United States v. Certain Lands in City of Louisville, 1769.

• Decision Date: 04 January 1935
• Docket Number: No. 1769.,1769.
• Citation: 9 F. Supp. 137
• Parties: UNITED STATES v. CERTAIN LANDS IN CITY OF LOUISVILLE, JEFFERSON COUNTY, KY., et al.
• Court: U.S. District Court — Western District of Kentucky

9 F. Supp. 137

UNITED STATES v. CERTAIN LANDS IN CITY OF LOUISVILLE, JEFFERSON COUNTY, KY., et al.

No. 1769.

District Court, W. D. Kentucky.

January 4, 1935.

T. J. Sparks, U. S. Atty., and Shackelford Miller, Jr., Sp. Atty. of U. S., both of Louisville, Ky., and Lloyd H. Landau and Wilbur Shaw, both of Washington, D. C., for the United States.

Chesley H. Searcy, of Louisville, Ky., for defendants.

C. C. Hieatt, of Louisville, Ky., amicus curiæ.

DAWSON, District Judge.

In this action and in two companion actions, numbered 1770 and 1771, the United States of America seeks to condemn certain property in the city of Louisville, Ky., for the purpose of securing fee-simple title thereto in order to erect thereon a Low-Cost Housing and Slum Clearance Project, under the provisions of the National Industrial Recovery Act (48 Stat. 195). One of the defendants whose property is sought to be condemned in this action is Edward J. Gernert. Subsequent to filing the petition the plaintiff filed its written motion, asking the court to appoint commissioners to assess the damages of the respective owners of the property described in the petition. Thereafter, and before commissioners were appointed, the defendant Gernert entered his appearance to the action and filed a demurrer to the petition. On the oral argument it developed that the demurrer is based upon the contention of the defendant Gernert that the United States of America is without power to exercise the right of eminent domain for the purpose of acquiring property for Low-Cost Housing and Slum Clearance Projects. Aside from the failure of the petition to allege the inability of the government to acquire the property by contract with the owners, this is the only issue presented, and, as this defect in the petition presumably can be easily cured, I shall treat the case as presenting the sole question of the constitutional power of the United States to acquire, through condemnation, property of citizens for the purposes and uses for which the property here involved is designed.

The power of eminent domain is one which is inherent in sovereignty, and, while the Constitution of the United States does not confer this power in express terms upon the national government, there can be no doubt that it possesses such power within the field prescribed for the national government by the Constitution. Indeed, its existence is clearly implied by that provision of the Fifth Amendment which prohibits the taking of private property for public use without just compensation. It is thoroughly settled by decisions of the Supreme Court that the national government has the power to condemn property within a state of the Union for its use for ordinary governmental purposes, such as for post offices, forts, arsenals, locks and dams on navigable streams, courthouses, lighthouses, and the like, and for any other legitimate function of the national government. It is also equally well settled that the national government may condemn property for the establishment of national memorials, commemorating the valor and service of its soldiers and sailors or other public servants, which are open to the enjoyment of, and will serve as an object lesson to, all the people. United States v. Gettysburg Electric Railway Co., 160 U. S. 668, 16 S. Ct. 427, 40 L. Ed. 576. The United States, under the commerce clause of the Constitution (Article 1, § 8, cl. 3), has the power to condemn and to authorize private corporations to condemn rights of way for the construction of interstate railroads, and under the commerce clause and under the power of Congress to establish post roads, to condemn or authorize the condemnation of land for national highways, California v. Central Pacific R. R. Co., 127 U. S. 1, 8 S. Ct. 1073, 32 L. Ed. 150; and I do not think at this late day the power of the national government to condemn property for public parks open to the use of all the people of the United States can be seriously questioned.

The power of the national government, however, to condemn property for purposes such as the one involved here is a new question, and the proper solution of it calls for an examination of the inherent nature of the power of eminent domain.

