with the federal Constitution; see note 20, supra. The case presumably got into federal court on diversity grounds. Its principle was generally followed in the states; see Randolph, Carman F., The Law of Eminent Domain in the United States (Boston, 1894) 138–142Google Scholar.

23. 188 U.S. 445 (1903).

24. Ibid. at 469. In United States v. Cress, 243 U.S. 316 (1917), the government built locks and dams on the Cumberland River in Kentucky. These raised the water level and subjected the lands of plaintiff to periodic floods. About half the value was lost. The Supreme Court found a ‘taking’, in the spirit of U.S. v. Lynah.

25. Richards v. Washington Terminal Co., 233 U.S. 546 (1914) (heavy smoke damage from end of railroad tunnel behind plaintiff's property). In Peabody v. U.S., 231 U.S. 530 (1913), the plaintiffs owned land on the coast of Maine, which they used as a summer resort hotel. The U.S. government had a fort nearby, and plaintiff's land lay between the fort and the sea. Guns were fired over the land in 1902. They were not fired afterwards but their very existence, according to plaintiffs, injured the hotel business. On these facts, there was no recovery—there was ‘no showing that the guns will ever be fired unless … in time of war’; and this was ‘too slender a basis for a decision that the property [was] … appropriated’. The owners did not, however, give up, and continued to claim that their land had been taken, alleging new and later acts. See Portsmouth Harbor Land and Hotel Co. v. U.S., 260 U.S. 327 (1922).

Cf. the later cases on the effects of low-lying aircraft, for example, Griggs v. Allegheny County, 369 U.S. 84 (1962), where the court held that the noise and vibration did constitute the ‘taking’ of an ‘air easement’ for which the county had to pay; the same was true in U.S. v. Causby, 328 U.S. 256 (1945), where military aircraft frightened Causby's chickens; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

26. See, for example, Rev. Stats. N.Y. 1859, Vol. II, p. 672; Laws Penn. 1848, No. 396, pp. 619, 623–4 (Green Lane and Goshenhoppen Turnpike Road Company).

27. Scheiber, Harry N., Ohio Canal Era, A Case Study of Government and the Economy (Athens, Ohio, 1969) 277Google Scholar.

28. See Scheiber, Harry N., ‘The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts’, in Fleming, Donald and Bailyn, Bernard, eds., Law in American History (Boston, 1971) 329Google Scholar.

29. See the discussion in Lewis, John, A Treatise on the Law of Eminent Domain, 2 vols. (Chicago, 3rd ed., 1906) i, 58–67Google Scholar; Easton v. B.C. & M. Ry. Co., 51 N.H. 504 (1872).

30. Alton and Sangamon Ry. Co. v. Carpenter, 14 Ill. 190, 192 (1852); on Ohio see Scheiber, supra note 27 at 278.

31. Nichols, Philip, The Law of Eminent Domain, 2 vols. (Albany, NY, 2d ed., 1917) ii, 774, 777Google Scholar.

32. Illinois Const. 1870, Art. II, Sec. 13. The Alabama Constitution of 1875, Art. XIV, Sec. 7, provided that ‘municipal and other corporations and individuals’ with the right to take private property for public use ‘shall make just compensation for the property taken, injured, or destroyed’.

33. See Philip Nichols, supra note 31 at ii, 844–53. The courts agreed, generally speaking, that the addition of the words enhanced recovery, and that the old law had been too restrictive. But they refused to go so far as to permit recovery whenever government activity impaired the value of land. There had to be some ‘right’—an easement, say—which was injured. Thus, in Van de Vere v. Kansas City, 106 Mo. 83, 17 S.W. 695 (1891), the city built a ‘fire-engine house’ on a lot next to Van de Vere's, who claimed his lots were ‘suitable for residence purposes only’. The court denied recovery. Note that Van de Vere could probably have recovered for damages to the rest of his residential plots, if the city had taken even a single lot and built a ‘fire-engine’ house upon it; Nichols criticizes this distinction. Ibid. at 852.

34. Mills, Henry E., A Treatise on the Law of Eminent Domain (St. Louis, 1879), preface at iii–ivGoogle Scholar.

35. Lewis, John, A Treatise on the Law of Eminent Domain 2 vols. (Chicago, 2d. ed., 1900), ii, preface at 1–11Google Scholar.

36. John Lewis, Ibid. i, preface at iii. A third edition, published in 1909, spoke in its preface of ‘between five and six thousand new cases’.

37. Tunnard, Christopher and Reed, Henry H., American Skyline (New York, 1956) 108–110Google Scholar.

38. See Rev. Stats. Ill., 1877, ch. 105.

39. Acts Indiana 1895, ch. 35, 63. The act did not mention Indianapolis, but applied to all ‘cities having more than one hundred thousand population’, a class with one member only, Indianapolis.

40. See Maguire, John, ‘State Liability for Tort’, 30 Harvard Law Review 20 (1916)CrossRefGoogle Scholar.

41. 37 U.S. Stats. 560, 563 (Act of Aug. 24, 1912); see 35 U.S. Stats 556 (Act of May 30, 1908), authorizing up to one year's pay as compensation to certain laborers and artisans doing dangerous government work who were ‘injured in the course of … employment’.

