Gilmer v. Throckmorton

18 Cal. 229 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

The Legislature having passed the following statute, (see Statutes of 1859, 26) and certain proceedings having been taken under it, the only question argued before us is the constitutionality of this act. The act is in these words :

“ Sec. 1. That whenever it shall be made to appear to any one of the District Courts of this State, upon the application of any authorized agent of the United States, that the said United States are desirous of purchasing any tract of land, and the right of way thereto, within the limits of this State, for the erection of a lighthouse, beacon light, range light, fortifications, navy yard, or other military or naval purposes, and that the owner or owtiers of said lands are unknown, nonresidents or minors, or from any other cause are incapable of making a perfect title to said lands, or in case the said owners, being residents and capable of, conveying, shall, from disagreement in price or any other cause whatever, refuse to convey said lands to the United States, it shall be the duty of the Judge of the District Court in which the lands so designated to be purchased are situated, to order notice of the said application to be published in some newspaper nearest to where said lands lie, also in one newspaper published in the city of San Francisco, once in each week, for the space of four months, which notice shall contain an accurate description of the said lands, together with the names of the owners, or supposed owners, and shall require all persons interested in the said lands to come forward, on a day to be specified in said notice, and file their objections, if any they should have, to the proposed purchase ; and, at the time specified in said notice, it shall be the duty of said District Court to impannel a jury, in the manner now provided by law, to assess the value of said lands, and all damages sustained by the owner of the lands so appropriated, by reason of such appropriation; which amount, when so assessed, together with the entire costs of said proceedings, shall be paid into the county treasury of the county in which said proceedings are had, and thereupon the Sheriff of the said county, upon the production of the certificate of the Treasurer of said county that the said amount has been paid, shall execute to the United States, and deliver to their authorized agent, a deed of the said land, reciting the proceedings in said cause, which said deed shall convey to the United States a good and absolute title to the said lands, against all persons whatsoever.

“ Sec. 2. That the money so paid into the county treasury shall there remain, until ordered to be paid out by a Court of competent jurisdiction.

“ Sec. 3. It shall be the duty of the Judge directing money to be paid to a county Treasurer, in accordance with the provisions of this act, to require of such Treasurer a bond in double the amount of money ordered to be paid to him, with two or more sufficient sureties, to be approved by said Judge. Said bonds shall be payable to the people of the State of California, for the use and benefit of such persons, severally, as are entitled to said money; said bonds to be executed, approved and filed with the Clerk of said Court, before receiving said money.

“ Sec. 4. In addition to the publication required by this Act, if there be a newspaper published in the Spanish language in the Judicial District where.such land is situated, said notice shall also be published in such newspaper for the length of time herein provided. In all cases of publication of notice under this act, the Court shall require the same proof as in cases of the publication of notice under the Civil Practice Act of this State.

“ Sec. 5. That an Act authorizing the United States to purchase lands for public purposes, approved March 10th, 1857, be and the same is hereby repealed.”.

' The constitutionality of this statute is assailed on two principal grounds, going to the whole body and effect of it, and upon several minor grounds, for alleged defects in the frame of the act.

The main questions involved are new in this Court, and in other Courts; for the research of the learned counsel has not enabled them to find any authoritative decisions bearing directly on the propositions argued in their relations to the same facts as those, or similar facts to those presented by this record.

An argument has been made on the vexed question of the rela tive powers of the State and Federal Governments; but we do not deem it necessary to consider at much length these matters, as the conclusion to which we have arrived is, as we conceive, entirely consistent with any theory which statesmen or jurists have assumed in regard to this subject.

Two propositions are made by the respective counsel for respondents, which seem to be inconsistent, but which tend to the same result. The 'first is, that the right of eminent domain does not exist in the United States with respect to property in a State, and that a State must exercise this right for her own proper if not exclusive use, and not for the use of another Government.

The second is, that as fortifications, navy yards, etc., are for the use of the Federal Government, Congress alone can exercise the right of eminent domain in taking property for such public use.

