1. The right of eminent domain exists in the government of the
United States, and may be exercised by it within the states, so far
as is necessary to the enjoyment of the powers conferred upon it by
the Constitution.
2. Where Congress by one act authorized the Secretary of the
Treasury to purchase in the City of Cincinnati a suitable site for
a building for the accommodation of the United States courts and
for other public purposes, and by
a subsequent act made an appropriation "for the purchase at
private sale, or by condemnation of such site," power was conferred
upon him to acquire, in his discretion, the requisite ground by the
exercise of the national right of eminent domain, and the proper
circuit court of the United States had, under the general grant of
jurisdiction made by the Act of 1789, jurisdiction of the
proceedings brought by the United States to secure the condemnation
of the ground.
3. Where proceedings for the condemnation of land are brought in
the courts of Ohio, the statute of that state treats all the owners
of a parcel of ground as one party, and gives to them collectively
a trial separate from the trial of the issues between the
government and the owners of other parcels; but each owner of an
estate or interest in each parcel is not entitled to a separate
trial.
Page 91 U. S. 368
This was a proceeding instituted by the United States to
appropriate a parcel of land in the City of Cincinnati as a site
for a post office and other public uses.
The plaintiffs in error owned a perpetual leasehold estate in a
portion of the property sought to be appropriated. They moved to
dismiss the proceeding on the ground of want of jurisdiction, which
motion was overruled. They then demanded a separate trial of the
value of their estate in the property, which demand the court also
overruled. To these rulings of the court the plaintiffs in error
here excepted. Judgment was rendered in favor of the United
States.
There are three acts of Congress which have reference to the
acquisition of a site for a post office in Cincinnati. The first,
approved March 2, 1872, 17 Stat. 39, is as follows:
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled that the Secretary
of the Treasury be, and he is hereby, authorized and directed to
purchase a central and suitable site in the City of Cincinnati,
Ohio, for the erection of a building for the accommodation of the
United States courts, custom house, United States depository, post
office, internal revenue and pension offices, at a cost not
exceeding three hundred thousand dollars, provided that no money
which may hereafter be appropriated for this purpose shall be used
or expended in the purchase of said site until a valid title
thereto shall be vested in the United States and until the State of
Ohio shall cede its jurisdiction over the same, and shall duly
release and relinquish to the United States the right to tax or in
any way assess said site and the property of the United States that
may be thereon during the time that the United States shall be or
remain the owner thereof."
In the Appropriation Act of June 10, 1872, 17 Stat. 352, a
further provision was made as follows:
"To commence the erection of a building at Cincinnati, Ohio, for
the accommodation of the United States courts, custom house, United
States depository, post office, internal revenue and pension
offices, and for the purchase, at private sale or by condemnation,
of ground for a site therefor -- the entire cost of completion of
which
Page 91 U. S. 369
building is hereby limited to two million two hundred and fifty
thousand dollars (inclusive of the cost of the site of the same) --
seven hundred thousand dollars, and the Act of March 12, 1872,
authorizing the purchase of a site therefor, is hereby so amended
as to limit the cost of the site to a sum not exceeding five
hundred thousand dollars."
And in the subsequent Appropriation Act of March 3, 1873, 17
Stat. 523, a further provision was inserted as follows:
"For purchase of site for the building for custom house and post
office at Cincinnati, Ohio, seven hundred and fifty thousand
dollars."
Page 91 U. S. 371
MR. JUSTICE STRONG delivered the opinion of the Court.
It has not been seriously contended during the argument that the
United States government is without power to appropriate lands or
other property within the states for its own uses, and to enable it
to perform its proper functions. Such an authority is essential to
its independent existence and perpetuity. These cannot be preserved
if the obstinacy of a private person, or if any other authority,
can prevent the acquisition of the means or instruments by which
alone governmental functions can be performed. The powers vested by
the Constitution in the general government demand for their
exercise the acquisition of lands in all the states. These are
needed for forts, armories, and arsenals, for navy yards and
lighthouses, for custom houses, post offices, and courthouses, and
for other public uses. If the right to acquire property for such
uses may be made a barren right by the unwillingness of
propertyholders to sell, or by the action of a state prohibiting a
sale to the federal government, the constitutional grants of power
may be rendered nugatory, and the government is dependent for its
practical existence upon the will of a state, or even upon that of
a private citizen. This cannot be. No one doubts the existence in
the state governments of the right of eminent domain -- a right
distinct from and paramount to the right of ultimate ownership. It
grows out of the necessities of their being, not out of the tenure
by which lands are held. It may be exercised though the lands are
not held by grant from the government, either mediately or
immediately, and independent of the consideration whether they
would escheat to the government in case of a failure of heirs. The
right is the offspring of political necessity, and it is
inseparable
Page 91 U. S. 372
from sovereignty, unless denied to it by its fundamental law.
Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340;
Cooley on Const.Lim. 584
et seq. But it is no more
necessary for the exercise of the powers of a state government than
it is for the exercise of the conceded powers of the federal
government. That government is as sovereign within its sphere as
the states are within theirs. True, its sphere is limited. Certain
subjects only are committed to it; but its power over those
subjects is as full and complete as is the power of the states over
the subjects to which their sovereignty extends. The power is not
changed by its transfer to another holder.
But, if the right of eminent domain exists in the federal
government, it is a right which may be exercised within the states,
so far as is necessary to the enjoyment of the powers conferred
upon it by the Constitution. In
Ableman
v. Booth, 21 How. 523, Chief Justice Taney
described in plain language the complex nature of our government
and the existence of two distinct and separate sovereignties within
the same territorial space, each of them restricted in its powers,
and each, within its sphere of action prescribed by the
Constitution of the United States, independent of the other.
Neither is under the necessity of applying to the other for
permission to exercise its lawful powers. Within its own sphere, it
may employ all the agencies for exerting them which are appropriate
or necessary, and which are not forbidden by the law of its being.
When the power to establish post offices and to create courts
within the states was conferred upon the federal government,
included in it was authority to obtain sites for such offices and
for courthouses, and to obtain them by such means as were known and
appropriate. The right of eminent domain was one of those means
well known when the Constitution was adopted, and employed to
obtain lands for public uses. Its existence, therefore, in the
grantee of that power ought not to be questioned. The Constitution
itself contains an implied recognition of it beyond what may justly
be implied from the express grants. The fifth amendment contains a
provision that private property shall not be taken for public use
without just compensation. What is that but an implied assertion
that, on
Page 91 U. S. 373
making just compensation, it may be taken? In Cooley on
Constitutional Limitations 526 it is said:
"So far as the general government may deem it important to
appropriate lands or other property for its own purposes and to
enable it to perform its functions -- as must sometimes be
necessary in the case of forts, lighthouses, and military posts or
roads and other conveniences and necessities of government -- the
general government may exercise the authority as well within the
states as within the territory under its exclusive jurisdiction,
and its right to do so may be supported by the same reasons which
support the right in any case -- that is to say the absolute
necessity that the means in the government for performing its
functions and perpetuating its existence should not be liable to be
controlled or defeated by the want of consent of private parties or
of any other authority."
We refer also to
Trombley v. Humphrey, 23 Mich. 471;
35 U. S. 10
Pet. 723;
Dickey v. Turnpike Co., 7 Dana 113;
McCullough v.
Maryland, 4 Wheat. 429.
It is true, this power of the federal government has not
heretofore been exercised adversely, but the nonuser of a power
does not disprove its existence. In some instances the states, by
virtue of their own right of eminent domain, have condemned lands
for the use of the general government, and such condemnations have
been sustained by their courts, without, however, denying the right
of the United States to act independently of the states. Such was
the ruling in
Gilmer v. Lime Point, 18 Cal. 229, where
lands were condemned by a proceeding in a state court and under a
state law for a United States fortification. A similar decision was
made in
Burt v. Merchants' Ins. Co., 106 Mass. 356, where
land was taken under a state law as a site for a post office and
subtreasury building. Neither of these cases denies the right of
the federal government to have lands in the states condemned for
its uses under its own power and by its own action. The question
was whether the state could take lands for any other public use
than that of the state. In
Trombley v. Humphrey, 23 Mich.
471, a different doctrine was asserted, founded, we think, upon
better reason. The proper view of the right of eminent domain seems
to be that it is a right belonging to a
Page 91 U. S. 374
sovereignty to take private property for its own public uses,
and not for those of another. Beyond that, there exists no
necessity, which alone is the foundation of the right. If the
United States have the power, it must be complete in itself. It can
neither be enlarged nor diminished by a state. Nor can any state
prescribe the manner in which it must be exercised. The consent of
a state can never be a condition precedent to its enjoyment. Such
consent is needed only, if at all, for the transfer of jurisdiction
and of the right of exclusive legislation after the land shall have
been acquired.
