Martin v. Creasy

PETITIONER:Martin
RESPONDENT:Creasy
LOCATION:Union Station

DOCKET NO.: 157
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 219 (1959)
ARGUED: Apr 02, 1959
DECIDED: Jun 08, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1959 in Martin v. Creasy

Earl Warren:

No. 157, Mark Dave Martin successor to Luis M. Steven, the Secretary of Highways of Commonwealth of Pennsylvania, et al Appellants versus JK Creasy et al.

Ms. Alpern, you may proceed.

Anne X. Alpern:

Mr. Chief Justice, members of the Court.

This case represents a very unusual departure by a three-judge court, on the question of the right of the Commonwealth, in this the Commonwealth of Pennsylvania, to proceed with a limited highway access statute.

The gravamen of the court’s decision is predicated upon the theory that there were here involved an irreparable harm which could only be satisfied by enjoining the Governor of the state and the Secretary of Highways from placing into effect the Limited Access Highway Act of 1945 and from interfering in any way from the ingress and egress of certain properties that were established upon the highway.

It is a very primary case because it has tremendous impact on limited access highway throughout the country and we believe that the decision is not justified under the controlling law of the case.

In order to establish the basis of our position, I would like to review for the Court, the facts of — which impel the three-judge court to issue the injunction order.

In 1945, the State of Pennsylvania enacted a Limited Access Highway statute.

It does not differ very substantially from any other limited access highway statute.

Acts of this sort have been passed all over the country, in an effort to control the traffic deaths and injuries on the highways.

It has been the experience of many states and many municipalities that limiting access and preventing the interruption of traffic by ingress and egress from the ribbon developments along highways will materiality control traffic hazards, will allow traffic to move at much greater solarity and will inure to the peace and welfare of the communities.

We also feel in connection with court cases that if limited access highways become more pronounced throughout the country the amount of the backlog that has concerned the Chief Justice and other members of the Court would be greatly reduced because the traffic accident cases move from the highways into the courts and represent 80% of the backlog.

Now in this particular instance, the roadway originally was established by the County of Allegheny, a municipal subdivision of the state, as an ‘Airport Parkway’.

It was in no sense a service road as described by the court below.

It was an airport freeway which extended for a distance of five miles from the intersection of Routes 22 and 30 to the municipal airport in Allegheny County.

This road was established by Allegheny County in 1949.

As I stated, the Limited Access Highway Act was enacted in 1945.

At the time of the enactment of the freeway to the airport, the land was acquired in part by purchase by the County and some of the land was acquired by condemnation, some of the properties from very plaintiffs who are involved in this litigation.

In an Airport freeway, there is ingress and egress to the highway and certain of the commercial properties such as gasoline stations were established in order to utilize the greater commercial value of the freeway, and there is no doubt that there was some commercial advantage by being on a freeway of that type.

The limited access highway will effectively prevent any ingress and egress except were in designated by the Secretary of Highways, and there is no doubt that some of the properties that are fronting on the access highway will be materially effected.

It has been asserted in the record that damages in excess of a million dollars will be involved and we consider that that is a fair estimate of the damage that will be involved in these cases.

(Inaudible)

Anne X. Alpern:

No, that is the amount of damage involved, we do not concur that it is compensable damage.

William J. Brennan, Jr.:

Well, General Alpern, you mean by that lost of —

Anne X. Alpern:

Market value.

William J. Brennan, Jr.:

— business, market value of the real estate itself or the business value?

Anne X. Alpern:

Well we mean market value.

Now the court below speaks of loss of business that in the condemnation procedures in Pennsylvania the only test for condemnation is the value before and after, and we believe the court was in error in placing upon the case, the emphasis of loss of business, which is really not involved whether the case was compensable or not compensable.

What happened here was that the Plaintiffs, instead of proceeding in a manner provided in the act which provides in Section 8, that they may proceed to determine damages in the same way as damages are now determined in boroughs and townships and that method is through Board of Reviewerer.

That is the historical and normal method for determining condemnation results.

Anne X. Alpern:

Instead of proceeding with the Board of Reviewerer which was open to all the plaintiffs in this case, the plaintiffs came to federal court and asked for an injunction against the state, stating first, that their should be no limited access highway, because it was unconstitutional as to these plaintiffs to deprive them of compensation.

It was claimed that the Act of 1945, which had certain languages to damages was so limited in its nature that they would never have the power or the right to procure damages from the State of Pennsylvania.

And I believe in this connection I would like to read to the Court the language in Section 8 which appears at the end of the brief and also on page 3 of the brief at just Section 8.

For the purpose and constructing limited access highways, local service highways and so forth, the Secretary of Highways is here by empowered to take property and pay damage, therefore, as herein prescribed, provided, Your Honors will note that it say, but he says here that he is empowered to take property and pay damage therefore, as herein provided.

In Townships such property shall be taken and damages paid therefore in the same manner as now or hereafter provided for the relocation of state highways and townships in boroughs and cities in the same manner as provided for state highways and borrowers both cases by Board of Reviewer.

The owner or owners of private property affected by construction or designation of a limited highway or local service highway, or by change in the will shall be entitled only to damages arising from an actual taking of property.

The Commonwealth shall not be liable for consequential damages where no property is taken.

Provided, however, that the Secretary of Highway shall have authority to enter into agreements for the sharing the cost of property damage with officials of any political subdivision.

And then again, it goes on to say, that the taking of private property and payment of damages therefore by the authorities of municipal subdivision shall be in the same manner as now or herein after provided by law.

Felix Frankfurter:

I want to know but I don’t, what was the state of the proceeding in the state before this proceeding in the District Court —

Anne X. Alpern:

The Secretary of Highways had indicated in the newspaper publication that this was going to be declared as a limited access highway.

It had not yet been declared why.

Then this proceeding of this filed.

Felix Frankfurter:

And if the action of the — if the announcement — the announcement of the secretary, what would be the access on, what would be the next — what would be the process if this had gone in what you mean to be always the Commonwealth?

Anne X. Alpern:

]In a normal procedure, the secretary would declare that this is a limited access highway and then the governor would sign the plans which would be filed in a recorder of deeds, and then any property effected would go up before the Board of Reviewer and their determine what the damages were, but the properties were have been entirely different type and they were affected in diverse ways.

Felix Frankfurter:

And then go on from there.

Anne X. Alpern:

Well there would have been a board of —

Felix Frankfurter:

— opposition or a claim.

Anne X. Alpern:

There is opposition by — there is opposition —

Felix Frankfurter:

(Inaudible) property is.

Anne X. Alpern:

Yeah, and it is heard before Board of Reviewer.

The Board of Reviewer makes an award and then that award the Board of Reviewer determines the amount of the damage, the amount of the benefit, and decides what award shall be given.

If the property owner is dissatisfied or the Commonwealth is dissatisfied, it then goes up before the Common Pleas Court and from there to the Supreme Court.

It is an established procedure that’s been there for generations.

William J. Brennan, Jr.:

General Alpern, as a Board of Reviewer or is a one Board of Reviewer, are they ad hoc boards or they set of term employees?

Anne X. Alpern:

They are boards appointed by the Common Pleas Court and they sit constantly.

Each Board sits as the board of three and that has been the procedure in Pennsylvania since I can remember.

Felix Frankfurter:

The procedure in reference to condemnation proceeding.

Anne X. Alpern:

All condemnation proceedings, it is the normal procedure.

Now instead of availing themselves the property owners, the opportunity to go before Board of Reviewer and there to press their claim that they were entitled to compensation under the Constitution of Pennsylvania and to urge that the constitution provides that where there is a taking they are entitled to damages, they could at that time have urged that interference with access is a taking.

Anne X. Alpern:

Of course that’s a matter subject to considerable dispute, but they would have had a forum within which to express their position and at that forum, there would have been a determination of that issue.

John M. Harlan II:

Is that question has been litigated in other cases beside the Court?