The first proposition assumes this shape in the argument: that the eminent domain is in the State of California; that the United States Government is only a proprietor, not a sovereign, when it owns land within the limits of the State ; that the sole power of condemning land for public purposes, following the ultimate dominion or sovereign prerogative, resides in the State authorities, and this power must be exercised by the State for its own purposes, and cannot be transferred by it to a foreign government, as the United States in this respect is ; and that the public purposes contemplated by the Constitution, as those for which the power of condemnation is to be exercised, are those purposes in which the State or its people are exclusively interested; or, at least, those purposes which the State, by her own Constitution, is bound, or is allowed, to protect and subserve. It is ingeniously argued in this connection that to the Federal Government is entrusted, as its peculiar province, the power of war and the duty of the common defense ; and that, following this power and duty, are the providing by that Government of the means of war and defense ; and that, therefore, it is no part of the duty of the State, as such, to assist in this end or these means ; and hence the conclusion is reached that the State government, as to these matters, has no public interest to subserve; since these ends or means are not public purposes of the State of California, within the meaning of the Constitution. Before proceeding to answer this argument directly, the importance of the subject will justify us in going into an examination of the origin and nature of this power, and of the extent to which it has been carried by the Courts, and the character of the subjects to which it applies.

Sovereignty, according to the best authorities, is the supreme power which governs the body politic or society that constitutes the State. And this power is independent of the particular form of government, whether monarchical, aristocratic, or democratic. (Wheat. Elem. Int. Law, pt. 1, ch. 2, sec. 5.) To each and every sovereignty belong certain rights which are deemed essential to its existence. These are called by the civilians jura majestatis, or rights of sovereignty. Among them is the jus eminens, or the supreme power of the State over its members and whatever belongs to them. When applied to property alone, it is called the dominium eminens, or the right of eminent domain; that is, the right of the sovereignty to use the property of its members for the public good or public necessity. The word necessity, in this connection, is not to be used in too limited a sense ; it means a want, an exigency, an expediency, for the interest or safety of the State. (Vattel, liv. 1, ch. 20, sec. 224; Cooper’s Justinian, 456 ; Bowyer Universal Pub. Law, 227, 372 ; Beekman R. R. Co., 3 Paige, 73 ; 3 Story on Const. 117.) Although the right of levying taxes upon private property generally in the State, results from, and is part of, the right of eminent domain, that term, in its more modern acceptation, applies especially to the taking of some particular private property for some particular public use. (2 Kent. Com. 889.) This right is inherent in government; and is, perhaps, inseparable from the idea of sovereignty. It is not given by the State Constitutions, but is restrained and regulated by them upon the implied recognition of its preexistence. The phrase employed in our Constitution is: “ Nor shall private property be taken for public use without just compensation.” The words, “ public use ” here, mean a use which concerns the' whole community, as distinguished from a particular individual or a particular number of individuals. It is not necessary, however, that each and every individual member of society should have the same degree of interest in this use, or be personally or directly affected by it, in order to make it public. (See 19 Law Reporter, September, 1856, 254, 256, and cases cited.)

The objects for which this right is most commonly exercised are public roads, streets, turnpikes, railroads and canals, and in a large majority of these cases the works are to be constructed and owned, not by the State, but by some municipal or other corporation—just as the fort in this case is to be constructed and owned by the United States. If the use for which the property is taken be to satisfy a great public want or public exigency, it is a public use in the meaning of the Constitution, and the State is not limited to any given mode of applying that property to satisfy the want, or to meet the exigency. The power which is authorized to take is also empowered to appropriate, or apply the thing taken to the use designated. Hence it may itself make the application, or it may make it through the instrumentality of others. Where private property is taken for the purposes of railroads, aqueducts, canals,, turnpikes, etc., the State usually makes the application through the agency of private corporations, to which she transfers the ownership of the property taken. And it seems not to be important whether the corporation through whose instrumentality the object is to be attained be a domestic or foreign corporation. (Varrick v. Smith, 3 Paige, 45; R. R. Co. v. Davis, 2 Dev. and Bat. 451; 2 Gibbs, 447; 2 Kent’s Com. 339; Morris C. and B. Co. v. Townsend, 24 Barb.,665.)

