Walker v. Hutchinson City

PETITIONER:Walker
RESPONDENT:Hutchinson City
LOCATION:Kingsley Books, Inc.

DOCKET NO.: 13
DECIDED BY: Warren Court (1956-1957)
LOWER COURT:

CITATION: 352 US 112 (1956)
ARGUED: Oct 15, 1956 / Oct 16, 1956
DECIDED: Dec 10, 1956

Facts of the case

Question

  • Oral Argument – October 16, 1956
  • Audio Transcription for Oral Argument – October 16, 1956 in Walker v. Hutchinson City

    Audio Transcription for Oral Argument – October 15, 1956 in Walker v. Hutchinson City

    Earl Warren:

    Number 13, Lee Walker versus City of Hutchinson, Reno County, Kansas et al.

    Mr. Levy, you may proceed.

    Herbert Monte Levy:

    May it please the Court.

    This case involves the issue of the constitutionality as against Due Process Clause of the Fourteenth Amendment of a statute of Kansas which permits the assessment of damages in condemnation proceedings upon publication, one time in the local city official paper of notice of the condemnation proceedings.

    There is an alternative method provided in the statute for personal service which was not given to the petitioner here.

    Petitioner here never received actual notice of the condemnation of his lands or of the assessment of damages, brought an injunction action to restrain the city from taking over the property, pressed his constitutional point hard and we are now here in regard to that constitutional point.

    Earl Warren:

    Where did petitioner live, Mr. Levy?

    Herbert Monte Levy:

    The petitioner —

    Earl Warren:

    He lived in the city?

    Herbert Monte Levy:

    Yes, sir.

    The petitioner lived in the City of Hutchinson which was also in the same county.

    That’s on page 2 of the record.

    Earl Warren:

    Yes.

    Herbert Monte Levy:

    I might add that — well, I think I’ll omit that for the moment.

    Harold Burton:

    Did he live on the very premises that were at issue?

    Herbert Monte Levy:

    Yes, he did, Your Honor.

    Actually, that does not appear clearly from the record.

    There’s no statement to that effect, but his address is given on page 2 of the transcript.

    His address is the same property as that which was condemned, only part of it was condemned.

    You can’t tell it without looking at the maps, but I assume that we could take judicial notice of that.

    Stanley Reed:

    Was that — is there a single notice or oath taking as a compensation?

    Herbert Monte Levy:

    That’s correct, Your Honor.

    There was no notice as in the point.

    Stanley Reed:

    Was the compensation fixed on the same day it was taken?

    Herbert Monte Levy:

    No, there was the — as I understand the proceedings, they first would declare the property taken, then publish a notice of assessment of damages.

    And that was the only thing that was published, I imagine —

    Stanley Reed:

    What — what was published?

    Herbert Monte Levy:

    The notice that was published was a statement as to when and where damages would be taken.

    Notice of condemnation, it reads.

    Stanley Reed:

    Well (Voice Overlap) —

    Herbert Monte Levy:

    It’s on page 7, page 7of the transcript.

    Felix Frankfurter:

    Page what?

    Herbert Monte Levy:

    Page 7 of the transcript, sir.

    The notice is that application has been made to a local judge to appoint commissioners to take an appraisal of the land and make assessment of the damages.

    Now, this is all that was ever published or that was ever required to be published.

    Your Honors may note that Mr. Walker’s name, if you could find it quickly is in the second full paragraph there, it’s the fourth line from the bottom in the centre.

    Actually, 25th and a list of 33 names, and this was the only notice ever published.

    The alternative method was not taken.

    Felix Frankfurter:

    You’re attacking the statute.

    You’re — this is not a case of — this is not a suggestion, it is pertinency discrimination.

    Herbert Monte Levy:

    No.

    Felix Frankfurter:

    Does the state — statute, attack on the statute?

    Herbert Monte Levy:

    That’s correct, Your Honor.

    Felix Frankfurter:

    And what is involved in the (Inaudible)

    Herbert Monte Levy:

    That’s right.

    It’s — on its face and as applied to this particular point that there was —

    Felix Frankfurter:

    Well, that’s what it was.

    When you say as — as applied to this plaintiff, you make a point of the — of the state of culture or to this particular plaintiff?

    Herbert Monte Levy:

    Well, some statutes may —

    Felix Frankfurter:

    Well, this isn’t Yick Wo case, that’s what I want —

    Herbert Monte Levy:

    No, I don’t think it’s the Yick Wo case at all.

    Felix Frankfurter:

    All right.

