IN BE. HANDEa80N.

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In re

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MANDERSON et· aZ.

(Of'l'Ctdt CO'lI!rt of AppeaZs, Third Oi'l'cuit.

August til, 1892.)

EMINENT DOMAIN-CONDEMNATION BY UNITED STATBll-COMPIIN8ATION.

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Act March 3, 1891, authorizes the secretary of war to modify existing plans for the excavation of Petty's island and the adjacent shoals in the Delaware river, but declares that ths title to any additional lands "acquired" for this purpose shall be vested in the United States without charge. Held that, in view of this express declaration that no compensation shall be paid, the government has no constitu· tion II power to institute condemnation proceedings to obtain such lands, and that thertl is nothing in the acts of April 24 and August I, 1888, giving officers of the government general authority to proceed by condemnation, which qualifies or removes thi3 co:ldition against compensation. 48 Fed. Rep. 896, affirmed. A suggestion that the compensation would be paid by voluntary contributions ill without merit, for that resoucce is too uncertain to justify condemnation. 'the circuit COll.rt of appeals could not take'judicial notice of independent proceedi,ngs in the trial. court and ot,her courts of the circuit, for the condemnation of other lands such proceedings Dot being a part of the record.
COURT 01.' Ar:'EALs-JUDIOIAL NOTIOE. .

8.IME.

Error to the District Court of the United StateS for the District of New Jersey. Petition for the condemnation of lands belonging to Andrew Manderson and others for the use of the United States. The petition was dismissed below for want of authority in the government to maintain the proceeding. 48 Fed. Rep. 896. The writ of errOl" was sued out to review this judgment. Affirmed. J. Warren Coulston and Samuel Dicksoo, (Henry S. White, U. S.Atty., .and C. V. D. Joline, on the brief,) for plaintiff in error. Wm. a. Hannis, for defendants in error. Before DALLAS, Circuit Judge, and BUTLER and WALES, District . Judges. W ALES, District Judge. Proceedings were instituted in the court below forthe condemnationof certain lands lying within the state of New J ersey, and which are required by the United States for continuing the improve'Uent of the harbor at Philadelphia. A petition was filed by the proper officer of the government, desoribing the lands necessary to be taken, their owners, and setting forth the substance of the sev,eral acts of congress which, it is alleged, authorize the said proceedings. The acts of congress referred to in the petition are: · (1) The act of March 3, 1891, entitled "An act making appropriation for sundry' civil expenses of the government for the fiscal year ending .June thirtieth, eighteen hundred and ninety-two, and for other purposes," and containing the following appropriation: .. Enginee'rDepartment. For improving harbor at Philadelphia, Pennsyl-

vaniaj continuing improvement; removal of Smith's island and Windmill ,island, Pennsylvania, and Petty's island, New Jersey, and adjacent sbol\18,·,three hundred thousand dollars: provided, that the plan for the,improvement may be modified by changing the line limiting the excavation on Petty's ·;island to such position .as the secretllry of war may consider desirable, and ,the material to be removeq.·frolQ,said anll shoals under this approriation, and appropriations heretofore made, shall be deposited and spread

on League island, and to the extent of the cost of such deposit and sr""lading the saill appropriations are bel'6by made alta.illlble1 provided. further, that the.title to any additional lands acquired for this purpose shall be vested in the United States 'witaoutcharge,tG the latter." 26U.S.St"977;\

