GOLDBLATT v. HEMPSTEAD

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Argument of Milton I. Newman

Chief Justice Earl Warren: Number 78, Herbert -- Herbert W. Goldblatt et al., Appellants, versus Town of Hempstead.

Mr. Newman.

Mr. Milton I. Newman: Thank you sir.

Mr. Chief Judge, Justice, gentlemen of the Court.

This is an appeal from a judgment of the Court of Appeals of the State of New York and it involves the constitutionality of an ordinance of the Town of Hempstead.

I shall presently go into some of the details of statute, but in introducing the statute, I say to Your Honors that this statute prohibits the further excavation of sand and gravel under any circumstances in the Town of Hempstead where there's water.

It prevents anymore excavation under water.

Now in this case, the Appellants Goldblatt and the Corporation, he's a 100% owner of the Corporation, one is the operator of the business of excavating and the other appellant owns the property.

It involves 38 acres of property in the Town of Hempstead in the County of Nassau in the State of New York.

And the facts of this case, I believe, are not in dispute, certainly not the material facts upon which the decision in this case, I think rests or will elementally rest.

There's no question about the fact that the excavation here started in 1927.

Mr. Goldblatt's father was then the owner of this property and has been in continuous operation from 1927 down to the time that this case started in 19 -- from 1927 down to 1959 when this case started.

That's I think 30 -- 32 years and during that time I must say, one year after it started, water was dry.

So for 30 years or more, excavation has been taking place underwater in this under -- over these 38 acres.

Actually now, the -- the water covers 20 of the 38 acres and that situation has been in existence since 1928 because the testimony without any contradiction is that one year after they started, as stated Your Honors, they struck water and pond or the water has been there.

Now, I'd like to state at very (Voice Overlap)

Justice John M. Harlan: Are you still -- are your still doing the underwater excavation?

Mr. Milton I. Newman: No since the Judge -- not since the judge in this case granted the injunction in 1950 --

Justice John M. Harlan: I know, but I'm meant to be good as a practical matter as it has got an economic use?

Mr. Milton I. Newman: Oh yes -- well, certainly yes sir.

I say certainly because the only testimony in the case is that the deposits there have not been exhausted.

He was working right up until the time of the injunction below.

Now if Your Honor please, I'd like to say at the very beginning something about this Man Made Lake because I think this was the thinking of a lower court that tried the case and you'll find throughout the brief here such words as used as is if this is a -- a sprawling crater.

This is a -- there are other pits like this where children drowned.

I don't know about other pits.

I'm talking about this pit and I'm talking about this record on appeal.

If Your Honors please, we now have 38 acres, 20 acres as I say, covered with water.

The depth is 25 feet deep average, over the 20 acres.

Some places as deep as 40 feet.

This lake and there are pictures here.

The pictures of the original exhibits are in the Court.

They're not printed in this record but the exhibits number 6 and I ask Your Honors to notice that it's the number six pictures which are ours and those pictures show a lake no different from a God Made Lake.

I mean, I'm talking about Central Park in New York or Prospect Park or Lake Whitney or some lake in -- in Washington.

It's water, it's a lake and it's covered, surrounded, the whole 38 acres by a six foot fence surrounded on the top with three strands of barbed wire.

Now if Your Honors please, I tell you in 1927, as when we started to excavate and it wasn't until 1945 that this Town of Hempstead even said we had to have a fence.

1945 did come around and there was a fence put up and that fence is the six foot fence with three strands of barbed wire on the top of it.

And the 1945 statue is a regular tort statue, it talks about the slanted slope and it talks about the width of barb and it talks about the fence.

Those are regular -- regulations which we complied with in 1945.

No proceeding was brought against us under the 1945 ordinance.

It's a 1948, I'm jumping just for a minute, that we have the amendment of the ordinance which we challenge here as being unconstitutional.

Now if Your Honors please, in 1956, is the time that the Town of Hempstead first got after us.

So I may say, get after us, I mean first bought their first legal proceeding and that was a proceeding in Nassau County to prevent us from further excavating under water on the ground that it was violation of the Zoning Act and that case was tried.

It was tried before Mr. Justice Hill in Nassau County and as an appendix to -- in my brief, we have an opinion and a judgment in that case and briefly summarizing that opinion in the judgment, the Court says that he finds -- I'm going to quote -- read one sentence, he finds that the defendants, that's the appellants here are now and have been since 1927 conducting a prior non-conforming use on the premises and they have made such a substantial investment and improvements in the business to warrant the continuance of this non-conforming use.

Now when the judgment was entered in this case, this is clear sailing, the Judge says, “We have a right to go on” and we did go on in 1956 and in 1957.

There was no appeal taken from Mr. Justice Hill's decision that we had non-conforming use, but the town brought another action in 1957.

I only say this by way of completion because that 1957 action is not important here.

In 1957, they came around and again brought us in the court on the ground that we were trying to then extend our excavation activities to the extent of entering into some other allied business and I think the Court properly said, -- or at least it said the Court held -- the New York Court held that that was not a proper extension of our non-conforming use.

I only state that in passing because it has nothing to do with my opinion now with our ultimate decision.

Now, comes 1958, and in 1958, no appeal from the decision of Mr. Justice Hill, but the amend -- but the enactment of the 1958 ordinance with these provisions particularly Sections 4 (h) and 4 (j) which we challenge in this proceeding in this Court this time.

Now, if Your Honor pleases, I might say that contemporaneously with the making of the new 1958 ordinance and before this action in 1959 was started, there was some talks between the town officials and the people that own this property, the appellants in this case, a possibility of taking this property, of paying for the property because it was going to be used in connection with that drainage system and actually in this case, is Exhibit C, that contained, that consists of a drainage map which shows actually the plan of having the surrounding territories water drain ends to this Man Made Lake.

But nothing came of the -- of the -- of the meetings between the town and -- and the people that owned the property and since the record doesn't contain the material, I won't go further and say why I think they didn't continue with the talks as far as condemnation is concerned but they didn't condemn it.

What they did instead is to pass the 1958 ordinance and then bring this litigation.

