Petition for a Writ of Certiorari — Scott v. Fayette County Agricultural Society

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IN THE

Supreme Court of the United States

OcToBER TERM, 1955

GEM 1 5

i;

No. = J

——

Kart LeRoy Scott, Harry D. CRONE, Executor Estate

of EstHer Scorr Crone, Deceased, and HERBERT

NUSHAWG Petit ioners,

3

Vv.

Fayerre Country AGRICULTURAL Society, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

CHARLES G. WHITE

Forrest EK. EY

Harotp A. KERTZ

Lucien H. MerctTer

Counsel for Petitioners

MERCIER. KERTZ, SANDERS & BAKER

Exy, WHITE & Davidson

Of Counsel

Press oF Byron S. Apams, Wasxrincton, D.C.

INDEX

Sussect INDEX

Page

Opinions Below ..........---ecceececseeseeeeccnces 2

Tuclaigkin ooo cnc esas Can'5 60 ee Chee ee EERE. 2

Questions Presented ............ eee ee eee eee eee 3

Constitutional Provisions and Statutes Involved .... 4

Rintonwnt Of CAGE a... sce cclnscee ene e tht 2 tere wees a)

Reasons for Granting the Writ ............--0+eeee- 11

I. The Statute Under Which Respondent Is Seek-

ing to Appropriate Petitioners’ Lands Is Un-

Senate ooh a8 oh ES CSN ae nO 11

II. The Requirement of Just Compensation Is Not

Satisfied in This Case .........c.sccserencees 18

III. Respondent Acted Arbitrarily and in Bad Faith

in Seeking to Appropriate Lands in Excess of

That Needed for an Agricultural Fair ........ 24

IV. Respondent Has Failed to Establish a Necessary

Pibibs TIGG xc os 5 ork ss ce ree ead Den ee eR 27

Comeinaiee kiko oe se che nee ee enan es) Phebe Ke Ciees 30

Appendix A .......02cccsecccccencenecsenenccnsens la

Appendix B ......... ccc cece secser rcs esernenensens 7a

Appendix C ....... cece eee eee e cee eee c cece ee eeees 18a

Appendix D . 2.26.06. ccc cce cs enecsseennesarsensions 20a

TasBLe or Cases CITED

Bragg v. Yeargin, 145 Tenn. 643 ......-----+.- +005 17

Brickett v. Haverhill Aqueduct Co., 142 Mass. 394, 396 12

Cherokee Nation v. Southern Kansas R. Co., 135 U.S.

641, 658, 34 L. ed. 295, 302 ......--. 22 eee ee eee eee 12

Cincinnati v. Vester, 281 U.S. 439, 446, 74 L. ed. 950... 27

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il Index Continued

Page

Connecticut River R. Co. v. Franklin County Com’rs,

127 Mass. 50, 52, 56, 34 Am. Rep. 338

Dunn v. Agricultural Society, 40 os 93 ES gre 29

Hairston v. Danville W estern Railroad Co., 208 U.S.

nn EE Ne. SI OR Tech Ri a 27

Haverhill Bridge Props. v. Essex County Com’rs., 103

Mass. 120, 124, 4 Am. Rep. 518 ................ 11

in Be Mandeson. 51 Ped. S01 ....................... 15

McArthur v. Kelly, 5 mame et. 240 149"... ccc 17

Segara v. “ea Island State Park Commission,

a Eos vo dw aiwee eck ce bicces 14

Sargeant v. City of C ackaemath: TIO ON. 444... ta 28

Shepard Paint Co. y. Board of Trustees, ete., 88 Ohio

SN ee is unas ey tnvwss ene 24

State Ex Rel Chesterly v. Superior Court of Yakima,

19 Wash. (2¢) 791, 144 Pace. Ce ER Se bac as 15

Sweet v. Recher 159 US. 380, 399, 16 S. Ct. 43 ...... 11

MIscELLANEOUS

Fifth Amendment to the Constitution of the United

ES ORAL aD? Neale ge not Ae a oe 3, 4,11

Fourteenth Amendment to the Constitution of the

EN en te, ee en ee 3, 4, 11

Jahr on Eminent Domain, Section 40 .............. 16

Nichols on Eminent Domain, Vol. 3, Section 8.712 .... 17

Section 19, Article 1 of the Constitution of Ohio ....3,5,11

12, 29

Section 719.06, Ghio Revised Code .............5,7, 13,18

Section 719.21, Ohio Revised Code ..........5,7, 13, 18, 23

Section 1711.14, Ohio Revised Code ........5,7, 11,12, 13,

18, 24, 28

Section 1711.15, Ohio Revised Code ..............5,13, 22

Section 1711.16, Ohio Revised Code ................ 5, 22

Section 1711.18, Ohio Revised Code .............. 5, 22

Section 1711.33, Ohio Revised Code ................5,21

Title 28 U.S.C., Section 1257 (3) 9

IN THE

Supreme Court of the United States

OcToBER TERM, 1955

Ear, LeRoy Scort, Harry D. Crone, Executor Estate

of EsTHER Scorr CRONE, Deceased, and TIERBERT

Nusuaw6a, Petitioners,

V.

FayETTE CouNTY AGRICULTURAL Society, Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

Eari LeRoy Scott, Harry D. Crone, Executor Estate

of Esther Scott Crone, deceased and Herbert Nushawg.

Petitioners, pray that a writ of certiorari issue to re-

view the orders of the Supreme Court of Ohio, over-

ruling Petitioners’ Motion to Certify the Record, dis-

missing Petitioners’ Appeal as of Right from a judg-

2

ment and decree of the Court of Appeals, Fayette

County, Ohio, and denying Petitioners’ Application

For Rehearing.

OPINIONS BELOW

The proceeding against Respondent originated in the

Court of Common Pleas, Fayette County, Ohio, which

Court rendered an opinion in favor of Petitioners on

May 26, 1954. Said opinion was entered on May 29,

1954, is not reported, and is attached hereto as Appen-

dix A.

