Earl Warren: Number 13, Lee Walker, Appellant, versus City of Hutchinson, Reno Country, Kansas, et al. Mr. Levy.
Herbert Monte Levy: May it please the Court. I should like to reserve my remaining time for rebuttal.
Earl Warren: You may do so. Mr. Littooy. Is that the way you pronounce it, Littooy?
Fred C. Littooy: That's correct Your Honor.
Earl Warren: Thank you.
Fred C. Littooy: May it please the Court. During the argument by Mr. Levy yesterday, there were some pertinent questions asked by embers of the Court in regard to the procedure used in Kansas, an imminent domain proceedings. Mr. Levy of New York apparently is not too well acquainted with our condemnation law in Kansas and so I would like to briefly outline to the Court the manner in which we have for the last 40 or more years condemned property in Kansas. The statute which is under consideration now was enacted in 1913 and although it may not be horrid by Eastern standards, it, at least is venerable by our Kansas standards. There -- this statute has been used by, not only cities but by counties, by townships, by school boards, by the State of Kansas, in other words, by any governmental unit that condemns land in Kansas. I would not estimate how many pieces of property have been condemned for public purposes under this statute. Greatly, this is the way it works. The procedural statute requires that the city passed a resolution finding that it is necessary to condemn certain land for public purpose. In this case, it was for the purpose of widening a street. This resolution directs the city engineer to prepare the description of the land and a survey of the same that is necessary for this condemnation and present the same to the City Commission. This resolution is published in the official city paper. At the following meeting, we incidentally have a meeting every Friday morning, as required by law, at the following meeting, this description from the engineer of the land necessary to be -- be condemned as presented to the City Commission. The City Commission then instructs me as city attorney to prepare an ordinance declaring it necessary to condemn this land for public purpose, which I had been due and this ordinance is read twice as required by law. It's been on first reading at one meeting and passed at the following meeting assuming that the Commission desires to pass it. The ordinance is then published on the official city paper as required by law and this ordinance passed by as the land to be condemned and the purpose for which it is condemned that specifies the voids that has been read from the street that is going to be condemned.
Speaker: Did they give the names of the property owners too? No, it does not. It describes the land but does not give the name of the property owners. Now, this is no secret proceeding by any means. In a town, our size with 35,000 people, we have a newspaper with a circulation of 55,000, which sounds like some people buy a couple a day, but at any rate, it is very well read and there is a reporter from the newspaper that covers all of the meetings of the Commissions, and he attends the -- and he comes by the city all everyday for a news and I can assure you that there is no secrecy involved or intended in any case of this nature at all.
Earl Warren: Suppose I am going to live outside of the community, in a distant part of your state where your newspaper didn't circulate, how would he be expected to hear the same (Voice Overlap)
Fred C. Littooy: He would not, except by the publication in the newspaper.
Earl Warren: In that same newspaper.
Fred C. Littooy: In that same newspaper, it must be the official city paper as required by a statute.
Hugo L. Black: May I ask, you also have notice by a publication sometime in connection with lawsuits, do you not?
Fred C. Littooy: Yes, we do, of course, quite all.
Hugo L. Black: You do, as always contained the name of the persons for the lawsuit?
Fred C. Littooy: Yes, they do.
Hugo L. Black: Do you have any other system at all that you give notice by publication where the names are left out except the --
Fred C. Littooy: Yes we do. In probate proceedings, when a state is commenced or closed, there is a notice published in the paper that -- that there was a petition for the probate of the will and that petition will be heard on a certain day.
Hugo L. Black: Does it give the name of the --
Fred C. Littooy: It does not.
Hugo L. Black: -- decedent?
Fred C. Littooy: It gives the name of the decedent, yes. That is correct. Then, after this ordinance is published and then -- and becomes effective which is actually the taking of the land there, finding that it is necessary to take it, it is a legislative taking, the ordinance then directs the city attorney to make application to the clerk of the District Court of the county for the appointment of appraisers to meet and appraise this land. That application is filed with the District Court and then the judge appoints three appraisers who take their oath and these appraisers then publish the notice which you see here in this transcript. This -- this notice must be published one time in the official city paper, it must be published at least 10 days before the appraisers meet. In this case, it was actually published 13 days before the appraisers met. There is no question of with what the procedure used by the city followed the statute.
Hugo L. Black: What page is that?
Fred C. Littooy: In the transcript, the notice --
Hugo L. Black: This particular notice.
Fred C. Littooy: -- is on page 22, or 26, excuse me.
William O. Douglas: What's the one on page 7?
Fred C. Littooy: Page 7, excuse me, page 7 is the notice. This track one described on this notice is the land owned by Mr. Walker which was condemned.
Harold Burton: And does that -- did that include the name of the individual, (Voice Overlap)?
Fred C. Littooy: Yes, it does. His name is found in the heading. It is addressed to the various landowners and it shows Lee Walker's name and then this, it does not show up where the track itself.
Harold Burton: And I understood yesterday that this -- in this particular instance, this was a well-known improvement as being made something like a -- a sports arena, something like that.
Fred C. Littooy: That is correct. We have just completed a large auditorium or sports arena there in Hutchinson and we had a street running by it and had to widen the street in order to take care of the traffic that went by there. It was a matter of common knowledge. Now, I, whether or not, Mr. Walker knew or whether not, I have no way of knowing that. But certainly, the improvement of the billing in this sports arena and the improvement of the street by it was certainly a matter of common knowledge and of wide interest in our town, of course.
Speaker: Mr. Littooy, do you happen to have a copy of the actual notice as it was printed that -- the pay of the newspapers?
Fred C. Littooy: I dot not. Not with me, we have -- we have one available. It is just that's shown in here.
Speaker: I wanted to see the print.
Fred C. Littooy: Well, it's a legal notice print. I --
Hugo L. Black: What page is -- was it on? Do you know? (Voice Overlap)
Fred C. Littooy: It is usually in the back, on the last two pages of the paper. All our legal notices are published in the same place, right near the funny papers.
William O. Douglas: (Inaudible) the others published on this day?
Fred C. Littooy: Oh, yes. I am sure there are -- there are ordinarily several published everyday. Now, this --
William O. Douglas: Nothing unusual.
Fred C. Littooy: No, no. This -- this paper has two issues, a morning and an evening issue and the notice is published in both the morning and evening issue of the paper.
Earl Warren: Do either the city or the county keep the names and addresses of the tax members?
Fred C. Littooy: We do not. Our county treasurer's assessment roles do not contain the address of the taxpayer. They have the name of the record owner there and they have the address of the piece of real estate that the record owner might live in another part of town or even out of town. It is not the -- the address of the record owner that is shown on the tax rolls.
