City of Davenport v. Three-Fifths of an Acre of Land

• Decision Date: 27 February 1958
• Docket Number: No. 12153.,12153.
• Citation: 252 F.2d 354
• Parties: CITY OF DAVENPORT, a municipal corporation of the State of Iowa, and Davenport Bridge Commission, a police body corporate and politic of the State of Iowa, Plaintiffs-Appellees, v. THREE-FIFTHS OF AN ACRE OF LAND, MORE OR LESS, LOCATED IN THE CITY OF MOLINE, ROCK ISLAND COUNTY, Illinois, City of Moline, a municipal corporation of the State of Illinois, and Unknown Owners, Defendants, City of Moline, a municipal corporation of the State of Illinois, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

252 F.2d 354 (1958)

CITY OF DAVENPORT, a municipal corporation of the State of Iowa, and Davenport Bridge Commission, a police body corporate and politic of the State of Iowa, Plaintiffs-Appellees, v. THREE-FIFTHS OF AN ACRE OF LAND, MORE OR LESS, LOCATED IN THE CITY OF MOLINE, ROCK ISLAND COUNTY, Illinois, City of Moline, a municipal corporation of the State of Illinois, and Unknown Owners, Defendants, City of Moline, a municipal corporation of the State of Illinois, Appellant.

No. 12153.

United States Court of Appeals Seventh Circuit.

February 27, 1958.

Thomas A. Matthews, Chicago, Ill., John R. Coryn, Moline, Ill., Byron S. Matthews, Chicago, Ill., for defendant-appellant.

Donald H. Sitz, Davenport, Iowa, Robert G. Graham, Moline, Ill., Charles

D. Waterman, Davenport, Iowa, for plaintiffs-appellees, Graham, Califf & Harper, Moline, Ill., Lane & Waterman, Davenport, Iowa, of counsel.

Before FINNEGAN, SCHNACKENBERG and PARKINSON, Circuit Judges.

FINNEGAN, Circuit Judge.

Congress, through a specific Act,¹ conferred the power of eminent domain on the City of Davenport, an Iowa municipal corporation, and on the Davenport Bridge Commission, a police body corporate, State of Iowa, plaintiff, to acquire land in connection with the enlargement and reconstruction of the Iowa-Illinois Memorial Bridge spanning the Mississippi River. Resisting plaintiffs' action filed under Rule 71A, Federal Rules of Civil Procedure, 28 U.S.C., for the acquisition of four parcels² of land aggregating approximately three-fifths of an acre in area, the City of Moline, Illinois, defendant, and holder of titles to these parcels, would bar this project by relying, inter alia, on an erroneous interpretation of the Eleventh Amendment to the Constitution. To buttress its position defendant adds a theory that streets and lands owned by an Illinois city are held in trust for the people of the entire state and therefore such parcels are invulnerable to condemnation, under Illinois law, in a federal district court. Defendant would lead us to such result by its assertion that the proceeding is, in essence, a suit against the State of Illinois. But, "The fact that land is owned by a state is no barrier to its condemnation by the United States." State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 1941, 313 U.S. 508, 534, 61 S.Ct. 1050, 1064, 85 L.Ed. 1487; United States v. Carmack, 1946, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209; United States v. State of South Dakota, 8 Cir., 1954, 212 F.2d 14; State of Missouri ex rel. and to Use of Camden County, Mo. v. Union Electric Light & Power Co., D.C.1930, 42 F.2d 692.

Moline failed to file an answer under Rule 71A and instead, interposed its motion to dismiss the complaint and, this pleading, in turn was followed up by plaintiffs' motions for summary judgment. Concluding there was no genuine issue as to any material fact on the question of plaintiffs' power of eminent domain, the district judge correctly entered summary judgment for plaintiffs and, findings of fact and conclusions of law.

Some language lurking in Chicago Railway Co. v. City of Chicago, 1920, 292 Ill. 190, 126 N.E. 585, 588 written in the setting of a public utility rate controversy seemingly provides comfort for Moline. But in that Illinois case her Supreme Court was explaining that the City of Chicago, where the utilities' tracks were located, could not affect the exercise of the General Assembly's duty to the general public executed through the state Public Utility Commission, as it was then named, in the business of regulating fares. Indeed rate-making is traditionally a legislative function and the General Assembly cannot be ousted in the manner contended for in the Chicago case. Only by chop logic could the case be used to argue that the State of Illinois is the sovereign defendant in the condemnation proceedings before us.

Nothing in the Constitution prevents Congress from conferring power on these plaintiffs for carrying out the legitimate purpose of acquiring land and building the bridge in question. Congress has declared the aim and policy; plaintiffs bring into actuality the structure over a navigable river at the location specified in the Act. Stockton v. Baltimore & N. Y. R. Co., C.C.N.J.1887, 32 F. 9. See also State of California v. Central Pacific Railroad Company, 1888, 127 U.S. 1, 8 S.Ct. 1073, 32 L.Ed. 150. Our views coincide with those expressed by the district judge when he wrote, inter alia: "The new span by Congressional limitation must be built adjacent to the existing span and it appears there is no location for the new span within this limitation which would or could avoid the use of publicly-used property. If such publicly-used property cannot be acquired, the...