Anne X. Alpern:

It has not been limited in connection with limited access highways, but it has been litigated in many facets in the law and I would to discuss that with Your Honors if I may.

John M. Harlan II:

Not under the statue.

Anne X. Alpern:

Not under the statute.

No, there is no decision under the limited access highway statute.

The only other — this is the only instance in Pennsylvania where the Commonwealth has taken a road that was an airport road and designated as an access highway.

In the Turnpike cases, you had a different factual situation because there, the Commonwealth began with a new access highway, and their by the provision of that particular statute it was provided that damages would be paid for consequential damages were there was the taking.

Felix Frankfurter:

This proceeding, the federal court showed you off the very beginning of the state procedure which would have gone to your Court of Commons, then to your Supreme Court and then either as to the amount of the criteria on which the loss for the taking was assessed by the state court could have come under the proper court.

Anne X. Alpern:

That is correct, Your Honor.

Felix Frankfurter:

That — all evidence in Pennsylvania and this simply follows that.

Anne X. Alpern:

It follows the identical procedure.

Now the reasons that were advanced for not following the normal procedure are very interesting and indicate the confusion in which this case, if I may submit left, the Court.

Potter Stewart:

General Alpern, before you proceed to that, before we get too far from the facts, the physical facts of this case, as I understand it what this was converting on existing highway into a limited access highway, is that right?

Anne X. Alpern:

Right, right.

Potter Stewart:

It was not the construction of a new road.

Anne X. Alpern:

No, it was a designation of an existing highway as a limited access highway without any taking whatsoever.

Potter Stewart:

Not any taking whatsoever.

Anne X. Alpern:

There was no land involved in the taking.

The only taking that could be considered is whether interference in access represents a taking under the constitution.

Potter Stewart:

Well, that — that — your answer to that question made me immediately to wonder whether the statute to which you referred is applicable because that refers — that statute is applicable to one of the purposes of the constructing — constructing a limited access highway.

Anne X. Alpern:

I think if Your Honor will look a little further down, you will find that there is various languages used including this language, the owners or owners of private property affected by construction or designation, Your Honor, you will see the word designation and it is used interchangeably in this statute.

So you have construction and designation.

Potter Stewart:

One other even more primary question, the designation of a highway as a limited access highway is nothing more than a paper designation, it doesn’t involve physically blocking off any of the roadway, it doesn’t.

Anne X. Alpern:

It can, it can involve physical blocking off.

We do have medial stretch that they do not contemplate any physical blocking off in most of this.

Sometimes there is a curve for certain reasons as to exit, but they are not contemplating any physical blocking.

They are planning just a — there will be a formal plan approved by the Governor filed in, then it will show every ingress and egress and in fairness to the opposition, we do not propose in this plan to have any access to most of the businesses that are involved here.

Potter Stewart:

But this is just a matter of prohibiting it, the driveway maybe there, but they are just not allowed to use it, is that it?

Anne X. Alpern:

That’s right.

Anne X. Alpern:

This is an arterial type of highway which is the only one that has been found effective in reducing the amount traffic hazard.

I think the figures that have been introduced in evidence here and depositions were allowed by stipulation indicate that 50% less accidents arise in limited access highways than in regular highways and the reduction has been considerable.

There is some argument on that question by the other side, but I think that weight of authority nationally by all the traffic engineers would indicate a very material reduction in traffic hazard and traffic casualty by the use of this type of highway.

It is true that on turnpikes sometimes there are hazards due to speed, but that is a question of control not of the original design.

In a properly supervised controlled highway as it has been done in Connecticut for example and which we hope would be done in Pennsylvania under the new rigorous program that is being introduced, proper supervision will reduce the casualties.

The figures here show a reduction of approximately 50%.

We come then to what is a basic question in this case?

The court took the position, the three-judge court, that Pennsylvania under its constitution does require payment where there is a taking.

And the court took the position that their should be some determination on this relay by the Supreme Court of Pennsylvania in order to determine this question, and what is extraordinary in this case is what I am about to relate.

The court suggested took all of counsel that there would be a determination by the Supreme Court, where upon the lawyers filed a proceeding in the Common Pleas Court of Dauphin County, the Commonwealth Court, seeking to enjoin exactly the same party defendant as if were enjoying in the federal court.

It was the thought of the Court of the District Court that in that way there could be a determination by an equity suit in the Common Pleas Court of Dauphin County.

I might state Your Honors, that it was suggested to the federal court that that would not be possible because under the Law of Pennsylvania, it has been held time and time again, that a Court of Equity cannot determine eminent domain matter, and that those cases had to be heard in the Common Pleas Court after a determination by the Board of Reviewer.

Despite the statement by counsel to the Court, warning the court that there could not be a determination that would be effective, the Court nevertheless suggested that proceeding be instituted.

Whereupon, a bill of complaint was filed in Dauphine County and the case was heard by his Honor Judge Sung and Your Honors will find the decision of Judge Sung on page 71 of this preceding.

And in that preceding, Judge Sung, reviewed very carefully the Law of Pennsylvania and he stated that nobody was arguing that a limited access highway was not legal.

The law has develop far beyond that point, eminent domain is recognized and this is recognized as the proper safety measure.

The only thing that was being argued was that the parties to this suite might not be compensated in the way they were entitled to, the Court stating at page 73, what the property owners here are asking the court to do is to judicially declare that an abutting property owner direct access to the existing free access highway is a property right for which compensation is constitutionally required and later on to assess an award damages for such a taking.

This in a preceding in equity we cannot do, all of the plaintiffs rights can be protected and secured in a proceeding before viewers as provided in Section 8 of a Limited Access Highway Act.

And then he goes on to say, the Court states, “Here the legislator in the Limited Access Highway Act has provided a way in which every property owner may have it decided whether he is entitled to compensation and if so, when, for what, and what with, what amounts, where the legislator has provided a way and a remedy it becomes exclusive remedy.”

The Court goes on state, “It is not for this Court to determine whether an abutting property owner has vested property right to direct access in an existing free access highway.

If such a right exists, plaintiffs have a statutory remedy to protect that right.

Should the Commonwealth precede them at that time, plaintiff will have the right to proceed before of reviewers on the question of their right to damages.

In the orderly course the procedure provided, the Limited Access Highways Act, they will have a right of appeal to the Common Pleas Court, a jury’s trial, and still later to have their rights adjudicated in the appellate Courts.

At all times, their constitutional rights whatever they may be will be guarded and protected.

Now significantly what the court said, was what any Pennsylvania lawyer would know that they would say because the courts have repeatedly said in case after case that we will not in an equity proceeding determining — determine a problem of an eminent domain damages.

When the District Court procured this determination which indicated that there was a way in the Pennsylvania Courts for a litigant to claim that an interference with access was a property right to determine that issue.

The District Court was not satisfied.

The District Court felt that this was not as unequivocal statement as it felt it was entitled to receive.

If was receiving exactly this type of statement that had to receive, every one of these cases differ.

Some of the plaintiffs will be blocked off entirely.

Anne X. Alpern:

We understand that there maybe six or seven who will have no access whatever, many of them will have service roads and Your Honors will note that in this Limited Access Highways Act.

William J. Brennan, Jr.:

This Court, Pennsylvania lawyers?

Anne X. Alpern:

I beg your pardon sir?

William J. Brennan, Jr.:

With all the judges of these three-judge courts, Pennsylvania lawyers?

Anne X. Alpern:

Yes you’re Honor, they are all Pennsylvania lawyers, they just simply in connection with this particular case.

Generally, some of their own knowledge on viewers proceeding and determined that there was irreparable damage here.

Felix Frankfurter:

Before you go a little bit longer, before you give argument, am I right that the decree, I have a finicky habit, I am always wanting to know what it is I’m asked to affirm or to reserve, is the decree which is actually here for our determination as to its correctness, the final paragraph on page 104 of the record?

Anne X. Alpern:

Yes sir.

Felix Frankfurter:

Now that just enjoined complies with the Act, does it not?