Tom C. Clark: What (Inaudible)
Fred C. Littooy: Yes, I --
Tom C. Clark: (Inaudible)
Fred C. Littooy: Yes, sir. The commissioners then published this notice and they meet at the time and place specified in the notice and then proceed to the particular pieces of property which are to be condemned to appraise it on the spot.
Stanley Reed: Where -- where does that appear? Last paragraph?
Fred C. Littooy: Yes, it does. In other words, it appears in the last notice that they're going to meet, at the last paragraph, they will meet at the house of the city engineering and then -- and there to commence and proceed of the duties imposed and was required by law which is required that they view and appraise the property.
Stanley Reed: So you -- you'd have to -- whoever read this would have to know about that, that division of the law that may presume to go to the location of the property that make the impression last.
Fred C. Littooy: Well this provides -- this shows where they meet and ordinarily, they meet in the City Engineers Office to commence and ordinarily property owners come right in there at the very beginning and discuss it, the -- the appraisal with them right there and then they proceed to the particular pieces of property.
Stanley Reed: But -- but that's the only notice of the appraisal --
Fred C. Littooy: That's correct.
Stanley Reed: -- as you stand and the determination of the fact that it will be paid.
Fred C. Littooy: That is correct.
Stanley Reed: In the last paragraph that was said.
Fred C. Littooy: And then these -- these appraisers then proceed to the particular place of property involved. If so, they always go to the house at the landowners there to try to talk with him about it, if he is not, of course, then they go ahead and appraise the property.
Stanley Reed: They don't have to.
Fred C. Littooy: They do not have to, that is correct.
Stanley Reed: This reference doesn't show whether they look for this man or not.
Fred C. Littooy: That is correct.
Hugo L. Black: The Commission breaks.
Speaker: (Inaudible)
Hugo L. Black: That's right. They go and view the property and then go back to complete their appraisal.
Speaker: (Inaudible) more equity.
Hugo L. Black: That's correct.
Stanley Reed: Must they go to the property?
Fred C. Littooy: Yes. The statute requires a view and appraisal for the view of the property.
Hugo L. Black: Commissioners did the appraisal.
Fred C. Littooy: The -- the appraisers --
Hugo L. Black: Yes.
Fred C. Littooy: The three appraisers.
Hugo L. Black: Three appraisers, not the commissioners.
Fred C. Littooy: No, the three appraisers, they're called commissioners. On our statute, they're actually appraisers. These three commissioners appointed to appraise. So they view the property, then they file the report with the city clerk and this report then is referred to the City Commission at its next meeting for approval or disapproval. In other words, it might be that the city might wish to appeal from some of the values set by the appraisers. They might think they're too high. The city might wish to abandon some particular part of the proceeding of the condemnation and the city has 10 days after the report is filed within which to pass a resolution abandoning any course on the proceedings they wish.
Hugo L. Black: How long does the -- does the landowner have to deal?
Fred C. Littooy: He has 30 days from the time this report of commissioners has filed with the City Commission.
Hugo L. Black: I mean after the appraisal.
Fred C. Littooy: After -- pardon, sir?
Hugo L. Black: After the appraisal.
Fred C. Littooy: Yes, after the appraisal is filed. In other words, the commissioners file their reported with the City Commission and then the landowner has 30 days from that time in which to appeal to the District Court and have a full hearing de novo by jury as to the question of his damages.
Stanley Reed: Does the record show when this one was called? I noticed that was to be --
Fred C. Littooy: I do not believe that --
Stanley Reed: The hearing was at 27th day of April.
Fred C. Littooy: I do not believe that the record does show when it was filed.
Tom C. Clark: (Inaudible)
Fred C. Littooy: It would have -- it was filed in May sometime. As I -- so, it's file just shortly after the -- it's condemnation of --
Stanley Reed: (Voice Overlap) this man knew nothing about it after all he's going through.
Fred C. Littooy: That's correct.
Felix Frankfurter: When you stated carrying the -- what is the effect of the confirmation of the appraisal (Voice Overlap) --
Fred C. Littooy: That is correct. They do. The -- the reporter from City Hall is that our Commission meeting and when the appraiser's report is filed there, it is actually they're accustomed in a new story and usually on the front page to show what the awards are with all the landowners. So that they know actually from that, from a new story, because I say, there is full publicity given this, it's not a sort of the thing --
Hugo L. Black: The law doesn't require that, does it?
Fred C. Littooy: Pardon, sir?
Hugo L. Black: You -- you're -- you're defending now in fact that is the custom of the paper to do this.
Fred C. Littooy: That is correct. That's not required by law that it is done, that's just a --
Earl Warren: Does the record -- does the record show whether it was done here or not?
Fred C. Littooy: It does not. The record simply shows what was done pursuant to the statute in this case.
Tom C. Clark: And any report filed into this Court after the appraisment?
Fred C. Littooy: After the appraisement, yes. We always file our report of commissioners with the District Court and with the clerk of the City Court -- with the clerk of the City Commission, excuse me.
Stanley Reed: I -- I understand the property is taken without any judicial process (Voice Overlap)
Fred C. Littooy: That is correct. That -- that is so and this -- and as indicated in this North Laramie versus Hoffman case, this Court held that the necessity and expediency of the taking of property for public use are legislative questions and a hearing thereon is not essential to due process to taking itself.
Stanley Reed: But assuming that one can take it without any notice at all or in a hearing, it doesn't -- that case doesn't go as far as to say that you can reach the compensation without.
Fred C. Littooy: No, that -- that's correct. That is correct.
Tom C. Clark: Now, you couldn't enter on the (Inaudible)
Fred C. Littooy: I'd go in the District Court and file a proceeding -- mandamus proceeding to make them let me on there.
Tom C. Clark: (Inaudible)
Fred C. Littooy: Oh no -- no we own the property then for that particular use after this was completed and after we have paid the money out, of course. We have to pay the money in before we're entitled to possession.
Tom C. Clark: (Inaudible)
Fred C. Littooy: No sir, there is none.
Stanley Reed: Where's the money then go?
Fred C. Littooy: We pay the money into the City Treasurer and then he sends a voucher to the individual landowners to come in and get their money.
Stanley Reed: Was that done here?
Fred C. Littooy: Yes it was.
Stanley Reed: The record show.
Fred C. Littooy: The record does not show and I don't believe here but it was -- it was paid in to the City Treasurer and the -- Mr. Walker did not accept the money.
