JANKOVICH ET AL., DOING BUSINESS AS CALUMET AVIATION CO. v. INDIANA TOLL
CERTIORARI TO THE SUPREME COURT OF INDIANA. No. 60.
Argued December 10, 1964.
Decided January 18, 1965.
Petitioners, operators of a municipal airport, brought suit in a state court for injunctive relief and damages against respondent toll road commission which had constructed a toll road whose height at a point from a planned runway petitioners contended exceeded that permitted by the municipal airport zoning ordinance. The State Supreme Court reversed the trial court's award of damages to petitioners, holding that the ordinance purported to authorize an appropriation of property (airspace) without compensation which was unlawful under the Indiana Constitution and under the Fourteenth Amendment. Held:
Reported below: 244 Ind. 574, 193 N. E. 2d 237.
Bernard Dunau argued the cause for petitioners. With him on the briefs were Straley Thorpe, Robert C. Lester and Rita C. Davidson.
Hugh B. Cox argued the cause for respondent. With him on the brief were Charles A. Miller, Paul J. DeVault and Philip E. Byron, Jr.
Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox and Roger P. Marquis for the [379 U.S. 487, 488] United States; by Edwin K. Steers, Attorney General of Indiana, Harold L. Folley, Deputy Attorney General, and John J. Dillon for the Aeronautics Commission of Indiana et al.; by Roger Arnebergh, Alexander G. Brown, J. Elliott Drinard, Sidney Goldstein, Daniel B. Goldberg, Henry P. Kucera, John C. Melaniphy, Robert E. Michalski, Thomas J. Neenan, John W. Sholenberger, Barnett I. Shur, Fred G. Stickel III, Charles S. Rhyne, Brice W. Rhyne and Alfred J. Tighe, Jr., for the National Institute of Municipal Law Officers; and by John E. Stephen and George S. Laphan, Jr., for the Air Transport Association.
MR. JUSTICE WHITE delivered the opinion of the Court.
Pursuant to a 20-year lease with the City of Gary, Indiana, petitioners are the operators of Gary Municipal Airport, one of the airports included in the National Airport Plan. They seek review of a decision invalidating the city's airport zoning ordinance, which, with regard to buildings and other structures in the immediate vicinity of the airport, prescribes height limitations based upon a 40-to-1 glide angle for approaching aircraft (i. e., at a distance of 40 feet from the end of the planned runway, structures may not exceed one foot in height). After passage of the ordinance, respondent, the Indiana Toll Road Commission, constructed a toll road parallel to the south side of the airport and 443 feet from the end of the planned runway. Contending that at that location the ordinance prescribes a maximum height of 18.08 feet above the surrounding land and that respondent's toll road (which is raised 29.8 feet above the surrounding land surface) violates the ordinance, petitioners brought suit in the Indiana courts for injunctive relief and damages. Although it refused to grant an injunction, the trial court awarded petitioners damages of $164,000 and costs. That judgment was reversed by the Supreme Court of [379 U.S. 487, 489] Indiana, which concluded that "the ordinance purported to authorize an unlawful and unconstitutional appropriation of property rights without payment of compensation." 244 Ind. 574, 584, 193 N. E. 2d 237, 242. Because it appeared that the case involved the validity of airport zoning regulations under the Fourteenth Amendment of the Constitution of the United States and therefore presented important questions affecting the National Airport Plan not previously considered by this Court, we granted certiorari. 377 U.S. 942 .
Respondent suggests, however, that we are without jurisdiction to review the judgment of the Supreme Court of Indiana because that judgment was based on an independent and adequate state ground. It is undoubtedly
In the Indiana Supreme Court respondent relied on the just compensation requirement of the Indiana Constitution as well as on the Due Process Clause of the Fourteenth Amendment. The Indiana Supreme Court stated the issue for decision as whether "the ordinance purport[s] to effect a taking of private property for public use in violation of the provisions of Article 1, 21 of [379 U.S. 487, 490] the Indiana Constitution 1 and the Fourteenth Amendment to the Constitution of the United States." 244 Ind., at 577, 193 N. E. 2d, at 238. In resolving that issue, however, the Indiana Supreme Court, quite understandably, did not analyze separately the effect of the two provisions but considered them together. From that fact petitioners would have us conclude that the state ground of decision - invalidity of the zoning ordinance under Art. 1, 21, of the Indiana Constitution - "is so interwoven with the other as not to be an independent matter . . . ." Enterprise Irrig. District v. Canal Co., 243 U.S. 157, 164 (dictum). (Emphasis added.) We cannot agree.
Quoting both Art. 1, 21, of the Indiana Constitution and 1 of the Fourteenth Amendment and citing both a decision of this Court, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , and one of its own decisions, General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85, 172 N. E. 309 (1930), the Indiana Supreme Court began its analysis with the proposition that private property may not be taken for public use without compensation. Two issues were singled out as determinative of whether the ordinance under consideration violated that constitutional protection: "(1) Whether air space above land is a constitutionally protected property right, and (2) whether in the instant case there has been a constitutionally proscribed taking." 244 Ind., at 578, 193 N. E. 2d, at 239.
In holding that landowners did have a protected property interest in the airspace above their land, the court first discussed an Indiana statute, Acts 1927, c. 43, 3, [379 U.S. 487, 491] Burns Ind. Stat. Ann. 14-103 (1950 Repl.) ("The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, . . ."), and a prior interpretation of state law, Capitol Airways, Inc. v. Indianapolis P. & L. Co., 215 Ind. 462, 466, 18 N. E. 2d 776, 778 (1939) (airport operator has no right to damages from public utility whose power line obstructs flight into and out of airport). In addition, the Indiana Supreme Court cited and discussed two cases of this Court holding low altitude overflights to constitute a taking of an air easement requiring just compensation under the United States Constitution. Griggs v. Allegheny County, 369 U.S. 84 ; United States v. Causby, 328 U.S. 256 . But nothing in the court's opinion suggests that its conclusion that "[i]n the light of the above authorities . . . the reasonable and ordinary use of air space above land is a property right which cannot be taken without the payment of compensation," 244 Ind., at 581, 193 N. E. 2d, at 240, flows from a federal rather than a state source. Indeed, the organization and language of the opinion indicates that, at the least, state law is an equal ground of decision.
