This was a bill to enjoin the city of New York, the board of rapid transit commissioners for New York, John B. McDonald, and the administratrix of Shaler, deceased, from proceeding with the construction of the rapid transit railroad [193 U.S. 430, 431] tunnel under Park avenue, New York, adjacent to the premises of Charles T. Barney, 'until the easements appurtenant thereto shall have been acquired according to law and due compensation made therefor to complainant;' and from constructing such railroad otherwise than in accordance with the routes and general plan adopted and approved by the local authorities and by the owners of abutting property, or the appellate division of the supreme court, in lieu thereof.
From the bill it appeared that the rapid transit board had, on behalf of the city, devised routes and general plans, and entered into a contract for the construction of a rapid transit railroad with McDonald, of whom Ira A. Shaler was a sub-contractor, under the rapid transit acts of the state (Laws 1891, chap. 4; Laws 1892, chaps. 102, 556; Laws 1894, chaps. 528, 752; Laws 1895, chap. 519; Laws 1900, chap. 729; Laws 1901, chap. 587; Laws 1902, chaps. 533, 542, 544, 584).
Park avenue was one of the streets under which the railroad was authorized to be built, and the routes and general plan of the road were prescribed by the board by resolutions of January 14 and February 4, 1897, which received the assent of the local authorities and of the appellate division of the supreme court in lieu of the consent of the abutting property owners.
Complainant alleged that he 'consented to the construction of the said rapid transit railroad in accordance with the said routes and general plan of construction, and did not oppose the proceedings hereinafter mentioned, which the said board of rapid transit railroad commissioners instituted for the purpose of obtaining the determination of three commissioners appointed by the said appellate division that such rapid transit railroad ought to be constructed and operated; nor did your orator oppose the confirmation of said determination by the said appellate division.'
But complainant averred that the portion of the railroad under Park avenue and in front of his premises was being built 27 feet nearer to his premises than was authorized [193 U.S. 430, 432] by the routes and general plan; and that the work was 'being thus performed by said defendant McDonald and the said Shaler without any authority other than certain directions given by the chief engineer employed by the board of rapid transit commissioners and embodied in certain so-called working drawings, or detail drawings, prepared by him or at his instance, and recently approved informally by said board. And . . . that the fact that such directions had been given by the chief engineer and that said work was being thus performed by the contractor, as aforesaid, was not until recently specifically known to said board; that such action of said chief engineer and contractor has never been formally or specifically approved by said board; that there has been no change made or authorized by said board in the said 'routes and general plan,' nor has there been any modification of the contract or specification with reference to the construction of that part of the tunnel lying under Park avenue between Thirty-third and Forty-first streets; that no notice was given to any of the property owners along said street that it was proposed by the defendants or any of them to change the position of the tunnel to any material extent from the position shown and described in the said 'routes and general plan,' nor was any opportunity ever given to said property owners or the citizens generally to be heard with respect to any such change.'
Complainant further averred 'that at none of the times herein mentioned did the said board of rapid transit railroad commissioners have authority (if at all) to enter into any contract for the construction of any rapid transit railroad under or upon the said Park avenue, except in accordance with the said 'routes and general plan' contained in the said resolutions of January 14th and February 4th, 1897, and that at no time did the said board have authority to prepare detailed plans and specifications, except (if at all) in accordance with the said general plan of construction, or to alter any plans or specifications prepared by them, excepting in accordance with said general plan of construction. That the act of the [193 U.S. 430, 433] said board in permitting the defendants McDonald and the said Shaler to enter upon that part of Park avenue between Thirty-third and Forty-first streets where the tunnel is now in process of construction, as aforesaid, was illegal and unauthorized, and the defendants McDonald and the said Shaler have entered upon the same unlawfully and without authority; and for the further reason that the construction of the rapid transit railway on the easterly side of Park avenue, in front of your orator's said premises, takes his property without due process of law, in violation of the provisions of the 14th Amendment to the Constitution of the United States, and that said rapid transit act, so far as it purports to authorize the construction of a tunnel and railway in said Park avenue without the consent of abutting owners or compensation therefor, is void, because it deprives your orator of his property without due process of law, in violation of the provisions of the said amendment.'
