A telegraph company whose line occupied part of a railroad right
of way under an expired contract with the railroad company obtained
a judgment under Ky.Stats. § 4679c adjudging it a right to condemn
the easement and fixing the damages, which it paid into court, and,
pending an appeal upon which the circuit court of appeals ordered a
new trial on the right to include part of the property affected and
on the damages, an act was passed (Acts 1916, c. 15) providing
generally that no part of a railroad right of way should be
condemned, longitudinally, for a telegraph line, and making no
exception of pending cases.
Held:
(1) That the telegraph company acquired no vested right through
the judgment, and its right to condemn was repealed by the later
act. P.
258 U. S.
18.
(2) Kentucky Stats. § 465, declaring against construing a new
law to repeal a former law as to rights accrued or claims arising
under it or in any way whatever to affect any right accrued or
claim arising before the new law takes effect, was inapplicable. P.
258 U. S.
19.
(3) The withdrawal of the right of condemnation violated neither
the Fourteenth Amendment nor the provision of the Kentucky
Constitution forbidding any interference by the legislature with
judicial proceedings in court. P.
258 U. S.
19.
Affirmed.
Page 258 U. S. 14
Appeal from a decree of the district court dismissing
appellant's petition in condemnation. A formal appeal in this case
went to the circuit court of appeals. 249 F. 385. In an ancillary
proceeding, an injunction was granted by the district court, 201 F.
946, and sustained by the circuit court of appeals, but, on a
subsequent appeal, that court decided that it should be dissolved
because of the repealing statute here in question.
See 268
F. 4, 13.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Plaintiff in error, herein called the Telegraph Company, brought
this proceeding to condemn an easement upon the right of way of
defendant in error, herein called the Railroad Company, in exercise
of a right conferred by a Kentucky statute of 1898 (Ky. St. §
4679c). [
Footnote 1]
Page 258 U. S. 15
The purpose is to condemn as a right under the sanction of the
statute so much of the right of way of the Railroad Company as was
occupied at the time of suit by the Telegraph Company under a
contract with the Railroad Company, which was about to expire.
After pleadings in addition to the petition and answer, the case
was tried to a jury, which returned a verdict fixing the
compensation and damages at $500,000. The verdict was received and
entered, and it was adjudged by the court that the Telegraph
Company have the right it petitioned for.
A new trial was ordered, and the court reserved to itself the
decision of the necessity of the easement, and whether, if
adjudged, it "would interfere with the ordinary use by" the
Railroad Company "of its right of way or with the ordinary travel
and traffic on the railroad." Both questions were ultimately
resolved in favor of the Telegraph Company, and, a jury, having
been duly impaneled and instructed by the court, assessed the
damages and compensation to be paid at five thousand dollars.
It was then adjudged that the Telegraph Company should have the
right of way prayed for. There were specific details of the manner
of acquisition and use, and explicit description of the location,
with provisions for changes in location according to the
necessities of the Railroad Company.
On March 8, 1916, the Telegraph Company paid into the court the
amount of the award and costs.
The Railroad Company prosecuted error to the circuit court of
appeals. The court, after an elaborate consideration of the case,
said that it inferred
"from the record (the specific question has not been argued)
that there are comparatively small fractions of the right of way as
to which it may be reasonably claimed that the interference with
the railroad use is too serious to permit condemnation."
It was intimated, however, that "an award
Page 258 U. S. 16
of damages" might "meet the case," but that it might be that
another telegraph line could not be so placed as not to
substantially obstruct the use by the Railroad Company of its right
of way for some railroad purpose. The court therefore concluded
that the verdict of the jury and the judgment entered thereon must
be set aside and the case remanded for new trial upon the question
of amount of compensation and for such further hearing and decision
upon the question of the forbidden interference in specific places
as the opinion indicated might be open.
Louisville & N. R.
Co. v. Western Union Tel. Co., 249 F. 385. As we construe the
decision, there was a reversal not only on the question of damages,
but on the question of the interference by the easement petitioned
for with the use by the railroad of its right of way. And hence
there might be brought into consideration a conflict between the
uses, the resolution of which would determine for or against the
right of the Telegraph Company under the law of 1898.
On March 14, 1916, the legislature of the state repealed the Act
of March 1898. [
Footnote 2]
Page 258 U. S. 17
Upon the return of the case to the district court, the Railroad
Company, in an amended answer, pleaded the Act of March 14, 1916,
and moved a dismissal of the petition upon the ground that that act
had withdrawn the right to prosecute it. To this answer the
Telegraph Company replied that the Act of March 14, 1916, did not
affect the litigation, and, that, if it be given that effect, it
would be void under the constitution of the state because of
legislative interference with "proceedings pending in a judicial
tribunal." And further that, under a proper construction of the
statutes of the state, the present proceedings were not affected by
them, and, if so applied, they would violate the constitution of
the state and the Fifth and Fourteenth Amendments to the
Constitution of the United States.
