TAKINGS AND THE ENVIRONMENT SEMINAR
ASSIGNMENT 9
The Takings Clause in Transition:
From Pennsylvania Coal to Penn Central
“In 1920 minimum-wage and maximum-hour laws were unconstitutional. As the
Supreme Court interpreted the Constitution at that time, it could not possibly have
permitted a Social Security Act or a National Labor Relations Act. In the 1930s,
President Franklin Delano Roosevelt sought to legitimate the New Deal whose
centerpieces included minimum-wage and maximum-hour laws, the Social
Security Act, and the National Labor Relations Act. Roosevelt didn’t try to
change a word of the Constitution, but by 1937 a reconstituted Supreme Court
upheld nearly everything that Roosevelt wanted. In 1945, the Constitution
permitted racial segregation, did not protect the right to vote, permitted official
prayers in the public schools, and gave little protection to political dissent. By
1970 the same constitution prohibited racial segregation, safeguarded the right to
vote, banned official prayers in the public schools, and offered broad protection
not only to political dissent but also to speech of all kinds. If American citizens in
1945 were placed in a time machine, they would have a hard time recognizing
their Constitution merely twenty-five years later.”
Cass R. Sunstein, The Second Bill of Rights:
FDR’s Unfinished Revolution (2004).
Reading:
James W. Ely, The Guardian of Every Other Right, pp. 125-56 & 172-75
Lynch v. United States, 292 U.S. 571 (1934)
United States v. Causby, 328 U.S. 256 (1945)
Federal Housing Administration v. The Darlington, Inc., 358 U.S. 84 (1958)
Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)
Notes and Questions:
1.
The purpose of this assignment is to study the Supreme Court’s interpretation of the
takings and due process clauses of the Constitution during the fifty-six years between the
landmark cases of Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), and Penn Central
Transportation Co. v. City of New York, 438 U.S. 104 (1978). On the one hand, there were no
significant takings cases decided during this transitional period. On the other, the Court
articulated several important principles regarding the nature and scope of private property rights
in the New Deal era and post-World War II regulatory state that have had enduring influence.
1
Moreover, by deciding cases involving such diverse topics as government contracts, economic
regulation, physical invasions, and health and safety protection, the Court laid the foundations of
it modern takings clause jurisprudence.
2.
In Lynch v. United States, the Supreme Court states that “contracts are property, whether
the obligor be a private individual, a municipality, a State or the United States. Rights against
the United States arising out of a contract with it are protected by the Fifth Amendment.” Should
this be the law? Why should the United States, as sovereign, not have the authority to change
the law governing a particular contract to which it is a party, just as it has sovereign power to
enact laws that alter the legality and performance of contracts between private parties? Please
note that the “impairment of contracts” clause of Article I, Section 10, of the Constitution applies
only to the states, not to Congress.
3.
In his opinion for the Court in Lynch, Justice Brandeis quotes the Sinking Fund Cases, 99
U.S. 700, 719, for the proposition that the “‘United States are as much bound by their contracts
as are individuals. If they repudiate their obligations, it is as much repudiation, with all the
wrong and reproach that term implies, as it would be if the repudiator had been a State or a
municipality or a citizen.’” Is the Court implicitly applying the contract clause of the
Constitution to the United States? If so, is this a correct interpretation (or embellishment) of the
Constitution?
4.
Immediately after this statement, Justice Brandeis writes for the Court that “[c]ontracts
between individuals or corporations are impaired within the meaning of the Constitution
whenever the right to enforce them by legal process is taken away or materially lessened.” Is
this consistent with his dissenting opinion in Pennsylvania Coal? Was not the effect of the
Kohler Act to destroy the coal company’s contract rights vis-à-vis the landowners from whom it
had acquired, or retained, the support estate? Similarly, does this statement from Lynch mean
that if Mugler or Ziebold had had beer sales contracts that were rendered illegal and
unenforceable, the Kansas prohibition law would have been void as an unconstitutional
impairment of contract?
5.
Quoting The Federalist, No. 81 (Hamilton), Justice Brandeis goes on to declare that a
“different rule prevails in respect to contracts of sovereigns. . . . ‘The contracts between a Nation
and an individual are only binding on the conscience of the sovereign and have no pretensions to
compulsive force. They confer no right of action independent of the sovereign will.’” What
does this mean?
6.
Do you agree with the Court’s conclusion that, in enacting the Economy Act of 1933,
Congress intended to take away the contract rights of the World War I life insurance
beneficiaries, rather than simply to deny them a remedy for their breach of contract/takings
claims? Is this distinction a proper one on which to base the decision whether parties who hold
contracts with the United States are compensated or not for legislative changes that alter their
contract rights?
7.
Four years after Lynch, the Supreme Court issued its opinion in United States v. Carolene
Products Co., 304 U.S. 144 (1938), which was a constitutional challenge to the Filled Milk Act
2
of 1923. The Act declared as “injurious to the public health” any milk product to which nonmilk ingredients, such as coconut oil, were added and banned such products from interstate
commerce. The Court sustained the prosecution of the Carolene Products Co. for violating the
Act, rejecting the company’s arguments that the statute exceeded the scope of Congress’
commerce clause powers and denied it due process and equal protection of the laws in violation
of the Fifth Amendment. The Court held that “Congress is free to exclude from interstate
commerce articles whose use in the states for which they are destined it may reasonably conceive
to be injurious to the public health, morals or welfare . . . or which contravene the policy of the
state of their destination.” Id. at 147.
In denying the Carolene Products Co.’s Fifth Amendment claims, Justice Harlan Fisk
Stone distinguished between the appropriate standard of judicial review of this type of economic
regulation affecting commercial activity and laws that allegedly violate personal constitutional
rights. “[T]he existence of facts supporting the legislative judgment is to be presumed,” he
wrote, because “regulatory legislation affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless in light of the facts made known or generally assumed it is of
such a character as to preclude the assumption that it rests upon some rational basis within the
knowledge and experience of the legislators.” Id. at 152. In contrast,
[t]here may be narrower scope for operation of the presumption of constitutionality when
legislation appears on its face to be within a specific prohibition of the Constitution, such
as those of the first ten amendments, which are deemed equally specific when held to be
embraced within the Fourteenth. . . . It is unnecessary to consider now whether legislation
which restricts those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny
under the general prohibitions of the Fourteenth Amendment than are most other types of
legislation. . . . Nor need we enquire whether similar considerations enter into the review
of statutes directed at particular religious, . . . or national, . . . or racial minorities, . . .
whether prejudice against discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry.
This distinction has had a profound effect on the Supreme Court’s approach to claims
brought under the due process clauses of the Constitution. See JOHN HART ELY, DEMOCRACY
AND DISTRUST (HARVARD 1980). In the view of some scholars, however, the Court’s emphasis
on personal rights and liberties in footnote four may have led the Supreme Court to focus its
attention for much of the next fifty years away from property rights cases. JAMES W. ELY, THE
GUARDIAN OF EVERY OTHER RIGHT 139-41 (OXFORD, 3D ED., 2008).
8.
James Ely argues that the “distinction between property rights and personal liberties runs
counter to the framers’ belief that rights are closely related and that the protection of property
ownership is essential to the enjoyment of political liberty. . . . As a practical matter, a line
between economic rights and other liberties cannot be drawn with precision. Moreover, it is
difficult to reconcile the subordination of property rights with the specific property guarantees in
the Constitution.” THE GUARDIAN OF EVERY OTHER RIGHT, at 140-41. Do you agree?
3
9.
Whether this analysis of Caroline Products is correct or not, the Supreme Court did not
entirely ignore the Fifth Amendment during the period between that decision and Penn Central.
In United States v. Causby, for example, the Court reached back to the 19th Century case of
Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), to reconfirm that the Fifth Amendment requires
payment of just compensation for the de facto taking of an easement on (or over) private
property. As discussed in Mugler v. Kansas, 123 U.S. 623, 668 (1887), these types of actions—
such as the flooding of private land or the use of airspace above the land—are tantamount to the
exercise of eminent domain and therefore should be accompanied by payment of just
compensation.
10.
Do you agree with the Court’s decision in Causby? Are the facts of that case
distinguishable from Pumpelly? Should the intermittent invasion of a landowner’s airspace have
the same legal consequences as the permanent flooding of private land? Does Causby establish a
categorical rule that physical invasions of private property are takings per se?
11.
In footnote 13, Justice Douglas compares the facts of Causby to an contemporaneous
case, United States v. General Motors, 323 U.S. 373 (1945). He then writes that the “present
case falls short of the General Motors case. This is not a case where the United States has
merely destroyed property. It is using a part of it for the flight of its planes.”
What does this mean? Does the court propose to distinguish between “takings”—
government actions that physically damage or invade private property—and “usings”—
government actions that not only take private property but also apply that property to a public
use? Is this an application of the “conscription of private property” theory that we discussed in
our analysis of Pennsylvania Coal? Does this theory add significantly to the takings law
calculus?
12.
Causby was followed by Griggs v. Allegheny County, 369 U.S. 84 (1962), in which the
Supreme Court held that the county, as owner of the Greater Pittsburgh Airport, was responsible
for compensating landowners whose airspace was violated by planes that used the airport’s
runways. As in Causby, Justice Douglas wrote the opinion of the Court, and Justice Black
dissented.
13.
Is the most significant aspect of Causby and Griggs the Supreme Court’s unanimous
approval of Congress’ abrogation of the common law rule of cujus est solum ejus est usque ad
coelum?
14.
Federal Housing Administration v. The Darlington is one of the first Supreme Court
cases explicitly to address the question of property rights, takings, and the modern regulatory
state. The Court holds that, because the plaintiffs did not have a contract or explicit prior
statutory right to rent to “transients,” they could not claim immunity from changes in (or
clarifications to) the law as manifested in the 1954 amendments? If they had such a contract, or
if the prior law had expressly granted the right to rent to persons for terms less than 30 days,
would the 1954 amendments violate the plaintiffs’ due process rights or take their property under
Lynch? How do you respond to the arguments raised by Justices Frankfurter and Harlan in their
dissenting opinions?