In determining whether the exercise of the power be called for.in any given case, it is held by many authorities of great weight that the Legislature is the conclusive judge of the public necessity or advantage. (Com. v. Breed, 4 Pick. 483 ; Spring v. Russell, 7 Greenl. 272 ; 6 Pick. 10 ; 23 Pick. 395 ; 3 Paige, 73 ; 4 Hill, 151; 24 Barb. 665 ; see also 19 Law R. 248, 253, where the whole subject is discussed with much learning and ability.)

Judge Redfield, in his excellent work on Railways, 112,113, says : “ And it would seem that notwithstanding this right of sovereignty may reside in the United States as the paramount sovereign, so far as the Territories are concerned, in reference to internal communication by highways and railways, and notwithstanding the ownership of the soil of a portion-of the lands by the United States, in many of the States as well as Territories, still, when any of the Territories are admitted into the Union as independent States, the general rights of eminent domain are vested exclusively in the State sovereignty.” He cites Pollard v. Hagan, 3 How. 212 ; Goodtitle v. Kibbe, 9 How. 471; Doe v. Beebe, 13 Id. 25; United States v. Railway Bridge Co., 6 McLean, 517.

The case in McLean is a long and well reasoned case, in which the venerable Judge holds that the State, by virtue of her eminent domain, has the right to take the land of the United States for .the purpose of a road—holding the United States for all such purposes to be a mere subordinate proprietor.. The case of Illinois Central Railroad v. W. S., (reported in 20 Law Reporter, 630) decided in the United States Court of Claims, is referred to in a note to .the text in Redfield as an authority to the same effect.

