Respondent Brief in Opposition — Sinclair v. California

SUBJECT INDEX

PAGE

TINE. ° icra Rccsisaneetinnstininsanbaese her tvckeoccoaioe scant nacéaiomarcnncomenteers 1

I. ‘

Reasons for not granting petition.......... pila jobaus Paupennininicee- soe 4

A. A state highway is a public use... 200... Lect

B. Questions as to the location of highways are purely

legislative and political, outside the scope of judicial

I © s.cdictaspsnenicnscianeecicacin ce cocceshemmnstahiibaatessadieencndatipaibiitiiie 4

C. The “due process” clause of the United States Consti-

tution does not require a hearing preliminary to the

selection of a highway fOU0e..............--cccccccccercascccerscsesees.. ©

IT. ;

Fourteenth Amendment of the United States Constitution is

not an issue in this proceeding 2.000020 WY

Ree Mae URRY Lae ETRE, |

TABLE OF AUTHORITIES CITED

CASES PAGE

\dirondack Ry. Co. v. New York State, 176 U.S. 335, 44

Bcd NE Rc lsepclecniseansoinapsu etic gapacceeny (rcoiamitien aaron S. Gy 2,

Arieuma ¥. California, 23 (U.S. 423.0000 ocd G

Ashwander v. T. V. A., 24 U.S. 2BB...........

t- Metallic Co. v. Colorada, 298 U.S. SO0. oo .cccccccscscccssees 9,

Brave v. Weaver, 251 U.S. 57, 04 1.. Ed. 138. ........ PPR N IE

County of Los Angeles vo Rindge Co. 33> Calo App. 166,

Py Sree scarves esiasin

County of San Mateo vo Coburn, 130 Cal. 631, 63 Pac. 78,

‘County of Siskivou vy. Gamlich, 110 Cal 04, 42 Pace. 408...

Franchise Tax Board v. Superior Court, 3o Cal. 2d 538, 225

Havburn’s Case (1702), 2 Dallas

Holloway v. Purcell, 35 Cal. 2d 220, 217 1°. 2d o66............

(oklahoma vo Atkinson Co., 313 U2 8. 308,85 1. Ed. 1487

fone fet RAE HOR me. ay AS f

Joshn Mig. Co. ve Providence, 202 U.S. oe8. 67 L. Ed.

oar... Uprhat Fear uk s ere daie Geabaecanc’ ak sin Chaar. 5

Mississippt & Rum River Boom Co. v. Patterson, 98 U.S.

gee a! ee Ria abren ings neh ches sand se iatapenl staan

Nickerson ve San Bernardino, 170 Cal S18. 177 Pac. 468...

People ve"Chevahier, §2 Cal. 2) 204, 340 P. 2d 398

ym:

Rav v. Parker, 15 Cal. 2d 278, 101 BP. 2d ao3.. .... sais

Rindge Coc ove bos Amyeies County, 262 0. S. 700, 67

1. Pat. 1186 Petaess - ee

Sherman ve Buick, 32 Cal. 241

Q

: PAGEL

Shoemaker v. United States, 147 U.S. 282, 37, L. Ed. 1700.8. 7

Sinclair v. State of California, 194 A.C. A. 415... 3 ae 48

United States v. Gettysburg Elec. Ry. Co., 100 0. 5. 6608, 40

i, a, Piss 5

Wulzen v. Board of Supervisors, 10] Cal. 15, 35 Pae. 353.0... 9

| STATUTES

California Streets and Highways Code, Sec. 23.00.0000... a

California Streets and Highways Code, Sec. 23.5 0. 4

California Streets and Highways Code, See. 100.3 000.0... Rg

California Streets and Highways Code, See. 302(a)..........2, 10

United States Constitution, Fourteenth Amendment...............

/ me SF SA

Uaited States Constitution, Fourteenth Amendment, Sec. 1.... 1]

TEXTBOOK

12 American Jurisprudence, Sec. 618, p. 310.2... ae

IN THE

Supreme Court of the United States

OctToser TerM, 1961

No. 616

G. S. SINcLarr, ct al.,

Petitioners,

: zs.

STATE OF CALIFORNIA, et al.,

Respondents.

Respondents’ Brief in Opposition to Petition for a

Writ of Certiorari.

To the Honorable Supreme Court of the United States:

The respondents respectfully pray that a Writ of

Certiorari requested by petitioners in the above-en-

titled case not issue.

Introduction.

This case deals with a resolution selecting and adopt-

ing a route for a proposed freeway in a portion of San

Diego County, California.