4
15.
At the end of his opinion for the Court, Justice Douglas writes:
The Constitution is concerned with practical, substantial rights, not with those that are
unclear and gain hold by subtle and involved reasoning. . . . Congress by the 1954 Act
was doing no more than protecting the regulatory system which it had designed. Those
who do business in the regulated field cannot object if the legislative scheme is buttressed
by subsequent amendments to achieve the legislative end. . . . Invocation of the Due
Process Clause to protect the rights asserted here would make the ghost of Lochner v.
New York, 198 U.S. 45, walk again.
Do you agree?
16.
Does Goldblatt change the law of regulatory takings that we studied in Assignments 5
and 6? In other words, is it consistent with the nuisance cases on which Justice Clark relies and
with Pennsylvania Coal?
17.
Please note the Court’s discussion of diminution in value. Does this mean that if the
Hempstead ordinances reduced the value of the land for mining or any other purpose to zero, the
Court would have concluded that there was a compensable taking? What if there had been a 95
percent reduction in value? 98 percent? 99 percent? (You see where I am going.) Does the
Court (inadvertently) modify the law of earlier cases—e.g., Mugler, Hadacheck, Pennsylvania
Coal, etc.?
18.
If, as James Ely argues, the decision in Carolene Products created a “sharply limited
concept of property rights [that] operated for the next generation,” THE GUARDIAN OF EVERY
OTHER RIGHT at 139, the Supreme Court signaled its discomfort with this state of affairs in
Lynch v. Household Finance Corp., 405 U.S. 538 (1972). At issue in Lynch, was whether the
plaintiff could sue a Connecticut county sheriff who had enforced a garnishment order for
violating her civil rights. She brought suit inter alia under 42 U.S.C. § 1983 and its
jurisdictional counterpart, 28 U.S.C. § 1343(3). The latter provides:
The district courts shall have original jurisdiction of any civil action authorized by law to
be commenced by any person: . . . .
(3) To redress the deprivation, under color of any State law, statute, ordinance,
regulation, custom or usage, of any right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United States. . . .
The District Court dismissed the complaint, concluding that section 1343(3) grants jurisdiction
only over suits involving “personal rights” and that claims for deprivation of property rights do
not fall within the category of protected personal rights.
The Supreme Court reversed. Toward the end of his opinion for the Court, Justice
Stewart explained that
5
the dichotomy between personal liberties and property rights is a false one. Property
does not have rights. People have rights. The right to enjoy property without unlawful
deprivation, no less than the right to speak or the right to travel, is in truth a “personal”
right, whether the “property” in question be a welfare check, a home, or a savings
account. In fact, a fundamental interdependence exists between the personal right to
liberty and the personal right in property. Neither could have meaning without the other.
That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil
Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of
the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132
(1942);1 W. Blackstone, Commentaries *138-140.
Id. at 552. The Court concluded that “Congress recognized these rights in 1871 when it enacted
the predecessor of §§ 1983 and 1343(3). We do no more than reaffirm the judgment of Congress
today.” Id.
19.
In the 1960s and 1970s, several law professors reviewed the sweep of decisions from
Mugler through Goldblatt and set the stage for the Supreme Court’s modern takings
jurisprudence that began with Penn Central Transportation Co. v. New York City, 438 U.S. 104
(1978). The most important of these are:
•
Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964)
•
Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical
Foundations of Just Compensation Law, 80 Harv. L. Rev. 1165 (1967)
•
Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971)
•
BRUCE ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION (Yale 1977)
We will discuss these authors’ theories of the takings clause throughout our analysis of Penn
Central and the cases that follow in its wake.
LYNCH v. UNITED STATES
Supreme Court of the United States
292 U.S. 571 (1934)
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
These cases, which are here on certiorari, present for decision the same question. In
each, the plaintiff is the beneficiary under a policy for yearly renewable term insurance1 issued
1
Section 404 provides: "That during the period of war and thereafter until converted the
insurance shall be term insurance for successive terms of one year each. Not later than five years
after the date of the termination of the war as declared by proclamation of the President of the
United States, the term insurance shall be converted, without medical examination, into such
form or forms of insurance as may be prescribed by regulations and as the insured may request.
6
during the World War pursuant to the War Risk Insurance Act of October 6, 1917, c. 105, Article
IV, §§ 400-405. The actions were brought in April, 1933, in federal district courts to recover
amounts alleged to be due. In each case it is alleged that the insured had, before September 1,
1919 and while the policy was in force, been totally and permanently disabled; that he was
entitled to compensation sufficient to pay the premiums on the policy until it matured by death;
that no compensation had ever been paid; that the claim for payment was presented by the
beneficiary after the death of the insured; that payment was refused; and that thereby the
disagreement arose which the law makes a condition precedent to the right to bring suit. In No.
855, which comes here from the Fifth Circuit, the insured died November 27, 1924. In No. 861,
which comes here from the Seventh Circuit, the insured died May 15, 1929.
In each case, the United States demurred to the petition on the ground that the court was
without jurisdiction to entertain the suit, because the consent of the United States to be sued had
been withdrawn by the Act of March 20, 1933, c. 3, 48 Stat. 9, commonly called the Economy
Act.
The plaintiffs duly claimed that the Act deprived them of property without due process of
law in violation of the Fifth Amendment. The district courts overruled the objection; sustained
the demurrers and dismissed the complaints. Their judgments were affirmed by the circuit courts
of appeals. 67 F.2d 490; 68 id. 442. The only question requiring serious consideration relates to
the construction and effect to be given to the clause of § 17 of the Economy Act upon which the
Government relies; for the character and incidents of War Risk Insurance and the applicable
rules of constitutional law have been settled by decisions of this Court. The clause in question is:
". . . all laws granting or pertaining to yearly renewable term insurance are hereby repealed. . . ."
First. War Risk Insurance policies are contracts of the United States. As consideration
for the Government's obligation, the insured paid prescribed monthly premiums. White v. United
States, 270 U.S. 175, 180. True, these contracts, unlike others, were not entered into by the
United States for a business purpose. The policies granted insurance against death or total
disability without medical examination, at net premium rates based on the American Experience
Table of Mortality and three and one-half per cent interest, the United States bearing both the
whole expense of administration and the excess mortality and disability cost resulting from the
hazards of war. In order to effect a benevolent purpose heavy burdens were assumed by the
Government.2 But the policies, although not entered into for gain, are legal obligations of the
same dignity as other contracts of the United States and possess the same legal incidents.
Regulations shall provide for the right to convert into ordinary life, twenty payment life,
endowment maturing at age sixty-two, and into other usual forms of insurance. . . ."
2
The disbursements to June 30, 1933, for term and automatic insurance (the latter
provided for those who were permanently and totally disabled or who died within 120 days after
entrance into the service and before making application for term insurance) exceeded the
premium receipts by $1,166,939,057. Administrator of Veterans' Affairs, Report for Year 1933,
p. 28. The annual cost of administration was estimated at $1,744,038.56. Report of United States
Veterans' Bureau for 1922, p. 465. War Risk Insurance was devised in the hope that it would, in
large measure, avoid the necessity of granting pensions. Term insurance was issued at a very
low premium rate. Over 4,684,000 persons applied before the armistice to the amount of about
7
War Risk Insurance, while resembling in benevolent purpose pensions, compensation
allowances, hospital and other privileges accorded to former members of the army and navy or
their dependents, differs from them fundamentally in legal incidents. Pensions, compensation
allowances and privileges are gratuities. They involve no agreement of parties; and the grant of
them creates no vested right. The benefits conferred by gratuities may be redistributed or
withdrawn at any time in the discretion of Congress. United States v. Teller, 107 U.S. 64, 68;
Frisbie v. United States, 157 U.S. 160, 166; United States v. Cook, 257 U.S. 523, 527. On the
other hand War Risk policies, being contracts, are property and create vested rights. The terms
of these contracts are to be found in part in the policy, in part in the statutes under which they are
issued and the regulations promulgated thereunder.
In order to promote efficiency in administration and justice in the distribution of War
Risk Insurance benefits, the Administration was given power to prescribe the form of policies
and to make regulations. The form prescribed provided that the policy should be subject to all
amendments to the original Act, to all regulations then in force or thereafter adopted. Within
certain limits of application this form was deemed authorized by the Act, White v. United States,
270 U.S. 175, 180, and, as held in that case, one whose vested rights were not thereby disturbed
could not complain of subsequent legislation affecting the terms of the policy. Such legislation
has been frequent. Moreover, from time to time, privileges granted were voluntarily enlarged
and new ones were given by the Government. But no power to curtail the amount of the benefits
which Congress contracted to pay was reserved to Congress; and none could be given by any
regulation promulgated by the Administrator. Prior to the Economy Act, no attempt was made to
lessen the obligation of the Government. Then, Congress, by a clause of thirteen words included
in a very long section dealing with gratuities, repealed "all laws granting or pertaining to yearly
renewable term insurance." The repeal, if valid, abrogated outstanding contracts; and relieved
the United States from all liability on the contracts without making compensation to the
beneficiaries.
Second. The Fifth Amendment commands that property be not taken without making just
compensation. Valid contracts are property, whether the obligor be a private individual, a
municipality, a State or the United States. Rights against the United States arising out of a
contract with it are protected by the Fifth Amendment. United States v. Central Pacific R. Co.,
118 U.S. 235, 238; United States v. Northern Pacific Ry. Co., 256 U.S. 51, 64, 67. When the
United States enters into contract relations, its rights and duties therein are governed generally by
the law applicable to contracts between private individuals. That the contracts of war risk
insurance were valid when made is not questioned. As Congress had the power to authorize the
Bureau of War Risk Insurance to issue them, the due process clause prohibits the United States
from annulling them, unless, indeed, the action taken falls within the federal police power or
some other paramount power.
