General Box Company v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice HARLAN concurs, dissenting.

We have at the root of this case a question of Louisiana law whether the timber grown on batture is 'property' and, if so, whether it may be confiscated without any opportunity to the owner to salvage or remove it. The timber concededly is of value. It is bought and sold and plays a significant role in the conduct of commercial enterprises. The Court apparently concedes that the timber is 'property' within the meaning of the Fifth Amendment. Otherwise the Court would not reserve decision on whether the Due Process Clause of the Fifth Amendment has been violated. If the timber is 'property' so far as the Due Process Clause is concerned, it would seem to be 'property' within the meaning of the Just Compensation Clause of the same Amendment. The question then comes down to whether the timber may be confiscated without any notice to the owner. If Louisiana could not confiscate the timber, then the United States certainly may not. For the United States has succeeded to such ownership as Louisiana has.

Concededly this land between low- and high-water mark-the batture-may be used as the State chooses for the construction and maintenance of levees without compensation to anyone. But we have it on excellent authority that, under Louisiana law, private property on the batture may not be confiscated without reasonable opportunity of the owner to salvage it. The authority is the eminent district judge who decided this case, Hon. Ben C. Dawkins. Judge Dawkins, who was appointed to the federal bench in 1924, was a Louisiana lawyer of distinction. He not only practiced law in that State. From 1912-1918 he was a state district judge and from 1918-1924 an associate justice of Louisiana's Supreme Court. He was a member of the Louisiana Constitutional Convention in 1921. Indeed, Judge Dawkins was the author of Art. XVI, § 6 of the Louisiana Constitution, which provides that batture may be taken for levee purposes without compensation. See General Box Co. v. United States, D.C., 107 F.Supp. 981, 983. Judge Dawkins held that, under Louisiana law, notice to the owner of the timber was necessary. There is no square holding of the Louisiana courts on the point. The problem lies in the penumbra of Louisiana law, making all the more difficult a prediction as to what the Louisiana courts would hold. On questions far less complicated or obscure than this one, we have deferred to decisions of the lower federal judge on the local law of his own State. See MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280, 281, 62 S.Ct. 607, 86 L.Ed. 846; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246; Hillsborough Tp., Somerset County, N.J. v. Cromwell, 326 U.S. 620, 630, 66 S.Ct. 445, 451, 90 L.Ed. 358; Steele v. General Mills, 329 U.S. 433, 439, 67 S.Ct. 439, 442, 91 L.Ed. 402; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520; Bernhardt v. Polygraphic Co., 350 U.S. 198, 204, 76 S.Ct. 273, 276.

Judge Dawkins relied on Pruyn v. Nelson Bros., 180 La. 760, 768, 157 So. 585, 587, where the Louisiana Supreme Court in reviewing the servitude governing batture said:

'This servitude is limited only by the reasonableness of its     use, and the administrative officers of the state of      Louisiana are charged with determining that limit, subject to      review by the courts only when oppression or injustice is      shown and proved.'

Judge Dawkins ruled that what was done in this case amounted to 'oppression or injustice' within the meaning of the Pruyn case. See 119 F.Supp. 749, 751. I would defer to his judgment. We are dealing with nuances of local law that only one trained in it can evaluate. The difficulty is compounded for common-law lawyers. For this is civil law that has overtones from distinct languages and history.

Mr. Justice Holmes wrote, in a case from Puerto Rico, of the special deference due local judges on rulings upon matters under the civil law. Diaz v. Gonzalez, 261 U.S. 102, 105-106, 43 S.Ct. 286, 287, 67 L.Ed. 550:

'This is especially true in dealing with the decisions of a     Court inheriting and brought up in a different system from      that which prevails here. When we contemplate such a system     from the outside it seems like a wall of stone, every part      even with all the others, except so far as our own local      education may lead us to see subordinations to which we are      accustomed. But to one brought up within it, varying emphasis, tacit assumptions, unwritten practices, a thousand     influences gained only from life, may give to the different      parts wholly new values that logic and grammar never could      have gotten from the books.'

I cannot read the Louisiana decisions without feeling that Judge Dawkins was right on the law. The servitude governing batture is dominant but not absolute. Private property must give way before it-but only to extent that the public welfare demands. As stated in Peart v. Meeker, 45 La.Ann. 421, 426, 12 So. 490, 492:

'It is undoubtedly the duty of the public officers charged by     the state with the execution of its police power, to make no      greater sacrifice of private rights than the public welfare      demands. In several cases this court has said that the power     so conferred is not arbitrary, and that the citizen is not      without remedy to subject it to judicial control in proper      cases.' If the State destroyed a home or other structure in the batture without notice to the owner, I think Louisiana would grant a remedy-provided of course the State was not confronted with an emergency and did not have to act with speed. But, where there is time to give notice, it is 'oppressive' not to do so, as Judge Dawkins said.

Even if I am mistaken in this view of the Louisiana law, I would hold as a matter of federal law that the United States cannot rely on the state-created servitude to justify its own action, which borders on the wanton destruction of the property interests of the private owners of the timber. For all that appears, General Box was prepared to remove the timber without additional expense or delay to the United States.

The requirement of notice is deeply engrained in our system of jurisprudence. Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865; Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724. The taking of property without notice where notice can reasonably be given, and with the result that the owner is deprived of the chance to salvage the property, is sheer confiscation.