Backus v. Fort St. Union Depot Company/Opinion of the Court
Inasmuch as the respondents, both on the trial in the circuit court and in the subsequent proceedings on the certiorari in the supreme court, specifically set up and claimed rights under the federal constitution which were denied, the jurisdiction of this court is not open to doubt. They again and again insisted that certain provisions of the federal constitution, which they named, stood in the way of any further proceedings against them.

It is, also, not open to further debate, since the decision in Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 17 Sup. Ct. 581, that this court may examine proceedings had in a state court, under state authority, for the appropriation of private property to public purposes, so far as to inquire whether that court prescribed any rule of law in disregard of the owner's right to just compensation. But in this respect we quote the restriction placed in the opinion then filed (page 246, 166 U.S., and page 588, 17 Sup. Ct.):

'We say, 'in absolute disregard of the company's right to just compensation,' because we do not wish to be understood as holding that every order or ruling of the state court in a case like this may be reviewed here, notwithstanding our jurisdiction, for some purposes, is beyond question. Many matters may occur in the progress of such cases that do not necessarily involve, in any substantial sense, the federal right alleged to have been denied; and in respect of such matters, that wi ch is done or omitted to be done by the state court may constitute only error in the administration of the law under which the proceedings were instituted.'

While in cases of this kind coming from the supreme court of a state, questions of fact passed upon in the state courts are not here open to review (Egan v. Hart, 165 U.S. 188, 17 Sup. Ct. 300, and cases cited in the opinion) it may not be inappropriate to notice that the award of compensation as finally sustained gave to the respondents the sum of $63,000. As the valuation they placed upon the plant, outside of the realty, was only $150,000, and of the realty the like sum of $150,000, though the realty cost in 1871 less than $30,000, and as none of the ground upon which the plant stood and the business was carried on was taken by the depot company, but only the use of the street in front thereof, and that not so as to exclude them from its use, it is obvious that the award, whether adequate or not, was not one in reckless disregard of their rights.

It is not questioned by counsel that the settled rule of this court in cases of this kind is to accept the construction placed by the supreme court of the state upon its own constitution and statutes as correct. Long Island Water Supply Co. v. City of Brooklyn, 166 U.S. 685, 17 Sup. Ct. 718; Merchants' & Manufacturers' Nat. Bank of Pittsburg v. Pennsylvania, 167 U.S. 461, 17 Sup. Ct. 829, and cases cited in those opinions. His contention, however, is that the true construction of the constitution and laws of the state, as settled by repeated decisions of its supreme court, was wholly disregarded in this case, and that by reason thereof the respondents were denied that equal protection of the laws which is guarantied by the fourteenth amendment to the federal constitution. His contentions are grouped under the following heads:

'(1) They were denied the fundamental right to have an ascertainment and determination of the amount of compensation and its final payment before being deprived of their property.

'(2) They were denied the protection of that guaranty of the state constitution providing that the questions of compensation and necessity should be passed upon by one and the same jury, and of the settled, uniform, and unreversed construction of the constitution to that effect by the state judiciary in respect of all other citizens.

'(3) They were denied the protection of a trial on the questions of necessity and compensation by the tribunal guarantied by the constitution of the state, in accordance with the settled, uniform, and unreversed construction of that constitution in respect of all other citizens.

'(4) They were denied that measure of just compensation for their property taken, guarantied by the constitutions, federal and state, as the same was and is accorded to all other persons than themselves.

'(5) They were denied a hearing and deprived of a hearing guarantied by the constitutions, federal and state, as 'due process of law,' when summoned into court as appellees to defend their property, rights, and themselves from imputations upon them.

'(6) Finally, having been deprived of their property sought by the railroad company for its purposes, their personal assets of the value of one hundred and ten thousand ($110,000) dollars were taken from them under the color of a judgment and process unknown to the constitution and statutes of Michigan, and unknown to jurisprudence, whereby they were deprived of their property without 'due process of law."