The court denied the motion to dismiss the petition, deciding
that the repealing act, taken in connection with Ky.St. § 465,
[
Footnote 3] was not intended
to affect pending cases, and that, if so intended it, the repealing
act, was void under the constitution of the state, which precludes
interference with judicial proceedings, the courts having the
"exclusive right to determine the law of existing cases."
The ruling was contrary to that subsequently made by the circuit
court of appeals, the latter court holding, reversing the district
court's action in refusing to dissolve the injunction that had been
granted against the Railroad Company in a suit brought for that
purpose, that, within the meaning of § 465, the Telegraph Company
had not acquired any vested right when the repealing act was
passed, and that therefore that act terminated the right of eminent
domain conferred upon it, the Telegraph
Page 258 U. S. 18
Company, by the law of 1898. A petition for rehearing was
denied.
Louisville & N. R. Co. v. Western Union Tel.
Co., 268 F. 4, 13. [
Footnote
4]
The district court, no doubt regarding the decision of the
circuit court of appeals as an authoritative construction of the
statutes (repealing act and § 465), on motion of the Railroad
Company notwithstanding the invocation of the Constitution of
Kentucky and the Constitution of the United States by the Telegraph
Company, reversed its former ruling and dismissed the petition.
From this statement of the case, it is clear that the
constitutionality of the repealing act is the determining question
in the case -- its "storm center," to use the words of counsel, and
to the ruling of the court sustaining its constitutionality this
writ of error is directed. And it was not introduced into the cause
until it, the cause, was sent back for a new trial on all of the
issues by the circuit court of appeals.
The assignments of error of the Telegraph Company are in effect
repetition of its contentions in the district court [and we may say
of its contentions in the circuit court of appeals] and are all
based on the asserted immutability of the judgment of the district
court, the effect of the award of damages, and the payment of the
latter into court. The contentions repel almost immediately upon
their utterance. To yield to them would practically take away the
virtue of an appeal, give it right and procedure, but accord it
only partial effect. The present case illustrates this. The circuit
court of appeals reversed the judgment of the district court in
favor of the Telegraph Company not only because of errors in amount
of the award, but because of errors in the judgment
Page 258 U. S. 19
of conditions essential to a grant of the easement.
Louisville & N. R. Co. v. Western Union Tel. Co., 249
F. 385. There was something more, therefore, to be inquired into
upon the return of the case to the district court than the amount
of compensation to be paid, as we have pointed out.
The Telegraph Company insists that § 465 of the Kentucky
statutes precludes the application of the Act of March 14, 1916, to
the case, and such was the original view. We cannot accede to it.
We agree with the circuit court of appeals that no right had
accrued or claim arisen under the judgment of the district court
within the meaning of § 465. Besides, as also pointed out by the
circuit court of appeals, the Act of March 14, 1916, is general and
absolute. It takes away the power to condemn the right of way of a
railroad company by telegraph companies, and it does not save
proceedings commenced before its applicable date. Such reservation
is usual, if intended (
Railroad Co. v. Grant, 98 U. S.
398), and is illustrated by
Pannell v. Louisville
Tobacco Warehouse Co., 113 Ky. 630.
The contention that, if the repealing act be construed to apply
to the pending litigation, it is an interference by the legislature
with judicial proceedings and therefore void under the constitution
of the state challenges to particular attention. It is sustained,
the company asserts, by the decisions of the state.
The principle relied upon was first expressed in
Gaines v.
Gaines Executor, 9 B. Mon. 295, 301. We quote from a marginal
note, using it as the expression of the principle of the case, as
follows:
"The legislature have no power where a controversy is pending
between individuals growing out of their respective legal rights,
to so act as to cast off the rights of one of the parties and his
remedy likewise. . . ."
It is expressed in another case as follows:
"If the legislature, during the pendency of litigation, were to
pass an act having a retroactive effect in favor of
Page 258 U. S. 20
one of the litigants, it would be an invasion by one independent
department of the government of another, and therefore
unconstitutional."
Marion County v. Louisville & Nashville R. Co., 91
Ky. 388;
Thweatt v. Bank of Hopkinsville, 81 Ky. 1. In
another case it is succinctly said that "Legislation pending suit
cannot affect rights which existed before suit and upon which suit
was brought."
Turner v. Town of Pewee Valley, 100 Ky.
288.
We have considered the cases and their incidents. It is not
necessary to review them. There is a marked distinction between
them and the case at bar. They all concerned the litigation of
private rights and relations, and legislation which attempted to
change those rights and relations by changing the conditions upon
which they depended. The legislation in the case at bar has
different purpose. It is directed to that which is conceived to
concern the public interest; an exertion of power in the public
interest of which the companies are the instruments or agents. It
is not, therefore, within the principle of the cases cited against
it. And, as we have seen, no rights had so far vested in the
Telegraph Company as to preclude a change of policy or legislation
which affected it.
Of the effect of a reversal on appeal of a judgment and award in
a condemnation proceeding and a repealing act,
Treacy v.
Elizabethtown, Lexington & Big Sandy Railroad Co., 85 Ky.