$40,000,000,000 for War Risk term insurance; but over 75 per cent of the men who carried term
insurance while in the service never paid a premium after the war. See Report of Bureau of War
Risk Insurance for 1920, pp. 5, 7, 41; Report of United States Veterans' Bureau for 1922, p. 456;
for 1925, p. 268.
8
The Solicitor General does not suggest, either in brief or argument, that there were
supervening conditions which authorized Congress to abrogate these contracts in the exercise of
the police or any other power. The title of the Act of March 20, 1933, repels any such
suggestion. Although popularly known as the Economy Act, it is entitled an "Act to maintain the
credit of the United States." Punctilious fulfillment of contractual obligations is essential to the
maintenance of the credit of public as well as private debtors. No doubt there was in March,
1933, great need of economy. In the administration of all government business economy had
become urgent because of lessened revenues and the heavy obligations to be issued in the hope
of relieving widespread distress. Congress was free to reduce gratuities deemed excessive. But
Congress was without power to reduce expenditures by abrogating contractual obligations of the
United States. To abrogate contracts, in the attempt to lessen government expenditure, would be
not the practice of economy, but an act of repudiation. "The United States are as much bound by
their contracts as are individuals. If they repudiate their obligations, it is as much repudiation,
with all the wrong and reproach that term implies, as it would be if the repudiator had been a
State or a municipality or a citizen." Sinking-Fund Cases, 99 U.S. 700, 719.
Third. Contracts between individuals or corporations are impaired within the meaning of
the Constitution whenever the right to enforce them by legal process is taken away or materially
lessened. A different rule prevails in respect to contracts of sovereigns. "The contracts between
a Nation and an individual are only binding on the conscience of the sovereign and have no
pretensions to compulsive force. They confer no right of action independent of the sovereign
will."3 The rule that the United States may not be sued without its consent is all embracing.
In establishing the system of War Risk Insurance, Congress vested in its administrative
agency broad power in making determinations of essential facts—power similar to that exercised
in respect to pensions, compensation, allowances and other gratuitous privileges provided for
veterans and their dependents. But while the statutes granting gratuities contain no specific
provision for suits against the United States, Congress, as if to emphasize the contractual
obligation assumed by the United States when issuing War Risk policies, conferred upon
beneficiaries substantially the same legal remedy which beneficiaries enjoy under policies issued
by private corporations. The original Act provided in § 405: "That in the event of disagreement
as to a claim under the contract of insurance between the bureau and any beneficiary or
beneficiaries thereunder, an action on the claim may be brought against the United States in the
district court of the United States in and for the district in which such beneficiaries or any one of
them resides."4
Although consent to sue was thus given when the policy issued, Congress retained power
to withdraw the consent at any time. For consent to sue the United States is a privilege accorded;
not the grant of a property right protected by the Fifth Amendment. The consent may be
withdrawn, although given after much deliberation and for a pecuniary consideration. DeGroot
v. United States, 5 Wall. 419, 432. * * * The sovereign's immunity from suit exists whatever the
3
Hamilton, The Federalist, No. 81.
4
The provision for suit was later modified. See World War Veterans' Act 1924, § 19, as
amended by Act of July 3, 1930, c. 849, 46 Stat. 991, 992, under which these suits were brought.
9
character of the proceeding or the source of the right sought to be enforced. It applies alike to
causes of action arising under acts of Congress, DeGroot v. United States, 5 Wall. 419, 431;
United States v. Babcock, 250 U.S. 328, 331; and to those arising from some violation of rights
conferred upon the citizen by the Constitution, Schillinger v. United States, 155 U.S. 163, 166,
168. The character of the cause of action—the fact that it is in contract as distinguished from
tort—may be important in determining (as under the Tucker Act) whether consent to sue was
given. Otherwise, it is of no significance. For immunity from suit is an attribute of sovereignty
which may not be bartered away.
Mere withdrawal of consent to sue on policies for yearly renewable term insurance would
not imply repudiation. When the United States creates rights in individuals against itself, it is
under no obligation to provide a remedy through the courts. United States v. Babcock, 250 U.S.
328, 331. It may limit the individual to administrative remedies. Tutun v. United States, 270
U.S. 568, 576. And withdrawal of all remedy, administrative as well as legal, would not
necessarily imply repudiation. So long as the contractual obligation is recognized, Congress may
direct its fulfillment without the interposition of either a court or an administrative tribunal.
Fourth. The question requiring decision is, therefore, whether in repealing "all laws
granting or pertaining to yearly renewable term insurance" Congress aimed at the right or merely
at the remedy. It seems clear that it intended to take away the right; and that Congress did not
intend to preserve the right and merely withdraw consent to sue the United States.5 As Congress
took away the contractual right it had no occasion to provide for withdrawal of the remedy.
Moreover, it appears both from the language of the repealing clause and from the context of § 17
that Congress did not aim at the remedy. The clause makes no mention of consent to sue. The
consent to sue had been given originally by § 405 of the Act of 1917, which, like the later
substituted sections, applied to all kinds of insurance, making no specific reference to yearly
renewable term policies. Obviously, Congress did not intend to repeal generally the section
providing for suits. For in March 1933, most of the policies then outstanding were "converted"
policies, in no way affected by the Economy Act.6
That Congress sought to take away the right of beneficiaries of yearly renewable term
policies and not to withdraw their privilege to sue the United States, appears, also, from an
examination of the other provisions of § 17. The section reads:
"All public laws granting medical or hospital treatment, domiciliary care,
compensation and other allowances, pensions, disability allowance, or retirement
pay to veterans and the dependents of veterans of the Spanish-American War,
including the Boxer Rebellion and the Philippine Insurrection, and the World
5
Veteran Regulation No. 8, promulgated March 31, 1933, pursuant to this Act provides:
"V. Except as stated above [matter not here relevant] no payment may hereafter be made under
contracts of yearly renewable term insurance (including automatic insurance) and all pending
claims or claims hereafter filed for such benefits shall be disallowed."
6
The number of "converted policies" in force June 30, 1933, was 616,069. Administrator
of Veterans' Affairs, Report for 1933, pp. 25, 27.
10
War, or to former members of the military and naval service for injury or disease
incurred or aggravated in the line of duty in the military or naval service (except
so far as they relate to persons who served prior to the Spanish-American War and
to the dependents of such persons, and the retirement of officers and enlisted men
of the Regular Army, Navy, Marine Corps, or Coast Guard) are hereby repealed,
and all laws granting or pertaining to yearly renewable term insurance are hereby
repealed, but payments in accordance with such laws shall continue to the last day
of the third calendar month following the month during which this Act is
enacted."
That section deals principally with the many grants of gratuities to veterans and
dependents of veterans. Congress apparently assumed that there was no difference between the
legal status of these gratuities and the outstanding contracts for yearly renewable term insurance.
It used in respect to both classes of benevolences the substantially same phrase. It repealed "all
public laws" relating to the several categories of gratuities; and it repealed "all laws granting or
pertaining to" such insurance. No right to sue the United States on any of these gratuities had
been granted in the several statutes conferring them; and the right to the gratuity might be
withdrawn at any time. The dominant intention was obviously to abolish rights, not remedies.
***
Fifth. There is a suggestion that although, in repealing all laws "granting or pertaining to
yearly renewable term insurance," Congress intended to take away the contractual right, it also
intended to take away the remedy; that since it had power to take away the remedy, the statute
should be given effect to that extent, even if void insofar as it purported to take away the
contractual right. The suggestion is at war with settled rules of construction. It is true that a
statute bad in part is not necessarily void in its entirety. A provision within the legislative power
may be allowed to stand if it is separable from the bad. But no provision however
unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can
be given legal effect and that the legislature intended the unobjectionable provision to stand in
case other provisions held bad should fall. Dorchy v. Kansas, 264 U.S. 286, 288, 290. Here,
both those essentials are absent. There is no separate provision in § 17 dealing with the remedy;
and it does not appear that Congress wished to deny the remedy if the repeal of the contractual
right was held void under the Fifth Amendment.
War Risk Insurance and the war gratuities were enjoyed, in the main, by the same classes
of persons; and were administered by the same governmental agency. In respect of both,
Congress had theretofore expressed its benevolent purpose perhaps more generously than would
have been warranted in 1933 by the financial condition of the Nation. When it became advisable
to reduce the Nation's existing expenditures, the two classes of benevolences were associated in
the minds of the legislators; and it was natural that they should have wished to subject both to the
same treatment. But it is not to be assumed that Congress would have resorted to the device of
withdrawing the legal remedy from beneficiaries of outstanding yearly renewable term policies if
it had realized that these had contractual rights. It is, at least, as probable that Congress
overlooked the fundamental difference in legal incidents between the two classes of
11
benevolences dealt with in § 17 as that it wished to evade payment of the Nation's legal
obligations.
***
Reversed
12
UNITED STATES v. CAUSBY
Supreme Court of the United States
328 U.S. 256 (1945)
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is whether respondents'
property was taken, within the meaning of the Fifth Amendment, by frequent and regular flights
of army and navy aircraft over respondents' land at low altitudes. The Court of Claims held that
there was a taking and entered judgment for respondents, one judge dissenting. 104 Ct. Cls. 342,
60 F. Supp. 751. The case is here on a petition for a writ of certiorari which we granted because
of the importance of the question presented.
Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It has
on it a dwelling house, and also various outbuildings which were mainly used for raising
chickens. The end of the airport's northwest-southeast runway is 2,220 feet from respondents'
barn and 2,275 feet from their house. The path of glide to this runway passes directly over the
property—which is 100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle7 approved by
the Civil Aeronautics Authority8 passes over this property at 83 feet, which is 67 feet above the
house, 63 feet above the barn and 18 feet above the highest tree.9 The use by the United States
of this airport is pursuant to a lease executed in May, 1942, for a term commencing June 1, 1942
and ending June 30, 1942, with a provision for renewals until June 30, 1967, or six months after
the end of the national emergency, whichever is the earlier.
Various aircraft of the United States use this airport—bombers, transports and fighters.
The direction of the prevailing wind determines when a particular runway is used. The
northwest-southeast runway in question is used about four per cent of the time in taking off and
about seven per cent of the time in landing. Since the United States began operations in May,
1942, its four-motored heavy bombers, other planes of the heavier type, and its fighter planes
have frequently passed over respondents' land and buildings in considerable numbers and rather
close together. They come close enough at times to appear barely to miss the tops of the trees
and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling.
And at night the glare from the planes brightly lights up the place. As a result of the noise,
respondents had to give up their chicken business. As many as six to ten of their chickens were
killed in one day by flying into the walls from fright. The total chickens lost in that manner was
about 150. Production also fell off. The result was the destruction of the use of the property as a
commercial chicken farm. Respondents are frequently deprived of their sleep and the family has
7
A 30 to 1 glide angle means one foot of elevation or descent for every 30 feet of
horizontal distance.
8
Military planes are subject to the rules of the Civil Aeronautics Board where, as in the
present case, there are no Army or Navy regulations to the contrary. Cameron v. Civil
Aeronautics Board, 140 F.2d 482.
9
The house is approximately 16 feet high, the barn 20 feet, and the tallest tree 65 feet.
13
become nervous and frightened. Although there have been no airplane accidents on respondents'
property, there have been several accidents near the airport and close to respondents' place.
These are the essential facts found by the Court of Claims. On the basis of these facts, it found
that respondents' property had depreciated in value. It held that the United States had taken an
easement over the property on June 1, 1942, and that the value of the property destroyed and the
easement taken was $2,000.
I.
The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U. S. C. §
171, as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U. S. C. § 401. Under
those statutes the United States has "complete and exclusive national sovereignty in the air
space" over this country. 49 U. S. C. § 176 (a). They grant any citizen of the United States "a
public right of freedom of transit in air commerce10 through the navigable air space of the United
States." 49 U. S. C. § 403. And "navigable air space" is defined as "airspace above the
minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U. S. C. §
180. And it is provided that "such navigable airspace shall be subject to a public right of
freedom of interstate and foreign air navigation." Id. It is, therefore, argued that since these
flights were within the minimum safe altitudes of flight which had been prescribed, they were an
exercise of the declared right of travel through the airspace. The United States concludes that
when flights are made within the navigable airspace without any physical invasion of the
property of the landowners, there has been no taking of property. It says that at most there was
merely incidental damage occurring as a consequence of authorized air navigation. It also argues
that the landowner does not own superadjacent airspace which he has not subjected to possession
by the erection of structures or other occupancy. Moreover, it is argued that even if the United
States took airspace owned by respondents, no compensable damage was shown. Any damages
are said to be merely consequential for which no compensation may be obtained under the Fifth
Amendment.
It is ancient doctrine that at common law ownership of the land extended to the periphery
of the universe—Cujus est solum ejus est usque ad coelum.11 But that doctrine has no place in
the modern world. The air is a public highway, as Congress has declared. Were that not true,
every transcontinental flight would subject the operator to countless trespass suits. Common
sense revolts at the idea. To recognize such private claims to the airspace would clog these
highways, seriously interfere with their control and development in the public interest, and
transfer into private ownership that to which only the public has a just claim.
But that general principle does not control the present case. For the United States
conceded on oral argument that if the flights over respondents' property rendered it
10
"Air commerce" is defined as including "any operation or navigation of aircraft which
directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce."
49 U. S. C. § 401(3).
11
1 Coke, Institutes (19th ed. 1832) ch. 1, § 1; 2 Blackstone, Commentaries (Lewis ed.
1902) p. 18; 3 Kent, Commentaries (Gould ed. 1896) p. 621.
14
uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the
owner's loss, not the taker's gain, which is the measure of the value of the property taken. United
States v. Miller, 317 U.S. 369. Market value fairly determined is the normal measure of the
recovery. Id. And that value may reflect the use to which the land could readily be converted, as
well as the existing use. United States v. Powelson, 319 U.S. 266, 275, and cases cited. If, by
reason of the frequency and altitude of the flights, respondents could not use this land for any
purpose, their loss would be complete.12 It would be as complete as if the United States had
entered upon the surface of the land and taken exclusive possession of it.
We agree that in those circumstances there would be a taking. Though it would be only
an easement of flight which was taken, that easement, if permanent and not merely temporary,
normally would be the equivalent of a fee interest. It would be a definite exercise of complete
dominion and control over the surface of the land. The fact that the planes never touched the
surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the
transfer of real estate. The owner's right to possess and exploit the land—that is to say, his
beneficial ownership of it—would be destroyed. It would not be a case of incidental damages
arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co.,
233 U.S. 546. In that case, property owners whose lands adjoined a railroad line were denied
recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the
operations of the trains. In the supposed case, the line of flight is over the land. And the land is
appropriated as directly and completely as if it were used for the runways themselves.
There is no material difference between the supposed case and the present one, except
that here enjoyment and use of the land are not completely destroyed. But that does not seem to
us to be controlling. The path of glide for airplanes might reduce a valuable factory site to
grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value
would remain. But the use of the airspace immediately above the land would limit the utility of
the land and cause a diminution in its value.13 That was the philosophy of Portsmouth Co. v.
United States, 260 U.S. 327. In that case the petition alleged that the United States erected a fort
on nearby land, established a battery and a fire control station there, and fired guns over
petitioner's land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims,
which dismissed the petition on a demurrer, holding that "the specific facts set forth would
warrant a finding that a servitude has been imposed."14 260 U.S. p. 330. And see Delta Air
12
The destruction of all uses of the property by flooding has been held to constitute a
taking. Pumpelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U.S. 445; United
States v. Welch, 217 U.S. 333.
13
It was stated in United States v. General Motors Corp., 323 U.S. 373, 378, "The courts
have held that the deprivation of the former owner rather than the accretion of a right or interest
to the sovereign constitutes the taking. Governmental action short of acquisition of title or
occupancy has been held, if its effects are so complete as to deprive the owner of all or most of
his interest in the subject matter, to amount to a taking." The present case falls short of the
General Motors case. This is not a case where the United States has merely destroyed property.
It is using a part of it for the flight of its planes.
15
Corp. v. Kersey, 193 Ga. 862, 20 S.E. 2d 245. Cf. United States v. 357.25 Acres of Land, 55 F.
Supp. 461.
The fact that the path of glide taken by the planes was that approved by the Civil
Aeronautics Authority does not change the result. The navigable airspace which Congress has
placed in the public domain is "airspace above the minimum safe altitudes of flight prescribed by
the Civil Aeronautics Authority." 49 U. S. C. § 180. If that agency prescribed 83 feet as the
minimum safe altitude, then we would have presented the question of the validity of the
regulation. But nothing of the sort has been done. The path of glide governs the method of
operating—of landing or taking off. The altitude required for that operation is not the minimum
safe altitude of flight which is the downward reach of the navigable airspace. The minimum
prescribed by the Authority is 500 feet during the day and 1,000 feet at night for air carriers
(Civil Air Regulations, Pt. 61, §§ 61.7400, 61.7401, Code Fed. Reg. Cum. Supp., Tit. 14, ch. 1),
and from 300 feet to 1,000 feet for other aircraft, depending on the type of plane and the
character of the terrain. Id., Pt. 60, §§ 60.350-60.3505, Fed. Reg. Cum. Supp., supra. Hence, the
flights in question were not within the navigable airspace which Congress placed within the
public domain. If any airspace needed for landing or taking off were included, flights which were
so close to the land as to render it uninhabitable would be immune. But the United States
concedes, as we have said, that in that event there would be a taking. Thus, it is apparent that the
path of glide is not the minimum safe altitude of flight within the meaning of the statute. The
Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress
has defined navigable airspace only in terms of one of them—the minimum safe altitudes of
flight.
We have said that the airspace is a public highway. Yet it is obvious that if the
landowner is to have full enjoyment of the land, he must have exclusive control of the immediate
reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not
be planted, and even fences could not be run. The principle is recognized when the law gives a
remedy in case overhanging structures are erected on adjoining land.15 The landowner owns at
least as much of the space above the ground as he can occupy or use in connection with the land.
See Hinman v. Pacific Air Transport, 84 F.2d 755. The fact that he does not occupy it in a
physical sense—by the erection of buildings and the like—is not material. As we have said, the
flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the
use of the land as a more conventional entry upon it. We would not doubt that, if the United
States erected an elevated railway over respondents' land at the precise altitude where its planes
now fly, there would be a partial taking, even though none of the supports of the structure rested
on the land.16 The reason is that there would be an intrusion so immediate and direct as to
14
On remand the allegations in the petition were found not to be supported by the facts.
64 Ct. Cls. 572.
15
Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal. 142; Codman v. Evans, 89
Mass. 431; Harrington v. McCarthy, 169 Mass. 492, 48 N. E. 278. See Ball, The Vertical Extent
of Ownership in Land, 76 U. Pa. L. Rev. 631, 658-671.
16
It was held in Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716, that
ejectment would lie where a telephone wire was strung across the plaintiff's property, even
16
subtract from the owner's full enjoyment of the property and to limit his exploitation of it. While
the owner does not in any physical manner occupy that stratum of airspace or make use of it in
the conventional sense, he does use it in somewhat the same sense that space left between
buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude
is so close to the land that continuous invasions of it affect the use of the surface of the land
itself. We think that the landowner, as an incident to his ownership, has a claim to it and that
invasions of it are in the same category as invasions of the surface.
