Review of the Book:

Public and Private Property
by John Z. White

Walter Fairchild

[Reprinted from Land and Freedom, July-August, 1935]

In this timely and interesting book, Mr. White presents a legal viewpoint of the effect of grants of land by the State to individual owners. It is a common belief that because of deeds of land in "fee simple" to individuals which extend back to the sovereignty it is impossible for the State now to recover the value of the land without doing violence to constitutional provisions protecting private rights.

The author makes clear the distinction between a contract and a grant by the State. The Darmouth College case, the Charles River Bridge case and other cases famous in history, are discussed in detail to show the tendency of the courts to preserve to the State those sovereign rights and powers without which democratic government is impossible.

Tenure of land is a public thing a delegation of a sovereign power. Failure to guard the sovereign power expressed by land holding and to permit the value of the land holding power to be privately appropriated is a derogation of sovereignty and tends to destroy democracy.

If an aristocratic society is desired nothing needs to be done. The manor house theory of tenure of land is exemplified today in Franklin D. Roosevelt who is to the "manor born." It is quite in keeping with President Roosevelt's tradition to see nothing incongruous in the large land values held by Vincent Astor. There is nothing of the hyprocrite in the President in this respect nor inconsistent with his warfare against those who grind the face of the poor or take speculative profits without regard to the upkeep of the nation at large. The ownership of the manor house and manor lands, to Mr. Roosevelt, carries with it not only the duty of seeing to it that all the manor people, tenants and workers, are fed and clothed but also the consciousness that failure to meet this duty is destructive of the manor family itself. So the Mitchells and the Wiggins who take profits without responsibility are met with righteous Rooseveltian indignation, whereas the landed families who give benevolent consideration to the tenantry receive a complacent blessing.

Against such a benevolent aristocracy Mr. White shows the necessity of preserving to the State its full sovereignty over land if democracy is to endure.

Land cannot be owned. It can only be used.

A labor product can be owned outright in the sense that it can be consumed. Eggs can be physically eaten up.

A land title is a franchise for use. Land cannot be consumed.

In this distinction lies the fundamental difference between a grant of land and a bill of sale of goods.

The proposition that land grants and franchises are the same in legal principle is sound law.

This being so, it follows that nothing more is granted than is directly contained in the terms of the grant. A franchise grant is strictly construed in favor of the sovereignty.

A grant of land made in 1735, for example, contains no contract that conveys away values created in 193S. What is granted is contained within the four corners of the document. Nothing is contained in any deed ancient or modern that requires the community in 1935 to deliver the beneficial use of a school house, a library, a paved street or other public service upon the land without collecting the cost therefor.

Chief Justice Marshall in 1810 in a Georgia land case held that a grant by the State is a contract. In 1840, however, Justice Miller, supported by Chief Justice Chase and Justice Field, dissented in Washington University vs. Rouse (8 Wall. 443). He said:

"We do not believe that any legislative body, sitting under a State constitution of the usual character, has a right to sell, to give, or to bargain away forever the taxing power of the State ... To hold that any one of the annual legislatures can, by contract, deprive the State forever of the power of taxation, is to hold that they can destroy the government which they are appointed to serve, and that their action in that regard is strictly lawful."

The tendency of the courts is in the direction of the sound doctrine quoted. The power of the State to tax is paramount over private rights. Private possession of land, necessary to preserve the fruits of labor, does not of itself impair sovereignty. It is only when we permit the profits arising from this exercise of sovereign power to flow into private pockets that such impairment occurs.

Democracy may delegate its police power to a magistrate without impairing its sovereignty but if it were held that the magistrate acquired a vested right to his office and could administer the office for his private gain it would be a derogation of sovereignty.

Franchises for the use of streets by utility companies are no longer granted in perpetuity or for years without a valuation to be paid for use.

The true legal concept of the tenure of land as a franchise for use subject to valuation is growing in consciousness and is tending to dispel the idea that the State having granted land is without power to collect the value of the use.

This book is a strong plea for the recognition of those legal principles which constitute the foundation of democratic government and without democracy, cannot endure.

It is well worth a studious reading.