Tom C. Clark: (Inaudible)
Fred C. Littooy: Eight Hundred Dollars. This -- Mr. Walker has indicated in this transcript to own 12 lots here. On page 2 of the transcript, it shows the description of his lots, this property, as shown on page 7, involved track one. His lots were 165 feet in depth and the eastern four lots of his property, we did not even touch, and we took a triangular piece off of the remainder just to widen the street there. Did not touch the -- the property where his -- his home itself was located. This was all unimproved land here.
Earl Warren: Mr. Littooy, would -- would you mind repeating for me what the procedure is after the appraisers report?
Fred C. Littooy: After the appraisers filed a report with the City Commission and with the clerk at the District Court, then the City Commission, either approves or disapproves that report. In other words, they may feel that the prices are too high if found by the appraisers and will wish to appeal from those just as the land loan owner has the right to appeal so does the city have the right to appeal. On the other hand, they may wish at that time to abandon some portion of the condemnation proceedings as to some particular piece of land. In that event, they have 10 days after the -- the commissioners -- the appraiser's report is filed within which to abandon the proceedings and this must be done by resolution. If they do not abandon it within 10 days then they -- they are left with, they have to pay the award or appeal from it. And the property owner has 30 days within which to appeal from these commissioners, appraisers report after it is filed with the City Commission and he is then entitled to a full jury trial de novo on the District Court on the question of the amount of his damages.
Earl Warren: And if -- if he does not do it within that time.
Fred C. Littooy: Then he is paid what the appraiser's awarded.
Earl Warren: He has no -- no further reviews.
Earl Warren: That's correct.
Earl Warren: Of any kind.
Fred C. Littooy: That is correct.
Hugo L. Black: On the Kansas law, when does the city have a right to use the property under its condemnation of proceeding?
Fred C. Littooy: As soon as the city pays in to its City Treasurer the money -- the award fixed by the appraisers.
Earl Warren: But that would be before the 30 days --
Fred C. Littooy: Yes, it could be.
Earl Warren: -- of appeal?
Fred C. Littooy: Yes, sir, it's correct. It could be.
Hugo L. Black: It's been paid in him.
Fred C. Littooy: Oh, yes. And the money has been there all this time.
Hugo L. Black: Well, how -- on the Kansas law, would he be entitled to a restraining order then such as he seeks here at all even if he's right on his contention?
Fred C. Littooy: Well, that's -- that's for these people to explain here, I guess. Our courts hand that he was not, of course, in this case entitled to a restraining order.
Speaker: No wonder whether you would deal at some point, not now, necessarily, with the practical considerations or difficulties that the city do think the city would be faced if actual notice was made over these people.
Fred C. Littooy: I think, probably, the basic reasoning underlying all of these decisions and condemnation cases are based on the considerations of the difficulty of giving actual personal notice. Certainly, there are some people whose lands are condemned who you can -- whose residence you can ascertain without any difficulty. On the other hand, there are many people whose residence is extremely difficult to ascertain. They might be a deceased person who have -- who has heirs. He might be a nonresident decedent who we don't know where he lives. We don't know who his heirs are. There may have been in a state conducted in a -- in another county or another state and he has heirs right there in our time, we would have no way of knowing it. That -- that is one of the biggest difficulties we have of ascertaining sometimes who did lack extra landowners are and where they would live.
Speaker: Well, in the case of Mr. Walker, was there any problem?
Fred C. Littooy: There would be no problem in his case.
Stanley Reed: What -- what would you do if the county in the sale of property would not -- do not register?
Fred C. Littooy: For the sale of property, you mean under tax sale?
Stanley Reed: Either tax sale or foreclosure.
Fred C. Littooy: We can give constructive service of -- on nonresidence.
Stanley Reed: What are the -- what would that consist of, posting the notices on the --
Fred C. Littooy: No. It consist of publications in the -- in the official county paper -- in a paper of general circulation in the county.
Stanley Reed: And it's published as it's posting on the property itself?
Fred C. Littooy: No. Just the publication in the paper.No posting on the property is required.
Earl Warren: You have to establish to the Court that you do not know his address?
Fred C. Littooy: That is correct, you file an affidavit to that thing.
Earl Warren: That wouldn't be comfortable to this one.
Fred C. Littooy: No it would not. It would not.
Earl Warren: Mr. Littoy, do you know of any other states and you saw how many that have identical statutes or practically identical statutes in (Voice Overlap)
Fred C. Littooy: The State of Wisconsin has an identical statute as cited in my brief, the one with (Inaudible) case on page 10 and 11 of all the statute that provides either for personal service of notice, five days before the appraisers meet or public -- one publication in the official city in a -- in a paper designated by the Court 10 days before they meet. It is the identical same statute. And in that case, the Court held basing it on previous decisions of this Court and other jurisdictions that it is universally recognized that in condemnation proceedings, the summary may be -- the procedure may be summary and the notice may be indirect and may be -- may be he can use the constructive service and may be he used in the cases of both residence and nonresidence.
Earl Warren: Do that go both to the -- the question of the taking and the damages?
Fred C. Littooy: That is correct, as to the -- to the -- that goes as to the damages of the land. The statute is exactly like ours and it goes as to the damages and the Court clearly points that out that they feel that this provides due process. Now, this is not the only jurisdiction that provides for a constructive notice in condemnation proceedings, Missouri, and California, Wyoming, as shown in the North Laramie case here and Mississippi among others all provide that the constructive notice is adequate notice and provides due process and condemnation proceedings.
Earl Warren: And what do you mean by constructive process?
Fred C. Littooy: By -- by notice, by publication in the newspaper.
Earl Warren: Only.
Fred C. Littooy: Only.
Earl Warren: Without any -- without any question as to whether they could find the --
Fred C. Littooy: That is correct.
Earl Warren: -- the order?
Fred C. Littooy: That is correct. And the North Laramie case here in 268 U.S. 276 indicates that. I'm not sure --
Earl Warren: In the California -- in California, does that apply both to damages and to -- and to the taking?
Fred C. Littooy: That applies to damages, I know, in California. It provided set of this street opening act that California provided due process nor requiring a 10-day publication notice to the landowners affected after an assessment of their damages had been written and filed. Now, --
Speaker: Did I understand you to say to the Chief Justice that the city did not have Walker's address?
Fred C. Littooy: No, I did not say that. I did not say that.
Speaker: He did have it.
Fred C. Littooy: Yes we -- we had his -- we had some of -- of the other addresses of the people involved here. Some we did not have.
Earl Warren: Why -- I understood you to say they did not -- did not have his address or you just said they didn't keep the --
Fred C. Littooy: They didn't keep it on the tax rows.
