United States v. Beaty

• Decision Date: 09 August 1912
• Docket Number: 2,074-2,083.
• Citation: 198 F. 284
• Parties: UNITED STATES v. BEATY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

198 F. 284

UNITED STATES v. BEATY et al.

Nos. 2,074-2,083.

United States District Court, W.D. Virginia.

August 9, 1912

Barnes Gillespie, U.S. Atty., of Tazewell, Va., and Downing &amp Weaver, of Front Royal, Va., for the United States.

O'Flaherty & Fulton, of Richmond, Va., and E. H. Jackson and S. Gardner Waller, both of Front Royal, Va., for defendants.

McDOWELL District Judge.

In the act of Congress of March 3, 1911 (36 Stat. 1037, 1049, c 209), making appropriation for the support of the Army, is the following:

' * * * Including not to exceed two hundred thousand dollars for the purchase of land accessible to the horse-raising section of the state of Virginia, for the assembling grazing, and training of horses purchased for the mounted service.'

The act of August 1, 1888, to authorize condemnation of land for sites for public buildings and other purposes (25 Stat. 357, 6 Fed.Stats.Ann. 700, 703 (U.S. Comp. St. 1901, p. 2516)) reads as follows:

'That in every case in which the Secretary of the Treasury or any other officer of the government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses he shall be, and hereby is, authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the government to do so, and the United States Circuit or District Courts of the district wherein such real estate is located, shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney General of the United States, upon every application of the Secretary of the Treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application at the Department of Justice.

'Sec. 2. The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the state within which such Circuit or District Courts are held, any rule of the court to the contrary notwithstanding.'

The Virginia statutes relating to the procedure for condemnation 'in like causes' are found in Acts Va. 1902-04, p. 957 et seq. (Code 1904, Sec. 1105f), Acts 1906, p. 452 et seq. (Supp. Code 1910, Sec. 1105f), and in Code 1904, Secs. 15a, 1105f(25). In brief the procedure, so far as here of interest, is as follows: Notice, of which publication is made, is given by the party proposing to condemn to the landowner that the court will be asked to appoint commissioners (five disinterested freeholders) to go upon the land, hear evidence, and thereafter report the compensation to be paid to the landowner. After the report is filed it is to be confirmed by the court unless good cause to the contrary be shown. If such cause is shown-- if, for instance, the court, acting without a jury, on hearing the evidence, is of opinion that the amount awarded is excessive or inadequate-- the report is set aside and other commissioners are appointed.

In these cases the Virginia procedure was followed. On the hearing of the petition for the appointment of commissioners the landowners demurred. So far as I can recall the point chiefly relied upon was that the appropriation act of 1911, supra, did not authorize condemnation. The contention was that acquirement on voluntary sale by the owner was alone authorized by that statute. The case of Chappell v. U.S., 160 U.S. 499, 16 Sup.Ct. 397, 40 L.Ed. 510, was not mentioned, and there was, I think, no contention that the act of 1888 did not authorize this court to follow the Virginia procedure, if the act of 1911 did not forbid condemnation. The demurrers were overruled. Commissioners (agreed upon by counsel) were appointed, and in due time their reports were filed. To these reports sundry of the landowners filed exceptions and prayed that the reports be not confirmed. A time for the hearing on the exceptions was fixed, and at Charlottesville, sitting without a jury, the court heard the evidence for both sides and took under advisement the questions on the merits. At this hearing the opinion in the Chappell Case was called to my attention, and two motions in behalf of the landowners were founded thereon. The first was in effect that these causes be dismissed; the theory being that the only permissible procedure in a condemnation by the federal government in a federal court in Virginia is to disregard the state law and proceed ab initio before a common-law jury. The second motion was in effect that the landowners be at least allowed a jury trial of the issue as to the adequacy of the amounts awarded by the commissioners. Both of these motions were overruled, and the evidence was heard by the court.

