(dissenting), with whom Circuit Judge J. JOSEPH SMITH joins:
A majority of our court has voted to reverse a panel decision which would have given direct relief under the Fourteenth Amendment to the victims of an injunction obtained by a municipality under an illegal zoning act. It does so on the theory that the complaint fails to state a claim for relief under the Fourteenth Amendment. In the majority’s view the plaintiffs’ claim is based on the Town’s non-malicious use of judicial process for enforcement of its zoning ordinance. They therefore do not reach the underlying questions of substantive liability and municipal immunity under the Fourteenth Amendment.
By dismissal, it seems to us the majority sidesteps the allegations in the Braults’ complaint that “The acts of Defendant Town in obtaining and maintaining the injunction . . . under a zoning ordinance that they knew, or should have known, to be invalid, deprived Plaintiffs of the use, enjoyment, profits and value of property without due process of law in contravention of the 14th Amendment of the Constitution of the United States.” A clearer pleading of the Fourteenth Amendment claim would be hard to imagine. Thus, what the majority here describes as a failure to state a claim is in reality an adjudication on the merits that the Constitution affords no remedy to persons deprived of property by the incorrect application of state judicial authority.
It is inconceivable that a state could constitutionally authorize the taking or expropriation of property without just compensation, even if it did so after providing a hearing and all of the other procedural rights which are imbedded in the concept of due process. Taking property, whether by the United States, Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933); Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664 (1923), by a state, Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), by a county, Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), or by a municipality, Haczela v. *742City of Bridgeport, 299 F.Supp. 709 (D.Conn.1969), requires just compensation. This, of course, is a direct result of the Fifth Amendment provision that “private property [not] be taken for public use without just compensation,”1 which is incorporated into the Fourteenth Amendment protection against deprivation of property by a state without due process of law. Chicago, Burlington & Quincy Railroad Co. v. Chicago, supra.2 With the greatest of respect it appears to us that our brethren have overlooked this basic substantive restraint on state authority in their narrow investigation for procedural regularity in the taking involved in this case.3
We take it that the majority would agree with us, though it does not mention the point, that property can be taken as effectively by a zoning ordinance (or judicial enforcement of it) as by an eminent domain law. As the Court said in Chicago, Burlington & Quincy Railroad Co. v. Chicago, supra.
The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation.
166 U.S. at 236-37, 17 S.Ct. at 584. Zoning ordinances are after all “in derogation of common-law property rights”4 and they may act to deprive a landowner of so much of the use of his property as to amount to a taking. Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587 (1938); R. Anderson, American Law of Zoning § 2.13, at 64 (1968); 2 Nichols, Eminent Domain § 6.1[3] (3d ed. 1970); Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681, 699 n. 65 (1973). Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). In this case we do not even have a valid ordinance which merely has the innocent effect of constituting a taking. Rather here we have an invalid ordinance which was enforced over protest and resulted in damage to these appellants in the amount of $86,411.
Apparently the majority feels that because the Town used the judicial process to enforce its ordinance, by obtaining an injunction from a Vermont county court, the act of taking is clothed with due process of law. In its view, “a plaintiff’s use of judicial process for enforcement of an alleged right is the very antithesis of denial of due process.” This linguistically appealing notion, however, neglects the teachings of Chicago, Burlington & Quincy Railroad Co. v. Chicago, supra:
In our opinion, a judgment of a state court, even if it be authorized by *743statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle, and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.
166 U.S. at 241, 17 S.Ct. at 586. Thus, the fact that judicial procedure has been employed cannot immunize official action constituting a taking without just compensation.
The majority also concludes that the appellants have not alleged facts sufficient to state a claim of what they characterize as malicious use of process under the Fourteenth Amendment. It should be noted that the mere fact that an injunction was obtained does not, even under Vermont law, constitute a defense to an action for malicious prosecution. Sparrow v. Vermont Savings Bank, 95 Vt. 29, 112 A. 205 (1921) (temporary injunction in effect for several years); Powell v. Woodbury, 85 Vt. 504, 83 A. 541 (1912) (temporary injunction wrongfully secured gives rise to suit on injunction bond and for malicious prosecution). This is precisely what this court recognized in another case arising out of an injunction originally granted in the Vermont courts but subsequently dissolved, Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81 (2d Cir. 1965), opinion after remand, 368 F.2d 384 (2d Cir. 1966).
Nor need we tarry at length over the majority view that “malice” was here insufficiently alleged to permit an action to lie. The majority’s approach is grounded in the belief that the Fourteenth Amendment claim by the Braults here is analogous to one for malicious prosecution under state law, an analogy with which we by no means agree.5 Assuming, however, that only the state tort constitutes a federal constitutional claim, the allegation that the Town acted “under a zoning ordinance that they [the Town and Town officials] knew, or should have known, to be invalid” was a sufficient statement of “malice” under Vermont law to state a claim of malicious prosecution. As Sparrow v. Vermont Savings Bank; supra, said:
The want of a sincere belief in the legality of the proceedings is malice enough to support the action. Barron v. Mason, 31 Vt. 189. Under this rule, the institution in bad faith of an unfounded suit would be sufficiently malicious to support an action of this kind. This kind of malice has been here established by the verdict. This kind of malice may be inferred from the want of probable cause. Barron v. Mason, supra; Closson v. Staples, 42 Vt. 209, 1 Am.Rep. 316. Or, to state it otherwise, evidence of the want of probable cause may be, and often is, strong evidence of this kind of malice. Driggs v. Burton, 44 Vt. 124; Carleton v. Taylor, 50 Vt. 220.
