Syllabus. Corp. Comm'n v. Lowe, 281 U.S. 431 (1930)
Case details
Citation
281 U.S. 431
Full caption
Syllabus. CORPORATION COMMISSION OF OKLAHOMA ET AL. V. LOWE, DOING BUSINESS UNDER THE TRADE NAME OF CAPITOL HILL GIN COMPANY.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 19, 1930
Majority
Hughes (Chief Justice)
Syllabus.
CORPORATION COMMISSION OF OKLAHOMA
ET AL. V. LOWE, DOING BUSINESS UNDER THE TRADE NAME OF CAPITOL HILL GIN COMPANY.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF OKLAHOMA.
No. 454. Argued April 29,1930.—Decided May 19, 1930.
1
One who attacks a state law under the equal protection clause of the Fourteenth Amendment must show clearly that it creates against him the discrimination complained of. P. 438.
2
It is to be presumed that the State, in enforcing its local policies, will conform to the requirements of federal guaranties; and doubts on this point are to be resolved in favor of the State. Id.
3
An individual, licensed to operate cotton gins in Oklahoma, sought to enjoin a state commission from issuing to a farmers’ cooperative company a license to gin cotton in his locality, claiming that inasmuch as the cotton-ginning business is regulated by Oklahoma as a public utility, including the rates chargeable, he would be inhibited from reducing his rates indirectly by returning any part of his earnings to his customers, whereas the company, in virtue of the Act under which it was incorporated, was expressly authorized to distribute a portion of its net earnings among those who would deal with it, whether cooperative members or not, in proportion to their dealings, and would thus be allowed an unreasonable, discriminatory advantage in the same line of competitive business, contrary to the equal protection clause of the Fourteenth Amendment. Held that, as the plaintiff adduced no law or regulation of the State denying him the privilege of distributing net earnings to patrons upon the basis and in a manner similar to that allowed to the corporation, and as the counsel for the Commission stated at the oral argument that he knew of no such law or regulation, the statute with respect to distribution of net earnings must be regarded as a declaration that such a distribution among patrons of cotton gins is in accord with the policy of the State, and, until the contrary appears, it must be assumed that in giving effect to such policy the State will not permit injurious and unreasonable from issuing a license to the Farmers Union Cooperative Gin Company to construct and operate a cotton gin at Packingtown, Oklahoma. The appellee operates a cotton gin at Capitol Hill, Oklahoma City, under a license issued by the Corporation Commission, and the ground of the suit was that the issuing of a license to the Farmers Union Cooperative Gin Company, in view of the privileges with which that company would be able to operate under the applicable statute of Oklahoma, would constitute an injurious invasion of the appellee’s business and an unreasonable discrimination against him, thus depriving him of his property without due process of law and denying him the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution. The District Court, composed of three judges, entered a final decree granting a permanent injunction against the issuing of the license, and the defendants in the suit, the Corporation Commission and the Farmers Union Cooperative Gin Company, have brought this appeal.
discrimination, leaving to the plaintiff his appropriate remedy if discrimination should be practiced in the future. P. 437. Reversed.
Appeal from a decree of the District Court permanently enjoining the Corporation Commission from granting a cotton-ginning license.
Messrs. S. P. Freeling and E. S. Ratliff for appellants.
Mr. Robert M. Rainey, with whom Messrs. Streeter B. Flynn and Alger Melton were on the brief, for appellee.
Mr . Chief Justice Hughes delivered the opinion of the Court.
This suit was brought by the appellee, William Lowe, to restrain the Corporation Commission of Oklahoma
Upon the hearing in the District Court there was an agreed statement of facts, from which it appears that the appellant company is a domestic corporation of Oklahoma, organized under Article XIX of Chapter 34, Compiled Statutes of Oklahoma of 1921; that the company filed with the Corporation Commission an application for a license to operate a cotton gin as a public utility at Packingtown, a part of Oklahoma City; that the place where it was proposed to locate the gin is about two and one-half miles from appellee’s gin at Capitol Hill; that the appellee also operates a cotton gin at Wheatland, Oklahoma, about ten miles from the proposed site of the gin of the appellant company; and that these gins of the appellee and of the appellant company would be in the same cotton producing territory and would be in competition. It was also agreed that the appellee had filed with the Corporation Commission his written protest against the granting of the license to the appellant company; that the Corporation Commission had heard the application and considered the objection, and that unless restrained by the court the Corporation Commission would issue the license to the appellant company and its proposed gin would be put in operation.