The Court of Appeals, Fayette County, Onio, re-

versed the judgment of the Court of Common Pleas in

an opinion rendered November 19, 1955. The judg-

ment and decree of said Court was entered December

10, 1955, is unreported, and is attached hereto as Ap-

pendix B.

On February 8, 1956, the Supreme Court of Ohio

overruled Petitioners’ Motion to Certify the Record

and dismissed Petitioners’ Appeal as of Right from the

judgment and decree of the Court of Appeads. On

February 29, 1956, the Supreme Court of Ohio denied

Petitioners’ Application for Rehearing. Said orders

are unreported and journal entries of the same. are

attached hereto as Appendix C.

JURISDICTION

The order of the Supreme Court of Ohio denving

Petitioners’ Application For Rehearing was entered

February 29, 1956.

The jurisdiction of this Court is invoked under Title

28 U.S.C., Section 1257(3).

3

QUESTIONS PRESENTED

The Supreme Court of Ohio overruled Petitioners’

Motion to Certify the Record and dismissed their

Appeal as of Right from the judgment and decree of

the Court of Appeals, Fayette County, Ohio, which

had refused to enjoin proceedings instituted to appro-

priate the private property of Petitioners. For sim-

plifieation, the following questions which are presented

for review are intended to refer to the judgment and

decree of the said Court of Appeals, as well as to the

orders of the Supreme Court of Ohio.

I. Did the Supreme Court of Ohio deprive Petition-

ors of their constitutional rights by its decision hold-

ing that Section 1711.14, Ohio Revised Code, does not

violate the Fifth and Fourteenth Amendments to the

Constitution of the United States, and Section 19 of

Article I of the Constitution of Ohio?

II. Assuming, arguendo, that the statute did not vio-

late the Fifth and Fourteenth Amendments to the Con-

stitution of the United States and Section 19 of Ar-

ticle I of the Constitution of Ohio, is the constitutional

requirement of just compensation for the taking of

private property satisfied in the instant ease when

Respondent at time of instituting its proceeding to ap-

propriate had insufficient funds with which to pay a

compensation award, had taken no steps to provide for

the payment of any compensation award, and, as a

private corporation, at no time possessed legal author-

ity to provide security or to raise funds in the manner

permitted to municipal corporations ?

III. Assuming, arguendo, that Respondent had ade-

quate funds or could acquire adequate funds with

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Which to pay for the reasonable value of the property

to be taken,

(a) Did the Supreme Court of Ohio err in fail-

ing to hold that Respondent acted arbitrarily and

in bad faith in seeking to appropriate land in

excess of that reasonably necessary for use as a

site for agricultural fair purposes ?

(b) Did the Supreme Court of Ohio err in fail-

ing to hold that the taking of title to property

having an estimated value of €250,000 for use as a

site for agricultural fair purposes during only 4

days of each year was not a “necessary’’ public

use?

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The coustitutional provisions involved are the Fifth

and Fourteenth Amendments to the Constitution of

the United States and Section 19 of Article I of the

Constitution of Ohio.

The pertinent portion of the Fifth Amendment to

the Constitution of the United States is as follows:

“* * * nor shall private property be taken for

public use, without just compensation.”

The pertinent portion of the Fourteenth Amend-

ment to the Constitution of the United States is as fol-

lows:

“* * * nor shall any State deprive any person of

life, liberty, or property without due process of

sk italia

Section 19 of Article T of the Constitution of Ohio

provide. as follows:

D

‘Private property shall ever be held inviolate,

but subservient to the public welfare. When

taken in time of war or other publie exigeney, im-

peratively requiring its immediate seizure or for

the purpose of making or repairing roads, which

shall be open to the publie, without charge, a com-

pensation shall be made to the owner, in money,

and in all other cases, where private property

shall be taken for public use, the compensation

therefor shall first he made in money, or first se

cured by a deposit of money; and such compensa-

tion shall be assessed by a jury, without deduction

for benefits to any property of the owner.”’

The statutes involved are:

Sections 719.06, 719.21, 1711.14. 1711.15, 1711.16,

1711.18 and 1711.33, Ohio Revised Code.

The above sections of the Ohio Revised Code are at-

tached hereto as Appendix D.

STATEMENT OF CASE

Petitioners are the owners of certain land situate

at Washington Court House, Fayette County, Ohio,

consisting of two (2) parcels. One parcel contains

47.033 acres and the other contains 2 /10ths of an acre.

Tn 1951, Petitioners leased thirty-seven (37) acres of

the lands owned by them to the County Commissioners

of Fayette County for a period of twenty (20) vears,

expiring January 1, 1971, at a nominal rental (R. 40,

104, 105). The lease was entered into for the benefit

of Respondent and it expressly provided that the

County Commissioners had the right to sublet the land

to Respondent for its use as an agricultural fair site

(R. 46, 106). As a matter of fact, Respondent had

been in possession of said thirty-seven (37) acres and

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had used the same as an agricultural fair site for more

than sixty-five (65) vears under a lease (R. 119).

The remaining ten (10) acres owned by Petitioners

consist of a strip of land along a state highway hav-

ing a length of 2068 feet and a depth of 200 feet. This

strip of land was not included in the lease to the

County Commissioners for three reasons. In the first

place, unlike the remaining thirty-seven (37) acres,

it had never been used by Respondent as a part of its

agricultural fair site (R. 107). In the second place, it

possessed an increasing value for commercial use by

reason of its fronting on a state highway (R. 200),

and, lastly, it was not desired by the County Commis-

sioners.

Respondent is a private corporation organized for

profit under the laws of Ohio. For many years, it has

held county fairs for a four-day period in each year

on the thirty-seven (87) acre tract above referred to

and, since 1951, it has enjoyed possession and use of

the tract under a sublease from the County Commis-

sioners of Fayette County (R. 104, 106). In addition

to holding agrienItural fairs, Respondent has also used

the leased lands for private purposes (as distinguished

from public purposes), such as livestock sales, carni-

vals, horse stables, horse shows and sales, all of which

was admittedly for the purpose of making profit (R.

