91 U.S. 367 (1876), Kohl v. U.s.

Citation91 U.S. 367, 23 L.Ed. 449
Party NameKOHL ET AL. v. UNITED STATES.
Case DateMarch 27, 1876
CourtUnited States Supreme Court

Page 367

91 U.S. 367 (1876)

23 L.Ed. 449

KOHL ET AL.

v.

UNITED STATES.

United States Supreme Court.

March 27, 1876

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

This was a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a post-office and other public uses.

The plaintiffs in error owned a perpetual leasehold estate in a portion of the property sought to be appropriated. They moved to dismiss the proceeding on the ground of want of jurisdiction; which motion was overruled. They then demanded a separate trial of the value of their estate in the property; which demand the court also overruled. To these rulings of the court the plaintiffs in error here excepted. Judgment was rendered in favor of the United States.

There are three acts of Congress which have reference to the acquisition of a site for a post-office in Cincinnati. The first, approved March 2, 1872, 17 Stat. 39, is as follows:----

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to purchase a central and suitable site in the city of Cincinnati, Ohio, for 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 three hundred thousand dollars; provided that no money which may hereafter be appropriated for this purpose shall be used or expended in the purchase of said site until a valid title thereto shall be vested in the United States, and until the State of Ohio shall cede its jurisdiction over the same, and shall duly release and relinquish to the United States the right to tax or in any way assess said site and the property of the United States that may be thereon during the time that the United States shall be or remain the owner thereof.'

In the Appropriation Act of June 10, 1872, 17 Stat. 352, a further provision was made as follows:----

'To commence the erection of a building at Cincinnati, Ohio, for the accommodation of the United States courts, custom-house, United States depository, post-office, internal-revenue and pension offices, and for the purchase, at private sale or by condemnation, of ground for a site therefor,--the entire cost of completion of which

Page 369

building is hereby limited to two million two hundred and fifty thousand dollars (inclusive of the cost of the site of the same),--seven hundred thousand dollars; and the act of March 12, 1872, authorizing the purchase of a site therefor, is hereby so amended as to limit the cost of the site to a sum not exceeding five hundred thousand dollars.'

And in the subsequent Appropriation Act of March 3, 1873, 17 Stat. 523, a further provision was inserted as follows:----

'For purchase of site for the building for custom-house and post-office at Cincinnati, Ohio, seven hundred and fifty thousand dollars.'

COUNSEL

Mr. E. W. Kittredge for plaintiffs in error.

1. For upwards of eighty years, no act of Congress was passed for the exercise of the right of eminent domain in the States, or for acquiring property for Federal purposes otherwise than by purchase, or by appropriation under the authority of State laws in State tribunals. A change of policy by Congress in this regard should not be supposed, unless the act is explicit. We do not raise the question as to the existence of the right of eminent domain in the national government; but Congress has never given to the Circuit Court jurisdiction of proceedings for the condemnation of property brought by the United States in the assertion or enforcement of that right.

In view of the uniform practice of the government, the provision in the act of Congress 'for the purchase at private sale or by condemnation' means that the land was to be obtained under the authority of the State government in the exercise of its power of eminent domain. This is apparent from the language of the same section of the act of Congress of June 10, 1872, which appropriated a further sum for the 'purchase' of a site in Cincinnati, and also appropriated money 'to obtain by purchase, or to obtain by condemnation in the courts of the State of Massachusetts,' a site for a post-office in Boston.

In this case, the State delegates its sovereign power of eminent domain. The United States, if it accepts this grant of power, accepts it as other corporations do, as the agent of the State, and must exercise it in the mode and by the tribunal which the State has prescribed.

2. If the proceeding was properly brought in the Circuit Court,

Page 370

then the act of Congress of June 1, 1872, 17 Stat. 522, requires that it shall conform to the provisions of the law of the State in a like proceeding in a State court. The eighth section of the act of Ohio of April 23, 1872, 69 Ohio Laws, 88, secures to the owner of 'each separate parcel' of property a separate trial, verdict, and judgment. The court below erred in refusing this demand of the plaintiff.