(2) The act of April ,2,4, 1888, entitled "An :let to facilitate the prosecuttottiuf:worksprojected for the improvemeut of rivers and harbors," whiCl;{'lf¢!i9s as follows: "That the secretary of war may cause proceprling-s to be instituted. in the nalrlEl of "the United States, in any jurisdiction of such procl'etlings, for the acquirement by condemniltion of any land, right of way. or materlal,needed to enahlehim to maintain. openite. or prosecute works for the improvement of rivers and harbors fOr which provision has been such, to. be prOSPcl1ted in accordance .with the laws felatingto su'ts for the,con'lemnatioll of property of the states wherein theprocebdlDgs may be instituted: prodded. however, that when the owner of sUe'h'land.,tightof way,'0r material shall fix a prICe for ,the same, which in theopi'ilionof thesecrt'tafy'of war shall',be reasonable. he: may purchase the same lit such price wHho'ut further df'llly: and provided, further, that the secrt'taryof "rllr is hert-by a,uthorized to lIccept donations (If lands or materlltls required foi: the matiiten'anceor prosecution of such works." 25 U. S. St. 94.
entitled to authorize candemnatiopo,f.H.!n<,l' for o,t'public building, ,and other purpostJs," which real,istllpl':,' ' , "'fhat in every case in which the spcretary,of tbe treasury, or apy other officer ,of the been, or ter sl.lall be. authOrized to procure real estate fur the erectipn of a public bliilding or for oth..r public lIses, he shall be, and hereby is; authorized to Rcquire the same for the United States by con,lemnatioll. under judicial procetls. Whenever in his opinion it is neCl'S9RI'Y the to 'do so; lind the United Statps circuit or district courts of the district wherl'in such real f'state Is located shall have jurisdiction of proce..dings for HllCh condemnation; and it ,tlf tile. atlW'I1,eY,f:t'l1eral of, U llited btatt-s. 1I1,0n every lIJlpll{·atiollot ,8Pcn tar.}' ,ot trellsl1ry. Ii nder IIlis at t, or ,8ml) other officer, tocl;lllse)lrOCel'dings to. 'be, c,ummerwetl for conclem natiuD VI Ithlll thirty days from Uie'teci'ipt of thea\'plication at the dl'partluent j,!z;tice. 2. "fhp.practiee.'pteadings. forms. and mcides 101' proceeding in causI's nrlsing uuderthe proti",lons (If thisltcL sllidlconform. fl,i nparas may be. to pleadinR9, and pmcllpclingstlxisting at the time in the within .whichlluch or district courts are held, lill,)' of the C9urttothe contrary ing." 25 U. S. St. 357. "t.
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petition to .the act of congress of August

$500,000 was Il,ppropril\ted , for ill]
iug the harbor at by the" ofElmith'B islandal1d

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Je of,Pellnsylv"ania," and,' Pett.v's

th,e parts ,QLthem, alld the, s40a1s adjacent

( "Provld(i(}",.Jllltt'M pl\tt'Uf thie sumshatl :be'expetidPd until the tltleto the shalJ:be'aeq'ulted and vested in the United, States latter 'three hunodl'ed thousand dollars of 25
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IN REMANDERSON.

503

The petition further states that the secretary Of war had approved the modifications of the project for improving the harbor'of Philadelphia, by changing the line limiting the excavation upon Petty's island, involving the removal of about 23 acres of land in addition to that portion of the island acquired· under the provisions of the xiver and harbor act of August 11, 1888; that the secretary of war had also requested the attorney general of the United States to commt>nce proceedings for the acquirement of said lands by condemnation, and the latter officer had directed such proceedings to be instituted. The petition concludes with the prayer that, due notice having been given to the persons interested, the court will appoint three commissioners\ lis provided by the laws of the state of New Jersey in like causes, to appraise said lands required by the government, and the interest thereof of the several owners, and "to assess the damages to be paid by the United States of America therefor." The petition as originally filed was amended by leave of the court, by inserting iIi its appropriate connection the following matter, to wit: "'rbat of such land have fixed a price for the same which, in the opinion of the secretary of war, is unreasonable; that your petitioner cannot agree with the owners for the purchase theroof;-and that, in tl\60pinion of the 8!lCretary l)f war, it is necessary and advantageous for your petitiQner to acquU',e the same by condemnation under judicial process." On final hearing of the motion, made in behalf of some of the owners of the lands, to dismiss the petition for the reason that the acts of congress therein cited "exhibit no authority in the court forcondemnation and adverse taking of the lands in said petition mentioned,. and that, therefore, the said proceeding is without warrant of law," the petitionwasdismissedby the court below, and its decision is now brought here on a writ of error for review. The sole inquiry presenwd by the record is, do the acts of congress, above recited; authorizeproceedil1gs to be taken in the court below for the condemnation of the lands described in the pelition, and for their acquirement by the United States in that mode? It is unnecessary to discuss the general doctrine ·of the right of eminent domain and its application to the present case. Article 50i amendments to the constitution of the United States prohibits the. taking of private property for public use without just compensation. If the use for which it is proposed to take such property is not a public use, or if the owner of the property is not to be paid an equivalent, to be lawfully ascertained, fOIl its loss, then no proceedings for condemnation can or should be allowed. The counsel for the government do not dispute this proposition, but insist that the condition, which is contained- in the second proviso of the act of March 3, 1891, that the title to the lands to be acquired "shall be vested in the United Statf'S without charge to the latter," is immaterial. They admit that the owners of the property inust be compensated for its loss, if it shall be taken by the government, but they say that the questions of compensation, its amount, and the.time and manner of its payment, do not now arise, and will.be