42. Shearman, Thomas G. and Redfield, Amasa A., A Treatise on the Law of Negligence, 2 vols. (New York, 5th ed., 1898), i, 466 fnGoogle Scholar.

43. Hickox v. State, 1 Ct. Cl. (Ill.) 81 (1890); the plaintiff, Lee Hickox, owned a farm next door to a training camp of the Illinois National Guard. During target practice, bullets landed on plaintiff's land, injuring a farm hand, and making it impossible for him to harvest his clover and hay. See also note 25, supra.

44. Another related field was the law of nuisance. Here the law regulated land use, but indirectly, through the right of private persons to control their neighbors, particularly if courts were willing to enjoin nuisances. See Kurtz, Paul M., ‘Nineteenth Century Anti-Entrepreneurial Nuisance Injunctions—Avoiding the Chancellor’, 17 William & Mary Law Review 621 (1976)Google Scholar.

45. See Friedman, Lawrence M., A History of American Law (New York, 2d. ed., 1985) 420–21Google Scholar; the leading case, in England, was Tulk v. Moxhay, 2 Phil. 774 (Ch. 1848), in the United States, Parker v. Nightingale, 6 Allen (88 Mass.) 341 (1863).

46. Ladd v. City of Boston, 151 Mass. 585, 24 N.E. 858 (1890).

47. Allen v. City of Detroit, 167 Mich. 464, 133 N.W. 317 (1911). See also City of Chicago v. Ward, 169 Ill. 392, 48 N.E. 927.(1897); Flynn v. New York, 218 N.Y. 140, 112 N.E. 913 (1916) (a railroad purchased lots subject to a restrictive covenant, and built its line on the lots; owners of other lots in the area recovered damages).

48. See Houck, John W., ed., Outdoor Advertising, History and Regulation (Notre Dame, 1969) 11–56Google Scholar.

49. 214 Ill. 628, 73 N.E. 1035 (1905); see, on the billboard cases in general, Nichols, supra note 31 at i, 277. A billboard ordinance was swept aside in Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476 (1893), as ‘unreasonable’. The esthetic issue was not mentioned, and the court simply assumed that the police power extended only to health and safety. The court was at a loss to understand how ‘the mere posting of a harmless paper upon a structure changes it from a lawful to an unlawful one’.

50. 214 Ill. 631.

51. Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601 (1905).

52. Ibid. at 340, 353. See also People v. Green, 85 App. Div. 400, 83 N.Y. Supp. 460 (1903) (an ordinance forbidding posters and advertising on any ‘vacant or unimproved land’ fronting on parks and squares in New York, without a license from the park board, was void as a taking without compensation); see also State v. Whitlock, 149 N.C. 542, 63 S.E. 122 (1908) (billboard ordinance of Asheville void; the Court rejected ‘aesthetic considerations’ as justifications for billboard ordinances).

The Supreme Court upheld a billboard ordinance of the City of Chicago in Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); the ordinance was attacked on due process grounds. The question of a ‘taking’ was not discussed in the case.

53. Bryan v. City of Chester, 212 Pa. 259, 71 Atl. 894 (1905). The ordinance, according to the court, was ‘a gross attempt at interference with the lawful use of private property’. In Curran Bill Posting and Distributing Co. v. City of Denver, 47 Colo. 221, 107 Pac. 267 (1910), a Denver ordinance was voided: ‘In what way’, asked the court, ‘can the erection of safe structures … for advertising purposes, endanger the public health or safety?’

54. Bill Posting Sign Co. v. Atlantic City, 71 N.J.L. 72 (1904).

55. Passaic v. Paterson Bill Posting Co., 71 N.J.L. 75 (1904); to the same effect, City of Rochester v. Trask, 118 Fed. 777 (C.C., S.D.N.Y. 1902); In re Wilshire, 103 Fed. 620 (C.C., S.D., Cal. 1900) (billboards are usually ‘cheap and flimsy’; and they spoil the view; the court upheld height restriction).

56. Varney and Green v. Williams, 155 Cal. 318, 100 Pac. 867 (1909).

57. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), in which the Supreme Court upheld a zoning ordinance, by a 5–4 vote; Lubove, Roy, The Progressives and the Slums (Pittsburgh, 1962) 229–45Google Scholar.

58. Philip Nichols, supra note 31 at ii, 271–75.

59. Village of Carthage v. Frederick, 122 N.Y. 268, 25 N.E. 480 (1890).

60. Board of Park Commrs. v. Diamond Ice Co., 130 Iowa 603, 105 N. W. 203 (1905).

61. State v. Chapman, 69 N.J.L. 464, 55 Atl. 94 (1903).

62. See Joseph L. Sax, supra note 17 at 48–50; the phrase was used by Brandeis in his dissent in Mahon—all Pennsylvania had done, he argued, was to prohibit a single ‘noxious step’, and this was within the scope of the police power.

63. 123 U.S. 623 (1887).

64. 123 U.S. 623, at 668, 669. Harlan discussed Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), but brushed it off as inapplicable.