Attention is called to the fact that while upon the return of the first verdict the respondents moved to confirm it, which motion was denied by the circuit court, and the verdict set aside, yet after the decision of the supreme court awarding the writ of mandamus they did not renew that motion; that the petitioner alone asked for confirmation, though, as expressly stated, for the purpose of taking an appeal to the supreme court; that, after the order of confirmation had be n entered, it paid the amount of the award to the respondents, which sum was accepted by them; and that thereupon it took possession of the property, and has since continued in undisturbed possession and use. It is insisted that such payment and taking possession created under the constitution and statutes of Michigan a finality so far as the depot company was concerned, and that to this effect had been the repeated adjudications of the supreme court of the state. The argument is that the property owner has a constitutional right to have the amount of his compensation finally determined and paid before yielding possession; that the party seeking condemnation (in this case the depot company) cannot be let into possession until after all question as to the compensation has been finally settled, and the amount thereof paid; that it cannot take advantage of one report or verdict, pay the sum fixed by it, obtain possession, and still litigate the question of amount; that, if it does then pay and take possession, its right to further litigate is ended. But the supreme court of the state held against this contention, and we must assume therefrom that it is not warranted by the constitution and statutes of the state. Indeed, the language of that constitution is, 'made or secured.' Does this amount to a denial of the right to that protection to property which is guarantied by the fourteenth amendment to the federal constitution? In other words, is it beyond the power of a state to authorize in condemnation cases the taking of possession prior to the final determination of the amount of compensation and payment thereof? This question is fully answered by the opinions of this court in Cherokee Nation v. Southern Kan. Ry. Co., 135 U.S. 641, 10 Sup. Ct. 965, and Sweet v. Rechel, 159 U.S. 380, 16 Sup. Ct. 43. There can be no doubt that, if adequate provision for compensation is made, authority may be granted for taking possession, pending inquiry as to the amount which must be paid and before any final determination thereof.

Neither can it be said that there is any fundamental right secured by the constitution of the United States to have the questions of compensation and necessity both passed upon by one and the same jury. In many states the question of necessity is never submitted to the jury which passes upon the question of compensation. It is either settled affirmatively by the legislature, or left to the judgment of the corporation invested with the right to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. Boom Co. v. Patterson, 98 U.S. 403, 406; U.S. v. Jones, 109 U.S. 513, 3 Sup. Ct. 346; Cherokee Nation v. Southern Kan. Ry. Co., supra.

Neither was there anything in the proceedings actually had before the last jury and in the circuit court which conflicts with any mandate of the federal constitution. Counsel say that the respondents were entitled to a trial by a jury of inquest, but were forced to trial before a common-law jury, presided over and controlled by the circuit judge. But the constitution of the United States does not forbid a trial of the question of the amount of compensation before an ordinary common-law jury, or require, on the other hand, that it must be before such a jury. It is within the power of the state to provide that the amount shall be determined in the first instance by commissioners, subject to an appeal to the courts for trial in the ordinary way; or it may provide that the question shall be settled by a sheriff's jury, as it was constituted at common law, without the presence of a trial judge. These are questions of procedure which do not enter into or form the basis of fundamental right. All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and, when this has been provided, there is that due process f  law which is required by the federal constitution. Bauman v. Ross, 167 U.S. 548, 593, 17 Sup. Ct. 966. These considerations dispose of all the objections embraced in the first three contentions of counsel, so far as those objections run to the validity of the proceedings actually had, providing those proceedings were warranted by the constitution and statutes of the state.