Anne X. Alpern:

Enjoined for — enjoined from enforcing or otherwise complying with the Pennsylvania Limited Access Highways Act so as to interfere with or deprive the plaintiffs their right of ingress or egress to and from — to or across the Airport Parkway.

Felix Frankfurter:

That says the — the government and the Secretary of Highways can enforce that act?

Anne X. Alpern:

That’s right.

Felix Frankfurter:

There’s no condition, there’s no qualification it doesn’t say you must —

Anne X. Alpern:

No, despite the fact that this was a severable statute and had a specific provision that it was severable and despite the fact that the Statutory Construction Act of 1937 —

Felix Frankfurter:

How could they proceed on this Act except to give the property owners, a dollar amount of what they want or what they under laws that this access highway — limited access highway is allowed to proceed, is there any other way?

Anne X. Alpern:

There is no way because Act —-

Felix Frankfurter:

There is no opportunity of even making the monetary determination through a Court of law under this —

Anne X. Alpern:

Not under the Pennsylvania law and that is why we feel that the whole situation requires a cross clarification not only for this case but some other cases that may come up.

We see “no way” of determining the rights of an individual person except through reviewers’ proceeding because they were very tremendously and Your Honors — I call Your Honors’ attention to the fact that the Secretary of Highways is empowered to construct service roads.

These service roads are parallel to the access highway roads.

He may construct service roads in certain areas where it’s deemed economically sound to do so.

He may not do so in certain other areas.

It is only when an individual plaintiff comes up and states his case and you determine where the road is and whether he has actually an alternative route, that some of these questions of damage can be determined is in fact a question.

Felix Frankfurter:

But the very claim that is made here, that is by limited access, you do property damage that’s the claim, isn’t it?

Anne X. Alpern:

That’s right.

Felix Frankfurter:

And if you do property damage you must make compensation for it, but under this decree you can’t even do that.

Anne X. Alpern:

Well, but they are happy because there is no access highway, they are still enjoying their property.

Felix Frankfurter:

I understand that they’re happy, but what I want to know is the reach of this decree is an effect says, you cannot turn this highway into a limited access highway, is that right?

Anne X. Alpern:

Right, and for three years we have not turned it into a limited access highway.

Felix Frankfurter:

Let me say — even if you grant all their claims, their claims aren’t that this is beyond — in their claim that as a matter of United State Constitutional Law Pennsylvania can have limited access —

Anne X. Alpern:

When the complaint was originally filed, it was the claim of the plaintiffs that they could not have a limited access.

Felix Frankfurter:

Even if you pay them whatever — the clause.

Anne X. Alpern:

But I might say Justice Frankfurter that that position, that intransitive position was abandoned.

Felix Frankfurter:

It maybe abandoned by the lawyers, but the decree —

Anne X. Alpern:

Yes, well the Court — the Court itself states — the Court itself states in its opinion that there is no question about the fact that there can be a limited access —

Felix Frankfurter:

I don’t see how you can as advisor to the government, I had never had the great good fortune for having your position or anything like it, but this decree unless English doesn’t mean English, would it be compelling to say that this bars the utilization of the 1945 Act and turns it into a limited access to highway —

Anne X. Alpern:

We have so said and that is why we are here.

Felix Frankfurter:

No amount of money can change that.

Anne X. Alpern:

That is why we are here because we do not want to be in conflict with an order of a court and we feel that the only thing we can do and has been done has not put — they have not put the Highway Act into effect and that is the result of it.

Despite the –-

Hugo L. Black:

A little matter, what they have said is that as to these particular plaintiffs on the finding that they had that you cannot cut them off from this highway?

Anne X. Alpern:

Well, Mr. Justice Black, there are 55 plaintiffs and they represent the plaintiffs on this five-mile stretch of road and if we can’t do it as to them, we just cannot do it.

Hugo L. Black:

Well, even if it was just them what they have held is, is that the constitution forbids you to decide that you want to roll along the way, but said if the people can’t get on into place they want to get on.

That precisely what it is, isn’t it?

Anne X. Alpern:

Of course, if you examine the opinion of the court, the court finally concedes that there’s nothing here but a matter of damage and that the Commonwealth does have a right to have a limited access highway.

But the Court takes the position that if we wait until the normal procedures of going through a board Bf Viewerer that irreparable damage will come to the plaintiffs in this case.

What that irreparable damage will be, why it is different than anybody else’s damage, I do not know.

Hugo L. Black:

But they didn’t issue a temporary —

Anne X. Alpern:

They did originally, yes.

When the case first began –-

Hugo L. Black:

— privilege?

Anne X. Alpern:

— it began as a Temporary Restraining Order.

Then the order was in effect until the Supreme Court of Pennsylvania affirmed the Common Pleas’ decision.

Then the order was continued and made into a permanent order.

That is the history of the proceeding.

Now the court relies on the case in this Court for its position that irreparable damage would result of such consequence that the court was justified in issuing this order.

Significantly, the court relies on Toomer — on the Toomer case, Toomer versus Witsell and we find that very difficult to comprehend because Your Honors will remember that in Toomer versus Witsell case, the Court was involved with two statutes in South Carolina that affect the rights of non residents to do trolling in South Carolina waters for shrimp.

And one of the statute provided that a $25.00 license fee be paid by residents and a $2,500.00 license fee be paid by non residents.

There was also a $2,500.00 fine and there was years of imprisonment in jail and on the basis of that statute which the Court declared was unconstitutional because it interfered by the Commerce Clause and requiring the stamping of the products taking them out, stamping them, reloading them, the Court held that the South Carolina statute was itself unconstitutional.

But what is very significant in the series of statutes that were involving Toomer case, one involved an income tax law.

Anne X. Alpern:

The South Carolina statute stated that any fishermen who had not paid his previous year income tax in South Carolina would not be available to procure a license.

Now, the Court, Supreme Court held as to that statute that it was not unconstitutional because there was a method for procuring redress.

The parties had a right under Carolina law, to file — to pay under protest and thereafter under a specific proceeding to procure to get the money paid back.

In the other case, there was no such right.

Now significantly damage under eminent domain is identical with an income tax provision because in both cases we’re speaking only of money.

We’re not speaking of a right that cannot be replaced in money.

This is exactly like the income tax and yet the Court did not recognize that the Pennsylvania case fell within the income tax purview and not within the irreparable harm purview of the basic two more decision.

Charles E. Whittaker:

(Inaudible)

Anne X. Alpern:

Surely sir.

Charles E. Whittaker:

(Inaudible) has to determine what damage is sought to a ((Inaudible)

Anne X. Alpern:

He cannot abandon the proceedings without making compensation.

Once you have passed the necessary law you do not — you have to pay, your rights accrue immediately upon the filing of the plan.

Charles E. Whittaker:

They would pay damages that(Inaudible) —

Anne X. Alpern:

Yes, that is right.

Charles E. Whittaker:

And that occurred – that ((Inaudible) initiate that right.

You have to resolve the continued resolution —

Anne X. Alpern:

If it is — if it is in the municipality for example, I use to be attorney for the City of Pittsburgh, if we passed an ordinance then immediately, immediately that law comes into effect and the right to property damages inure from the time of the enactment of the ordinance.

Under this law when the governor files the plans in the Recorder of Deeds office the right of the parties accrue.

But I submit to this Court that under the very case that the — that the three-judge court is relying on, the Toomer case, the case identical to this as to the income tax statute where only damage is were involved, the Court says there was no reason for saying irreparable loss, there was no irreparable loss.

And significantly in this opinion the Court keeps speaking of the loss of business and the loss of contracts and a termination of re-negotiation rights as to some contracts, but none of these things have anything to do with an element domain proceeding because here and you are concerned with market value before and after and that is all.

And therefore money damages, there is no reason whatever in a money damage case to declare the Act unconstitutional, the Act is not unconstitutional.

Charles E. Whittaker:

(Inaudible)

Anne X. Alpern:

Surely sir.