    Herbert Monte Levy:

    No claim of that, sir.

    In fact, we set forth in our jurisdictional statement that generally, the City of Hutchinson and the neighboring counties insofar as we are able to find out had always proceeded by this one-notice method and by no other ways.

    Felix Frankfurter:

    If this — these were allowed?

    Herbert Monte Levy:

    No.

    Felix Frankfurter:

    (Inaudible)

    Herbert Monte Levy:

    No, no such contention at all.

    Stanley Reed:

    Was there any declaration of taking at all, something correspond to what we have in the federal courts of declaration of taking?

    Herbert Monte Levy:

    No, sir.

    Stanley Reed:

    Did they ever — they never — there was no publication, no — no resolution that they would need this land?

    Herbert Monte Levy:

    No, the only publication was this one notice that appears in page 7 of the transcript.

    Stanley Reed:

    Well, how — this was done by the — by the City of Hutchinson.

    They passed a resolution or something?

    Herbert Monte Levy:

    Yes, they did.

    Stanley Reed:

    That said this particular piece of property was to be taken?

    Herbert Monte Levy:

    Right, amongst others.

    That was not — never published anywhere.

    Stanley Reed:

    So there was this — that — that they simply went out and staked it all?

    I’m just trying to (Voice Overlap) —

    Herbert Monte Levy:

    Yes.

    Stanley Reed:

    — if we find out.

    Is that a distinction between the taking and compensation?

    Herbert Monte Levy:

    Right.

    Well actually, the taking would have been complete, I think, by the time of the publication of the so-called notice of condemnation which is really a notice of appraisal.

    I think that taking would have been complete then and we aren’t raising any constitutional objection on the taking as to lack of notice on that.

    Stanley Reed:

    It’s purely on the assessment of damages.

    Herbert Monte Levy:

    That’s right.

    We don’t need — we — the question hasn’t been raised.

    Had it been raised, I would have liked to have pressed the point that even a legislative taking should require some notice, but it hasn’t been raised below and I don’t think I’m entitled to raise that question here, sir.

    Stanley Reed:

    Very well.

    As — as I understand it, the Federal Government takes without notice, so I suppose you could do.

    Herbert Monte Levy:

    Yes.

    Well —

    Stanley Reed:

    That’s — that’s a different problem.

    That problem isn’t here.

    Herbert Monte Levy:

    Correct.

    Stanley Reed:

    This is purely a problem that you didn’t have any notice of the time and place where it was to be assessed.

    Herbert Monte Levy:

    Correct, or that it was going to be assessed.

    Or that it was going to be assessed in the first place.

    Stanley Reed:

    You’ve assessed.

    Herbert Monte Levy:

    That’s right.

    Stanley Reed:

    Purely assessment, not — not taking?

    Herbert Monte Levy:

    That’s right.

    Harold Burton:

    Do you distinguish this case in any way from the Court of Appeals, the Tenth Circuit case in Wichita involving the comparable statutes?

    Herbert Monte Levy:

    I think the exact same Section of the statute was involved, I don’t see any way to distinguish it.

    I think that the decision in this case means of course an overruling of the Collins case too.

    Harold Burton:

    As you’re overruling both the Supreme Court of Kansas and the — and the circuit — the Tenth Circuit?

    Herbert Monte Levy:

    Yes, Your Honor.

    Although frankly I’m a little puzzled as to the effect of overruling a decision when the Court has denied certiorari in that decision, I’m not sure just where that leaves everyone.

    Felix Frankfurter:

    It would apply the (Inaudible)

    Herbert Monte Levy:

    No, I mean it makes that.

    Our actual point of course is the constitutionality of this particular statute.

    First, the idea that you have notice by one publication, secondly, the type of publication where the name vary.

    And thirdly, the real question as to whether what kind of notice is necessary in any proceeding pursuant to condemnation to establish damages.

    Now, I think that I might, at this point before I go on further, clarify one other point.

    There is a right to appeal from the decision of the assesses fixing the damages.

    And in the North Laramie case, which is cited in my brief, it was indicated that as long as there is that right to appeal and there is publication of the decision, the second publication after the first, that in that particular case, all of the rights of the rights of the owner of the property had been preserved.

    I might add by the way that the record in the North Laramie case shows that the complaining party actually had notice pursuant to the publication after the assessment, the appraisal of damages, that he actually had notice of the appraisal of damages and he did not exercise his right to appeal, and this Court I think quite properly threw him out.