84, 108, 121). The use of the land for an agricultural

fair or public use was limited to only four days in each

year (R. 108), while the use of the land for private use

was fairly continuous during each year except when

the four-day fair was scheduled (R. 121 et seq.).

In addition to the thirty-seven (37) acre tract be-

longing to Petitioners, Respondent also had available

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under lease an adjoining tract of ten (10) acres (not

here involved) for use in parking automobiles (R.

108).

On September 26, 1949, the Ohio Legislature enacted

Section 1711.14, Ohio Revised Code, which provides as

follows:

‘“‘When it is necessary in the opinion of any

county agricultural society to procure or enlarge

any site for the purpose of holding an agricul-

fural fair, and the society and the owner of the

property needed for such purposes are unable to

agree upon the sale and purchase thereof, the so-

ciety shall make an accurate plat and description

of the parcel of land which it desires for such pur-

pose, and file them with the Probate Judge, or with

the Court of Common Pleas in the county in which

the land sought to be taken is located. Thereupon

the same proceedings of appropriation shall be

had which are provided for in Section 719.06 to

719.21, inclusive, of the Revised Code.’? (Km-

phasis supplied )

Sections 719.06 to 719.21, inclusive, of the Ohio Re-

vised Code, cover appropriation of property by mu-

nicipal corporations which, of course, have the power

to levy taxes and appropriate money. An agricultural

society such as Respondent does not have the power to

levy taxes and appropriate money and is dependent

on its own earnings, if any, and on volantary contribu-

tions from the County Commissioners under certain

conditions and limited as to amount by statute.

On February 13, 1953, Respondent, pursuant to See-

tion 1711.14 above quoted, filed a petition in the Court

of Common Pleas, Favette County, Ohio, to appropri-

ate the forty-seven (47) acres of land owned by Peti-

tioners, including the thirty-seven (37) acres with re-

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8

spect to which it already had possession under a sub-

lease from the County Commissioners. Thereafter,

Petitioners filed in said Court a petition for injunctive

relief seeking to restrain the Respondent from pro-

ceeding with its action to appropriate for title the

lands of Petitioners. In their complaint, Petitioners

first raised the constitutional questions here sought to

be reviewed (R. 40, 69).

The evidence adduced in the lower Courts clearly

showed that the lands of Petitioners had a value

of between Two Hundred Twenty-five Thousand

($225,000) Dollars and Two Iundred Fifty Thousand

($250,000) Dollars (R. 195); that at the time the

proceedings were instituted by the Respondent, it had

less than Twenty Thousand ($20,000) Dollars in its

treasury (Rt. 110, 118, 141), and possessed no legal

means Of raising funds to pay an award that might be

made in an appropriation proceeding; and that Re-

spondent sought to appropriate more land than was

reasonably necessary for use as a site for an agricul-

tural fair.

On May 26, 1954, the Court of Common Pleas con-

cluded that Petitioners were entitled to the relief

prayed for and that Respondent should be permanently

enjoined from proceeding to appropriate Petitioners’

lands. In its opinion (Appendix A), the Court stated:

“It is inconceivable to this Court that the use of

the property of the plaintiffs for the purpose of a

county fair for a period of 4 days in the vear can

be said to be such a necessary publie use as to

require private owners of land to forfeit the same

when their desire is not to do se, whatever the

motive may be. The fact that it must be presumed

that they would be adequately compensated under

appropriation proceedings previded by law is not

9

a satisfactory answer. For instance, it may well

be the desire of the property owners to retain the

property for a period of years with the expecta-

tion that its value would be greatly enhanced in the

future to their profit, and there may be other rea-

sons, sentimental and otherwise, why the owners

would desire to retain their property.”

The Respondent appealed from the judgment of the

Court of Common Pleas te the Court of Appeals,

Favette County, Ohie, and Petitioners filed a cross-

appeal. The cause was submitted on the pleadings,

transcript of the docket and journal entries, transcript

of evidence, depositions and brief of counsel. On No-

vember 19, 1955, the Court of Appeals rendered its

opinion reversing the court of Common Pleas and tind-

ing in favor of Respondent on all issues. In support

of its opinion the Court found from the testimony of

Respondent’s officers that Respondent would use all of

Petitioners’ lands for its purposes; that no evidence

was offered tending to show that Respondent would be

unable to pay the amount of the assessed valuation;

that no evidence was offered tending to show a want

of good faith on the part of Respondent in seeking to

appropriate Petitioners’ lands; and that there was no

showing that Respondent had acted arbitrarily or had

heen guilty of an abuse of discretion in determining

what amount of property was reasonably required for

Respondent’s purposes (Appendix B).

These findings were contrary to the evidence, as the

record clearly discloses that the 10 most valuable acres

of the 47 acres sought to be appropriated had never

been used by Respondent in connection with its agri-

cultural fair; that the acquisition of said 10 acres was

not necessary for the conduct of the agricultural fair:

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Bes re RO Os a

SS aieites Sekt os MON AS LEMS

10

that Respondent did not intend to use said 10 acres as

a part of its site for an agricultural fair; that the ac-

quisition of said 10 acres would constitute an excess

appropriation; that Respondent intended to use Peti-

tioners’ lands for purposes other than holding an agri-

cultural fair as it had in the past; that Respondent did

not have available resources for the payment of the

reasonable value of said lands; that Respondent had

taken no steps to provide for the payment of any com-

pensation award (R. 117-118); that Respondent pos-

sessed no legal authority to provide security or to raise

funds in the manner permitted to municipal corpora-

tions: that Petitioners’ lands had a fair and reason-

able value of $250,000; and that Respondent’s use of

lands having such a great value for a period of only 4

days in each year was not a necessary publie use but

a ridiculous and unwarranted exercise of the power

of eminent domain (R. 100 et seq. ).

