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160 U.S. 499
January 6, 1896
This was a petition, filed March 21, 1890, in the district court of the United States for the district of Maryland, for the condemnation, under the act of congress of August 1, 1888 (chapter 728),1 of a perpetual easement in a strip of fast land [160 U.S. 499, 500] on Hawkins Point, in Anne Arundel county, in the state of Maryland, described by metes and bounds and courses and distances, and as owned by Thomas C. Chappell, for the purpose of transmitting rays of light, without obstruction, both by day and by night, between two beacon lights, known as 'Hawkins Point Light' and 'Leading Point Light,' theretofore constructed and put in operation by the United States as range lights of the Brewerton channel of the Patapsco river in the state of Maryland.
The petition was in the name of 'William Windom, secretary of the treasury of the United States and ex officio president of the lighthouse board of the United States,' and alleged that under the provisions of section 4658 of the Revised Statutes of the United States the lighthouse board is required to perform all administrative duties relating to the construction, illumination, inspection, and superintendence of lighthouses, lightvessels, beacons, buoys, and seamarks, and their appendages; that congress appropriates annually a sum of money for repairs and incidental expenses of lighthouses, which is available to pay for the easement aforesaid; and that in the opinion of the petitioner it was necessary and advantageous to the United States to acquire this easement by condemnation under judicial proceedings. The petition was signed by the United States district attorney, 'who [160 U.S. 499, 501] appears for the secretary of the treasury, the petitioner, by direction of the attorney general of the United States.'
Upon the filing of the petition, the court made an order that a copy be served on Chappel on or before March 24, 1890, and that he
On April 9, 1890, Chappell, 'saving and reserving all advantages and exceptions whatsoever, prays leave to except to the order' aforesaid, and demurred to the petition, and for cause of demurrer assigned 'that there is no authority of law for this proceeding; and also that it is not shown that the congress of the United States has appropriated or will appropriate more than five thousand dollars to pay for said easement, and that said easement is of a value greatly exceeding five thousand dollars, and whether congress annually or has ever appropriated a sum of money for repairs and incidental expenses of the lighthouse sufficient to pay for said easement, which is applicable therefor; and also that there is no party plaintiff made in said declaration and petition; and also that the laws of the state of Maryland require said proceeding, if the right to any such has accrued, to be conducted in the circuit court for the county where said land is situated, and by the laws of the United States the said laws of the state form the rule of decision in the courts of the United States in this matter; and also that the United States of America has passed no general law or special law authorizing the petitioner or the attorney general of the said United States, nor any other person whatsoever, to institute this proceeding, and said proceeding is instituted ultra vires, and the said United States cannot be made a party to said suit except by the direction and with the consent of the lawmaking power; and said power has neither directed the same nor consented thereto.'
On May 12, 1890, after argument on the demurrer, the court, by an order reciting that it appeared that the secretary of the treasury and ex officio president of the lighthouse board of the United States had been authorized to acquire this easement for the use of the board, and was of opinion that [160 U.S. 499, 502] it was necessary and advantageous to the United States to acquire this easement by condemnation under judicial proceedings, and had made application to the attorney general to cause such proceedings to be commenced, overruled the demurrer; and, being of opinion that condemnation of this easement ought to be had by the United States, and that the question of the damages which Chappell would sustain thereby ought to be submitted to a jury, ordered 'that, upon a day to be fixed by this court, upon notice to said parties, a jury of this court be impaneled, who shall be duly sworn to justly and impartially value and assess the damages which the said Chappell, as the owner of said land, will sustain by the acquisition by the United States of the easement aforesaid; and that the said jury be impaneled from twenty jurors regularly drawn to serve in this court, from whom each party may strike four jurors, or, if either party refuse to so strike, the court shall strike for him, and the remaining twelve jurors shall be the said jury of inquest to assess said damages; and the said proceeding shall be in such form as that the United States of America and the said Thomas C. Chappell shall be the parties thereto.'
On October 28, 1890, in accordance with this order, a jury was duly impaneled in the cause, and was sworn 'to truly and impartially value and assess the damages for the condemnation of the said easement over the land at Hawkins Point, in said petition mentioned, and a true inquisition make according to the evidence'; and upon a trial before the court, and after hearing evidence on behalf of the United States, and on behalf of Chappell, and the charge of the court, returned, on November 3, 1890, an 'inquisition and award,' signed and sealed by the 12 jurors, assessing to Chappell damages in the sum of $3,500 for the enjoyment by the United States in perpetuity of the easement aforesaid.
