Under § 237 of the Judicial Code, as under § 709,
Rev.Stat., in order to give this Court jurisdiction to review the
judgment of the state court, it must appear that some federal
right, privilege, or immunity was specially set up in the state
court, passed on, and denied.
While just compensation for private property taken for public
use is an essential element of due process of law under the
Fourteenth Amendment, the question of whether every element of
compensation was allowed by the state court cannot be reviewed in
this Court except as based on claims specially set up in and denied
by that court.
Where there is an equal right to compensation under the state
constitution as under the Fourteenth Amendment, a mere demand for
just compensation not specifically made under federal right does
not raise a federal question.
An exception to the report of Commissioners on the ground that
their interpretation of the state statute of eminent domain
violates a specified clause of the federal Constitution does not
give this Court the right to review the judgment on the ground that
other rights of the plaintiff in error under the Constitution have
been violated.
It is too late to raise the federal question for the first time
in a petition for rehearing after judgment of the state court of
last resort, unless the record clearly shows that the state court
actually entertains the petition and decides the question.
Where the state court denies a petition for rehearing, setting
up a federal question for the first time, without opinion, it does
not pass on the federal question even though it states that the
petition has been maturely considered.
Forbes v. State
Council, 216 U. S. 396.
While a certificate of the state court can make more definite
and certain that which is insufficiently shown in the record, it
cannot import the question into the record and, in itself, confer
jurisdiction on this Court to review the judgment.
Writ of error to review 111 Va. 131 dismissed.
Page 228 U. S. 327
Certain facts essential to the presentation of the questions of
law upon which the judgment must turn will be preliminarily
stated.
The Consolidated Turnpike Company, a corporation of the State of
Virginia, acquired and united two or more toll roads, extending
from Norfolk to Ocean View, on the seashore. The land acquired was
somewhat more than was needed for a turnpike, and so the turnpike
company, by warranty deed, conveyed a strip 18 to 25 feet wide to
the Bay Shore Terminal Company, also a Virginia corporation, upon
which the latter company constructed a line of electric railway,
with the necessary powerhouses and stations. This conveyance was
made subject to two prior mortgages. These mortgages were for the
purpose of securing bonds, and the plaintiff in error Taylor is
trustee in both, and the plaintiff in error Depue a holder of some
of the bonds.
The Bay Shore Company in time became insolvent, and a creditors'
bill was filed in the Circuit Court of the United States at
Norfolk, and its road and assets of every kind placed in the hands
of a receiver. In that proceeding, it appeared that its property
was encumbered by the two mortgages before referred to and other
liens. To clear the title before sale, the circuit court directed
its receiver to file a proper proceeding in a court of the state
for the purpose of condemning any adverse title and all outstanding
claims or liens against the land occupied by its tracks and
appliances. Such a proceeding was accordingly filed, and Taylor, as
trustee under the two deeds in trust, was made a defendant,
together with certain others claiming other interests or liens.
Depue, as a holder of bonds secured by the deeds in trust,
intervened in behalf of himself as a beneficiary. The final decree
in that proceeding is the decree here under review. Pending the
condemnation proceedings, the property of the Bay Shore Terminal
Company was sold under a decree made in the
Page 228 U. S. 328
original winding up suit in the United States circuit court, and
purchased by the defendant in error, the Norfolk & Ocean View
Railway Company, and conveyed to that company, "with the benefit of
and subject to all suits and proceedings which have been or may be
instituted by said receiver."
Pending this condemnation proceeding, Taylor, as trustee, and
Depue, as a beneficiary, although parties to the pending
condemnation case, began, in a state court, a proceeding against
the turnpike company to foreclose the mortgages referred to. The
Ocean View Company, as purchaser of the property of the Bay Shore
Company under the decree of sale made by the circuit court of the
United States, applied to that court by petition and supplemental
bill to enjoin the foreclosure suit until the proceeding to condemn
the mortgagee interest pending in another state court should be
decided. It was accordingly enjoined, and, upon appeal by Taylor,
trustee, to the circuit court of appeals, the injunction decree was
upheld. 162 F. 452.
Recurring now to the condemnation proceeding: Commissioners were
appointed and directed to ascertain
"a just compensation for the interest of all persons or
corporations having any interest in or claim against or lien upon
said land, either by deed in trust or mortgage."