Now, if Your Honor pleases, it is so important because of the element challenge of the question of whether this statute does prohibit that I must read you only two lines, that Section 4 (h) which does prohibit.

That's on 47 of my brief, this paragraph Section 4 (h) of the ordinance.

It says no excavation shall be made below two feet above the maximum ground water level at the site.

Simply translated and there can't be dispute about this, all it says is that you can't dig below water level.

A matter of fact, you can't dig below two feet above water level.

Put it another way, you can't dig under water.

They can't be anymore water excavation here, no more hydraulic dredging.

One of the -- one of the words that appellee used he says water table.

Maybe, he doesn't like the word water level, but he talks about water table.

Now, there's no question about the fact as I told you in the beginning, that since 1928, this property has been 25 feet below water level.

We definitely violate the ordinance.

There's no question about it.

We can't comply with the ordinance.

The ordinance says, “Don't dig below water level.”

We dig, we dug that hole below water level 30 years ago.

The statute goes on further and 4 (j) says, “Not only may you no longer dig below water level,” it says, “You got to fill up the hole that you made” and this hole is 20 acres wide.

And -- and the testimony of the Town's witnesses is that one million cubic yards have been removed from these 20 acres.

And we are told in section 4 (j) of the statute, that's a little longer, but that's on page 47, I'm not going to take the time to read that.

That says, “When the earth is been removed from the pit excavation area, it must be refilled with clean, non-burnable fill, containing no garbage, they give you all the specifications from the clean fill.”

They want a million cubic yards of fill to be put back into this 20 acres which we removed legally.

Justice Hugo L. Black: Is that phase of the case necessarily before us?

Mr. Milton I. Newman: It's definitely before Your Honor pleases because the fact that we cannot only -- most of the cases in this Court are only on prohibition.

We are not only -- no longer allowed to excavate, we are told to put something back.

I said in my brief and I've tried to read every applicable case that I never saw a statute.

I never saw a town or -- or municipality or a legislature which had the temerity of telling you not only to stop but put back what you legally took out and my friends have not answered me on that.

Apparently they have never found --

Justice Hugo L. Black: (Inaudible) enforcement provided for the (Voice Overlap)

Mr. Milton I. Newman: If Your Honor pleases, is not only injunction but Section 10 says, “There's a $500 fine” and also not the criminal penalty and each week's -- apparently the section 10 of the statute says, “A violation of this statute or any section shall be punishable by a fine of not more than $500 or imprisonment for a period not exceeding six months for each offense or by both such fine and imprisonment.”

Each week of continued violation shall constitute a separate additional violation.

Justice Hugo L. Black: Has there been a threat to enforce the criminal part of that?

Mr. Milton I. Newman: Not -- not -- not so far as I know.

I mean, they brought this injunction.

Presently, they're satisfied with the injunction.

Now of course we haven't (Voice Overlap)

Justice Hugo L. Black: The injunction, do they seek a mandatory injunction to tell you to refill it?

Mr. Milton I. Newman: Well, yes sir.

That's part of -- that's part of the -- that's part of a judgment in this case.

The judgment in this case says that we have violated the statute in various ways and one of the ways is (Voice Overlap)

Justice Hugo L. Black: But does it say you have to refill it?

Mr. Milton I. Newman: Yes.

Justice Hugo L. Black: Does it say that?

Mr. Milton I. Newman: If Your Honor pleases, it says that the defendants have failed to refill the pit -- excavation of course, there have been those places where the earth has already been removed to the maximum extent allowed under the law.

Now, if you're asking -- that's the extent.

Let me answer your question that way sir and I can say to you that of course these people haven't done anything by the fact since this case has been going up into the Court.

But I dare say if this case is affirmed by this Court, I am sure I know what the town is going to do when we don't fill it up.

Actually, we're never going to be able to fill it up.

It will cost a million dollars at least –-

Justice Hugo L. Black: (Inaudible)

Mr. Milton I. Newman: Excuse me sir.

Justice Hugo L. Black: I was asking the question on the assumption that there might be a possibility the ordinance would be valid insofar as it looks to the future, but might not be valid in so far is it compels you to spend the million dollars?

Mr. Milton I. Newman: If Your Honor pleases, I must say to Your Honor that in the courts below, I didn't handle this from the beginning, but in the courts below, there was a section of the brief that said that maybe this statute is constitutional if you were -- as you apply to us, it doesn't talk about -- it doesn't apply to something that was -- that was dug before this ordinance was passed.

That's right you see.

There was a possibility of interpreting that way, but I didn't include the brief in that -- in that point in this case because it's been interpreted by all the courts below as applying to us.

And as applied to us, my humble opinion, it must be unconstitutional because it is taking away our property without due process of law.

It's not paying for taking away the privilege of further excavating as in requiring us to fill that pit.

Now when Your Honor, I think I got Your Honor's question that if it were interpreted so that it did not apply to us, then of course, I wouldn't be here.

I mean then (Voice Overlap)

Justice Hugo L. Black: That was not -- that -- I said -- I didn't say it could be nor did I say I would favor it.

I simply suggested that it might be possible the act would be constitutional in aspect in which it barred digging here for the future (Voice Overlap)

Mr. Milton I. Newman: That's right.

That's right.

It would be.

Justice Hugo L. Black: But might not be constitutional in the aspect in which it sought to compel you to pay out money, to repair something which was legal when done.

Mr. Milton I. Newman: Yes sir.

Now in the Court of Appeals, let me -- let me start by saying, we had a trial court sitting of course without a jury in injunction case who held that this was constitutional, mainly on the ground that it is regulatory.

This is only regulatory.

It doesn't prevent us from doing anything.

All we got to do is comply with the statute.

The appellate division, five judges affirmed without opinion and I might say to you in passing, if Your Honors please, that when I came to the case and made application of the appellate division for leave to go to the Court of Appeals, because I had no dissent, on the ground that there was a constitutional question there, the appellate division apparently didn't even recognize the fact -- turn me down they said, “There's no constitutional question involved.”

I made the same application of the Court of Appeals for leave to appeal thereon the constitutional question and 24 hours later, the Court of Appeals says, “Yes, of course it's a constitutional question.”

I don't mean those are those words.

