Apex Transp. Co. v. Garbade
| Decision Date | 14 September 1898 |
| Citation | 32 Or. 582,54 P. 367 |
| Parties | APEX TRANSP. CO. v. GARBADE. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; Henry E. McGinn, Judge.
Condemnation proceedings by the Apex Transportation Company against T.A Garbade. A judgment for plaintiff was reversed on appeal (52 P. 573), and plaintiff applies for a writ of error to the United States supreme court. Denied.
Frank Schlagel, for appellant.
Joseph Simon and Ralph R. Duniway, for appellee.
This is an application for the issuance of a writ of error to the supreme court of the United States in the above cause. The petition states that in the trial of said cause there "was drawn in question an authority exercised under the state of Oregon by the supreme court of the state of Oregon on the ground that the same was repugnant to the fourteenth amendment to the constitution of the United States, and the decision was in favor of the validity of such authority so exercised under said state; also a right, title, privilege and immunity was claimed under the fourteenth amendment to the constitution of the United States, and the decision was against the title, right, privilege, and immunity specially claimed under the fourteenth amendment to the constitution of the United States." The assignments of error comprehend the two phases of the fourteenth amendment of the federal constitution, viz. that no state shall deprive any person of property without due process of law, and shall not deny any person the equal protection of the law. But, in so far as the latter condition concerns the matter in hand, it is not strenuously urged that it is available as furnishing grounds for granting the writ. The latter clause simply means, as stated in Missouri v Lewis, 101 U.S. 22, "that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or classes in the same place and under like circumstances," and has relation more especially to legislative rather than judicial action. Marchant v. Railroad Co., 153 U.S. 380, 388, 14 Sup.Ct. 894. If, however, it be considered applicable to judicial action, it does not appear in the application, or anywhere throughout the course of the trial and disposition of the cause, wherein the plaintiff has been denied the equal protection of any law accorded to another under like circumstances. This disposes of all but the first assignment,--that the plaintiff has been deprived of his property without due process of law.
The right to the writ of error, in so far as it concerns the present controversy, can only be claimed "where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity." Rev.St. U.S. § 709. The court's exercise of its authority is the subject of complaint, and it is claimed that such exercise was repugnant to the fourteenth amendment in the particular suggested. It is decided by Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S 226, 17 Sup.Ct. 581, that a state may not by any of its agencies disregard the provisions of that amendment, and that the court may, by its rulings in submitting a case to the jury, so far disregard the rules of law governing the rights of property as to violate the spirit and intendment of the amendment. It cannot be claimed by plaintiff that its property is being taken without just compensation, as it is seeking to condemn, and not to prevent condemnation; but it is suggested that by taking the case from the jury the plaintiff has been deprived of the right of trial by that tribunal, and therefore has been deprived of due process of law. The right of trial by jury is guarantied by the seventh amendment, and the objection is probably not well assigned as being in violation of the fourteenth amendment; but conceding that it is, the plaintiff has not...
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