Beeause of the serious constitutional questions in-

volved. Petitioners filed both a Motion to Certify the

Record and an Appeal as of aught to the Supreme

Court of Ohio. The constitutional questions sought to

be reviewed were raised by exception to the judgment

and decree of the Court of Appeals, which exception

was duly noted on the journal entry filed December 10,

1955, (Appendix B), and also by Assignments of

Error filed in the Supreme Court of Ohio (R. 11). On

February 8, 1956, the Supreme Court of Ohio over-

ruled the Motion to Certify the Record and dismissed

the Appeal As of Right. On February 29, 1996, the

Supreme Court of Ohio denied Petitioners’ Applica-

tion For Rehearing. (Appendix C)

11

REASONS FOR GRANTING THE WRIT

I.

The Statute Under Which Respondent Is Seeking to Appro-

priate Petitioners’ Lands Is Unconstitutional

The basic issue in this case is whether Section

1711.14, Ohio Revised Code, deprives Petitioners of

their constitutional rights under the Fifth and Four-

teenth Amendments to the Constitution of the United

States, and Section 19 of Article L of the Constitution

of Ohio.

The validity of the appropriating act relied upon by

Respondent in this case is questioned on the ground

that it makes no provision for just compensation to

Petitioners. As this Court said in Sweet v. Rechel,

159 U.S. 380, 399, 16S. Ct. 43:

“When, however, the legislature provides for

the actual taking and appropriation of private

property for public use, its authority to enact such

a regulation rests upon its right of eminent do-

main—a right vital to the existence and safety of

government. But it is a condition precedent to

the exercise of such power that the statute makes

provision for reasonable compensation to the

owner.” (Emphasis supplied)

In the above case this Court cited with approval

Haverhill Bridge Props. Vv. Esser County Com’rs., 103

Mass. 120, 124, 4 Am. Rep. 518. In that case the

court said:

“The duty of paying an adequate compensation

for private property taken is inseparable from

the exercise of the right of eminent domain. The

act granting the power must provide for compen-

sation, and a ready means of ascertaining the

amount. Payment need not precede the seizure;

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hut the means of securing indemnity must be

such that the owner will be put to no risk or un-

reasonable delay.” (Emphasis supplied)

In the later case of Brickett v. Haverhill Aqueduet

('o., 142 Mass. 394, 396, the language of the Court was

that:

‘*A statute which attempts to authorize the ap-

propriation of private property for publie uses,

without making adequate provision for compen-

sation, is unconstitutional and void.”’

Tn view of the above authorities, it is clear that See-

tion 1711.14, Ohio Revised Code, does not make such

provision for reasonable compensation as will be ade-

quate and certain in its results as required by Section

19 of Article T of the Constitution of Ohio.

The same principle was adopted by this Court in

Cherokee Nation vy. Southern Kansas BR. Co., 135 U.S.

641, 658 (34 L. ed. 295, 302), when it said:

“The Constitution declares that private prop-

erty shall not be taken ‘for public use without just

compensation.” It does not provide or require

that compensation shall be actually paid in’ ad-

vance of the oecupaney of the land to be taken.

But the owner is entitled to reasonable, certain

and adequate provision before his occupancy ts

disturbed.’’ (Emphasis supplied)

Assuming that the State of Ohio may lawfully dele-

gate by statute the power of eminent domain to poli-

tical subdivisions of the State and to private corpora-

tions, such as Respondent, it is well settled that such

statutory delegation of power may not permit the tak-

ing of private property for public use without making

13

adequate provision for the payment of just com-

pensation.

Section 1711.14, Ohio Revised Code, permits a county

agricultural society to appropriate — site for the pur-

pose of holding an agricultural fair and it is required,

by Sections 719.06. to 719.21, inclusive, Ohio Revised

Code, to adopt the same proceedings required of mu-

nicipal corporations who seek to appropriate private

property. TLowever, there exists a great difference

between a municipal corporation in the State of Ohio

and a private corporation such as Respondent. The

municipal corporation has the power to levy taxes and

to appropriate money, but noe such power is vested in

an agricultural society in Ohio. Respondent has

neither the power to provide security nor the power

to raise funds by the levying of a tax. Its only source

of revenue with which to pay a just compensation

award is from net receipts derived from the operation

of an annual fair and by voluntary allotment from the

County Commissioners, which, by statute, is limited to

Twenty Thousand ($20,000) Dollars per year (See-

tion 1711.15, Ohio Revised Code).

Any voluntary contributions of more than Twenty

Thousand ($20,000 ) Dollars would require submission

of the matter to the qualified electors of the County

at a general election at which a majority vote of fifty-

five (55% ) percent is required for passage (Section

1711.15. Ohio Revised Code ). Respondent has no au-

thority to mortgage property or to pledge assets or

credit to purchase real estate. The General Assembly

of Ohio has never clothed it with power to issue reve-

nue bonds.

While the procedure in appropriation proceedings

for a county agricultural society follows that of mu-

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Bove AS Sates eat

14

nicipal corporations, there is no provision which gives

Respondent the right to disregard the plain constitu-

tional limitation on the power of eminent domain, i.e.,

that private property shall not be taken without just

compensation in money. A municipal corporation has

veneral taxing power and a judgment in an appropria-

tion proceeding can be enforced by a writ of execution

or by mandamus to compel the levying of a general

tax. See Connecticul River R. Co. v. Franklin County

Com’rs, 127 Mass. 50, 52, 56, 34 Am. Rep. 338. No

such remedy is availalle against Respondent. The

credit of the municipality is sufficient to guarantee that

payment will be made. Respondent cannot give such

a guarantee as it is in no different position than any

private corporation which ix granted the power of

eminent domain.

It is axiomatie that « provision for just compensa-

tion is indispensable if the power of eminent domain

is to be exercised in a constitutional manner, Prop-

erty owners cannot be made to depend on the doubtful

responsibility or the solvency of an agricultural society

or its ability to pay just compensation when the stat-

ute under which it secks to appropriate provides no

method for paying just compensation and where, as in

this case, the appropriating entity has no statutory

method for raising funds.