They were directed to report the present value of the land with
and without improvements, and the value thereof on May 1, 1902, the
date of the conveyance of same by the Consolidated Company to the
Bay Shore Company. The Commissioners' report was as follows:
If valued as of the 1st day of May, 1902 . . . $ 5,000
Will be a just compensation
If valued as of the date of this report,
without improvements . . . . . . . . . . . . 6,200
Will be a just compensation
Page 228 U. S. 329
For the land, with improvements. . . . . . . . 7,200
For the steel rails. . . . . . . . . . . . . . 15,000
For the railroad ties. . . . . . . . . . . . . 1,250
For the poles. . . . . . . . . . . . . . . . . 1,250
For the overhead construction. . . . . . . . . 2,500
For the machinery in power house . . . . . . . 25,000
For the buildings on tract No. 2 . . . . . . . 5,000
-------
Making a total of . . . . . . . . . . . . $57,200
Will be a just compensation
Later the report came on to be heard upon exceptions filed
thereto by Depue, as representing the beneficiaries under the
Taylor mortgages. Taylor, as trustee, had all along been a party,
and when Depue waived and withdrew nine of his exceptions to the
report, Taylor joined him in such waiver of exceptions. The
exceptions which remained included exceptions to the valuation
reported as of May, 1902, and the valuation reported as of the date
of the report, May 15, 1906.
As the report was in the alternative, the question was whether
that part of the report which fixed the value without improvements,
or that part which fixed the value with improvements, should be
adopted. The trial court fixed the just compensation at $57,200,
which included the value added by the railway and stations which
had been placed thereon by the Bay Shore Company, the predecessor
in title of the Ocean View Company, and directed the latter company
to deposit that sum in bank, subject to the court's order.
From this decree an appeal was taken to the Supreme Court of
Appeals of Virginia, where it was held that the compensation for
the mortgagee interest should have been limited to the present
value of the property without improvements placed thereon by the
Bay Shore Company.
Page 228 U. S. 330
MR. JUSTICE LURTON, after making the foregoing statement,
delivered the opinion of the Court.
The case comes here under § 709, Revised Statutes, now
§ 237 of the new Judicial Code. It must therefore appear that
some right, privilege, or immunity was claimed under the
Constitution, or some statute of the United States, and that the
decision was against the right, privilege, or immunity so claimed
and specially set up by the plaintiff in error.
The error assigned here is that, in permitting the condemnation
of the interest of the mortgagees in the strip of land condemned
without including the value of the permanent improvements placed
thereon by the predecessor in title of the defendant in error, the
Virginia court has authorized the taking of the property of the
mortgagee plaintiff in error "without due process of law, in
violation of the Constitution of the United States."
Just compensation for private property taken for public use is
an essential element of due process of law as guaranteed under the
Fourteenth Amendment.
C., B. & Q. R. Co. v. Chicago,
166 U. S. 226. The
argument is that, if therefore just compensation required that the
compensation awarded for the interest condemned should include the
value of the land with improvements, and the value of such
improvements be not so included, due process is lacking; that it
would not in such case be a mere claim of inadequate compensation,
but a denial of all compensation for an element of value actually
existing as a part of the property taken.
C., B. & Q. R.
Co. v. Chicago, supra; Appleby v. Buffalo, 221 U.
S. 524.
Page 228 U. S. 331
Before considering whether this is a case for the application of
the principle invoked, however, the preliminary question is whether
any such claim or right, under the Fourteenth Amendment was
"specially set up" in the state court, and whether the record shows
that the right so specially set up was denied.
It is contended that the right to just compensation was the
whole substance of the litigation in the state court, and that this
right arose under the Constitution of the United States. This
latter assertion does not necessarily follow, since, under the law
and Constitution of the state, the plaintiffs in error were equally
entitled to due process of law, including just compensation for
property taken for public purposes, and the case might well have
been litigated wholly upon local law. Just such a contention was
held ineffectual in
Osborne v. Clark, 204 U.
S. 565,
204 U. S. 569,
when it was said:
"If a case is carried through the state courts upon arguments
drawn from the state constitution alone, the defeated party cannot
try his chances here merely by suggesting for the first time when
he takes his writ of error that the decision is wrong under the
Constitution of the United States.
Crowell v.
Randell, 10 Pet. 368,
35 U. S.
398;
Simmerman v. Nebraska, 116 U. S.
54;
Hagar v. California, 154 U. S.
639;
Erie Railroad v. Purdy, 185 U. S.
148,
185 U. S. 153."
The ground upon which the claim was asserted to compensation for
the improvements placed upon the land by the Bay Shore Company was
the common law principle that permanent structures placed upon the
realty of another by a trespasser become the property of the owner
and pass under any encumbrance created by the owner. Therefore, it
was contended, if the Bay Shore Company saw fit to construct upon
land subject to the deeds of trust represented by the plaintiffs in
error, with no other authority than that of a deed from the
mortgagor in possession, the structures placed thereon passed under
the mortgage,
Page 228 U. S. 332
and any decree condemning the land which denied compensation for
the value of the land thus enhanced operates to deprive the
mortgagees of a part of their security without due process of
law.