Earl Warren: I see.
Fred C. Littooy: That's correct.
Earl Warren: Where did they keep it?
Fred C. Littooy: They keep it anywhere that I know it.
Felix Frankfurter: As I understood you to say --
Fred C. Littooy: Except on a telephone directory, of course, you could look in there.
Felix Frankfurter: As I understand you correctly to say that his address is available.
Fred C. Littooy: That is correct.
Felix Frankfurter: That's what it says.
Fred C. Littooy: That is correct.
Speaker: That means he addresses to the property hearing.
Fred C. Littooy: He would be in the address of this property that is on the tax rows.Now, as I say, that could be -- in any case, it could be the address of a property and he might live somewhere else, he might not even live on his property.
Speaker: In the first notice, they have been told (Inaudible)
Fred C. Littooy: Pardon, sir?
Speaker: Well, he has been told (Inaudible)
Fred C. Littooy: Yes --
Speaker: (Inaudible)
Fred C. Littooy: That is correct.
Speaker: You observe this --
Fred C. Littooy: That is correct.
Speaker: (Inaudible)
Fred C. Littooy: Now, all through of these cases in the textbook dissertations on the subject that I have ever seen or read, all, universally provide that in condemnation proceedings that notice by publication in the paper is sufficient. I have never seen a case yet in condemnation that does not say so. The two cases cited by counsel from Mr. Walker, the Mullane and New York City cases involved reorganization of a railroad under the Bankruptcy Act and -- and involved a final accounting by a trustee. He does not point out any condemnation case that I can find anywhere that says that notice by publication and newspaper does not provide due process of law. The authorities that I have cited in the brief all agree on that from -- from every jurisdiction that we have been able to find. Now, Mr. Justice --
Hugo L. Black: Do you think that -- do you think that the standpoint of due process, there might be a different rule in connection that's taking the property and in connection with paying it support's real value?
Fred C. Littooy: Oh, yes.
Hugo L. Black: But in this case, does Kansas have a right under his law, does it assume the right to take the property --
Fred C. Littooy: Yes.
Hugo L. Black: -- for public use?
Fred C. Littooy: Yes, it does.
Hugo L. Black: Without --
Fred C. Littooy: Without notice.
Hugo L. Black: And take it immediately.
Fred C. Littooy: Take it immediately after he's been appraised and -- and the money pay, you can't take it until we'd paid for it.
Hugo L. Black: Here, I notice the complaint does not raise any question --
Fred C. Littooy: No.
Hugo L. Black: -- as to the values.
Fred C. Littooy: That's correct.
Felix Frankfurter: You're litigating nearly the condemnation.
Fred C. Littooy: That's correct.
Hugo L. Black: I mean the taking of the --
Fred C. Littooy: The taking --
Hugo L. Black: -- of the problem.
Fred C. Littooy: The -- well, his --
Felix Frankfurter: Why is he taking --
Fred C. Littooy: -- his right to take --
Hugo L. Black: Yes.
Fred C. Littooy: -- without giving him notice of the meeting of the appraisers. Now, yesterday, in closing, I want to point out that Mr. Justice Burton, I believe, asked the counsel for appellant if he could distinguish between this case and the case of Collins versus of City of Wichita. That case found its way up here just about the same time this case found his way up here last year. That case involved the City of Wichita, the city condemned some property under this precise same statute and the precise same question was raised in that case as to whether or not this statue provided for due process of law. While our case was going up to our State District Court and our -- and our State Supreme Court, that case was finding its way to the United States District Court and the United States Circuit Court. And in that case, the United States Circuit Court upheld this statute as comporting with the due process provisions of the Constitution. And on November -- last November 7, this Court denied a petition for writ of certiorari in the Collins case. Two months later, this Court noted probable jurisdiction on the case at bar. I cannot distinguish the two cases. And for the reasons that we have set forth in our brief, then here, where they had reasons advanced by this course in -- Court in previous decisions involving condemnation, we respectfully submit that the decision of the State Supreme Court of the State of Kansas upholding this statute on the constitutionality thereof should be affirmed.
Speaker: What would you say about the Mullane case in this Court?
Fred C. Littooy: I would say that it did not involve an eminent domain proceeding and that -- and that this Court made no effort to indicate that it did or that it overruled itself in the North -- in the North Laramie case.
Speaker: The consequences and the taking here would be much more severe than the consequences and that is to accounting in the Mullane case.
Fred C. Littooy: That is quite correct, but this Court did not attempt to overrule its prior decisions in condemnation proceedings in that Mullane case either.
Speaker: Now, it laid down a pretty flexible rule. We have to deal the situation case by case.
Harold Burton: But in this kind of case, you have a good deal of public policy involved in taking the road and getting underway if you don't have any common -- common trust.
Fred C. Littooy: No question -- no question about that.
Hugo L. Black: Is it your belief that a judgment in your favor in this case would bar an action in connection with the value of the property under the appraisal.
Fred C. Littooy: In this -- for Mr. Walker?
Hugo L. Black: Yes.
Fred C. Littooy: Yes it would.
Hugo L. Black: Why wouldn't it?
Fred C. Littooy: Because he has 30 days in which to appeal from the report of the commissioners after it has filed with the City Commission to appeal and -- and regard the question of the value of his land. He did not appeal within 30 days. So, he will receive the $800 awarded by the appraisers.
William J. Brennan, Jr.: And then why -- I don't understand why you say this serves only the right of entries.
Fred C. Littooy: Well, it -- it concerns the value of the land.
William J. Brennan, Jr.: But in answer to an inquiry and I understood you to say that the -- the only thing put part in the petition which -- since this is true, this is the question of adjoining the entry.
Fred C. Littooy: Well, that is what -- the petition attempted to do was to enjoin and restrain us from entering upon the land pursuant to this condemnation proceedings for the reason that the petitioner claimed that the -- that the condemnation proceedings were entirely void being based on a statue that was unconstitutional, so the entire proceeding was void according to the appellant's petition.
William J. Brennan, Jr.: Let us suppose one should view the view of that the entire proceeding was not void in taking this perfectly problem but that would be in compensation that has not been fairly determined since no notice was given as to the compensation directly for the party.
Fred C. Littooy: Well, in that case, we would have taken the land.
William J. Brennan, Jr.: You have the land.
Fred C. Littooy: We would have the land but we would not have determined the value of that and of course, since that time, we build our street on it (Inaudible)
Hugo L. Black: That would make it more like the Mullane case, would it not, if it were -- according to the argument you just made if it related to the compensation only.
