The Constitution of the United States of America: Analysis and Interpretation Part 155

The validation by statute of a prior mortgage of personal property invalid because improperly recorded, did not deny due process of law to a judgment creditor seeking to levy an attachment on the mortgaged property.[176] Nor was property taken without due process of law by a statute of New Mexico territory, permitting disseisin of real property to ripen into t.i.tle after ten years.[177] An order of the military governor of Porto Rico reducing the period during which the possession of real estate must continue, to permit an _ex parte_ conversion of an entry of possessory t.i.tle into record ownership was construed to apply only where there still remained a reasonable opportunity for the true owners to contest the claim. The Court said that any other construction would permit a taking of property without due process of law.[178]

Rights created by statute are subject to qualification by Congress; benefits conferred gratuitously may be redistributed or withdrawn at any time.[179] Where Congress provided, in granting lands to a railroad, that such land could be resold only to actual settlers, at a price not exceeding $2.50 per acre, it could const.i.tutionally, for breach of performance, resume t.i.tle to the lands while a.s.suring the railroad the equivalent of its interest.[180] An act making an appropriation for a private claim which restricted the attorney's fees payable therefrom to twenty per cent was valid although inconsistent with a prior contract with the claimant allowing a larger fee.[181] Statutory restrictions on compensation for services in connection with veterans' pensions or insurance have been upheld.[182] An increase in the penalty for production of wheat in excess of quota was not invalid as applied retroactively to wheat already planted, where Congress concurrently authorized a substantial increase in the amount of the loan which might be made to cooperating farmers upon stored "farm marketing excess wheat."[183]

Retroactive Legislation Disallowed

The due process clause has been successfully invoked to defeat retroactive invasion or destruction of property rights in a few cases. A revocation by the Secretary of the Interior of previous approval of plats and papers showing that a railroad was ent.i.tled to land under a grant was held void as an attempt to deprive the company of its property without due process of law.[184] The exception of the period of federal control from the time limit set by law upon claims against carriers for damages caused by misrouting of goods, was read as prospective only because the limitation was an integral part of the liability, not merely a matter of remedy, and would violate the Fifth Amendment if retroactive.[185] Rights against the United States arising out of contract are protected by the Fifth Amendment; hence a statute abrogating contracts of war risk insurance was held unconst.i.tutional as applied to outstanding policies.[186]

Bankruptcy Legislation

The bankruptcy power of Congress is subject to the Fifth Amendment. A statute which authorized a court to stay proceedings for the foreclosure of a mortgage for five years, the debtor to remain in possession at a reasonable rental, with the option of purchasing the property at its appraised value at the end of the stay, was held unconst.i.tutional because it deprived the creditor of substantial property rights acquired prior to the pa.s.sage of the act.[187] A modified law, under which the stay was subject to termination by the Court, and which continued the right of the creditor to have the property sold to pay the debt was sustained.[188] Without violation of the due process clause, the sale of collateral under the terms of a contract may be enjoined, if such sale would hinder the preparation or consummation of a proposed railroad reorganization, provided the injunction does no more than delay the enforcement of the contract.[189] A provision that claims resulting from rejection of an unexpired lease should be treated as on a parity with provable debts, but limited to an amount equal to three years rent, was held not to amount to a taking of property without due process of law, since it provided a new and more certain remedy for a limited amount, in lieu of an existing remedy inefficient and uncertain in result.[190] A right of redemption allowed by State law upon foreclosure of a mortgage was unavailing to defeat a plan for reorganization of a debt or corporation where the trial court found that the claims of junior lienholders had no value.[191]

Right To Sue the Government

A right to sue the Government on a contract is a privilege, not a property right protected by the Const.i.tution.[192] The right to sue for recovery of taxes paid may be conditioned upon an appeal to the Commissioner and his refusal to refund.[193] There was no denial of due process when Congress took away the right to sue for recovery of taxes, where the claim for recovery was without substantial equity, having arisen from the mistake of administrative officials in allowing the statute of limitations to run before collecting the tax.[194] The denial to taxpayers of the right to sue for refund of processing and floor taxes collected under a law subsequently held unconst.i.tutional, and the subst.i.tution of a new administrative procedure for the recovery of such sums, was held valid.[195] Congress may cut off the right to recover taxes illegally collected by ratifying the imposition and collection thereof, where it could lawfully have authorized such exactions prior to their collection.[196]

