United States v. Certain Lands in City of Jamestown, Civ. No. 458.
| Decision Date | 03 September 1940 |
| Docket Number | Civ. No. 458. |
| Citation | 34 F. Supp. 746 |
| Parties | UNITED STATES v. CERTAIN LANDS IN CITY OF JAMESTOWN, N. Y., et al. |
| Court | U.S. District Court — Western District of New York |
George L. Grobe, U. S. Atty., of Buffalo, N. Y., for United States.
R. Norman Kirchgraber, Asst. U. S. Atty., of Buffalo, N. Y., for petitioner.
Cheston A. Price, of Jamestown, N. Y., in pro. per.
This is a proceeding to condemn certain lands as a site for a Post Office and Court House building. The defendants, Harry W. Price and John C. Price, filed an answer which raises only the question of damages. Defendant Cheston A. Price, appearing in person, in an answer for himself individually, purports to raise certain issues directed to the sufficiency of the petition. The Government moves to strike out alleged non-issuable allegations. These include all of those set forth in the said answer of this defendant, except the issue of damages. All of such alleged non-issuable matters are comprehended in the allegations (1) that the petition fails to state facts showing the necessity of the acquisition, (2) that the petition fails to set forth facts showing that plaintiff has been unable to agree with the owners of property for its purchase or reasons for such inability, and (3) denial that all the preliminary steps required by law have been taken by the petitioner.
Article I, Section 8, Par. 7 of the Constitution of the United States authorizes Congress to enact laws "To establish Post Offices and post Roads". As alleged in the petition, and not controverted by the answer, the petition is made in pursuance of the Third Deficiency Appropriation Act Fiscal Year 1937, 50 Stat. 755; the Federal Public Buildings Appropriation Act of 1938, 15 U.S.C.A. §§ 721-728 note, and the Reorganization Act of 1939, 53 Stat. 561, authorizing the acquisition when necessary, by condemnation, of sites for the construction of public buildings.
The Act of Congress approved August 1, 1888, c. 728, 40 U.S.C.A. §§ 257, 258, provided in part that where the Secretary of the Treasury or any other officer of the Government has been authorized to procure real estate for the erection of a public building he is authorized to acquire the same for the United States by condemnation whenever "in his opinion it is necessary or advantageous to the Government to do so". This Act also provided that jurisdiction of a condemnation proceeding should be in the United States Circuit or District Courts of the district where the real estate is located, and further that it shall be the duty of the .
The complaint alleges, and it is not controverted in the answer, that the District Attorney of this district, as directed by the Attorney General, commenced this proceeding at the request of the Secretary of the Treasury and the Federal Works Administrator. That the Congress had power to vest in the District Court the authority to entertain this proceeding and that the right of eminent domain exists in the Government, to acquire lands within the states when necessary for the enjoyment of the powers conferred upon the Government by the Constitution is beyond successful contradiction; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. The petition alleges, and it is not controverted by the answer, that "The Secretary of the Treasury and the Federal Works Administrator have found and determined that it is necessary and advantageous to acquire the lands" in question, and that "funds to purchase the same are available * * *". The question raised in this connection is that the petition does not state the facts showing the necessity of the acquisition. The statute, 40 U.S.C.A. § 258, provides, and this court has held in Re United States, 28 F.Supp. 758, that the practice and procedure in condemnation proceedings by the Federal Government follow the laws of the state in which the condemnation is brought. This statute and this construction are not to be construed however, as requiring the Federal Government to follow the construction of the state courts as to the sufficiency of a particular allegation where the federal law is that there need be no judicial determination of purely legislative questions. In case of intended public use the necessity or expediency of the taking are legislative questions. Bragg v. Weaver, 251 U. S. 57, 40 S.Ct. 62, 64 L.Ed. 135; North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 69 L.Ed. 953; and the method of exercising law of eminent domain is also a legislative question; United States v. McIntosh, D.C., 2 F.Supp. 244; Secombe v. Milwaukee, etc., Railroad Co., 23 Wall. 108, 90 U.S. 108, 23 L.Ed. 67. The questions of the wisdom or feasibility of the project are not judicial; Atlantic Coast Line R. Co. v. Town of Sebring, 5 Cir., 12 F.2d 679; United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315; Campbell v. Chase National Bank, D.C., 5 F.Supp. 156, affirmed 2 Cir., 71 F.2d 669, 94 A.L.R. 708; Sears v. Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L.Ed. 688. Irrespective of the right to a judicial determination of the necessity, it is to be borne in mind here that no issue as to it has been raised by the answer. Where, as here, legislative authority is given to an official to determine the necessity and he acts thereunder, there at least must be a presumption of the necessity. The Secretary of the Treasury here, as appears by the statutes and the uncontroverted allegations of the petition, was authorized to determine the necessity of the project and to institute the proceedings for condemnation.
It seems, therefore, that the motion to strike out the first allegations of the answer to the effect that the petition fails to state facts showing necessity of acquisition, must be granted.
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