The bill of complaint alleged that cotton gins are public utilities under the law of Oklahoma and that the Corporation Commission is vested with authority to regulate them and to fix the rates, charges, and rules to be observed in their operation. There is no controversy upon these points. The dispute grows out of the privileges accorded by statute to the appellant company as a corporation formed to conduct business upon a cooperative plan. Compiled Statutes of 1921, secs. 5637-5652, as amended in 1923. The particular statutory provision involved is found in section 5648, as follows:
“ Dividends and profits—reserve fund. The directors, subject to revision by the stockholders, at any general or
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special meeting lawfully called, shall apportion the net earnings and profits thereof from time to time at least once in each year in the following manner:
“(1) Not less than ten per cent thereof accruing since the last apportionment shall be set aside in a surplus or reserve fund until such fund shall equal at least fifty per cent of the paid up capital stock.
“(2) Dividends at a rate not to exceed eight per cent per annum, may, in the discretion of the directors, be declared upon the paid up capital stock. Five per cent may be set aside for educational purposes.
“(3) The remainder of such net earnings and profits shall be apportioned and paid to its members ratably upon the amounts of the products sold to the corporation by its members, and the amounts of the purchases of members from the corporation: provided, that if the bylaws of the corporation shall so provide the directors may apportion such earnings and profits in part to nonmembers upon the amounts of their purchases and sales from or to the corporation.”
The precise contention of the appellee is that under this statute, if a license is granted to appellant company, it will be able to carry on its business on more favorable terms than are available to the appellee, since, it is said, it “will be compelled, although engaged in a regulated public business as a public utility, to grant refunds and rebates to its patron members and will have the right and privilege of making such refunds and rebates to non-member patrons upon the amount of their patronage.” The appellee argues that he is prohibited from making refunds and rebates, and is compelled, in the performance of his public duty, to charge rates fixed by the Corporation Commission, which will compel him to compete with appellant gin company upon unequal terms.”
In Frost v. Corporation Commission of Oklahoma, 278 U. S. 515, the Court concluded that one who had complied with the statutes of Oklahoma and had obtained a permit to operate a cotton gin, held a franchise which constituted a property right, and that while this right did not preclude the State from making similar valid grants to others, it was an exclusive right as against attempts to operate a competing gin without a permit or under a void permit. In this view, it was decided that a state statute which permitted an individual to engage in such a business only upon his first showing a public necessity, but allowed a corporation to engage in the same business, in the same locality, without such a showing, discriminated against the individual in violation of the equal protection clause of the Fourteenth Amendment. The appellee invokes the principle of this decision upon the ground that in the present case he will be subject, under the state law, to an unjustifiable discrimination in the competition which will ensue if a license is granted to the appellant company.
The appellants take issue with this contention. They urge, in substance, that at best the appellee’s complaint is premature, that he has not yet suffered, and does not know that he will suffer, any injury as a result of the statutory provision of which he complains. But if the appellant company, by virtue of the statute, is placed on a more favorable basis in the conduct of its business, by being able to hold out to its patrons the prospect of returns which the appellee by reason of the law binding upon him cannot offer to his patrons, it is apparent that the injury of this discrimination may be inflicted at the outset.
Assuming that the complaint is not premature in this respect, and that the discrimination, if it exists under the law, would be immediately effective, we are brought to p. 436the question whether the appellee is prevented by the law of Oklahoma from offering, and actually making, a distribution of profits to his patrons similar to that permitted by the statute in the case of the appellant company. The appellee is an individual, transacting business as such, as his bill of complaint shows, and he is not bound by provisions governing corporate organization. He must conduct the business of cotton ginning in conformity with the law of the State, but he may deal with the profits of that business as he sees fit, if he does not act contrary to that law. The question is not as to the mere economic advantage or disadvantage to an individual owner of a cotton gin of a distribution of net earnings upon a basis similar to that permitted by the statute in the case of the appellant company, or of the mere disinclination of an individual owner to make such a distribution. The question is whether the appellant company has a privilege under the statute in this respect which the law of the State refuses to the appellee and hence the appellee is denied the equal protection of the laws.