CONGRESSIONAL POLICE MEASURES

Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel on which alien seamen suffering from specified diseases are brought into the country to bear the expense of caring for such persons.[197] It may prohibit the transportation in interstate commerce of filled milk,[198] or the importation of convict made goods into any State where their receipt, possession or sale is a violation of local law.[199] It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by statute, to reinstate employees discharged in violation of law,[200] and to permit use of a company owned hall for union meetings.[201] It may enforce continuance of the relationship of employer and employee in the event of a strike as a consequence of, or in connection with, a current labor dispute.[202] The fact that property subject to rent control in time of war suffers a decrease in value does not make such restriction offensive to the due process clause.[203]

The Postal Service

In its complete control over the postal service Congress may exclude lottery advertis.e.m.e.nts or any other matter objectionable on grounds of public policy.[204] An order requiring return to the senders of all letters addressed to a concern engaged in a fraudulent enterprise, or to its officers as such was held reasonable and valid because an order limited to matter obviously connected with the enterprise would be a practical nullity.[205] Such an order may be issued by the Postmaster General "upon evidence satisfactory to him,"[206] but if issued under a "mistake of law" as to what facts may properly be deemed to const.i.tute fraud, it will be enjoined by the courts.[207] A hearing upon revocation of second-cla.s.s mailing privileges by an a.s.sistant Postmaster General upon notice, at which relator was heard and evidence received was due process.[208]

Congressional Regulation of Public Utilities

Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the validity of State action, the review of their orders seldom has turned on const.i.tutional issues. In two cases, however, maximum rates for stockyard companies prescribed by the Secretary of Agriculture were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the a.s.sumption that error with respect to any such item would render the rates confiscatory and void.[209] A few years later, in Federal Power Commission _v._ Hope Natural Gas Co.,[210] the Court adopted an entirely different approach. It took the position that the validity of the Commission's order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks a.s.sumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the "present fair value"

method.[211]

Orders prescribing the form and contents of accounts kept by public utility companies,[212] and statutes requiring a private carrier to furnish information for valuing its property to the Interstate Commerce Commission[213] have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requiring it to file a summary of its books and records pertaining to its rates was held not to violate the Fifth Amendment.[214]

Congressional Regulation of Railroads

Legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. Orders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained,[215] as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion allotted to the stronger group was adequate to avoid confiscation.[216] The recapture of one half of the earnings of railroads in excess of a fair net operating income, such recaptured earnings to be available as a revolving fund for loans to weaker roads, was held valid on the ground that any carrier earning an excess held it as trustee.[217] An order enjoining certain steam railroads from discriminating against an electric railroad by denying it reciprocal switching privileges did not violate the Fifth Amendment even though its practical effect was to admit the electric road to a part of the business being adequately handled by the steam roads.[218]

Similarly, the fact that a rule concerning the allotment of coal cars operated to restrict the use of private cars did not amount to a taking of property.[219] Railroad companies were not denied due process of law by a statute forbidding them to transport in interstate commerce commodities which have been manufactured, mined or produced by them.[220] An order approving a lease of one railroad by another, upon condition that displaced employees of the lessor should receive partial compensation for the loss suffered by reason of the lease[221] is consonant with due process of law. A law prohibiting the issuance of free pa.s.ses was held const.i.tutional even as applied to abolish rights created by a prior agreement whereby the carrier bound itself to issue such pa.s.ses annually for life, in settlement of a claim for personal injuries.[222]

Occasionally, however, regulatory action has been held invalid under the due process clause. An order issued by the Interstate Commerce Commission relieving short line railroads from the obligation to pay the usual fixed sum per day rental for cars used on foreign roads, for a s.p.a.ce of two days was arbitrary and invalid.[223] A retirement act which made eligible for pensions all persons who had been in the service of any railroad within one year prior to the adoption of the law, counted past unconnected service of an employee toward the requirement for a pension without any contribution therefor, and treated all carriers as a single employer and pooled their a.s.sets, without regard to their individual obligations, was held unconst.i.tutional.[224]

TAXATION

In laying taxes, the Federal Government is less narrowly restricted by the Fifth Amendment than are the States by the Fourteenth. It may tax property belonging to its citizens, even if such property is never situated within the jurisdiction of the United States,[225] or the income of a citizen resident abroad, which is derived from property located at his residence.[226] The difference is explained by the fact that the protection of the Federal Government follows the citizen wherever he goes, whereas the benefits of State government accrue only to persons and property within the State's borders. The Supreme Court has said that, in the absence of an equal protection clause, "a claim of unreasonable cla.s.sification or inequality in the incidence or application of a tax raises no question under the Fifth Amendment, * * *"[227] It has sustained, over charges of unfair differentiation between persons, a graduated income tax;[228] a higher tax on oleomargarine than on b.u.t.ter;[229] an excise tax on "puts" but not on "calls";[230] a tax on the income of businesses operated by corporations but not on similar enterprises carried on by individuals;[231] an income tax on foreign corporations, based on their income from sources within the United States, while domestic corporations are taxed on income from all sources;[232] a tax on foreign-built but not upon domestic yachts;[233] a tax on employers of eight or more persons, with exemptions for agricultural labor and domestic service;[234] a gift tax law embodying a plan of graduations and exemptions under which donors of the same amount might be liable for different sums;[235] an Alaska statute imposing license taxes only on nonresident fisherman;[236] an act which taxed the manufacture of oil and fertilizer from herring at a higher rate than similar processing of other fish or fish offal;[237] an excess profits tax which defined "invested capital" with reference to the original cost of the property rather than to its present value;[238]