Charles E. Whittaker:

(Inaudible)

Anne X. Alpern:

Well, they could under any taking, that is once that is determined that access is a taking they would have rights.

If it is determined that access, in appearance with access is not a taking then they would have — not have rights.

But significantly, the Court never says that the Limited Access Highway Act is unconstitutional, it is so far is to provides for limited access.

It says that it’s unconstitutional because under Section 8 of the Act, there is no assurance that the Supreme Court of Pennsylvania will permit damages in the case of this sort.

Now, actually I don’t know how the Court reaches that decision.

William O. Douglas:

I suppose it relied on — representations of your office or whoever from your office argued that the right of access was not a copyright?

Anne X. Alpern:

Well, there has been some degree of uncertainty in the Pennsylvania law on that subject.

There have been a series of cases that have held not only in Pennsylvania but elsewhere that in appearance and obstruction does not represent a compensable damage to a property owner.

There has been the holding that like the case, in Sauer case in New York, if you have a viaduct, you may not receive compensation even though there is an interference with light and air but it terms of –-

Felix Frankfurter:

There some statute ((Inaudible) in this Court?

Anne X. Alpern:

There have been many other instances from this Court where you have said exactly the same thing in connection with the interpretation of the rights of the federal government.

But I might say that there has been in recent years a broader attitude in some of the jurisdictions as to what will be compensated and what will not.

Now, for example they show in (Inaudible) versus Allegheny County where there was an interference with a driveway and this case is quoted by the Court and by us.

Now, in that case the Court felt that it was unjustifiable and they felt the damages should be paid.

On the other hand the Soldiers and Sailors Memorial Bridge case, they did not allow damages to be paid and there is some degree of uncertainty despite the very rigorous position of the Department of Justice in this case as to what the Supreme Court of Pennsylvania would do in certain instances.

For example in the cases of those that are completely land locked, there may be and there has been a tendency in some parts of the country to consider situation of that type, as a hardship case.

It has been the position of the Department of Justice with under existing law, there is no right to compensation where no property is taken.

But what the Supreme Court of Pennsylvania will ultimately do can only be conjunctive and what is significant in the opinion of a three-judge court.

The court seems very uncertain as to what the Supreme Court of Pennsylvania would do.

The court specifically says that it is unable to hazard a guess as to what the Supreme Court of Pennsylvania will do, without venturing to predict the ultimate decision of the Pennsylvania Courts on the issue of compensation that’s on Page 97, we think and these circumstances it is our duty now to examine Section 8 in a light of the person — Pennsylvania Supreme Court decision and to determine whether it’s an exercise for the Commonwealth power of eminent domain it can forge with a due process law.

Now having said well they can predict they proceed then to predict, but we do have a determination.

Right in the middle of this whole controversy, the Supreme Court of Pennsylvania adopted the decision of the lower court and that decision said that at the time the matter comes up before board Bf Viewer.

Then it can be determined whether an interference with access is a property right which should be compensated.

There is an actual determination by the Highest Court of Pennsylvania that the matter can be litigated and determined.

Under those circumstances we find it difficult to understand, how a three-judge court can then decide there’s been no expression of opinion.

To the contrary, I would say the expression of opinion is that the statute is as broad as the constitutional provision and if when the matter comes up specifically in individual cases, the litigant will have an opportunity to have this case determined as to whether access has been interfered with and whether an appearance with access is in fact a property right which has compensation under the constitution of Pennsylvania.

It seems to me that no court can say that we must find out first what the Supreme Court will do and then have an expression from the Supreme Court that the party’s right will be protected under viewers proceeding and then proceed ignore the decision because it does not meet with the type of explicit discussion, which the District Court thought was necessary in which could never be had except under the facts of an individual case.

Hugo L. Black:

(Inaudible) effective in this case (Inaudible) in Federal Court — for that just compensation?

Anne X. Alpern:

Well, the Court could not fail to take jurisdiction because the right to review viewer’s decision.

Hugo L. Black:

I’m assuming that would tell — what I’m at loss to understand quite in your argument is it seems to me that you have not paid compensation once they get to this Court, (Inaudible) what Federal Court has a right to determine (Inaudible) on the fact versus State of Pennsylvania has the right to build a highway to (Inaudible) which cuts of the access of certain people along the highway?

Anne X. Alpern:

Without paying compensation or with paying the compensation?

Hugo L. Black:

Well, with pay compensation, I assume that it would be with paying compensation because if — even the Pennsylvania didn’t give a remedy, they could get a remedy in the Federal Court.

Anne X. Alpern:

Well, —

Hugo L. Black:

As told, as I read it the Federal Law gets property without just compensation.

Anne X. Alpern:

That is the question sir.

Hugo L. Black:

And you finally, — you finally have seems to me get down in this case to the decision that the Federal Court had decided that on the facts of these cases, these plaintiffs are deprived of a constitutional right by having an access cut off whether they get compensation or not, maybe partially on the theory that the law was not given to — the constitution wouldn’t give enough compensation.

Anne X. Alpern:

Oh well, under if you have to first take two steps in order to get to the constitution you have to decide if this is a taking and interference with access is a taking and if it is a taking the constitution provides a remedy.

Hugo L. Black:

What if it is not in taking?

Anne X. Alpern:

If it isn’t?

Hugo L. Black:

What is the argument then is whether the Court has the right to hold that suppose it’s not a taking, what is the argument that it violates the Federal Constitution but the Courts to hold that Pennsylvania can come along there and takes it road and determine unless you are suggesting, I don’t know what the words are but just completely out of all line and no possible argument to say that –-

Anne X. Alpern:

Well, you understand?

Hugo L. Black:

— that a highway through there or even though they can get to it within two miles or three miles.

Anne X. Alpern:

Well of course – Your Honor is ignoring the fact for the purpose of this discussion that the Act specifically provides that there maybe service roads running parallel on the side way.

Hugo L. Black:

I understand that.

I understand that but all I am saying to get at is that when you finally get down to it, it seems to me, it is the question of whether the State of Pennsylvania through its authority, has a right to determine what kind of roads it will have or whether the courts can review it and say that they are wrong, they violate the Federal Constitution by building the roads as they did.

Anne X. Alpern:

Of course my our position Your Honor is this, that so far the only thing that legislature has determined is that limited access highways are desirable and that the Secretary of Highways and the Governor shall have right to established though.

The Act also says that anyone damaged shall be paid proper compensation and then it becomes a matter thereafter as to what that compensation is and there is no way of litigating the question of compensation except to take each individual case before of Board of Viewer because then you have the facts of the specific case, you have the land locked case, you have a case where you have an alternative road for example in the Young’s Beach cases the Court held that the fact that the man had a contract in how to make a U-turn was not sufficient to be held to deprive him of the constitutional right and they held that he — it was perfectly within the right of the nearest authorities to do that.

And so in each one of these cases the rights will be determined as they proceed through Board of Viewers.

Now, the only reason the Court gave for not going to the Board of Viewers was one there will be a loss in business but as I stated that is not the test and two it will take too long.

Well this is taken since 1955.

I was on the collect for five years.

We heard appeals from the Board of Viewers many, many times during that period.

This is a much longer route than the route that was suggested and it is my opinion and I sincerely submit to the court that all constitutional rights with the parties will be protected in the Board of Viewers and I don’t believe that anybody can project at this time, exactly the position of the Supreme Court of Pennsylvania on the question of an absolutely land locked situation.

Hugo L. Black:

If they decided it wrong, they could still bring it up here, couldn’t they?

Anne X. Alpern:

Oh, certainly it would have the right to review.

Felix Frankfurter:

Is it an interstate artery, this —

Anne X. Alpern:

This part of the road, this limited access highway will connect with 2230, which is interstate.

Felix Frankfurter:

Any suggestion that you cannot do this because this is interference under Interstate Commerce?

Anne X. Alpern:

No, because at this part of the road where we are in the five-mile stretch you are nowhere near interstate commerce on it, we haven’t connected as yet with 2230 it just will connect eventually.