The power to appropriate private property is sub-

ject not only to the absolute right of the owner to just

compensation, but is also subject to the right of the

owner to an assurance that adequate provision has been

made for the payment of just compensation. This

rule has been enunciated in numerous cases. — It

was followed in the case of Patchogue v. Long Island

State Park Commission, et al, 243 N.Y. 15. In

15

that case the long Island State Park Comission

sought to appropriate lands for public and state park

purposes. ‘The Commission did not have on hand the

money to pay for the land it sought. In its opinion,

the Court stated:

“It follows inevitably that the power to appro-

priate lands, as well as to agree on compensation,

depends on appropriation of money measurably

adequate to justify the Commission to proceed

summarily.”

The fact that Respondent, although in existence for

nearly seventy (70) years, had less than Twenty Thou-

sand (#20000) Dollars in its treasury at the time it

instituted the appropriation proceedings is without

dispute. Yet it sought to appropriate lands having an

estimated value of Two Hundred Fifty Thousand

($250,000) Dollars and when Petitioners interrogated

Respondent’s President as to how it would procure

the money to pay a compensation award, he refused

to state who would contribute or how much might be

contributed, and contented himself with the enlighten-

ing statement that “it is none of your business”. In

any event, just compensation cannot he made to de-

pend on voluntary contributions for the reason that

they are too uncertain. In ve Manduson, 51 Fed. 501.

Another ease in point is Slate Kar Rel Chesterly V.

Superior Court of Yakima, 19 Wash. (2d) 791, 144

Pac. (2d) 916. In that case, the State wanted to es-

tablish a game sanctuary and an elk refuge, but since

the money had not been appropriated for such pur-

poses the proceedings were held to be invalid. In its

opinion, the Court said:

“The legislature has appropriated no funds for

the purposes for whieh the condenmation now be-

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fore us were instituted, and we hold that conse-

quently no right existed on the part of the State

to initiate the proceedings.”

There are many statutes which give to political sub-

divisions and to private corporations the right to ap-

propriate property, but none give the right to start

proceedings unless the property owner can be assured

that he will be paid the just compensation to which he

is entitled. In the instant case, no such assurance

existed and in view of the admitted assets of Respond-

ent, it was fairly apparent from the beginning that

Respondent would be unable to pay any reasonable

compensation award, Petitioners submit that they

should not be put to the expense of an appropriation

proceeding only to find that after an award has been

made the appropriating authority is unable to pay the

award in full.

The rule is well stated by the well known authority

Jahr in his work on “Eminent Domain’? (1953) at

section 40:

“While it is not always necessary in advance of

the taking to pay to the owner his compensation,

it is necessary that the aet provide for a certain

and definite and adequate souree and manner of

payment.

“Thus a statute which authorized the taking of

private property for public use must contain a

provision, not only for the assessment and collee-

tion of just compensation, but also for a definite

and certain fund out of which the compensation

will be paid.’? (Page 69)

and

“The general responsibility of a private in-

dividual or a private corporation does not con-

17

stitute a certain and adequate provision for com-

pensation. As one of the Courts aptly remarked:

‘The property owner cannot be relegated to the

doubtful responsibility or solvency of a private

corporation or an individual’.”’ (Page 61)

In the ease of Bragg V. Yeargin, 145 Tenn. 643, a

school board sought to appropriate land upon whieh

to erect school buildings. The appropriating statute

was held unconstitutional because it did not afford the

owners a remedy for collection of the amount fixed by

the Court. The statute was held to violate both the

Tennessee and Federal Constitutions because :

“* * * No remedy to the landowner is provided

by the act for the enforcement or collection of such

excess in the event the school hoards have not in

their hands sufficient funds to pay \

In the case of McArthur v. Kelly, 5 Ohio St. 140,

143, the Supreme Court of Ohio stated:

‘Before the owner can, without his consent, he

deprived of his land for public use, the legisla-

ture must declare by law that the public welfare

requires if, (1 B.C. 139) direet the mode of ascer-

taining its value, and provide for its payment.”

The rule has also been stated in the following

language:

“When property is taken for a public use by a

private corporation, it is well settled that the right

of the owner to obtain and collect a judgment

against the corporation by the ordinary processes

of law, and subject to risks of insolvency, priority

of other claims and the like, is not an adequate

provision for compensation no matter how large

and prosperous the corporation may be.” ichols

on “Eminent Domain’, Vol. 3, see. 8.712.

18

Petitioners contend that the rule in Ohio as else-

Where is to the effeet that a landowner cannot be sub-

jected to an appropriation action unless the appro-

priating authority is in a position to complete the

transaction financially. Section 1711.14, Ohio Revised

Code, makes no provision whatever for payment,

Neither do the procedural statutes referred to in that

section (Sections 719.06 to 719.21, inclusive).

In summary, the enactment of Section 1711.14 alone

is not sufficient to authorize appropriation procecdings

wiless the appropriating authority has the funds avail-

able with which to pay a compensation award or unless

the appropriating authority has the power to guaran-

lee the payment of an award. In other words, cither

the ability or the means of payment must be estab-

lished; otherwise, private property is no longer in-

violate and private property may be taken “without

Just compensation”. The sanction given to Respond-

cnt’s attempted appropiration by the Court below vio-

lates the constitutional requirement of just compeonsa-

tion for the taking of private property for public use,

and should be corrected by this Court.

II.

The Requirement of Just Compensation Is Not Satisfied

in This Case

Under Part T above, we have shown that a provision

for compensation in the appropriating act is indis-

pensable and that no such provision is contained in

Section 1711.14, Ohio Revised Code. Equally indis-

pensable under constitutional safeguards is the require-

ment that the appropriating authority must have the

money with which to pay a compensation award.

19

The Respondent's only source of funds with which

to pay a compensation award is limited to the money

in its treasury and to such money as the County Com-

missioners of Fayette County may voluntarily allot

from the general funds of the County. Neither source

is sufficient to assure that the just compensation to be

awarded to Petitioners will be paid when assessed by

a jury.

The evidence of record clearly discloses that Peti-

tioners’ real estate expert (Witness Ben Norris) tes-

tified that the land sought to be appropriated had a

reasonable market value of ‘Two Hundred Thirty-five

Thousand ($235,000) Dollars CR. 195) and that Peti-

tioners had been offered between Two Htundred

Twenty-five Thousand (225,000 ) and Two Hundred

Fifty Thousand (%290,000) Dollars for the property.