1. As briefly as possible I shall dispose of the contention founded on the use of the word 'purchase' in the appropriation act of 1911. When used in a statute, the word 'purchase' is frequently held to include any method of acquisition other than by descent. 7 Words and Phrases, 5853. To construe the word here to mean only acquisition by buying, we must assume that Congress had in mind the method of acquisition rather than the general purpose to acquire. The mere use of the word 'purchase'-- which may have been used in its technical sense-- is not to my mind a sufficient reason for such assumption. reasonable knowledge of human nature, they must be assumed to have known that to restrict acquirement to voluntary sales by the owners would most probably defeat the chief purpose for which the appropriation was made. However, it seems to me that the first section of the act of 1888, supra, makes further discussion unnecessary. The very purpose of that section was to authorize condemnation whenever, theretofore or thereafter, an act of Congress authorized land to be 'procured' for public use. Surely no broader word than 'procure' could have been used.

2. Passing for the present the motion to dismiss, the contention that the excepting landowners were entitled to have the question of the adequacy of the amounts awarded by the commissioners tried by a jury will first be considered. The wording of the second section of the act of 1888, supra, was taken from the Conformity Act of 1872 (section 914, Rev. St. (U.S. Comp. St. 1901, p. 684)). It is settled, of course, that this statute does not require a federal court to follow the state procedure, where to do so would defeat the purpose or impair the effect of any congressional statute. In following the state procedure in these cases, and hence in denying a trial by jury of the issue of fact raised as to the adequacy of the sums awarded, the purpose of section 566, Rev. Stats. (U.S. Comp. St. 1901, p. 461), was certainly defeated, if that statute was intended to apply to such cases. This statute was enacted originally by the first Congress in 1789. Act Sept. 24, 1789, c. 20, Sec. 9, 1 Stat.p. 77. It reads:

'And the trial of issues of fact, in the District Courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.'

The language of section 566, Rev. Stats., is the same, except that a further exception in bankruptcy proceedings is added. In view of what is said in the opinion in the Chappell Case, to which I shall advert later, it is with diffidence that I feel constrained to state that in my opinion this statute was not intended to apply to condemnation cases. It is to be noted that the statute does not read that all issues of fact in common-law causes shall be tried by jury. And this omission was doubtless intentional. Issues of fact in contempt cases, for instance, were certainly not intended to be included. It is also a fact that issues of fact as to jurisdiction are frequently and permissibly tried by the court without a jury. Wetmore v. Rymer, 169 U.S. 115, 121, 18 Sup.Ct. 293, 42 L.Ed. 682; Globe Co. v. Landa Cotton Oil Co., 190 U.S. 540, 547, 23 Sup.Ct. 754, 47 L.Ed. 1171. Disbarment proceedings are not tried by jury. Randall v. Brigham, 7 Wall. 523, 530, 540, 19 L.Ed. 285. A motion to set aside a verdict as being contrary to the evidence raises an issue of fact, and many motions for continuance raise issues of fact; but such issues are never tried by jury. Issues of fact may arise in proceedings on habeas corpus, but no jury decides such issues. 9 Ency.Pl. & Pr. 1049.

We know, then, that it was not the intention to require that all issues of fact in common-law causes be tried by the jury, and the conclusion which seems necessary is that the intention of Congress was that only those issues of fact which previous to 1789 had customarily and generally been tried by jury should thenceforth be so tried in the District Courts. So far as the authorities now accessible enable me to learn, it appears that prior to 1789 condemnations by common-law juries were certainly unusual and probably were unknown. In Kohl v. U.S., 91 U.S. 367, 376 (23 L.Ed. 449), it is said:

'The right of eminent domain always was a right at common law. * * * That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without jury.'

In 7 Ency.Pl. & Pr. 546, it is said:

'Where the Constitution is silent upon the question, the great weight of authority is that a common-law jury is not a matter of constitutional right, inasmuch as a well-settled practice existed both in England and in America, before the adoption of any of our Constitutions, of ascertaining the compensation by means of other agencies than a common-law jury.'

In 2 Lewis Em. Dom. (3d Ed.)...