7 Haw. 470 | Haw. | 1888
Opinion of the Court, by
This is a suit for an injunction to restrain the defendant from proceeding with the grading of Halekauila street in the city of Honolulu.
The bill states that the complainant is seized in fee of certain lands, tenements and hereditaments situate on and along said street. That complainant had at a cost of over $20,000 erected warehouses on said land, for the use of which he was in receipt of over $4,000 as annual rental. That prior to the erection of said warehouses, at the request of the complainant, S. G. Wilder, then Minister of the Interior, went to said premises with complainant, and examined the height above the ground as it then was, at which complainant proposed to erect
The plea was overruled and the defendant demurred to the bill for want of equity. The demurrer was argued before Mr. Justice Preston, who sustained it. The complainant appealed. The appeal was heard at the October Term, when the following statutes were cited or referred to :
Civil Code, Section 167. “ The Minister of the Interior shall be and is hereby charged with the superintendence and management of the internal improvements of the Kingdom.”
Civil Code, Section 184. “ Upon the request of fifty or more taxpayers of any district to the Minister of the Interior, that a new road, highway or street be opened, or that an old road, highway or street be shut up, or widened or altered, or if it shall be made to appear to the Minister of the Interior in any other way, that any road, highway or street should be opened, widened or otherwise altered, the said Minister of the Interior shall request any Judge of a Court of Record to select a list of twenty-four names from among the legal voters of the district in which the improvement or alteration is contemplated, from which such Judge shall direct the Marshal of the Kingdom, or the Sheriff of the Island in which the improvement is contemplated, to draw a jury of six persons to decide on the propriety of the measure proposed, and the decision of such jury, or a majority of them, shall be certified immediately to the Minister of the Interior, who is hereby authorized and empowered to take action in accordance with such decision of such jury.”
Civil Code, Section 185. “In laying out, closing or widening any road or highway, respect shall be had to the private vested rights of property which any individual may have in the land affected by any such proposed work. It shall be the duty of the
Civil Code, Section 186. “ Upon the receipt of such claims, if the Minister of the Interior and the several claimants cannot agree upon the amount to be paid to such claimants, the said Minister shall appoint three disinterested persons as Commissioners, or may request any Judge of a Court of Record to cause a jury to be summoned and drawn in like manner as before provided, to assess the value of the private property, or such damage likely to be sustained by the owner or occupier of any land to be taken for the proposed improvement, whose decision, or the decision of a majority of them, shall determine the price to be given by the Government for such private property, or for such damages as the case may be, and such Commissioners or jury shall send a certified copy of their decision to the Minister of the Interior and another to the claimant.”
An Act to establish the grade of streets and highways, and the grade and widths of sidewalks in the city of Honolulu. (Approved 15th October, 1886.)
“ Section 1. It shall be the duty of the Minister of the Interior to appoint a Commission of three Civil Engineers, one of whom shall be the Superintendent of Public Works, to establish the grades of all streets and highways, and the grades and widths of all sidewalks thereon in said city of Honolulu.
“ Section 2. It shall be the duty of the Commission provided for in Section 1 of this Act, to carefully survey, level and grade the streets, highways, and sidewalks, as they may be directed by the Minister of the Interior, and make proper and complete plans and profiles of the same, with the grade line and widths recommended by them distinctly marked thereon. Such plans
“ Section 3. The plans and profiles described in Section 2 shall be known as the official map, showing grades and sewers of the streets, highways and sidewalks which they describe, in the said city of Honolulu, to which all works on the streets, highways and sidewalks shall conform, and they shall be preserved in the archives of the office of the Superintendent of Public Works. Such plans and profiles shall be open at all times to the inspection of parties interested, without charge.” * * *
An Act to provide for the bringing of suits by or against the Hawaiian Government.
“Section 2. Whenever any citizen of this Kingdom, or other person, shall have a claim or claims against the Hawaiian Government, which said Government shall refuse or neglect to satisfy or adjust, it shall be competent for such person to bring and maintain a suit or suits against said Government in any appropriate Court of Record of the Kingdom for the purpose of adjusting such claim or claims.
“ Section 3. No such suit as mentioned in Section 2 of this Act shall be permitted to be filed in any Court, nor shall any process issue from any Court therein, until the complaint, libel or declaration proposed to be filed in such cause, shall have been submitted to the Justices of the Supreme Court, and shall have been endorsed by a majority of such Justices, with an allowance of process against the said Government therein. If, upon such submission, the said Justices shall be of opinion that the claim set forth in such complaint, libel or dot aration, is a fair subject for judicial investigation, it shall be the duty to allow process to issue therein, otherwise to withhold such allowance. Provided, however, that no suit shall be authorized, nor shall any process issue against the Government, based on any contract or any act of any Government officer which such officer is not authorized to make or do by the laws of this Kingdom.”
