A Cat May Look at a King

by Martin Harris

Martin Harris

In accordance with the provision in the Vermont Constitution designating non-attorney side judges to hear cases, advise, (and even -horrors– over-rule) real-attorney judges in some legal situations, your humble scribe proposes in these column-inches to dispute the recently-proffered legal opinion that the OMYA rail spur right-of-way question should be seen in the dim light of a “near-forgotten” 19th century statute. That’s the one from the era of steam locomotives granting railroads eminent domain rights to acquire right-of-way land to extend trackage where the railroad companies thought they could sell enough passenger tickets and freight waybills to make a profit for shareholders on the transportation service. I won’t dwell, here, on the denigration of the profit motive in contemporary Vermont circles, but I will note that those statutes, some lawyers are already observing, are “arch-aic”.

For readers in East Overshoe, that’s, like, y’know, really old and, I mean, totally obsolete and stuff, and not to be confused with “controlling” as in “arch-bishop” or ruling bishop or “archi-tect” or master builder. These laws are almost as ancient (thus, in the Progressive view, antiquated and overdue-for-modernization with “living” penumbras and emanations) as the national and State Constitutions which originally authorized them. They may even qualify for one of the many contemporary meanings of “gnarly”. I’ll just take “archaic” as a chosen pejorative adjective-used-as-noun (test your high school English student on definition) specifically intended to bias public opinion against the -ugh-involved corporations. That’s primarily the presumptively-evil for-profit private one (OMYA) which quarries the low-quality marble, and only secondarily the presumptively-noble for-loss public one (Vermont Railway System) which now owns most of the rail rights-of-way in Vermont and runs most of the trains on rights of-ways mostly acquired, originally, from unwilling land-owners through eminent domain in the mid-19thcentury.

Readers old (“antiquated”?) enough to have been in school when Civics was taught, and a brief exposure to the national Constitution (what an archaic educational notion!) was required, already know that, within the Bill of Rights, Amendment V, the final phrase reads thus “…nor shall private property be taken for public use without compensation.” The 18th century definition of “public use” didn’t include private railroads, so its meaning was modernized (a little “living-Constitution lingo, there) to include them starting in the ante-bellum decades. Here in Tennessee, for example, TCA 7-56-207 authorizes counties to condemn land for railroad use, under what later came to be labeled the “public-benefit” re-interpretation. Since then the legal disputes over “takings” for real P.U. purposes -government buildings or publicly-owned infra-structure, for example– have typically been challenges over the dollar amount offered, not for the P.U. rationale itself; while takings for P.B. purposes have been far more seriously challenged over the validity of the P.B. argument -transferring land from one private property owner to another, for the proclaimed purposes of reducing “blight” and/or increasing tax revenues. In NYC, for example, the P.B. argument won out in State court to enable a sports stadium developer in Brooklyn and an Ivy League university in Manhattan to obtain real estate by court order for less than the owners would willingly sell it. In Manhattan’s West Harlem, Columbia helped the process along by purchasing a few properties at market prices, encouraging their decline into “blight”, and then arguing “blight-removal” as an argument to get the entire acreage. It worked. Actually, it’s been working rather well since 1949. The Housing Act of that year opened the legal gates for large-scale urban renewal with a mix of public housing and private development, all premised on the P.B. argument. The somewhat famous legal challenge of 1954, Berman v. Parker, failed to discredit it, although the subsequent SCOTUS decision, in the Kelo case wherein the City of New London was approved to condemn private houses and give the land to Pfizer Chemical under the P.B. rubric (Pfizer has since chosen to go AWOL) so offended voter/non-lawyer sensibilities that many States have since tightened up on the P.B. argument. Vermont isn’t one of them. I’d guess that the State, in its ineffable wisdom, will use the 20thcentury P.B. precedents rather than the 19th century P.U.-for-railroads precedents to acquire the right-of-way for the OMYA spur. Wouldn’t getting those marble-rubble-hauling 18-wheelers off Route 7 be a P.B.? That’s what the Beautiful People have wanted up to now.

And most Progressives (presently the dominant force in VT politics) have historically embraced the P.B. concept. Even when their ascendancy was still new and marginal, they pushed through the Burlington urban renewal project on P.B. grounds in 1964, condemning acres of single-family housing Kelo-style to make way for, among other private-sector ventures, a bank, a church, and a hotel with parking structure. Now older and wiser (or maybe it’s their kids) the current generation of Progressives there decries what they or their parents did then under the P.B. flag. Maybe that’s why their ideological soul-mates in Middlebury would now rather argue their opposition to the rail spur on “archaic” railroad-statute grounds rather than on fairly recent Public Benefit grounds; they sense that it’s politically easier to be seen against rail (except, of course, when it’s taxpayer/government-funded light rail for passengers, not profitable private-sector rail for freight) than to be against the same Public Benefit claim they have typically endorsed elsewhere.

Thus, under the legal principle established by 19th century English barrister (in the adult-beverage-consumer, not the licensed-legal-practitioner, sense of that word) Lewis Carroll in his Alice in Wonderland, which specifies that “a cat may look at a king” I’ll take a non-attorney glance at attorney Langrock for his bold-face-type pull-quote in the 21 April Addison Independent stating that “you can only take property for public use”. He knows better. Even I, as a 12-point now-recovered urban-renewal practitioner, know better. “Public Use” has metastasized, under legal cultivation, from its original Constitutional meaning to include Public Benefit as well, which explains why SCOTUS former-barristers judged for government (City of New London) and against Suzette Kelo (private home-owner) in the pro-P.B. ruling which so pleased Progressives and urban planners. And there wasn’t even a railroad involved. More next week.