Barnidge v. United States

• Decision Date: 27 January 1939
• Docket Number: No. 11282.,11282.
• Citation: 101 F.2d 295
• Parties: BARNIDGE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F.2d 295 (1939)

BARNIDGE v. UNITED STATES.^*

No. 11282.

Circuit Court of Appeals, Eighth Circuit.

January 27, 1939.

Norman Begeman, of St. Louis, Mo. (Julius T. Muench, of St. Louis, Mo., on the brief), for appellant.

Charles R. Denny, Jr., of Washington, D. C., Atty., Department of Justice, and Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (Carl McFarland, Asst. Atty. Gen., A. T. Welborn, Asst. U. S. Atty., of St. Louis, Mo., and Oscar Provost, Atty., Department of Justice, and Philip Nichols, Jr., Atty., Department of Justice, both of Washington, D. C., on the brief), for the United States.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment in eminent domain proceedings, which were brought under the Act of Congress of August 21, 1935, 16 U.S.C.A. § 461 et seq., known as the Historic Sites Act. The Secretary of the Interior, acting under the Historic Sites Act, determined that certain lands in the City of St. Louis, Missouri, possessed exceptional value as commemorating or illustrating the history of the United States. Thereupon, the President, by Executive Order of December 21, 1935, No. 7253, after reciting that by this Act Congress had declared a national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States, and that the Secretary of the Interior had determined that certain described lands situated on the banks of the Mississippi River at and near the site of Old St. Louis, Missouri, possessed exceptional value as commemorating or illustrating the history of the United States and were a historic site, and that the City of St. Louis had agreed to contribute for the project the sum of $2,250,000, allocated to the Secretary of the Interior from the funds made available by the Emergency Relief Appropriation Act 1935, 49 Stat. 115, the sum of $6,750,000, which, with the sum of $2,250,000 to be contributed by the City of St. Louis, would make available for the said project a total sum of $9,000,000, and authorized and directed the Secretary to expend said sum in acquiring the said property and in developing and preserving it for the purposes of the Act. The City of St. Louis, pursuant to the provisions of the Act, deposited the sum of $2,250,000 to the credit of the Treasury in the Federal Reserve Bank at St. Louis. On the request of the Secretary of the Interior, this condemnation proceeding was then instituted.

The appellant filed an answer to the petition in condemnation, in which he alleged, among other things, (1) that the Historic Sites Act did not authorize condemnation of land; (2) that the use for which the land was sought was not a public use; (3) that the Historic Sites Act was an unconstitutional delegation of legislative power; and (4) that no funds were available to pay any awards in the proceeding. The Government moved to strike parts of this answer as argumentative, and as stating only erroneous conclusions of law. The lower court granted the motion. The appellant then made an offer of proof, purporting to sustain the issues raised by his answer, and this offer was rejected.

The lower court then appointed commissioners to view the land for the purpose of fixing the compensation to which the owners were entitled. Appellant excepted to the appointment of commissioners on substantially the same grounds which he had set out in his answer. The commissioners reported that damages and compensation for the taking of appellant's land were $13,200. Appellant filed exceptions to the commissioners' report, which were overruled. The Government also excepted to the commissioners' report on the sole ground that the award was excessive. The lower court heard the parties on the exceptions filed, and received testimony on the question of value. In the course of this hearing, appellant withdrew his exception as to the amount of the award, but proffered testimony in support of his contention that the site was not historic because the buildings on it were not historic. The lower court entered findings and judgment by which the commissioners' award was reduced to $11,000.

It has been stipulated that assignments of error based upon the action of the court in reducing the amount of the commissioners' award are withdrawn, but it is agreed that if we shall hold that the United States had the right to condemn the property, judgment should be ordered entered restoring the original commissioners' award of $13,200.

In seeking reversal, appellant in effect contends: (1) the court erred in sustaining the Government's motion to strike parts of appellant's answer; (2) there is no authority in the Historic Sites Act, or other Acts of Congress, to condemn the property of appellant for the purposes of the Historic Sites Act; (3) the use described in the Historic Sites Act is not a public one for which land may be taken by eminent domain; (4) the lands sought to be taken are not necessary for the effectuation of the purposes of the Historic Sites Act; (5) the Historic Sites Act unconstitutionally delegates legislative power.

In support of his contention that the court erred in striking parts of his answer, counsel seek to invoke the rule that all facts that were well pleaded in the answer must be accepted as true. Hence, it is urged that the allegations in the answer that there was no power in plaintiff to condemn, that no authority is vested in the Secretary of the Interior to commence proceedings, that the use is not a public one, that funds are not available, and that the Historic Sites Act is unconstitutional, must be accepted as true. But while, for the purpose of such motion, the well-pleaded facts must be accepted as true, it does not follow that conclusions of law are admitted. Equitable Life Assur. Soc. v. Brown, 213 U.S. 25, 29 S.Ct. 404, 53 L. Ed. 682; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, 132 S.W. 1059, Ann.Cas.1912A, 1143; Randolph v. Fricke, 327 Mo. 130, 35 S.W. 2d 912. Admitting the facts pleaded, but not appellant's conclusions of law, the court held that the parts of the answer stricken did not constitute a defense to the proceeding.

It is true that the Historic Sites Act does not purport to authorize the condemnation of property for the consummation of its purposes. However, the Act of August 1, 1888, § 1, 40 U.S.C.A. § 257, contains a general grant of power or authority to prosecute condemnation proceedings where any officer of the Government is authorized to acquire real estate for public uses. Subsection (d) of Section 2 of the Historic Sites Act, 16 U.S.C.A. § 462(d), provides for authorizing the Secretary of the Interior to acquire property for the purposes of the Act "by gift, purchase, or otherwise." It has been held that the Government has the right of eminent domain as an attribute of sovereignty. Mississippi & R. River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Kohl v. United States, 91 U.S. 367, 23 L. Ed. 449; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170; United States v. Certain Lands in City of Louisville, 6 Cir., 78 F.2d 684. It is uniformly held that authority to acquire real estate conferred by the enactment of a statute after the Act of August 1, 1888, § 1, 40 U.S.C.A. § 257, carries with it power to condemn. Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809; United States v. Threlkeld, 10 Cir., 72 F.2d 464.

It is observed that the Historic Sites Act confers authority on the Secretary of the Interior to acquire, in the name of the United States, property for the purposes of the Act, by gift, purchase, "or otherwise." As authority had already been conferred to procure real estate for public uses by condemnation, it would seem to have been quite unnecessary to embody in this Act specific authority to acquire real estate by condemnation proceedings. We must assume that Congress had full knowledge of the Act of August 1, 1888 and of the interpretation that had been placed upon it by the courts.

It is, however, urged that condemnation proceedings can not be maintained because no funds are available to pay the award, and counsel particularly refer to that part of the Act which provides "that no such property shall be acquired or contract or agreement for the acquisition thereof made which will obligate the general fund of the Treasury for the payment of such property, unless or until Congress has appropriated money which is available for that purpose." 16 U.S.C.A. § 462(d). But we think it is not a condition precedent to the right to maintain condemnation proceedings that funds for payment of award shall be available. In condemnation proceedings, title to the property does not ordinarily pass until full compensation has been paid, as well as ascertained. The purpose of the condemnation proceedings is to determine and fix the amount which must be paid for the property, if and when the Government decides to take title....