1. Section 1969j of the Virginia Code of 1942 does not deny the
due process guaranteed by the Fourteenth Amendment, as applied to a
landowner upon whose land the state highway commissioner entered
and constructed a highway in advance of the appointment of
commissioners and before they could view the land for the purpose
of fixing its fair value upon condemnation, since the landowner had
full opportunity for a hearing before the commissioners, and their
award was subject to a judicial review upon which the award could
be set aside if plainly wrong or unsupported by the evidence. P.
326 U. S.
205.
2. The question of the constitutionality of a claimed denial to
the landowner of interest on the value of the property from the
time of the taking is not properly presented upon the record in
this case, since it does not affirmatively appear that appellant
raised that question on the record, or that the state supreme court
passed on it. P.
326 U. S.
206.
Dismissed.
Appeal from a Judgment denying a petition for a writ of error to
review a decree which confirmed an award of compensation in a
condemnation proceeding.
Page 326 U. S. 204
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellee, State Highway Commissioner of Virginia, brought this
proceeding in conformity to §§ 1969j(1)-1969j(6) of the Virginia
Code of 1942, to condemn appellant's land for use as a public
highway. Acting under § 1969j(4), appellee entered on the land and
constructed the highway in advance of its condemnation. In the
condemnation proceeding, begun in the circuit court within sixty
days after the completion of the highway, the Commissioners,
appointed and acting pursuant to § 1969j(2), after viewing the
land, and hearing evidence, made an award of $1,500 for the land
occupied by the highway, and of $6,500 for damages "resulting to
the adjacent or other property of the owner."
The Virginia Circuit Court confirmed the Commissioners' report,
and, by its decree, directed that interest be paid on the amount of
the award from the date of the decree. The Supreme Court of Appeals
of Virginia, without opinion, denied appellant's petition for a
writ of error. The case comes here on appeal, § 237(a) Judicial
Code, 28 U.S.C. § 344(a), appellant assigning as error that §§
1969j(4) and 1969j(6), as applied to appellant, deny to him the due
process guaranteed by the Fourteenth Amendment. On examination of
appellant's jurisdictional statement, we postponed the question of
our jurisdiction to the argument on the merits.
Appellant contends here, as he did in the state courts, that §
1969j(4) infringes the asserted constitutional immunity by
sanctioning appellee's entry upon the land and the alteration of
its physical condition in advance of the appointment of the
Commissioners and before they could
Page 326 U. S. 205
view the land for the purpose of fixing its fair value upon
condemnation. But it has long been settled that due process does
not require the condemnation of land to be in advance of its
occupation by the condemning authority, provided only that the
owner have opportunity, in the course of the condemnation
proceedings, to be heard and to offer evidence as to the value of
the land taken.
Bragg v. Weaver, 251 U. S.
57,
251 U. S. 62,
and cases cited;
Joslin Mfg. Co. v. Providence,
262 U. S. 668,
262 U. S. 677;
Georgia v. Chattanooga, 264 U. S. 472,
264 U. S. 483.
Its value may be fixed by viewers without a hearing, after entry
upon the land, if their award is subject to a review in which a
trial upon evidence may be had.
Pearson v. Yewdall,
95 U. S. 294,
95 U. S. 296;
Backus v. Fort Street Union Depot Co., 169 U.
S. 557,
169 U. S. 569;
Bragg v. Weaver, supra, 251 U. S. 59,
and cases cited;
North Laramie Land Co. v. Hoffman,
268 U. S. 276,
268 U. S.
284-285.
Here, appellant was given full opportunity to be heard and to
introduce evidence before the Commissioners. They could, upon the
evidence submitted, take into account the alterations of the
property after the taking and before the view; such was their duty
under the statute. Their award is made subject to judicial review
by § 1969j(2), and, upon such review, may be set aside if plainly
wrong or without support in the evidence.
Barnes v. Tidewater
R. Co., 107 Va. 263, 266-268, 58 S.E. 594, 595-596;
Duncan
v. State Highway Commission, 142 Va. 135, 146-148, 128 S.E.
546, 549-550. In this we find no denial of due process, and
appellant's contention presents no substantial constitutional
question, as the authorities cited show.
Appellant also insists that the state court judgment failed to
include in the award interest from the date of the occupation of
his land by appellee; that the award thus denied to him just
compensation for the land taken, in violation of the due process
clause of the Fourteenth Amendment.
See
Delaware, L. & W.
R. v. Morristown,
Page 326 U. S. 206
276 U. S. 182.
Appellant's petition in the circuit court asked that the award
include interest from the date of taking. The circuit court,
without explanation, rejected his claim for interest. But,
throughout the proceedings in the circuit court, appellant made no
claim to interest on constitutional grounds, and made no attack on
the constitutionality of the award or the court's decree because of
the asserted denial of interest. Further, nothing appears in the
record to indicate that the Commissioners' award of damages did not
include the interest claimed. Appellee argues that the applicable
statutes contemplate that the award shall include interest as
compensation "for the damage and delay" from the time of the
occupation of the premises to the date of the Commissioners' report
and for such further time within which application may be made for
judicial review,
see Richmond v. Goodwyn, 132 Va. 442,
452-454, 112 S.E. 787;
Export Leaf Tobacco Co. v.
Richmond, 163 Va. 145, 155-156, 175 S.E. 753. Nothing appears
to the contrary.
Appellant, for the first time, assailed on constitutional
grounds the asserted denial of interest by his assignments of error
in the state Supreme Court of Appeals. The assignments relating to
interest failed to draw in question the constitutional validity of
any statute as is required by § 237(a) of the Judicial Code. The
state Supreme Court, by its order refusing the writ of error,
declared that, upon consideration of the record, it was of opinion
that the judgment below was "plainly right."
Inspection of the record does not show that, in denying the writ
of error, the state court passed upon any constitutional question
not raised or passed upon in the course of the proceedings below.
Such appears not to be its practice. Rule 22 of the Rules of the
Supreme Court of Appeals, 181 Va. lxxv;
cf. Ward Lumber Co. v.
Henderson-White Mfg. Co., 107 Va. 26, 628, 629, 59 S.E. 476;
Bliss v. Spencer, 125 Va. 36, 50, 99 S.E. 593;
Reynolds v. Adams,
Page 326 U. S. 207
125 Va. 295, 314, 99 S.E. 695. On this record, we cannot say
that the interest claimed was not included in the award, or, if it
was not, that the Supreme Court of Appeals of Virginia, by denying
writ of error, passed upon any question of the constitutionality of
such denial of interest not raised on the record or passed upon
below. Unless this affirmatively appears upon the record brought
here for review on appeal, this court is without jurisdiction of
the appeal.
Jacobi v. Alabama, 187 U.
S. 133,
187 U. S.
135-136;
Mutual Life Ins. Co. v. McGrew,
188 U. S. 291,
188 U. S. 309;
Chicago, I. & L. R. Co. v. McGuire, 196 U.
S. 128,
196 U. S. 131;
see Flournoy v. Wiener, 321 U. S. 253,
321 U. S.
262-263, and cases cited.
The appeal must be dismissed for want of any properly presented
substantial federal question.
Dismissed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.