Having premised this explanatory matter, we proceed to the principles applying more directly to the propositions before us. It has •been seen that the Constitution is general in its language: “ Private ¡property shall not be taken for public uses without compensation.” .But no definition is given of public uses. We have seen, however, that this public use need not be a use general or common to all the •people of the State alike. It may be a use in which but a small portion of the public will be directly benefited, as a street in a town, a bridge or a railroad, necessarily local in its benefits and advantages, though it must be of such a chapter as that the general public may, if they choose, avail themselves of it. . It has also ' been seen that it is not essential to meet the requirement, that the use or benefit should be exclusively for the people of the State, or even a portion of those people. This was held in the case in Hew York, (24 Barb., and other cases before cited) and we can see no answer to the proposition that the people of California have no right to complain that the people of Oregon are also benefited by a public improvement, or that such improvement would be any the less a public use in California because it was also useful elsewherq. It has also been observed that it is not necessary the State should herself make the improvement or be interested in it after it is made. She may and usually does transfer, or permit the transfer to, and vest the control of the work to which the property is auxiliary in others. These transferees, usually corporators, are the instruments by which the State works out this public use, or accomplishes the public benefit designed. The State taking this action, acts as sovereign. As such sovereign, she owns or has the dominion over the property of her citizens. It is true, that in consequence of the limitations of our peculiar system, this dominion is not absolute ; but this feature makes nothing in this place against the general argument; for it is not proposed, to take this property against, but subject to these limitations. Every free government protects the property of the subject, and no government provides stronger safeguards than ours for such individual rights. But these rights are no more absolute and unlimited than the rights of the Government. It is a cardinal principle of trar law that private property is sacred to the lawful uses and disposition of the owner; that it is his to do with as he pleases, to keep, to use, or to sell, subject to a few simple qualifications. But government has its rights and its duties, which are equally essential to the State and to the people as are these proprietary rights to the citizen. Important as are the interests of each man, they must sometimes yield to the interests of all; and the Government, which acts for the whole, must be permitted to work out its general object, though sometimes at the expense of the natural rights of individuals. But in exercising this paramount power the Constitution wisely guards the citizen from oppression, and therefore has prescribed a principle of justice for the regulation of State action. When she interposes this sovereign dominion over private property, she makes adequate compensation to him for what she takes of his separate property for the benefit of the general society. In this manner his interest is made consistent with the power and efficiency of the Government and with the common weal. It is impossible to prescribe the number or character of objects upon which, or for which, this sovereign power may take effect. The State being supreme in respect to the mass of governmental powers—indeed, in respect to all not expressly granted to the Federal Government, or as means to the expressly granted powers— has this right to take the property within her jurisdiction for the general good. The ultimate title may be said to be in her, for it is by her laws that it is' protected, that it assumes the character of, and has value as property, and by which it is regulated in its tenure and transmission; and it escheats to her upon a lapse of title by incapacity to hold or forfeiture. The Federal Government does not,' in any respect, represent the' title of private property in a State, or primarily control it as a sovereign acting by its own original authority. It can pass no law controlling the title or descent , of real estate in California belonging to the citizens of this State, unless, indeed, it be in exceptional cases, (if any such exist) which make nothing against the general argument, denying that government the usual control or dominion as the general sovereign authority. The power, therefore, to take being unquestionable, and the State being, as the local sovereign, the proper authority by whom this power is to be usually exercised, it devolves upon the respondents to show that the particular case made by this record is an exception to the general power. It is not questionable that a fort, if not a necessity of Government, is an object of public use; nor do we think it admissible of doubt that the State might, for its own purposes, condemn land for a fort; for as, at least with the consent of Congress, it can raise an army, and is charged with the duty of executing its own laws, which may require military force, so it could provide an arsenal, forts and barracks, in which, or by which, military operations might be facilitated. When we admit the end to he within the limits of State authority, we must concede those means which are the proximate and natural instruments for its accomplishment. If these proceedings had been taken at the instance of the State and for her own purposes, it is therefore impossible for us to see any objection to this exercise of her authority. But we are met by the objection here that the act in question shows a different purpose; that the condemnation is for and on behalf of the United States. It has been seen that “ the public use ” may be worked out through the instrumentality of a foreign corporation, and that this use may have relation to any purpose, civil or military, within the compass of the State authority, which subserves the general interest. The only test and criterion of the admissibility of the power are that the particular object tends to promote the general interest, in its relation to any legitimate object of government. The Government selects its own agents and agencies in the promotion of this purpose. And whether that agency be a foreign or domestic corporation, and a fortiori a foreign Government or a member of the domestic Government, would seem to be immaterial. But we do not regard the Government of the United States a foreign Government. It is true, it is a Government independent of the State Government, moving in a different sphere from that of the State Government, and with a different class of powers, distinct but not antagonistical, and operating upon and within the circle of its powers supreme over the same constituents. But we cannot perceive why the State Government may not as well use the Federal Government as an agent in promoting this public end, as she could use a corporation created by and existing within a different jurisdiction. The people of California are as much interested in being defended against public enemies, foreign or domestic, whether the defense comes from soldiers of the Federal Government or from soldiers of the State, and it is as much a public use to the people of this State to have the United States Government garrison the fort that protects their main harbor as to garrison it themselves, and none the less a public use to them, because this fort, thus garrisoned, may be a part of a general system of defense to the entire Confederacy. Though the particular fort contemplated may be of indirect general benefit to the whole nation, it is of direct and peculiar benefit to this portion of it. But it is answered that this State cannot give these proceedings for the benefit of the United States, because that Government is supreme as to this subject of national defense and its incidents, and is independent of State aid, opposition or authority. This involves the second proposition which we will consider in this connection.