Fred C. Littooy: Well, this -- this relates not only to that --
Hugo L. Black: Instead of the condemnation.
Fred C. Littooy: That he -- he thinks that he needs more notice. He needs person on service of notice.
Hugo L. Black: I understand that.
Fred C. Littooy: No regard to this matter --
Hugo L. Black: And he has raised that question with reference to the -- to try to upset the taking of the property by the state -- by the city. And there's no question raised here at all in connection with the condemnation except as it -- in connection with the valuation except that it might be --
Fred C. Littooy: He -- he doesn't --
Hugo L. Black: -- adjudicated and --
Fred C. Littooy: He doesn't exactly do that. He -- he thinks this all condemnation is no good.
Hugo L. Black: That's right. But I -- I understood you to say that you distinguish between this in the Mullane case on the ground that the courts have treated condemnation cases different.
Fred C. Littooy: That is correct.
Hugo L. Black: You mean by that dictating --
Fred C. Littooy: No, I do not mean that. I mean the determination of the value, the North Laramie case is distinctly on that point alone.
Felix Frankfurter: But this is not a value of property here.
Fred C. Littooy: It -- well, it is -- it is in the same respect, as the North Laramie case, it's exactly the same.
Felix Frankfurter: What I mean is in as much the suggestions we had that something that was $10,000 --
Fred C. Littooy: No.
Felix Frankfurter: (Inaudible) it was found to be worth $367.
Fred C. Littooy: That's -- that's correct.
Felix Frankfurter: He is challenging the right of the state to the city to say we need this for a public purpose, is that right?
Fred C. Littooy: He is that -- right here now. He wants to -- that's correct. He wants the notice.
Felix Frankfurter: That's the issue namely that the -- the challenge is to the claim of the city -- with the city but they need this for a public purpose and under that, what would (Inaudible) the challenge that it is in the public purpose.
Fred C. Littooy: That's possible.
Felix Frankfurter: Well, the idea of --there's motivation into this in the Mullane problem.
Fred C. Littooy: None -- none whatsoever in my view.
Earl Warren: Mr. Levy.
Stanley Reed: Mr. Levy I would -- I wish you would state your position with regard to whether this is a proceeding to object to the fixing of price or -- or whether it's a proceeding of taking the price.
Herbert Monte Levy: Actually, Your Honor, as I believe I stated yesterday, the only question I think that we can really properly raise here, the more I think of it, the more I become convinced to that, is the question of the valuation proceeding because if you'll notice on page 2 of my brief, we have the statutory provision involved. And the only section which we passed -- which we brought up and the only section which was passed upon by the Supreme Court of New Mexico is 202 which creates that the commissioner shall give owner and lean holder of the property sought to be taken such and such notice of the time and place when and where damages will be assessed. And that is all that Section 202 deals with. Actually, we should, of course, like to have a broad ruling that -- in the case of a taking even the legislature should not be entitled when it deals with specific individuals, should not be entitled to be free of the due process requirement addressed.
Stanley Reed: But first, the allegation in your petition in regard to pay for the -- the fixing of the compensation.
Herbert Monte Levy: Well, we have them on page 5 in the summary of the argument in the --
Felix Frankfurter: But why don't you set upon to your argument -- why don't you go to the question presented as the basis of your jurisdiction that relates --
Herbert Monte Levy: Right, the questions were actually --
Felix Frankfurter: -- on page 3, the question presented --
Herbert Monte Levy: That's right.
Felix Frankfurter: -- question 1, whether (Inaudible) 1949, 26-202 of the statutes of Kansas which permits a city to give notice of the commencement or condemnation proceeding in real property by publication, one time in the official city paper if they permit the due process of law.
Herbert Monte Levy: Right, and we incorporate Section 202 and that's the only one that's really an issue here.
Felix Frankfurter: Yes but why that these (Inaudible) to the attorneys that is correct in saying what you are challenging here is the proceeding whereby he's condemned and you're not saying you have (Inaudible) $10,000 worth or (Inaudible)
Herbert Monte Levy: We were challenging that, Your Honor. We'd have to be challenging Section 201, which is the proceeding for the condemnation, which is nowhere referred to anywhere as in the case.
Felix Frankfurter: Well, I don't -- all I know is the question that's in the state.
Herbert Monte Levy: That's right. The question may have --
Felix Frankfurter: That question in my understanding (Inaudible) to the -- to the challenges giving the notice of the condemnation proceedings merely by publication and opinion.
Herbert Monte Levy: I will say this, Your Honor. We phrase the questions in the petition as broadly as we could. I think that the question presented certainly subsumes and in accordance with the rules of this Court of that section subsuming -- certainly, subsume Section 202 which is specifically referred to.
Felix Frankfurter: Are you -- is there any argument -- any question presented that has probably worth ever so much more than it was appraised as being taken without any process.
Herbert Monte Levy: The contention has been that the property was valued and taken without due process. Actually, we're sticking here only to the question of compensation unless it would help this Court, and with my Brother Oswald's consent, I'd be quite willing to just say that we'll waive anything else and just rely on the constitutionality of 202 if that will help.
Felix Frankfurter: Well, you -- you can't waive anything and you're restricted by the question presented.
Herbert Monte Levy: That's right.
Felix Frankfurter: And -- and one -- that is one reading the ordinary and that's unnecessary.
William J. Brennan, Jr.: Well, I -- I have difficulties with regard to that as the counsel regards to -- where -- where do you state in your petition that you've been objecting or to the -- to the fixing of the compensation.
Herbert Monte Levy: Well, it stated first in the page 5, in the last full paragraph, the last four lines, where, again, we subsume that as a question.
William J. Brennan, Jr.: Of the record?
Herbert Monte Levy: Of my petition. I'm sorry. This is of the brief -- it was in the petition to -- do you have the petition?
Hugo L. Black: Because you looked at any complaint, he's asking about the complaint.
William J. Brennan, Jr.: That was stated in your record on page 1, 1 to 5.
Herbert Monte Levy: Your record actually raises the question of the constitutionality of 26-201 and 202. You'll find that on page 3, paragraph 8. Now, that was the complaint. In the petition for appeal to the -- the notice of appeal to the Supreme Court of Kansas and the specifications of error, particularly in the specifications of error, you'll notice that the only error specified on the top of page 23 is the Court further erred by holding 202 constitutional, and that 202 does not provide sufficient notice. And the opinion of the Supreme Court of Kansas also sticks straightly to the question of 202 and does not say anything about 201 which deals with the taking. As I say, the question presented was presented very broadly to give this Court an opportunity to rule on the broader question which we hope it would rule the part. As I understand the rules of the Court, the question presented in the petition for certiorari or elsewhere is deemed to subsume every -- to include every question which could be subsumed thereunder. In Section 202, it's clearly referred to in paragraph 1 and paragraph 2 of the questions presented, and therefore, I submit, Your Honors, that it has been quite properly read.