It may therefore fairly be concluded that the proceeding in the
case we have in hand was a proceeding by the United States
government in its own right, and by virtue of its own eminent
domain. The Act of Congress of March 2, 1872, 17 Stat. 39, gave
authority to the Secretary of the Treasury to purchase a central
and suitable site in the City of Cincinnati, Ohio, for the erection
of a building for the accommodation of the United States courts,
custom house, United States depository, post office, internal
revenue and pension offices, at a cost not exceeding $300,000, and
a proviso to the act declared that no money should be expended in
the purchase until the State of Ohio should cede its jurisdiction
over the site and relinquish to the United States the right to tax
the property. The authority here given was to purchase. If that
were all, it might be doubted whether the right of eminent domain
was intended to be invoked. It is true, the words "to purchase"
might be construed as including the power to acquire by
condemnation, for technically purchase includes all modes of
acquisition other than that of descent. But generally, in statutes
as in common use, the word is employed in a sense not technical
only as meaning acquisition by contract between the parties without
governmental interference. That Congress intended more than this is
evident, however, in view of the subsequent and amendatory act
passed June 10, 1872, which made an appropriation "for the purchase
at private sale or by condemnation of the ground for a site" for
the building. These provisions, connected as they are, manifest a
clear intention to confer upon the Secretary of the Treasury power
to acquire the grounds needed by the exercise of the national right
of eminent domain,
Page 91 U. S. 375
or by private purchase, at his discretion. Why speak of
condemnation at all if Congress had not in view an exercise of the
right of eminent domain and did not intend to confer upon the
secretary the right to invoke it?
But it is contended on behalf of the plaintiffs in error that
the circuit court had no jurisdiction of the proceeding. There is
nothing in the acts of 1872, it is true, that directs the process
by which the contemplated condemnation should be effected, or which
expressly authorizes a proceeding in the circuit court to secure
it. Doubtless Congress might have provided a mode of taking the
land and determining the compensation to be made which would have
been exclusive of all other modes. They might have prescribed in
what tribunal or by what agents the taking and the ascertainment of
the just compensation should be accomplished. The mode might have
been by a commission, or it might have been referred expressly to
the circuit court, but this, we think, was not necessary. The
investment of the Secretary of the Treasury with power to obtain
the land by condemnation, without prescribing the mode of
exercising the power, gave him also the power to obtain it by any
means that were competent to adjudge a condemnation. The Judiciary
Act of 1789 conferred upon the circuit courts of the United States
jurisdiction of all suits at common law or in equity when the
United States or any officer thereof suing under the authority of
any act of Congress are plaintiffs. If, then, a proceeding to take
land for public uses by condemnation may be a suit at common law,
jurisdiction of it is vested in the circuit court. That it is a
"suit" admits of no question. In
Weston
v. Charleston, 2 Pet. 464, Chief Justice Marshall,
speaking for this Court, said,
"The term [suit] is certainly a very comprehensive one, and is
understood to apply to any proceeding in a court of justice by
which an individual pursues that remedy which the law affords. The
modes of proceeding may be various, but, if a right is litigated in
a court of justice, the proceeding by which the decision of the
court is sought is a suit."
A writ of prohibition has therefore been held to be a suit; so
has a writ of right, of which the circuit court has jurisdiction,
Green v.
Liter, 8 Cranch 229; so has habeas corpus.
Holmes v.
Jamison, 14 Pet. 564. When,
Page 91 U. S. 376
in the eleventh section of the Judiciary Act of 1789,
jurisdiction of suits of a civil nature at common law or in equity
was given to the circuit courts, it was intended to embrace not
merely suits which the common law recognized as among its old and
settled proceedings, but suits in which legal rights were to be
ascertained and determined as distinguished from rights in equity,
as well as suits in admiralty. The right of eminent domain always
was a right at common law. It was not a right in equity, nor was it
even the creature of a statute. The time of its exercise may have
been prescribed by statute, but the right itself was superior to
any statute. That it was not enforced through the agency of a jury
is immaterial, for many civil as well as criminal proceedings at
common law were without a jury. It is difficult, then, to see why a
proceeding to take land in virtue of the government's eminent
domain, and determining the compensation to be made for it, is not
within the meaning of the statute a suit at common law when
initiated in a court. It is an attempt to enforce a legal right. It
is quite immaterial that Congress has not enacted that the
compensation shall be ascertained in a judicial proceeding. That
ascertainment is in its nature at least
quasi-judicial.
Certainly no other mode than a judicial trial has been
provided.
It is argued that the assessment of property for the purpose of
taking it is in its nature like the assessment of its value for the
purpose of taxation. It is said they are both valuations of the
property to be made as the legislature may prescribe, to enable the
government in the one case to take the whole of it, and in the
other to take a part of it for public uses, and it is argued that
no one but Congress could prescribe in either case that the
valuation should be made in a judicial tribunal or in a judicial
proceeding, although it is admitted that the legislature might
authorize the valuation to be thus made in either case. If the
supposed analogy be admitted, it proves nothing. Assessments for
taxation are specially provided for, and a mode is prescribed. No
other is therefore admissible. But there is no special provision
for ascertaining the just compensation to be made for land taken.
That is left to the ordinary processes of the law, and hence, as
the government is a suitor for the property under
Page 91 U. S. 377
a claim of legal right to take it, there appears to be no reason
for holding that the proper circuit court has not jurisdiction of
the suit, under the general grant of jurisdiction made by the Act
of 1789.