On June 11, 1946, the State of California commenced

a study of the area between San Diego and Carlsbad.

California, tor the purpose of determining whether

U.S. 101 (California Legislative Route 2: California

conliions

. Streets and Highways Code, Sec. 302(a)) should’ be

relocated and improved to freeway siandards. Since

that time, over 38 public meetings and official hearings

were held considering the routing and type of highway

to be developed. On July 24, 1957, the route was se-

lected and adopted. [Clk. Tr. p. 4, lines 17-22.] Fol-

lowing the route adoption and before the complaint was

filed, more than 7 additional meetings and hearings were

held in connection with the route as located, selected

and adopted.

On March 13, 1959, a complaint was filed seeking

to challenge the route as located, selected, and adopted

- by the California Highway Commission. [Clk. Tr. p.

1.] Demurrers were interposed by respondents. [Clk.

Tr. p. 50 ct seq.| As evidenced by the Clerk's Tran-

script, the cause was amply briefed so that the Superior

Court of the State of California, in and for the County

of San Diego, had before it all the applicable law. The

arguments and hearing consumed one judicial day of

time. During the hearing, the Honorable Charles A.

Paulsen, Judge Presiding, inquired of petitioners’ coun-

sel and received the reply that all the matters which

petitioners could plead had been incorporated. The de-

murrers to the complaint were sustained without leave

to amend. [Cik. Tr. p. 134.] A motion to dismiss was

granted. [Clk. Tr. p. 134.]

An appeal was taken by petitioners to the California

District Court of Appeal, Fourth Appellate District.

On July 28, 1961, the District Court affirmed the judg-

~—

ment and the order. The written opinion of the Court

is reported in Advance California Appellate Reports,

Volume 22, Number 34, Pamphlet No. 3, and cited

as Sinclair v. State of California (1961), 194 A. C. A.

415. (Pet. for Writ of Certiorari, Appendix A.)

A petition for hearing after decision by the District

Court of Appeal was denied by the Supreme Court of

the State of California September 20, 1961. None of

the Justices were of the opinion a hearing should be

granted.

The Petition for a Writ of Certiorari is sought for

the purpose of reviewing the judicial determinations of

the San Diego Superior Court, the Fourth District

Court of Appeal and the California Supreme Court.

As developed in oral arguments, both in the San

Diego Superior Court and the Fourth District Court

of Appeal, the real issue sought to be raised is whether

the highway should be constructed in the location where

the California Highway Commission determined it

should be located or somewhere else, i.c.: along the

“Green Valley Route’ proposed by plaintiffs.

In any event, there is no question but that the pro-

posed freeway is for a legitimate public use.

siiiildi

I.

Reasons for Not Granting Petition.

The California courts have decided no tederal ques-

tion of substance which had not been theretofore de-

termined by the United States Supreme Court:

A. A State Highway Is a Public Use.

It has been universally recognized from time immemo-

rial that a highway is a legitimate public use.

Rindge Co. v. Los Angeles County (1923), 262

U. S. 700, 706. 67 L. Ed. 1186, 1192.

People v. Chevalier (1959), 52 Cal. 2d 299, 304,

340 P. 2d 598.

A freeway is a highway. California Streets and

Highways Code, Sections 23 and 23.5.

This Court has held that while enforcing the Four-

teenth Amendment to the United States Constitution it

should keep in view and regard with great respect the

judgments of state courts upon what should be deemed

public uses in any state.

Rindge Co. v. Los Angeles County (1923), 262

U. S. 700, 705, 706.

B. Questions as to the Location of Highways Are Purely

Legislative and Political, Outside the Scope of Judi-

cial Inquiry.

The questions of whether or not to make a given pub-

lic improvement, what plan should be used and the lo-

cation of that improvement are purely political, do not

require a hearing, and are not the subject of judicial

inquiry.

Rindge Co. v. Los Angeles County (1923), 262

U.S. 700, 709, 67 L. Ed. 1186, 1193;

oe

Oklahoma v. Atkinson Co. (1941), 313 U. S.

508, 527, 528, 85 L. Ed. 1487, 1501;

Arizona wv. California (1931), 283 U. S. 423,

450;

Joslin Mfg. Co. v. Providence (1923), 262 U.S.

668, 678, 679, 67 L. Ed. 1167, 1175, 1176;

Adirondack Ry. Co. v. New York State (1900),

176 U. S. 335, 349, 44 L. Ed. 492, 499;

United States v. Gettysburg Elec. Ry. Co.

(1896), 160 U. S. 668, 685, 40 L. Ed. 576,

582;

Shoemaker v. United States (1893), 147 U. S.