The telegram said, “You're allowed to appeal here as a matter of right because of the constitutional question involved.”

In the Court of Appeals Your Honors please, there are two opinions.

It's a four-three decision of the New York Court of Appeals.

The majority of opinion written by Mr. -- by Judge Burke, says and I'm summarizing it now, that this is constitutional because and these words are taken out of the briefs in my friends, the appellees in this case.

Of course it only requires minimum -- minimal safety requirements and all you've got to do is make an application and get a license to do these things.

And it does not, I'm quoting now, it does not proscribe a further excavation.

That's the reason I said to you if Your Honors please, that under 4 (h) when they say we can't go below water level, and we've been below water level and we've been digging until the time that they make the ordinance, they can't be in disputed as my judgment about the fact that it is definitely proscription, prohibition.

It is definitely not minimal requirements of any kind.

It is -- it is definitely prohibitory and confiscatory.

Judge -- Judge Van Voorhis, in his dissenting opinion in which two other judges join him, reaches the conclusion as he states that this is no regulatory provision.

This is no regulatory ordinance.

This is prohibitory.

Now, I like to come, if I may, to something about the approach of the majority opinion and also the -- of the argument of the appellee.

I'm -- the argument about regulation brings them to the one rule upon which I think all the courts below who upheld in favor this constitutionality have depended and that is the question of the presumption of constitutionality.

Now, the presumption of constitutionality, that's what Judge Burke talks about and he cites the Saxl case decided by this Court and he cites Engel -- Engelsher against Jacobs.

Those are the two cases I remember, the main cases he cites there.

He says, “Since this is regulatory, there was a presumption of regulatory -- of constitutionality and we didn't show anything to overcome that presumption.”

I am now summarizing what is more at length written in my brief in deciding the cases that if Your Honors please, there is no presumption of constitutionality with respect to a statute which prohibits.

It's only a statute which regulates that you'd have a presumption of constitutionality.

I'll go one step further, if Your Honors please and say to you, meeting square on this question of presumption of constitutionality upon which the majority opinion relies and upon which the appellee mains -- makes their main argument that if there were such a presumption, the presumption in this case is certainly overcome by the fact that we have a non-conforming use of our property.

And there are all kinds of cases uniformly hold that you cannot legally constitutional -- constitutionally deprive a man of his non-conforming use without paying for it.

The decisions, there are a lot of current decisions and one of the most important I think is the most recent as the -- the term in this case, is the Harbison case in the State of New York in dealing with this question of how do you get rid of a nonconforming use which is a problem presented before so many of the towns of America there.

How do you that constitutionally?

And they have held that the only question is how much do you have to pay and the Harbison case said, “Well, you can tell them that in the future, they're going to have to quit doing the jump as that was what in the Harbison case and so you amortize over a period of years, their investment in the business.

We don't have any such thing in this case at all.

They don't pay us anything for telling us to quit our business and fill up what was legally made.

Now, I say to you Your Honors we are -- if we have the -- if we had the presumption --

Justice Hugo L. Black: Well, you (Inaudible), you suggest that, it reminds me that the -- probably some difference in what provision of the constitution are you relying on?

Mr. Milton I. Newman: I'm relying on the Due Process Clause of the Fourteenth Amendment sir and the case is directly at point is Pennsylvania Coal Case against Mahon.

In that case, that case involved the Pennsylvania statute which said that you could not dig under a man's house because legislature said and the Governor said in -- in -- in the legislation of that -- in the making of that statute that it was dangerous to dig under a man's house.

But the -- the land owner in that case had reserved the right to dig when he sold the house above to the -- to the people and that in my opinion was a much stronger case than this case where there's no -- no evidence at all of danger.

I'm coming that in a minute.

There's no evidence on the -- in that Pennsylvania Coal case, it would seem to me just as a layman that is pretty dangerous to dig under a man's house, but they said -- this court said, it's an opinion by Mr. Justice Holmes, he said certainly, it maybe dangerous in maybe the public will requires that you have this legislation but you can't do without paying the man for his property right, for his legal rights of excavating.

He has the right to dig under -- under there by contract module only.

In this case, we have the right to dig there because it's on our property.

Now, may I Your Honors please, bring you what I consider to be the answer to this question of where does the danger and the nuisance come in?

Where does that come in on a legal process here?

Well, if Your Honors please in this -- in the Camarco case, that's a Court of Appeals case in New York, they held squarely that when you have a non-conforming use and we do of course, we do -- I don't have to argue that, we have it legally and that decision of Mr. Justice Hill.

When you have that you cannot constitutionally come along with a statute and say that the man has -- you can't deprive a man of that constitutional non-conforming use, but the Court said, of course if there's a nuisance here, that's something else.

It says it by a way of dictum.

Now, let come to this question nuisance.

On this question of nuisance, number one, in the Court of Appeals, the appellee here admitted on the argument that there was no nuisance in the operation of our underwater excavation.

He challenges here the question of whether he made that observation.

I'm not -- I'm not the one who's contesting you with them.

Judge Jan Van Voorhis in his opinion, expressly states that on the argument in the Court of Appeals, counsel for the appellee admitted there was no nuisance, but I'll go further in that concession.

I'm not going to decide whether Judge Van Voorhis or my friend here is right about that.

I'm talking now about going beyond that.

Number one, there was no evidence of nuisance.

Now, who would have to prove nuisance in order to sustain this legislation?

Certainly, the man that owns the property wouldn't have to show that his property was a nuisance in order to sustain the constitutionality of the statute.

It would necessarily follow that the town would show nuisance.

They have not only shown nuisance, but the proof in the record with respect to the fact that we have a six foot wire of fence that there has -- there was no evidence of a single trespasser, not a single accident, not a single death, not a single cave-in, no property damage and this is under 30 years margin, 30 years of operation, 15 years in which there wasn't even fence around there because we weren't required to have it fenced until 1945.

Now I say the facts in the case certainly would show that there's no nuisance.

There was no proof of nuisance.

There was a concession of no nuisance and certainly there was no nuisance per se in the fact that there's water there.

And I want to say a word about this water because this water you see, when they talk about sprawling crater, again the trial judge talked about sprawling crater.