In this case, as in Portsmouth Co. v. United States, supra, the damages were not merely
consequential. They were the product of a direct invasion of respondents' domain. As stated in
United States v. Cress, 243 U.S. 316, 328, ". . . it is the character of the invasion, not the amount
of damage resulting from it, so long as the damage is substantial, that determines the question
whether it is a taking."
We said in United States v. Powelson, supra, p. 279, that while the meaning of "property"
as used in the Fifth Amendment was a federal question, "it will normally obtain its content by
reference to local law." If we look to North Carolina law, we reach the same result. Sovereignty
in the airspace rests in the State "except where granted to and assumed by the United States."
Gen. Stats. 1943, § 63-11. The flight of aircraft is lawful "unless at such a low altitude as to
interfere with the then existing use to which the land or water, or the space over the land or
water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or
property lawfully on the land or water beneath." Id., § 63-13. Subject to that right of flight,
"ownership of the space above the lands and waters of this State is declared to be vested in the
several owners of the surface beneath . . ." Id., § 63-12. Our holding that there was an invasion
of respondents' property is thus not inconsistent with the local law governing a landowner's claim
to the immediate reaches of the superadjacent airspace.
The airplane is part of the modern environment of life, and the inconveniences which it
causes are normally not compensable under the Fifth Amendment. The airspace, apart from the
immediate reaches above the land, is part of the public domain. We need not determine at this
time what those precise limits are. Flights over private land are not a taking, unless they are so
low and so frequent as to be a direct and immediate interference with the enjoyment and use of
the land. We need not speculate on that phase of the present case. For the findings of the Court
of Claims plainly establish that there was a diminution in value of the property and that the
frequent, low-level flights were the direct and immediate cause. We agree with the Court of
Claims that a servitude has been imposed upon the land.
though it did not touch the soil. The court stated, pp. 491-492: ". . . an owner is entitled to the
absolute and undisturbed possession of every part of his premises, including the space above, as
much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot
above the ground, there would have been a difference in degree, but not in principle. Expand the
wire into a beam supported by posts standing upon abutting lots without touching the surface of
plaintiff's land, and the difference would still be one of degree only. Enlarge the beam into a
bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above
the surface of the land would alone be disturbed."
17
***
III.
***
Since on this record it is not clear whether the easement taken is a permanent or a
temporary one, it would be premature for us to consider whether the amount of the award made
by the Court of Claims was proper.
The judgment is reversed and the cause is remanded to the Court of Claims so that it may
make the necessary findings in conformity with this opinion.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE BLACK, dissenting.
The Fifth Amendment provides that "private property" shall not "be taken for public use
without just compensation." The Court holds today that the Government has "taken"
respondents' property by repeatedly flying Army bombers directly above respondents' land at a
height of eighty-three feet where the light and noise from these planes caused respondents to lose
sleep and their chickens to be killed. Since the effect of the Court's decision is to limit, by the
imposition of relatively absolute constitutional barriers, possible future adjustments through
legislation and regulation which might become necessary with the growth of air transportation,
and since in my view the Constitution does not contain such barriers, I dissent.
The following is a brief statement of the background and of the events that the Court's
opinion terms a "taking" within the meaning of the Fifth Amendment: Since 1928 there has been
an airfield some eight miles from Greensboro, North Carolina. In April, 1942, this airport was
taken over by the Greensboro-High Point Municipal Airport Authority and it has since then
operated as a municipal airport. In 1942 the Government, by contract, obtained the right to use
the field "concurrently, jointly, and in common" with other users. Years before, in 1934,
respondents had bought their property, located more than one-third of a mile from the airport.
Private planes from the airport flew over their land and farm buildings from 1934 to 1942 and
are still doing so. But though these planes disturbed respondents to some extent, Army bombers,
which started to fly over the land in 1942 at a height of eighty-three feet, disturbed them more
because they were larger, came over more frequently, made a louder noise, and at night a greater
glare was caused by their lights. This noise and glare disturbed respondents' sleep, frightened
them, and made them nervous. The noise and light also frightened respondents' chickens so
much that many of them flew against buildings and were killed.
The Court's opinion seems to indicate that the mere flying of planes through the column
of air directly above respondents' land does not constitute a "taking." Consequently, it appears to
be noise and glare, to the extent and under the circumstances shown here, which make the
18
Government a seizer of private property. But the allegation of noise and glare resulting in
damages, constitutes at best an action in tort where there might be recovery if the noise and light
constituted a nuisance, a violation of a statute, or were the result of negligence.17 But the
Government has not consented to be sued in the Court of Claims except in actions based on
express or implied contract. And there is no implied contract here, unless by reason of the noise
and glare caused by the bombers the Government can be said to have "taken" respondents'
property in a constitutional sense. The concept of taking property as used in the Constitution has
heretofore never been given so sweeping a meaning. The Court's opinion presents no case where
a man who makes noise or shines light onto his neighbor's property has been ejected from that
property for wrongfully taking possession of it. Nor would anyone take seriously a claim that
noisy automobiles passing on a highway are taking wrongful possession of the homes located
thereon, or that a city elevated train which greatly interferes with the sleep of those who live next
to it wrongfully takes their property. Even the one case in this Court which in considering the
sufficiency of a complaint gave the most elastic meaning to the phrase "private property be
taken" as used in the Fifth Amendment, did not go so far. Portsmouth Co. v. United States, 260
U.S. 327. I am not willing, nor do I think the Constitution and the decisions authorize me, to
extend that phrase so as to guarantee an absolute constitutional right to relief not subject to
legislative change, which is based on averments that at best show mere torts committed by
government agents while flying over land. The future adjustment of the rights and remedies of
property owners, which might be found necessary because of the flight of planes at safe altitudes,
should, especially in view of the imminent expansion of air navigation, be left where I think the
Constitution left it, with Congress.
Nor do I reach a different conclusion because of the fact that the particular circumstance
which under the Court's opinion makes the tort here absolutely actionable, is the passing of
planes through a column of air at an elevation of eighty-three feet directly over respondents'
property. It is inconceivable to me that the Constitution guarantees that the airspace of this
Nation needed for air navigation is owned by the particular persons who happen to own the land
beneath to the same degree as they own the surface below.18 No rigid constitutional rule, in my
judgment, commands that the air must be considered as marked off into separate compartments
17
As to the damage to chickens, Judge Madden, dissenting from this judgment against
the Government, said, "When railroads were new, cattle in fields in sight and hearing of the
trains were alarmed, thinking that the great moving objects would turn aside and harm them.
Horses ran away at the sight and sound of a train or a threshing machine engine. The farmer's
chickens have to get over being alarmed at the incredible racket of the tractor starting up
suddenly in the shed adjoining the chicken house. These sights and noises are a part of our
world, and airplanes are now and will be to a greater degree, likewise a part of it. These
disturbances should not be treated as torts, in the case of the airplane, any more than they are so
treated in the case of the railroad or public highway." 104 Ct. Cls. 342, 358.
18
The House in its report on the Air Commerce Act of 1926 stated: "The public right of
flight in the navigable air space owes its source to the same constitutional basis which, under
decisions of the Supreme Court, has given rise to a public easement of navigation in the
navigable waters of the United States, regardless of the ownership of the adjacent or subjacent
soil." H. Rep. No. 572, 69th Cong., 1st Sess., p. 10.
19
by imaginary metes and bounds in order to synchronize air ownership with land ownership. I
think that the Constitution entrusts Congress with full power to control all navigable airspace.
Congress has already acted under that power. It has by statute, 44 Stat. 568, 52 Stat. 973,
provided that "the United States of America is . . . to possess and exercise complete and
exclusive national sovereignty in the air space above the United States . . ." This was done under
the assumption that the Commerce Clause of the Constitution gave Congress the same plenary
power to control navigable airspace as its plenary power over navigable waters. H. Rep. No.
572, 69th Cong., 1st Sess., p. 10; H. Rep. No. 1162, 69th Cong., 1st Sess., p. 14; see United
States v. Commodore Park, 324 U.S. 386. * * *
***
No greater confusion could be brought about in the coming age of air transportation than
that which would result were courts by constitutional interpretation to hamper Congress in its
efforts to keep the air free. Old concepts of private ownership of land should not be introduced
into the field of air regulation. I have no doubt that Congress will, if not handicapped by judicial
interpretations of the Constitution, preserve the freedom of the air, and at the same time, satisfy
the just claims of aggrieved persons. The noise of newer, larger, and more powerful planes may
grow louder and louder and disturb people more and more. But the solution of the problems
precipitated by these technological advances and new ways of living cannot come about through
the application of rigid constitutional restraints formulated and enforced by the courts. What
adjustments may have to be made, only the future can reveal. It seems certain, however, that
courts do not possess the techniques or the personnel to consider and act upon the complex
combinations of factors entering into the problems. The contribution of courts must be made
through the awarding of damages for injuries suffered from the flying of planes, or by the
granting of injunctions to prohibit their flying. When these two simple remedial devices are
elevated to a constitutional level under the Fifth Amendment, as the Court today seems to have
done, they can stand as obstacles to better adapted techniques that might be offered by
experienced experts and accepted by Congress. Today's opinion is, I fear, an opening wedge for
an unwarranted judicial interference with the power of Congress to develop solutions for new
and vital national problems. In my opinion this case should be reversed on the ground that there
has been no "taking" in the constitutional sense.
MR. JUSTICE BURTON joins this dissent. FEDERAL HOUSING ADMINISTRATION v.
THE DARLINGTON, INC.