282, 298, 37 L. Ed. 170, 184;

Mississippi & Rum River Boom Co. v. Patter-

son (1878), 98 U. S. 403, 406, 25 L. Ed.

206, 207. —

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598.

Where the intended use is public, the legislative deci-

sions concerning the questions of the necessity or ex-

pediency for making a public improvement, its type or

its location do not require a hearing thereon, and a hear-

ing is not essential to due process in the sense of the

Fourteenth Amendment.

Rindge Co. v. Los Angeles County (1923),

22 U. S. 700, 709; 67 L. Ed. 1186, 1193;

Bragy v. Weaver (1919), 231 U. S. 37, 38, 64

1. Ed. 135, 156:

Oklahoma v. Atkinson Co. (1941). 313 UV. S.

508. 527. 85 L. Ed. 1487, 1501;

on

Adirondack Ry. Co. v. New York State (1900),

176 U.S. 335, 44 L. Ed. 492.

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598.

Whether a particular plan is feasible is not a proper

matter for the courts to determine.

Oklahoma v. Atkinson Co, (1941), 313 U. S.

508, 528;

Ashwander v. T. V. A. (1935), 297 U. S. 288,

329;

arizona v. California (1931), 283 U. S. 423,

456.

People v. Chevalier (1959), 52 Cat. 2d 299, 307,

340 P. 2d 598.

Courts do not exercise legislative judgment.

Oklahoma v. Atkinson Co. (1941), 313 U. S.

508, 527;

Hayburn's Case (1792), 2 Dallas 409,

footnote at p. +10—at least not when sitting

as judges.

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598.

The location of a particular public improvement is a

matter of legislative discretion.

Oklahoma v. Atkinson Co. (1941), 313 VU. S.

508, 528;

Adirondack Ry. Co. v. New York State (1900),

176 U. S. 335, 349;

poe. Toon

Shoemaker vv. U.S. (1893 ), 147 U. S. 282, 298.

‘

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598.

Even the motives of those voting tor the project are

not subject to judicial inquiry.

Oklahoma wv. Atkinson Co. (1941), 313 U. S.

508, 528;

Arizona v. California (1931), 283 U. S. 423,

455;

Rindge Co. v. Los Angeles County (1923), 262

U.S. 700.

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598.

A statute which fails to provide a jlandowner with a

hearing before a legislative determinationlis made re-

garding the necessity for the public improvement or its

location does not conflict with the 14th Amendment.

Rindge Co. v7. Los Angeles County (1923), 202

U. S. 700, 709;

ldirondack Ry. Co. v. New York State (1900),

176 U.S. 335, 349.

A statute declaring a resolution finding upon the

purely legislative and political questions of the type of a

particular public improvement, and where it shall be

located, does not deprive an owner of his property in

violation of the 14th Amendment. =

Rindge Co. v. Los Angeles Ccunty (1923), 262

U.S. 700, 710.

SS

The filing of a proposed route map establishes no

right against the owners of land along the route.

cldirondack Ry. Co. v. New York State (1900),

176 U. S. 335, 346.

No private property rights are acquired by the aduop-

tion of a California State highway route. Neither are

any private property rights acquired by the’ declaration

of a State highway route a freeway.

California Streets and Highways Code, Sec.

100.3.

This Court cannot assume that just compensation will

not be paid for property required to be taken for public

use.

Joslin Mfg. Co. v. Providence (1923), 262 U. S.

668, 674;

Oklahoma v. Atkinson Co. (1941), 313 U. S.

508.

Even possible adverse effects on local tax revenues as

a result of the construction of a public improvement in

the manner proposed does not prevent the exercise of

the power of eminent domain to accomplish the project.

Oklahoma v. Atkinson Co. (1941), 313 U. S.

508, 534.

C. The “Due Process” Clause of the United States Con-

stitution Does Not Require a Hearing Preliminary to

the Selection of a Highway Route.

The California courts have correctly held that the

due process clause of the United States Constitution

does not require either a hearing preliminary to the

selection of a highway route, nor a judicial review of

the decison making the selection of the route.

tiles

The only issue sought to be reviewed is the location

of the freeway.

An owner of property along a proposed highway

route is not entitled to a hearing as to whether or not

he agrees with the chuice of the route or, whether he

could suggest another route for the highway. Judicial

refusal to consider the owner's conicntions as to what

constitutes the “best route” is proper.