95 Vt. at 33, 112 A. at 207.
Surely here if the Town or Town officials knew the ordinance had not been properly enacted they could not have had *744a “sincere belief in the legality of the proceedings” brought to enforce the invalid ordinance. Thus, even if we were to accept the majority’s theory that an action under the Fourteenth Amendment for just compensation for property taken by the State is analogous to an action for the state-law tort of malicious prosecution, and therefore an allegation of malice is required to plead the federal constitutional issue properly, we have such malice sufficiently alleged here under the federal rules of pleading, see Fed.R. Civ.P. 8(f), 9(b); 2A J. Moore, Federal Practice 1i 8.34 (2d ed. 1974); 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1286, 1357. At the very least, if the Braults’ allegations of malice are insufficient they should be permitted to replead since “[ajmendment should be refused only if it appears to a certainty that plaintiff cannot state a claim.” 5 C. Wright & A. Miller, supra § 1357, at 613 & cases cited. In this regard, it should be noted that the dismissal by the court below was based solely on its construction of the complaint as stating a claim only under 42 U.S.C. § 1983 (a conclusion with which, on that construction, we do not disagree).
In view of our belief that a direct cause of action under the Fourteenth Amendment was alleged giving rise to federal question jurisdiction under 28 U.S.C. § 1331(a), Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913); Ex parte Young, 209 U.S. 123, 28 5. Ct. 441, 52 L.Ed. 714 (1908), there is no need for us to add to what Judge Smith had to say in the panel opinion, Brault v. Town of Milton, 527 F.2d 731, 736 (1975). We only point out here that many cases have been cited to us by amicus ACLU which support the proposition that municipalities may be sued under the Constitution even if they cannot be liable in a suit brought under 42 U.S.C. § 1983.6 Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975); Roane v. Callisburg Independent School District, 511 F.2d 633 (5th Cir. 1975); Muskegon Theatres, Inc. v. City of Muskegon, 507 F.2d 199 (6th Cir. 1974); Foster v. City of Detroit, 405 F.2d 138 (6th Cir. 1968); Miller v. County of Los Angeles, 341 F.2d 964 (9th Cir. 1965); Foster v. Herley, 330 F.2d 87 (6th Cir. 1964); Lowe v. Manhattan Beach City School District, 222 F.2d 258 (9th Cir. 1955); Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D. Cal.1974); Amen v. City of Dearborn, 363 F.Supp. 1267 (E.D.Mich.1973); Madison Realty Co. v. City of Detroit, 315 F.Supp. 367 (E.D.Mich.1970); Haczela v. City of Bridgeport, 299 F.Supp. 709 (D.Conn.1969).
As to the underlying substantive claim, we note only that our court’s own decision in Matherson v. Long Island State Park Commission, 442 F.2d 566 (2d Cir. 1971), anticipated Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the panel opinion here by holding that a direct claim under the Fourteenth Amendment for the taking of property was a substantial claim to which federal jurisdiction attaches. See also Eisen v. Eastman, 421 F.2d 560, 566-67 (2d Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970). We adhere also to the view stated by Judge Smith in the original panel opinion that there was no claim preclusion here since the federal constitutional claim has not been litigated in the state court proceedings. Brault v. Town of Milton, supra, at 733 n.5.
We would, .therefore, respectfully reverse.
. The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the amendment. The suits were thus founded upon the Constitution of the United States.
Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 27, 78 L.Ed. 142 (1933).
. Before the Fourteenth Amendment, the right to just compensation was not secured against state action by the Fifth Amendment provision. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833).
. We are by no means so unsophisticated as to suggest that an eminent domain proceeding as such requires some kind of procedural due process different from that otherwise guaranteed by law. Roberts v. New York City, 295 U.S. 264, 55 S.Ct. 689, 79 L.Ed. 1429 (1935).
. Town of Milton v. LeClaire, 129 Vt. 495, 498, 282 A.2d 834, 836 (1971). It is for this reason that zoning laws are construed in Vermont to require substantial compliance with procedural requirements in their enactment, Town of Charlotte v. Richter, 128 Vt. 270, 271, 262 A.2d 444, 445 (1970). The very zoning ordinance here involved was invalid under Vermont law for lack of due “warning” or proper notice to the voters as required by statute. Town of Milton v. LeClaire, supra, 129 Vt. at 498, 282 A.2d at 835; Town of Milton v. Brault, 129 Vt. 431, 282 A.2d 681 (1971).
. This is an action under the federal Constitution. The state tort law seems not altogether relevant in this just compensation case. But even if the experience of the state common law has usefulness as a guide, cf. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), it can hardly be conclusive of federal constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-95, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Rules of Decision Act makes this tolerably clear on its face. 28 U.S.C. § 1652. See also Note, Choice of Law under Section 1983, 37 U.Chi.L.Rev. 494 (1970); Note, The Competence of Federal Courts to Formulate Rules of Decision, 77 Harv.L.Rev. 1084 (1964); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). In accepting, modifying and rejecting different defenses raised in a § 1983 action in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Court looked at various sources of law without explaining its reason for choice. By doing so, the Court suggests that we are not tied to the state law in these cases.
. We of course are bound by Monroe v. Pape, note 5 supra, despite its possibly erroneous reading of the legislative history. See Comment, Toward State and Municipal Liability in Damages for Denial of Racial Equal Protection, 57 Calif.L.Rev. 1142, 1164-69 (1969). The Senate amendments to the Civil Rights Act rejected by the House would have imposed liability upon municipalities for the acts of third parties within their borders, not for their own acts. See 1 B. Schwarz, Statutory History of the United States: Civil Rights 651-52 (1970).