Supreme Court of the United States
358 U.S. 84 (1958)
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case involves a construction of § 608 of the National Housing Act, 56 Stat. 303, 12
U. S. C. § 1743, as amended by §10 of the Veterans' Emergency Housing Act of 1946, 60 Stat.
207, 214, and the Regulations issued thereunder. The aim of the Act as stated in § 608 (b)(2) is
to provide housing for veterans of World War II and their immediate families. That end is to be
achieved by authorizing the Federal Housing Administration to insure mortgages covering those
projects. § 608 (a). Mortgagors, eligible for insurance, are to be approved by the agency, which
20
is empowered to require them "to be regulated or restricted as to rents or sales, charges, capital
structure, rate of return, and methods of operation." § 608 (b)(1).
Appellee is a South Carolina corporation formed in 1949 to obtain FHA mortgage
insurance for an apartment house to be constructed in Charleston. The insurance issued and the
apartment was completed. The Regulations, promulgated under the Act (24 C.F,R, §§ 280 et
seq.), provide that the mortgaged property shall be "designed principally for residential use,
conforming to standards satisfactory to the Commissioner, and consisting of not less than eight
(8) rentable dwelling units on one site . . . ." § 280.34. The Regulations further provide:
"No charge shall be made by the mortgagor for the accommodations offered by
the project in excess of a rental schedule to be filed with the Commissioner and
approved by him or his duly constituted representative prior to the opening of the
project for rental, which schedule shall be based upon a maximum average rental
fixed prior to the insurance of the mortgage, and shall not thereafter be changed
except upon application of the mortgagor to, and the written approval of the
change by, the Commissioner." § 280.30 (a).
Veterans and their families are given preference in the rentals; and discrimination against
families with children is prohibited. § 280.24.
Appellee submitted to FHA its schedule of monthly rates for its different types of
apartments. No schedule of rates for transients was supplied. Indeed there was no representation
to FHA that any of the apartments would be furnished. But an affiliate of appellee without FHA
knowledge furnished a number of apartments; and some were leased to transients on a daily basis
at rentals never submitted to nor approved by FHA, part of the rental going to the affiliate as
"furniture rental." Though appellee, as required by the Regulations (§ 280.30 (f)), made reports
to FHA, it made no disclosure to the agency that it had either furnished some apartments or
rented them to transients. But it continued to rent furnished apartments to transients both before
and after 1954 when § 513 was added to the Act. 68 Stat. 610, 12 U. S. C. (Supp. V) § 1731b.
The new section contained in subsection (a) the following declaration of congressional purpose:
"The Congress hereby declares that it has been its intent since the enactment of
the National Housing Act that housing built with the aid of mortgages insured
under that Act is to be used principally for residential use; and that this intent
excludes the use of such housing for transient or hotel purposes while such
insurance on the mortgage remains outstanding." And see H. R. Rep. No. 1429,
83d Cong., 2d Sess., p. 17; S. Rep. No. 1472, 83d Cong., 2d Sess., p. 31.19
Appellee persisted in its rental of space to transients. Appellant FHA persisted in
maintaining that the practice was not authorized. In 1955 appellee brought this suit for a
19
The Act provides that, except for certain exceptions not relevant here, no new or
existing multifamily housing with respect to which a mortgage is insured by the FHA shall be
operated for transient purposes. § 513 (b). The Commissioner is authorized to define "rental for
transient or hotel purposes" but in any event rental for any period less than 30 days constitutes
rental for such purposes. § 513 (e).
21
declaratory judgment that so long as it operates its property "principally" for residential use,
keeps apartments available for extended tenancies, and complies with the terms of the Act in
existence at the time it obtained the insurance, it is entitled to rent to transients. The District
Court gave appellee substantially the relief which it demanded. 142 F. Supp. 341. On appeal,
we remanded the cause for consideration by a three-judge court pursuant to 28 U.S.C. § 2282.
352 U.S. 977. On the remand a three-judge court adopted the earlier findings and conclusions of
the single judge, 154 F. Supp. 411, attaching however certain conditions to the decree
unnecessary to discuss here. It held that rental to transients was not barred by § 608 and that §
513(a) as applied to respondent was unconstitutional. The case is here on direct appeal. 28
U.S.C. § 1253.
We take a different view. We do not think the Act gave mortgagors the right to rent to
transients. There is no express provision one way or the other; but the limitation seems fairly
implied. We deal with legislation passed to aid veterans and their families, not with a law to
promote the hotel or motel business. To be sure, the Regulations speak of property "designed
principally for residential use" (§ 280.34)—words that by themselves would not preclude
transient rentals. But those words, as the Senate Report on the 1954 Amendment indicates,20
were evidently used so as not to preclude some commercial rentals. Moreover, the Regulation
goes on to describe the property that is insured as "dwelling units." Id. The word "dwelling" in
common parlance means a permanent residence. A person can of course take up permanent
residence even in a motel or hotel. But those who come for a night or so have not chosen it as a
settled abode. Yet the idea of permanency pervades the concept of "dwelling." That was the
construction given to § 608 by FHA in 1947 when it issued its book Planning Rental Housing
Projects. "Housing" was there interpreted to mean "dwelling quarters for families—quarters
which offer complete facilities for family life." There again the quality of permanency is
implicit. And if the provisions of appellee's charter are deemed relevant, it is not without interest
to note the requirement that "Dwelling accommodations of the corporation shall be rented at a
maximum average rental per room per month. . . ." Again the focus is on permanency.
In 1946 FHA made provisions in its application forms for estimates of annual operating
expenses of the project. None of the expenses incident to transient accommodations—such as
linen supply and cleaning expenses—were listed. Once more we may infer that the insurance
program was not designed in aid of transients.
20
S. Rep. No. 1472, 83d Cong., 2d Sess., p. 31, states:
"Your committee does not believe the spirit of this intent is violated by the
operation of a commercial establishment included to serve the needs of families
residing in rental projects operated as permanent residential housing projects (as
distinguished from those operated to provide transient accommodations) but it
firmly believes that the operation of such establishments should not be conducted
in such a manner as to convert the use of all or any portion of the housing units in
the project from permanent, residential use to a project furnishing transient
accommodations. . . ."
22
In a letter to field offices in 1951 explaining the criteria to be considered in passing on
rent schedules and methods of operation, the FHA instructed them to: ". . . bear in mind that the
objective of this Administration is the production of housing designed for occupancy of a
relatively permanent nature and that transient occupancy is contrary to policy. No approval will
be granted with respect to a proposal anticipating transient occupancy." That interpretation of
the Act is clear and unambiguous, and, taken with the Regulations, indicates that the authority
charged with administration of the statute construed it to bar rental to transients.
Moreover, as already mentioned, prior approval by FHA of all rental schedules was
always required by § 280.30 of the Regulations and appellee never obtained nor sought approval
of a schedule of rents for transients.
It is true that FHA felt it had the authority to approve rental schedules for transients. It
gave such approval in a dozen or more instances where it felt the public interest required it. We
need not stop to inquire whether FHA had that authority.21 We have said enough to indicate that
no right or privilege to rent to transients is expressly included in the Act nor fairly implied. The
contemporaneous construction of the Act by the agency entrusted with its administration is
squarely to the contrary. In circumstances no more ambiguous than the present we have allowed
contemporaneous administrative construction to carry the day against doubts that might exist
from a reading of the bare words of a statute. See United States v. American Trucking Assns.,
310 U.S. 534, 549; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315.
When Congress passed the 1954 Amendment, it accepted the construction of the prior Act which
bars rentals to transients. Subsequent legislation which declares the intent of an earlier law is
not, of course, conclusive in determining what the previous Congress meant. But the later law is
entitled to weight when it comes to the problem of construction. See United States v. Stafoff,
260 U.S. 477, 480; Sioux Tribe v. United States, 316 U.S. 317, 329-30. The purpose of the Act,
its administrative construction, and the meaning which a later Congress ascribed to it all point to
the conclusion that the housing business to be benefited by FHA insurance did not include rental
to transients.
If the question be less clear and free from doubt than we think, it is still one that lies in
the periphery where vested rights do not attach. If we take as our starting point what the Court
said in the Sinking-Fund Cases, 99 U.S. 700, 718—"Every possible presumption is in favor of
the validity of a statute, and this continues until the contrary is shown beyond a rational doubt"—
we do not see how it can be said that the 1954 Act is unconstitutional as applied. Appellee is not
penalized for anything it did in the past. The new Act applies prospectively only. So there is no
possible due process issue on that score. As stated in Fleming v. Rhodes, 331 U.S. 100, 107,
"Federal regulation of future action based upon rights previously acquired by the person
regulated is not prohibited by the Constitution. So long as the Constitution authorizes the
subsequently enacted legislation, the fact that its provisions limit or interfere with previously
21
The 1954 Amendment expressly gave FHA that power in certain limited situations.
See §§ 513 (b).
23
acquired rights does not condemn it. Immunity from federal regulation is not gained through
forehanded contracts."22
Moreover, one has to look long and hard to find even a semblance of a contractual right
rising to the dignity of the one involved in Lynch v. United States, 292 U.S. 571. The
Constitution is concerned with practical, substantial rights, not with those that are unclear and
gain hold by subtle and involved reasoning. Congress by the 1954 Act was doing no more than
protecting the regulatory system which it had designed. Those who do business in the regulated
field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve
the legislative end. Cf. Veix v. Sixth Ward Assn., 310 U.S. 32; Keefe v. Clark, 322 U.S. 393.
Invocation of the Due Process Clause to protect the rights asserted here would make the ghost of
Lochner v. New York, 198 U.S. 45, walk again.
Reversed.
MR. JUSTICE STEWART took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, dissenting.
Here we have not the application of some broad, generalized legal conception, either of a
statutory nature, like "restraint of trade" in the Sherman Law, or a constitutional provision, like
"due process of law" or "the equal protection of the laws." Such conceptions do not carry
contemporaneous fixity. By their very nature they imply a process of unfolding content.
