This construction, making an actual physical invasion of the property affected the test in every case, excluded from the benefits of the Constitution many cases of great hardship, for, as in the present case, it often happened that while there was no actual physical injury to the property, yet the approaches to it were so cut off and destroyed as to leave it almost valueless. Under this condition of affairs the framers of the present Constitution, doubtless with a view of giving greater security to private rights by affording relief in such cases of hardship where it had before been denied, declared therein that "private property shall not be taken or damaged for public use without just compensation." The addition of the words "or damaged" can hardly be regarded as acci dental, or as having been used without any definite purpose. On the contrary, we regard them as significant, and expressive of a deliberate purpose to change the organic law of the state.

* *

It is conceded that some little confusion exists with respect to the use of the expression, "physical injury," in connection with the term property; but it is believed this arises mainly from the ambiguous character of the latter term, and doubtless all the apparent[ly] conflicting expressions to be found in the opinions of this court upon this subject may be harmonized, upon the theory that the term property, in that connection, is used in different senses. Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects, and generally to the exclusion of all others, and doubtless this is substantially the sense in which it is used in the Constitution; yet the term is often used to indicate the res or subject of the property, rather than the property itself, and it is evidently used in this sense in some of the cases in connection with the expression physical injury, while at other times it is probably used in its more appropriate sense, as above mentioned. The meaning, therefore, of the expression "physical injury," when used in connection with the term "property," would in any case necessarily depend upon whether the term property was used in the one sense or the other. To illustrate: If the lot and buildings of appellant are to be regarded as property, and not merely the subject of property, as strictly speaking they are, then there has clearly been no physical injury to it; but if by property is meant the right of user, enjoyment and disposition of the lot and buildings, then it is evident there has been a direct physical interference with appellant's property, and when considered from this aspect, it may appropriately be said the injury to the property is direct and physical. **

*

Under the Constitution of 1848 it was essential to a right of recovery, as we have already seen, that there should be a direct physical injury to the corpus or subject of the property, such as

overflowing it, casting sparks or cinders upon it, and the like; but under the present Constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action. *

* *

The question then recurs, What additional class of cases did the framers of the new Constitution intend to provide for which are not embraced in the old? While it is clear that the present Constitution was intended to afford redress in a certain class of cases for which there was no remedy under the old Constitution, yet we think it equally clear that it was not intended to reach every possible injury that might be occasioned by a public improvement. There are certain injuries which are necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not, and never has afforded any relief. For instance, the building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, yet that is clearly a case of damnum absque injuria. So as to an obstruction in a public street,—if it does not practically affect the use or enjoyment of neighboring property, and thereby impair its value, no action will lie. In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally. In the absence of any statutory or constitutional provisions on the subject, the common law afforded redress in all such cases, and we have no doubt it was the intention of the framers of the present Constitution to require compensation to be made in all cases. where, but for some legislative enactment, an action would lie by the common law.

The English courts, in construing certain statutes providing compensation for injuries occasioned by public improvements, in which the language is substantially the same as that in our present Constitution, after a most thorough consideration of the question, lay down substantially the same rule here announced. Chamberland v. West End of London Railway Co., 2 Best & Smith, 605; Beckitt v. Midland Railway Co., L. R. 1 C. P. 241, on appeal 3 C. P. 82; McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508. These statutes required compensation to be made where property was "injuriously affected," which the English courts. construe as synonymous with the word "damaged." Hall v. Mayor

of Bristol, L. R. 2 C. P. 322; East and West India Docks Co. v. Gattke, 3 McN. & G. 155.

The rule we have adopted was unanimously sustained by the House of Lords in the McCarthy Case, supra, and is believed to be in consonance with reason, justice, and sound legal principles, and while it has not heretofore been formulated in express terms, as now stated, yet the principles upon which the rule rests are fully recognized in the previous decisions of this court. *** Judgment reversed.

[Dickey, C. J., gave a concurring opinion. SCOTT, CRAIG, and SHELDON, JJ., dissented.]

CONSTITUTIONAL PROTECTION OF CIVIL RIGHTS

1

I. Liberty 1

ALLGEYER v. LOUISIANA.

(Supreme Court of United States, 1897. 165 U. S. 578, 17 Sup. Ct. 427, 41 L.

Ed. 832.)

[Error to the Supreme Court of Louisiana. A Louisiana statute forbade, under penalty of a fine of $1,000 for each offence, any person, firm, or corporation from doing any act in that state to effect, for himself or for another, insurance on property in the state, in any marine insurance company which had not complied with the laws of the state. E. Allgeyer & Co. made a contract in New York, with a New York insurance company not doing business in Louisiana, for an open policy of marine insurance for $200,000 upon future shipments of cotton. By the terms of the policy Allgeyer was to notify the company from time to time of shipments applicable to the policy, and the sending of such notices was a condition precedent to the attaching of the risk. A separate policy was issued in New York for each risk, the premium to be there paid in cash by Allgeyer. Allgeyer & Co. sent a notice of a shipment, under this contract, and remitted the premium from New Orleans to New York. The state court held them liable to the statutory penalty therefor, and this writ of error was taken.]

Mr. Justice PECKHAM. * * * In this case the only act which it is claimed was a violation of the statute in question consisted. in sending the letter through the mail notifying the company of the property to be covered by the policy already delivered. We have, then, a contract which it is conceded was made outside and beyond the limits of the jurisdiction of the state of Louisiana, being made and to be performed within the state of New York, where the premiums were to be paid, and losses, if any, adjusted. The letter of notification did not constitute a contract made or entered into within the state of Louisiana. It was but the performance of an act rendered necessary by the provisions of the contract already made between the parties outside of the state. It was a mere notification that the contract already in existence would attach to that particular property. In any event, the contract was made in New York, outside of the jurisdiction of Louisiana, even though the policy was not to attach to the particular property until the notification was sent.

1 For discussion of principles, see Black, Const. Law (3d Ed.) §§ 199, 206.

It is natural that the state court should have remarked that there is in this "statute an apparent interference with the liberty of defendants in restricting their rights to place insurance on property of their own whenever and in what company they desired." Such interference is not only apparent, but it is real, and we do not think that it is justified for the purpose of upholding what the state says is its policy with regard to foreign insurance companies which had not complied with the laws of the state for doing business within its limits. In this case the company did no business within the state, and the contracts were not therein made.

The supreme court of Louisiana says that the act of writing within that state the letter of notification was an act therein done to effect an insurance on property then in the state, in a marine insurance company which had not complied with its laws, and such act was therefore prohibited by the statute. As so construed, we think the statute is a violation of the fourteenth amendment of the federal Constitution, in that it deprives the defendants of their liberty without due process of law. The statute which forbids such act does not become due process of law, because it is inconsistent with the provisions of the Constitution of the Union. The "liberty" mentioned in that amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

It was said by Mr. Justice Bradley, in Butchers' Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, at page 762, 4 Sup. Ct. 652, at page 657, 28 L. Ed. 585, in the course of his concurring opinion in that case, that "the right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen." Again, on page 764 of 111 U. S., and on page 658 of 4 Sup. Ct. (28 L. Ed. 585), the learned justice said: "I hold that the liberty of pursuit-the right to follow any of the ordinary callings of life-is one of the privileges of a citizen of the United States." And again, on page 765 of 111 U. S. and on page 658 of 4 Sup.