Where is this? The clues are all in the picture.
You've seen the citation so many times, your eyes probably gloss over it. After all, Westlaw lists it with 4,507 "Citing References." That's a heckuva lot of citations to a single case.
Like this one, pulled from a recent random federal district court opinion:
And we admit that we've done it: cited (but didn't read) Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897) for the proposition that the rights in the Bill of Rights (in that case, the Fifth Amendment right to Just Compensation) have been selectively incorporated against states and local governments under the Due Process Clause of the Fourteenth Amendment. You've done it. We've all done it.
To cure that shortcoming, we read and analyzed the case in our William and Mary class. And before we included it in the syllabus, we had to pay a visit to the land at issue in the case. Just because we do that kind of thing.
A recent guest spot on the Institute for Justice's audio documentary series about the Fourteenth Amendment, "Bound by Oath," in which we spoke about the case, its background, and the current state of the land at issue over a century ago, reminded us that we've never posted the photos we took during the site visit, or the other interesting items we pulled from the case record. So we're going to correct that oversight, too.
First, here's the map of the property at the time of the case, showing the "Proposed Opening of Rockwell St. from W. 18th St. to W. 19th St."
At the time of the case, the railroad was at grade. As you recall, the dispute in the case was whether the City of Chicago was bound by the Fifth Amendment's requirement of just compensation when taking property for public use.
The railroad possessed a rail right-of-way easement that ran roughly southwest to northeast (which, ironically, it had obtained earlier by exercising eminent domain), and the City desired to open up north-south Rockwell Street. To do so it needed to cross the railroad tracks, and needed to condemn the railroad's exclusive rights to use the right-of-way. The City instituted an eminent domain action to condemn a public easement over the tracks.
The jury awarded a big fat just compensation verdict of $1.00. As the IJ podcast reminds us, that's a whopping $31 in today's money. The public road crossing didn't really interfere all that much with the railroad's exclusive use, it turns out. Not satisfied, the railroad asserted the paltry verdict was not the just compensation required by the Fifth Amendment.
Well, technically, the railroad didn't make a "Fifth Amendment" argument. It asserted that certain rights (here, "property") are protected by the Due Process Clause of the Fourteenth Amendment from "arbitrary assertions of power" by state and local governments, much in the same way that the Fifth Amendment limits the power of the national government.
Here are some excerpts from the railroad's SCOTUS brief:
Just compensation when property is taken for public use is a right bound up in the law of the land (aka due process or "substantive due process"), and is a general rule that governs our society -- including state and local governments. See Grotius, Blackstone, Gardner v Village of Newbergh, and all that.
The U.S. Supreme Court agreed, and affirmed that just compensation is an inherent part of the concept of due process of law, and governs the actions of state and their municipalities via the Fourteenth Amendment. This case was the first time the Court had applied a right in the Bill of Rights to a state or local government.
And 4,507 citing references after the first "incorporation" case, here we are (even though, as IJ's Bound by Oath correctly notes, the opinion never uses the term "incorporation" to refer to applying the just compensation requirement to the states. Indeed, a word search only reveals two instances regarding incorporation, and those both related to the corporate nature of municipalities under Illinois law).
So did the Court reverse the paltry award? Nope. Despite the Court's landmark ruling that states and municipalities are subject to the just compensation requirement, March 1, 1897 was not likely a happy day for the Chicago, Burlington & Quincy Railroad Company, because the Court also affirmed that $1 was just compensation, and the jury's verdict did not offend due process. You win some, you lose some. Here's your $1 (and your invoice for your attorneys' fees).
So armed with that background, the briefs of the parties, the record, and the Supreme Court's opinion, one late summer's afternoon we set out from downtown Chicago on our takings quest.
The first step was the case map above, which gave us the location, which we located on today's version of a map, Google:
A short ride on the "L" and a walk brought us to the site.
What's the corner of W. 18th and Rockwell (the top of the case map) look like today? Like this, an industrial neighborhood that doesn't seem to have changed all too much since the days of the decision.
Unfortunately, you can't walk further south on Rockwell to see the actual location where the tracks were crossed in the case.
First, the road south of W.16th now enters onto private property. (And you know we respect private property.)
Second (another bit of historical irony), the railroad is no longer at grade, and now runs on a elevated track. And there's no underpass or tunnel. Thus, Rockwell no longer crosses the track, and dead-ends at the location of the crossing at issue in the case.Fortunately, even though we are not trespassers and could not get to the site, Google Maps shows us the location here.
That's the dead-end off in the distance in the center of this photo, past those trailers.
Undaunted in our takings pilgrimage, we decided to go around the blockage. A quick walk one block west to South Washtenaw Avenue, a turn south past the truck entrance to the Lagunitas Brewery and there's an underpass for the tracks.
There's the underpass which gets you the south side of the tracks.
After the underpass, take a left (east) on W. 19th Street and in a block, there's Rockwell again. Hang a left, down to where northbound Rockwell Street dead-ends in some lush foliage.
The end of the line, so to speak.
Thus, our journey to access the actual site of the grade crossing ended in a literal and virtual dead-end. This right here is as close as you can get. (You can't see clearly, but behind these bushes are the elevated tracks -- and a couple of homeless folks who apparently live back there).
Luckily for us a long train came through, which not only illustrated the changed nature of the right-of-way, but made it so we could see clearly where the intersection at issue in the case was, all those decades ago.
One last tidbit from the case record. The railroad's main argument was phrased in terms we today would call a "judicial taking" --
Certainly not the way you'd make the same argument today, no?
While we're glad we took the time to venture to the site and poke around, we're not really recommending you do the same. There's just not a lot of "there" there. The photos above and (maybe) a look around on Google Maps and Street View should be enough to satisfy even the ultra-curious takings mavens.
All we're asking is that you think of this place next time you cite the case for the "selective incorporation" doctrine without really thinking about why.
Chicago, Burlington and Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)