But it is insisted that those proceedings were not so warranted; that the settled, uniform, and unreversed construction thereof by the supreme court of the state theretofore forbade them, and hence there was a discrimination against the respondents, and they were denied that equal protection of the laws which the federal constitution guaranties. Thus, for instance, it is insisted that the previous rulings of the courts, both trial and supreme, had been to the effect that a jury called under these condemnation statutes was a jury of inquest, and not a trial jury, whereas, in this case, the ruling was practically to the contrary, and the respondents were compelled to submit their rights to a trial jury, subject to the control of the presiding judge, as in ordinary common-law cases. We deem it unnecessary to review the many authorities from the supreme court of Michigan cited by counsel, or determine whether the ruling in this case as to methods of procedure and the true construction of the statute is or is not in harmony with prior decisions of that court. Accepting the contention of counsel, that in this case the supreme court of the state has put a different construction on the state statutes from that theretofore given, and has sustained modes of procedure different from those which had previously obtained, still it does not follow that this court has a right to interfere, and say that the present ruling is erroneous, and the prior construction correct, or that the change of construction works a denial of any fundamental rights. There is no vested right in a mode of procedure. Each succeeding legislature may establish a different one, providing, only, that in each is preserved the essential elements of protection. The fact that one construction has been placed upon a statute by the highest court of the state does not make that construction beyond change. Suppose it were true, in the fullest sense of counsel's contention, that for a series of years the courts had ruled that the jury in condemnation cases was a jury of inquest, or in the nature of a sheriff's jury, one determining for itself all matters of law and fact,-and that in this case, for the first time, they held otherwise, and that such jury was a commonlaw jury, subject to be controlled by the presiding judge, whose duty it was to determine all questions of law; and still, whatever might be thought of the propriety of such a change of construction, there is in it nothing to justify this court in reversing the judgment of the state court, and denying the correctness or validity of this last ruling. We fail to see why the presence of the judge with this jury, his assumption of power to control its proceedings, his instructions to it on questions of law, necessarily vitiated the proceedings. Grant that such a course had never been taken before; grant that it had never been held to be a proper proceeding; grant that it was unexpected by counsel,-and yet, if the judge's rulings and instructions were in themselves correct, and the propriety of his presence and control be held by the supreme court of the state warranted by the statutes, we do not perceive that any right possessed under the constitution of the United States has been violated.

The question is not presented of a distinct ruling by a state court that one party is entitled to certain rights and the benefits of certain modes of procedure, and that another party similarly situated is not entitled to them. An act of the legislature which in terms gave to one individual certain rights, and denied to another similarly situated the same rights, might be challenged n  the ground of unjust discrimination and a denial of the equal protection of the laws. But that does not prevent a legislature, which has established a certain rule of procedure, and continued it in force for years, from subsequently repealing the act, and establishing an entirely different mode of procedure. In other words, there is no absolute right vested in the individual as against the power of the legislature to change modes of procedure. And a similar thought controls where the courts of the state have construed a statute as prescribing one form of procedure, and parties have acted under that construction, and then subsequently the same court has held that the statute was theretofore misconstrued, and really provided a different mode of procedure. This last adjudication cannot be set aside in the federal courts on the ground of an unjust discrimination or a denial of the equal protection of the laws.

We, of course, do not mean to affirm that there has been by the supreme court of the state such a change of adjudication. We simply in this respect accept the contention of counsel for the respondents, and hold that, even if the facts be as claimed by him, they furnish no ground for interference by this court. It should be noticed, in passing, however, that nearly all, if not absolutely all, of the cases which he cites from the supreme court of Michigan arose under the provisions respecting condemnation in the general railroad act, while these proceedings were had under the union depot act, and, although the two acts may be substantially similar, yet this adjudication is under a different statute from that under which most, if not all, of the prior decisions were made.

Passing, now, to the fourth point: Under this it is claimed that the trial judge gave to the jury an improper measure of damages. During the argument of counsel for the respondents this colloquy took place, as appears from the record:

'Court: A question which arises in my mind is this: There is no question but what the Backuses are entitled to full compensation for such damages as they may suffer; but does not the other rule also attach, and that is, that the jury are not in any way to consider any speculative damages or any probable damages?

'Mr. Dickinson: They can only consider the damages which are actually shown, but the other rule follows, may it please your honor, that they are not to estimate those damages for a year, or estimate the present injury done by the railroad, but they must assume that the railroad is running to its maximum capacity, that it has other railroads, that it may double, treble, or quadruple its trains, so far as that is concerned, and they must estimate the damage for the future time, not for a year, or three years, or five years, or ten years.

'Court: That is undoubtedly true to a certain extent, but the question that I have thought about considerably within the last few days is in regard to the testimony which was admitted in the case in regard to their profits,-the profits of their business. Do they not come within the rule which applies in regard to speculative damages?'

Afterwards, when the counsel for petitioner was making his argument, he said:

'In other words, if the court please, the question as to what business is carried on there, and as to how profitable an institution it might be, is merely an element to be considered in establishing the market value of the property.'