504

FEDERAL REPORTER,

vol. 51.

determined hereafter.. Authority for the condemnation proceedings is not claimed under this act, but by virtue of the acts of April 24:, 1888, and of August 1, 1888. It is contended that the word "acquired," used in thepFovisb of the act of, March 3, 1891, when read in connection with the two other acts, meatts,that, if no purchase can be made by the secretaryo{'war for a reasonable price, or if the title to the lands cannot be acquired they may be acquired by condemnation. ThA for condemnation are for the purpose of fixing the price to be paid to the property owners, and title to the lands will not pass until that price has been paid. Such we understand to be the argument in' support of the petition. ' The act of April 24, 1'888, authorizes the secretary of war to purchase land .or materials needed for the improvement of rivers or harbors, for has been made by law, at what he may consider to be which a reasonable price, without further delay, or to accept donations of the same,and,when the land or material' cannot be obtained .in either of these modes, to instituteplroceedings for their acquirement by condemnatioo., The,aqtof 1, 1888, is /lgenerallaw,aodgives authority to ROY of the,government who has been, or her,eafter shall be, authorized to procure real eState for the erection ofapublic building, or' for other public uses, to acquire the same by Condemnation under judicial process, whel:iever in his opinion, it is necessary or advantageous for ,the 'gOivernment to do so. But these laws were enacted subject to the constitutional restriction that private property shall not be taken for public use without compensation. Congress intended that compensation should fo}1llw 1 the condemnation proceedings in every case, and the omission to make lin appropriation in advance to pay the damages assessed for taking the property' constitutes no bar to l3uch proceedings, for the faith of the government is always a guaranty for that payment. The act of March 3,.1891, however, excludes any inference or implication that the 23 additional acres on Petty's island are to be bought or paid for'by the United States.. This act, by its express terms, provides that the land needed for continuing the improvement of the harbor shall be acquired, Hat all, on the condition that the title shall be vested in the United States without charge to the la.tter, and ,there is nothing to be found in the acts of 1888 which removes or qualifies that condition. Whether the three acts referred to are construed separately or together, no warrant can be found for instituting proceedings· for the condemnation of this land. The apt of March 3, 1891, Was, properly interpreted by the learned judge of the court below, to mean that the land was to bel;lC<]uired by a voluntary conveyance from the owners, or from their grantees, and in that event the United States would expend the sum of '$300,000 in the excavations and removal of obstruotions contemplated by the act. Counsel for the government have xequested us to take judicial notice of certain proceedings had in thecQurt below, and in the United States circuit court for the eastern district of Pennsylvania, for the condemnation of other lands than those idescl,"ibed in the petition, and. which be-

1N. RE

longed to some of these same respondents; but, as those proceedings form no part of the record, they cannot be allowed to affect the present inquiry. It may be remarked, however, that the former proceedings were beguna.nd prosecuted under the act of August 11, 1888, wherein the sum of $300,000 was appropriated for acquiring title to the lands mentioned in that act. In that case there was color of authority for the appointment of commissioners to assess damages, since, strictly speaking, it could 'not be known in advance that the assessment would not fall within the sum appropriated by congress; and the fact that the appropriation did fall short, and the deficiency was made up by voluntary contributions from other quarters, affords no justification for the proceedings in the present case. The petition now before the court prays that commissioners may be appointed to appraise the lands, and" to assess the damages to be paid by the United States of America therefor," in face of the fact that congress has declared in the plainest language that the ,United States shall not be liable for any charges in obtaining title to the property, and no other source is pointed out.from which the owners could obtain redress. The statement of counsel that the damages would he paid by voluntary contributions, as was done under the former proceedings for acquiring a part of these lands, is too uncertain to be relied on. Had the order prayed for been granted in the present case, the owners of the lands condemned would have had no claim against the government for the damages awarded, and there is no known legal procedure by which the other parties interested in the acquirement of the lands could have been compelled to contribute the sum required for obtaining the title. The only certain result of granting the order would have been to subject the present owners to the injury of holding a clouded title, in the event of the refusal, by the petitioners, or by the respondents, to accept the finding of the commissioners. In any view which may be taken of the matters set out in this record, the dismissal of the petition by the court below was correct, and its judgment is, therefore, affirmed.

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"That all transfers of the notes, bills of exchange, or other evidence of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties [securities] on real estate, or of jUdgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use, or for the use of any of its shareholders or Cr81iltol'S, and aU