The evidence also discloses that at the time the appro-

priation proceeding was instituted by Respondent, it

had less than Twenty Thousand ($20,000) Dollars in

its treasury (R. 110, 118, 141).

On deposition, Respondent's President (Witness

Ray Brandenberg ) testified as follows (R. 177 et seq.) :

“Q. Mr. Brandenberg, tell us how you could

raise the money ?

Objection by Mr. Brownfield.

Q. Tell me how much you could raise ?

A. 1 can’t answer that.

Q. How much are you prepared to pay or how

much are you able to pay after a verdict of a jury?

A. Any reasonable amount.

Q. How much could you raise to pay a judg-

ment after it is rendered?

A. Well T don’t think T would answer that

definitely.

Q. Could you raise £100,000,00 ?

Ot ES ae

20

A. I think so.

Q. Would you contribute some of the money ?

A. I would, and some we could borrow half

of it.

Borrow half of it?

Yes, we have a little money in the bank.

Less than #20,000,00 in the bank ?

Yes,

Borrow on the rest ?

Yes,

Citizens would contribute? You?

T don’t care to name them. T don’t see where

it is any of vour business who they are. Tt is none

of vour business.

Q. Would vou expect to give a mortgave on the

property ?

A. Probably would.

Q. Get some money from the County Com-

missioners ?

A. We would ask them.

Q. Have vou ever talked with them abont it ?

A. Not lately.

Q. You have talked to them?

A. Yes.

Q. They told vou they wouldn’t contribute one

penny ?

A. They didi’t.

Q. Didn’t they tell von that they had no money ?

Didn’t they tell von that?

A. No, thev never told me that.

Q. You would expect to get something from

them ?

A. We would ask them.

Q. Well, if they would give von some, vou

couldn’t get a mortgage ?

A. Why ean’t we?

Q. The law savs vou ean’t. Tt would have to he

according to law. In other words, Mr. Branden-

herg, von have no arrangements made of anv kind

to raise the money to pay for this land ?

PO POPOPO

21

A. T wouldn’t say that.

Q. You would have to ask the citizens of the

county ?

A. I would.

Q. Would you expect to contribute something /

A. That is none of your business,

% * % * %

Q. Mr. Brandenberg, you have declined to an-

swer as to Whom you would expect te contribute

to this fund, but T will ask you now if you have

any definite promises, either oral or in writing

from any one specifying amounts such person will

contribute to this fund?

A. Orally promises.

Q. From whom?

A. T said before, that is none of your business.

Decline to answer.

Q. To what amount would that sum un? What

would be the totals of definite promises ?

A. IT decline to answer that.”

In other words, the Respondent did not have

cufficient funds on hand to pay a compensation award

and had made no arrangements of any kind to raise the

needed money (R. 117-118). It proposed to ‘horrow”’

and to seek voluntary contributions from members of

the community (R. 110, 114, 118, 129, 142). It could

not obtain a mortgage on the property which it sought

to appropriate hecause Section 1711.33, Ohio Revised

Code, prohibits an agricultural seciety from en-

cumbering real estate for any purpose other than to

pay the cost of necessary repairs and improvements.

The only other source of money would be a limited

amount which the County Commissioners of Fayette

County would voluntarily contribute from the general

funds of the County. Under what circumstances and

in what amount may the County Commissioners

22

appropriate money from its general funds to aid an

agricultural society? The answer to this question is

contained in Sections 1711.15, 1711.16 and 1711.18,

Ohio Revised Code (Appendix D).

Nowhere is there statutory authority enabling the

County Commissioners to appropriate money from the

veneral fund to aid an agricultural society to purchase

real estate. The only financial assistance which

Respondent can expect to receive from the County

Commissioners is either a contribution to erect or

repair buildings after Respondent has purchased

Petitioners’ lands, or a contribution to **pay any other

form of indebtedness of said society’’. Any such con-

tribution is limited by Section 1711.15 to Twenty

Thousand ($20,000) Dollars a vear and if the same

should exceed Twenty Thousand ($20,000) Dollars in

any one year, it cannot be made until the question of a

levy of the tax therefor is submitted to the qualified

electors of the County at a general election at which

fifty-five (55°, ) percent of the vote cast is in favor of

such tax.

Assuming, arguendo, that the County Commissioners

possess statutory authority to assist Repondent in pur-

chasing Petitioners’ lands and would like to contribute

as much as Twenty Thousand ($20,000) Dollars to

accomplish the purchase, nevertheless, the evidence of

record discloses that the County had no money in the

general fund out of which a contribution could be

made. (Witness Clifford R. Hughes, R. 211). Even

if the County had sufficient money in its general fund

and even if it desired to contribute Twenty Thousand

($20,000) Dollars to aid Respondent in’ purchasing

Petitioners’ lands, the total thus available would be

9°

yas)

less than Forty Thousand (40,000) Dollars—clearly

insufficient to pay a compensation award.

In the event Respondent hopes to obtain more than

Twenty Thousand ($20,000) Dollars from the County

Commissioners by way of a contribution, such pro-

posed contribution would have to be submitted to the

electors of the County as above stated (R. 212). Such

submission to the electors would require a period of at

least one year before the electors could pass on the

matter CR. 213, Witness Clifford R. Hughes). Even

if we assume that the electors voted in favor 0 such

a contribution, Petitioners could not be expected to

wait for a period of a year for the just compensation

to which they are entitled. As a matter of fact,

Section 719.21, Oho Revised Code, recognizes the in-

equity of requiring a property owner to wait for his

just compensation, because it provides that when a

municipal corporation fails to pay for the property

taken within (6) months after the award is made,

the right to make the appropriation shall cease and

the judgment of the Court shall be void.

