Walker v. City of Hutchinson/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

Appellant contends that the provision of Kan.Gen.Stat.1949, § 26-202, allowing notice of the hearing on compensation to be given by one publication in the official city newspaper of itself violates the provision of the Fourteenth Amendment that no State shall 'deprive any person of life, liberty, or property, without due process of law * *  * .' The first issue that faces us, however, is to decide from the pleadings exactly what it is that we must decide in this case.

Once appellant discovered that his land had been condemned and that the time for appeal from the award of the commissioners had passed, various possible courses of action, followed separately or in combination and each raising different issues, were open to him. If he considered the award fair but still desired to keep his land, he could have contended that unconstitutionality of the notice for the hearing on compensation invalidated the taking. If he considered the award unfair, he could have alleged in an appropriate action the unconstitutionality of the notice of the compensation hearing and the inadequacy of the compensation and sought to obtain fair compensation, see Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751, or to restrain entry onto his land until he received a hearing under Kan.Gen.Stat.1949, § 26-202, or, making a further allegation of the invalidity of the taking, to obtain a permanent injunction. At this stage, it is not relevant for me to imply any opinion on the merits of any of these possible courses of action.

On a fair reading of the complaint, appellant chose to pursue only the first course. The theory of his action, an attempt to restrain the city from trespassing on his land, is that he still has the right to possession. His petition for injunction based this right to possession solely on the allegation that the statutory notice was insufficient. Nowhere in his petition for an injunction does appellant make any factual allegation that the money deposited by the commissioners did not represent the fair value of his land and therefore left him out of pocket. Nowhere did he indicate that he wanted an injunction only until he received a hearing. The whole theory of his petition is that the property that was being taken without due process of law was his land, not its money value.

In a memorandum filed after oral argument in this Court, appellant contends that the allegation of 'irreparable damage' is a sufficient allegation of monetary loss. He states: 'Of course, there could be no irreparable damage-indeed there could be no damage at all-unless the amount of the award was less than the actual value of the property. Had this been an action for damages, then an allegation of the differences in value would logically have been found in the petition. But it was an injunction proceeding.'

But an allegation of 'irreparable damage' is merely a legal conclusion, flowing from, and justified by, the necessary allegation of facts warranting injunctive relief. The usual factual assertion underlying such an allegation in a suit to restrain trespass is that the threatened continuous nature of the entry represents the 'irreparable damage.' Indeed, in his petition for injunction, appellant made the usual factual assertion, immediately preceding the prayer for relief:

'That at the present moment defendant City of Hutchinson,     either itself, or by contractors employed by it, is, or is      threatening to enter upon said real estate owned by the      Plaintiff, and this for the purpose of building a highway      across said real estate, all in utter and complete disregard      of the rights of this Plaintiff.'

In view of this assertion and the absence of any other assertion with respect to 'irreparable damage,' appellant's claim that monetary loss is alleged is baseless.

If the Kansas Supreme Court had construed the pleading of 'irreparable damage' as implying a factual assertion that the award was less than the fair value of the land, I would accept that construction. See Saltonstall v. Saltonstall, 276 U.S. 260, 267-268, 48 S.Ct. 225, 226, 72 L.Ed. 565. But the Kansas Supreme Court did not construe the pleadings at all. It decided the case by upholding the constitutionality of the statute. Kansas has a right to make such an abstract determination for itself. This Court, however, can decide only 'Cases' or 'Controversies.' U.S.C.onst., Art. III, § 2. It has no constitutional power to render advisory opinions. To assume that the Kansas courts construed these pleadings sub silentio as alleging monetary loss is to excogitate. A much more probable inference is that since the issue so controlling for this Court's jurisdiction was not raised in the pleadings, the Kansas court did not concern itself with it. In any event, lacking an explicit construction of the pleadings by the Kansas courts, we must construe the pleadings ourselves to decide what constitutional questions are here raised on the record as it comes to us. See Doremus v. Board of Education, 342 U.S. 429, 432, 72 S.Ct. 394, 396, 96 L.Ed. 475.