There's the implication that there's something, somewhere, something wrong about water, except that I'm page 11 of their brief, they have now said, we don't contend that there's any nuisance per se in water or in excavating so we don't have to contend with that.

But there is that aura that -- that atmosphere of something wrong with water and I'm coming back and saying to Your Honors that because we have water, that doesn't make our -- our operations dangerous.

Justice Hugo L. Black: Are you saying – does your argument amount to this?

I want to get to as near as I can and (Inaudible) that New York City desired did not pass the law which provided that there should be no artificial lakes can 25 feet or eight feet deep in certain sizes in the period in anywhere in the city?

Mr. Milton I. Newman: Well, if they said that they couldn't be, I don't -- you mean in his privately owned property?

Justice Hugo L. Black: (Inaudible)

Mr. Milton I. Newman: Well certainly you would -- yes.

Justice Hugo L. Black: If they said that just couldn't be any under town.

You're saying they can't pass a law like this?

Mr. Milton I. Newman: Well they could say, you got to put a fence around it.

They could say you got to police it.

They could say you got to do things to prevent people from coming in possibly if Your Honor pleases in Manhattan, they might say because as eight million people here but I would say, they couldn't say you can't have a lake in the middle of the town.

At least they haven't done it.

Justice Hugo L. Black: I understand that.

Mr. Milton I. Newman: I know but you --

Justice Hugo L. Black: I was just trying to get a thought that maybe your argument could but as I understand it, what you're saying is that the town cannot pass a law which prohibits artificial lake within its boundary.

Mr. Milton I. Newman: That's right.

I would say that would be so if Your Honor please.

They could say you got to put a fence around.

Justice Hugo L. Black: That would be taking people's property without due process of law.

Mr. Milton I. Newman: Precisely and in this case, it goes further than that because they took our business without due process of law.

I mean --

Justice Hugo L. Black: That's the other thing.

Mr. Milton I. Newman: Yes.

I might say one -- I'm trying to conclude here in five minutes.

The fact that the town now realizes that they made a mistake if they didn't bring any evidence of nuisances, they bring in by the -- they bring in one case one death, which they claimed took place in 1944.

It's not on the record, it's not on the record, it was not in the trial, in 1944, before there was any requirement by the town itself, that it has a fence around it.

I'm just going to say in passing, if they have a right to tell you about one death that took place in 1944, I have a right to tell you that by the police records of the City of New York, I discovered that 1960 with three deaths in Central Park and one in Prospect Park, but that has nothing to do with -- with eliminating a man's business.

You Honors Mr. Justice -- Judge Van Voorhis said, “Automobiles kill people.”

You don't get rid automobiles because people are killed.

You regulate them, but you don't get rid of automobiles.

Trichinosis brings on a disease but you don't get rid of selling pork because trichinosis may -- may come from the eating of pork.

I want to say in passing Your Honor please, I think that this statute and I have argued in my brief also violates the ex post facto laws both criminal and civil.

I think the Court has gone beyond the question of necessity of having a criminal law involved in order to have ex post facto but in this case, you got ex post facto as far as the criminal law is concerned, with those sections that I read you, Section 10 of the Act.

In addition to that, I think that under the Fleming case, this is even a violation of the statute -- of the constitutional provision with respect bill of attainder because of the fact that we are the only operating sand pit excavation company in this entire Town of Nassau -- Town of Hempstead.

And there's no question about the fact that the history of this thing in the 1945 proceedings in court and the 1946 proceedings with respect to try to get rid of this first by zoning and then talking news about condonation and then finally passing the statute means they pointed the statute directly at us.

But I don't think -- well, I think that directly comes under that -- under the both those sections of the constitutionally.

Your Honor please I like to finally say that when the Court of Appeals main opinion written by Judge Burke talks about the fact that there must be progress, I won't argue with them that it must be progress.

I won't argue with them with respect to whether he think -- whether the legislator is right in thinking they'd like to get rid of our pit.

There's no question they want to get rid of our excavation.

For all I say to you is in the words of Justice Holmes -- Mr. Justice Holmes in the Pennsylvania Coal case, we are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shortcut in the constitutional way of paying for the change and that's all we're asking.

I mean this is unconstitutional to say that you got a stop doing what you did for 30 years legally and then refill it up and not pay us for it.

If I have a little time -- if I have a little time, may I take it -- may I have couples minutes on rebuttal.

Chief Justice Earl Warren: Yeah of course.

Mr. Milton I. Newman: On rebuttal I mean.

Chief Justice Earl Warren: Whatever you have, took him very much I'm sure.

Mr. Milton I. Newman: No.

Chief Justice Earl Warren: Mr. Mattison.

Argument of William C. Mattison

Mr. William C. Mattison: Mr. Chief Justice, may it please the Court.

Just before he died and probably his last recorded interview, Leonard Hand deprecated his life on the bench with a comment to an author that he has spent his life Shoveling Smoke.

And I suggest to this Court with humility and sincerity that difficult as the judicial process is, it becomes even more so, when a record has been made implosively, acceptable by its interpretation both and briefs and in oral argument.

This morning -- this afternoon, I would like to address myself initially to some of the incorrect statements that have made -- have been made with respect to the brief, the proof of this case as it unfolded.

In the first place through all the courts, and in six memorandum and specific language of our brief in the Court of Appeals in which we said, “Pits like this constitute a public nuisance.”

We urged that this nuisance, that this pit was nuisance.

And when Judge Van Vhooris asked me, “Did I contend it with nuisance.”

I said, “Your Honor, I do not have to contend that it is a nuisance, because I do have the affirmative on this burden” and I respectfully submit that my inarticulate answer to him was because of some confusion which -- for which perhaps I was responsible.

This pit is a nuisance.

We maintain that the record shows it's a nuisance and we maintain in answer to Mr. Justice Harlan's question which opened the argument that there was no factual proof of confiscation in this record.

The question Mr. Justice Harlan asked was, “Was there any economic use left?”

Now, there is no proof at the trial at all, and the trial court so held in its long and comprehensive opinion that there were any available deposits that worth mining on the question of factual confiscation under the lake.

