U.S. Supreme Court CITY OF CINCINNATI v. VESTER, 281 U.S. 439 (1930)

[Page 281 U.S. 439, 446]

chosen, 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. [Footnote 1] In the present in-

[Page 281 U.S. 439, 449]

portant constitutional questions unnecessarily or hypothetically. Liverpool, New York & Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S. Ct. 352; Siler v. Louisville & Nashville Railroad Co., 213 U.S. 175, 191, 193 S., 29 S. Ct. 451; United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 29 S. Ct. 527. 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. Footnotes

Footnote 1 Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 159, 17 S. Ct. 56; Missouri Pacific Ry. Co. v. Nebraska, 164 U.S. 403, 417, 17 S. Ct. 130; Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U.S. 239, 252, 25 S. Ct. 251; Clark v. Nash, 198 U.S. 361, 369, 25 S. Ct. 676, 4 Ann. Cas. 1171; Strickley v. Highland Boy Mining Co., 200 U.S. 527, 531, 26 S. Ct. 301, 4 Ann. Cas. 1174; Hairston v. Danville & Western Ry. Co., 208 U.S. 598, 606, 28 S. Ct. 331, 13 Ann. Cas. 1008; Sears v. City of Akron, 246 U.S. 242, 251, 38 S. Ct. 245; Rindge Co. v. County of Los Angeles, 262 U.S. 700, 705, 43 S. Ct. 689; Old Dominion Land Co. v. United States, 269 U.S. 558 66, 46 S. Ct. 39.