William J. Brennan, Jr.: Are you familiar with the case of (Inaudible)
Herbert Monte Levy: Yes, I am Your Honor. In fact, I intended to cite that together with the Seaboard Airlines case in 261 U.S. as holding that in terms of the question of compensation. As again distinguished from eminent domain proceedings, there is a requirement of notice.
William J. Brennan, Jr.: That case would seem to indicate that the taking here would be entirely illegal.
Herbert Monte Levy: Yes, it would. I frankly think --
William J. Brennan, Jr.: But what was the question of compensation that becomes important?
Herbert Monte Levy: That's right. I would hope, I doubt very much that the Court would but I would hope that the Court might overrule on the question of taking to. I might mention, for example, that in -- let me cite an additional case which I've just come across, case of Nelson versus United States in 208 F.2d 505, the Court of Appeals in this district held at page 513 that the legislature was not exempt from the requirements of the first 10 amendments. They held that in terms solely of the Fourth Amendment, specifically that is, but I see no reason why the legislature is exempt from any requirements of due process imposes when they deal with individuals through condemnation, I suppose to general legislature. I frankly think that the prior doctrine has been an error, but as I say, the real item which we press is the valuation and that that may be, despite the broad language, in the questions presented might be the only thing before this Court.
Speaker: What notice of taking does the Kansas statute provide for?
Herbert Monte Levy: It doesn't provide for any notice to take.
Felix Frankfurter: I saw the legislature of Kansas, of that statute and say, we (Inaudible)
Herbert Monte Levy: I would think that if the --
Felix Frankfurter: If you don't think it could.
Herbert Monte Levy: I think if it related to one specific piece of property, I would take the position that it could.
Felix Frankfurter: Do you think the New York legislature shall, by legislative act, rather by delegated authority to say the old property that as these two joints in the grant that (Inaudible) that these and these public purposes be hereby condemned leading the question of appraisal to have cope within. You don't think that that would be unconstitutional.
Herbert Monte Levy: I don't think it can do that without notice and an opportunity to contest the question of public use.
Felix Frankfurter: But -- but -- if there's anything to accept within the law, I should say, it is that the exercise of eminent domain is a legislative authority --
Herbert Monte Levy: That's right, Your Honor.
Felix Frankfurter: -- and the due process doesn't yet require that you have to have a hearing before a legislature passes an Act.
Herbert Monte Levy: No, but I suggest that when a legislature passes an Act as to a named individual, which is a little different, it's almost like a bill of attainder as to property though I realize there are loads of differences. I'm just analogizing that. I think when they do that -- that then there should be some opportunity to contest the legislative act either a hearing before the legislature or in Court later on a public -- in the question (Inaudible)
Felix Frankfurter: His point is not yet said though in the practical purpose it -- it has never found it's possible to define that a legislative determination for public purpose is a subject to judicial review as to whether it is to a public purpose. In other words, I don't know of any -- of any breach of governmental power that it is far to barring all the taxation as the condemnation of property to public purposes. Now, the cases still allow or the other order by this Court to say, this is so obviously not a public service that is thereby must be unconstitutional like anything else, but the primary for that or whether condemnation can be directly by a legislative act, and I didn't suppose that it was disputable with this (Inaudible)
Herbert Monte Levy: We don't dispute that at all. The only -- I was only referring to notice.
Felix Frankfurter: But if that is so, then you don't need notice because nobody is ignorant about having to suggest that before a legislature pass then an act, it must have a hearing.
Speaker: Well up until five minutes ago, I had understood this case involved only the question of damages.
Herbert Monte Levy: That's right.
Speaker: Now, it seems to be a matter confusing as to whether it does or whether it doesn't, what is your position, does it?
Herbert Monte Levy: My position is that the question relates only to damages and that it can relate only to damages in terms of this Court's jurisdiction because the only question that was raised and passed upon in the Supreme Court of Kansas below was simply the question of Section 202 which deals solely with damages and does not deal with the question of transferring title of legislative act.
Speaker: And then why are you trying to drag in the question of taking?
Herbert Monte Levy: I think that, quite properly, I shouldn't -- I mentioned yesterday, Judge Harlan, that I felt that I would like the Court to rule on that even though I thought it was not properly before them. I still stick to that position. I have been drawn into a discussion of it because it has been troubling the Court, but all that I'm really interested in -- in pressing as I mentioned before is the question of amount.
Speaker: But is it a practical matter? Suppose in this case is the reverse, you win it, what are you going to do, you're going into -- are you really going into relitigate or litigate -- litigate the question of how much you've got for this property? What are you seriously going to do?
Herbert Monte Levy: Yes, it would be.
Speaker: Is that it?
Herbert Monte Levy: Yes, sir.
William J. Brennan, Jr.: Well, then -- then why did you ask for an injunction in your -- prior to the petition -- prior to the petition doesn't have to -- can you think about your compensation in anyway?
Herbert Monte Levy: Well --
William J. Brennan, Jr.: What is the lead for the City of Wichita?
Herbert Monte Levy: Let me clarify that, Your Honor. The petition mentions or raises the --
William J. Brennan, Jr.: I thought you mentioned Section 202 --
Herbert Monte Levy: That's right.
William J. Brennan, Jr.: Preferably to solely -- to keep the --
Herbert Monte Levy: That's right.
William J. Brennan, Jr.: -- the city off your property, close the road, I suppose?
Herbert Monte Levy: That's correct. Now, I would think that the Supreme Court of Kansas might well -- I'm not familiar enough with Kansas procedure. If I did this in New York, I suppose the Court of Appeals would say to me, “Your petition for -- you prayer for relief is so broad here, your -- you've taken the wrong form of action and if you were interested in solely 202, the amount of compensation, you should do something different or amend your pleadings or something of that sort. But the Supreme Court of New Mexico here did accept the case and did rule solely on -- in its opinion and its opinion is directed solely to the question of Section 202. Now, maybe they did wrong. I'm not going to talk about that because I don't know Kansas's procedure well enough, but I submit that that really is a question of state law. And they considered Section 202 solely under this particular prayer for an injunction. I've been a little puzzled as to why they did but they did.
Felix Frankfurter: Mr. Levy in your -- in your -- what was your original pleading of complaint?