The statutes of Oklahoma characterize the business of cotton ginning as a “public business,” and provide that the Corporation Commission “ shall have the same power and authority and be charged with the duty of regulating and controlling such cotton gins in all matters relating to the performance of public duties and the charges therefor, and correcting abuses and preventing unjust discrimination and extortion, as is exercised by said Commission as to transportation and transmission companies and shall have the same power to fix rates, rules, charges and regulations to be observed by such person or persons, or corporation, operating gins, and the affording of all reasonable conveniences, facilities and service as it may impose as to transportation or transmission companies.” p. 437Compiled Statutes of Oklahoma of 1921, secs. 3712, 3715, as amended. Under this authority, the Corporation Commission establishes rates and charges for the ginning of seed cotton, and it is agreed that these rates are applicable to all engaged in the cotton ginning business for the general public. There is no basis for an assumption that there will be any difference in rates and charges as applied to the appellee and the appellant company for similar services.
With respect to the distribution of net earnings, the Corporation Commission and the appellant company have argued “ that there is no law in the State of Oklahoma against rebates,” and, further, that the so-called “patronage dividend,” or a ratable distribution of net earnings to patrons upon the basis of their purchases and sales, as contemplated by the statute in question, “is not a rebate as embraced within any definition of the word as heretofore used.” Apart from terminology, the important point is whether, under the law of Oklahoma, appellee may do in his business what the appellant is permitted to do, in distributing net earnings. The appellants, both the Corporation Commission and the company, say that he may.
The question was distinctly raised upon the oral argument of the present case before this Court. Not only was the appellee unable to bring to our attention any provision of the law of the State, or any regulation of the Corporation Commission, denying to the appellee the privilege of distributing net earnings to his patrons upon the basis of purchases and sales in a manner similar to that provided in the statute relating to the appellant company, but the counsel for the Corporation Commission in response to direct inquiry stated to the Court that he knew of no such provision of law or regulation of the p. 438Corporation Commission. See Clark v. Poor, 274 U. S. 554, 557, 558.
It was incumbent upon the appellee in invoking the protection of the Fourteenth Amendment to show with convincing clarity that the law of the State created against him the discrimination of which he complained. An infraction of the constitutional provision is not to be assumed. On the contrary, it is to be presumed that the State in enforcing its local policies will conform its requirements to the Federal guarantees. Doubts on this point are to be resolved in favor of, and not against, the State. Grenada County Supervisors n . Brogden, 112 U. S. 261, 269; St. Louis, Southwestern Railway Company v. Arkansas, 235 U. S. 350, 369; Hendrick n . Maryland, 235 U. S. 610, 621; Pullman Company v. Richardson, 261 U. S. 330, 340; South Utah Mines v. Beaver County, 262 U. S. 325, 331.
* In the present instance, the authority given to the appellant company by the statute with respect to the distribution of net earnings may be regarded as a declaration that such a distribution of net earnings among patrons of cotton gins is not contrary to, but in accord with, the policy of the State, and, until the contrary appears, the assumption must be that in giving effect to its policy, the State will not permit an injurious and unreasonable discrimination. If, hereafter, in the regulation of his business, the appellee is subject to such a discrimination in violation of his constitutional rights, he will have his appropriate remedy.
The decree of the District Court is reversed and the cause remanded with direction to dismiss the bill of complaint.
It is so ordered.
Syllabus.
CINCINNATI v. VESTER.
SAME v. RICHARDS et al .
SAME v. REAKIRT.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
Nos. 372,373, and 374. Argued April 17, 21, 1930.—Decided May 19, 1930.
1. In considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one. P. 446.
2. Under Art. XVIII, § 10, of the Ohio Constitution, which provides that a municipality in appropriating property for a public use may “in furtherance of such public use” appropriate an excess over that actually to be occupied by a proposed improvement, and under § 3679, General Code of Ohio, which requires that in the making of an appropriation there shall be a resolution of the municipal council “ defining the purpose of the appropriation ” etc., a condemnation of private land in excess of that taken for widening a street can not be sustained where its purpose is stated in the resolution only as being “ in furtherance ” of the widening of the street and “ necessary for the complete enjoyment and preservation of said public use,” and where a like general, but no specific, explanation of purpose is in the ordnance providing for the excess appropriation. P. 447.
3. The power conferred on a municipal corporation to take private property for public use must be strictly followed. P. 448.
4
This Court will not decide important constitutional questions unnecessarily or hypothetically. P. 448.
5
Questions relating to the constitutional validity of an excess condemnation by a city should not be determined upon conjecture as to the contemplated purposes when the object of the excess appropriation is not set forth as required by the local law. P. 449. 33 F. (2d) 242, affirmed.