There was a total failure of proof with respect to the 18 acres which remain above land, and the trial court pointed out that on this record, the appellant's may still mine that 18 acres.

Now, this ordinance was a companion ordinance to -- an ordinance that was passed in the Town of Hempstead -- town of North Hempstead and Town of Oyster Bay, the -- the three towns making up Nassau County in 1945.

And as the ordinances all of them in their identical declarations and in their regulatory provisions mandate, the danger to which the decree was addressed was a three fold, one.

First to the threat of water pollution, to pollution of the water table, Nassau County draws all its water from this subterranean table, second, to the unsettling of houses surrounding the community of these pits and third and perhaps most important of all to the threat of drowning of little children in the pits.

In -- a 1957 case, 12 years after the enactment of this ordinance which case we cite on our brief.

The Supreme Court of the State of New York in Nassau County pointed out that it is a common knowledge that heretofore many lives of young children have been lost in these pits.

Now, against this background --

Chief Justice Earl Warren: And these pits referring to what particular pit (Voice Overlap)?

Mr. William C. Mattison: The language in the (Inaudible) case was to unguarded, unregulated pits and of course Mr. Chief Justice, we take that as our starting point in the regulation of the pits to make this three-fold threat to our community.

Now, the first suggestion is that this is a tailor-made ordinance and I think that the common knowledge to which the courts have reverted and our appellate division unanimously affirmed and our Court of Appeals referred to this refutes the suggestion that this was some criminal conspiracy in which this town engaged to eliminate this use by these defendants.

Today, there has been another misstatement which has been a continuing one for the record that there wasn't total compliance with the 1945 ordinance as it was first enacted.

The Court will look in vain to find support to this statement.

The argument is made today that there is no presumption accompanying the enactment of this ordinance because it is a prohibitory one.

I pause only to read the simple sentence from the Powell case which we cite in our brief which involved the total disability to manufacture (Inaudible) in which this Court said of a totally prohibitory statute, “Every possible presumption in favor of the validity of the statute and is in favor the validity of the statute,” and this continues until the contrary shown beyond a rational doubt.

Now, the argument is made here today that there were drainage conferences.

Again, the Court will not quite look in vain for competent -- comprehensible testimony of that conferred -- drainage conferences but will find these alleged conferences in colloquies and then openings in the record, and of course even if they were, our position is that the town does not have to pay the price on the exercise, the legitimate exercise of a police power.

It does not have to pay the price of buy-in all of this, a public nuisance and a threat to the community.

The suggestion has made again in counsel's brief and in his oral argument that we did not affirmatively prove that this was a nuisance.

We point out that this burden traditionally does not belong to us and that the burden of establishing that the statute, the ordinance is itself unreasonable belongs to the assailant who attacks it.

Now, the trial court held in its opinion that there was no qualitative evidence addressed to the unreasonableness of this ordinance and on this argument, it seems to me that there has been a concession that there was at least a legitimate area of legislation when in 1945, the three towns, these one included addressed itself to the dangers, the three-fold dangers which faced their communities.

Actually as I understand the argument of the appellant's here today, it is like the argument that was made in the Saxl case which we cite on our brief where they do not question the power to legislate in this field, but where they complain that the steps that we have taken are not -- are not determinative of the best legislative judgment.

The town, the appellant cites Pennsylvania against Maine.

I think that this is the only case in which they really rely and the case itself I think is totally distinguishable.

Mr. Justice Holmes put the principal reliance on the case on the two-fold aspect that it involves a private wrong and that it involve the impairment of a contract.

On the issue of res judicata this question, the impairment of the judgment was raised at the subsequent action which was commenced under this ordinance and which is -- which as counsel in the brief show had been discontinued.

When the question was raised under the prior enforcement attempt under this ordinance, the same argument was made namely, that the 1956 judgment giving them their vested right to continue this prior nonconforming use was res judicata and the Supreme Court held in an opinion the text that which we cite in our brief that the judgment in the nonconforming use case had no applicability.

It did not constitute both, in this case in which the issues were essentially different ones although the parties were the same.

The question was asked whether -- by Mr. Justice Black whether this judgment before this Court requires refill and the answer to Mr. Justice Black is emphatically no.

The judgment contains no affirmative mandate requiring refill.

Justice John M. Harlan: Was it exactly a negative injunction against the digging?

Mr. William C. Mattison: The injunction Mr. Justice Harlan provides that they are enjoined from further operations at the premises until they do two things, until they obtain a permit which is required in Ordinance Number 16 and until they cure the violations.

Justice Charles E. Whittaker: (Inaudible)

Mr. William C. Mattison: Yes it is Your Honor.

I don't have the page before me but I believe that you are looking at the judgment.

Yes sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. William C. Mattison: Now, if Mr. Justice Harlan, if you -- Mr. Justice Whittaker, if you please, this ordinance, this is the decretal paragraph does not affirmatively mandate them to (Inaudible) and refill the pit.

That mandate is interwoven in that decretal paragraph requiring the correction of all these violations as a condition precedent to further operations of the pit.

Chief Justice Earl Warren: Well, isn't that -- doesn't that include filling it?

Mr. William C. Mattison: It includes filling it not affirmatively and independently of this judgment.

It includes refilling it Mr. Chief Justice, if they should again endeavor to commence operations at the pit.

Justice Hugo L. Black: Your construction is that it orders them not to do anymore work there unless they refill the pits.

Mr. William C. Mattison: Correct Mr. Justice Black.

Justice Charles E. Whittaker: (Inaudible)

Mr. William C. Mattison: They've not suggested Mr. Justice Whittaker in -- in their case and the trial court pointed this out that there is no other available use for this property.

There is no testimony whatsoever that this property cannot be equipped to some other valuable available use, and the under New York cases cited one by them and one by us, the Auburn Bay case and the City of Yonkers against Rentways Inc.

The Court of Appeals is consistently held that this is affirmative burden which the assailant carries and which he must discharge and if the court itself will not sit to open and interpolate evidence and supply the missing evidence.

Justice Charles E. Whittaker: (Inaudible) what the Court of Appeals meant by the statement on page 200 of the record, neither the injunction granted nor the ordinance proscribes any future excavation.