The second assignment of error is that the circuit court refused
the demand of the defendants below, now plaintiffs in error, for a
separate trial of the value of their estate in the property. They
were lessees of one of the parcels sought to be taken, and they
demanded a separate trial of the value of their interest; but the
court overruled their demand and required that the jury should
appraise the value of the lot or parcel and that the lessees should
in the same trial try the value of their leasehold estate therein.
In directing the course of the trial, the court required the lessor
and the lessees each separately to state the nature of their
estates to the jury, the lessor to offer his testimony separately
and the lessees theirs, and then the government to answer the
testimony of the lessor and the lessees, and the court instructed
the jury to find and return separately the value of the estates of
the lessor and the lessees. It is of this that the lessees
complain. They contend that whether the proceeding is to be treated
as founded on the national right of eminent domain or on that of
the state, its consent having been given by the enactment of the
state legislature of Feb. 15, 1873, 70 Ohio Laws, 36, sec. 1, it
was required to conform to the practice and proceedings in the
courts of the state in like cases. This requirement, it is said,
was made by the Act of Congress of June 1, 1872, 17 Stat. 522. But,
admitting that the court was bound to conform to the practice and
proceedings in the state courts in like cases, we do not perceive
that any error was committed. Under the laws of Ohio, it was
regular to institute joint proceeding against all the owners of
lots proposed to be taken,
Giesy v. C. W. & T.R. Co.,
4 Ohio St. 308; but the eighth section of the state statute gave to
"the owner or owners of each separate parcel" the right to a
separate trial. In such a case, therefore, a separate trial is the
mode of proceeding in the state courts. The statute treats all the
owners of a parcel as one party, and gives to them collectively a
trial separate from the trial of the issues between the government
and the owners of other parcels. It
Page 91 U. S. 378
hath this extent; no more. The court is not required to allow a
separate trial to each owner of an estate or interest in each
parcel, and no consideration of justice to those owners would be
subserved by it. The circuit court therefore gave to the plaintiffs
in error all, if not more than all, they had a right to ask.
The judgment of the circuit court is affirmed.
MR. JUSTICE FIELD, dissenting.
Assuming that the majority are correct in the doctrine announced
in the opinion of the Court -- that the right of eminent domain
within the states, using those terms not as synonymous with the
ultimate dominion or title to property, but as indicating merely
the right to take private property for public uses, belongs to the
federal government, to enable it to execute the powers conferred by
the Constitution -- and that any other doctrine would subordinate,
in important particulars, the national authority to the caprice of
individuals or the will of state legislatures, it appears to me
that provision for the exercise of the right must first be made by
legislation. The federal courts have no inherent jurisdiction of a
proceeding instituted for the condemnation of property, and I do
not find any statute of Congress conferring upon them such
authority. The Judiciary Act of 1789 only invests the circuit
courts of the United States with jurisdiction, concurrent with that
of the state courts, of suits of a civil nature at common law or in
equity, and these terms have reference to those classes of cases
which are conducted by regular pleadings between parties, according
to the established doctrines prevailing at the time in the
jurisprudence of England. The proceeding to ascertain the value of
property which the government may deem necessary to the execution
of its powers, and thus the compensation to be made for its
appropriation, is not a suit at common law or in equity, but an
inquisition for the ascertainment of a particular fact as
preliminary to the taking, and all that is required is that the
proceeding shall be conducted in some fair and just mode, to be
provided by law, either with or without the intervention of a jury,
opportunity being afforded to parties interested to present
evidence as to the value of the property, and to be heard thereon.
The proceeding by the states, in the
Page 91 U. S. 379
exercise of their right of eminent domain, is often had before
commissioners of assessment or special boards appointed for that
purpose. It can hardly be doubted that Congress might provide for
inquisition as to the value of property to be taken by similar
instrumentalities, and yet if the proceeding be a suit at common
law, the intervention of a jury would be required by the seventh
amendment to the Constitution.
I think that the decision of the majority of the court in
including the proceeding in this case under the general designation
of a suit at common law, with which the circuit courts of the
United States are invested by the eleventh section of the Judiciary
Act, goes beyond previous adjudications, and is in conflict with
them.
Nor am I able to agree with the majority in their opinion, or at
least intimation, that the authority to purchase carries with it
authority to acquire by condemnation. The one supposes an agreement
upon valuation, and a voluntary conveyance of the property; the
other implies a compulsory taking, and a contestation as to the
value.
Beekman v. Saratoga & Schenectady Railroad Co.,
3 Paige 75;
Railroad Company v. Davis, 2 Dev. & Batt.
465;
Willyard v. Hamilton, 7 Ham. (Ohio) 453;
Livingston v. Mayor of New York, 7 Wend. 85;
Koppikus
v. State Capitol Commissioners, 16 Cal. 249.
For these reasons, I am compelled to dissent from the opinion of
the Court.