Barney v. City of New York

after making the foregoing! statement, delivered the opinion of the court.

The jurisdiction of the Circuit Court was invoked upon the ground that by the tunnel.construction sought to be^ enjoined, complainant was deprived of his property without due process of law, in violation of the Fourteenth Amendment. But that amendment prohibits deprivation by a State, and here- the bill alleged that what was done was without authority and illegal'.

The city acts through the Rapid Transit Board, which possesses the powers specifically vested. It is empowered to prescribe the routes and general plan of any proposed rapid transit railroad within the city, and every such plan must “contain such details as to manner of construction as may be necessary to show the extent to which.any street, avenue or other public place is to be encroached upon and the property abutting thereon' affected.” Consents' of the municipal authorities and the abutting property owners- to construction on the routes and plan adopted must be obtained, and any change in the detailed plans and specifications shall accord with the general plan, of construction, and,'if not, like consents must be obtained to such change.

The bill asserted that the easterly tunnel section under Park avenue’was not within the routes and general plan consented to, and that the construction was unauthorized. And this is the view taken by the Supreme Court of New York. Barney v. Board of Rapid Transit Commissioners, 38 Misc. Rep. 549; Barney v. City of New York, 39 Misc. Rep. 719; Barney v. City of New York, S3 App. Div. (N. Y.) 237.

Thus the bill on its face proceeded on the theory that the' construction of the easterly tunnel section was not only not authorized, but was forbidden by the. legislation, and hence was not action by the State of New York within the intent and meaning of the Fourteenth Amendment, and the Circuit Cgurt was right in dismissing it for want of jurisdiction.

Controversies over violations of the laws of New York are *438 controversies to be dealt with by the courts of the State. Complainant’s grievance was that the law of the State had been broken, and not a grievance inflicted by action of the legislative or executive or judicial department of the State; and the principle is That it is for the state courts to remedy acts of state officers done without the authority of or contrary to state law. Missouri v. Dockery, 191 U. S. 165; Civil Rights Cases, 109 U. S. 3; Virginia v. Rives, 100 U. S. 313.

In Virginia v. Rives, referring to an alleged denial of civil rights on.account of race and color in the empaneling of a jury, the laws of Virginia in respect of the selection of juries appearing to be unobjectionable, Mr. Justice Strong, speaking for the court, said: .

“It is evident, therefore, that the denial of inability to enforce in the judicial tribunals of a State, rights secured to a defendant by any law providing for the equal civil rights of all persons citizens of the United States, of which sec. 641 speaks, is primarily, if not exclusively, a denial of such rights, or an inability to enforce them, resulting from the constitution or laws of the State, rather than a denial first made manifest at the trial of the case. In other words, the statute has reference to a legislative denial or an inability resulting from it. . . .

“When a statute of the State denies his right, or interposes a bar to his enforcing it, in the judicial tribunals, the presumption is fair that they will be controlled by it in their decisions ; and in such a cáse a defendant may affirm on oath what is necessary for a removal. Such a case is clearly within the provisions of sec. 641. But when a subordinate officer .of the State, in violation of state law, undertakes to deprive an accused party of a right which the statute law accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, ‘in the judicial tribunals of .the State’ the rights which belong to him. In such a case it ought to be presumed the court will redress the wrong. If the accused is deprived of the right, the final and practical denial will be in the judicial tribunal which tries the case, after the trial has *439 commenced. .If, as in this case, the subordinate officer whose duty it is to select jurors 'fails to discharge that duty in the true spirit of the law; if he excludes all colored men solely because they are colored; or if the sheriff to whom a venire is given, composed of both white and .colored citizens, neglects to summon the colored jurors only because they are colored; or if a clerk whose duty it is to take the twelve names from the box rejects all the colored jurors for the same- reason, — it can with no propriety be said the defendant’s right is denied by the State and cannot be enforced in the judicial tribunals. The court will correct' the wrong, will quash- the indictment or the panel, or, if not, the error will be corrected in a superior court. We cannot think such cases are within the provisions of sec. 641. Denials of.equal rights in the action of the judicial tribunals of the State are left to the revisory powers of this court.”

In the Civil Rights Cases, in which the court was dealing with the act of March 1, 1875, 18 Stat. 335, c. 114, Mr. Justice Bradley said:

“In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority .in the shape of laws, customs, or judicial or executive proceedings. The -wrongful act of an individual, unsupported by any .such authority, is simply a private wrong, or a crime of that individuál; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned ■in some way by the State,'or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress.”

There are many eases in this court involving the application of the Eleventh Amendment which draw the distinction between acts of public officers virtute officii, and their acts without lawful right, colore officii; and in Pennoyer v. McConnaughy, 140 U. S. 1, Mr. Justice Lamar defined the two classes to.be, *440 those brought against officers of the State as representing the State’s action and liability, and those against officers of the State when claiming to act as such without lawful authority. The subject is discussed at length and the cases cited in Tindal v. Wesley, 167 U. S. 204, and Fitts v. McGhee, 172 U. S. 516. Appellant’s counsel rely on certain expressions in the opinion in Ex parte Virginia, 100 U. S. 339, but that was a case in which what was regarded as the final judgment of a state court was under consideration, and Mr. Justice Strong also said: “Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and-as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.”

And see Manhattan Railway Company v. City of New York, 18 Fed. Rep. 195; Kiernan v. Multnomah County, 95 Fed. Rep. 849; In re Storti, 109 Fed. Rep. 807.

Scott v. McNeal, 154 U. S. 34, and Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U. S. 226, are cited by appellant, but in those cases judgments of the highest judicial tribunals of the State were treated as acts of the State, and'no question of the correctness of that view arises'here.

And so in Reagan v. Farmers’ Loan & Trust Company, 154 U. S. 362, the general assembly of Texas had established a railroad commission and given it power to fix reasonable rates, with discretion to determine what rates were reasonable. The act provided that suits might be brought by individuals against the commission “in a court of competent jurisdiction in Travis County, Texas,” and a citizen of another State sued them in the Circuit Court of the United States for the district which embraced Travis County, and this was held to be authorized by the state statute.

And as the establishment of rates by the commission was the establishment of rates by the State itself, and the determination of what was reasonable Was left to the discretion of the com *441 mission, their action could not be regarded as unauthorized, even though they may have exercised the discretion unfairly.

Similarly in Pacific Gas Imp. Company v. Ellert, 64 Fed. Rep. 421, where a public board was given power to improve streets, and proceeded in excess of its powers but not in violation of them, its action was regarded by Mr. Justice McKenna, then Circuit Judge, as state action.

In the present case defendants were proceeding, not only in violation of provisions of the sta$e law, but in opposition to plain prohibitions.. '

Section 5 of the act of March 3, 1875, 18 Stat. 470, c. 137, provided that if in any suit in the Circuit Court it should appear, to the satisfaction of the court, at any timé, that the suit did not really and substantially involve' a dispute or controversy properly within its jurisdiction, the court should proceed no further, but dismiss the suit. The last paragraph of this section was in terms repealed.by the act of March 3, 1887, 24 Stat. 552,- c. 373, reenacted August 13, 1888, 25 Stat. 433, c. 866, (the part repealed not being material here,) but otherwise the section remained and remains in full force. This case went off on the motion for preliminary injunction, and the bill was properly dismissed, whether treated as if heard on démurrer, or on the proofs by affidavit.

Decree affirmed.