The injunction merely conditions future operations upon the issues of a permit from the town and the corrections of certain violations of the ordinance.

Mr. William C. Mattison: If Mr. Justice -- if Judge Burke meant by that sentence that there was no prohibition of wet or underwater digging, he was obviously incorrect.

As I read that sentence in the opinion he was addressing himself to this proposition that this is not a totally prohibitory statute that it permits and even in this case Mr. Justice Whittaker, the excavations of the remaining 18 acres at the premises and that is how I read that sentence.

Justice Charles E. Whittaker: Well, could they under the decretal provisions of paragraph E on page 14 operate mine, if I may use that word, a remaining 18 acres unless and until they had first filled the pit?

Mr. William C. Mattison: They could not.

The refill requirement makes them -- mandates them to fill a pit before they commence the operations.

Justice Charles E. Whittaker: Well obviously, you couldn't mine under the refill because you would then be undoing what you were required in the first place to do, wouldn't you?

Mr. William C. Mattison: That's correct, but Mr. Justice Whittaker, there is nothing the record to show either the course of refill or assuming it to be substantial, there is nothing in the record to show that once refill was made the property then would not have a valuable use and a value in fact.

Justice Charles E. Whittaker: (Inaudible) This then brings us to the question of whether this is really regulation or appropriation?

Mr. William C. Mattison: Well, we submit that as in the Mugler case spirituous liquors were held to be proscribable and in Powell where Olio was proscribed and in Piers, these cases we've cited in our brief where the storage of oil cans was proscribed and in Reinman where a livery stable was proscribed and in Hadacheck where mining -- where manufacture of bricks was proscribed that this is not constitutionally prohibitive in violation of the Fourth Amendment because there is a nuisance which this community has the power to regulate and this statute with its regulatory provisions as the trial court held and as the Court of Appeals held is directed to the regulation of the -- of the premises.

Justice Potter Stewart: The time this pit staggered, it's the time of the digging started to -- Hempstead wasn't a -- wasn't very much American community.

It was farm -- farm country, wasn't it? (Voice Overlap)

Mr. William C. Mattison: I think -- I think, excuse me.

I think that's correct Mr. Justice.

Judge Van Voorhis pointed out in this case as he did in the dissenting opinion in the Harbison case which is has been mentioned that the people here came to the community that the nuisance, although he wouldn't consider it's a nuisance, he said that I consider it the contrary, did not come to the community, but we do not see that that fact it could be assumed would constitute a lack of due process in the enforcement and enactment on this regulation -- of this regulatory ordinance which permits these -- permits these defendants to operate and on this record in which there appears absolutely no confiscation in the proof.

There are two other questions.

Justice Hugo L. Black: It would be (Inaudible), would it not if you called confiscation, depriving a man and the right to use his property for the purpose for which he wants to use it, which is to dig underneath the water.

Mr. William C. Mattison: Mr. Justice Black, if you use confiscation in that sense, it is confiscation because he can no longer dig.

I do not question that.

I'm using it in a appropriate sense in which the word --

Justice Hugo L. Black: Although, it's taking away that right.

Mr. William C. Mattison: It's taking away the right because there is no question about it.

Justice Hugo L. Black: If it was a right.

Mr. William C. Mattison: If it was a right.

There is no question about it that under 4 (h) that there cannot be any further wet mining.

There are two questions which remain no longer.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of William C. Mattison

Chief Justice Earl Warren: Goldblatt et al, Appellants, versus Town of Hempstead.

Mr. Mattison, you may continue your arguments.

Mr. William C. Mattison: Mr. Chief Justice Warren, may it please the Court.

As the Court recessed yesterday, I had been addressing myself to the refill provision, particularly in response to questions addressed to me by Mr. Justice Whittaker.

I stated that Section 4 (a) of the ordinance requires refill, 4 (j).

And I state also today that in addition to that reclaimant of refill there are criminal sanctions.

Now, I would state emphatically this morning to the Court as we have in the briefs that neither the refill provision nor the criminal sanctions is before the Court.

The judgment before the Court contains no affirmative mandate with respect to refill and it is true that the question would become a right one were the appellants to endeavor to utilize the remaining 18 acres of land.

Justice John M. Harlan: I couldn't find the judgment of the Supreme Court (Inaudible)

Mr. William C. Mattison: It's on page 12, if my memory serves me correctly, Mr. Justice Harlan.

Now, if the -- if the appellants consistent with their argument that there is nothing left to excavate on the 18 acres, do not endeavor to mine there, then plainly there is no reclaimant so far as this judgment is concerned that they refill.

The refill provision we urge is a sensible one particularly so far as new pits are concerned.

It was calculated to guarantee that when deep excavations in the ground be made, those excavations be on the abandonment of the excavation return to (Inaudible)

This has the -- obvious and at one statutory purpose of eliminating the remaining deep pits in the ground.

We say that its sensible even here and as I urged yesterday that while at first blush, it may be a harsh reclaimant.

If it be complied with, nonetheless, there would be a very substantial value far in excess of the cost of refill once the provision had been complied with.

The Court may say indeed now that this is an oppressive, an oppressive -- or onerous reclaimant.

If it is, I point to Section 11 of the ordinance which contains a separability provision.

And I respectfully urged that should the Court reach the conclusion that refill constitutes an oppressive reclaimant that the ordinance be saved within the cases we've cited in our brief.

I -- also before the conclusion of my argument had endeavored to address myself to a question which Mr. Justice Stewart asked me when he asked if the pit was here before the community was urbanized.

And I answered correctly that the pit was in fact there.

While it was there, it was there as the record shows that -- Mr. Justice Stewart, as a small excavation with some wood surely in 1930 not as -- has been urged as a 20-acre-lake with an average depth of 25 feet.

The point is that as Nassau County and particularly this township grew from 1929 to the most populous town in America today.

The community grew with it.

Justice Potter Stewart: The most populous town in America?

Mr. William C. Mattison: There are statistics which --

Justice Potter Stewart: Most densely, so?

Mr. William C. Mattison: No, the most populated, if Your Honor please.