The discussion of the second question - whether the ordinance effects a proscribed taking, as opposed to a reasonable regulation under the police power - similarly interlaces Indiana and federal decisions, as well as decisions of other state courts. Again there is no intimation that the conclusion that the ordinance entails "an unlawful and unconstitutional appropriation of property rights without payment of compensation," 244 Ind., at 584, 193 N. E. 2d, at 242, is based less forcefully on the Indiana Constitution than on the Fourteenth Amendment.
In such circumstances, even though a state court's opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate [379 U.S. 487, 492] ground of decision depriving this Court of jurisdiction to review the state judgment. New York City v. Central Savings Bank, 306 U.S. 661 , explained in Minnesota v. National Tea Co., 309 U.S. 551, 556 -557; Lynch v. New York ex rel. Pierson, 293 U.S. 52 . This is not a case like those cited by petitioners where the lower court opinion as a whole "leaves the impression that the court probably felt constrained to rule as it did because of [decisions applying the Fourteenth Amendment]," Minnesota v. National Tea Co., supra, at 554-555, or "because it felt under compulsion of federal law as enunciated by this Court so to hold," Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 5 , with the result that the state and federal grounds are "so interwoven that we are unable to conclude that the judgment rests upon an independent interpretation of the state law," State Tax Comm'n v. Van Cott, 306 U.S. 511, 514 . See also Perkins v. Benguet Mining Co., 342 U.S. 437, 443 , 448-449; Enterprise Irrig. District v. Canal Co., supra. Under our settled decisions the state ground in this case must be regarded as an independent and adequate ground of decision, and we so hold.
Petitioners nevertheless contend that the state ground of decision is not adequate because it is inconsistent with the policy of the Federal Airport Act, 60 Stat. 170, as amended, 49 U.S.C. 1101 et seq. (1958 ed. and Supp. V), and therefore founders on the Supremacy Clause. 2 [379 U.S. 487, 493] The premises underlying petitioners' argument are that the Federal Airport Act is predicated on a determination by Congress that airport zoning is essential to assure compatible land use in the vicinity of airports without prohibitive cost and that the decision of the Indiana Supreme Court in this case signifies the total nullification of airport zoning. We think the second premise is unfounded. The Indiana Supreme Court had before it a case in which the effect of the ordinance was to establish a maximum height of 18 feet for structures on respondent's land. Although it recognized that zoning regulations may be upheld as a reasonable exercise of the police power "where the owner of property is merely restricted in the use and enjoyment of his property," 244 Ind., at 581, 193 N. E. 2d, at 240-241, the court held that a taking requiring compensation - rather than mere regulation - was effected here because "the City of Gary has attempted, by the passage of the ordinance under consideration, to take and appropriate to its own use the ordinarily usable air space of property adjacent to the Gary Airport . . . ." 244 Ind., at 582, 193 N. E. 2d, at 241. (Emphasis added.) As we read the opinion of the Indiana Supreme Court, it certainly does not portend the wholesale invalidation of all airport zoning laws. [379 U.S. 487, 494] And no substantial claim can be made that Congress intended to preclude such an application of state law as is involved in the present case. On March 11 of last year Congress did indicate its interest in furthering airport zoning when it amended 11 of the Federal Airport Act to require as an additional condition of approval of an airport project seeking federal aid that:
The writ of certiorari is dismissed as improvidently granted.
[ Footnote 2 ] Petitioners' pre-emption argument is not pressed in their petition for certiorari as a separate issue for review but only as bearing on the adequacy of the state ground of decision. Nor have petitioners demonstrated that this issue was presented to the Indiana Supreme Court. In this regard petitioners quote that court's statement that "[t]he federal government has recognized the requirement that easements for the glide angle needed for landing and take-off must be acquired by condemnation proceedings and payment of just compensation," 244 Ind., at 584, 193 N. E. 2d, at 242, but that conclusion [379 U.S. 487, 493] was based on two cases condemning easements over property adjoining federal bases that were decided several years before the recent amendment to the Federal Airport Act, United States v. 48.10 Acres of Land, 144 F. Supp. 258 (D.C. S. D. N. Y. 1956); United States v. 4.43 Acres of Land, 137 F. Supp. 567 (D.C. N. D. Tex. 1956), not on any assessment of the policy of that Act. These circumstances of course bar petitioners from seeking reversal of the judgment below on the basis of their pre-emption claim, and it is therefore questionable whether petitioners may advance the same argument under the guise of an attack on the adequacy of the state ground of decision. We need not consider this problem further, however, because, as is explained in the text, infra, the pre-emption claim is insubstantial.
[ Footnote 3 ] Needless to say, we express no opinion in this case regarding the validity under the United States Constitution of the city's airport zoning ordinance.
MR. JUSTICE STEWART, with whom MR. JUSTICE BLACK joins, dissenting.
Although the opinion of the Supreme Court of Indiana relies on state and federal precedents, I can find nowhere in its opinion any clear indication of whether that court's ultimate conclusion is based upon the Federal Constitution, the Constitution of Indiana, or both. Therefore, I think the posture of this case is identical to that presented in Minnesota v. National Tea Co., 309 U.S. 551 , and that we should, as the Court did there, vacate the judgment of the State Supreme Court and remand the cause for further proceedings.