Bailey v. Anderson, 326 U.S. 203 (1945)

Appellant contends here, as he did in the state courts, that § 1969j (4) infringes the asserted constitutional immunity by sanctioning appellee’s entry upon the land and the alteration of its physical condition, in advance of the appointment of the Commissioners and before they could p. 205view the land for the purpose of fixing its fair value upon condemnation. But it has long been settled that due process does not require the condemnation of land to be in advance of its occupation by the condemning authority, provided only that the owner have opportunity, in the course of the condemnation proceedings, to be heard and to offer evidence as to the value of the land taken. Bragg v. Weaver, 251 U. S. 57, 62, and cases cited; Joslin Co. v. Providence, 262 U. S. 668,677; Georgia v. Chattanooga, 264 U. S. 472, 483. Its value may be fixed by viewers without a hearing, after entry upon the land, if their award is subject to a review in which a trial upon evidence may be had. Pearson v. Yewdall, 95 U. S. 294,296; Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569; Bragg n. Weaver, supra, 59, and cases cited; North Laramie Land Co. v. Hoffman, 268 U. S. 276, 284-285.

Appellant also insists that the state court judgment failed to include in the award interest from the date of the occupation of his land by appellee; that the award thus denied to him just compensation for the land taken, to violation of the due process clause of the Fourteenth mendment. See Delaware, L. & W. R. Co. v. p. 206Morristown, 276 U. S. 182. Appellant’s petition in the circuit court asked that the award include interest from the date of taking. The circuit court, without explanation, rejected his claim for interest. But throughout the proceedings in the circuit court appellant made no claim to interest on constitutional grounds, and made no attack on the constitutionality of the award or the court’s decree because of the asserted denial of interest. Further, nothing appears in the record to indicate that the Commissioners’ award of damages did not include the interest claimed. Appellee argues that the applicable statutes contemplate that the award shall include interest as compensation “for the damage and delay” from the time of the occupation of the premises to the date of the Commissioners’ report and for such further time within which application may be made for judicial review, see City of Richmond v. Goodwyn, 132 Va. 442,452-454,112 S. E. 787; Export Leaf Tobacco Co. v. Richmond, 163 Va. 145,155—156,175 S. E. 753. Nothing appears to the contrary.

Appeal from the affirmance of a judgment in a declaratory judgment proceeding, wherein the constitutionality p. 209of a state statute, as applied to the appellant, was sustained.

Appellant alleges in its amended complaint that prior to the enactment of the statute it had acquired a tract of p. 210land within Cass County, North Dakota, in satisfaction of a mortgage indebtedness, and that it has since leased the property out to farmers who have used it as farm land. The amended complaint further alleges that since the enactment of the statute appellant has constantly attempted to sell this tract, and that it has been and will be unable to sell it for an amount equal to the original mortgage debt before the expiration of the statutory ten-year period; that any sale which the county, proceeding under the statute, might be able to make, would be for substantially less than the amount appellant has invested in the land and the costs of sale. The amended complaint sets up that the statute, as applied to appellant’s tract, violates the privileges and immunities clauses of Article IV, § 2 and the Fourteenth Amendment of the Federal Constitution, the contract clause, Article I, § 10, and the due process and equal protection clauses of the Fourteenth Amendment, and prays for a judgment that the statute is unconstitutional and void as applied to appellant and for an injunction restraining appellee county from enforcing the statute.

Appellant does not invoke the commerce clause, and is neither a citizen of a state nor of the United States p. 211within the protection of the privileges and immunities clauses of Article IV, § 2 of the Constitution and the Fourteenth Amendment. Paul v. Virginia, 8 Wall. 168, 177; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 187; Selover, Bates & Co. v. Walsh, 226 U. S. 112, 126. The State of North Dakota has granted no charter or certificate of incorporation to appellant, and has issued to it no permit to do business or own property within the state which could give rise to contract rights which appellant could assert against the state. None are to be implied from appellant’s mere acquisition of land in the state either before or after the enactment of the statute. Erie R. Co. v. Pennsylvania, 21 Wall. 492; Connecticut Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 620-622; Hammond Packing Co. v. Arkansas, 212 U. S. 322, 344-5.