The population in excess of 1,000,000 people in -- in this township.

Justice Potter Stewart: The most populous town (Voice Overlap) --

Mr. William C. Mattison: Yes.

Justice Potter Stewart: -- the most populous city in --

Mr. William C. Mattison: Town.

Justice Potter Stewart: I just --

Mr. William C. Mattison: I'm sorry.

Justice Potter Stewart: -- don't quite understand what you're --

Mr. William C. Mattison: Coming from New York, I should've known better than that.

Now, the question which U.S. was surely a pertinent one so far as the zoning case is concerned.

Thus, it was so in Harbison which the -- on which the appellants relied.

But in a nuisance case especially where the nuisance and the community grow together, it is not a relevant consideration.

Otherwise, were this not so, there would be no conceivable limit, no control of the limit of the appellants' pit.

In this case, however, obnoxious it be, both the majority and the dissenters in the Harbison case specifically point it out that there was no nuisance in that case.

And they as much as said that this consideration, the community coming to the business activity would have no relevancy with that activity as here, constituted a noxious use or a hung to the community in brief a nuisance.

There was a brewery in Mugler long before the Kansas statute outlawed the manufacturer possession and sale of spirituous liquors.

In summary, in the remaining few minutes, I would state again that this ordinance is attended with the traditional presumption of constitutionality.

I would point to the record and to the trial court's determination that in this regard there was an object, a failure of proof by the appellants addressed to the unreasonableness of the ordinance.

I would point to the trial court's determination on this record that even without the presumption; these provisions of the ordinance were eminently suited for the curtailment of the triple threat posed by the dangers to this community from ground and from surrounding homes caving in and from the penetration of he water table.

Justice Felix Frankfurter: What do you do with the Mahon case?

Mr. William C. Mattison: Well, if the Court please.

In our brief, we -- in our oral argument yesterday, we endeavored to distinguish it on the grounds that Mr. Justice Holmes treated it principally on the contract basis as an impairment of contract.

And I observed Mr. Justice Frankfurter that that response does not evoke an immediate satisfaction from you.

While it may not be appropriate appellate argument to point to Holmes -- on Holmes, on November 26, 1922, he wrote a letter to Mr. Pollack which we cited to one of the courts below, to Judge Pollack, in which he pointed out that the principal trapped of his argument in Mahon was just this very distinction to which we point namely the impairment of a contract.

There would --

Justice Felix Frankfurter: But the whole tenor of the opinion is that if you take -- if you take too much, you have to pay for it under the compensation clause.

Mr. William C. Mattison: Well, if Your Honor please -- if Your Honor please, Mr. Justice Holmes, in addition to placing the main part of his decision as he wrote to Pollack, on the -- on the impairment of contract aspect was very clear in his opinion in pointing out that that there was the element of personal safety was not reasonably legislated by the Pennsylvania legislature.

John W. Davis who argued the case before this Court and I read his brief, argued principally -- again the contract question and he pointed out that contemporaneously with the enactment of the -- of the Coal Act in Pennsylvania.

There was a foul act which permitted the coal miners to -- the mining companies to escape the impact of the ordinance by the payment of dollar money.

He also pointed out in his -- and also pointed out in his decision that the statute did not apply either to the owners of the first estate and the third estate.

And Mr. Justice Holmes said plainly this was not a safety measure.

This is the way we read the case.

I would --

Justice Felix Frankfurter: It's hard -- pretty hard to say all this safety measure, isn't it?

Mr. William C. Mattison: Well, Mr. --

Justice Felix Frankfurter: (Inaudible) has caved -- was caving in that's why the Coal Act was passed in Pennsylvania.

Mr. William C. Mattison: Mr. Justice Brandeis in his dissent in the opinion also addressed himself to the impropriety of the legislative means in that case addressing himself as did -- Mr. Just -- as to John W. Davis to the simple measure of writing a letter, a traditional system which had obtained in the anthracite country before that.

In -- sir?

Justice Charles E. Whittaker: (Inaudible) -- how would enforcement of the present judgment would simply suspends further mining affect public safety with the lake and the physical conditions as they are would remain as they are, would they not?

Mr. William C. Mattison: Yes, sir.

But in -- Mr. Justice Whittaker, at the very least the enforcement of the judgment before this Court in its present posture would prevent the further excavation and the further enlargement of the crater at the lake and to that extent at least, it would prevent the enlargement of the nuisance.

Justice Charles E. Whittaker: How was -- was the -- the lake itself bound to be a nuisance?

Mr. William C. Mattison: I -- there was no specific -- there were no findings of fact in the case as we read the opinion of the trial court.

The lake itself was not found to be a nuisance but the totality of the considerations, namely, the width of the burn, the depth of the water, the angle of slope.

All of these violations of the ordinance, in some, constituted a nuisance, a danger to this community.

Chief Justice Earl Warren: In what respect Mr. Mattison?

Mr. William C. Mattison: The trial court said that the -- that on the proof, the ordinance was eminently suitable to the curtailment of the obvious dangers which he enumerated and those were the dangers that we've urged in this argument.

Threats and cave-ins and falls.

Justice Charles E. Whittaker: Would the peril to life be lessened by this decree?

Mr. William C. Mattison: It would be lessened, if Your Honor please, in the sense that I've already endeavored to answer your question that it at least is a cessation of the enlargement of this nuisance.

Justice Charles E. Whittaker: But not an elimination of it?

Mr. William C. Mattison: It would not be an elimination of the nuisance, if Your Honor please.

Justice Charles E. Whittaker: If it is a nuisance?

Mr. William C. Mattison: If it is a nuisance which we contend it this.

Justice Hugo L. Black: You contend while it would not eliminate the danger it would prevent its spread.

Mr. William C. Mattison: That's correct.

Of course, what ultimately would happen with the property is a question which is not in the record.

It may well be that it would be economically feasible for the appellants to fill the property in.

There is no suggestion that either -- that the 18 acres cannot possibly be mined.

And there is no suggestion in brief that there is no other profitable use for the property.

On the argument yesterday, there is one more further provision to which the trial court addressed itself and that was the concrete curb which the ordinance requires be erected under the fence to prevent children burrowing from beneath.