Herbert Monte Levy: The original pleading was a petition then -- an amended --
Felix Frankfurter: If that petition is an allegation of property whereas X dollars condemned for X minus Y dollars?
Herbert Monte Levy: No, it doesn't appear.
Felix Frankfurter: So, for all we know, the amount at which this was assessed with a fair assessment for all we know in this litigation, is that right?
Herbert Monte Levy: Insofar as the record is concerned, that's correct.
Felix Frankfurter: Yes. I know -- and what the claim is, you didn't give thought to add notice, but for all we know, the actual dollars (Inaudible) are precisely those (Inaudible) that you're entitled not -- anymore, is that right?
Herbert Monte Levy: Yes, and I suppose that could never be found out without the hearing with -- in a denial of the opportunity for the hearing is what's being complained of.
Felix Frankfurter: But certainly, if the owner of the property knows that his property is good, he can claim, he can -- if -- if my property is condemned, and I complain about it, I ought to be in the position to say you could take me something and deprive your property, how would you have been deprived of property? You've been deprived of the abstract right to be heard, not a property.
Herbert Monte Levy: Of your right the Fourteenth?
Felix Frankfurter: Pardon me?
Herbert Monte Levy: Of your right under the Fourteenth Amendment clause.
Felix Frankfurter: But that is an abstract right. (Inaudible) cant walk into the street, you say there's been a denial of notice which is part of due process, he must say, “I'm at a property,” as a sort of denial of due process.
Herbert Monte Levy: Well, again, Your Honor, I submit that that would be a question of state laws to whether the question had been adequately raised in the state and the Supreme Court --
Felix Frankfurter: But you come in here and asking this Court to offset a judgment of the state court and the deprivation of property. And there is in those words or it is a suggestion in this whole litigation that you've been deprived of opinion.
Herbert Monte Levy: There has -- there is a general allegation in here that there has been a deprivation of property without due process of law.
Felix Frankfurter: That's because you didn't get notice.
Herbert Monte Levy: That's right. But the only property that we could have been deprived of was the fact that the valuation was not substantial, it was not enough.
Felix Frankfurter: That it's a whole -- generally, we said to protest against the taking and on a print, he can't do any better than say, deprived of his property and not -- and never make a specific allegation that is a result of this denial. I have noticed, I will deprive the approximately of X hundred dollars or X thousand dollars.
Herbert Monte Levy: Well --
Felix Frankfurter: Because that's what a denial of property mean, it doesn't mean the exact denial of due process.
Herbert Monte Levy: I would suggest that that is actually a question of state pleading in terms of what the State of Kansas found.
Felix Frankfurter: Well, if the -- if it's a matter of state pleading then the state have decided against him because they've given a judgment against him.
Herbert Monte Levy: No. They didn't -- they didn't, in fact, on the question of pleading, they found that this questions have been properly raised and they ruled on the very constitutional question. They wouldn't have ruled on a constitutional question certainly if they didn't appeal that it didn't properly raised.
Felix Frankfurter: (Voice Overlap) --
Speaker: (Voice Overlap)
Felix Frankfurter: I'm asking -- something on judgment of taking a property and where was the property that was taken?
Herbert Monte Levy: In the City of Hutchinson, Reno County, Kansas,
Felix Frankfurter: But where is the property that has been defined with the deprivation, that -- that gives me the (Inaudible) of the property, it doesn't give me the deprivation.
Herbert Monte Levy: Well, I think there may be a confusion here, Your Honor, in this respect. Mr. Littooy made the statement which does not appear in the record that this plaintiff had been -- or petitioner here -- the petitioner had been paid for his property. This does not appear in the record anyways. As far as the record is concerned, the record merely alleges the property was taken without compensation. There is an answer --
Felix Frankfurter: This wouldn't -- that wouldn't have been so, you can think without compensation before the statute provided the compensation?
Herbert Monte Levy: Yes, that has been taken without due process and there is nothing in the answer at all to indicate or anywhere as in the pleadings to indicate that the defendant was actually -- the plaintiff was actually paid. And under the statute, the -- under 201, the money may be deposited in the City Treasury and it may be sent to the plaintiff. So, insofar, as the record appears here, all it shows is the property was taken away and there is no showing of any payment made at all to the petitioner.
Felix Frankfurter: Well, I was suggesting they took this part and they didn't give you anything for it?
Herbert Monte Levy: I'm not suggesting that, I'm saying that's the posture of the pleadings in terms of exactly what the record says.
Speaker: But you think --
Herbert Monte Levy: We are getting --
Speaker: Did you adjudicate this case on that kind of a false set of assumption?
Herbert Monte Levy: I don't think it's a full set of assumption.
Speaker: Well you haven't paid actually.
Herbert Monte Levy: Pardon?
Speaker: You've been for something.
Herbert Monte Levy: Yes.
Speaker: Well, then we adjudicate --
Herbert Monte Levy: (Voice Overlap)?
Felix Frankfurter: Well it's in the -- it's in the treasury --
Herbert Monte Levy: The money hasn't been paid.
Felix Frankfurter: It's in the treasury of the City.
Herbert Monte Levy: Yes. It's in the City Treasurer --
Felix Frankfurter: All right.
Herbert Monte Levy: It hasn't been received. I might say, also, just to answer one other question there that in terms of the formal pleading, I suppose it has occurred to me now that the reason that the Court, Justice Reed, may have permitted the case to be heard on an injunction action even though the statute in question wouldn't have resulted in the granting of an injunction if it was done unconstitutional. I suppose the reason may have been the prayer for relief in the petition at the top of page 5 of the record which prays for such other and further relief as to this Court seems just and equitable.
Speaker: I -- I find nothing in the Court's opinion which discusses the problem of compensation.
Herbert Monte Levy: Of -- of --
Speaker: I find that into the Court's opinion to discuss the problem of compensation.
Herbert Monte Levy: Of the Court.
Speaker: But if you can take any more time.
Herbert Monte Levy: No, the Court just discusses Section 202, Your Honor, which is solely compensation. I think they frankly didn't see the difference.
Hugo L. Black: Mr. Levy, may I -- I'd like the cause of -- you can answer because I would like to give and answer the brief and it's something later. Your petition alleges that they take in his length, it alleges that he wants me to stop trespassing enough appraised for the injunction to keep him from -- to stop trespassing.
Herbert Monte Levy: Yes, sir.