On November 10, 1890, Chappell filed a plea 'that the court here ought not to take cognizance of or sustain the action aforesaid, because he says that the cause of action aforesaid, if any accrued to the said plaintiff, accrued to him at Annapolis, within the jurisdiction of the circuit court for [160 U.S. 499, 503] Anne Arundel county, state of Maryland, and not within the jurisdiction of this court.'
On November 17, 1890, Chappell filed the following exceptions to the inquisition:
On December 18, 1890, the district court overruled these exceptions, and confirmed the inquisition and award.
On December 27, 1890, Chappell prayed for, and on February 24, 1891, was allowed, under section 633 of the Revised Statutes, a writ of error from the circuit court of the United States for the district of Maryland; but never gave bond to prosecute that writ of error.
On December 15, 1891, Chappell presented to the district judge a petition for a writ of error, under the act of March 3, 1891 (chapter 517 , 5), in which he mentions all the previous proceedings in the case ( above stated), and, 'in order that said rulings, judgments, and orders may be reviewed and reexamined by the supreme court of the United States upon the question of jurisdiction raised in said exceptions, pleas, and demurrers, and the other papers on file in this cause, and either reversed or affirmed, now prays for the allowance of a writ of error to the supreme court of the United States, and such other process as may cause said rulings, orders, and judgments to be corrected, instead of to the circuit court of the United States for the district of Maryland.'
A writ of error was thereupon 'allowed,' in the usual and general form, by the district judge, and was entered in this court February 27, 1892. [160 U.S. 499, 504] On December 2, 1895, the day before the case was called for argument in this court, the plaintiff in error moved for a writ of certiorari, suggesting a diminution of the record in omitting to state that on July 15, 1890, he filed in the district court a petition for the allowance of a writ of error from the circuit court of the United States.
Thomas C. Chappell, for plaintiff in error.
[160 U.S. 499, 506] Asst. Atty. Gen. Dickinson, for defendant in error.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.
The motion for a writ of certiorari for diminution of the record in not stating that on July 15, 1890, the plaintiff in error filed a petition for the allowance of a writ of error from the circuit court of the United States to the district court in which the proceedings were pending, must be denied, for several reasons. First. The motion was not made at the first term, as required by rule 14 of this court (12 Sup. Ct. viii.), and no satisfactory cause is shown for the delay. Second. The copy of docket entries, submitted with the motion, while it shows that a petition for a writ of error was filed on that day, does not show that a writ of error was then allowed or sued out; and the plaintiff in error afterwards obtained the allowance of a writ of error from the circuit court to the district court, which he abandoned, and, [160 U.S. 499, 507] instead thereof, applied for and obtained the present writ of error from this court. Third. The order overruling the demurrer to the petition and directing a jury to be impaneled, was not a final judgment upon which a writ of error would lie. Luxton v. Bridge Co., 147 U.S. 337 , 13 Sup. Ct. 356.
The writ of error now before us was sued out from this court to the district court of the United States for the district of Maryland, under the judiciary act of March 3, 1891 (chapter 517, 5), which provides that 'appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following [ among other] cases:'
First. 'In any case in which the jurisdiction of the court is in issue; in such cases, the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.'
Fifth. 'In any case in which the constitutionality of any law of the United States' 'is drawn in question.' 26 Stat. 827, 828.
In order to bring a case within the first class, not only must it appear of record that a question of jurisdiction was involved in the decision below, but that question, and that alone, must be certified to this court. If both a question of jurisdiction and other questions were before the court below, and a writ of error is allowed in the usual and general form to review its judgment, without certifying or specifying the question of jurisdiction, this court cannot take jurisdiction under this clause of the statute. Maynard v. Hecht, 151 U.S. 324 , 14 Sup. Ct. 353; Moran v. Hagerman, 151 U.S. 329 , 14 Sup. Ct. 354; Colvin v. City of Jacksonville, 157 U.S. 368 , 15 Sup. Ct. 634; Manufacturing Co. v. Barber, 157 U.S. 673 , 15 Sup. Ct. 719; The Bayonne, 159 U.S. 687 , 16 Sup. Ct. 185; Van Wagenen v. Sewall, 16 Sup. Ct. 370.