In my view, the only constitutional question raised by appellant is whether failure to give adequate notice of the hearing on compensation of itself invalidates the taking of his land, apart from any claim of loss. We have held many times that the State's interest in the expeditious handling of condemnation proceedings justifies the taking of land prior to payment, without violating the Due Process Clause, so long as adequate provision for payment of compensation is made. See, e.g., Bragg v. Weaver, 251 U.S. 57, 62, 40 S.Ct. 62, 64, 64 L.Ed. 135. Appellant must be able to show that the provisions for payment, as they operated in his case, were inadequate before he can attack the Kansas statutory scheme for compensation in condemnation cases. See Ashwander v. T.V.A., 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 and cases cited note 6 (Brandeis, J., concurring); cf. Smith v. State of Indiana, 191 U.S. 138, 148-149, 24 S.Ct. 51, 52, 48 L.Ed. 125. Since on the record before us the compensation was not alleged to be inadequate, the taking was valid and the judgment of the Kansas Supreme Court should be affirmed. At the very least, the case should be returned to the Kansas court so that we may have the benefit of its construction of the pleadings. See Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476.

But the Court, without explicitly construing the pleadings, passes upon the constitutionality of Kan.Gen.Stat.1949, § 26-202. Without intimating any opinion whether in the circumstances of this case appellant was denied the due process required in determining fair compensation for property taken under the power of eminent domain, I feel constrained to point out that the Court's decision does not hold the taking itself invalid and therefore does not require the Kansas court to grant an injunction so long as appellant's rights are protected.

APPENDIX.

'In District Court of Reno County, Kansas

'Amended Petition

'Comes now Lee Walker, the plaintiff herein, by his attorneys, Oswald & Mitchell, and for his cause of action against the City of Hutchinson, Reno County, Kansas, T. E. Chenoweth, City Manager, Robert G. King, Mayor and Members of the City Commission, Charles N. Brown, Jerry Stremel, R. C. Woodward and C. E. Johnson, Members of the City Commission, all of the City of Hutchinson, Reno County, Kansas, respectfully states to the Court:

'2. That the Plaintiff is a resident of Hutchinson, Reno County, Kansas, and that his post office address is 907 East 11th Street, Hutchinson, Kansas; that he is a Negro; that he was born in Bargtown, Kentucky on the 15th day of October, 1875; and that he had, as a youth, an education equivalent to the Sixth Grade.

'3. That Defendant City of Hutchinson, Reno County, Kansas is a municipal corporation; that the above named individual Defendants are respectively T. E. Chenoweth, City Manager, Robert G. King, Mayor and a member of the City Commission, Charles N. Brown, Jerry Stremel, R. C. Woodard and C. E. Johnson, members of the City Commission, all of the City of Hutchinson.

'4. That on or about the 27th day of February, 1905, the Plaintiff acquired fee simple title through a Warranty Deed, duly executed by one Arthur Walker, which deed was duly recorded with the Register of Deeds of Reno County, Kansas, on the 28th day of February, 1905, in Book 85, Page 479, to the following described real estate, all situated in Reno County, Kansas:

'Lots thirty-seven (37), thirty-eight (38), thirty-nine (39),     forty (40), forty-one (41), forty-two (42), forty-three (43),      forty-four (44), forty-five (45), forty-six (46), forty-seven      (47) and forty-eight (48), Block Five (5), Maple Grove      Addition to the City of Hutchinson,

'and ever since that time, the Plaintiff has owned same, enjoyed quiet and peaceful possession thereof and likewise has had and enjoyed all the fruits of such ownership, and has paid, from time to time, all assessments and taxes of every kind and nature legally assessed against said real estate; that he is therefore now the legal and equitable owner of said real estate.