On the bill and affidavits, complainant moved for an injunction pendente lite, and defendants resisted the motion, submitting, in pursuance of stipulation, affidavits filed in their behalf in the case of Huntington v. New York, the same defendants, since brought here, numbered at this term 173, and argued with this case. The opinion in that case (118 Fed. 683) was adopted in this, and the court, of its own motion, under 5 of the act of March 3, 1875, chap 137 [18 Stat. at L. 472, U. S. Comp. Stat. 1901, p. 511], entered a decree dismissing the bill for want of jurisdiction, and certified that question to this court:
Messrs. Maxwell Evarts and Arthur H. Masten for appellant.
[193 U.S. 430, 435] Messrs. Edward M. Shepard, Pratt A. Brown, and De Lancey Nicoll for appellees.
Statement by Mr. Chief Justice Fuller:
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 14th 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 plans adopted must be obtained, and any change in the detailed plans and specifications must 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. Rapid Transit R. Co. 38 Misc. 549, 77 N. Y. Supp. 1083; Barney v. New York, 39 Misc. 719, 80 N. Y. Supp. 972, 83 App. Div. 237, 82 N. Y. Supp. 124.
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 14th Amendment, and the circuit court was right in dismissing it for want of jurisdiction.
Controversies over violations of the laws of New York are [193 U.S. 430, 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 , ante, p. 53, 24 Sup. Ct. Rep. 53; Civil Rights Cases, 109 U.S. 3 , 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Virginia v. Rives, 100 U.S. 313 , 25 L. ed. 667.
In Virginia v. Rives, referring to an alleged denial of civil rights on account of race and color in the impaneling 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:
In the Civil Rights Cases, in which the court was dealing with the act of March 1, 1875, 18 Stat. at L. 335, chap. 114 (U. S. Comp. Stat. 1901, p. 1260), Mr. Justice Bradley said:
There are many cases in this court involving the application of the 11th 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 , 35 L. ed 363, 11 Sup. Ct. Rep. 699, Mr. Justice Lamar defined the two classes to be, [193 U.S. 430, 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 to be, those brought against officers of the Wesley, 167 U.S. 204 , 42 L. ed. 137, 17 Sup. Ct. Rep. 770, and Fitts v. McGhee, 172 U.S. 516 , 43 L. ed. 535, 19 Sup. Ct. Rep. 269. Appellant's counsel rely on certain expressions in the opinion in Ex parte Virginia, 100 U.S. 339 , 25 L. ed. 676, 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 case Manhattan R. Co. v. New York, 18 Fed. 195; Kiernan v. Multnomah County, 95 Fed. 849; Re Storti, 109 Fed. 807.
Scott v. McNeal, 154 U.S. 34 , 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, and Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 , 41 L. ed. 979, 17 Sup. Ct. Rep. 581, 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 & T. Co. 154 U.S. 362 , 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047, 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- [193 U.S. 430, 441] mission, their action could not be regarded as unauthorized, even though they may have exercised the discretion unfairly.
Similarly in Pacific Gas Improv. v. Ellert, 64 Fed. 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 state law, but in opposition to plain prohibitions.
Section 5 of the act of March 3, 1875, 18 Stat. at L. 470, chap. 137 ( U. S. Comp. Stat. 1901, p. 508), provided that if, in any suit in the circuit court, it should appear, to the satisfaction of the court, at any time, 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. at L. 522, chap. 373, re-enacted August 13, 1888, 25 Stat. at L. 433, chap. 866 (U. S. Comp. Stat. 1901, p. 515) (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 demurrer, or on the proofs by affidavit.