Where the jurisdiction of the Circuit Court is invoked on the
ground of deprivation of property without due process of law in
violation of the Fourteenth Amendment, it must appear at the outset
that the alleged deprivation was by act of the state.
And where it appeared on the face of plaintiff's own statement
of his case that the act complained of was not only unauthorized,
but was forbidden, by the state legislation in question, the
circuit court rightly declined to proceed further, and dismissed
the suit.
This was a bill to enjoin the City of New York, the Board of
Rapid Transit Commissioners for New York, John B. McDonald, and the
administratrix of Shaler, deceased, from proceeding with the
construction of the rapid transit railroad
Page 193 U. S. 431
tunnel under Park Avenue, New York, adjacent to the premises of
Charles T. Barney, "until the easements appurtenant thereto shall
have been acquired according to law and due compensation made
therefor to complainant," and from constructing such railroad
otherwise than in accordance with the routes and general plan
adopted and approved by the local authorities and by the owners of
abutting property, or the appellate division of the supreme court
in lieu thereof.
From the bill, it appeared that the rapid transit board had, on
behalf of the city, devised routes and general plans and entered
into a contract for the construction of a rapid transit railroad
with McDonald, of whom Ira A. Shaler was a subcontractor, under the
Rapid Transit Acts of the state, Laws 1891, c. 4; Laws 1892, c.
102, 556; Laws 1894, c. 528, 752; Laws 1895, c. 519; Laws 1900, c.
729; Laws 1901, c. 587; Laws 1902, c. 533, 542, 544, 584.
Park Avenue was one of the streets under which the railroad was
authorized to be built, and the routes and general plan of the road
were prescribed by the board by resolutions of January 14 and
February 4, 1897, which received the assent of the local
authorities and of the appellate division of the supreme court in
lieu of the consent of the abutting property owners.
Complainant alleged that he
"consented to the construction of the said rapid transit
railroad in accordance with the said routes and general plan of
construction, and did not oppose the proceedings hereinafter
mentioned, which the said board of rapid transit railroad
commissioners instituted for the purpose of obtaining the
determination of three commissioners appointed by the said
appellate division that such rapid transit railroad ought to be
constructed and operated; nor did your orator oppose the
confirmation of said determination by the said appellate
division."
But complainant averred that the portion of the railroad under
Park Avenue and in front of his premises was being built 27 feet
nearer to his premises than was authorized
Page 193 U. S. 432
by the routes and general plan, and that the work was
"being thus performed by said defendant McDonald and the said
Shaler without any authority other than certain directions given by
the chief engineer employed by the Board of Rapid Transit
Commissioners and embodied in certain so-called working drawings,
or detail drawings, prepared by him or at his instance, and
recently approved informally by said board. And . . . that the fact
that such directions had been given by the chief engineer and that
said work was being thus performed by the contractor, as aforesaid,
was not until recently specifically known to said board; that such
action of said chief engineer and contractor has never been
formally or specifically approved by said board; that there has
been no change made or authorized by said board in the said 'routes
and general plan,' nor has there been any modification of the
contract or specification with reference to the construction of
that part of the tunnel lying under Park Avenue between
Thirty-third and Forty-first Streets; that no notice was given to
any of the property owners along said street that it was proposed
by the defendants or any of them to change the position of the
tunnel to any material extent from the position shown and described
in the said 'routes and general plan,' nor was any opportunity ever
given to said property owners or the citizens generally to be heard
with respect to any such change."
Complainant further averred
"that at none of the times herein mentioned did the said board
of rapid transit railroad commissioners have authority (if at all)
to enter into any contract for the construction of any rapid
transit railroad under or upon the said Park Avenue except in
accordance with the said 'routes and general plan' contained in the
said resolutions of January 14 and February 4, 1897, and that at no
time did the said board have authority to prepare detailed plans
and specifications, except (if at all) in accordance with the said
general plan of construction, or to alter any plans or
specifications prepared by them, excepting in accordance with said
general plan of construction. That the act of the
Page 193 U. S. 433
said board in permitting the defendants McDonald and the said
Shaler to enter upon that part of Park Avenue between Thirty-third
and Forty-first Streets where the tunnel is now in process of
construction, as aforesaid, was illegal and unauthorized, and the
defendants McDonald and the said Shaler have entered upon the same
unlawfully and without authority, and for the further reason that
the construction of the rapid transit railway on the easterly side
of Park Avenue, in front of your orator's said premises, takes his
property without due process of law, in violation of the provisions
of the Fourteenth Amendment to the Constitution of the United
States, and that said Rapid Transit Act, so far as it purports to
authorize the construction of a tunnel and railway in said Park
Avenue without the consent of abutting owners or compensation
therefor, is void because it deprives your orator of his property
without due process of law, in violation of the provisions of the
said amendment."