Rindge Co. v. Los Angeles County (1923), 262

U.S. 700, 709;

People v. Chevalier (1959), 52 Cal. 2d 299, 303,

304, 307, 340 P. 2d 598;

Sherman v. Buick (1867), 32 Cal. 241, 252,

253;

Wulsen v. Board of Supervtsors (1894), 101

Cal. 15, 21, 35 Pac. 353;

County of Siskiyou v. Gamlich (1895), 110 Cal.

94, 98, 42 Pac. 468;

County of San Mateo v. Coburn (1900), 130

Cal. 631, 634, 635, 63 Pac. 78, 63 Pac. 621;

Nickerson v. San Bernardino (1918), 179 Cal.

518, 522, 523, 177 Pac. 465;

County of L. A. v. Rindge Co. (1921). 53 Cal.

App. 166, 172-174, 200 Pac. 27.

The more than forty-five hearings which have been

held since June 11, 1946, were purely matters of legis-

lative grace and were not required by the 14th Amend-

ment to the United States Constitution.

Bi-Metallic Co. v. Colorado (1915), 239 U. S.

441, 445;

=

Rindge Co. v. Los Angeles County (1923), 262

U.S. 700, 709;

People v. Chevalier (1959), 52 Cal. 2d 299, 307,

340 P. 2d 598;

12 Am. Jur., Sec. 618, p. 310;

Ray v. Parker (1940), 15 Cal. 2d 275, 296,

297, 101 P. 2d 665;

Franchise Tax Board v. Superior Court (1950),

36 Cal. 2d 538, 549, 225 P. 2d 905.

The true controversy in this proceeding is the pe-

titioners’ complaint that the California Highway Com-

mission ‘“‘chose the wrong route”.

There is no contention in this case that the route

adopted is located outside the confines -f California

Streets and Highways Code Section 302(a).

The delegation of authority to select routes, from

the legislature to the California Highway Commission

has been upheld by the California Supreme Court.

Holloway v. Purcell, 35 Cal. 2d 220, 217 P.

2d 665.

Constitutional “due process’’ is satisfied upon a show-

ing that the use to be made of the public improvement

proposed is a “public use” and that “just compensa- .

tion” be made for property required to accomplish the

improvement.

Petitioners have never contended (and, indeed cannot

contend) that hearings were not held in this route

adoption matter. They have only contended that the

“wrong route” was adopted.. The California courts

have properly held that no justiciable issue is raised by

petitioners’ pleadings—Sinclair v. State of California

(1961), 194 A. C. A. 415, 425, 426.

Kp

Pe

1I. J

Fourteenth Amendment of the United States Con-

stitution Is Not an Issue in This Proceeding.

The second sentence of Section | of Amendment

XIV states:.

‘. , nor shall any State deprive any person of

life, liberty, or property, without due process of

ae

As of this date, insofar as petitioners are concerned,

the only State action taken is to have made a legisla-

tive determination to make i, public improvement and

t . .

to have located where the public improvement shall be

constructed.

No life of any petitioner has been endangered. No

petitioner's liberty has been circumscribed, Petitioners’

property or properties have not been acquired.

How can the 14th Amendment be violated when no

person's life. liberty, or property has been deprived ?

Speaking for this Court in Bi-MVetallic Co. v7. Colorado

(1915), 239 U. S. 441, Mr. Justice Holmes said at

page 445:

“Tt appears to us that to put the question is to

answer it. There must be a limit to individual

arguments if government is to go on.’

Applied in California in Franchise Tax Board

v. Superior Court (1950), 36 Cal. 2d 538,

549, 225 P. 2d 905.

Accord:

Ray v7. Parker (1940), 15 Cal. 2d 275, 296,

297. 101 P. 2d 665.

|, wn

Conclusion.

Each point sought to be raised by petitioners in

the Superior Court of San Diego County, in the Dis-

trict Court of Appeal, and in the California Supren:

Court has been clearly stated and completely answered

by the decision of the California District Court of

Appeal, Fourth Appellate District.

Each of the questions of law sought to be presented

in the Petition for Writ of Certiorari have previously

been determined by the United States Supreme Court

and the reported decision of Sinclair v. State of Calt-

fornia (1961), 194 A. C. A. 415 is clearly in accord

with the applicable decisions of the United States Su-

preme Court.

Respondent:, therefore, respectfully request that the

Petition for a Writ of Certiorari be denied.

Respectfully submitted,

STANLEY Mosk,

Attorney General,

Howarp S. Gotpin,

Assistant Attorney General,

Rosert E. REEp,

Chief Attorney,

Department of Public Works,

R. B. Pecram,

Attorneys for Respondents.

Of Counsel:

Georce C, HapLey,

N. B. PEEK,

Deputy Attorney General,

Pact E. Overton,