Lead Opinion
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 light-houses, for' custom-houses, post-offices, and court-houses, and for other public uses.' If the right to'acquire property for such uses may be made a barren right 'by 1¡]ie unwillingness of property-holders 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 uрon 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 Whifh 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
•But, if ijhé 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 if 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 ■ court-houses, and to obtain them by such means' as were known and approрriate. 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, oüght not' to be qúestioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth amendment contains a provisión that private property shall not be taken for public use without just -.compensation. What is that but an implied assertion, that, on
“ 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, light-houses, 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,
It is true, this power of the Federal government has not heretofore been exercised adversely; but the non-user 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,
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, fоr 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 shoukPbe expended in the purchase until the State of Ohio should cede its jurisdiction oyer the site, and relinquish to the United States the right to iJax the property. The authority here given Vas 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 salе 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 do
But if 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 of '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,
. It is argued that the assessment of property for the purpose of taking i1< 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 madе as the legislature may prescribe,- to enable the government, in the one case, to take the whole of it, and m the other to take á 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 valuatiоn to be thus made in either ease. 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 inade 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
■ 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 valuе 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 аnd 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, sect. 1), it was required .to confоrm 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 a joint proceeding against all the owners of lots proposed to be taken (Giesy v. C. W. & T. R.R. Co.,
Dissenting Opinion
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 pléadings 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'
provide for inquisition as to the value of- property to be tаken by similar instrumentalities; and yet, if the proceeding be a . suit at common law, the intervention of a jury would bé 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 in vested.by the eleventh section of the Judiciary Act, goеs 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 sup-
poses 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. The Saratoga & Schenectady Railroad Co.,
For these reasons, I am compelled to dissent from the opinion of the court. ■