and an undistributed profits tax in the computation of which special credits were allowed to certain taxpayers;[239] an estate tax upon the estate of a deceased spouse in respect of the moiety of the surviving spouse where the effect of the dissolution of the community is to enhance the value of the survivor's moiety.[240]

Retroactive Taxes

A gift tax cannot be imposed on gifts consummated before the taxing statute was adopted.[241] A conclusive presumption that gifts made within two years of death were made in contemplation of death was condemned as arbitrary and capricious even with respect to subsequent transfers.[242] A tax may be made retroactive for a short period to include profits made while it was in process of enactment. A special income tax on profits realized by the sale of silver, retroactive for 35 days, which was approximately the period during which the silver purchase bill was before Congress, was held valid.[243] An income tax law, made retroactive to the beginning of the calendar year in which it was adopted, was found const.i.tutional as applied to the gain from the sale, shortly before its enactment, of property received as a gift during the year.[244] Retroactive a.s.sessment of penalties for fraud or negligence,[245] or of an additional tax on the income of a corporation used to avoid a surtax on its shareholders,[246] does not deprive the taxpayer of property without due process of law.

An additional excise tax imposed upon property still held for sale, after one excise tax had been paid by a previous owner, does not violate the due process clause.[247] A transfer tax measured in part by the value of property held jointly by a husband and wife, including that which comes to the joint tenancy as a gift from the decedent spouse, is valid,[248] as is the inclusion in the gross income of the settler of income accruing to a revocable trust during any period when he had power to revoke or modify it.[249]

GOVERNANCE OF THE INDIANS

The power of Congress in virtue of its wardship over Indians extends to a restriction on alienation of Indian lands even after a particular Indian has been granted citizenship.[250] But rights of tax exemption accruing to Indian allotments under an act of Congress, which have become vested, are protected by this amendment against repeal.[251] One who was duly enrolled as a member of the Chickasaw Nation acquired valuable rights which the Secretary of the Interior could not strike down without notice and hearing.[252] An act authorizing suit against allottees of Indian property as a cla.s.s, for the value of services in securing the allotments, which provided for notice upon the governor of the tribe and designated the Attorney General to defend the suit, was consonant with due process.[253] Where the statute which created a tribal council for the Osage Indians, to be elected by the tribe, at the same time vested the Secretary of the Interior with discretion to remove a member without notice or hearing, there was no denial of due process of law since the right to elect was united in its creation with the right of removal.[254] A statute of the Choctaw Nation providing for the forfeiture and sale of buildings erected on their lands, was held to be unenforceable without giving the builder an opportunity to be heard.[255]

The National Eminent Domain Power

SCOPE OF POWER

Being an incident of sovereignty, the right of eminent domain requires no const.i.tutional recognition. The requirement of just compensation is merely a limitation upon the exercise of a preexisting power[256] to which all private property is subject.[257] This prerogative of the National Government can neither be enlarged nor diminished by a State.[258] Whenever lands in a State are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the State, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the State.[259] The facts that land included in a federal reservoir project is owned by a State, or that its taking may impair the tax revenue of the State, that the reservoir will obliterate part of the State's boundary and interfere with the State's own project for water development and conservation, const.i.tute no barrier to the condemnation of the land by the United States under its superior power of eminent domain.[260]

ALIEN PROPERTY

There is no const.i.tutional prohibition against confiscation of enemy property.[261] Congress may authorize seizure and sequestration through executive channels of property believed to be enemy owned if adequate provision is made for return in case of mistake.[262] An alien friend is ent.i.tled to the protection of the Fifth Amendment against a taking of property for public use without just compensation.[263] The fact that property of our citizens may be confiscated in that alien's country does not subject the alien friend's property to confiscation here.[264]

PUBLIC USE

The extent to which private property shall be taken for public use rests wholly in the legislative discretion.[265] Whether the courts have power to review a determination of the lawmakers that a particular use is a public use was left in doubt by the decision in United States ex rel.