Cert iorar i, 280 U. S. 545, to review decrees affirming permanent injunctions awarded by the District Court in suits by owners of land in Cincinnati to restrain appropriations by the City.
Messrs. John D. Ellis, City Solicitor of Cincinnati, and Ed. F. Alexander, Assistant City Solicitor, for petitioner.
Mr. John Weld Peck, with whom Messrs. Milton Sayler and Frank H. Shaffer, Jr., were on the brief, for respondents.
Messrs. Gilbert Bettman, Attorney General of Ohio, and L. F. Laylin, by special leave of Court, filed a brief as amici curite, on behalf of the State of Ohio.
Messrs. Hamilton Ward, Attorney General of New York, and Henry S. Manley, Assistant Attorney General, by special leave of Court, filed a brief as amici curice, on behalf of the State of New York.
Mr . Chief Justice Hughes delivered the opinion of the Court.
These three cases were heard together. The suits were brought by owners of land in the City of Cincinnati to restrain the appropriation of their property by the City, upon the grounds that the taking was not in accordance with the applicable provisions of the constitution and statutes of Ohio and would constitute a deprivation of property without due process of law in violation of the Fourteenth Amendment, it being alleged that the appropriation was not for a public use. Under the law of Ohio these questions could be raised only by injunction proceedings. P. C. C. & St. L. Railway Co. v. Greenville, 69 0. S. 487, 496; Sargent v. Cincinnati, 110 0. S. 444. Decrees in favor of plaintiffs for a permanent injunction p. 441were entered in the District Court and were affirmed by the Circuit Court of Appeals. 33 F. (2d) 242. This Court granted writs of certiorari, 280 U. S. 545.
The immediate purpose of the City of Cincinnati in the condemnation proceedings was the widening of Fifth Street, one of the principal thoroughfares of the City. A resolution of the City Council, passed July 6, 1927, declared its intention to appropriate for this purpose a strip of land 25 feet in width, adjacent to the south side of Fifth Street, and no question is raised as to the validity of the appropriation of this strip.
The controversy relates to what is known as “excess condemnation,” that is, the taking of more land than is needed to be occupied by the improvement directly in contemplation. The constitution of Ohio provides (Article XVIII, Section 10) :
“A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be appropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired for the improvement and excess, and they shall not be a liability of the municipality nor be included in any limitation of the bonded indebtedness of such municipality prescribed by law.”
In this instance, the City proposes to appropriate property in excess of that actually to be occupied by the widened street, and this excess condemnation embraces the following properties of the plaintiffs:
The Vester property. This is a lot, with a three story brick residence, on Broadway, a street intersecting Fifth Street. The lot is 27 feet wide by 90 feet deep running p. 442parallel to Fifth Street. It lies 44 feet south of Fifth Street and is thus 19 feet south of the 25-foot strip taken for the street widening. No part of this property is taken for the 25-foot strip or abuts on the widened street, and the entire lot is sought to be appropriated in the proceeding for excess condemnation. Between the Vester property and the 25-foot strip is the lot of another owner.
The Richards property. This is a leasehold of an improved lot 23 feet wide running from Fifth Street 100 feet through to Buchanan Street, which is parallel to Fifth Street on the south. It is held by the plaintiffs, Richards, with privilege of purchase. The north 25 feet of this lot is taken as a part of the strip for the widened street, and the remaining 75 feet to Buchanan Street is sought to be taken in excess condemnation.
The Reakirt property. This is a tract at the comer of Fifth Street and Sycamore Street (an intersecting street), 138 feet on the south side of Fifth Street and 149 feet on the west side of Sycamore Street. The tract, which is vacant except for a small gasoline filling station, embraces several lots, two of which are not contiguous to the 25-foot strip.
Among the statutory provisions of Ohio relating to the condemnation of property by municipal corporations is the following with respect to the declaration of the purpose of the appropriation (General Code of Ohio, Section 3679):
“Sec. 3679. Resolution shall be passed. When it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining the purpose of the appropriation, setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated. For waterworks purposes and for the purpose of creating reservoirs to provide for a p. 443supply of water, the council may appropriate such property as it may determine to be necessary.”
The excess condemnation of the properties in question is proposed by the resolution adopted by the City Council, but the purpose of the appropriation is stated in the resolution only in the most general terms as being “in furtherance of the said widening of Fifth Street ” and “ necessary for the complete enjoyment and preservation of said public use.” The ordinance providing for the excess appropriation was not more specific, declaring simply that it is “ in furtherance of the public use,” described as the widening of Fifth Street, and “for the more complete enjoyment and preservation of the benefits to accrue from said public use.” In what way the excess condemnation of these properties was in furtherance of the widening of the street, and why it was necessary for the complete enjoyment and preservation of the public use of the widened street are not stated and are thus left to surmise.