Hugo L. Black: It says nothing at all about the compensation. It rest on the charge that there are two sections of the statute, each of which is unconstitutional, the 201 and 202. So that you have a complaint which raises no question of compensation either raises the question that the city is not entitled to have the land, it belongs to him here. Now, you go to the Supreme Court, the Supreme Court refers to both sections of the statute in its opinion and it rest almost the time on eminent domain which says nothing about compensation. It relies on cases that have been resting on eminent domain. It does not indicate that there's any issue here in connection with the amount of compensation. It treats it on the same basis of the complaint there and I cannot see yet. To me, there's quite a difference, perhaps, that this kind of notice, it should be given in connection with the taking of property for a public use. And the amount that's to be paid for that property for public use and I do not see here how that question of the amount to be paid has been litigated of with that matter why this judgment, if rendered either way would bar future suits to litigate that question. I don't see any --
Herbert Monte Levy: No. I would say the answer may be found on page 33 of the record that's the opinion of the Supreme Court of Kansas where they hold on the constitutional point. In the next of the last paragraph of the top section, we hold that the trial court did not err in holding 202 constitutionally for any reason asserted by the Court.
Hugo L. Black: It referred -- it referred to both sections that when you get to 202, you find that it was necessary to refer to 202 because it defines not merely to an appraisal but to the taking of the land, 202 says, the Commission as reported by the judge of the District Court shall give any owner, an (Inaudible) holder of a record of the properties sought to be taken at least 10 days notice in writing of the time and place when and where the damage will be assessed about one publication of the officials city paper and so forth.
Herbert Monte Levy: Right. Now, Your Honor, if you notice as you read it, time -- notice of the time and place when and where the damage will be assessed, 202 says nothing at all about the taking, 202 is only the time and place, when and where the damage will be assessed. And though the Court -- the Supreme Court of Kansas mentions 201 and mentions 202, it makes a holding only in regard to 202.
Hugo L. Black: In a -- in a complaint, which relates merely to the alleged wrong as being perpetrated on a place by the city trespassing on his property --
Herbert Monte Levy: The complaint --
Hugo L. Black: The complaint raises no question of any kind or carelessness about the compensation. And the issues did not involve it.
Herbert Monte Levy: But the only section here that is involved is the section about compensation.
Hugo L. Black: Well I -- I'm just giving you my trouble so that it appear -- so far as I'm concerned --
Herbert Monte Levy: Well this is the --
Hugo L. Black: I -- I do not see here yet quite how we could consider it on the questions of damages and I personally would think that this would not adjudicate time. The constitutionality of the states law in connection with the taking of this man's -- and that compensation to be paid just after recovery.
Herbert Monte Levy: Well, all I can say, Your Honor, again, is that 202 relates solely to the question of compensation and 202 is the only section that was passed upon by the Supreme Court of Kansas. Now, I don't know. It might perhaps -- I'm a little puzzled in terms of the thoughts of relitigation of something at this sort, if Your Honors here would prevail. But it strikes me that the Court passes solely on the question --
Hugo L. Black: But you're only on a question of litigation, naturally, that's the issue --
Herbert Monte Levy: In terms --
Hugo L. Black: There would be a relitigation or whether if that has been relitigated or no.
Herbert Monte Levy: Now, I --
Hugo L. Black: And if it has, it's been litigated without being raised in the field.
Herbert Monte Levy: May I ask Mr. Littooy, if with the Court's consent, if he would stipulate in any further proceedings that the question has not been litigated and is still open?
Earl Warren: Well, I don't think this is hardly the time to enter the stipulations.
Herbert Monte Levy: I'm afraid (Voice Overlap). No, I'm just sure that the -- the court of Kansas would say, “Gentlemen, it's Section 202 that we ruled on and 202 is to deal only with compensation, and that's what you were in here on and that's what we let you on.
Felix Frankfurter: Mr. Levy, may I make concrete what I understand as to the -- the final question is and what might require us in order to pursue in regard to damages. We had a case here last term, the Chief Justice wrote the opinion, (Inaudible) in which there was a -- a forfeiture of property dated on page 5 and the question of notice being given to an incapacitated woman. And the point of that case was that the city rested on the so-called constructive notice and with the result that property would -- many times what the tax indebtedness was fell to the city and therefore, we withdraw from this poor woman who lost her property because she (Inaudible) could have noticed. Now, there's nothing like that in this case, is there, on these pleadings. This isn't a suggestion that because of lack of notice property condemned was appraised which have (Inaudible) or conceivably or importantly a lot of the smaller figures (Inaudible)
Herbert Monte Levy: I submit Your Honor that though there's no express allegation in there that that is certainly a clear implication else the parties would never go on the Court.
Felix Frankfurter: It isn't right to have the case we have when it's the opposite there. It was claimed properly, I forget the exact figures the Chief Justice remembers them, the property was (Inaudible) as much fell to the city because a much smaller tax wasn't paid. That is this case, isn't it?
Herbert Monte Levy: No, I grant you clearly that there is not that allegation refers there'd be no point to go into Court and there'd be no deprivation of property if the man had been paid this full value. So that I submit that the allegation in the -- in the petition clearly raises that question.
Felix Frankfurter: No because, in the end, no matter how much money you pay, you may not want the properly taken. You are too young to remember the famous spite -- little spite house corner in New York for which makes -- it wanted to pay a terrific, a vast amount of money and this owner said no. I like it, it's my piece of property. Now, that's (Inaudible) public to condemn the property. Some (Inaudible) did request some money, they want to hang on to their own, they don't want any of that improvement. But It doesn't follow because a man who would take -- against the exercise of eminent domain, it's merely a question of dollars and cents. And as the city attorney, I'm sorry I don't know the exact title, the counsel for (Inaudible) pointed out. Sometimes the appraisal may be too high for the city to comfort. And they say, well, we don't -- we will pursue that part. So it isn't merely a question of valid (Inaudible) whether it was against eminent domain.
Herbert Monte Levy: But if they were just a question, if he's not wanting to give up the property, then I am sure that the pleadings would have raised the question of 201 and would have said that there's no notice given at all of any condemnation proceedings of any sort because --
Felix Frankfurter: Well I stand out to deflect the answer, (Inaudible) of the petition.
Herbert Monte Levy: I -- I submit that the Court is bound by the analysis of the Supreme Court of Kansas which found the -- the question of constitutionality of 202 to be performed.
Earl Warren: Mr. Levy, if you -- if you would like to take one day to file a memorandum concerning the inquiry of Mr. Justice Frank, you may do so with the date to -- to counsel to refine to it.
Herbert Monte Levy: Might I have two days, Your Honor.
Earl Warren: I'm afraid that would take us behind over the conference day. I think you better take one day, you can refresh your mind now.