Constitution, Article 9. “No person shall be deprived of his property without due process of law.”
Article 14. “Private property may be taken for public use but only upon due process of law and just compensation.”
By the Court.
The first question to be considered is : Is this proceeding a suit against the Government ? v
In order to answer this, we must ascertain from the bill of complaint itself, what acts are complained of and what relief is asked.
The bill is not framed in a manner to inform the Court as to what specific laws the complainant relies upon to entitle him to the relief by injunction asked for, except the allegation that his property “ is taken or about to be taken for public use, without due process of law or just compensation,” being the wording of a part of Article 14 of the Constitution, but from the argument and the allegation in the bill “that the defendant, although requested to cause such proceedings to'be taken in the premises for assessing the damage likely to be sustained by complainant or otherwise to compensate him for such damage,” we understood the complainant to maintain it to be the duty of the defendant to take the proceedings mentioned in Sections 184, 185 and 186 of the Civil Code before commencing to grade the street in question, and which duty he has neglected and refused to perform.
In considering this part of the case, we do not consider it to be necessary to refer to the allegation as to the conversations between the complainant and the former Minister of the Interior, as the bill does not allege that the arrangement or understanding (if any) arrived at between them is binding upon this defendant, or that it was his duty not to alter the level of the street as then existing.
The Attorney-General relied principally upon “ In Re Ayres,” 123 U. S., pp. 443, 516, in his contention that this is in effect a suit against the Government.
In that case it was held that a suit brought to restrain the Attorney-General and other officers of the State from bringing suits pursuant to statute in the name of the State, and for its use in the State Courts, was a suit against the State within the meaning of the Constitutional provision that “The judicial power shall not extend to any suits in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by the citizens or subjects of any other foreign State.”
This decision, if the facts of the case now under consideration were similar, we might adopt; but, in our opinion, they are entirely different.
Mr. Justice Field, in his concurring opinion in the case cited, says: “There are many cases — indeed they are of frequent occurrence — where officers of the State, acting under legislation in conflict with the Constitution and laws of the United States, may be restrained by the Federal Courts, as where those officers attempt by virtue of such legislation to take private property for public use without offering compensation, or in other ways to deprive one of the use and enjoyment of his property. I do not understand that the opinion of the Court is against the doctrine, but on the contrary, that it is recognized and approved. There is a wide difference between restraining officers of the
The complainant here seeks, to restrain the defendant from proceeding with a public work, until he has taken what are alleged to be preliminary statutory steps to authorize the commencement of such work.
It is the undoubted right and duty of the Court to interfere by mandamus or injunction to compel a Government officer to perform a Ministerial duty cast upon him by a statute, or to restrain him from doing any act in violation of a statute.
This principle was adopted by this Court in Castle vs. Minister of Finance, 5 Hawn., page 27.
We are of opinion that the case at bar is within this principle, and that therefore the Court has jurisdiction to entertain it.
It appears to us to be very doubtful if the statute, “ To provide for the bringing of suits by or against the Hawaiian Government,” contemplates a suit for an injunction against the Government, so that if this Court should be compelled to hold that this suit could not be maintained for the reasons alleged, persons aggrieved would be unable to obtain an injunction against illegal acts committed or threatened by public officers.
The next point for consideration is, whether the acts alleged in the hill amount to a “taking” of complainant’s property within the meaning of the constitutional provisions ?
The complainant relies upon the following cases: Harding vs. Stamford Water Co., 41 Conn., 87; Hooker vs. Newhaven Co., 14 Conn., 146; Delaware and Raritan Canal Co. vs. Lee, 2 Zab., 243; Eaton vs. B. C. & M. R. R., 51 N. H., 504; Pumpelly vs. Green Bay Co., 13 Wall., 166 ; Trenton Water-power Co. vs. Raff, 36 N. J., 335.
In all these cases it appears that some actual interference with the plaintiffs’ lands so as to deprive them of the use of the lands took place, either by overflowing the lands with water, or by taking or diverting water from them. In the four last cited cases the actions were in trespass for damages.
It does not appear to us that the injury alleged brings this case within the authorities cited as amounting to a “taking” of the property. The work may cause a damage to the plaintiff’s property for which he might, except for the reasons hereafter appearing, be entitled to compensation by action, but does not constitute a “ taking ” of the property.
In some of the recent constitutions of the American States, provision is made for “taking or damaging” property, and the State-of Illinois has amended its Constitution by adding to the word “ taken ” the words “ or damaged.” We refer to this to show that the word “ taken ” was not deemed sufficient to cover damage similar to that alleged here. See also Transportation Co. vs. Chicago, 99 U. S., 635.