Felix Frankfurter:

That’s not in the case at all.

Anne X. Alpern:

That is not in the case.

Felix Frankfurter:

It’s all the compen — the potential compensability of the alleged loss?

Anne X. Alpern:

That’s right.

If when Your Honors will examine the record you will find that the parties themselves have abandoned their original position questioning the right to a limited access highway.

The court and the parties acknowledge the right.

The only thing the parties and the court (Inaudible) compensation and it’s my position that as to compensation there is a remedy, it is not in a court of equity, in the state court, it is not in equity in the Federal court, it is before a Board of Viewers and appeals that are required in connection with Board of Viewers and because the questions has significant importance not only to Pennsylvania but throughout the country we feel that a clarification of this issue is very necessary.

Earl Warren:

Mr. Good.

Edward P. Good:

Mr. Chief Justice, may it please the Court?

The Attorney General has given the Court the position of the defendants, one the plaintiffs were entitled to seek their rights before the Board of Viewers in a normal statutory method.

Secondly, she says of course they have no rights and that’s the position they have urged upon the courts constantly that loss of access is not compensable and will not be compensable.

So they are telling us that we have to wait until we are barred from access to the road and then go into a long involved proceeding to seek damages but of course we will not entitled to any of that.

Felix Frankfurter:

But you have the law – isn’t the final word?

Edward P. Good:

That’s correct Your Honor but looking at the history of the cases in Pennsylvania, the District Court here accepted as the likelihood that the Supreme Court of Pennsylvania would decide that access would not be compensable.

Felix Frankfurter:

That’s a vested property, isn’t it?

Edward P. Good:

That’s correct Your Honor.

Felix Frankfurter:

And it’s vested property, what we would do in case the Supreme Court – goes wrong according to your view of your constitutional right?

Edward P. Good:

That’s right Your Honor but there is always been the remedy of equity in a situation where a limited domain statue does not give a clear and a certain root to compensation for the property owner who was damaged.

Felix Frankfurter:

Could a Pennsylvania Court of Equity give you the relief that’s given here?

Edward P. Good:

Yes, I could have Your Honor.

We sought that relief in Pennsylvania.

The District Court —

Felix Frankfurter:

Did you get it?

Edward P. Good:

No, we didn’t.

The District Court first —

Felix Frankfurter:

It was brought from – where did you receive it, in Common Pleas?

Edward P. Good:

We begin this case in the District Court Your Honor, before the three-judge special court.

Felix Frankfurter:

Now could you — if you had sought relief in the Pennsylvania Court, is there equitable relief for an irreparable damage such as you claim in the federal — in the state chancery court?

Edward P. Good:

We believe there is Your Honor.

Felix Frankfurter:

And did you seek that path?

Edward P. Good:

Yes, we did.

Felix Frankfurter:

And it was denied?

Edward P. Good:

It was denied.

Well off course that is the one of the grounds of contention.

We maintain —

Felix Frankfurter:

What happened — what happened to that?

Edward P. Good:

That case went before the Commonwealth Court, the Common Pleas Court of Dauphin Country which is the state capital, which is the only court before which a suit against a state official could be brought.

Edward P. Good:

That court said and I believe the Attorney General quoted the opinion that our rights whatever they may be would be available before a Board of Viewers and on appeal to the courts of Pennsylvania and eventually to this Court by certiorari perhaps.

The language that we think is important there is their statement that our rights whatever they may be.

The court absolutely refused to take a position upon the issue that is here pivotal, that is whether or not the state of Pennsylvania will recognize what has been recognized in this Court and in most courts throughout the land and that is the easement of access is itself property and may not be taken without compensation any more than the land itself.

Felix Frankfurter:

May I proceed with your Dauphin Country proceeding, did you brought it to the Supreme Court?

Edward P. Good:

We went to the Supreme Court of Pennsylvania, they affirmed without opinion, per curiam.

Felix Frankfurter:

Did you come — tried to come here?

Edward P. Good:

No, we did not Your Honor.

We considered the possibility and decided that we would be on sounder ground to go back to the Federal District Court and report to them what had happened.

There is an interesting of exchange we had stipulated that although is not printed as part of the record that either side may refer to the transcripts of the hearings below and very early in this case although both sides urged the Federal Court to proceed to handle the matter finely, the three-judge court determined that they should hold the case until we have sought a remedy before the state courts and on page 23 of the transcript of February 13 –-

William J. Brennan, Jr.:

We don’t have that.

Edward P. Good:

No, you don’t Your Honor, I have to read this to you.

I said and as the Attorney General has said, both parties maintained this position.

I said we through Your Honor in reference to our going before the state courts while the District Court held the case that the Commonwealth Court and the Supreme Court of Pennsylvania will tell us that our remedy, if any, lies with the Board of Viewers so we would have to wait until the highway is close to us before we would know if we have a remedy or not in which case our damages irreparable and Judge Daly said, I think you’re anticipating too much.

Felix Frankfurter:

May I ask you, I am sorry to be pressing you, but I had to go step by step in deciding in this matter.

You claim is that the provisions of law, that the Pennsylvania provisions of law available to you denied you the protection of property, which they were seeking to destroy or take, is that right?

Edward P. Good:

That is right.

Felix Frankfurter:

And you sought vindication of that right in a local Pennsylvania court, it denied it.

The Supreme Court of Pennsylvania refused to review or affirm, which it did?

Edward P. Good:

Affirmed per curiam.

Felix Frankfurter:

They affirmed per curiam.

Now, if you were right that there is an inherent deprivation of property right in the statutory or decisional law of Pennsylvania, would that not be a basis for coming to this Court to upset what the Pennsylvania courts had held?

Edward P. Good:

It would have been Your Honor.

However, we thought we had an equally clear road to go back to the original case, you must recall we filed it to —

Felix Frankfurter:

The original case ends up by tying the hands of the Commonwealth so that they can’t even give you the money you want because they are enjoined from building – from cutting of access to the road?

Edward P. Good:

We have not sought Your Honor.

They were enjoined from condemning and purchasing the land that is involved here.

William J. Brennan, Jr.:

It doesn’t say so, the decree.

Edward P. Good:

Well the decree does enjoin the enforcement of the act.

However —

Felix Frankfurter:

Does that in their words, I can read English.

Felix Frankfurter:

It says that very thing, doesn’t it?

I have the correction and I’d be delighted to be corrected.

William J. Brennan, Jr.:

(Inaudible) or otherwise defined in the Act so it interfered with it and deprived the plaintiff his right of ingress and egress?

Edward P. Good:

If this Court were to remold – wanted the district court to remold that decision, that decree so as to insert the words without compensation the plaintiffs will certainly not object.

As a matter of fact that question has simply not arisen before.

We have never even considered that responsibility or we have considered.

Gentlemen we considered this decree as barring the defendants from proceeding to bar our access from this highway without a definite knowledge on their part and ours that such loss of access would be compensated for.

Felix Frankfurter:

That was done by a District Court of United States without a prior determination on the merits that in fact you couldn’t get adequate compensation.

Edward P. Good:

Only —

Felix Frankfurter:

I don’t care how often or how persuasive either the present Attorney General or the predecessor was is saying you have no money claim, they are not to be depository of the judicial power.

Edward P. Good:

But the road by which we could have sought our relief that, as been suggested by the defendants and maintained all along, does result in irreparable damages and there seems to be no way around that.

From this there are two possibilities.

Suppose we had withdrawn after the state courts had refused to answer the questions, there are several things that might have happened.

First at some point along the line or in spite of the objections of the defendants that this right was not compensable, some courts may have decided that access or some courts certainly would have decided, this Court if no other, there’s no other resort, that access can’t be take from us without compensation.

Now, if that happens the State of Pennsylvania is as most other states in budgetary difficultly there is nothing to prevent the Commonwealth in that point in saying well in that case we can’t afford to condemn this highway, to debar access this highway.

Now in spite of what the Attorney General has said, in that situation there is a very, very dubious picture as to whether we would be entitled to any damages for the temporary loss for this reason.

