Dohany v. Rogers

• Decision Date: 24 June 1929
• Docket Number: 3236.,3122,No. 3118,3118
• Citation: 33 F.2d 918
• Parties: DOHANY v. ROGERS, State Highway Com'r, et al. (two cases). WALTON et al. v. DILLMAN, State Highway Com'r, et al.
• Court: U.S. District Court — Western District of Michigan

33 F.2d 918 (1929)

DOHANY v. ROGERS, State Highway Com'r, et al. (two cases).

WALTON et al. v. DILLMAN, State Highway Com'r, et al.

Nos. 3118, 3122, 3236.

District Court, E. D. Michigan, S. D.

June 24, 1929.

Dohany & Dohany, Atkinson, O'Brien & Clark, and Raymond M. Shock, all of Detroit, Mich., for plaintiffs.

Wilber M. Brucker, Atty. Gen., Kit F. Clardy, Asst. Atty. Gen., and H. R. Martin and Victor Spike, both of Detroit, Mich., for defendants.

Before HICKENLOOPER, Circuit Judge, and TUTTLE and MOINET, District Judges.

TUTTLE, District Judge.

These causes, which involve the same questions and are being tried together, are before this court, constituted and sitting pursuant to the provisions of section 380 of title 28 of the United States Code (section 266 of the Judicial Code), on an application for an interlocutory injunction to restrain the state highway commissioner of the state of Michigan from prosecuting certain condemnation proceedings in the courts of said state in the enforcement of certain statutes of such state, on the ground that such statutes, as sought to be so enforced, deprive the plaintiffs of their property without due process of law and deny to them the equal protection of the laws, in violation of the Fourteenth Amendment to the Federal Constitution.

The condemnation proceedings in question were instituted by the state of Michigan for the purpose of taking, by right of eminent domain, certain land of the plaintiffs which was deemed, and had been formally declared, by the Legislature and other proper officials of said state, to be required for public use in the necessary widening and improvement of the main public state trunk highway connecting the cities of Detroit and Pontiac in Michigan. In the widening of such highway, it became necessary for the state to provide for the removal and relocation of certain railroad tracks of the defendant Detroit, Grand Haven & Milwaukee Railway Company immediately adjoining said highway and located on land needed for such widening. Thereupon, the state decided to acquire, by condemnation, other land near said tracks and to convey such land to said railway company in exchange for its land so needed, and the railway agreed to this substitution of a new right of way for the old, the removal of its tracks to such new right of way, and the conveyance of its former right of way to the state for the highway purposes so desired. By Act No. 340 of the Public Acts of Michigan of 1927, the Michigan Legislature declared this project to be a public necessity, authorized the state highway commissioner to acquire, "on behalf of the state by purchase or condemnation, in accordance with the general laws of the State of Michigan," the land required for this purpose, and provided for the conveyance of such land, when so acquired, to the railway in exchange for the right of way which it was to convey to the state, all as part of the highway improvement project in question.

Act No. 215 of the Michigan Public Acts of 1925 provides that whenever the line of any railway is upon or adjacent to a trunk line highway and its acquisition is necessary for widening or otherwise improving such highway, the state highway commissioner is authorized to agree with such railway for the exchange of its right of way for other property, and, after such agreement, "to acquire such other property by purchase or condemnation, and when acquired" to make such exchange accordingly "for such public highway purposes." Act No. 352 of the Michigan Public Acts of 1925, as amended by Act No. 92 of the Public Acts of 1927, prescribes the procedure applicable to the condemnation proceedings in such a case, including the manner of making just compensation for property so condemned.

The state, through its state highway commissioner, having instituted, in the proper state courts, the condemnation proceedings provided by these statutes, property owners affected thereby opposed such proceedings, raising various objections to the validity thereof and urging that such statutes violated several provisions of the Constitution of Michigan. The Michigan Supreme Court, in the case of Fitzsimons & Galvin, Inc., v. Rogers, 243 Mich. 649, 220 N. W. 881, in a well-reasoned opinion, which described the general situation also presented here, considered and discussed those objections and overruled them, holding that the statutes in question were not contrary to the state Constitution and that they authorized the condemnation proceedings taken. Although the constitutional objections so overruled are also urged here, this court of course, under familiar law, should accept and follow that decision of the state court of last resort as sustaining the validity under the Michigan Constitution of these statutes and their applicability to these proceedings. Rindge Co. v. Los Angeles County, 262 U. S. 700, 43 S. Ct. 689, 67 L. Ed. 1186.