The plain fact is that Respondent should either have

had sufficient money in its treasury to pay a compensa-

ton award promptly, or it should have obtained a

commitment from the County Commissioners to con-

tribute whatever sum was necessary to make payment

in full. If a sum greater than Twenty Thousand

(#20,000) Dollars was needed as a contribution from

the County Commissioners, the matter should have

been submitted to the electors before any appropriation

proceeding was instituted.

It is inescapable that Respondent had less than

Twenty Thousand ($20,000) Dollars in its treasury

and could not under any circumstances assure the pay-

reg iat |

rhe eee

Cs ese

Rat ok

2,

Sete So hae

s by net BO

24

ment in full of a compensation award. It fails to meet

the indispensable requirement that an appropriating

authority must have the money with which to pay a

compensation award.

Tn summary, the constitutional requirement of just

compensation cannot be satisfied in this case because

Respondent did not have the money to pay a com-

pensation award, had taken no steps to provide for the

payment of compensation, and possessed no legal

authority to provide security or to raise funds in the

manner permitted to municipal corporations. Any

sanction of Respondent’s attempted appropriation

violates Petitioners’ constitutional rights and should

be corrected by this Court.

ITI.

Respondent Acted Arbitrarily and in Bad Faith in Seeking to

Appropriate Lands in Excess of That Needed for an Agri-

cultural Fair

It is well settled that the necessity and extent of

property to be taken by eminent domain is a question

for legislative determination and will not be disturbed

in the absence of fraud, bad faith or abuse of discre-

tion. Shepard Paint Co. vy. Board of Trustees, ete.,

88 Ohio Apps. 319. It does not follow, however, that

Respondent can claim a need for more land than is

reasonably necessary for the purpose of conducting an

agricultural fair. The extent of the property which

Respondent seeks to appropriate must bear a reason-

able relationship to its needs. In other words, it

cannot seek to appropriate 47 or 57 acres of land when

37 acres of land will suffice for its purposes. Section

1711.14, Ohio Revised Code, does not give a blank check

to an agricultural society to appropriate lands far in

excess of its reasonable needs. It is proper, therefore,

25

to inquire as to what are the precise needs of

Respondent.

At the time Respondent instituted the appropriation

proceding, it condueted annually a 4-day agricultural]

fair on a leased site near Washington Court House,

Ohio, containing approximately 47 acres of which

10 acres was used for parking purposes. It now seeks

to appropriate for title 37 of the original 47 leased

acres and an additional 10 acres valued in excess of

Sixty Thousand ($60,000) Dollars which had never

previously been used by it. If it succeeds in its pur-

pose, it will have a site consisting of 57 acres, 47 acres

of which it will own and 10 acres of which it will

possess under a lease from the County Commissioners

expiring January 1, 1971.

Petitioners contend that the additional 10 acres not

heretofore a part of the site or used in connection with

the agricultural fair is not necessary for the conduct

of the agricultural fair, but constitutes an attempt to

make an unjustified excess appropriation. It was not

necessary for Respondent’s purposes in the past and

no showing has been made that it will be necessary for

such purposes in the foreseable future. The obvious,

although not admitted purpose, of Respondent in

seeking to acquire for the first time the additional 10

acres is to take advantage of the land’s rapidly in-

creasing value attributable to the fact that Washing-

ton Court House is a growing community and_ is

spreading around and beyond the fair site. In view of

the fact that Respondent has no valid need for the

additional 10 acre tract, it is not unfair to conclude

that in the event it succeeds in acquiring the same, it

will sell or lease the same for commercial purposes

at a profit. The appropriating act does not give

eee Ft de cia wee

Bierce Poet tek hk Ses Eee.

26

Respondent the right to acquire land either for the

purpose of speculative resale or for the purpose of

acquiring rental income property, but on/y **for the

purpose of holding an agricultural fair’’.

Nowhere in the record of this case does it appear

that the additional 10 acres is necessary for the purpose

of holding an agricultural fair. Petitioners may well

ask—can Respondent exercise its delegated power to

appropriate lands in excess of that needed?) Or is such

attempted excess appropriation an abuse of discretion

and the result of an arbitrary determination made in

bad faith?

The question as to whether Respondent has a need

for the additional 10 acre tract is largely a question

of fact. The fact that the Respondent has conducted

the agricultural fair without any previous alleged need

for the additional 10 aere tract and without seeking

to lease the same for parking or other purposes, p/us

the further faet that the Commissioners of Fayette

County, in negotiating the 20 vear lease covering the

37 acres, did not seek to have the additional 10 acre

tract in question included under the lease but took

another 10 acre tract which Respondent is not seeking

to appropriate, plus the further fact that Respondent,

as late as December 26, 1950, expressly excepted the

additional 10 acre tract in question from the land it

sought to appropriate (R. 205-207), fairly and reason-

ably supports the conclusion that the additional 10

acre tract is not necessary for Respondent’s purpose

“of holding an agricultural fair’, but constitutes an

arbitrary determination reached in bad faith.

In summary, an appropriating authority has no

right to arbitrarily appropriate lands in excess of that

vecded for the purposes defined in the appropriating

—_————_

27

act. Any sanction of Respondent's attempted appro-

priation of lands in excess of that reasonably needed

for use as an agricultural fair violates Petitioners’

constitutional rights and should be corrected by this

Court.

IV.

Respondent Has Failed to Establish a Necessary Public Use

It is well settled by numerous decisions in this

Court and in Ohio that the power conferred upon an

appropriating authority to take private property for

publie use must be strietly followed. The limitations

on the exercise of this power are well established. The

basic question is whether the use for which the land is

appropriated is a wecessary public use. The deter-

mination of this question is essentially a judicial

matter. In other words, the legislative authority may

determine the extent and the need to take private

property, but whether the use to which the property

is to be put is a public necessity is a question for the

courts.

Tn the case of Hairston Vv. Danville Western Railroad

('o., 208 U.S. 598, this Court stated:

‘“When we come to consider what are public uses

for which the right of compulsory taking may be

employed, and what are private uses for which the

right is forbidden we find no agreement either in

reason or in conclusion. The one and only prin-

ciple in which all courts seem to agree is that the

nature of the uses, whether public or private, is

ultimately a judicial question.”

