Rockaway Pacific Corp. v. Stotesbury

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 Eleventh 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 Amepdment 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.” — 347 — “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 properly, 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 condiüons, 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 Rock-away 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, Stale 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 tbe compensation to be paid for such lauds and tbe structures and waters Ibereon, 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. — 348 — 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 tiróse 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. 484], 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 examination, 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 — 349 — 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, witbin 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 respects the state itself, that, at least, certain and ample provision must bo first made by law (except in cases of public emergency), so that the owner can coerce 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 axiomaliethat 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 subsequently coerce payment by legal proceedings. If such provision is not made, then, as was said by Nelson, O. X, ‘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 he 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 whatever,’ 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 poliiical 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 eminent domain, would be clearly unconstitutional, because it makes no provision for compensation to those whose private property is to bo 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 definite and certain as to leave nothing open to litigation except the title to the property taken and Hie 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 Now York no compensation can be recovered out of the state treasury except by an appropriation law, and as under — 350 — chapter 13, Laws of 1917, the owner’s title to the premises vested in the state before the ascertainment and payment of compensation, it seems to us quite clear that the' law, construed alone, is unconstitutional. It does not comply with the language of Chancellor Walworth in Bloodgood v. R. R. Co., supra., that— “An adequate and certain remedy must be provided whereby the owner of such property may compel the payment of Ms 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.” It does not comply with the language of Chief Judge Nelson in People v. Hayden, supra, that— “The settled doctrine, even as it respects 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 coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay.” It does not comply with the language of Chief Judge Andrews in Sage v. City of Brooklyn, supra, that— “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.” * * It does not comply with the test laid down by Judge Werner in Litchfield v. Pond, supra, that— “While payment need not precede the taking, the provision for compensation must not only pre-exist, but it must be so definite and certain as to leave nothing open to litigation except the title to the property taken and the amount of damages wMch the owner may recover.” We think that, to make chapter 13 of the Laws of 1917 constitutional, it must be accompanied by a law appropriating public funds to pay such an award as the court of claims shall make. The amount of the .compensation is a judicial, and not a legislative, question. Still an appropriation law must be passed, because in no other way can compensation be secured in accordance with the provisions of the Constitution and the long-established practice under it. The necessity of an appropriation act was recognized in this very case, because a hill appropriating $1,000,000, or so much thereof as might be necessary, passed both houses of the Legislature just before the temporary restraining order was granted herein, and the affidavits .inform us that a bill has passed the Senate appropriating $2,500,000, or as much thereof as may be necessary, for the same purpose. The Legislature, by appropriating a sum or so- much thereof as may be necessary to pay any award the court of claims shall make, does not limit or define the amount of the recovery. In our opinion, the appropriation should be of such an amount as is quite certain to cover any award that can reasonably be made. It is safer and fairer to the citizen to fix an amount too large than too small. The affidavits of experts submitted on behalf of the complainant go as high as $2,-000,000, while the defendants show that the assessment for local — 351 — taxation of the whole tract, half as large again as the part sought to bo condemned, is hut $865,000, and that the vice president of the complainant in a verified return for the purposes of state taxation stated that to be its actual value. This court expresses and has no opinion whatever about the proper amount of compensation, and takes it for granted that the ’court of claims will determine the value upon proper proofs, unaffected in any way by the amount of the sum appropriated by the Legislature. [5] No such emergency exists as is excepted in some of the- foregoing cases, justifying the commandeering of private property for public use without any proceedings at all. The premises are now, with the owner’s consent, in the possession of the state; temporary fortifications are being made. The only existing stay is that title shall not vest in the state until a method for recovering the owner’s compensation shall he provided. The Legislature, being now in session, is entirely able to enact an appropriate law. The interlocutory injunction as prayed for is granted, but upon the enactment of a law appropriating a sum not less than $2,000,000, or so much thereof as may be necessary, it will be vacated.