It was Justice Holmes who observed in his famous Pennsylvania Coal Co. opinion that the government is entitled to acquire private property to improve the public condition, but is not entitled to do so by taking constitutional shortcuts and not paying for the change. An article in The Tulsa World presents us with a case in point. There, in Rogers County, Oklahoma, a mining company set out to engage in lawful mining on land located outside of town. But the city fathers didn’t like it so they annexed the subject property to the city and prevented the company from mining. So the company sued. Note well that its lawsuit sought a declaration that the annexation was unlawful. But the courts must have denied that remedy. Rhett Morgan, Rogers County Seeks One-Third-Cent Tax Hike to Pay $22 Million Judgment to a Mining Company, Tulsa World, April 11, 2012 – click here.
The news story does not explain how it happened, but evidently the company was denied specific relief and was relegated to having to seek damages instead, in an inverse comndemnation action. Actually, that was consistent with settled law holding that when it appears that a taking of private property has occurred, the aggrieved owner is not entitled to a specific remedy like the return of his property or an injunction against the taking — his constitutionally guaranteed “just compensation” then becomes his sole remedy. The U.S. Supreme Court so held in Hurley v. Kincaid, back in the early 1930s, where Justice Brandeis explained (a) that injunctive relief is available only when the [monetary] remedy at law is inadequate (whereas in taking cases the constitution specifies a monetary remedy), and (b) that it would be bad policy for the courts to tell the executive branch of government what it may or may not do, and then meddle in executive branch activities by supervising compliance with the injunction, when the constitution specifies a monetary remedy.
Long story short, at trial the jury awarded $12.5 million. With interest accruing at the rate of 5.25%, the interest tab, as of this writing hovers around $7,089,041.10, and is accruing at $3180 per day. Oklahoma appellate courts affirmed, so the city must pay, and it is now trying to increase its sales tax to raise the money with which to pay off the judgment.
There is a moral in here some place, and we are sure you can figure out what it is. If not, here is some more help from Justice Holmes: the public, like anyone else, is only entitled to what it pays for. Or if you prefer: There ain’t no such thing as a free lunch.