The Fourteenth Amendment does not deny to the state power to exclude a foreign corporation from doing business or acquiring or holding property within it. Horn Silver Mining Co. v. New York, 143 U. S. 305, 312—315; Hooper v. California, 155 U. S. 648, 652; Munday v. Wisconsin Trust Co., 252 U. S. 499; Crescent Oil Co. v. Mississippi, 257 U. S. 129, 137. While recognizing the unqualified power of the state to preclude its entry into the state for these purposes, appellant points out that the state has permitted it to enter and to invest its money in obligations secured by mortgage on land within the state, in consequence of which it lawfully acquired the land free of restrictions. Appellant argues that the state may not, by later legislation, force a sale of the land thus innocently acquired, under conditions which do not allow recovery of the original investment. But a state’s power to exclude a foreign corporation, or to limit the nature of the business it may conduct within the state, does not end as soon as the corporation has lawfully entered the state and there acquired immovable property. p. 212Subsequent legislation excluding such a corporation from continuing in the state has been sustained as an exercise of the general power to exclude foreign corporations which does not offend due process. Hammond Packing Co. v. Arkansas, supra, 342-3; see also Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83. Similarly, this Court has upheld legislation imposing burdens greater than those to which such corporations were subject at the time of their entry on the ground that the state might exclude them altogether at a later date. Philadelphia Fire Association v. New York, 119 U. S. 110; Horn Silver Mining Co. v. New York, supra; see also Crescent Oil Co. v. Mississippi, supra; Lincoln National Life Ins. Co. v. Read, 325 U. S. 673. Appellant, even if its activities in North Dakota are now restricted to the ownership of farm land within the state, stands in no better position to invoke the protection of the Fourteenth Amendment. The total exclusion of a corporation owning fixed property within a state requires it to sell or otherwise dispose of such property. Appellant must do no more. While appellant is not compelled by the present statute to cease all activities in North Dakota, the greater power includes the less.

Since the state may validly require appellant to sell its farm land, the contention that the statute is wanting in due process because conditions have been such since its enactment that appellant has been and will be unable to salvage an investment made more than ten years before raises no substantial constitutional question. The due process clause does not guarantee that a foreign corporation when lawfully excluded as such from ownership of land in the state shall recapture its cost. It is enough that the corporation, in complying with the lawful command of the state to part with ownership, is afforded a fair opportunity to realize the value of the land, and that the sale, when required, is to be under conditions reasonably p. 213calculated to realize its value at the time of sale. No reason is advanced for saying, and we cannot say, that the period of ten years allowed to appellant to dispose of the property, or its sale after ten years at public auction held under direction of the court and comparable generally to a mortgage foreclosure sale, fails to satisfy either of these conditions. As the North Dakota Supreme Court pointed out in its opinion, the statutory escheat of appellant’s land is effected by suit to which the corporation must be a party, with full opportunity to be heard in advance. The judgment of sale in conformity to the statute is entered by the court which “has the power to protect the rights of the corporation as to the notice and conduct of the sale by appropriate provisions in its judgment.”

We are thus asked to pass on the constitutionality of a possible application of the state statute in advance of its application to appellant, and of its authoritative construction by the state courts. Lacking such construction, without which no constitutional question can arise, the issue is not an appropriate one for adjudication by the declaratory judgment procedure. This Court is without power to give advisory opinions. It will not decide constitutional issues which are hypothetical, or in advance p. 214of the necessity for deciding them, or without reference to the manner in which the statute, whose constitutional validity is drawn in question, is to be applied. Federation of Labor v. McAdory, 325 U. S. 450, 459-463, and cases cited.

The North Dakota Legislature may have thought that its policy with reference to corporate-owned agricultural lands would be advanced by permitting corporations engaged in the business of dealing in farm lands to acquire. and sell without restriction lands forced upon the market by the statute. It could have thought that its policy would be in part defeated by withholding authority from farm cooperatives to acquire and use farm lands for agricultural p. 215purposes. Cf. United States v. Rock Royal Co-op., 307 U. S. 533, 562-564. Statutory discrimination between classes which are in fact different must be presumed to be relevant to a permissible legislative purpose, and will not be deemed to be a denial of equal protection if any state of facts could be conceived which would support it. Rast v. Van Deman & Lewis Co., 240 U. S. 342,357; Carmichael v. Southern Coal Co., 301 U. S. 495, 509, and cases cited.

This section was not construed by any state court in the present litigation and we are not advised why farming lands acquired in conformity to § 4 are not, as the section declares, made “subject ... to all of the provisions now contained” in the Act as amended, including those relating to the escheat and sale of farming lands. Nor does it appear that any such discrimination is in fact made in the enforcement of the statute. As we have already pointed out in this opinion, a constitutional question which turns on the construction and application of a statute which has neither been authoritatively construed nor applied by the state courts may not appropriately be decided by this p. 216Court. Federation of Labor v. McAdory, supra, and cases cited.