No. 91.

160 U.S. 499 (1896)


Supreme Court of United States.

Decided January 6, 1896.

Attorney(s) appearing for the Case

Mr. Thomas C. Chappell, plaintiff in error, in person.

Mr. Assistant Attorney General Dickinson for defendants 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: 1st. The motion was not made at the first term, as required by Rule 14 of this court, and no satisfactory cause is shown for the delay. 2d. 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, instead thereof, applied for and obtained the present writ of error from this court. 3d. The order overruling the demurrer to the petition, and directing a jury to be empanelled, was not a final judgment upon which a writ of error would lie. Luxton v. North River Bridge Co., 147 U.S. 337.

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, c. 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; Moran v. Hagerman, 151 U.S. 329; Colvin v. Jacksonville, 157 U.S. 368; Davis & Rankin Co. v. Barber, 157 U.S. 673; The Bayonne, 159 U.S. 687; Van Wagenen v. Sewall, ante, 369.

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. Lehigh Co., petitioner, 156 U.S. 322; Interior Construction Co. v. Gibney, ante, 217. And if an appeal from a decree 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.

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.

The record in the present case falls far short of satisfying any such test. The defendant, among many other defences, 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 specific 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. United States, 142 U.S. 651; Horner v. United States, 143 U.S. 570, 577; United States v. Jahn, 155 U.S. 109, 112, 113.

In support of the position that the act of Congress was unconstitutional, reliance was placed on art. 1, sect. 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 light-houses 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. Maryland Stat. 1874, c. 395, §§ 1-13; 2 Public General Laws of 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 Constitution, lands in any State are needed by the United States, for a fort, magazine, dock-yard, light-house, custom-house, court-house, 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. United States, 91 U.S. 367; United States v. Jones, 109 U.S. 513; Fort Leavenworth Railroad v. Lowe, 114 U.S. 525, 531, 532; Cherokee Nation v. Kansas Railway, 135 U.S. 641, 656; Monongahela Navigation Co. v. United States, 148 U.S. 312; Luxton v. North River Bridge Co., 147 U.S. 337, and 153 U.S. 525; Burt v. Merchants' Ins. Co., 106 Mass. 356; United States, petitioners, 96 N.Y. 227.

Nor is it necessary that Congress should itself select the particular land to be taken. In Kohl v. United States, 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, custom-house, United States depository, 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 Ligh-thouse Board, under the direction of the Secretary of the Treasury, is entrusted with the discharge of all administrative duties relating to the construction, illumination, inspection and superintendence of light-houses, light-vessels, beacons, buoys, sea-marks, and their appendages; and is authorized to purchase for the purpose, within appropriations made by Congress, land which does not belong to the United States. Rev. Stat. §§ 4658, 4660. And the act of August 1, 1888, c. 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 light-house 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 twenty 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 witnesses 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: Tide Water Canal Co. v. Archer, 9 Gill & Johns. 479; Steuart v. Baltimore, 7 Maryland, 500; State v. Graves, 19 Maryland, 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 Revised 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. North River Bridge Co., 147 U.S. 337, 338.

This proceeding for the condemnation of an interest in land, for the use and benefit of the United States for light-house 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 petitioners. Kohl v. United States, 91 U.S. 367; United States v. Jahn, 155 U.S. 109, 111; United States v. Hopewell, 5 U.S. App. 137. 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. United States, 91 U.S. 367, 376; Upshur County v. Rich, 135 U.S. 467, 476. 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. Stat. §§ 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 of 1888, c. 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 encumber the administration of justice in the courts of the United States. Indianapolis & St. Louis Railroad v. Horst, 93 U.S. 291, 301; Southern Pacific Co. v. Denton, 146 U.S. 202, 209; Mexican Central Railway v. Pinkney, 149 U.S. 194, 206, 207. 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 light-house, land under tide waters. Hill v. United States, 149 U.S. 593; Chappell v. Waterworth, 155 U.S. 102.

Judgment affirmed.


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