The plaintiffs alleged in their bills of complaint that the excess condemnation is “ a mere speculation upon an anticipated increase in the value of the properties adjacent to said improvement,” and that the properties were taken “with the design of reselling the same at a profit to private individuals to be used for private purposes, and no use of said property by or for the public is intended or contemplated.” The answers of the City denied these allegations and summed up the position of the City by saying that the application of the principle of excess condemnation in these cases would enable the City (1) “to further the appropriate development of the south side of Fifth Street ” by using or disposing of the excess properties in tracts “with such size and with such restrictions as will inure to the public advantage,” and (2) that the increase in value of the properties in question which may accrue by reason of the improvement contemplated by the p. 444City “will pay in part the very heavy expense to which the City will be put in effecting the improvement.”
On the hearing in the District Court, the plaintiffs and the defendant introduced evidence as to the condition and the value of plaintiffs’ properties. There was also a stipulation of evidence as to the amount of money available for the street widening, the expense of the appropriation of the 25-foot strip, and the total expense of the entire proposed appropriation. The stipulation gave a general description of Fifth Street and of the improvements of the squares adjoining the widened street. None of the evidence defined in any specific manner the purpose of the excess condemnation.
The City argues that in resorting to excess condemnation legislative bodies generally have had in view the following three purposes (1) the avoidance of remnant lots, (2) the preservation and amplification of the improvement, and (3) the recoupment of expense from increased values. Both the District Court and the Circuit Court of Appeals concluded that the theory of remnants, and of the protection and preservation of the improvement, were not applicable to the present cases. Both courts considered that the sole purpose of the City was the recoupment by the resale of the properties in question of a large part of the expense of the street widening. In this view, both courts held that the excess condemnation was in violation of the constitutional rights of the plaintiffs upon the ground that it was not a taking for a public use “within the meaning of that term as it heretofore has been held to justify the taking of private property.” The Circuit Court of Appeals added that the provision of the constitution of Ohio relating to excess condemnation, supra,11 would seem to mean in furtherance of the normal use to which the property that is occupied by the improvement is devoted,—here the use and preservation of the street for the purposes of travel,” p. 445and the court held that if the provision means that property may be taken “for the purpose of selling it at a profit and paying for the improvement it is clearly invalid.”
In this Court, the City challenges the propriety of the assumption upon which these rulings below were based, that is, that the City was proceeding on the theory of the recoupment of expense by resale of the properties. While contending that this would be a valid purpose under the constitution of Ohio, and would constitute a taking for public use and therefore would be consistent with the Fourteenth Amendment, the City insists that its purpose in the present cases can not thus be delimited. The City calls attention to the general statements in the resolution and ordinance adopted by the City Council and declares that these broad declarations constitute “practically all the evidence which directly shows the purpose of the city.” While reference is made to what is said in its pleadings with respect to its position, the argument for the City adds that “ obviously an impersonality such as a city cannot very well testify as to what its plans and hopes are.” The Court is asked to take judicial notice of certain desirable objects which the City might have in view. The City urges that, when the improvement is completed, the City Council will doubtless be in a position to determine what sized tracts and what kinds of restriction will be best suited for the harmonious development of the south side of Fifth Street. But the City also insists that it may never resell the excess; that it is not compelled to do so by the constitution; that the question is one to be determined in the future; that recoupment can come only from a sale, and that until by some act the City evidences an intent to sell it cannot be said to be proceeding only on a theory of recoupment. The City says that it may preserve the public use in many ways, and that sale with restrictions is one that may hereafter be p. 446chosen, but that there is no warrant upon this record for discarding every possible use in favor of a use by sale that may, among other things, result in a possible recoupment-
We are thus asked to sustain the excess appropriation in these cases upon the bare statements of the resolution and ordinance of the City Council, by considering hypothetically every possible, but undefined, use to which the City may put these properties, and by determining that such use will not be repugnant to the rights secured to the property owners by the Fourteenth Amendment. We are thus either to assume that whatever the City, entirely uncontrolled by any specific statement of its purpose, may decide to do with the properties appropriated, will be valid under both the state and Federal constitutions; or to set up some hypothesis as to use and decide for or against the taking accordingly, although the assumption may be found to be foreign to the actual purpose of the appropriation as ultimately disclosed and the appropriation may thus be sustained or defeated through a misconception of fact.
