193 U.S. 430 (1904), 159, Barney v. New York

Docket Nº:No. 159
Citation:193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737
Party Name:Barney v. New York
Case Date:March 21, 1904
Court:United States Supreme Court

Page 430

193 U.S. 430 (1904)

24 S.Ct. 502, 48 L.Ed. 737



New York

No. 159

United States Supreme Court

March 21, 1904

Argued March 3-4, 1904




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

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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

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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...

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