'In other words, if a profitable business is carried on in connection with a certain site, the profitableness of the business itself must be taken into consideration by the jury in estimating the value?' After the arguments were over the judge charged the jury as follows:

'Upon this question, viz. compensation or damages, what I have to say must necessarily be in a broad and the most general way. This is a question for you, and, from the very nature of a proceeding of this character, you are vested with large powers and great discretion. These powers and this discretion should not be exercised arbitrarily, nor without proper regard for substantial justice. You should bear in mind that, the greater the power, the more jealous is the law of its careful exercise, and the greater is the responsibility of the persons vested therewith. You should exercise a cool, careful, intelligent, and unbiased judgment. The compensation or damages must be neither inadequate nor excessive, and your award must not furnish a just inference of the existence of undue influence, partiality, bias, and prejudice, or unfaithfulness in the discharge of the duties imposed upon you. You must, however, remember that the respondents' property is taken, or its enjoyment interfered with, under the so-called power of eminent domain,-a power somewhat, and necessarily, arbitrary in its character,-and that, where this is done, the party whose property is taken, or whose enjoyment or use of the property is interfered with, is entitled to full compensation for the injury inflicted. While the allowance to be made should be liberal, still it must not be unreasonably exorbitant or grossly excessive. It should be a fair and liberal allowance, and full and adequate compensation for the damages inflicted. You should not allow too little, nor should you allow too much. Your award should be based upon that which is real, and what is substantial, and not upon what is either fictitious or speculative. You should look at the conditions of things as they exist. Under the constitution and laws the right to take another's property for public uses, the power to exercise the right of eminent domain, is a part of the law of the land; but, when this power is exercised, it can only be done by giving the party whose property is taken, or whose use and enjoyment of such property is interfered with, full and adequate compensation,-not excessive or exorbitant, but just, compensation.

'I shall not call attention to any particular part of the testimony in the case. The responsibility of its application and the weight to be given it rests with you, always regarding that which is real and substantial, and disregarding that which is fictitious and speculative; treating conditions as they have been shown and as they are, without speculating as to what might possibly happen or occur; taking conditions as you find them, and the natural and probable consequences following such conditions.'

And this was all which was said in reference to the measure of compensation. Now, it is insisted by counsel that the profits which the manufacturing plant was making were to be taken into consideration by the jury in awarding compensation, inasmuch as the business of that plant was seriously interrupted, if not practically destroyed, by this condemnation; that, inasmuch as the query was suggested by the judge during the argument whether profits did not come within the rule as to speculative damages, the failure to charge distinctly that they were proper subjects of consideration was equivalent to an instruction that they were not to be considered, and that, therefore, the true rule of compensation was not given to the jury.

It is evident that the judge did not attempt to define the several elements which enter into the general fact of compensation, or the various matters to be considered by the jury. He simply charged generally that, as this was an arbitrary taking of the property of the respondents, they were entitled to full compensation, and left to the jury the duty of determining what should be such compensation, telling them plainly that they were vested with large powers and great discretion. If it be said that the judge had intimated by his query that the matter of profits came within the rule applicable to speculative damages, it must also be noticed that, further on, he suggested that the profitableness of a business was to be taken into consideration in estimating the value. It is true he nowhere instructed the jury to make the profits of the business the criterio  of value, nor, indeed, would he have been justified in so doing. The profitableness of the business was undoubtedly a matter to be considered, and so the judge fairly intimated in these prior colloquies. But the profits of a business are not destroyed unless the business is not only there stopped, but also one which in its nature cannot be carried on elsewhere. If it can be transferred to a new place, and there prosecuted successfully, then the total profits are not appropriated, and the injury is that which flows from the change of location.

But beyond this no special instructions were asked by the respondents at the time of the giving of the charge. The statute (section 3466) provides that the judge 'may attend said jury, to decide questions of law.' So far as he gave instructions, it is obvious that he stated that which was the law, and the real objection is that he did not go further, and enter into a more minute description of the elements which were to be taken into consideration by the jury in fixing the amount of compensation; that they may, from the colloquies which had taken place during the arguments, have drawn improper inferences as to the limit to which they were warranted in going; and that those inferences he failed to correct by specifically stating what matters they should consider. A sufficient answer is that the respondents did not ask any further instructions. All they did was to except to what had been stated. By wellsettled rules no appellate court would under such circumstances be required to set aside the judgment of the trial court. Shutte v. Thompson, 15 Wall. 151, 164; Insurance Co. v. Snyder, 93 U.S. 393; Railway Co. v. Volk, 151 U.S. 73, 14 Sup. Ct. 239; Isaacs v. U.S. 159 U.S. 487, 16 Sup. Ct. 51.

