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a criminal investigation as to whether his taking of such papers should be made the basis of an indictment?

The government urges that this may be done, on the theory that these are government papers, and not private papers belonging to the claimant. But that is the very question in dispute. It is conceded that they were seized upon a defective and invalid search warrant. That being so, I am of the opinion that, when they are claimed by a citizen to be his property, the merits of that claim will not be investigated, but that the duty of the court is plain, to discharge the warrant and restore the papers to that possession from which they never should have been taken.

Only in this way can the provisions of the Constitution and statutes against unwarranted searches and seizures be made effective. The proceeding here is absolutely without legal authority from the beginning, and the order of the court is therefore that the search warrant be quashed, and all property taken thereunder be restored to the claimant.

ROCKAWAY PACIFIC CORPORATION V. STOTESBURY et al.

(District Court, N. D. New York. April 4, 1917.)

1 COURTS 303(2)—UNCONSTITUTIONAL STATUTES—"SUIT AGAINST STATE.”

An unconstitutional statute is to be regarded as nonexistent, and no defense to state officers acting under it; so a suit to enjoin state officers from acting under such an invalid statute is not a suit against the state, which, under Const. Amend. 11, cannot be maintained in the federal courts.

[Ed. Note. For other definitions, see Words and Phrases, First and

Second Series, Suit Against the State.] 2 STATES 132—APPROPRIATIONS"DEBTS OF STATE.”

Laws making annual appropriations do not and cannot create debts of the state, within Const. N. Y. art. 7, § 4, being only effective against funds at the disposal of the Legislature.

[Ed. Note.--For other definitions, see Words and Phrases, Second

Series, Debt of State.] 3. COURTS 366(1)-PRECEDENCE-STATE DECISION.

The federal courts are bound to follow the decisions of the highest court

of a state construing its Constitution and laws. 4. CONSTITUTIONAL LAW Omw280_EMINENT DOMAIN Ow71–TAKING OF PROPERTY-COMPENSATION-DUE PROCESS.

Lairs N. Y. 1917, c. 13 (Consol. Laws, c. 57, art. 4A), providing a method of condemning premises which are in the judgment of the Governor necessary for public defense, section 59b of which provides that, if the commission created be unable to agree as to compensation, proceedings shall be brought before the Court of Claims, held, in view of Const. N. Y. art. 3, $ 21, and article 7, 88 24, to be invalid under article 1, § 6, and Const. U. S. Amend. 14, respectively prohibiting the taking of private property for public use without just compensation, and the taking of property, etc., without due process of law, unless Act 1917 be accompanied with an appropriation by the Legislature sufficient to cover any damages which a property owner may suffer.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. EMINENT DOMAIN m274(4)-TAKING OF PROPERTY-INJUNCTION-EVER

GENCY.

Where the owner of land, which the state sought to condemn for purposes of defense, consented to the state's taking possession of the same, and temporary fortifications were being erected, there is no such emergency as will preclude an injunction preventing final passage of title

unless compensation be secured. 6. EMINENT DOMAIN 18-PURPOSE OF TAKING BY STATE_USE OF UNITED

STATES.

Laws N. Y. 1917, c. 13, providing for condemnation of private property for public defense, is not invalid because of a provision that property condemned might be turned over to the federal government, even though the state cannot authorize the exercise of eminent domain, except for the use of its own sovereignty, and the federal government in the exercise of its distinct sovereignty may condemn property needed.

Hough, Circuit Judge, dissenting in part. In Equity. Bill by the Rockaway Pacific Corporation against Louis W. Stotesbury and others, individually, and purporting to act as a commission under the pretended authority of Laws N. Y. 1917, c. 13, and purporting to act, respectively, as Adjutant General, State Engineer, and Superintendent of Public Works, under the pretended authority of said act. On motion for interlocutory injunction. Motion granted.

This is a motion heard before three judges in accordance with the provisions of section 266 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 [Comp. St. § 1243]), for an interlocutory injunction restraining the defendants from proceeding as a commission under chapter 13, Laws of 1917 of the State of New York, to condemn certain premises belonging to the complainant upon the ground that the law is unconstitutional.

The complainant is a corporation of the state of Delaware, and the defendants are citizens of the state of New York, and inhabitants of the county of Albany.