Felix Frankfurter:

The temporary loss merely, I want to be clear, the temporary loss merely because the state had announced to the Secretary of Highways and the Governor that it wanted to cut all taxes?

Edward P. Good:

No, Your Honor, we could not go into that.

Felix Frankfurter:

Since you got the relief if not from your state courts then through this Court if we thought that was a serious enough question so that the matter should be held until compensability was decided?

Edward P. Good:

Your Honor we could not have proceeded in the state courts further or to this Court without following the route that the Attorney General has suggested.

Felix Frankfurter:

Not at all if I understand you claim.

Your claim is that there is no doubt about it that under Pennsylvania law you can’t get compensation for this indirect derivative whatever you call it then, isn’t that right?

Edward P. Good:

That’s correct sir.

Felix Frankfurter:

Well if that’s so then this Court would have felt you did have a compensable property interest that Pennsylvania cannot take it away from you through its procedural difficulties?

Edward P. Good:

We had the choice after the Supreme Court of Pennsylvania had given this summary refusal to review the question of returning to the Federal District Court where case was being held or proceeding to petition this Court by certiorari.

Felix Frankfurter:

May I interrupt you, but the district court certainly would have power to do – (Inaudible) that power to do what it did, it could have had power to suspend action on the declared purpose to cut off access until your legal claim was affirmed by appropriate court, couldn’t it?

Edward P. Good:

Yes, it could have on theory Your Honor, we feel that it did.

Felix Frankfurter:

Or did much more than that?

Edward P. Good:

We could have proceeded to this Court at that time by petition.

However, since the district court was holding the case it was simply a policy decision on the plaintiffs’ part to return to the Federal District Court where we started the case and say, you see the state court has refused to construe the Act and therefore we comeback you and we are in the same position when we started.

Edward P. Good:

We have here a questionable stand —

Felix Frankfurter:

(Inaudible) because the facts weren’t before it?

Edward P. Good:

But Your Honor the court has not always taken that position even — that is the Supreme Court of Pennsylvania.

In an earlier case of Gardner versus Allegheny Country, the State Supreme Court did just what have asked in this case and that was the situation involving a claim or suit for an injunction against low flying airplanes in the vicinity of this same airport.

Now, In that situation the Supreme Court of Pennsylvania said, true they will not determine, they will not sit as a Board of Viewer.

However, they did define, they referred to US versus Cosby, and did define this low flying of aircraft over property as a taking and said there was no question this was a compensable taking.

So they established some beacon to guide the parties below when they would go before the Board of Viewers.

In this case they did not do that.

Now I would like to refer the court also to a decision of the Supreme Court of North Carolina which we mentioned in our brief, Hedrick versus Graham.

There plaintiffs in a situation parallel to ours went to the court system in North Carolina and sought an injunction.

The Supreme Court of North Carolina refused, It said you are not entitled to an injunction because they defined access as a compensable right so therefore your remedy is assured if you loose access, that’s all we expected the Supreme Court of Pennsylvania to do.

We never asked the Dauphin Country Common Pleas Court or the Supreme Court of Pennsylvania to assess our damages, we simply asked for a definition of our rights.

Felix Frankfurter:

But you refuse (Inaudible) comfort zone, decision of this Court, after flying, low flying planes if they frighten chicken, that’s a compensable interest?

Edward P. Good:

That’s right Your Honor.

Felix Frankfurter:

I think that would have given you good deal of comfort.

Edward P. Good:

But you see if we had yielded and gone back to the board Bf Viewer and to get back to where I was before if the state had eventually upon being told they must pay compensation for this loss of access and as all parties agree the sum involved could be at least a million dollars.

The Commonwealth might well have withdrawn.

Over period of approximately two to two-and-a-half years of going to the Board of Viewer, the Court of Common Pleas, the Supreme Court of Pennsylvania to this Court we would lost our right to use gasoline stations and restaurants, amusement park and similar institutions.

What we have lost was merely the incorporeal hereditament of access and there are cases in Pennsylvania which say that if the state does not take your land or the condemning authority if they later abandon to take the condemnation proceeding, the condemnee is not entitled to damages and that was the real danger we faced, the real irreparable damage.

Byron R. White:

(Inaudible)

Edward P. Good:

That is the question that the Attorney General concedes is unsettled and amorphous in Pennsylvania Your Honor.

We have cases — the Commonwealth Court before which we went in Pennsylvania just a few months earlier, a few weeks earlier in the case of In re Anspach which we cite says that unquestionably access cannot be taken without compensation.

In our case, they say we are not — it is not for this Court to say whether access is compensable or not.

The Supreme Court of Pennsylvania has said in cases cited, Koontz cases involving, Scranton, many other municipal sub divisions that access, the right to them in or off your property is as much your property as the land itself and yet in other cases such as Brewer versus Commonwealth, so does Soldiers and Sailors Memorial Bridge case cited the Supreme Court of Pennsylvania has said, there is no question that in the present state of the statutory law unless the Commonwealth takes your land they do not have to pay compensation.

This confusion, the dichotomy faces us squarely and leaves the plaintiffs completely in the air as to whether they will be ever entitled to compensation or not for a loss of a right which has been recognized almost everywhere.

Hugo L. Black:

May I ask you, why won’t that (Inaudible)?

Suppose you go through this, this court procedure and the you wait, you have to wait, they deny access for you to get there, you have been denied access for three years and then you go through the procedure and the court should hold that you are entitled to compensation not merely but whatever you have claim in a way of any land I don’t purchase any land, but that is a compensable item then why could not prove the value of that compensable item as well with reference to the past taking after they –-

Edward P. Good:

Because —

Hugo L. Black:

What would bar you from doing that?

Edward P. Good:

We have cases in Pennsylvania and that have said —

Hugo L. Black:

I am talking about it is all right though if the constitution authorizes you to recover so the value of the denial of access which is finally what you are saying it should do, we should hold there.

What are you going to lose the by having to wait until after the road is constructed.

You would then get for the past taking denial and for the future denial.

Edward P. Good:

If we could be assured that this Court would eventually be —

Hugo L. Black:

Suppose you are not assured then if you’re not assured what you are saying is that you want the whole Pennsylvania up on the ground that the rule, the constitutional rule for allowing compensation is not enough.

Edward P. Good:

We are saying that this statute has to be reformed in such a way has to guarantee that our right to access which is a constitutional right is guaranteed.

Hugo L. Black:

I think that it — I think it — I don’t think it is enough of what you proceed under the statute maybe I’m wrong, you will be entitled in the end to receive every dime of compensation for denial of access if the constitution as – construed gives it to you.

Now, if it does not give it to you, what right do you have to hold up the construction of the road?

Edward P. Good:

Because the right itself is a right which we feel, which we believe has been defined in this Court as a right which the state cannot deny us under our right in the federal constitution.

Hugo L. Black:

Well, I’m assuming if they never could, they can’t deny – let’s assume they can’t deny it, if they have got to pay you for the denial of access, now what do you lose if– if you’d be — you still got to prove it sometime what the value is and you would be entitled to prove of the value of the denial of access from the day your denial was — the denial was entered and affected from then on.

Edward P. Good:

We would have to do that Your Honor, we have to start it again, the long hard road through the state courts and even with the state — with the assurance of this Court that our right to compensation was a clear constitution one.

We would have to start back again in the Pennsylvania of courts, the lowest level of the Board of Reviewerers for the compensation.

Hugo L. Black:

Well, that’s the way all others have to do it, isn’t it?

Edward P. Good:

That’s correct, sir, but then we would be faced with this question of the State Law of the open question of how much we have lost whether in fact this — and this easement could be equated with a lost of land and we fear that the very expense and time involved in trashing out which — what might become a matter to come up before this Court not once but two or three times before the state, the first, the state condemning authorities and the state courts would be completely controlled and convinced of the fact that we were entitled to be paid.