It is well established that in considering the application of the Fourteenth Amendment to cases 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 local conditions and considers with great respect legislative declarations and in particular the judgments of state courts as to the uses considered to be public 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.1 In the present in-
r Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 159; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403, 417; Madisonville Traction Co: v. Saint Bernard Mining Co., 196 U. S. 239, 252; Clark p. 447stance, we have no legislative declaration, apart from the statement of the City Council, and no judgment of the state court as to the particular matter before us. Under the provision of the constitution of Ohio for excess condemnation when a city acquires property for public use, it would seem to be clear that a mere statement by the council that the excess condemnation is in furtherance of such use would not be conclusive. Otherwise, the taking of any land in excess condemnation, although in reality wholly unrelated to the immediate improvement, would be sustained on a bare recital. This would be to treat the constitutional provision as giving such a sweeping authority to municipalities as to make nugatory the express condition upon which the authority is granted.
To the end that the taking shall be shown to be within its authority, the municipality is called upon to specify definitely the purpose of the appropriation. This is the clear import of the provision of the Ohio statute (Ohio General Code, sec. 3679, supra) that the City Council, when it is deemed necessary to appropriate property, shall pass a resolution “ defining the purpose of the appropriation.” It can not be said that this legislative requirement relates only to the principal appropriation and not to the excess appropriation. It must be deemed to apply, according to its express terms, to every appropriation of private property by a municipality. The importance of the definition of purpose would be even greater in the case of taking property not directly to be occupied by a proposed public improvement than in the case of the latter which might more clearly speak for itself.
v. Nash, 198 U. S. 361, 369; Strickley v. Highland Boy Mining Co., 200 U. S. 527, 531; Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 606; Sears v. City of Akron, 246 U. S. 242, 251; Rindge Company v. County of Los Angeles, 262 U. S. 700, 705; Old Dominion Land Co. v. United States, 269 U. S. 55, 66.
The general declaration of the resolution of the City Council, and of the ordinance if that may be read with the resolution, for the excess condemnation in the present cases, is plainly not a definition. To define is to limit, and that which is left unlimited, and is to be determined only by such future action as the City may hereafter decide upon, is not defined. The City’s contention is so broad that it defeats itself. It is not enough that property may be devoted hereafter to a public use for which there could have been an appropriate condemnation. Under the guise of an excess condemnation pursuant to the authority of the constitutional provision of Ohio, private property could not be taken for some independent and undisclosed public use. Either no definition of purpose is required in thé case of excess condemnation, a view of the statute which cannot be entertained, or the purpose of the excess condemnation must be suitably defined. In this view, in the absence of such a definition, the appropriation must fail by reason of non-compliance with statutory authority.
We understand it to be the rule in Ohio, as elsewhere, that the power conferred upon a municipal corporation to take private property for public use must be strictly followed. Harbeck n . Toledo, 11 Ohio St. 219, 222, 223; Grant n . Village of Hyde Park, 67 Ohio St. 166, 172, 173; Farber v. Toledo, 104 Ohio St. 196, 200; Roosevelt Hotel Building Company v. Cleveland, 25 Ohio App. 53, 63, 64. The validity of the excess condemnation upon the ground of non-compliance with the state law was challenged in the bills of complaint in these suits. The respondents have made the same contention here. The City has not met it by referring us to any decision of the courts of Ohio construing the statute involved or sustaining the excess appropriation in the absence of a definition of purpose. It is an established principle governing the exercise of the jurisdiction of this Court, that it will not decide im- p. 449439 Syllabus.
portant constitutional questions unnecessarily or hypothetically. Liverpool, New York & Philadelphia Steamship Company v- Commissioners of Emigration, 113 U. S. 33, 39; Siler v. Louisville & Nashville Railroad Company, 213 U. S. 175,191,193; United States v. Delaware & Hudson Company, 213 U. S. 366, 407. The present cases call for the application of this principle. Questions relating to the constitutional validity of an excess condemnation should not be determined upon conjecture as to the contemplated purpose, the object of the excess appropriation not being set forth as required by the local law.
We conclude that the proceedings for excess condemnation of the properties involved in these suits were not taken in conformity with the applicable law of the State, and in affirming the decrees below upon this ground we refrain from expressing an opinion upon the other questions that have been argued.
Decrees affirmed.