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May 19, 1939

In re UNITED STATES (two cases)

The opinion of the court was delivered by: KNIGHT

KNIGHT, District Judge.

Two proceedings have been brought by the United States to acquire by condemnation two several tracts of land situate in the State of New York; one consisting of 1233.82 acres in Allegany County, and the other, 201.363 acres in Schulyer County.

The proceeding first above-mentioned has proceeded to judgment directing condemnation and appointing commissioners of appraisal. To this proceeding the State of New York (hereinafter called State) was a party and defaulted in any appearance, prior to the entry of judgment. Upon the motion to confirm the report of the commissioners the State appeared specially and moved to dismiss the proceedings on four jurisdictional grounds. In the second above-mentioned proceeding, the State, as a party thereto, on the return date of the petition appeared specially and moved to dismiss on the jurisdictional grounds urged in the first proceeding. The substance of such grounds is that this court is without jurisdiction because of the lack of authority in the United States to condemn the lands in question.

 The purpose of acquiring the Allegany County lands, as stated in the petition in the proceeding, is in connection with a program "for the establishment of and for use in connection with the New York Wild Life Management project of the Department of Agriculture." It is also stated that in furtherance of such program it is necessary "to provide the reforestation and forestation of said lands; to prevent soil erosion; to aid in flood control; to prevent forest fires; to provide for the relief of unemployment by the erection and construction thereon and in connection therewith of useful public works including truck trails, bridges, dams, ditches and other public works necessary to said project."

 In the Schuyler County petition, the purpose of acquisition is said to be "for the establishment of and for the use in connection with the New York Land Use Reorganization Project of The Department of Agriculture," and it is further stated that "in connection with said project and in furtherance of the objects aforesaid" it is necessary to do and provide the same acts and works set forth in the first-mentioned petition.

 Jurisdiction in this District Court of proceedings brought by the United States to condemn land in the district is found in 40 U.S.C.A. § 257. The practice and procedure follows the law of the State of New York. 40 U.S.C.A. § 258. No question is raised as regards the procedure here.

 The statute under which the proceedings above-mentioned are brought is the National Industrial Recovery Act of June 16, 1933 (48 Stat. 200). Section 202 of Title 2 of that act, 40 U.S.C.A. § 402, among other things, provides that the Administrator (so designated in the Act) shall "prepare a comprehensive program of public works" which shall include "Conservation and development of natural resources, including control" -- of waters, prevention of soil or coastal erosion-flood control -- and "Any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the intersts of the general public." Section 203 of said Act. 40 U.S.C.A. § 403, states that "With a view to increasing employment quickly * * * the President is authorized * * * through the Administrator, or through such other agencies as he may designate or create, (1) to contruct, finance, or aid in the construction of financing of any public-works project included in the program prepared pursuant to section 202 [402] * * * (3) to acquire by purchase, or by the exercise * * * of eminent domain, any real or personal property in connection with the construction of any such project * * *." By subsequent acts the Act of 1933 has been extended to this date and further appropriations made to carry out the purposes of the Act. Through various Executive Orders, by virtue of the authority purported to have been given by law, the President vested in the Secretary of Agriculture the authority "To acquire by purchase, or by exercise * * * of eminent domain, any real or personal property in connection with the construction" of any of the aforementioned projects. No. 6252, 40 U.S.C.A. § 414 note. Pursuant to such purported authority these proceedings are instituted by such official.

 Article I, Section 8, Clause 17 of the Constitution of the United States, U.S.C.A., provides for exclusive jurisdiction in the United States over the District of Columbia, and further that the United States shall have such exclusive jurisdiction over "Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals * * * and other needful Buildings." It is the contention of the State that the sphere of the Federal government in its right of eminent domain is limited by this provision of the Constitution. In its brief it is said that "The right to condemn is limited to 'political necessity' and that limitation is contained in the words of the Federal Constitution, viz.: 'for other needful buildings.' This is the fundamental law which denies an unlimited sphere of eminent domain to the National Government." It has been definitely decided time and again that this provision of the Constitution does not limit the right of acquisition of land by eminent domain by the Federal government. This section applies to lands over which the Federal government seeks exclusive jurisdiction. In the instant cases the government does not seek to obtain exclusive jurisdiction. In Silas Mason Co. v. Tax Commissioner of Washington, 302 U.S. 186, 58 S. Ct. 233, 82 L. Ed. 187, it was held that the government could acquire land and hold it subject to the state jurisdiction. The authority of the Federal government to acquire land within a state to enable it to perform its proper functions for a necessary or properly authorized purpose is inherent in the sovereignty of the government. This has been recognized by the courts since the decision in Kohl v. United States, 91 U.S. 367, 371, 23 L. Ed. 449. In speaking of such authority that court said: "Such an authority is essential to its independent existence and perpetuity. * * * The right of eminent domain was one of those means well known when the Constitution was adopted. * * * The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth Amendment contains a provision that private property shall not be taken for public use without just compensation." Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S. Ct. 455, 74 L. Ed. 1091; Chappell v. United States, 160 U.S. 499, 16 S. Ct. 397, 40 L. Ed. 510; Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S. Ct. 442, 67 L. Ed. 809; Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 530, 5 S. Ct. 995, 29 L. Ed. 264; Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641, 656, 10 S. Ct. 965, 34 L. Ed. 295, all lay down the rule hereinbefore stated beyond any ground for doubt. It is pertinent to refer to writers who lay down the same rule. Vide Corpus Juris, Vol. 20, p. 530; Nichols on Eminent Domain, Vol. 1, 2d Ed. p. 108.