Felix Frankfurter:

But it doesn’t address — but it — you are right is not dependent upon persuading them of your — of the correctness of your view of the law, because either it is compensable in dollars and cents when you finally win, or if during that period you would be disadvantaged to the active operation of the law, the operation of the law could be enjoined until it puts on (Inaudible) doubt as to what your rights are.

If the irreparability derives from the fact that during the process of ascertaining your money value you would be out of pocket unconsciously then that situation could be remedied by enjoining such operation of the unconstitutional of the law.

Edward P. Good:

Well that, as we see it is what has been done Your Honor.

We have such an injunction now and —

Felix Frankfurter:

But what if you have certain injunction by having a District Court tie the hand of a state and saying the ordinary process of State Law for ascertaining the value of your alleged easement and by alleged I mean, not just determined, I don’t mean to question you, the value of your alleged easement can’t be ascertained to the normal of channel of eminent domain of the state.

Edward P. Good:

Yes, Your Honor, but there are other defects to the statute of which in themselves and aside from the question of due process of the compensability of —

Felix Frankfurter:

But that’s the only basis on which (Inaudible) consideration.

The District Court acted on constitutional grounds, isn’t it?

Edward P. Good:

Yes sir, but on —

Felix Frankfurter:

Didn’t enforce state law because very basis was that the state law is inadequate.

It must have enforced your rights under the Federal Constitution.

Edward P. Good:

Not only under the due process clause but under the equal protection of the law.

Felix Frankfurter:

Alright whatever it is, but if the U.S. constitution was at stake in the decision the law, not Pennsylvania law, is that right?

Edward P. Good:

Yes.

Felix Frankfurter:

The District Court moved in because it thought the state law was not doing you justice.

That’s a correct statement, isn’t it to what happened —

Edward P. Good:

That’s correct.

Felix Frankfurter:

Would you be good enough to give us references to what you deem to be controlling Pennsylvania decisions of the Supreme Court of Pennsylvania on the basis of which you can say that it wasn’t prophesy as to whether Pennsylvania Supreme Court would or wouldn’t protect you, that it is so clear there is no doubt that Pennsylvania said your easement is no compensable interest.

Edward P. Good:

Yes, sir.

Felix Frankfurter:

And settle this question.

Edward P. Good:

On page 16 of our brief, we cite Brewer versus Commonwealth.

Felix Frankfurter:

Page 16?

Edward P. Good:

16 of our brief.

Felix Frankfurter:

Of your final brief.

Edward P. Good:

In Brewer versus Commonwealth the Supreme Court of Pennsylvania said, “It is of course not open to dispute that before the Commonwealth can be made to answer in the present state of the statute of law for damages in cases of highway improvement, there must have been taking of the complaining property owners’ land.”

Felix Frankfurter:

You mean that — I am to read that – that’s the pronouncement by the Supreme Court of Pennsylvania that only physical taking of physical as.

Edward P. Good:

Precisely Your Honor.

Felix Frankfurter:

I would have to look up and find out what the facts in that case were.

Edward P. Good:

Well, this case as in several others the one cited —

Felix Frankfurter:

I suppose, what was the controversy about?

Edward P. Good:

It was a change of grade case if I remember correctly Your Honor, in which through a change of highway of an engineering development, the physical access of the abutting property owner was — that was destroyed or cut off.

And the court there decided as it has in this Soldiers and Sailors Memorial Bridge case and the Brewer case and several others, each of the case cited involved not a simply a statutory a declaration of access this is the first of that nature.

The precedents have all involved a physical change and during development of — building of a bridge that has barred access of an abutting property owner to a highway.

Felix Frankfurter:

But Pennsylvania is unique in having the such a holding?

Edward P. Good:

Oh no, Your Honor, but other — but in most other states since the development of an non-access highway concept in a compendium that the Court will find cited in our brief in 43 AOR 2nd, the authorities are — or a marshal they are very clearly and show that most states as the question has come up have now conceded that access is a compensable right.

Felix Frankfurter:

Has this Court have said that affirmatively that it is or it isn’t as an abstract proposition?

Edward P. Good:

It has, Your Honor, in some early cases, the case of Donovan versus the Pennsylvania Company cited in our brief which has said, “An earlier edition of (Inaudible) on this corporations to the effect that access is a compensable right.”

Felix Frankfurter:

Is or isn’t?

Edward P. Good:

It is.

Felix Frankfurter:

Well then, you are protected by the decision of this Court?

Edward P. Good:

But the case is not a clear one because of some earlier cases of this Court which the Attorney General has cited of Sauer versus New York, which was involved within this question of a viaduct built in the City of New York.

There, a decision was made that if the State of New York would decide that access in that case of light and air was not compensable this case it would not enter — this Court would interfere.

Now, it’s our position that that —

Felix Frankfurter:

But I happen to know that.

That case rested on a lot of New York — a lot of New York legislation and law, and contract law et cetera, et cetera.

Edward P. Good:

And was later reversed and affected in any event.

Felix Frankfurter:

(Inaudible)

Edward P. Good:

In Halo officially.

Felix Frankfurter:

But that rested on special New York legislation.

Edward P. Good:

But it —

Felix Frankfurter:

But your own statement indicates that it’s the best doubtful what effect (Inaudible) was right or wrong and say — it claims that doubtful but I got to (Inaudible) and the District Court said no in the question on processing, we are not going to decide it absolutely.

Isn’t it?

Edward P. Good:

That’s right, Your Honor.

Felix Frankfurter:

I don’t think they are wrong on their constitutional law.

All I have saying is they anticipated what this Court might do.

Edward P. Good:

What we feel that District Court did was act as any court as a court of equity is entitled to do when an eminent domain statute is about to be enforced and the right of the property owner to be compensated is not clear an injunction is indicated.

Now, there are other defects, other invalidities in this statute which we like to call to the Court’s attention.

This Section 8 of the statute which is the only part that we have complained about which is printed in the appendix of the appellant’s brief, indicates a discussion as to the construction and designation of the highway.

Now, in the case of construction, to read further into the end of the section, the road to damages is fully set forth.

But the word designation does not appear in that subsequent — in the subsequent clauses of Section 8 so that on the face of the statute, the property owner who was affected by a construction of a non-access highway is given in the statute the road to the Board of Viewers and to compensation.

The one who is affected as our point is by our by designation is not given the clear road.

He must seek his remedy through the general law of the state which means you must come in to the court and into the Board of Viewer who are to — which is not citizen court but which would be governed by these decisions of the State Supreme Court and say at least initially that you are not entitled the damages.

Now, to go on further in Section 8, we specially wanted to call the Court’s attention to the provision that municipal subdivisions once they decided to pay compensation could then get contributions from the Commonwealth to assist in the payment of this compensation to property owners who are damaged by the construction or designation of the highway.

This leaves the whole situation completely in the air.

It is only reasonable for the plaintiffs to predict in that situation that in Moon Township, if the abutting property owners happen to have a friend on the township, among the township commissioners or supervisors, then the township would conceivably pay them a dollar for the lost of access and then the Secretary of Highways can come in and contribute several thousand more dollars in contribution to this payment of damages.

Now, in neighboring north Finely Township if the abutting property owner doesn’t happen to be in political or personal sympathy with the commissioners, there is no remedy provided.

There are two complete discretionary actions here required. First, moving on the part of the township supervisor or commissioners and then secondly the discretion on the part of the Secretary of Highways to pay or not to contribute or not to contribute.

Hugo L. Black:

May I ask you this?

I want to be sure of what your pleading, is there any doubt in your mind that the Court — this Court should hold or Pennsylvania should hold — Pennsylvania Supreme Court should hold that you entitled tor recover full and complete damages that you prove a connection with denial of access, that you are deprived of a right to sue Pennsylvania in some way and it will be denied interest or what is it?

Do you think you can get interest if —

Edward P. Good:

We doubt it, that our rights are clear in that situation.

Hugo L. Black:

Well, you doubt that you have a right under this — into this act to bring suit and after the reviewer’s act you can get a trial before jury and get this Court to charge that they must give the full constitutional compensation with interest from the time you were denied access to your property?

