US SUPREME COURT DECISIONS

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 chanrobles.com-red

Page 193 U. S. 431

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 chanrobles.com-red

Page 193 U. S. 432

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 Forty-first Streets; that no notice was given to any of the property owners along said street that it was proposed by the defendants or any of them to change the position of the tunnel to any material extent from the position shown and described in the said 'routes and general plan,' nor was any opportunity ever given to said property owners or the citizens generally to be heard with respect to any such change."

Complainant further averred

"that at none of the times herein mentioned did the said board of rapid transit railroad commissioners have authority (if at all) to enter into any contract for the construction of any rapid transit railroad under or upon the said Park Avenue except in accordance with the said 'routes and general plan' contained in the said resolutions of January 14 and February 4, 1897, and that at no time did the said board have authority to prepare detailed plans and specifications, except (if at all) in accordance with the said general plan of construction, or to alter any plans or specifications prepared by them, excepting in accordance with said general plan of construction. That the act of the

Page 193 U. S. 433

said board in permitting the defendants McDonald and the said Shaler to enter upon that part of Park Avenue between Thirty-third and Forty-first Streets where the tunnel is now in process of construction, as aforesaid, was illegal and unauthorized, and the defendants McDonald and the said Shaler have entered upon the same unlawfully and without authority, and for the further reason that the construction of the rapid transit railway on the easterly side of Park Avenue, in front of your orator's said premises, takes his property without due process of law, in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States, and that said Rapid Transit Act, so far as it purports to authorize the construction of a tunnel and railway in said Park Avenue without the consent of abutting owners or compensation therefor, is void because it deprives your orator of his property without due process of law, in violation of the provisions of the said amendment."

On the bill and affidavits, complainant moved for an injunction pendente lite, and defendants resisted the motion, submitting, in pursuance of stipulation, affidavits filed in their behalf in the case of Huntington v. New York, the same defendants, since brought here, numbered at this term 173, and argued with this case. The opinion in that case, 118 F.6d 3, was adopted in this, and the court, of its own motion, under section 5 of the Act of March 3, 1875, c. 137, entered a decree dismissing the bill for want of jurisdiction, and certified that question to this Court. chanrobles.com-red

Page 193 U. S. 437