    In our case, there again would be a right to appeal to the courts from the appraisal.

    But again, there is a 30-day limitation on that, and again, no notice was given by publication or any other way of the actual fixing of the damages on appraisal.

    So that this man never had any notice at any time and the only publication was one publication one day, and there was no other notice at all, even though the statute provides an alternative method.

    Stanley Reed:

    And how — how long does he have to appeal?

    Herbert Monte Levy:

    30 days after the —

    Stanley Reed:

    It is your case.

    Herbert Monte Levy:

    That’s right.

    It was the same with the North Laramie.

    The decisions of this Court, more recently I think, spell out very clearly that the distinctions between in rem and in personam actions are not the controlling factors in a case such as this.

    The real question is the adequacy of the notice whether it’s reasonably calculated to reach the parties concerned.

    And the two leaning cases on that, the most recent ones, neither of which were alluded to by either the Court of Appeals for the Tenth Circuit or the Supreme Court of New Mexico are the Mullane and the City of New York cases both cited again in my brief.

    Harold Burton:

    The Supreme Court can (Inaudible)

    Herbert Monte Levy:

    These are two cases and — did I say New Mexico?

    Harold Burton:

    Yes.

    Herbert Monte Levy:

    That’s because Your Honors granted cert to me in the New Mexico case last Monday and I must have it on my mind.

    Sorry for that.

    In the Mullane case, the — a trustee of one of these trusts in which common funds are pooled was allowed to give notice merely by publication in New York newspapers of various proceedings not by the way working a forfeiture but relating merely to an accounting of the trustee.

    Four publications were required.

    This Court held that even with four publications required that this was not sufficient whether or not you call the action an in rem or an in personam proceeding.

    And they said that where the addresses are known, as they are known here, actual notice must be given.

    And again, there is no reason why that shouldn’t be done here.

    Now, in the Mullane case by the way, there were four publications, here there was one publication.

    In the Mullane case, actual notice of the statute pursuant to which publication was all right was given to the parties affected.

    And here, not only was there no actual notice of the statute but the statute provided alternative means of giving notice and there was really no reason at all for this particular man, this petitioner here, to think that he would be given notice by one publication rather than by any other method.

    Now, this Court went even further in the City of New York case where you had a clearly in rem proceeding, which affected the rights of a creditor, which was the City of New York.

    And the City of New York was given publication notice twice a week in five papers.

    In other words, approximately 10 notices.

    And the City of New York of course has several hundred people that work in its corporation counsel’s office, not to say many thousand agents.

    And this Court held that in the City — in the City of New York case that the notice by publication given to the City of New York in a clearly in rem proceeding was not enough notice.

    Why?

    Because the City of New York could have actually and easily been reached and it was not reached.

    It could have gotten a mail notice just as Mr. Walker could have gotten here.

    Now, there is really no reason that we can see, Your Honors, why the rule originally formulated by the rigors of necessity in the 1880s if you please, why the rule permitting notice by publication should be extended to cases of residence of a community, who can easily be given actual notice.

    We say also that even where such actual notice not required that this notice by one publication is so ephemeral and so elusively as to be more fantastic really than even a fantasy or an illusion.

    I can think of a no other less quantitative and qualitative notice than perhaps having a skywriter making lazy circles in the sky over the Supreme Court building spelling out the notice of condemnation, though I think that would get considerably more notice than this one publication did.

    It of course was not —

    Harold Burton:

    But you have to raise this criticism not only to the point that it’s not as the best policy, not a good policy but that it’s contrary to federal due process, although it’s been going on for generations.

    Herbert Monte Levy:

    Well, that — it is my exactly — point that it is contrary to due process.

    That’s the issue, Your Honor.

    And as to it’s going on for generations, may I say that this does — this statute does not come with a usual hoary antiquity that most statutes come to — come with to this Court because the statute of Kansas so far as I have been able to find, so far as Mr. Littooy has been able to find, the statute of Kansas is unique in permitting publication and permitting notice by only one publication.

    When you go through the various cases that are cited in my opponent’s brief — I propose to reserve that for rebuttal if the Court pleases on that, you’ll find (Voice Overlap) —

    Harold Burton:

    (Voice Overlap) different if the said two publications?

    Herbert Monte Levy:

    No.

    I would say there was no difference there.

    I would say still, where you can reach the man, due process requires as this Court held it did in Mullane and in City of New York, due process requires that some effort be made actually to reach him if his address is known.

    And that if isn’t known, there must be some reasonable efforts made to find it out.