'5. That on or about the 12th day of April, 1954, the defendant City of Hutchinson, through its duly elected or appointed, qualified and acting officials, filed an action in the District Court of Reno County, Kansas, entitled:

'In the matter of the application of the city of Hutchinson,     Kansas, a municipal corporation, for the appointment of      commissioners in the matter of the condemnation of property      for the acquisition of right of way for the opening, widening      and extending of portions of Eleventh Avenue, Harrison Street      and Twenty-third Avenue in the city of Hutchison, Kansas,

'the same being docketed as Case No. 7867.

'6. That said action was for the purpose of taking from the Plaintiff and condemning certain portions of the above described real estate, as a by-pass, so to speak, for Hutchinson's Super-Sports Arena.

'7. That the Plaintiff has never been, at any time, notified in any manner that the City of Hutchinson coveted the bit of real estate as a by-pass to Hutchinson's Super-Sports Arena he has owned since 1905; nor has he ever been served with any summons, nor given any other personal notice of any kind whatsoever that said defendant City of Hutchinson had filed the aforesaid action for the purpose of taking a part of his said real estate.

'8. That the pretended right of defendant City of Hutchinson to the real estate above legally described, owned by the Plaintiff, rests upon the authority, so far as this Plaintiff and counsel have been able to ascertain, of G.S. 26-201 and 26-202, and Reno County, Kansas District Court Case No. 7867, more fully described in Paragraph 5 herein, brought thereunder, which statute or statutes are void and of no force and effect whatsoever, because same attempt to vest the power in certain municipalities to take property without due process of law.

'9. That the only notice to an owner of real property, which G.S. 26-201 and 26-202 requires is by publication, which is not sufficient notice under the above mentioned due process clauses of both Federal and State Constitutions.

'10. That the Plaintiff had no actual notice, and did not actually know, or have any reason to know that Defendants sought to condemn and take his land, until approximately the middle part of August, 1954; unless by a peculiar quirk of the imagination, it can be said that the single legal publication, published just once in The Hutchinson News-Herald, and that on the 14th day of April, 1954, gave him notice; that said single notice so published in the official newspaper was not sufficient notice to satisfy the requirements of the Due Process clauses of both Federal and State Constitutions.

'11. That at the present moment defendant City of Hutchinson, either itself, or by contractors employed by it, is, or is threatening to enter upon said real estate owned by the Plaintiff, and this for the purpose of building a highway across said real estate, all in utter and complete disregard of the rights of this Plaintiff.

'12. That the Plaintiff is entitled to an Order of this Court instanter, enjoining and restraining defendant City of Hutchinson from entering upon, or in any manner trespassing upon said real estate, for the reason, inter alia, that there is no other remedy, either at law or in equity, open to the Plaintiff; that if said defendant City of Hutchinson is not so restrained and enjoined, the Plaintiff will suffer irreparable damage by reason thereof.

'13. That the Plaintiff is advised that in some orders by Courts of competent jurisdiction, in the granting of a restraining order, or temporary injunction of this nature, the party seeking same, and obtaining same, is required to post certain indemnity or other type of bond or bonds; that the Plaintiff hereby respectfully and humbly advises the Court that by reason of his limited financial resources, he cannot post such a bond, and therefore asks, upon the above and foregoing statement of facts, that the Court does not make the giving of such a bond or bonds as a condition precedent to Plaintiff's obtaining a restraining order or temporary injunction at this time.

'14. That by reason of the above and foregoing facts, the Plaintiff is entitled to have, and desires to have a permanent injunction against defendant City of Hutchinson, restraining and enjoining it, and its servants, agents and all others in its employment, from entering or trespassing upon the Plaintiff's real estate, above described, or preventing him from otherwise enjoying the quiet and peaceful enjoyment thereof.

'Wherefore and by reason of the foregoing, the Plaintiff prays for an immediate Order of this Court restraining and enjoining defendant City of Hutchinson from entering or trespassing upon the Plaintiff's real estate, above described. and the Plaintiff further prays for a judgment of this Court permanently enjoining and restraining the City of Hutchinson from entering or trespassing upon Plaintiff's real estate, above described; and Plaintiff further prays for judgment for his costs herein, and for such other and further relief as to this Court seem just and equitable.'