To make the argument good, it must go further. It must be shown, not only that the Federal Government has the power to condemn this land, but that it has the exclusive power to condemn it, by its own direct action. If it has this exclusive power, we must look for it in the Federal Constitution, in some express provision to that effect, or in something auxiliary to an express provision. We have found nothing of this sort. If the State had the power to take land for public purposes such as this, she retains it unless it can be shown that she has parted with it. The Federal Government, it is true, can declare war, and to it is intrusted the duty of the general defense against foreign invasion; but nothing is said in the Constitution as to the condemning of land for forts. Can it be maintained that the State government is prohibited all aid to the Federal Government in execution of the undisputed powers of the latter? Might not the' State lend the Federal Government the State credit to prosecute a war? Might she not lend her the State funds ? Might she not, having the general power of taxation, levy a tax, though the money raised was designed for the benefit of the General Government ? Might she not let her jails, penitentiaries, etc., be used by the officers of the United States Government? Or her public roads and highways for the post routes of the Government ? And might not the Federal Government, in return, afford facilities and aid to the State Government in the administration of their duties and functions ? Is it any answer to say, that these Governments, as respect each other, are independent, separate and distinct»? Why may not favors, or benefits, or assistance, be bestowed or received from distinct Governments as well as by or from the several constituents or representatives of the same Government? The question is not whether they are distinct, but it is whether being distinct, there is, from that cause or any other, an incapacity in one to give, or in the other to receive a particular benefit, or to give or to accept, as in this case, a particular agency legitimately given, or accepted as to other parties. A foreign corporation is distinct from the Government of a State other than that of its institution; so is a citizen independent of a foreign sovereignty; but this does not prevent the sovereignty from making them agents if it has jurisdiction of the subject of the agency; nor does it prevent them from accepting the agency. The United States are in no way disabled by express inhibition from accepting this agency of taking title to land of which the State of California is the ultimate proprietor, to subserve a public use to her citizens; and the State is in no way disabled from giving it. The State takes it for her interest—which is to have her soil defended; she gives it to a Government which may receive it in consideration of its duty to defend the State; and the State, having a public interest in this defense, secures the attainment of the object by transferring to the Federal Government this means of performing its national obligations. It is precisely because the Federal Government is bound to defend the State, that the State is authorized to cooperate with the Federal Government in securing the means of that defense. The State could neither delegate to the Federal Government a portion of her own peculiar powers, nor could she receive from - that Government any of the powers of the latter, for powers of the Government are not alienable by the agents. But this is not the question; nor is the question, whether she could exercise her powers for the benefit of the Federal Government, even if at the same time she was benefited, and that Government assented to her acts. Even this is not the true question. It is, cannot the State exercise a power primarily for her own benefit—that being a public use—through the agency of the Federal Government, although the Federal Government is to receive by the agency assistance in executing its general duties ? There is a wide distinction between the State’s delegating a power to the Federal Government, and retaining and exercising the power for the benefit of herself and of that Government. Some powers are exclusive in the Federal Government—some concurrent with the States; but powers do not usually depend on the purpose for which they are exercised; thus the Federal Government may lend money to the States, as, in form, was the case in the distribution of the proceeds of the sales of the public lands ; but this is not to trench upon the province of the State Governments in furnishing the revenue for their own support; so Congress has donated lands for the support of schools, and swamp lands to the States; this has been to assist the State by the exercise of the power of the Federal Government in their own administrations; but no one supposed that it was unconstitutional to give or receive this assistance. Precisely in this light do we regard the exercise of the power in question. The State has a general right to condemn land to public use; she may select her own agent to accomplish this public end; she has selected the United States Government as such agent; the Government is capable of undertaking the trust and receiving the title; this public use is a use to the State; neither the Constitution of the State nor that of the United States forbids the Federal Government from taking, or the State from granting this right; and the rights and interests of the citizens are as fully protected as if the State took the land for her own peculiar purposes. This statement Answers the argument, that judicial proceedings, instituted by the Federal Government, must be taken in the Courts of the United States, and that the State Courts have, and can take no jurisdiction. For, if we concede that such proceedings as these under this inquisition of damages be judicial proceedings, that is, a “ suit at law or in equity,” within the meaning of the rule invoked; and if we concede further that they constitute a matter arising under the Constitution or laws of the United States, still the answer is, that this is not a proceeding by the United States, but a proceeding by the State, exercising her sovereign power, not substantively for the benefit, of the United States, but primarily for the benefit of the people of the State, the agent of the Federal Government being merely the instrument at whose relation or by whose act this sovereign power is invoked. The act of taking the property is the act of the State, the act owing its whole force to her will, and is exercised for her own benefit, though the policy or interest of the Federal Government is also subserved; yet this incidental result does not change the character of the act as the exercise of sovereign authority by the State, and for her own purposes. But even if this were not so, the proceeding is not a suit “ at law or in equity,” nor a suit arising under, or having relation to, the Constitution of the United States or the laws thereof; but it is a proceeding arising under the laws of the State of California; and we know of no rule of law which disables the Federal Government from enjoying a benefit, or waging a claim of this sort in the Courts of the State, when the State, by her own action, gives the benefit or allows the claim to be prosecuted by the Government in her own forum. It may be remarked, however, that the right to the land, or to take the land, is given by direct Act of the Legislature, and not by judicial proceeding; that the proceedings are mere modes of ascertaining the sum due for the land thus allowed to be taken; and, though no divestiture of title is caused by the direct and sole operation of the Act, but this follows only after the course of proceedure is' perfected, the same may be said of every condition precedent; in other words, the appropriation is the act of the Legislature, not the judgment of a Court, though this appropriation only is rendered complete upon a compliance with certain precedent conditions.