On the bill and affidavits, complainant moved for an injunction
pendente lite, and defendants resisted the motion,
submitting, in pursuance of stipulation, affidavits filed in their
behalf in the case of
Huntington v. New York, the same
defendants, since brought here, numbered at this term 173, and
argued with this case. The opinion in that case, 118 F. 683, was
adopted in this, and the court, of its own motion, under section 5
of the Act of March 3, 1875, c. 137, entered a decree dismissing
the bill for want of jurisdiction, and certified that question to
this Court.
Page 193 U. S. 437
MR. CHIEF JUSTICE FULLER, after making the foregoing statement,
delivered the opinion of the Court:
The jurisdiction of the circuit court was invoked upon the
ground that, by the tunnel construction sought to be enjoined,
complainant was deprived of his property without due process of law
in violation of the Fourteenth Amendment. But that amendment
prohibits deprivation by a state, and here the bill alleged that
what was done was without authority, and illegal.
The city acts through the rapid transit board, which possesses
the powers specifically vested. It is empowered to prescribe the
routes and general plan of any proposed rapid transit railroad
within the city, and every such plan must
"contain such details as to manner of construction as may be
necessary to show the extent to which any street, avenue, or other
public place is to be encroached upon and the property abutting
thereon affected."
Consents of the municipal authorities and the abutting property
owners to construction on the routes and plans adopted must be
obtained, and any change in the detailed plans and specifications
must accord with the general plan of construction, and, if not,
like consents must be obtained to such change.
The bill asserted that the easterly tunnel section under Park
Avenue was not within the routes and general plan consented to, and
that the construction was unauthorized. And this is the view taken
by the Supreme Court of New York.
Barney v. Rapid Transit
Commissioners, 38 Misc. 549;
Barney v. New York, 39
Misc. 719.
Thus, the bill, on its face, proceeded on the theory that the
construction of the easterly tunnel section was not only not
authorized, but was forbidden by the legislation, and hence was not
action by the State of New York within the intent and meaning of
the Fourteenth Amendment, and the circuit court was right in
dismissing it for want of jurisdiction.
Controversies over violations of the laws of New York are
Page 193 U. S. 438
controversies to be dealt with by the courts of the state.
Complainant's grievance was that the law of the state had been
broken, and not a grievance inflicted by action of the legislative
or executive or judicial department of the state, and the principle
is that it is for the state courts to remedy acts of state officers
done without the authority of, or contrary to, state law.
Missouri v. Dockery, 191 U. S. 165;
Civil Rights Cases, 109 U. S. 3;
Virginia v. Rives, 100 U. S. 313.
In
Virginia v. Rives, referring to an alleged denial of
civil rights on account of race and color in the impaneling of a
jury, the laws of Virginia in respect of the selection of juries
appearing to be unobjectionable, Mr. Justice Strong, speaking for
the Court, said:
"It is evident, therefore, that the denial or inability to
enforce in the judicial tribunals of a state rights secured to a
defendant by any law providing for the equal civil rights of all
persons citizens of the United States, of which section 641 speaks,
is primarily, if not exclusively, a denial of such rights, or an
inability to enforce them, resulting from the constitution or laws
of the state, rather than a denial first made manifest at the trial
of the case. In other words, the statute has reference to a
legislative denial, or an inability resulting from it. . . ."
"When a statute of the state denies his right or interposes a
bar to his enforcing it in the judicial tribunals, the presumption
is fair that they will be controlled by it in their decisions, and
in such a case, a defendant may affirm on oath what is necessary
for a removal. Such a case is clearly within the provisions of
section 641. But when a subordinate officer of the state, in
violation of state law, undertakes to deprive an accused party of a
right which the statute law accords to him, as in the case at bar,
it can hardly be said that he is denied, or cannot enforce, 'in the
judicial tribunals of the state' the rights which belong to him. In
such a case, it ought to be presumed the court will redress the
wrong. If the accused is deprived of the right, the final and
practical denial will be in the judicial tribunal which tries the
case, after the trial has
Page 193 U. S. 439
commenced. If, as in this case, the subordinate officer whose
duty it is to select jurors fails to discharge that duty in the
true spirit of the law; if he excludes all colored men solely
because they are colored; or if the sheriff to whom a venire is
given, composed of both white and colored citizens, neglects to
summon the colored jurors only because they are colored; or if a
clerk whose duty it is to take the twelve names from the box
rejects all the colored jurors for the same reason -- it can with
no propriety be said the defendant's right is denied by the state
and cannot be enforced in the judicial tribunals. The court will
correct the wrong, will quash the indictment or the panel, or, if
not, the error will be corrected in a superior court. We cannot
think such cases are within the provisions of section 641. Denials
of equal rights in the action of the judicial tribunals of the
state are left to the revisory powers of this Court."