65. See Bartemeyer v. Iowa, 85 U.S. 129 (1873); Beer Co. v. Massachusetts, 97 U.S. 25 (1877); see also Foster v. Kansas, 112 U.S. 201, 204 (1884). Liquor regulation was at issue in the well-known New York case, Wynehamer v. People, 13 N.Y. 378 (1856); a prohibition law was there held to violate the state's constitution in that it destroyed the value of one kind of property, liquor, without due process (or compensation). But this was, in some ways, a startling and exceptional case.

66. 177 U.S. 587 (1900).

67. 216 U.S. 358 (1910). Holmes was, as usual, quite deferential to the ‘findings’ of legislative bodies. ‘The Board of Supervisors passed the ordinance …. It was … a specific determination by the lawmaking authority as to the relation of … cemeteries to their repective neighborhoods.’ He brushed aside arguments that ‘scientific men’ regarded ‘the popular belief about the noxiousness of cemeteries as a ‘superstition’. ‘If every member of this bench clearly agreed that burying grounds were centers of safety and thought the Board of Supervisors and the Supreme Court of California wholly wrong, it would not dispose of the case…. Opinion … may be divided, and if, on the hypothesis that the danger is real, the ordinance would be valid, we should not overthrow it merely because of our adherence to the other belief.’

There was, of course, plenty of authority to support the notion that cemetery regulation, or even prohibition, was constitutional; see, for example, Carpenter v. Borough of Yeadon, 158 Fed. 766 (CCA. Pa., 1908).

68. Even harsher was the decision in Hadacheck v. Sebastian, Chief of Police of Los Angeles, 239 U.S. 394 (1915). Hadacheck owned a brickyard, outside the city limits. The city grew to include this property, and his land use became illegal, because an ordinance of Los Angeles prohibited brickyards or brick kilns within certain parts of the city. The value of his land was virtually destroyed. (It was now nothing but a large hole in the ground and an illegal brick works.) The court was not moved; it saw the ordinance as a valid exercise of police power: ‘there must be progress, and if in its march private interests are in the way they must yield to the good of the community’. Ibid. at 410. See also Reinman v. Little Rock, 237 U.S. 171 (1915) (livery stable inside the city of Little Rock); Barbier v. Connolly, 113 U.S. 27 (1885) (municipal ordinance restricting public laundries and washhouses).

69. 272 U.S. 365 (1926).

70. On this point, see Friedman, Lawrence M., ‘Freedom of Contract and Occupational Licensing: A Legal and Social Study’, 53 California Law Review 487 (1965)CrossRefGoogle Scholar.

71. In Jackman v. Rosenbaum Co., 260 U.S. 22 (1922), decided in the same term as Pennsylvania Coal Co. v. Mahon, plaintiff suffered damages when an adjoining owner tore down plaintiff's wall, and put up a new party wall. This was authorized by a statute, which codified old customs going back at least to the days of William Penn. Holmes wrote the court's opinion. ‘The Fourteenth Amendment, itself a historical product, did not destroy history for the States…. If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.’ Ibid at 31.

72. Lochner v. New York, 198 U.S. 45 (1905).

73. Hurst, J. Willard, Law and Social Process in United States History (Ann Arbor, Mich., 1960) 308Google Scholar.

74. This account is mainly drawn from Hunt, Robert S., Law and Locomotives, the Impact of the Railroad on Wisconsin Law in the 19th Century (Madison, Wis., 1958) 44–65Google Scholar.

75. Ibid. at 47.

76. Laws Wis. 1858, ch. 49.

77. The statute went on to provide that all written contracts between the original parties, and ‘any fradulent, false or untrue statements’ were to ‘run with said note and mortgage’, and bind the assignee; and no assignee could defend himself by claiming to be ‘an innocent purchaser without notice’.

78. Cornell v. Hichens, 11 Wis. 353 (1860).

79. Historically, foreclosure cases were within the orbit of equity, and there was thus no right to trial by jury.

80. Laws Wis. 1861, ch. 88. A law of 1858, Laws Wis. 1858, ch. 113, gave defendants in foreclosure suits six months to answer any bill or complaint filed; and subjected the sale of mortgaged premises to further delays.

81. Robert S. Hunt, supra note 74 at 50.

82. Oatman v. Bond, 15 Wis. 20 (1862).

83. Laws Wis. 1862, ch. 330; see Laws Wis. 1869, ch. 224 (‘sinking fund’ provision, applicable to La Crosse and Milwaukee Railroad Company); ch. 332 (Milwaukee and Horicon Railroad Company).

84. Robert S. Hunt, supra note 74 at 51.

85. Laws Pa. 1921, No. 444, 1192.

86. Kephart, J., dissenting in Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 118 Atl. 491, 497 (1922). Kephart also felt that if it had been a ‘blunder’ to let people sell property without the right to surface support, then ‘the commonwealth should pay for its mistakes from general funds, or use for this purpose the money now to be received on taxes on this very coal’.

87. There is of course an oblique reference here to Noonan's, John T.Persons and Masks of the Law (New York, 1976)Google Scholar.

88. Pennsylvania Coal Co. v. Mahon, Brief on Behalf of the City of Scranton, Intervenor, 6.