T.V.A. _v._ Welch.[266] Speaking for the majority, Justice Black declared: "We think that it is the function of Congress to decide what type of taking is for a public use * * *"[267] In a concurring opinion in which Chief Justice Stone joined, Justice Reed took exception to that portion of the opinion, insisting that whether or not a taking is for a public purpose is a judicial question.[268] Justice Frankfurter interpreted the controlling opinion as recognizing the doctrine that "whether a taking is for a public purpose is not a question beyond judicial competence."[269] All agreed that the condemnation of property which had been isolated by the flooding of a highway, to avoid the expense of constructing a new highway, was a lawful public purpose.

Previous cases have held that the preservation for memorial purposes of the line of battle at Gettysburg was a public use for which private property could be taken by condemnation;[270] that where establishment of a reservoir involved flooding part of a town, the United States might take nearby property for a new townsite and the fact that there might be some surplus lots to be sold did not deprive the transaction of its character as taking for public use.[271]

RIGHTS FOR WHICH COMPENSATION MUST BE MADE

The franchise of a private corporation is property which cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the Government was required to pay for the franchise to take tolls as well as for the tangible property.[272] Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property for which compensation must be made when the Government uses the patent.[273] The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required.[274] Where, however, the Government requisitioned from a power company all of the electric power which could be produced by use of the water diverted through its intake ca.n.a.l, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under State law, to draw a portion of that water, the latter was awarded compensation for the rights taken.[275] An order requiring the removal or alteration of a bridge over a navigable river, to abate the obstruction to navigation, is not a taking of property within the meaning of the Const.i.tution.[276] The exclusion, from the amount to be paid to the owners of condemned property, of the value of improvements made by the Government under a lease, was held const.i.tutional.[277] An undertaking to reduce the menace from flood damages which was inevitable but for the Government's work does not const.i.tute the Government a taker of all lands not fully protected; the Government does not owe compensation under the Fifth Amendment to every landowner whom it fails to or cannot protect.[278]

When Property is Taken

According to the Legal Tender Cases,[279] the requirement of just compensation for property taken for public use refers only to direct appropriation and not to consequential injuries resulting from the exercise of lawful power. This formula leaves open the question as to whether injuries are "consequential" merely. Recent doctrine embodies a more definite test. In United States _v._ d.i.c.kinson,[280] the Supreme Court held that property is "taken" within the meaning of the Const.i.tution "when inroads are made upon the owner's use of it to an extent that, as between private parties, a servitude has been acquired either by an agreement or in course of time."[281] Where the noise and glaring lights of planes landing at or leaving an airport leased to the United States, flying below the navigable air s.p.a.ce as defined by Congress, interfere with the normal use of a neighboring farm as a chicken farm, there is such a taking as to give the owner a const.i.tutional right to compensation.[282] That the Government had imposed a servitude on land adjoining its fort so as to const.i.tute a taking within the law of eminent domain may be found from the facts that it had repeatedly fired the guns of the fort across the land and had established a fire control service there.[283] A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in the suit by an individual whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking of private property.[284]

Navigable Waters

Riparian ownership is subject to the power of Congress to regulate commerce. When damage results consequentially from an improvement of a navigable river, it is not a taking of property, but merely the exercise of a servitude to which the property is always subject.[285] What const.i.tutes a navigable river within the purview of the commerce clause often involves sharply disputed issues of fact and of law. In the leading case of The Daniel Ball[286] the Court laid down the rule that: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."[287] In 1940, over the dissent of two Justices, the Court held that the phrase "natural and ordinary condition" refers to volume of water, the gradients and the regularity of the flow. It further held that in determining the navigable character of a river it is proper to consider "the feasibility of interstate use after reasonable improvements which might be made."[288] A few months later it decided unanimously that Congress may exercise the power of eminent domain in connection with the construction of a dam and reservoir on the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions.[289]

The Government does not have to compensate a riparian owner for cutting off his access to navigable waters by changing the course of the stream in order to improve navigation.[290] Where submerged land under navigable waters of a bay are planted with oysters, the action of the Government in dredging a channel across the bay in such a way as to destroy the oyster bed is not a "taking" of property in the const.i.tutional sense.[291] The determination by Congress that the whole flow of a stream should be devoted to navigation does not take any private property rights of a water power company which holds a revocable permit to erect dams and d.y.k.es for the purpose of controlling the current and using the power for commercial purposes.[292] The interest of a riparian owner in keeping the level of a navigable stream low enough to maintain a power head for his use was not one for which he was ent.i.tled to be compensated when the Government raised the level by erecting a dam to improve navigation.[293] Inasmuch as a riparian owner has no private property in the flow of the stream, a license to maintain a hydroelectric dam, may, without offending the Fifth Amendment, contain a provision giving the United States an option to acquire the property at a value a.s.sumed to be less than its fair value at the time of taking.[294]