Mr. Assistant Attorney-General Edwin B. Smith, contra.

1. The right of eminent domain is an 'inseparable incident of sovereignty.' Giesy v. C. W. & T. R.R. Co., 4 Ohio St. 323, 324; West River Bridge v.Dix, 6 How. 507; 2 Kent, 339; Cooley, Const. Lim. 526.

Of course the right of the United States is superior to that of any State. Dobbins v. Comms., 16 Pet. 447.

The authority to purchase includes the right of condemnation. 4 Kent's Com. 372; Burt v. Ins. Co., 106 Mass. 364; 7 Opinions of Att'y-Gen. 114.

Congress, by the use of the term 'condemnation,' indicated an expectation that it might and would be resorted to.

The legislature of Ohio concurred in this view of the power and necessity of such action, and passed an act of expropriation. 69 Ohio Laws, 81. But the right of a State to act as an agent of the Federal government, in actually making the seizure, has been denied. 23 Mich. 471.

The power to establish post-offices includes the right to acquire sites therefor, and by appropriation if necessary. Dickey v. Turnpike Co., 7 Dana, 113; 2 Story on Const., sect. 1146.

Original cognizance 'of all suits of a civil nature at common law or in equity,' where the United States are plaintiffs or petitioners, is given to the Circuit Court of the United States.

'The term [suit] is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.' 2 Pet. 464.

No provision of local law confining a remedy to a State court can affect a suitor's right to resort to the Federal tribunals. Hyde v. Stone, 20 How. 170; Payne v. Hook, 7 Wall. 425; Railway Co. v. Whitton, 13 id. 270.

Therefore the United States had the right to pursue in the

Page 371

Circuit Court the remedy given by the legislature of Ohio, 70 Ohio Laws, 36.

2. The power to consolidate different suits by various parties, so as to determine a general question by a single trial, is expressly given by act of July 22, 1833. 3 Stat.; 21 R. S., ch. 18, sect. 921, p. 175.

The statute of Ohio, 69 Ohio Laws, 88, requires that the trial be had as to each parcel of land taken, not as to separate interest in each parcel.

OPINION

MR. JUSTICE STRONG 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 the 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 upon 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 which 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

Page 372

from sovereignty, unless denied to it by its fundamental law. Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340; Cooley on Const. Lim. 584 et seq. But it is no more necessary for the exercise of the powers of a State government than it is for the exercise of the conceded powers of the Federal government. That government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

...