But a more complete and satisfactory answer is that whatever error there may have been affords no ground for the interference of this court. The respondents were not thereby deprived of any rights secured by the federal constitution. They were not denied 'due process of law.' The proceedings were had before a duly-constituted tribunal, in accordance with the declared law of the state, with full opportunity to be heard. Nor were they denied 'the equal protection of the laws.' The rule as to the necessity of asking special instructions was administered in this case no differently than in others. Marchant v. Railroad Co., 153 U.S. 380, 14 Sup. Ct. 894. The error, if any there be, was not one 'in absolute disregard of their right to just compensation,' but was only error in the administration of the law under which those proceedings were instituted. As clearly pointed out in Chicago, B. & Q. R. Co. v. City of Chicago, supra, it is not every error occurring in a state court in the administration of its law concerning condemnation of private property for public purposes that opens the door to review by this court. We are not called upon to search the record simply to inquire whether there may or may not have been errors in the proceedings. Our limit of interference is reached when it appears that no fundamental rights have been disregarded by the state tribunals.

Under the fifth head counsel present two matters:

'(1) The denial by the supreme court of the state of a hearing on the substantial and essential question of whether counsel for plaintiffs in error abused their privilege as counsel by arguing to the jury on the question of necessity that the margin of the depot grounds that belonged to the Michigan Central road could be taken for the elevated structure; and (2) the reversal of the unanimous judgment of the supreme court of the state in 89 Mich. 209, 50 N. W. 646, without a rehearing, by the judgment in 92 Mich. 33, 52 N. W. 790.'

With reference to the first, it is enough to say that the respondents did not appeal to the supreme court, and that under section 3468 it would seem that that court was called upon to consider only such objections as had been particularly specified. 'Either party may appeal, by o tice in writing.' 'Such notice shall specify the objections.' 'The supreme court shall pass on such objections only, and all other objections, if any, shall be deemed to have been waived.' No objection to the finding of the jury as to the question of necessity had been made by the appellant, and therefore was to be treated as waived. Under those circumstances it cannot be said that the supreme court deprived the respondents of any rights by refusing to hear counsel in respect to the question of necessity or connected with its determination.

With regard to the second, technically, the decision on the mandamus proceeding and that on the appeal did not conflict. The writ of mandamus directed the circuit judge to set aside the order which he had entered vacating the award. It thus in effect declared that that judge ought not to have made such an order. On the appeal the supreme court itself ordered that the award be set aside, and a new jury impaneled, and remanded it to the circuit court for such new appraisal. This is within the letter of the statute (section 3468): 'On the hearing of such appeal, the court may direct a new appraisal before the same or new commissioners or jury, in its discretion.' The decision by the supreme court, that it had power to set aside the verdict and order a new appraisal, was not a reversal of a ruling that the circuit court had no such power, although it may suggest consequences somewhat singular. Appreciating that fact, in the last opinion the court declared that in the former decision its language restricting the power of the circuit court had been too strong.

Coming, now, to the last point, the supreme court held that, as upon the second appraisal the damages were less than those awarded on the first, and the amount of the first had been paid to the respondents, the petitioner was entitled to a judgment for the difference. The language of the statute (section 3468) is: 'But if the amount is diminished, the difference shall be refunded to the company by the party to whom the same may have been paid, and judgments therefor and for all costs of the appeal shall be rendered against the party so appealing.' It may be that this language is not entirely apt, for in this case the party appealing was not the landowner, but the depot company, and so it cannot be said that judgments were rendered against 'the party appealing.' But the true intent of the statute is obvious, and at any rate we are bound to accept the construction placed upon it by the supreme court, and hold that it means that if the last appraisal was less than the first, and the amount of the first had been paid, the company was entitled to recover the difference from the party to whom it had been paid. Nothing is said, it is true, in the statute about execution, but the supreme court ruled that under the general statutes the recovery of the judgment carried with it a right to an execution.

These are all the questions in this case. We find nothing in them which justifies an interference by this court with the proceedings of the state courts,-nothing in which it can be said that any ruling of those courts was in absolute disregard of the respondents' right to compensation. The judgment must, therefore, be affirmed.

Mr. Justice BROWN took no part in the decision of this case.

Notes