The universal rule in this country is that the states can condemn private property only for a public use, and the language of the Fifth Amendment shows that the framers of the Federal Constitution intended that the national government should be similarly restricted. The prohibition in that amendment against the taking of private property for public use, except upon the payment of just compensation, clearly implies that it cannot be taken for private use at all. However, there are two schools of thought exemplified in the decisions in this country as to the meaning and scope of the words public use, when used in connection with the exercise of the power of eminent domain; one holding that public use is synonymous with public benefit, public advantage, and general welfare, while the other holds that public use means use by the government itself in the performance of governmental functions, or a use or service open or available to all or a part of the public as of right, irrespective of whether the title to the property condemned is vested in the government or in some private agency.

It seems to me that the first theory is an entirely untenable one. The question of whether a certain use is for the public advantage, or is in the interest of the general welfare of the people, is, generally speaking, a matter for legislative determination. If the property of the citizen can be condemned and taken, upon the payment of just compensation, simply because the legislative department of the government may determine that the use to which this property is to be put is for the general welfare, the property of every citizen in this country would be subject to the whims and theories of any temporary majority represented in the legislative branch of the government; and even if the legislative determination that a certain use is for the general welfare and public advantage is subject to judicial review, it is doubtful if the security of private property would be enhanced. The action of the courts in such cases would inevitably reflect the individual views of the judges on the question of public utility and general welfare. If, on the other hand, the right of the government to take the property of the citizen is limited to strictly public uses, it seems to me that both the legislative and the judicial branches of the government are furnished with a fixed and definite guide for their action.

The Supreme Court of Maryland, in the case of Arnsperger v. Crawford, 101 Md. 247, 61 A. 413, 415, 70 L. R. A. 497, in discussing the character of public use authorizing the exercise of the power of eminent domain, used this language: "There will be found two different views of the meaning of these words which have been taken by the courts — one, that there must be a use, or right of use, by the public, or some limited portion of the public; the other, that they are equivalent to public utility or advantage. If the former is the correct view, the Legislature and the courts have a definite, fixed guide for their action. If the latter is to prevail, the enactment of laws upon this subject will reflect the passing popular feeling, and their construction will reflect the various temperaments of the judges, who are thus left free to indulge their own views of public utility or advantage. We cannot hesitate to range this court with those which hold the former to be the true view. We agree with the Pennsylvania court (Farmers' Market Co. v. Philadelphia & R. Terminal Co., 10 Pa. Co. Ct. R. 25) that `the test whether a use is public or not is whether a public trust is imposed upon the property; whether the public has a legal right to the use, which cannot be gainsaid or denied or withdrawn at the pleasure of the owner.'"

In the case of Healy Lumber Co. v. Morris, 33 Wash. 490, 74 P. 681, 684, 63 L. R. A. 820, 99 Am. St. Rep. 964, the Supreme Court of the State of Washington, in disposing of the contention that "public policy" and "general welfare" are synonymous with "public use" as a basis for the exercise of the power of eminent domain, used this language:

"It might be of unquestionable public policy, and for the best interests of the state, to allow condemnation of lands in every instance where it would result in aiding prosperous business enterprises which would give employment to labor, stimulate trade, increase property values, and thereby increase the revenues of the state, even if the enterprise were purely private, for such is the relation, under our form of government, between public and private prosperity, that one cannot be enjoyed to any appreciable extent without favorably influencing the other. But it is evident that this was not the kind of public use that was within the minds of the framers of the Constitution, and it seems to us that the logic of those courts which have sustained appellant's contention is justified solely on grounds of public policy.

"It seems scarcely necessary to particularize to show to what extent this doctrine might practically be carried. Under such liberal construction, the brewer could successfully demand condemnation of his neighbor's land for the purpose of the erection of a brewery, because, forsooth, many citizens of the state are profitably engaged in the cultivation of hops. Condemnation would be in order for gristmills and for factories for manufacturing the cereals of the state, because there is a large agricultural interest to be sustained. Tanneries, woolen factories, oil refineries, distilleries, packing houses, and machine shops of almost every conceivable kind would be entitled to some consideration for the same reasons; thereby actually destroying any distinctions between public and private use, for the principle in one instance...