    That that —

    Harold Burton:

    We should know that’s not due processes here in Kansas under this recent statute, what is put — what had happened to be old statute in the eastern part of the country.

    Herbert Monte Levy:

    The old statute?

    Pardon?

    Harold Burton:

    What had happened to like statutes in the eastern part of — of the country that were older, to point the things between the old statutes and the new statutes?

    Herbert Monte Levy:

    Well, I think that you will find that in the — are — are you speaking about the Kansas statutes or —

    Harold Burton:

    I mean I thought that you — you made a point of fact that the Kansas statute was not a hoary and ancient statute but it was a — a recent statute.

    And I said if we rule on the recent statute, you also rule on the ancient (Inaudible)

    Herbert Monte Levy:

    Well, I — I think I may have misled you, Your Honor.

    Let me try and make myself a bit clearer.

    What I am saying is that there has never been a statute in any other States so far as I know permitting publication — service by publication with one publication.

    There have been statutes in other States and even federal statutes permitting service by publication, but I think that one — when one goes into them and analyses the records in the various cases, it will found almost universally that in most, if not all of those cases, there was an actual attempt made to reach residents for persons whose names and addresses were known.

    I might give you one illustration of that.

    For example in the case of Newman against Lynchburg, 236 U.S. which I cite for one proposition and my opponent cites against me — that was a case by the way where there seven publications and for all that you see in the opinion, service by publication was enough.

    Well, when you look at the record, the transcript of the record on page 6 of it, you find that in addition to publication, the United States Marshal was directed to serve a copy of the notice upon such owners as can be found within the District of Columbia where the case arose and upon tenants and occupants of the city.

    Hugo L. Black:

    What was the nature of that case?

    Herbert Monte Levy:

    That, Your Honor, was a case involving the question of whether a statutory compliance — whether there had been compliance with federal statutory rules in making a condemnation.

    There was no question of constitutionality in that case.

    The only question was whether the statute had been followed.

    Hugo L. Black:

    What was the litigation over, was to condemnation?

    Herbert Monte Levy:

    Yes, that was a condemnation case.

    There were seven publications by the way there —

    Hugo L. Black:

    Condemnation for what, public use?

    Herbert Monte Levy:

    Yes.

    As I recollect it.

    Felix Frankfurter:

    What’s the condemnation here for?

    Herbert Monte Levy:

    Condemnation here was for a public use for a public street, directs it.

    Felix Frankfurter:

    What was the public use?

    Herbert Monte Levy:

    Public street.

    Felix Frankfurter:

    Street and — and does the — how was the condemnation decided upon, the — the city of Florida?

    Herbert Monte Levy:

    The —

    Felix Frankfurter:

    (Inaudible)

    Herbert Monte Levy:

    Yes, the Board of Commissioners, I understand.

    The City Commissioners decide that.

    Felix Frankfurter:

    Was there any talk about it, the Board of Commissioners meet in public?

    They meet in public, do you know?

    Herbert Monte Levy:

    They do, at the record at some —

    Felix Frankfurter:

    That they go into a court?

    And that —

    Herbert Monte Levy:

    That’s right.

    Felix Frankfurter:

    — they would like to have this piece of properties or — or a street —

    Herbert Monte Levy:

    That’s right.

    Felix Frankfurter:

    — and go wherever it is?

    Herbert Monte Levy:

    They —

    Earl Warren:

    Well, do (Voice Overlap) —

    Herbert Monte Levy:

    I think the — the order — the — now, the order of operation is — is a little — it’s just the opposite.

    They first go into court and then they give notice that they have gone into court.

    Felix Frankfurter:

    Yes, but — but —

    Herbert Monte Levy:

    And this is the one —

    Felix Frankfurter:

    — mostly an antecedent determination to go into court if it (Inaudible)

    Herbert Monte Levy:

    Yes, a resolution which again isn’t published anywhere as except insofar as it appears in this notice of condemnation?

    Felix Frankfurter:

    Well, in other words, to being in the district who advertises.

    Herbert Monte Levy:

    That’s right.

    And there’s no — no notice given to anybody of any sort.

    Felix Frankfurter:

    How do — is there a local paper that talk about it?

    Herbert Monte Levy:

    Well, there’s a local paper.

    I doubt that it never gets much publicity when they decide to get down the particular area.

    Felix Frankfurter:

    (Inaudible)

    Herbert Monte Levy:

    Sir?

    Felix Frankfurter:

    But I think in the old times (Inaudible)

    Herbert Monte Levy:

    Small print.

