Petition for rehearing granted, not because of doubt of
correctness of the decree, but to prevent misconception concerning
the reasons for dismissing the writ of error in this case,
ante, p.
229 U. S.
326.
The certificate of the judge of the court below that a federal
question was raised and passed upon is not, in the absence of any
journal entry, a certificate of the court, but this Court may, if
there is a recital in the certificate that the court orders the
certificate to be made, accept it as incorporating into the record
the necessary proof of existence of a federal question.
Marvin
v. Trout, 199 U. S. 212,
distinguished.
Where the judgment of the state court rests upon a question of
general law broad enough to support the decision, this Court will
not consider the federal question, although it may have been raised
in, and passed upon by, the court below.
Gaar, Scott & Co.
v. Shannon, 223 U. S. 468.
Page 228 U. S. 597
This Court is not justified in taking jurisdiction on the bare
claim that property has been taken without compensation unless the
averment of fact raise real and substantial questions which are not
so devoid of merit as to be frivolous or which have not been
foreclosed by prior decisions of this Court.
The state courts of Virginia having held that a railroad company
which had acquired title to land on which it had built its roadbed
could condemn the interest in the land of a mortgagee in possession
without paying for its own improvements, this Court declines to
review on the ground that the question of whether the mortgagee was
deprived of his property without due process of law is
frivolous.
The rule of the common law that fixtures annexed to the realty
become a part thereof and subject to existing liens thereon is
subject to many exceptions: in Virginia, a corporation possessing
the power of eminent domain may enter and use for public utility
purposes and condemn the interest of the mortgagee without being
obliged to pay more than the value of the land without such
improvements.
Petition to rehear,
228 U. S. 228 U.S.
326, dismissing writ of error to review 111 Va. 131 denied.
The facts, which involve the jurisdiction of this Court to
review judgments of the state courts where the federal question is
so devoid of merit as to be frivolous, are stated in the
opinion.
Opinion of the Court on petition to rehear, by MR. JUSTICE
LURTON:
We gave leave to file the application for rehearing not because
of any doubt as to the correctness of the decree previously
announced, but because of our desire to prevent any misconception
concerning the reasons by which our previous conclusion to dismiss
was sustained. It is insisted that the certificate of the presiding
judge of the
Page 228 U. S. 598
court below, reciting that a federal question was raised and
passed upon by the court when it considered and disposed of the
petition to rehear, was plainly not the certificate of the judge
alone, but that of the court itself, and therefore was sufficient
to demonstrate the existence of jurisdiction under the ruling in
Marvin v. Trout, 199 U. S. 212.
The judgment of the inferior court in
Marvin v. Trout
had been affirmed without any opinion. Thereafter, the Ohio Supreme
Court ordered what is termed "a journal entry" to be made,
certifying that the plaintiff in error had claimed that the
judgment affirmed was founded upon certain sections of the Revised
Statutes of Ohio, and that the plaintiff in error had
"in his petition asserted that the said sections of the Revised
Statutes were in contravention of specified provisions of the
Constitution of the United States,"
and that the judgment of affirmance was in favor of the validity
of said statutes. This Court said that the certificate was "a
certificate from the court, as distinguished from one by an
individual judge."
In the present case, while it is true that the certificate of
the presiding judge contains a recital to the effect that
"the court orders it to be certified and made a part of the
record in this case, and the Honorable James Keith, president judge
of said Supreme Court of appeals, does now certify,"
etc., there is no journal entry as to the matter, and nothing is
otherwise contained in the record giving the slightest intimation
that a federal question was raised and decided, or the nature and
character of such question, if any.
The distinction between this case and
Marvin v. Trout
is therefore this: here, there is nothing in the record proper
showing that a federal question was considered and passed upon by
the court below, although there is a certificate of the presiding
judge to the effect that such was the case,
Page 228 U. S. 599
while in the
Marvin case, there was a record disclosure
of the existence of the federal question which was in effect also
certified to by the presiding judge of the court below. In other
words, the distinction between the two cases in no way involved the
accuracy of the certificate of the presiding judge, but whether,
conceding -- as, of course, must be done -- its complete accuracy,
it was sufficient to show the existence of jurisdiction in the
absence otherwise in the record of anything establishing that a
federal question was below considered and decided. Despite this
difference, and to prevent any possible inference that there was
any intention to doubt in the slightest degree the accuracy of the
statement contained in the certificate of the presiding judge of
the court below, we have concluded that, as it is recited in the
certificate that it was made by the order of the court itself, for
the purpose of affording record evidence of the fact that a federal
question was considered and disposed of, that we may treat the
certificate to that effect as incorporating into the record the
necessary proof of the existence of some federal question as the
basis upon which our authority to review may be exerted.
Assuming, therefore, that this certificate operates to show that
some federal question was decided when the petition to rehear was
refused, yet, if it also appears that the judgment of the state
court against the plaintiff in error was based upon a question of
general law broad enough to support the decision, this Court will
not consider the federal question, though it was considered and
determined by the court below adversely to the plaintiff in error.
Murdock v.
Memphis, 20 Wall. 590,
87 U. S. 636;
Hale v. Akers, 132 U. S. 554;
Gaar, Scott & Co. v. Shannon, 223 U.