If, indeed, the writ of error is allowed upon the petition of the original plaintiff, asking for a review of a judgment dismissing the action for want of jurisdiction, and the only question tried and decided in the court below was a question of jurisdiction, that question is sufficiently certified to this court. In re Lehigh Min. & Manuf'g Co., 156 U.S. 322 , 15 Sup. Ct. 375; Interior Const. & Imp. Co. v. Gibney, 160 U.S. 217 , 16 Sup. Ct. 272. And if an appeal from a decree [160 U.S. 499, 508] of the circuit court appointing a receiver is allowed by that court 'solely upon the question of jurisdiction,' and on a petition praying an appeal from the decree as 'taking and exercising jurisdiction,' the question of jurisdiction is sufficiently certified. Shields v. Coleman, 157 U.S. 168 , 15 Sup. Ct. 570.
But in the case just cited, of Shields v. Coleman, the essential requisite of the appellate jurisdiction of this court in this class of cases was defined as follows: 'It is not necessary that the word 'certify' be formally used. It is sufficient if there is a plain declaration that the single matter which is by the record sent up to this court for decision is a question of jurisdiction, and the precise question clearly, fully, and separately stated. No mere suggestion that the jurisdiction of the court was in issue will answer. This court will not of itself search, nor follow counsel in their search of, the record, to ascertain whether the judgment of the trial court did or did not turn on some question of jurisdiction. But the record must affirmatively show that the trial court sends up for consideration a single, definite question of jurisdiction.' 157 U.S. 176, 177 , 15 S. Sup. Ct. 570.
The record in the present case falls far short of satisfying any such test. The defendant, among many other defenses, and in various forms, objected to the jurisdiction of the district court, because the act of congress under which the proceedings were instituted was unconstitutional, because the proceedings were not according to the laws of the United States, and because they should have been had in a court of the state of Maryland; and the court, overruling or disregarding all the objections, whether to its jurisdiction over the case or to the merits or the form of the proceedings, entered final judgment for the petitioners. There is no formal certificate of any question of jurisdiction: the allowance of the writ of error is general, and not expressly limited to such a question; and the petition for the writ, after mentioning all the proceedings in detail, asks for a review of all the 'rulings, judgments, and orders' of the court 'upon the question of jurisdiction raised in said exceptions, pleas, and demurrers, and the other papers on file in this cause,' without defining or indicating any spe- [160 U.S. 499, 509] cific question of jurisdiction. Here certainly is no such clear, full, and separate statement of a definite question of jurisdiction as will supply the want of a formal certificate under the first clause of the statute.
But, no question of jurisdiction having been separately certified or specified, and the writ of error having been allowed without restriction or qualification, this court, under the other clause of the statute above cited, has appellate jurisdiction of this case as one in which the constitutionality of a law of the United States was drawn in question; and, having acquired jurisdiction under this clause, has the power to dispose, not merely of the constitutional question, but of the entire case, including all questions, whether of jurisdiction or of merits. Nishimura Ekiu v. U. S., 142 U.S. 651 , 12 Sup. Ct. 336; Horner v. U. S., 143 U.S. 570, 577 , 12 S. Sup. Ct. 522; U. S. v. Jahn, 155 U.S. 109, 112 , 113 S., 15 Sup. Ct. 39.
In support of the position that the act of congress was unconstitutional, reliance was placed on article 1, 8, cl. 17, of the constitution of the United States, which provides that congress shall have exclusive power of legislation 'over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings'; and on the statute of Maryland, by which a method is provided for the condemnation, for the use and benefit of the United States, of lands wanted for the erection of lighthouses or other public buildings, and jurisdiction is ceded to the United States over such lands 'as soon as the same shall be condemned' under this statute. St. Md. 1874, c. 395, 1-13; 2 Pub. Gen. Laws Md. 1888, art. 96, 5-17. It was argued that the act of congress was unconstitutional, because it undertook to confer exclusive jurisdiction on the courts of the United States before purchase or condemnation of the lands in question.
But in the case at bar the question is not of jurisdiction for purposes of legislation, but of acquiring title by judicial proceedings. It is now well settled that whenever, in the execution of the powers granted to the United States by the [160 U.S. 499, 510] constitution, lands in any state are needed by the United States for a fort, magazine, dockyard, lighthouse, customhouse, courthouse, post office, or any other public purpose, and cannot be acquired by agreement with the owners, the congress of the United States, exercising the right of eminent domain, and making just compensation to the owners, may authorize such lands to be taken, either by proceedings in the courts of the state with its consent, or by proceedings in the courts of the United States with or without any consent or concurrent act of the state, as congress may direct or permit. Harris v. Elliott, 10 Pet. 25; Kohl v. U. S., 91 U.S. 367 ; U. S. v. Jones, 109 U.S. 513 , 3 Sup. Ct. 346; Railroad Co. v. Lowe, 114 U.S. 525, 531 , 532 S., 5 Sup. Ct. 995; Cherokee Nation v. Southern Kan. Ry. Co., 135 U.S. 641, 656 , 10 S. Sup. Ct. 965; Monongahela Nav. Co. v. U. S., 148 U.S. 312 , 13 Sup. Ct. 622; Luxton v. Bridge Co., 147 U.S. 337 , 13 Sup. Ct. 356, and Id., 153 U.S. 525 , 14 Sup. Ct. 891; Burt v. Insurance Co., 106 Mass. 356; In re U. S., Petitioner, 96 N. Y. 227.