Gordon M. Buck, of New York City, for complainant.
Alfred L. Becker, Deputy Atty. Gen., for defendants.
Before WARD, ROGERS, and HOUGH, Circuit Judges.

WARD, Circuit Judge. [1] The defendants make a preliminary objection to the jurisdiction of the court on the ground that the suit is against the state, and therefore not maintainable under the Eleyenth Amendment to the Constitution of the United States.

It is, however, well settled that an unconstitutional statute is to be regarded as nonexistent and no defense to state officers acting under it. Davis v. Gray, 16 Wall. 203, 21 L. Ed. 447; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185. We are therefore obliged to consider the objections made by the complainant,

[2-4) Article 1, $ 6, of the Constitution of the State of New York, provides,

nor shall private property be taken for public use, without just compensation," and the Fourteenth Amendment to the Constitution of the United States provides, “Nor shall any state deprive any person of life, liberty or property without due process of law."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*

“The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation, affecting life, liberty, and property, as is offered by the Fifth Amendment against similar legislation by Congress; but that the federal courts ought not to interfere when what is complained of amounts to the enforcement of the laws of a state applicable to all persons in like circumstances and conditions, and that the federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or a deprivation of personal rights, such as existed in the case of Norwood v. Baker, 172 U. S. 269 (19 Sup. Ct. 187, 43 L. Ed. 443).” Hibben v. Smith, 191 U. S. 326, 24 Sup. Ct. 92, 48 L Ed. 195; French v. Barber Asphalt Paving Co., 181 U. S. 324, 21. Sup. Ct. 625, 45 L. Ed. 879.

The question before us is whether the state of New York is proceeding to condemn certain premises belonging to the complainant at Rockaway Point, Long Island, in accordance with the foregoing provisions.

The condemnation proceedings are taken under article 4a, added to the state law (Con. Laws, chap. 57) by chapter 13, Laws of 1917, passed in pursuance of an emergency message from the Governor.

The purpose of the legislation is to regulate the method of condemning premises which are in the judgment of the Governor necessary for public defense. The Adjutant General, State Engineer, and Superintendent of Public Works are constituted the commission to acquire title to such premises. They are directed to make a survey and map thereof; to submit the same, accompanied by certain certificates, to the Governor, and, if approved by him, to file the same in the office of the Secretary of State and in the office of the county clerk of the county in which the premises are situated, and, after service of notice upon the owners or by publication and the performance of certain other prescribed formalities, title to the premises shall vest in the state. Section 59(b) concludes:

"If the commission is unable to agree as to the compensation to be paid for such lands and the structures and waters thereon, the court of claims shall have jurisdiction to determine the amount of such compensation, and upon proceedings being brought before such court as provided by law, an award shall be made of compensation for the lands, structures and waters,

so appropriated.”

The proceedings to be brought before the court of claims, “as provided by law," are evidently those contained in sections 263-281 of the New York Code of Civil Procedure, as amended by chapter 1, Laws of 1915, regulating proceedings in the court of claims, substituted for the former board of claims,

Article 3, § 21, of the Constitution of New York, provides that"no money shall ever be paid out of the treasury of this state or any of its funds or any of the funds under its management except in pursuance of an appropriation by law.

Sections 2 and 3 of article 7 restricted the power of the Legislature to contract debts to a sum not exceeding in the aggregate $1,000,000 at any one time, except to repel invasion, suppress insurrection, or defend the state in war. The creation of all debts exceeding $1,000,000, other than these, must be submitted to the people by referendum Section 4.

Laws making annual appropriations do not and cannot create debts of the state, within article 7, § 4, of the Constitution. They are only effective against funds at the disposal of the Legislature; beyond that they are nullities and create no debt. People v. Board of Supervisors, 52 N. Y. 556. Although that case was decided in 1873, the provisions of the then Constitution of 1846 were in this respect, and in all other respects, considered in this opinion the same as those of the present Constitution of 1894.

Chapter 13, Laws of 1917, goes no further in protection of the landowner than to provide the manner in which the amount of his compensation shall be ascertained. While it is not necessary to ascertain and pay that compensation in advance, there should also be provided a certain and adequate method by which it may be recovered. The right of the citizen to be secured in respect to just compensation for his property taken for public use is as sacred as the right of the sovereign to take it. The sovereign is the whole people of the state, and we believe that all the states of the Union have thought it proper to limit the power of the Legislature to condemn private property for public uses by imposing an express condition that just compensation shall be made. It was not thought sufficient to leave the citizen to the obligation to pay that might be implied by law.