S. 468.
The bare claim that the judgment operated to take property of
the plaintiff in error without compensation is not enough to
justify this Court in taking jurisdiction unless it also appears
from the averments of fact upon
Page 228 U. S. 600
which the claim must depend that the question is one real and
substantial, and not so utterly without merit as to be frivolous,
or a question concluded by previous decisions of this Court.
New Orleans Water Works Co. v. Louisiana, 185 U.
S. 336;
Equitable Assurance Society v. Brown,
187 U. S. 308,
187 U. S. 314;
Deming v. Carlisle Packing Co., 226 U.
S. 102. In
Equitable Assurance Society v. Brown,
supra, it was said: "There must be a real, substantive
question on which the case may be made to turn;" that is, "a real,
and not a merely formal, federal question is essential to the
jurisdiction of this Court." The writ in that case was dismissed,
the Court saying:
"That although a federal question was raised below in a formal
manner, that question, when examined with reference to the
averments of fact upon which it was made to depend, is one which
has been so explicitly decided by this Court as to foreclose
further argument on the subject, and hence to cause the federal
question relied upon to be devoid of any substantial foundation or
merit."
The unsubstantial character of the federal question in the
present case will appear when we come to examine the facts upon
which it depends.
The condemnation proceeding was in the right of the Bay Shore
Company, a public service corporation of the State of Virginia,
possessed of the right of eminent domain. That company was in
possession of the land sought to be condemned, it being a long,
narrow strip acquired for the purpose of constructing thereon a
line of electric railway. It had entered under a warranty deed from
the Consolidated Turnpike Company, another public service
corporation of Virginia. The whole of the property of the latter
corporation was under two mortgages made by it to secure issues of
negotiable bonds, the land acquired under the deed of the Turnpike
Company being but a part of the property subject to the aforesaid
mortgages. The principal defendant below was, and the real
plaintiff in
Page 228 U. S. 601
error here is, Walter H. Taylor, as trustee under both
mortgages. The purpose of the condemnation proceeding was to
condemn the interest of the mortgagees and any other adverse
interest affecting the title of the Bay Shore Company. Though the
entry was under the deed of the Turnpike Company, and therefore
subject to the preexisting liens of Taylor, trustee, the possession
was taken for the purpose of placing thereon the railway tracks,
and of later extinguishing the interest of the mortgagees by
condemnation or otherwise. The claim of the condemning plaintiffs
was that the Bay Shore Company, as a corporation, having the right
of eminent domain, might thus enter by permission of the mortgagor
company, and later condemn the mortgagees' interest by paying the
actual value of the land, without considering the improvements
which it had placed thereon after entry and before the institution
of the proceeding. The judgment of the court below was that the
only compensation which might be demanded by the mortgagees was the
actual value of the land, and that they had in such a proceeding no
right to require the improvements placed thereon by the condemning
railway company to be considered in awarding damages.
The contention of the plaintiffs in error is that the permanent
fixtures annexed to the mortgaged land passed by virtue of the
mortgages to the trustee therein, and that there cannot be any
condemnation which does not value such fixtures in assessing the
value of the land taken. This was the claim which the Virginia
court denied, holding that such a public service corporation had
the right to enter under the deed of the mortgagor company and
later condemn, compensating the mortgagees for the land only.
The contention here made is that, under the Virginia eminent
domain statute, the Bay Shore Company, as a public service
corporation, had no power to condemn the property of the
Consolidated Turnpike Company, another
Page 228 U. S. 602
public service corporation, and that therefore the basis for the
right of condemnation exercised in the state court did not
exist.
It was not necessary to acquire any right, title, or interest
which belonged to the Turnpike Company. Its title and right had
been theretofore acquired through its deed, and all that was sought
to be condemned was such right, title, and interest as was in
Taylor, trustee. That was subject to condemnation, and the single
question which was or is debatable is whether the Bay Shore
Company, which had entered under that deed, might condemn the
mortgagee interest without paying for its own improvements.
The rule of the common law, to which the plaintiffs in error
refer, that fixtures annexed to realty become a part thereof and
subject to existing liens thereon, is one subject to many
exceptions. One of these is that applied by the Virginia court --
namely, that when a corporation possessing the right of eminent
domain enters upon lands necessary for its public purposes, under
the deed of a mortgagor in possession, and places permanent
improvements thereon in good faith, it may later condemn the
interest and title of the mortgagee without being required to pay
more than the value of the land without the improvements placed
thereon with intent to acquire the entire title.
Searl v.
School District, 133 U. S. 561;
St. Johnsbury &c. R. Co. v. Willard, 61 Vt. 134;
Jones v. N.O. R. Co., 70 Ala. 232;
Justice v. Valley
&c. R. Co., 87 Pa. 28; 2 Lewis, Em. Dom., ยง 759, 3d
ed.
From this, it abundantly appears that the decision of the
Virginia court was placed upon the general law of the state, and
that, when the Bay Shore Company entered upon the strip of land
desired for a right of way under the deed of the Turnpike Company,
it might place thereon its tracks and appurtenances, with the right
to condemn the interest of preexisting mortgagees upon paying
the
Page 228 U. S. 603
actual value of the land without the improvement placed thereon
by it.
The claim that, in thus holding and deciding, the court below
denied to the plaintiffs in error due process of law under the
Fourteenth Amendment is neither real nor substantial, but so
entirely without merit as to justify this Court in refusing to take
jurisdiction.
The petition to rehear is accordingly denied.
MR. JUSTICE PITNEY concurs in the result.