Nor is it necessary that congress should itself select the particular land to be taken. In Kohl v. U. S., above cited, it was decided that an act of congress authorizing the secretary of the treasury to acquire by purchase at private sale or by condemnation a site in the city of Cincinnati 'for the accommodation of the United States courts, customhouse, United States depistory, post office, internal revenue and pension offices' was constitutional, and authorized the proceedings for condemnation to be had in the name of the United States in the circuit court of the United States under its general jurisdiction of actions at law in which the United States, or any officer thereof suing under the authority of an act of congress, were plaintiffs.
By the Revised Statutes of the United States the lighthouse board, under the direction of the secretary of the treasury, is intrusted with the discharge of all administrative duties relating to the construction, illumination, inspection, and superintendence of lighthouses, lightvessels, beacons, buoys, seamarks, and their appendages; and is authorized to purchase for the purpose, within appropriations made by con- [160 U.S. 499, 511] gress, land which does not belong to the United States. Rev. St. 4658, 4660. And the act of August 1, 1888 (chapter 728), under which this proceeding was instituted, authorizes the secretary of the treasury whenever, in his opinion, it is necessary or advantageous to the United States, to acquire land for the purpose of a lighthouse by condemnation under judicial process in a court of the United States in the district in which the land is situated. 25 Stat. 357. This act is a constitutional exercise of the power of congress, according to the decisions of this court above cited.
The statute of Maryland, above cited, provides that whenever the United States are desirous of procuring the title to any land within the state 'for the purpose of erecting thereon any light-house, beacon-light, range-light, light-keeper's dwelling, forts, magazines, arsenals, dock- yards, buoys, public piers, or necessary public buildings, or improvements connected therewith,' and cannot obtain the same by purchase, the United States, by any agent authorized under the hand and seal of any member of the president's cabinet may, by petition to the circuit court for the county where the land lies, have the land condemned for the use and benefit of the United States. That statute further provides that the petition shall state the bounds and quantity of the land, the purpose for which the United States desire to obtain title, and the names of the owners, and shall be verified by an affidavit of the agent of the United States; that, after notice to the owner, the court shall hear and determine upon the petition and any objections filed to the proposed condemnation, and, if it shall declare that the condemnation ought to be had, shall issue a warrant to the sheriff to summon 20 jurors, 'and from them each party or his agent, or, if either be not present in person or by his agent, the sheriff for said party, may strike four jurors, and the remaining jurors shall act as the jury of inquest of damages'; that the sheriff, before the jury proceed to act, shall 'administer to each of them an oath that he will justly and impartially value the damages which the owner will sustain by the use or permanent occupation of the land required by the United States'; that 'the jury shall summon such wit- [160 U.S. 499, 512] nesses as the parties may require,' and examine them on oath in relation to the value of the land, and reduce the testimony to writing, and ascertain and determine the compensation which ought to be made by the United States to the party owning or being interested in the land to be condemned; and that the jury shall reduce their inquisition to writing, and sign and seal it, and it shall then be returned by the sheriff, together with the testimony, to the clerk of the circuit court for the county; that the inquisition shall be confirmed by the court, if no sufficient cause be shown by the fourth day of the ensuing term, and, when confirmed, shall be recorded; that, if the inquisition be set aside, the court may direct another inquisition in the manner before prescribed; that the inquisition shall describe the land condemned, and state the valuation thereof; and that such valuation, when paid or tendered to the owner, shall entitle the United States to the land for the use and purposes set forth in the petition.
The only position, other than the denial of the constitutionality of the act of congress, argued by the plaintiff in error in this court, was that by the statutes and decisions of Maryland the jury which returned the inquisition was but a body of assessors of damages, in the nature of a special jury of inquest, or board of commissioners, and that he was entitled to have the whole case tried anew by an ordinary jury. In support of this position were cited the following cases, decided under different statutes of Maryland: Canal Co. v. Archer, 9 Gill & J. 479; Steuart v. Mayor, etc., 7 Md. 500; State v. Graves, 19 Md. 351. But, however that may be under the statutes of the state, it is not so under the act of congress.