To continue reading

Request your trial
399 practice notes
  • 101 P.2d 946 (Kan. 1940), 34666, Herken v. Glynn
    • United States
    • Kansas Supreme Court of Kansas
    • May 4, 1940
    ...It was pointed out that the federal government might acquire lands by purchase, or by gift, or by eminent domain. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. After a lengthy general discussion the court concluded: "The military reservation of Fort Leavenworth was not, as already ......
  • 31 F.2d 617 (W.D.Wis. 1928), 190, United States v. 2,271.29 Acres, More or Less, of Land in La Crosse, Trempeleau, Vernon, and Grant Counties, Wis.
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • November 15, 1928
    ...court lacks jurisdiction. While proceedings for the exercise of eminent domain are considered law actions (Strong, J., in Kohl v. U.S., 91 U.S. 367, 23 L.Ed. 449; Franzen v. Ry. Co. (C.C.A.) 278 F. 371), no objection is made to the method of raising the points made by the state, and its mot......
  • 169 N.W.2d 625 (Mich. 1969), 19, City of Pleasant Ridge v. Romney
    • United States
    • Michigan Supreme Court of Michigan
    • August 4, 1969
    ...powers of Congress to be subordinated to the will of a state or city or even a private citizen. As stated in Kohl v. United States (1875), 91 U.S. 367, 23 L.Ed. 449, this situation cannot exist (p. 371): 'The powers vested by the Constitution in the general government demand for their exerc......
  • Eminent domain after Kelo v. City of New London: an argument for banning economic development takings.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 29 Nbr. 2, March 2006
    • March 22, 2006
    ...did the United States seek to exercise eminent domain in the federal courts. See Landry, supra, at 423 n.21 (citing Kohl v. United States, 91 U.S. 367 (1875)). Moreover, after the ratification of the Constitution, a handful of state courts applied the Fifth Amendment to state exercises of e......
  • Request a trial to view additional results
384 cases
  • 101 P.2d 946 (Kan. 1940), 34666, Herken v. Glynn
    • United States
    • Kansas Supreme Court of Kansas
    • May 4, 1940
    ...It was pointed out that the federal government might acquire lands by purchase, or by gift, or by eminent domain. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. After a lengthy general discussion the court concluded: "The military reservation of Fort Leavenworth was not, as already ......
  • 31 F.2d 617 (W.D.Wis. 1928), 190, United States v. 2,271.29 Acres, More or Less, of Land in La Crosse, Trempeleau, Vernon, and Grant Counties, Wis.
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • November 15, 1928
    ...court lacks jurisdiction. While proceedings for the exercise of eminent domain are considered law actions (Strong, J., in Kohl v. U.S., 91 U.S. 367, 23 L.Ed. 449; Franzen v. Ry. Co. (C.C.A.) 278 F. 371), no objection is made to the method of raising the points made by the state, and its mot......
  • 169 N.W.2d 625 (Mich. 1969), 19, City of Pleasant Ridge v. Romney
    • United States
    • Michigan Supreme Court of Michigan
    • August 4, 1969
    ...powers of Congress to be subordinated to the will of a state or city or even a private citizen. As stated in Kohl v. United States (1875), 91 U.S. 367, 23 L.Ed. 449, this situation cannot exist (p. 371): 'The powers vested by the Constitution in the general government demand for their exerc......
  • 199 P.2d 779 (Kan. 1948), 36915, Foster v. City of Augusta
    • United States
    • Kansas Supreme Court of Kansas
    • November 13, 1948
    ...the power of eminent domain the Federal government used its own rules with respect to property and compensation. Kohl v. United States, 91 U.S. 367, 374, 23 L.Ed. 449; State of Nebraska v. United States, 8 Cir., 164 F.2d 866. These may or may not be the same as the rules applicable in the s......
  • Request a trial to view additional results
13 books & journal articles
  • Reviving necessity in eminent domain.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 33 Nbr. 1, January 2010
    • January 1, 2010
    ...once filed its condemnation cases in state courts. United States v. Carmack, 329 U.S. 230, 237 (1946). (97.) Kohl v. United States, 91 U.S. 367, 371 (1875). (98.) Shoemaker v. United States, 147 U.S. 282, 298 (1893) ("[W]hile the courts have power to determine whether the use for which......
  • Saving Private Development: Rescuing Louisiana from Its Reaction to Kelo
    • United States
    • Louisiana Law Review Nbr. 68-2, January 2008
    • January 1, 2008
    ...LA. CONST. art. I, ...
  • Speech, intent, and the chilling effect.
    • United States
    • William and Mary Law Review Vol. 54 Nbr. 5, April 2013
    • April 1, 2013
    ...although directed at preventing fires, has a detrimental incidental effect on certain symbolic conduct. Cf. United States v. O'Brien, 91 U.S. 367, 386 (1968) (upholding a prohibition on draft-card burning justified by administrative interests). Similarly, an antileafleting ordinance directe......
  • Eminent domain after Kelo v. City of New London: an argument for banning economic development takings.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 29 Nbr. 2, March 2006
    • March 22, 2006
    ...did the United States seek to exercise eminent domain in the federal courts. See Landry, supra, at 423 n.21 (citing Kohl v. United States, 91 U.S. 367 (1875)). Moreover, after the ratification of the Constitution, a handful of state courts applied the Fifth Amendment to state exercises of e......
  • Request a trial to view additional results