In the case of Cincinnati v. Vester, 281 U.S. 439, 446,

Chief Justice Hughes, speaking for the Court, said:

“Tt is well established that in considering the

application of the Fourteenth Amendment to cases

a NNR RRE E Seana oil

wee ee Cee ee

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28

of expropriation of private property, the question

what is a public use is a judicial one. In deciding

such a question, the Court has appropriate regard

to the diversity of loeal conditions and considers

“with great respect legislative declarations and in

particular the judgments of state courts as to the

uses considered to be publie in the light of local

exigencies. But the question remains a judicial

one which this Court must decide in performing

its duty of enforcing the provisions of the Federal

Constitution.”

In the case of Sargeant vy. City of Cincinnati, 110

O.S. 444, the Court in its opinion emploved the follow-

ing language:

** All these legislative functions relate to the ne-

cessity and exigency of the taking, but owners of

private property may judicially inquire whether

the specified use is a public use.”’

Petitioners contend that the proposed use of their

lands as a site for an agricultural fair held during only

4 days of each vear is not such a necessary public use

as will justify its appropriation and therefore they

are entitled to the injunctive relief which they seek.

It must be remembered that the Appropriating Act

(Section 1711.14, Ohio Revised Code) only permits Re-

spondent to procure a site for the purpose of holding

an agricultural fair. The Court of Appeals in its opin-

ion (Appendix B), however, departed from the lan-

guage of Section 1711.14. It found that the lands

sought to be appropriated were for a necessary public

use beeause they ‘tare needed for many public activi-

ties of defendant, including programs for 4-H Clubs

for hoys and girls; Junior and Senior department

FIA and FFA; Exhibits sponsored by Garden Clubs:

29

Health Groups; Farm Bureau; Grange and State

Highway Department ; also exhibits of livestock, grain,

fruit. sewing, canning, cooking and other public uses.”

However praiseworthy these uses may he, they cer-

tainly do not qualify as necessary publie uses, espe-

cially in view of the fact that Respondent is a private

corporation organized for profit and not a_ political

subdivision of the State of Ohio.

The mere fact that Respondent may be performing

a useful semi-public function does not establish if as a

public body. In the case of Dunn vy. Agricultural So-

cicty, 40 OS. 93, the Court stated that the purpose of

such a society may be publie ‘but only in the sense

that they are designed for the accomplishinent of some

public good’’, and it was pointed out ‘tin that sense all

private corporations are for a public purpose, inas-

much as such public benefit is both a consideration and

justifieation for the special privileges and franchises

conferred upon them.”

In determining whether the proposed use of Peti-

tioners’ lands is a necessary public use, the only use

that may be considered is the use of the land as a site

for an agricultural fair.

The Courts below found that Petitioners’ lands

would be used only 4 days in each year for an agricul-

tural fair. Is this a necessary publie use which will

permit the taking of private property without the con-

<ent of the owner? Petitioners hold, as did the Court

of Common Pleas below, that such use of their prop-

erty is not a necessary publie use and any contrary

holding will destroy the inviolability of private prop-

erty guaranteed by Section 19 of Article I of the Ohio

Constitution. It is inconceivable to Petitioners, as it

30

was to the Court of Common Pleas below, that the use

of property having an estimated value of $250,000 for

the purpose of a county fair for a period of only 4 days

in the vear can be said to be such a necessary publie

use as to require Petitioners to surrender their prop-

erty when it is their desire not to do so.

In summary, the Court of Appeals below, avoided

passing upon the question of whether the use of land

worth 8250,000 as a site for an agricultural fair con-

ducted only during 4 days in cach year was a NOCOSSUVY

public use. It erroneously confused Respondent's

“public activities” with “necessary public use’. The

sanction given to Respondent's attempted appropria-

tion by the Court below violates Petitioners’ consti-

futional rights and should be corrected by this Court.

CONCLUSION

The instant case presents squarely to this Court the

question of whether a state statute which attempts to

authorize a county agricultural society to take private

property for public use but fails to make adequate pro-

vision for the payment of just compensation to the

property owner is thereby unconstitutional and void.

If a county agricultural society, acting pursuant to

a statute authorizing it to take private property, is

permitted to appropriate lands without the property

owner being assured that reasonable, certain and ade-

quate provision for payment of just compensation has

been made or that he will be put to no risk or unreason-

able delay in obtaining just compensation, then the

guarantees of the Federal and State Constitutions will

be destroyed and the security of private property in

this country will no longer be “inviolate’’.

ol

In any event, this Court should determine that the

constitutional requirement of just compensation can-

not be satisfied in this case because Respondent had no

money with which to pay a compensation award and

had no legal authority to provide security or to raise

funds in the manner permitted to municipal corpora-

tions.

Moreover, this Court should determine that Respond-

ent has failed to establish that the lands which it seeks

to appropriate were for a necessary publie use. It is

respectfully suggested this Court should determine

whether a state court by the mere use of the magic

words ‘‘public use’, without substantial basis, may

curtail important constitutional rights. Should this

Court determine that appropriating valuable property

usable for commercial and residential purposes for

use as an agricultural fair during only 4 days in each

year is a necessary public use, then the Court should

determine that Respondent’s attempted appropriation

of more lands than it reasonably needs for its purposes

constitutes an act of bad faith and an abuse of disere-

tion.

If the decision of the Ohio Court of Appeals is per-

mitted to stand in view of the facts set forth herein,

then the constitutional rights of all property owners

will be irreparably impaired.

Wererore, Petitioners pray that this Petition for

writ of certiorari be granted to the end that the judg-

32

ment and decree of the Court of Appeals, Fayette

County, Ohio, may be reversed by this Court.

Respectfully submitted,

CHARLES G, WHITE

Forrest FE. Ev)

Harotp A. Kerrz

Lucien HL. Mercier

Counsel for Petitioners

Mercier, Kerrz, Sanpers & BAKER

Evy, Wuitrt & DaAvipson

Of Counsel