Some decisions of the federal courts are cited but, as we are bound to follow the decisions of the Court of Appeals of the state of New York construing its Constitution and laws, we shall consider those cases only.

In the case of Bloodgood v. Railroad Co., 18 Wend. (N. Y.) 9 (1837), Chancellor Walworth said at page 17 (31 Am. Dec. 313):

"I cannot, however, agree with my learned predecessor in his subsequent reasoning in that case, upon which he afterwards acted in the case of Jerome v. Ross, 7 Johns. Ch. R. 344 [11 Am. Dec. 481], that it is not necessary to the validity of a statute authorizing private property to be taken for the public use that a remedy for obtaining compensation by the owner should be provided. On the contrary, I hold that before the Legislature can authorize the agents of the state and others to enter upon and occupy, or destroy or materially injure, the private property of an individual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation, and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation. I do not mean to be understood that the Legislature may not authorize a mere entry upon the land of another for the purpose of examina. tion, or of making preliminary surveys, etc., which would otherwise be a technical trespass, but no real injury to the owner of the land, although no previous provision was made by law to compensate the individual for his property if it should afterwards be taken for the public use. But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the Legislature to provide him a compensation therefor. The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided, and upon an adequate fund, whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so. In the ordinary case of lands taken for the making of public highways, or for the use of the state canal, such a remedy is provided; and if the town, county, or

state officers refuse to do their duty in ascertaining, raising, or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the Legislature to compel the passage of the necessary laws to ascertain the amount of compensation he is to receive, or the fund out of which he is to be paid."

In People v. Hayden, 6 Hill (N. Y.) 359 (1844), Chief Judge Nelson said at page 361 :

“Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine even as it re spects the state itself, that, at least, certain and ample provision must be first made by law (except in cases of public emergency), so that the owner can werce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay."

In Sage v. City of Brooklyn, 89 N. Y. 190 (1882), Chief Judge Andrews said at page 196:

"It is so axiomatic that it is laid up as one of the principles of government, that a provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. Gardner v. Village of Newburgh, 2 Johns. Ch. 168 [7 Am. Dec. 526). The courts, in construing the constitutional guaranty, have departed from what may seem its plain and natural meaning, and have held that the payment for property taken in invitum for public use need not be concurrent with the taking, but that it is sufficient if the law authorizing the taking also provides a sure, sufficient, and convenient remedy by which the owner can subsequenti coerce payment by legal promeedings. If such provision is not made, then, as was said by Nelson, C. J., 'the law making the appropriation is no better than blank paper.' People ex rel. Utley v. Hayden, 6 Hill, 359. It is, I think, a plain proposition that a law authorizing the taking of a man's land, and remitting him for his sole remedy for compensation to a fund to be obtained by taxation of certain specified lands in a limited district, according to benefits, is not a sure and adequate provision, dependent upon no 'hazard, casualty or contingency whaterer,' such as law and justice require to meet the constitutional requirement. The pledge of the faith and credit of the state, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment has been held to be a certain and sufficient remedy within the law."

In Litchfield v. Pond, 186 N. Y. 66, at page 74, 78 N. E. 719 (1906), Judge Werner said, arguendo:

"Such a statute, if intended to authorize the exercise of the right of emi. nent domain, would be clearly unconstitutional, because it makes no provision for compensation to those whose private property is to be taken for a public use. While payment need not precede the taking the provision for compensation must not only pre-exist, but it must be so detinite and certain as to leave nothing open to litigation except the title to the property taken and the amount of damages which the owner may recover. Sweet v. Rechel, 159 U. S. 380, 398 [16 Sup. Ct. 43, 40 L. Ed. 188]; Sage v. City of Brooklyn, 89 N. Y. 189, 195; Matter of Mayor, etc., of N. Y., 99 N. Y. 569, 577 [2 N. E. 642]; Brewster v, Rogers Co., 169 N. Y. 73, 80 (62 N. E. 164, 58 L. R. A. 495].”

As in the state of New York no compensation can be recovered out of the state treasury except by an appropriation law, and as under

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