Our immediate problem is quite different. The pre-1954 Housing Act does not leave us
at large for judicial application of a generalized legislative policy in light of developing
circumstances. The pre-1954 statute deals with a particularized problem in a particularized way.
It presents the usual question of statutory construction where language is not clear enough to
preclude human ingenuity from creating ambiguity. It is outside the judicial function to add to
the scope of legislation. The task is imaginatively to extrapolate the contemporaneous answer
that the Legislature would have given to an unconsidered question; here, whether rentals to
transients were totally prohibited. It was not until 1954 that the Congress did deal with the
question of the right of apartment-house owners to rent even a small number of apartments to
transients without even remotely seeking to evade or to disadvantage the interests of veterans in
whose behalf the Government, through the Federal Housing Administration, insured the
mortgages of private owners. The opinions of the District Court and my brother HARLAN seem
to me compelling on the construction of the pre-1954 legislation.
22
In Fleming a landlord had obtained a judgment of eviction in a state court prior to the
enactment of the Price Control Extension Act, under which the Administrator had promulgated
rules prohibiting removal of the tenants from the leased premises on the grounds asserted by the
landlord. It was held that the landlord could be enjoined from evicting the tenants under the state
judgment, as any "vested" rights by reason of the state judgment were acquired subject to the
possibility of their dilution through Congress' exercise of its paramount regulatory power.
24
This brings me to the validity of the 1954 enactment which presents for me a much more
difficult question than that of the problem of statutory construction just considered. This is so
because of the very weighty presumption of constitutionality that I deem it essential to attribute
to any Act of Congress. This case falls between such cases sustaining the retroactive validity of
legislation adversely affecting an existing interest as Paramino Co. v. Marshall, 309 U.S. 370,
and Fleming v. Rhodes, 331 U.S. 100, on the one hand, and Lynch v. United States, 292 U.S.
571, on the other. While, to be sure, differentiation between "remedy" and "right" takes us into
treacherous territory, the difference is not meaningless. The two earlier cases cited may fairly be
deemed to sustain retroactive remedial modifications even though they affect existing "rights,"
while the Lynch case is a clear instance of the complete wiping out of what Mr. Justice Brandeis,
in his opinion for the Court, called "vested rights." 292 U.S., at 577. Insofar as the 1954 Act
applied to the earlier Darlington mortgage, it did not completely wipe out "vested rights." But on
the proper construction of § 608, in the circumstances found by the District Court and not here
challenged, the unavoidable application of the 1954 Act to the Darlington mortgage did
substantially impair the "vested rights" of respondent. I would be less than respecting the full
import of the Lynch case did I not apply it to the present situation.
Accordingly, I join MR. JUSTICE HARLAN's opinion.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, dissenting.
The question in this case is whether appellee Darlington is entitled to rent to transients
(that is, so far as this case is concerned, for periods of less than 30 days) a small number of
apartments in its building, which is covered by a mortgage insured by the FHA. Darlington's
FHA mortgage was consummated and insured in December 1949. At that time neither the
controlling statute, § 608 of the National Housing Act, 56 Stat. 303, as amended, 12 U.S.C. §
1743, nor the regulations issued thereunder, 24 C.F.R. §§ 280 et seq., contained any provision
prohibiting rentals to transients. Such provisions are found for the first time in § 513 of the
Housing Act of 1954, 68 Stat. 610, 12 U.S.C. (Supp. V) § 1731b, passed some five years after
this mortgage was made.
A three-judge District Court, largely adopting the findings and conclusions of the single
district judge before whom this case was originally heard, held that as the law stood in 1949,
when the mortgage here involved was issued, Darlington was not forbidden to make occasional
transient rentals, and that the Federal Housing Administrator may not now prohibit such rentals
since that would involve an unconstitutional retroactive application of the relevant provisions of
the Housing Act of 1954. This Court now holds that under the statute and regulations as they
stood in 1949 Darlington was never entitled to make any transient rentals, and that in any event
the prohibitory provisions of the 1954 Act may be applied to prevent such rentals. From these
holdings I must dissent.
In construing the earlier statute the Court, in my opinion, has proceeded on an erroneous
premise. The Court holds that "no right or privilege to rent to transients is expressly included in
the [pre-1954] Act nor fairly implied." In my view, however, the true issue is not whether the
statute under which Darlington's mortgage was insured gave the right to an FHA-insured
25
mortgagor to make such rentals, but rather whether it prohibited such a mortgagor from making
them. Given this as the issue, it seems to me that the record is compelling against the Court's
conclusion as to § 608, that the provisions of the 1954 Act cannot be applied to one in
Darlington's position, and that the decision below was clearly right.
1. As already noted, § 608 and the regulations implementing it were barren of any
provision excluding rentals to transients at the time Darlington's mortgage was insured by the
FHA.
2. The District Court found that (1) Darlington's rentals to transients even at the height of
Charleston's transient season constituted no more than ten percent of the building's total available
occupancy; (2) "no person entitled to priority has ever been rejected, and no one desiring socalled 'permanent' occupancy of an apartment has been required to wait any time to obtain
same"; and (3) Darlington "does not advertise as a hotel, has no license as such, and no signs
appear indicating its willingness to accept transients." 142 F. Supp., at 349. According the
utmost effect to the conceded purpose of § 608 to provide housing for World War II veterans and
their families, and to the recitals in the regulations to the effect that property subject to FHA
mortgages shall be "designed principally for residential use" (italics supplied), I am unable to
understand why Darlington's practices, as found by the lower court, should be regarded as
violative of either the letter or spirit of these statutory or regulatory provisions. Not until the
passage of the 1954 Act do we find any suggestion that the words "designed principally for
residential use" were, in the language of the Court, "evidently used so as not to preclude some
commercial [as distinguished from transient] rentals."
3. As the FHA conceded and the District Court found, nothing in Darlington's charter,
bylaws, mortgage, or mortgage note, all of which were subject to the FHA's advance approval,
expressly restricted its right "to lease apartments in its project for periods of less than thirty (30)
days." The only period of rental limitation appearing in any of these instruments was the
following, contained in Darlington's charter: "Dwelling accommodations of the [appellee] shall
not be rented for a period in excess of three years . . . ." 142 F. Supp., at 346. It is too much to
attribute to the word "dwelling," as the Court now in effect does, an implied prohibition of lessthan-30-days rentals.
4. The FHA had in a number of instances before 1954 actually given specific approval to
less-than-30-days rentals by insured mortgagors where veteran demand for housing had fallen
off, and when in 1955 Darlington inquired of the FHA the basis of its position that less-than-30days rentals by such mortgagors were not permissible the agency simply referred appellee to the
provisions of the Housing Act of 1954. These events conclusively show that the Housing
Administration did not construe the statute or regulations before 1954 to prohibit transient rentals
altogether.
5. There is nothing in this record to indicate that Darlington was engaged in any kind of
a scheme to subvert the purposes of this federal housing legislation. Its occasional transient
rentals seem to have been nothing more than an effort to plug the gap in its revenues left by a
falling off of the demand for long-term apartment space, and do not depict a sub rosa hotel
operation.
26
Upon these undisputed facts, which are reinforced by other factors detailed in the two
opinions below, I can find no basis for impugning the soundness of the District Court's holding
that under the law as it existed at the time Darlington embarked upon this project nothing
prohibited it from making the occasional transient rentals shown by this record. The 1954 Act
was new, and not merely confirmatory, legislation.
Hence I consider that the FHA's position in this case must stand or fall on whether the
less-than-30-days rental provision of the 1954 Act, which in terms applies to mortgagors insured
before as well as after the Act's effective date (see 12 U.S.C. (Supp. V) § 1731b (b)), can be
given application to Darlington to increase the obligations assumed by it under its 1949 contract
with the United States. I do not think it can. As the District Court correctly put it: "When the
United States enters into contractual relations, its rights and duties therein are governed generally
by the law applicable to contracts between private individuals." 142 F. Supp., at 351. See Lynch
v. United States, 292 U.S. 571; Sinking-Fund Cases, 99 U.S. 700, 718. What was said in the
Lynch case as to contracts of war-risk insurance applies here: "As Congress had the power . . . to
issue them, the due process clause prohibits the United States from annulling them, unless,
indeed, the action taken falls within the federal police power or some other paramount power."
292 U.S., at 579. I do not understand the Housing Administration to contend that the United
States possesses general regulatory power over appellee outside the contractual relationship, and
the Court has pointed to no such "paramount power" by which the imposition of the 1954 Act's
prohibitions might be justified in this case. Under these circumstances I see no reason for
disregarding the principles set forth in the cases cited, particularly when the District Court with
ample justification found that "the 1954 Act is designed to afford relief for private interests, as
distinguished from public purposes . . . ." 142 F. Supp., at 353.23 Indeed the Court's treatment of
this case seems to reinforce my view about the 1954 Act; else why all this straining to bring the
matter under the pre-1954 statute?
I would affirm.
23
This fact is demonstrated by the rather unusual provision of the 1954 Act which gives
hotel operators and owners the right to seek federal court injunctions against violations of the
transient rental prohibition of the statute. 68 Stat. 611, 12 U.S.C. (Supp. V) § 1731b (i). * * *
27
GOLDBLATT v. TOWN OF HEMPSTEAD
Supreme Court of the United States
369 U.S. 590 (1962)
MR. JUSTICE CLARK delivered the opinion of the Court.
The Town of Hempstead has enacted an ordinance regulating dredging and pit excavating
on property within its limits. Appellants, who engaged in such operations prior to the enactment
of the ordinance, claim that it in effect prevents them from continuing their business and
therefore takes their property without due process of law in violation of the Fourteenth
Amendment. The trial court held that the ordinance was a valid exercise of the town's police
power, 19 Misc. 2d 176, 189 N. Y. S. 2d 577, and the Appellate Division affirmed, 9 App. Div.