 It is also the rule that the right of the Federal government to condemn land is dependent upon the condemnation being for a "public purpose," and it must be under an authorization by law. If the statutes in their expression are sufficient to authorize the taking of lands for a "public purpose" and such purpose is declared in the petition which is the basis of these proceedings, then the Federal government is acting within its constitutional rights.

 It is obvious that it is not possible to frame a definition of "public use" which is applicable in all cases. "In general it may be said that a public use is one which concerns the general public, or a portion thereof, as distinguished from particular individuals or states * * * use is public if it is a public benefit, utility or advantage." 50 C.J. 864, Public sec. 94. Such use, as it is to be construed in the instant case, must be a use which in effect returns a "public benefit, utility or advantage" "national or general as contradistinguished from local or special" (Kansas City Gas & Electric Co. v. City of Independence, 10 Cir., 79 F.2d 32, 341, 100 A.L.R. 1479) -- in other words for the "general welfare."

 Article I, sec. 8, of the Constitution, U.S.C.A., was differently construed by Madison and Hamilton, and various other statesmen of their time. Madison asserted that the taxing power given by Section 8, sub. I, for purposes of the common defense or general welfare is limited by each of the succeeding subdivisions of the section; that it does not enlarge the powers of Congress conferred in the other subdivisions. (Madison's Report on the Virginia Resolution; Elliott's Debates.) While Hamilton took the position, followed by Story (5th Ed., secs. 501-505, inc.), and many decisions of the courts, that the phrase "general welfare" is as comprehensive as any that could have been used and embraces "a vast variety of particulars, which are susceptible neither of specification nor of definition" that there is "left to Congress the discretion of the National Legislature to pronounce the object which concerns the general welfare; that the only qualification of the generality of the phrase * * * is that the object * * * be general, and not local; its operation extending in fact and by possibilities throughout the Union, and not be confined to any particular spot." Works of Hamilton (Lodge) Vol. IV, p. 150 et seq. A clearer or more specific definition of the powers and limitation of powers could hardly be conceived. A specific grant of power to tax is given by Section B, sub. I, and by sub. 18 of that section. Congress is authorized to make laws to carry out all of the provisions of the preceding sub-divisions and "all other powers vested by this Constitution in the Government of the United States." "Congress may spend money in aid of the 'general welfare.' * * * The discretion [between particular and general welfare] belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 908, 81 L. Ed. 1307, 109 A.L.R. 1319.

 A presumption is to be strongly indulged in that the statutes are constitutional; that what Congress has declared to be a "public use" is presumptively so. "What makes for the general welfare is necessarily in the first instance a matter of legislative judgment." German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 34 S. Ct. 612, 620, 58 L. Ed. 1011, L.R.A. 1915C, 1189. "When the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation." United States v. Gettysburg, 160 U.S. 668, 680, 16 S. Ct. 427, 429, 40 L. Ed. 576. "Congress has declared the purpose to be a public use, by implication if not by express words. * * * Its decision is entitled to deference until it is shown to involve an impossibility." Old Dominion Land Co. v. United States, 269 U.S. 55, 65, 46 S. Ct. 39, 40, 70 L. Ed. 162; McLean v. Arkansas, 211 U.S. 539, 547, 29 S. Ct. 206, 53 L. Ed. 315; Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 81 L. Ed. 1307, 109 A.L.R. 1319. Legislative construction should be given great weight by the courts, United States v. Midwest Oil Co., 236 U.S. 459, 35 S. Ct. 309, 59 L. Ed. 673, and mere doubt as to the constitutionality of an act should be resolved in favor of its validity. Legal Tender Case, Knox v. Lee, 79 U.S. 457, 12 Wall. 457, 20 L. Ed. 287; Ogden v. Saunders, 25 U.S. 213, 12 Wheat. 213, 6 L. Ed. 606.

 The National Industrial Recovery Act, 40 Stat. 195, as extended by Acts of Congress, is a broad and comprehensive act. Its purpose is indicated by its title. It may be a question whether the carrying out of the single purpose to aid employment is sufficient to sustain authority to condemn lands. United States v. Certain Lands in the City of Louisville, 6 Cir., 78 F.2d 684, appeal dismissed 294 U.S. 735, 55 S. Ct. 548, 79 L. Ed. 1263; Missouri Utilities Co. v. City of California, D.C., 8 F.Supp. 454. Either view does not negative the right of the government to provide needed employment and aid industry in carrying out of projects which come within the meaning of Article I, sec. 8, supra.

 Congress by the Act of April 27, 1935, Chap. 85, sec. 1, 49 Stat. 163, 16 U.S.C.A. § 590a et seq., declares its recognition that soil erosion is "a menace to the national welfare," declares its policy to provide for permanent control of soil erosion and sets up various acts to be done to accomplish this result. Since that enactment Congress each year has appropriated large sums of money to aid in carrying out that declared policy. By the Act of June 22, 1936, 33 U.S.C.A. § 701a et seq., Congress first made a declaration of policy that destructive floods were a manace to national welfare. It then authorized the construction of certain public works to prevent flood damage, and since that time has appropriated many millions of dollars for ...

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