c10:No. 157

Me. Justice Brewer,
dissenting.
The question in this case is a narrow one, yet of profound importance, and, involving, as in my judgment it does, a grievous wrong to owners of private property, I am constrained to dissent. Conceding the regularity of the proceedings and the power of the State to drain the lands in the Drainage District, and if necessary therefor to compel the .building of a new and enlarged bridge over Rob Roy Creek, I dissent from the conclusion that the State may cast the entire cost of such rebuilding upon.the railroad company.
It appears from the petition which was demurred to, and whose allegations of fact must therefore be taken as true, that the Drainage District consists of about 2,000 acres on both sides of Rob Roy Creek; that a majority of the lands of said Drainage District are swamp or slough lands, and under natural cofidi- ■ tions not subject to cultivation, but by drainage will all be greatly improved and made good tillable lands. The railroad company has lor forty years maintained a bridge or culvert Over Rob Roy Creek which has answered and does answer all its purposes and necessities. The cost of the ditches and drains in the Drainage District in accordance with the plans adopted by the Commissioners is estimated at $20,000. ■ The railroad bridge or culvert across the creek does not exceed in value $8,000, and a new bridge or culvert can be constructed at a cost of not exceeding $13,000. The drainage act provides for an appraisement of the damages done to any tract by the construction of the proposed work, and a judgment in1 favor of the owner against the Commissioners of the District for that amount. It also provides for an assessment of the benefits to the different tracts, upon the basis of which assessments taxes are to be levied to pay for the construction and maintenance of the drainage system. In other words, any damage done to any particular tract by the construction of the drainage system is to.be paid to the owner of that tract; if a private individual, and the tracts which are benefited are to be charged with the cost in proportion to the amount of benefit received. Section 40| of the drainage act then provides:
“The Commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work, and the cost of the same shall be paid out of the road and bridge* tax, or by the railroad company, as the case-may be: Provided, however, notice shall first be given to the road or railroad authorities to build or construct such bridge or culvert, and they shall have thirty days in which to build or construct the samé; such bridges or culverts shall, in all cases, be constructed so as not to interfere with the free flow of water through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the Commissioners. constructing the same may recover the cost and” expenses therefor in a suit against said company befóre any justice of the peace or any court having jurisdiction, and reasonable attorney’s fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individual land owners. ”
According to this, if any bridge or culvert on any public highway is- needed in order, to perfect the drainage S3rstem, the cost' of it is to be paid out of the public funds; but if a bridge or culvert is required on a railroad, the cost of it must be paid by the railroad company. And this is arbitrary, without any ap-praisement of benefits or damages.
Now, the property of a railroad company is private property. It cannot be taken for public uses without just compensation. True, it is used by the owners' in performing the. quasi public work of transportation, but it is not given up to public uses generally.' It is not devoted to education or the improvement of farm lands, or, indeed, any other use than that of transportation. If taken therefrom and devoted to other public uses ■it is the taking of private property for public uses. That, this can. be done may be conceded, but only upon ju§t compensation.
When private property is taken for public uses compensation must be paid. That is the mandate of the Federal Constitution and of that of nearly every State in the Union. Independently of such mandate, compensation would be required. In 2 Kent, p. 339 (12th. ed.), it is said:
' “A provision for compensation is a necessary attendant on the due and constitutional exercise' of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.” See also cases cited in the note; especially Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 166.