This view of the law of the state was the view which the trial
court accepted, upon the authority of the case of
Newport News
&c. Ry. v. Lake, 101 Va. 334. The supreme court of the
state, upon appeal, reversed this conclusion and held that
"where a corporation clothed with the power of eminent domain
lawfully enters into the possession of land for its purposes, and
places improvements thereon, and afterwards institutes condemnation
proceedings to cure a defective title or to extinguish the lien of
a deed of trust, it is not proper, in ascertaining 'just
compensation' for such land, to take into consideration the value
of such improvements."
"The commissioners, in their report, ascertained the value of
the land as of the date of their report, without considering the
improvements, at $6,200. This sum, we think, should have been fixed
as the just compensation for the land taken, and the trial court
erred in not so holding."
The case of
Newport News &c. Ry. v. Lake, supra,
relied upon by the trial court, was distinguished, the supreme
court saying that, in that case,
"the premises had been sold under the deed of trust, and the
purchaser, who was the defendant in the condemnation proceedings,
had recovered the premises in an action of ejectment after the
improvements had been placed upon the premises by the railway
company under the authority of the grantors in the deed of
trust,"
and was therefore not limited to the value of the land as it was
before the improvements.
Up to the filing of this opinion by the supreme court of the
state, no right or claim to due process of law under the Fourteenth
Amendment was anywhere specially set up upon the record. Nor is
there any mention of the
Page 228 U. S. 333
Constitution of the United States aside from that found in the
fifteenth exception to the report of the commissioners to assess
compensation. The exception referred to was in these words:
"15. Said report is also excepted to by said Arthur W. Depue on
the ground that, if it is held that the proper interpretation of
the present statute of eminent domain is that this property can be
taken, and that in the measure of damages the value of the land
alone is to be considered, without improvements, then that such
interpretation impairs the obligation of a contract within the
Constitution of the United States, because it is a different
interpretation from what the Court of Appeals of Virginia, prior to
this new statute, has placed upon the statute law relative to such
improvements."
At most, that is a vague claim that, if the Virginia eminent
domain statute shall be construed as excluding damage for
improvements, there would result a change of decision which would
impair the obligation of a contract.
No question of the impairment of the obligation of a contract
was decided in the trial court nor in the supreme court, nor is any
such question assigned as error here, nor presented in argument.
Upon a petition for a rehearing filed in the supreme court, one of
several grounds stated was that a decree taking the land in
question without compensation for the improvements thereon would
be
"a taking without due process of law, in violation not only of
the Constitution of Virginia, but of the Fourteenth Amendment to
the Constitution of the United States."
This application was refused, without opinion, the judgment
entry being in these words: "The court having maturely considered
the petition aforesaid, the same is denied."
The words "maturely considered" do not import any decision of
the question made. Just such an entry has
Page 228 U. S. 334
been held to be no more than a refusal to rehear the case.
Forbes v. State Council, 216 U. S. 396.
Nothing is better settled than that it is too late to raise a
federal question for the first time in a petition for a rehearing,
after the final judgment of the state court of last resort. If,
however, the state court actually entertains the petition and
decides the federal question, and this appears by the record, the
requirement of § 709 that the right shall be specially set up
and denied is complied with.
McCorquodale v. Texas,
211 U. S. 432;
Mallett v. North Carolina, 181 U.
S. 589;
McMillen v. Mining Company,
197 U. S. 343,
197 U. S.
347.
Having neglected to raise any federal question before the final
judgment in the state supreme court, and having failed to obtain a
rehearing that the question might thereby be raised and a decision
obtained upon it, the plaintiffs in error have endeavored to show
that, in fact, the Supreme Court of Virginia did rehear the case
upon their petition, and did decide the federal question, therein
for the first time raised, adversely, by obtaining the certificate
of the chief justice of the court, months after the court had
handed down its final opinion, that the court
"refused the said petition for a rehearing on the ground,
inter alia, that he decree or decision of this Court . . .
did not constitute a taking of the property of the defendants in
error without due process of law in violation of the Fourteenth
Amendment to the Constitution of the United States, and that the
defendants in error were not thereby deprived of any rights under
said Amendment."
This certificate was never made the order of the court and a
part of the record, as in
Marvin v. Trout, 199 U.
S. 212, where it was held "perhaps sufficient" to show
what federal question was decided in a case where no opinion was
filed. But that such a certificate can do no more than make more
definite and certain that which otherwise may be insufficiently
shown by the record proper is the settled
Page 228 U. S. 335
rule of this Court. That, in itself, it cannot confer
jurisdiction is too plain for controversy.
Seaboard Air Line v.
Duvall, 225 U. S. 477;
Home for Incurables v. New. York, 187 U.
S. 155. At the utmost, it may aid to the understanding
of the record.
Gulf & Ship Island Railway v. Hewes,
183 U. S. 66.
For the reasons stated, the writ of error must be
Dismissed.