We come now to the question as to the right of the defendant to establish the grade of the street in question under the statute before referred to.
The complainant urges that the defendant has no such right, and that the statute is unconstitutional as authorizing the taking of property “ without due process of law or just compensation.”
We have already held that the injury complained of is not a “ taking,” and we see nothing in the statute to authorize the taking of any property under the interpretation we give to the word. The point as to the constitutionality of the law is not made by the bill, and as at present advised the law does not appear to us to be unconstitutional.
We have considered the authorities cited by counsel on the authority of public bodies to grade streets and highways, and as to the right of parties whose property may be injured by such grading to compensation.
It may be proper to remark here that Halekauila street was laid out by the Government on Government land, and was not acquired from a private person.
In Pontiac vs. Carter, 32 Mich., 163, the Court held that “An action will not lie against a city for damages for the injury to adjacent property caused by a change having been lawfully made by the proper city authorities in the grade of a public street; and the fact that the grade had once before been fixed, and the plaintiff had built with reference to it, while it makes more manifest the particular hardship, would introduce no new elements into the case, nor would it affect the principle; there is precisely the same reason and the same justification for changing a grade once established, when the public convenience is found to require it, that there is for fixing it in- the first place.”
The whole current of authority, with the exception to some extent of the Ohio decisions to which we have been referred, supports this view.
But the Ohio decisions do, to some extent, recognize the principle contended for by the defendant. See Akron vs. Chamberlain Co., 34 Ohio St., 335.
In this case the Court reviews its previous decisions, and says : “ We are now unanimously of opinion that if the subsequent grade be reasonable, or in other words, if it be established in the reasonable exercise of the authority conferred on the municipality at the time it is made, then such grade should have been anticipated by the owner of the adjacent lot, and his improvements should have been made with reference thereto. Whatever latitude there may be in the exercise of discretion in fixing the grade of a street is lodged in the municipal authorities, and not in the adjacent lot-owners. While we recognize the general rule to be that no liability on the part of a municipality for injury to abutting property by reason of the improvement of a street exists, where such improvement is properly made, yet this rule is subject to the exception that where abutting property is improved with reference to an existing street, so graded or improved under the authority of the public agents having the control thereof, as to indicate fairly and reasonably permanency in the character of the street improvement, a liability is cast upon the city or village for injuries resulting from subsequent changes.”
We do not understand by the bill that it is claimed the conversation with Mr. Wilder operated so as to bind the Government to allow the street to remain in its then condition, or that the street was then graded ; if it is so contended, it is clear that the action should be against the Government, and not against the individual officer.
The Legislature has thought fit to enact a law providing for the establishing a grade for all streets in Honolulu, and has given to the commission authorized a discretion in fixing such grades, and it appears to us that in so doing it must have intended the sole authority to vest in such commission.
It seems to us that it would be impossible to carry out the law, and would be absurd if we should hold that after the commission had decided upon a general grade for the city, it should be necessary to impanel a jury to ascertain whether they thought the grade of a particular street should be established according to the recommendation of the commission. If they should negative the necessity, the whole scheme would be rendered useless.
It is claimed by counsel for the appellant on argument that, under the prayer for general or alternative relief, the Court might order a jury to be impanelled; but even if we thought we had such power the appellant would not be entitled to it under this general prayer.
“ Where alternative relief is prayed, a distinct line should be drawn clearly stating the respective facts on which the inference of law is to arise on each alternative view. The plaintiff is not allowed to allege two inconsistent states of fact, and ask relief in the alternative, but he may state the facts and ask relief according to the conclusions of law which the Court may draw from them, although this may be presented in two or more alternatives.” Story, Equity Pleadings, Section 420.
It appears by the bill that the appellant acquired the land on Halekauila street in February, 1881. (We may observe here that Mr. Wilder went out of office in August, 1880.)
In 1880 a law was passed “ To provide for the drainage and sewerage of the city of Honolulu,” whereby full powers were
It seems to us that the defendant has not, according to the case made by the bill, done anything to warrant the Court in restraining him.
Upon principle and authority we must hold that the appellant has not sustained, or is liable to sustain, any injury to warrant the interference of the Court.
He built at his own risk and according to his own idea of what would be a proper grade for the street; but it seems to us that he did not sufficiently consider the state o'f the street and the surrounding property and the probable requirements of the city, especially as the Act authorizing the construction of sewers was in force, even supposing the street was then graded, much less so when it does not appear to us and it is not alleged that the first grade of the street had been established.
For the reasons before given, we are of opinion that the appeal should be dismissed, with costs, and the decree appealed from affirmed.