270, is of pertinent reference. It is there held that, if a
judgment in condemnation proceedings be reversed on appeal (the
conditions requisite to legal condemnation of the land not having
been established), the case upon reversal stands upon the petition
or application alone, and the proceedings being thus
in
fieri, the law under which they were instituted could be
repealed, and if repealed, the subsequent proceedings must be under
the new law. The principle was announced to sustain the repeal of
the charter of a railroad company under which upon the rendition of
the verdict assessing damages for
Page 258 U. S. 21
the property taken the railroad had the right to enter upon the
land and construct its road, and upon payment or tender of payment
was clothed with title to the property. And it was said:
"The state has the right to say on what terms it will allow its
right of eminent domain to be exercised so long as anything remains
to be done by the corporation in order to complete the condemnation
of the land."
And necessarily, we may add, the state has a right to say upon
what property or to what extent the right of eminent domain shall
be exercised. The case seems a complete answer to the contentions
of the Telegraph Company.
See also Pannell v. Louisville
Tobacco Warehouse Co., 113 Ky. 630;
Commonwealth v. Ewald
Iron Co., 153 Ky. 116; 1 Lewis on Eminent Domain (3d ed.) §
380; Cooley's Constitutional Limitations (6th ed.) pp. 143-343;
Endlich on Interpretation of Statutes, §§ 480-486.
Cases in which it is decided that, upon payment or tender of the
award of damages, the condemning company has a right to take
possession of the land it seeks to condemn are not inconsistent
with
Treacy v. Elizabethtown, Lexington & Big Sandy
Railroad Co., supra. In that case, there was not only under
the railroad's charter a right of entry, but, upon payment or
tender of payment of the damages awarded, the actual title could
have been acquired, and yet the repealing statute was given effect
because the conditions of condemnation had not been
established.
The same comment is applicable to § 7 of the Act of 1898, which
provides that telegraph companies, upon the payment of the award,
may enter upon the land they seek to condemn. The Telegraph Company
in the present case was not put to exercise the privilege. It had
possession having received it under the contract with the Railroad
Company. The contract having expired, the Telegraph Company was put
to confirm the possession
Page 258 U. S. 22
and fix it as a right. The accomplishment of this the repealing
act prevented.
Our conclusion, therefore, is that as the state could have
withheld the power from telegraph companies to condemn the right of
way of railroad companies, the state could withdraw the power
before its exercise, and it could not be exercised before the
conditions of condemnation were established and adjudicated, and
this not preliminarily or dependently, but in final and
unreviewable determination. To this situation the condemnation in
the present case had not attained. The grant of power to the
Telegraph Company, therefore, was subject to legislative control,
and the Act of March 14, 1916, was not an "interference by the
legislature with judicial proceedings in court," and does not
offend the Fifth or Fourteenth Amendments.
Judgment affirmed.
[
Footnote 1]
"Sec. 4679c. 1. Right of to Erect and Operate Lines. That a
telegraph company chartered or incorporated by the laws of this or
any other state, shall, upon making just compensation, as hereafter
provided, have the right to construct, maintain and operate
telegraph lines through any public lands of this state, . . . and
on, along and upon the right of way and structures of any railroad
in this state . . . in such manner as not to interfere with the
ordinary use or the ordinary travel and traffic on such . . .
railroads."
"
* * * *"
"7. Judgment, Form of. . . . 'Now upon payment of said award
either to the defendant or to the clerk of this Court, and all
costs in this behalf expended, said . . . telegraph company may
enter upon said land and appropriate so much thereof as may be
necessary, as prayed for in its petition.'"
[
Footnote 2]
"An act to protect railroad companies in the use and enjoyment
of their rights of way by forbidding the condemnation thereof for
other purposes."
"
Be it enacted by the General Assembly of the Commonwealth
of Kentucky:"
"§ 1. That no part of the right of way of any railroad company,
or any interest or easement therein, shall be taken by any
condemnation proceedings, or without the consent of such railroad
company for the use or occupancy of any part of such right of way
on, over, and along such right of way longitudinally by any
telegraph, telephone, electric light, power, or other wire company
with its poles, cables, wires, conduits, or other fixtures;
provided, that nothing in this section shall be construed as
preventing any such wire company from obtaining the right to cross
the right of way of a railroad company under existing laws in such
manner as not to interfere with the ordinary use or ordinary travel
and traffic of such railroad company's railroad."
"§ 2. That all acts and parts of acts in conflict with this act
be, and the same are, hereby repealed."
[
Footnote 3]
Section 465.
"No new law shall be construed to repeal a former law as to . .
. any right accrued or claim arising under the former law, or in
any way whatever to affect . . . any right accrued or claim arising
before the new law takes effect. . . ."
[
Footnote 4]
The injunction suit was brought to restrain the Railroad Company
from disturbing the Telegraph Company's occupancy of the right of
way of the Railroad Company pending this proceeding. The injunction
was granted February 7, 1913, 201 F. 946. The order granting it was
affirmed by the circuit court of appeals.
Louisville & N.
R. Co. v. Western Union Tel. Co., 207 F. 1.