The direction in the act of congress that the practice, pleadings, forms, and modes of proceeding in cases arising under it 'shall conform, as near as may be, to the practice, pleadings, forms, and proceedings existing at the time in like causes in the courts of record of the state,' must, as was said by this court in an analogous case, following the decisions under the corresponding provision of section 914 of the Re- [160 U.S. 499, 513] vised Statutes, 'give way whenever to adopt the state practice would be inconsistent with the terms, defeat the purpose, or impair the effect of any legislation of congress.' Luxton v. Bridge Co., 147 U.S. 337, 338 , 13 S. Sup. Ct. 356.
This proceeding for the condemnation of an interest in land for the use and benefit of the United States for lighthouse purposes was instituted in the district court of the United States by the secretary of the treasury, acting through the attorney general of the United States, as authorized by the act of congress. Having been commenced in the name of the secretary of the treasury, it was rightly ordered to be amended so as to make the United States the formal as they were the real petitioner. Kohl v. U. S., 91 U.S. 367 ; U. S. v. Jahn, 155 U.S. 109, 111 , 15 S. Sup. Ct. 39; U. S. v. Hopewell, 5 U. S. App. 137, 2 C. C. A. 510, 51 Fed. 798. The proceeding was conducted in substantial accordance with the provisions of the statute of Maryland upon the same subject, except so far as controlled by the act of congress under which it was instituted, or by other laws of the United States.
The provision of the Maryland statute that a petition in the county court shall be verified by affidavit of the agent of the United States, is inapplicable to a petition presented to a court of the United States by the officer designated in the act of congress. And the provision requiring a sheriff's jury to reduce to writing, and to return to the clerk of the court, the testimony taken before them, has no application to a trial had and evidence taken before the court itself.
The proceeding, instituted and concluded in a court of the United States, was, in substance and effect, an action at law. Kohl v. U. S., 91 U.S. 367 , 376; Upshur Co. v. Rich, 135 U.S. 467, 476 , 10 S. Sup. Ct. 651. The general rule, as expressed in the Revised Statutes of the United States, is that the trial of issues of fact in actions at law, both in the district court and in the circuit court, 'shall be by jury,' by which is evidently meant a trial by an ordinary jury at the bar of the court. Rev. St. 566, 648. Congress has not itself provided any peculiar mode of trial in proceedings for the condemnation of lands for public uses. The direction in the act [160 U.S. 499, 514] of 1888 (chapter 728, 2) that such proceedings shall conform, 'as near as may be,' to those 'in the courts of record of the state,' is not to be construed as creating an exception to the general rule of trial by an ordinary jury in a court of record, and as requiring, by way either of preliminary, or of substitute, a trial by a different jury, not in a court of record, nor in the presence of any judge. Such a construction would unnecessarily and unwisely incumber the administration of justice in the courts of the United States. Railroad Co. v. Horst, 93 U.S. 291 , 301; Southern Pac. Co. v. Denton, 146 U.S. 202, 209 , 13 S. Sup. Ct. 44; Railway Co. v. Pinkney, 149 U.S. 194, 206 , 207 S., 13 Sup. Ct. 859. This plaintiff in error had the benefit of a trial by an ordinary jury at the bar of the district court on the question of the damages sustained by him; and he was not entitled to a second trial by jury, except at the discretion of that court, or upon a reversal of its judgment for error in law.
To prevent any possible misconception, it is fit to observe that this case concerns only the taking by the United States, on making compensation to the owner, of an interest in fast land above high-water mark; and does not touch the question, argued, but not decided, in two recent cases, of the right of the United States to take, without compensation, for the purpose of a lighthouse, land under tide waters. Hill v. U. S., 149 U.S. 593 , 13 Sup. Ct. 1011; Chappell v. Waterworth, 155 U.S. 102 , 15 Sup. Ct. 34.
[ Footnote 1 ] An act to authorize condemnation of land for sites of public buildings and for other purposes.
Section 1. In every case in which the secretary of the treasury or any other officer of the government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building, or for other public uses, he shall be, and hereby is, authorized to acquire the same for the United States by condemnation under judicial process, whenever in his opinion it is necessary or advantageous to the government to do so; and the United States circuit or district courts of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation; and it shall be the duty of the attorney general of the United States, upon every application of the secretary of the treasury under this act, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application at the department of justice.
Sec. 2. The practice, pleadings, forms and modes of proceeding, in causes arising under the provisions of this act, shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, and rule of the court to the contrary notwithstanding. 25 Stat. 357.