In the
Civil Rights Cases, in which the Court was
dealing with the Act of March 1, 1875, 18 Stat. 335, c. 114, Mr.
Justice Bradley said:
"In this connection, it is proper to state that civil rights,
such as are guaranteed by the Constitution against state
aggression, cannot be impaired by the wrongful acts of individuals,
unsupported by state authority in the shape of laws, customs, or
judicial or executive proceedings. The wrongful act of an
individual, unsupported by any such authority, is simply a private
wrong, or a crime of that individual; an invasion of the rights of
the injured party, it is true, whether they affect his person, his
property, or his reputation; but, if not sanctioned in some way by
the state, or not done under state authority, his rights remain in
full force, and may presumably be vindicated by resort to the laws
of the state for redress."
There are many cases in this Court involving the application of
the Eleventh Amendment which draw the distinction between acts of
public officers
virtute officii, and their acts without
lawful right,
colore officii, and in
Pennoyer v.
McConnaughy, 140 U. S. 1, Mr.
Justice Lamar defined the two classes to be
Page 193 U. S. 440
those brought against officers of the state as representing the
state's action and liability and those against officers of the
state when claiming to act as such without lawful authority. The
subject is discussed at length, and the cases cited, in
Tindal
v. Wesley, 167 U. S. 204, and
Fitts v. McGhee, 172 U. S. 516.
Appellant's counsel rely on certain expressions in the opinion in
Ex Parte Virginia, 100 U. S. 339, but
that was a case in which what was regarded as the final judgment of
a state court was under consideration, and Mr. Justice Strong also
said:
"Whoever, by virtue of public position under a state government,
deprives another of property, life, or liberty, without due process
of law or denies or takes away the equal protection of the laws
violates the constitutional inhibition, and as he acts in the name
and for the state and is clothed with the state's power, his act is
that of the state."
And see Manhattan Railway Company v. New York, 18 F.
195;
Kiernan v. Multnomah County, 95 F. 849;
In re
Storti, 109 F. 807.
Scott v. McNeal, 154 U. S. 34, and
Chicago, Burlington & Quincy Railroad Company v.
Chicago, 166 U. S. 226, are
cited by appellant, but in those cases, judgments of the highest
judicial tribunals of the state were treated as acts of the state,
and no question of the correctness of that view arises here.
And so, in
Reagan v. Farmers' Loan & Trust Company,
154 U. S. 362, the
General Assembly of Texas had established a railroad commission and
given it power to fix reasonable rates, with discretion to
determine what rates were reasonable. The act provided that suits
might be brought by individuals against the commission "in a court
of competent jurisdiction in Travis County, Texas," and a citizen
of another state sued them in the circuit court of the United
States for the district which embraced Travis County, and this was
held to be authorized by the state statute.
And as the establishment of rates by the commission was the
establishment of rates by the state itself, and the determination
of what was reasonable was left to the discretion of the
commission,
Page 193 U. S. 441
their action could not be regarded as unauthorized, even though
they may have exercised the discretion unfairly.
Similarly, in
Pacific Gas Imp. Company v. Ellert, 64 F.
421, where a public board was given power to improve streets, and
proceeded in excess of its powers, but not in violation of them,
its action was regarded by MR. JUSTICE McKENNA, then circuit judge,
as state action.
In the present case, defendants were proceeding not only in
violation of provisions of the state law, but in opposition to
plain prohibitions.
Section 5 of the Act of March 3, 1875, 18 Stat. 470, c. 137,
provided that if, in any suit in the circuit court, it should
appear to the satisfaction of the court at any time that the suit
did not really and substantially involve a dispute or controversy
properly within its jurisdiction, the court should proceed no
further, but dismiss the suit. The last paragraph of this section
was in terms repealed by the Act of March 3, 1887, 24 Stat. 522, c.
373, reenacted August 13, 1888, 25 Stat. 433, c. 866 (the part
repealed not being material here), but otherwise the section
remained and remains in full force. This case went off on the
motion for preliminary injunction, and the bill was properly
dismissed, whether treated as if heard on demurrer, or on the
proofs by affidavit.
Decree affirmed.