Edward P. Good:

If the Commonwealth goes ahead with the condemnation after such a statement then we would — then we would get — probably we would get compensated.

Hugo L. Black:

Well, I am not talking about after such statement.

Do you have any doubt that you now have the right to file such a suit and take it up before the Viewer and get all the damages you can prove plus interest even including denial of access if this Court holds that that’s a compensable element unconstitutionally?

Edward P. Good:

Yes, we do.

Hugo L. Black:

Do you have any doubt about you having the right to sue?

Edward P. Good:

Yes, there is because in Pennsylvania the right to the Commonwealth must be established by statute and —

Hugo L. Black:

Well, it doesn’t have to be established by statute if the statute violates the Constitution of United States.

Edward P. Good:

Well then there is —

Hugo L. Black:

You do have a right, do you not, to recover whatever the constitutional — the constitution allows you to get for taking your property or if you want to call it taking, denying your access?

Edward P. Good:

Not from the Commonwealth itself.

Hugo L. Black:

Is there anything it clogs you?

Are there any obstacles in your way to pursuing that cause of action and getting full amount of damages plus interest?

Edward P. Good:

Yes, Your Honor, there is the long standing law in Pennsylvania.

Hugo L. Black:

That’s Pennsylvania.

Suppose Pennsylvania law is bad and this Court holds it’s bad that you entitled to full compensation for denial of access, are there any hurdles in your way to getting it?

Edward P. Good:

I would not want to say Your Honor that this Court could direct the Commonwealth of Pennsylvania or its agents acting for the Commonwealth to submit to suit.

Now it may be a little bit —

Hugo L. Black:

But notice —

William J. Brennan, Jr.:

By change of the Pennsylvania Supreme Court were to say that this was not a taking within this statute and this Court were to say, “Well, that construction is unconstitutional under the Federal Constitution.”

Is what you are telling us this?

That then there’d be no way despite this Court having said that construction was unconstitutional, there is no procedure under Pennsylvania laws by which you could be compensated, is that what you are tell us?

Edward P. Good:

I’m saying it is questionable Your Honor.

It is not so clear and certain as to remove our right to equity.

Felix Frankfurter:

But in all events this Court could enjoin officials of Pennsylvania from carrying out a statute which we deem to be unconstitutional unless they pay you first?

Edward P. Good:

That’s correct, Your Honor, and if the question —

Felix Frankfurter:

As you actually — I notice you sued Governor of Pennsylvania, how did you get leave to sue him?

You got leave (Inaudible) we could order him to (Inaudible)

Edward P. Good:

If this Court does so order here now, then the plaintiffs will certainly be content, if this Court orders the lower court that to remold this decree or if this Court enters a decree that the defendants may not proceed to convert this road to a non access highway without payment of compensation for the loss of access.

Felix Frankfurter:

You ask us to do that after your lawsuit in the State Court of Pennsylvania.

Edward P. Good:

Well, Your Honor, at the point that come up here possibly on a petition for certiorari but this way we were confident that if we lost in this — in the District Court we have the right of appeal that was that — it was a question of how to get before Your Honors at the time and we chose the route via the District Court, the way that it is provided, I mean first going to District Court following the provision that Congress is set up for us to allow a three-judge court to enjoin the enforcement of a non-constitutional state law.

Charles E. Whittaker:

How did you pass it that up here (Inaudible)

Edward P. Good:

That’s correct.

Charles E. Whittaker:

(Inaudible)

Edward P. Good:

That’s right Your Honor.

Edward P. Good:

If it was a question at that time as to seek an uncertain and a rather weak petition certiorari or going back to the District Court with the knowledge that we would then have the right of appeals.

Felix Frankfurter:

Isn’t that right?

Either the state court gives you relief or it doesn’t give you relief and if there is no means by which in the state court by which a state court has decided that you haven’t got any means of protecting your constitutional right then you can come up and object to such a decision as itself a denial of a constitutional right.

Edward P. Good:

Oh there Your Honor it’s a question of — of how to come before this Court and we chose one route.

If the Court now feels that it was unwise – nevertheless they — we are now before you and we can ask you for a relief on the basis of the case as it stands now.

Felix Frankfurter:

My difficultly is not with your Mr. Good, but with the court below.

Edward P. Good:

I understand that Your Honor.

I like to raise another point with the Court that we raised below.

This if not one of general law, but applying peculiarly to this particular instance to these plaintiffs, that is the question of estoppel.

Now, estoppel is rarely given against officials of a state.

However, there is a situation here that amounts almost to a conspiracy.

In the first place the county which is the creature and the agent of the Commonwealth in Pennsylvania took this highway and built it.

Now, I should explain to the Court that the — from Pittsburgh, from Downtown Pittsburgh to this Greater Pittsburgh Airport is a distance of about 20 miles.

From Pittsburgh out to the intersection of Route 22 and 30, the Commonwealth of Pennsylvania built a four-lane highway, a brand new beautiful four-lane high speed highway with no access.

They stopped there and Allegheny County undertook to construct the last five miles from this intersection out to the airport.

Now, the record shows is very clearly and as a matter of fact it’s been stipulated that at the time of this condemnation or purchase and construction, the county authorities, the county expert witnesses, everybody on the country side said, “But your damages should be low because you are getting the benefit, you are getting the advantages of this fine four-lane highway” and they pointed to other similar developments in the county — in the area where the commercial advantages became tremendous and of course that was conceded.

Although there were arguments as to whether plaintiffs or the predecessors — or entitle — the plaintiff would be entitle to take — that would be allowed to take advantage to them because of the peculiar topography, nevertheless, that was the position that was pointed out.

Now, a few years later, the Commonwealth comes in and says, “Having paid you on the basis of your commercial advantages by decree, we are taking them away from you without further compensation.”

Now if — this — this we feel works an estoppel in itself but there is another — there is an added step there.

At one point in the proceedings, the assistant Attorney General explained to the court that — except for this newspaper item, nothing was going to be done officially until zoning laws were passed along this highway to zone them from unzone down to residential so as to reduce the price.

These three steps in effect show what can be characterized to the scheme on the part of the Commonwealth praiseworthy as it maybe from the taxpayers’ point of view to get this property at a cut-rate.

And we feel that in itself this is a situation aside from a general law where these individual plaintiffs and appellees are entitled to relief.

This Court is entitled to tell the Commonwealth of Pennsylvania, that is the defendants, that they cannot act in this manner and under the statute until these questions are straightened out, until it becomes clear that they can’t bar our access without knowing that they’ll have to pay for it.

And this will be a service to the Commonwealth as well because who can tell that they are going to go ahead and condemn this highway if there is no assurance or if they know they’ll have to pay for it.

Thank you.

Earl Warren:

Attorney General, do you have something?

Anne X. Alpern:

I think in fairness, we should point out that on the question of the matter of going before Board of Viewer which was asked by several of the justices, the Supreme Court of Pennsylvania has already stated in this particular case that the parties have a right to go before the Board of Viewer and then have their constitutional rights determined.

So that it specifically stated we cannot say fairly it seems to me that there is no area of procuring a decision by the Supreme Court.

All that the Supreme Court said, is that the decisional law of Pennsylvania was that the Court of Equity cannot decide eminent domain proceedings and each case has to be tried and this is a forum, the Board of Viewer proceed with that forum.

Now, the parties refused to proceed with that forum and thought they had a shorter route by coming here but there is no short route to an eminent domain case.

Anne X. Alpern:

It’s like divorce, it’s between two parties.

It’s an individual person.

It can’t be – in — it can’t be just general, it has to be between the two people, between the Commonwealth and Mr. Creasy or the Commonwealth and another plaintiff.

It just cannot be at large and until you examine the specific facts of every case, no one can tell what Supreme Court of Pennsylvania will say or do where the problem comes up from the Board of Reviewer and the Common Police Court.

Earl Warren:

We’ll recess now.