The general argument is not weakened, if we concede that the Federal Government might take and appropriate this property without the aid or sanction of the State. Upon this question we express no opinion, for it is not necessary ; since this power, if it exist, is not exclusive in the Federal Government; and if it were, as we have already argued, we see no objection to the Federal Government prosecuting its right through the instrumentality of the legislative act which executes the power, and promotes the interest of the State, and secures the right of the United States and of its own citizens. These views dispose of the case upon the principal questions submitted.

It is said that a distinction exists between giving this right to a foreign corporation and giving it to the Federal Government, in this : that in the first case, the State can still control the property for the benefit of the public, and to secure the use; while in the last, it passes forever from her jurisdiction and control. But if this last statement be true in point of fact, without the express cession of jurisdiction to the Federal Government over the fort grounds so taken, we cannot see that this fact makes any difference in prin- ■ ciple. The right to take is not necessarily connected with retaining a power of control after the appropriation; this power rests on a different ground; and it is for the State to prescribe the terms on which the property shall be taken or used, subject only to the ^constitutional provision as to compensation. It may be considered a sufficient guarantee that the Federal Government will use the property in the right way, that such is the implied obligation of the Government, or that its interest or its duty will so direct.

The other points touch only the details of the act, which supply the machinery by which this right of the State is sought to be effected. The able argument of the counsel for the United States has dispelled whatever doubts we felt upon the question as to the sufficiency of the security to the owners or claimants of this land. We may briefly remark: first, with respect to the provisions of the law for a “just compensation.” We think this law has provided a certain and adequate remedy by which the owner of the private property taken can obtain his- compensation, without unreasonable delay. This is all that can be required, (Rogers v. Bradshaw, 20 Johns. 735.) Again, the objection that no “ due process of law ” is provided in this act, is, we think, entirely untenable. It was suggested in the argument, but evidently not relied upon. The act certainly provides a “ process of law ” for the taking of private property for these public uses, and we think it is a due and adequate process. It is made the duty of the Court to impannel a jury in the manner provided by law, to assess the value of the land, and all damages sustained by the owner thereof, whereupon the Judge is to direct the money to be paid into the county treasury for the use of the owner, and to be paid out to him when his ownership is ascertained by a Court of competent jurisdiction.

It is further objected, that the duties imposed upon the Judge in these proceedings are not judicial, and that therefore he cannot legally be required to perform them. We think the function here to be discharged by the Judge, are in their nature judicial; he summons the parties, hears and decides upon legal objections, directs the impannelling of a jury, receives their verdict, makes orders; in short, conducts a judicial inquiry. (18 Wend. 102.)

Judgment reversed and cause remanded for further proceedings.