    Earl Warren:

    Mr. Levy, do you happen to know if Mr. Walker’s address was on the assessment role or in any other, any other document in the —

    Herbert Monte Levy:

    Yes, sir.

    Earl Warren:

    — city office or county —

    Herbert Monte Levy:

    Yes, sir.

    We’ve —

    Earl Warren:

    — offices?

    Herbert Monte Levy:

    — we’ve made the point he had always paid his taxes in assessments which means his address must have been on city rolls and that he had lived in the same address for 50 years on this property.

    Hugo L. Black:

    I don’t — I know.

    Earl Warren:

    He lived how long?

    Herbert Monte Levy:

    50 years on this piece of property.

    Hugo L. Black:

    Where was this piece of property?

    Herbert Monte Levy:

    In Hutchinson County in New York.

    Hugo L. Black:

    Right in Hutchinson.

    Herbert Monte Levy:

    Yes, sir.

    Hugo L. Black:

    Certainly, that’s — and that’s where courthouse was?

    Herbert Monte Levy:

    Courthouse?

    Hugo L. Black:

    Was the courthouse there and (Voice Overlap) —

    Herbert Monte Levy:

    The courthouse in which they did this.

    The courthouse is in Hutchison.

    Herbert Monte Levy:

    Yes, the courthouse is in Hutchinson.

    Stanley Reed:

    Well, was there any, was there any courthouse proceeding at any time?

    Herbert Monte Levy:

    Only going in ex parte to the court.

    Stanley Reed:

    Where — where does that appear in the record, what they did?

    Herbert Monte Levy:

    Well, that again is in page 7 on the notice of condemnation.

    Herbert Monte Levy:

    Public notice is hereby given as required by law that any application has in it.

    Stanley Reed:

    That — that’s what they had put up, isn’t it?

    That’s what they paste it up or have published in the newspapers.

    Herbert Monte Levy:

    Yes, this is what they had published.

    Stanley Reed:

    Well, did they file a proceeding in a court?

    Herbert Monte Levy:

    Yes.

    They had filed a proceeding before they started.

    Stanley Reed:

    No, who was made parties to that proceeding?

    Herbert Monte Levy:

    Ex parte as far as I know, correct sir?

    Mr. Oswald is from Kansas —

    Stanley Reed:

    No — no notice given —

    Herbert Monte Levy:

    No.

    Stanley Reed:

    — by the court officials.

    Herbert Monte Levy:

    Yes, Mr. Oswald would like to comment on that if he may, sir?

    A. Lewis Oswald:

    The proceeding there, may it please the court, is for the city governing court to pass a resolution.

    And the legal department of the city goes into the District Court on this matter and the court in that action appoints three appraisers, then they publish this notice which is addressed to all of the owners of the land and naming 35 of them here in each tracks, number of tracks.

    And that’s the only publication given.

    It was published once and there is no other service or notice of any kind going to any of the owners of the land or lien holders either resident or non-resident.

    William O. Douglas:

    And the court proceedings are ex parte?

    A. Lewis Oswald:

    That’s right.

    And these — these people have no notice of any kind except a single notice published in the publication on the (Voice Overlap) —

    Tom C. Clark:

    Does your law require illegal property by the commissioners?

    A. Lewis Oswald:

    I beg your Pardon.

    Tom C. Clark:

    Does your law require illegal property by the commissioners appointed by the court?

    A. Lewis Oswald:

    I believe so, Justice Clark, if it isn’t provided, it’s used in the tracks.

    It isn’t —

    Tom C. Clark:

    (Inaudible)

    A. Lewis Oswald:

    (Inaudible) or if — if they don’t contact the owners.

    Felix Frankfurter:

    How much of a stretch of — this is a street?

    A. Lewis Oswald:

    That’s right.

    Felix Frankfurter:

    And what was the length of the street that was to be made?

    A. Lewis Oswald:

    Well, there was a new sports arena put up, Justice, and they widened a street to make three lanes, one way and three lanes the other and then they cut through this man’s property right up to his front door or —

    Felix Frankfurter:

    And how many other people’s property — or what does — with this new cut made?

    A. Lewis Oswald:

    Well, there were 35 defendants.

    There are —

    Felix Frankfurter:

    35 separate parties?

    A. Lewis Oswald:

    There were 35 parties, there were 14 tracks.

    That’s on page 7 of the transcript’s record.

    Herbert Monte Levy:

    Running through to 9.

    Earl Warren:

    Well, we will adjourn now.