I have carefully considered the various grounds on which these state statutes are asserted to be in contravention of the Federal Constitution, but find no merit in any of the contentions urged.

It is claimed by the plaintiffs that, because their land, if taken as sought, will itself be used not by the state as a part of the proposed new highway, but by a railway company as a part of its right of way, such land is being taken not for highway purposes, within the meaning of the law, but for railroad purposes, and that therefore it cannot be condemned under the so-called highway condemnation statutes of Michigan, as the state is seeking to do, but only under the railroad condemnation statutes of the state, and as these railroad statutes, it is said by the plaintiffs, afford a more liberal and favorable measure of damages to the owners of property taken thereunder, the plaintiffs insist that in the present case they are discriminated against, as compared with the owners of property condemned by railroad companies in other cases, and that consequently they are being denied the equal protection of the laws guaranteed to them by the Federal Constitution. I cannot agree with this argument, which, I think, is completely answered and overruled by the decision of the United States Supreme Court in Brown v. United States, 263 U. S. 78, 44 S. Ct. 92, 68 L. Ed. 171. Under the principle applied in that case, I am satisfied that in view of the object here sought to be accomplished by the state, the taking of this land must be regarded as a reasonable adaptation of proper means for the acquisition of this land for highway purposes, and that the fact that such land is not to be physically used as a part of the highway thus sought to be constructed does not change the real nature of the transaction, which is the taking of land for the widening of a public highway. The same principle was announced and applied, under substantially similar circumstances, in Pitznogle v. Western Maryland Railroad Co., 119 Md. 673, 87 A. 917, 46 L. R. A. (N. S.) 319, and Rogers v. Bradshaw, 20 Johns. (N. Y.) 735. This condemnation proceeding is brought by the state, in its own interest and for its own public purposes, and not by, nor on behalf of, a railroad company; and its object is the condemnation and taking of property for the purpose of improving a public highway and not for any railroad purpose. There is therefore no sound basis for this contention that the proceedings here sought to be enjoined will result in either the denial of the equal protection of the laws or the deprivation of property without due process of law.

The Constitution of Michigan permits, and the statutes of the state provide, a different procedure as between condemnation proceedings brought by the state and those brought by railroads or other public corporations, although such Constitution requires, in all cases, that "private property shall not be taken * * * for public use, without the necessity therefor being first determined and just compensation therefor being first made or secured in such manner as shall be prescribed by law." Const. art. 13, § 1. In view of this broad guaranty of just compensation, which is observed and fulfilled by the statutes in question, there is nothing in the Federal Constitution which prevented the state of Michigan from the exercise of its own discretion and judgment in the adoption of the particular methods of enforcement of the right of eminent domain prescribed in the statutes here involved. A. Backus, Jr., & Sons v. Fort Street Union Depot Co., 169 U. S. 557, 18 S. Ct. 445, 42 L. Ed. 853; Joslin Mfg. Co. v. Providence, 262 U. S. 668, 43 S. Ct. 684, 67 L. Ed. 1167; Rindge Co. v. Los Angeles County, supra.

I have examined with care all of the reasons and arguments presented by the plaintiffs in support of their claim that their rights are being invaded in respect to the matters urged, and am clearly of the opinion that such claim is without merit, and that the temporary restraining order now in effect must be dissolved, the application for an interlocutory injunction denied, and the bill dismissed.

HICKENLOOPER, Circuit Judge.

I concur in the result reached by the majority of the court, but cannot concur wholly in the reasoning whereby that result is attained. Under the circumstances of this case, I feel that it must be conceded that the plaintiffs' property is being appropriated for railway purposes and not for a highway. It is being taken under the provisions of Act 340 of 1927, and this act expressly provides for an appropriation for railway right of way. This is recognized by the Supreme Court of Michigan in the case of Johnstone v. D., G. H. & M. Ry. Co. et al., 245 Mich. 65, 222 N. W. 325, where the court says: "In determining plaintiffs' compensation, the benefits to their property, if any, arising from the construction and operation of the railroad, are proper to be considered." In Fitzsimons & Galvin, Inc., v. Rogers, State Highway Commissioner, 243 Mich. 649, 220 N. W. 881, the same court had said: ...