2d 941, 196 N. Y. S. 2d 573. The New York Court of Appeals in a divided opinion affirmed. 9
N. Y. 2d 101, 172 N. E. 2d 562. We noted probable jurisdiction, 366 U.S. 942, and having heard
argument we now affirm the judgment.
Appellant Goldblatt owns a 38-acre tract within the Town of Hempstead. At the time of
the present litigation appellant Builders Sand and Gravel Corporation was mining sand and
gravel on this lot, a use to which the lot had been put continuously since 1927. Before the end of
the first year the excavation had reached the water table leaving a water-filled crater which has
been widened and deepened to the point that it is now a 20-acre lake with an average depth of 25
feet. The town has expanded around this excavation, and today within a radius of 3,500 feet
there are more than 2,200 homes and four public schools with a combined enrollment of 4,500
pupils.
The present action is but one of a series of steps undertaken by the town in an effort to
regulate mining excavations within its limits. A 1945 ordinance, No. 16, provided that such pits
must be enclosed by a wire fence and comply with certain berm and slope requirements.
Although appellants complied with this ordinance, the town sought an injunction against further
excavation as being violative of a zoning ordinance. This failed because appellants were found
to be "conducting a prior non-conforming use on the premises . . . ." 135 N. Y. L. J., issue 52, p.
12 (1956). The town did not appeal.
In 1958 the town amended Ordinance No. 16 to prohibit any excavating below the water
table and to impose an affirmative duty to refill any excavation presently below that level. The
new amendment also made the berm, slope, and fence requirements more onerous.
24
In 1959 the town brought the present action to enjoin further mining by the appellants on
the grounds that they had not complied with the ordinance, as amended, nor acquired a mining
permit as required by it.25 Appellants contended, inter alia, that the ordinance was
24
Specifically the ordinance provides that "no excavation shall be made below two feet
above the maximum ground water level at the site."
25
Under the ordinance the town may deny a permit if the proposed excavation will
violate any of the provisions of the ordinance.
28
unconstitutional because (1) it was not regulatory of their business but completely prohibitory
and confiscated their property without compensation, (2) it deprived them of the benefit of the
favorable judgment arising from the previous zoning litigation, and (3) it constituted ex post
facto legislation. However, the trial court did not agree, and the appellants were enjoined from
conducting further operations on the lot until they had obtained a permit and had complied with
the new provisions of Ordinance No. 16.
Concededly the ordinance completely prohibits a beneficial use to which the property has
previously been devoted. However, such a characterization does not tell us whether or not the
ordinance is unconstitutional. It is an oft-repeated truism that every regulation necessarily
speaks as a prohibition. If this ordinance is otherwise a valid exercise of the town's police
powers, the fact that it deprives the property of its most beneficial use does not render it
unconstitutional. Walls v. Midland Carbon Co., 254 U.S. 300 (1920); Hadacheck v. Sebastian,
239 U.S. 394 (1915); Reinman v. Little Rock, 237 U.S. 171 (1915); Mugler v. Kansas, 123 U.S.
623 (1887); see Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (1910). As pointed out in
Mugler v. Kansas, supra, at 668-669:
"The present case must be governed by principles that do not involve the power of
eminent domain, in the exercise of which property may not be taken for public
use without compensation. A prohibition simply upon the use of property for
purposes that are declared, by valid legislation, to be injurious to the health,
morals, or safety of the community, cannot, in any just sense, be deemed a taking
or an appropriation of property for the public benefit. Such legislation does not
disturb the owner in the control or use of his property for lawful purposes, nor
restrict his right to dispose of it, but is only a declaration by the State that its use
by any one, for certain forbidden purposes, is prejudicial to the public interests....
The power which the States have of prohibiting such use by individuals of their
property as will be prejudicial to the health, the morals, or the safety of the public,
is not—and, consistently with the existence and safety of organized society,
cannot be—burdened with the condition that the State must compensate such
individual owners for pecuniary losses they may sustain, by reason of their not
being permitted, by a noxious use of their property, to inflict injury upon the
community."
Nor is it of controlling significance that the "use" prohibited here is of the soil itself as opposed
to a "use" upon the soil, cf. United States v. Central Eureka Mining Co., 357 U.S. 155 (1958), or
that the use prohibited is arguably not a common-law nuisance, e. g., Reinman v. Little Rock,
supra.
This is not to say, however, that governmental action in the form of regulation cannot be
so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393 (1922); see United States v. Central Eureka Mining Co.,
supra. There is no set formula to determine where regulation ends and taking begins. Although
a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra,
it is by no means conclusive, see Hadacheck v. Sebastian, supra, where a diminution in value
from $800,000 to $60,000 was upheld. How far regulation may go before it becomes a taking
29
we need not now decide, for there is no evidence in the present record which even remotely
suggests that prohibition of further mining will reduce the value of the lot in question.26
Indulging in the usual presumption of constitutionality, we find no indication that the prohibitory
effect of Ordinance No. 16 is sufficient to render it an unconstitutional taking if it is otherwise a
valid police regulation.
The question, therefore, narrows to whether the prohibition of further excavation below
the water table is a valid exercise of the town's police power. The term "police power" connotes
the time-tested conceptional limit of public encroachment upon private interests. Except for the
substitution of the familiar standard of "reasonableness," this Court has generally refrained from
announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U.S.
133, 137 (1894), is still valid today:
"To justify the State in . . . interposing its authority in behalf of the public, it must
appear, first, that the interests of the public . . . require such interference; and,
second, that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals."
Even this rule is not applied with strict precision, for this Court has often said that "debatable
questions as to reasonableness are not for the courts but for the legislature . . . ." E.g., Sproles v.
Binford, 286 U.S. 374, 388 (1932).
The ordinance in question was passed as a safety measure, and the town is attempting to
uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as
the nature of the menace against which it will protect, the availability and effectiveness of other
less drastic protective steps, and the loss which appellants will suffer from the imposition of the
ordinance.
A careful examination of the record reveals a dearth of relevant evidence on these points.
One fair inference arising from the evidence is that since a few holes had been burrowed under
the fence surrounding the lake it might be attractive and dangerous to children. But there was no
indication whether the lake as it stood was an actual danger to the public or whether deepening
the lake would increase the danger. In terms of dollars or some other objective standard, there
was no showing how much, if anything, the imposition of the ordinance would cost the
appellants. In short, the evidence produced is clearly indecisive on the reasonableness of
prohibiting further excavation below the water table.
Although one could imagine that preventing further deepening of a pond already 25 feet
deep would have a de minimis effect on public safety, we cannot say that such a conclusion is
compelled by facts of which we can take notice. Even if we could draw such a conclusion, we
would be unable to say the ordinance is unreasonable; for all we know, the ordinance may have a
de minimis effect on appellants. Our past cases leave no doubt that appellants had the burden on
"reasonableness." E. g., Bibb v. Navajo Freight Lines, 359 U.S. 520, 529 (1959) (exercise of
26
There is a similar scarcity of evidence relative to the value of the processing machinery
in the event mining operations were shut down.
30
police power is presumed to be constitutionally valid); Salsburg v. Maryland, 346 U.S. 545, 553
(1954) (the presumption of reasonableness is with the State); United States v. Carolene Products
Co., 304 U.S. 144, 154 (1938) (exercise of police power will be upheld if any state of facts either
known or which could be reasonably assumed affords support for it). This burden not having
been met, the prohibition of excavation on the 20-acre-lake tract must stand as a valid police
regulation.
We now turn our attention to the remainder of the lot, the 18 acres surrounding the
present pit which have not yet been mined or excavated. Appellants themselves contend that this
area cannot be mined. They say that this surface space is necessary for the processing operations
incident to mining and that no other space is obtainable. This was urged as an important factor
in their contention that upholding the depth limitation of the ordinance would confiscate the
entire mining utility of their property. However, we have upheld the validity of the prohibition
even on that supposition. If the depth limitation in relation to deepening the existing pit is valid,
it follows a fortiori that the limitation is constitutionally permissible as applied to prevent the
creation of new pits. We also note that even if appellants were able to obtain suitable processing
space the geology of the 18-acre tract would prevent any excavation. The water table, appellants
admit, is too close to the ground surface to permit commercial mining in the face of the depth
restrictions of the ordinance. The impossibility of further mining makes it unnecessary for us to
decide to what extent the berm and slope of such excavation could be limited by the ordinance.
Appellants' other contentions warrant only a passing word. The claim that rights
acquired in previous litigation are being undermined is completely unfounded. A successful
defense to the imposition of one regulation does not erect a constitutional barrier to all other
regulation. The first suit was brought to enforce a zoning ordinance, while the present one is to
enforce a safety ordinance. In fact no relevant issues presented here were decided in the first
suit.27 We therefore do not need to consider to what extent such issues would have come under
the protective wing of due process.
Appellants also contend that the ordinance is unconstitutional because it imposes under
penalty of fine and imprisonment such affirmative duties as refilling the existing excavation and
the construction of a new fence. This claim is founded principally on the constitutional
prohibitions against bills of attainder and ex post facto legislation. These provisions are
severable, both in nature and by express declaration, from the prohibition against further
excavation. Since enforcement of these provisions was not sought in the present litigation, this
Court under well-established principles will not at this time undertake to decide their
constitutionality. E.g., Ohio Tax Cases, 232 U.S. 576, 594 (1914); cf. United States v. Raines,
362 U.S. 17 (1960). That determination must await another day. We pass only on the provisions
of the ordinance here invoked, not on probabilities not now before us, and to that extent the
judgment is
Affirmed.
27
Although it was adjudicated that at that time appellants had made substantial
improvements on the lot, this fact would not be indicative of the loss appellants would presently
suffer if the mine were closed; perhaps the improvements are commercially salable.
31
MR. JUSTICE FRANKFURTER took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
32