There were holes found in this fence on the examination and the evidence which was introduced at the trial.

For all these considerations, if it please the Court, and particularly the allusion yesterday of counsel to the statistics on drowning in New York City.

We understand that, as we have throughout this argument and the briefs that there has been a concession of our town board to legislate in this area.

And we find that the argument of the appellants is simply that they questioned the reason -- reasonableness and the extent of the legislative process, questions which we think have been effectively disposed off in the cases we have cited.

Mr. Chief Justice, may I say very briefly, I know I have short time, that there is no -- I say this categorically, there was no proof in this record of any nuisance.

You remember the dissenting judge, the three dissenting judges in the Court of Appeals said that there was a concession that was no -- of no nuisance.

I -- I'm not even relying -- well, I can rely on the concession.

It's noted in the Court of Appeals' opinion but I say categorically, definitely, unconditionally, there is not a word of nuisance in this case.

The town's case consisted of two witnesses put on at the very beginning of the trial.

One witness said we didn't get a permit.

And I tell Your Honor, of course we can't get a permit.

Of course we cannot comply with this statute.

We -- the only way we can comply with the statute is by not excavating.

The next witness said there are 8800 of people living in the neighborhood, period.

That's the plaintiff's case.

Now where is the proof of nuisance?

Justice Charles E. Whittaker: Well even if there was a nuisance --

Mr. William C. Mattison: Right.

Excuse me.

Justice Charles E. Whittaker: Does -- I like to know the -- does this judgment abate it?

Mr. William C. Mattison: Well, this judgment says that we have violated it in various ways because we are digging under water, which we admit that we haven't filled it up.

Now, nuisance hasn't come into this case.

That's the reason those decisions which were termed extreme cases and the decision of Mr. Justice Douglas in this actual case don't apply here at all because in every one of those case as Reinman, there was no proof of nuisance.

Furthermore, may I call your attention to the Hadacheck case because that Hadacheck case decided by this Court said the brick making in that particular case, under that proof was nuisance.

But they said -- this Court said expressly, “We don't say that the taking of the clay from the ground could be prohibited.

We reserved that question.”

That question came up in 1923 in the Eric (ph) case decided by the Circuit Court, Sixth Circuit Court.

And they specifically said that the question that was reserved on the Hadacheck case by this Court is now decided and you cannot prohibit the taking of the stuff from the earth itself.

I call your attention in that -- at that point the brief filed by the amicus curiae of the Association of Gravel Operators.

And -- and it shows that the problem we have here extends throughout the United States and they've covered in greater detail and I have would (Inaudible) -- with respect to natural resources.

Justice Felix Frankfurter: Do you assume -- does your argument assume that there cannot be a limitation of the use of private property under the Constitution unless you find a common-law nuisance?

Mr. William C. Mattison: Unless -- that's --

Justice Felix Frankfurter: That you find a common-law nuisance in order to -- is that the only basis on which the State can limit, the use -- the use of private property?

Mr. William C. Mattison: That's the most I'd say, if Your Honor pleases.

Justice Felix Frankfurter: I should say that's the least.

Mr. William C. Mattison: That's the least?

Yes, I see your context.

Yes, that's the least you can do.

You've got to show the nuisance --

Justice Felix Frankfurter: No, no.

I mean, if you got that much then you don't need anymore.

You don't need any constitution.

You don't need any -- all this argument.

A common-law nuisance is debatable as a common-law nuisance.

Mr. William C. Mattison: If these were --

Justice Felix Frankfurter: The question is here is what is the state's so-called police power wholly apart from the existence of a nuisance?

Mr. William C. Mattison: Well, in most extreme cases of those decide -- is the Reinman case, those cases which says that you -- if you have a nuisance then you can do something under your police power.

Justice Felix Frankfurter: If you have a nuisance, you need nothing else.

Mr. William C. Mattison: You don't --

Justice Felix Frankfurter: (Inaudible) said once about (Inaudible)

Mr. William C. Mattison: You can -- of course the -- the proof in this case or the facts in this case is that even though -- facts in this case are, that even though this town has been trying to get rid of our operations.

They never went into Court on a common-law nuisance, very simple matter if they thought there was any nuisance.

In the 1956 litigation which ended up with the decree that we are not -- that we have a non-conforming use which is wiped out by this ordinance.

They could've proved common-law nuisance there.

Justice Felix Frankfurter: I'm not suggesting --

Mr. William C. Mattison: No.

Justice Felix Frankfurter: I'm not questioning your position that there was no nuisance.

But even assuming it, the argument doesn't stop that there because there's no common-law nuisance.

Therefore the argument is, there's no state power to regulate the mischievous use of property in relation to the context of that society.

Mr. William C. Mattison: I have two other observations taking a half-minute, if Your Honor please.

Number one, with respect to the matter of value, in this record, there -- the judge allowed in the assessment of $66,000 and I have a case here, it's not -- it's not contested by my friend that Nassau County real property values are assessed at just one-third of the real property value.

So if you multiply it by three, you got a value here of our property of a $198,000 plus the fact that there was admitted in the evidence the testimony in the previous case which showed that our -- we have $200,000 gross business at the time that we were stopped here.

Furthermore, there was $241,000 of equipment, an investment in our property here.

This is all been wiped-out.

And finally, I say to Your Honor -- if Your Honor please, that when you take the fine of $500 and each week is one violation, I multiplied the weeks by the $500.

And we owe these people on this judgment.

They can go on a court tomorrow and get a judgment against such for $81,000 because for the last three years we have not filled this pit.

I hesitate to say what the penalty is.

I'm talking about maximum penalty of six months for each week.

I think -- I don't know.

Incidentally, if Your Honors please, these people didn't allow us to even get a temporary stay to continue until that Court passed upon -- I'm talking about appellate court, passed upon this thing.

You see it's -- at this juncture -- four-to-three in the New York Court of Appeals.

So the -- the real -- the realty, that real possibility of these people fining us $81,000 is a real possibility.

There's nothing ephemeral about it.

Thank you sir.

Chief Justice Earl Warren: Very well.