In Sinnickson v. Johnsons, 17 N. J. L. (2 Harr.) 129, 145; referred to approvingly by this court in Pumpelly v. Green Bay Company, 13 Wall. 166, 178, and Monongahela Navigation Company v. United States, 148 U. S. 312, 324, it was said:
“This power to take'private property reaches back of all constitutional provisions; and it seems to have been considered a settled principle of universal law that the right to compensation is an incident to the exercise of that power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle. ”
If this be true when the taking is for that which is solely a public use, how much more true is it when the taking is largely for the benefit of private individuals, and at best only incidentally for the benefit of the public? Now the sole purpose of this proceeding, as admitted by the demurrer, was the transformation of these swamp and untillable lands into good tillable lands; in other words, to that extent, increasing -the value of the farms in the hands of their private owners. While the statute under which these proceedings were had contemplates drainage for agricultural and sanitary purposes, there is nothing in this record to show that any sanitary result was contemplated, and the only object disclosed is the direct beneficial result to the owners of 'these swamp lands. There is not the slightest intimation that the health, morals, or safety of the community will be promoted, or is intended to. be promoted, by the drain- ■ age. I quote the exact language of the petition:
“And the petitioners aver that the aforesaid location of the ditch-or drain along the said Rob Roy Creek was for the purpose of enlarging the channel or watercourse of the aforesaid Rob Roy Creek, and thereby enabling the land in said drainage district to be better drained and render the soil in said district more tillable.
* % * % * *
“And your petitioners aver that-a majority-of the lands of said Drainage District are what is known, as swamp or slough land, and under the present condition are not subject to cultivation, but by means of the proposed deepening and enlarging of said Rob Roy Creek,' as herein described, and as a result of the removal of said timbers and stones in said Rob Roy Creek, at the place aforesaid, and of the enlargement of and deepening of said Rob Roy Creek, all of the lands in said Drainage District will be greatly improved, and made good, tillable land subject-to cultivation.’’
If it be a principle of natural justice that private property shall not be taken for public purposes without just compensation, is it not equally a principle of natural justice that no man shall be compelled to pay out money'for the benefit of the public without any reciprocal compensation? What difference in .equity does it make whether a piece of land is taken for public uses or so many dollars for like purposes? Cary Library v. Bliss, 151 Massachusetts, 364, 378, 379; Woodward v. Central Vermont Railway Company, 180 Massachusetts, 599, 603.
But it- is said that this is done under the police power of the State, and that that can be exercised without any provision for compensation. It seems to me that the- police power has -become the-refuge of every grievous wrong'upon private property. Whenever any unjust burden is cast upon the owner of private property which cannot be supported under the power of eminent domain or that of taxation, it is referred to the police power. But no exercise of the police power can disregard the constitutional guarantees in respect to the taking of private property, due process~and equal protection, nor should it override the’demands of natural justice. The question in the case is not how far the State may go in compelling a railroad company toxexpend money in increasing its facilities for transportation', but how far it can go in charging upon the company the cost of improving farms along the line of its road.
Again, it will be perceived that by the- section quoted, if, in consequence of the drainage, a bridge or culvert is required on any public highway its'cost is paid out of the public funds, but whenever a .bridge or culvert is required along or across a railroad the company is charged with the cost. In the one casé the public pays and -in the other a private owner. It is not pretended that the railway is in any way benefited by the drainage: Its property is not improved, its revenues are not increased. The reconstruction of the bridge or culvert is not needed by it in its work of transportation. It has used its present bridge for over forty years, meeting in that time all the demands of the public for transportation. So that, receiving no benefit, it is.charged with the cost of reconstruction, about $13,000, fin order to improve the valué of the lands belonging to private owners in this, Drainage District, when if a highway crossed- at the same plaée and a new bridge or culvert was required the cost of it would be paid out of the public funds. I cannot conceive how this can be looked upon as “ the equal protection of the laws. ”
Further, even under the conclusion reached by the court, the plaintiff in error should recover its costs and, in accord with the common practice in this court, the order should be that the judgment be reversed and the case remanded for further proceedings not inconsistent with our opinion. Stanley v. Schwalby, 162 U. S. 255, 282. Why should it be compelled to- pay- two or three hundred dollars in costs when it has shown that-the .decision below placed an improper charge upon it, the amount of which is not disclosed and which, may be a very substantial sum?
I am, therefore, constrained to dissent from both- the opinion and judgment. -

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