United States v. Certain Lands in the Town of Narragansett, R.I.
| Decision Date | 16 May 1906 |
| Parties | UNITED STATES v. CERTAIN LANDS IN THE TOWN OF NARRAGANSETT, R.I. |
| Court | U.S. District Court — District of Rhode Island |
Charles A. Wilson, U.s. Dist. Atty.
James Tillinghast and Wm. R. Tillinghast, for Margaret D. L Robinson.
Appropriation Act March 3, 1905, c. 1482, 33 Stat. 1119, contains the following provision:
'Improving Point Judith harbor of refuge, Rhode Island, one hundred thousand dollars: Provided, that a contract or contracts may be entered into by the Secretary of War for such materials and work, as may be necessary to prosecute said project, to be paid for as appropriations may from time to time be made by law, not to exceed in the aggregate one hundred thousand dollars, exclusive of the amounts herein and heretofore appropriated: Provided further, that the amounts herein appropriated and authorized, with any existing balances on hand to the credit of such improvement, shall be applied in extending the easterly or shore arm of the breakwater and continuing it to the shore with a view of providing a shelter for a landing place for the passengers, crews, and cargoes of vessels in distress, and other vessels, and for the lifeboats of the Point Judith life-saving service.'
It is conceded that the extension of the easterly or shore arm of the breakwater, and continuing it to the shore, will necessarily require the taking of a few feet of the shore, of the width of the end of this arm of the breakwater, and incidentally a few feet of the adjacent bank to protect it, and to prevent the sea from making around and undermining the shore end of the breakwater. It is contended, however, that the taking of a tract of land, comprising 1.39 acres, with a shore front of 294 feet, is unauthorized.
The answer of Margaret D. L. Robinson, to which the United States demurs, denies the power to condemn any more land than is needed to connect the shore arm of the breakwater with the shore; and also denies that the whole of the land described in the petition for condemnation (to wit, 1.39 acres), can be required, and that any necessity exists for the United States to acquire the whole of said land. It is conceded that there is a necessity for taking some land, and that the Secretary of War or other authorized official of the government must make a determination of the amount needed; but it is contended that, in the absence of express legislative action defining the amount of property, the power to take is limited to the necessity, and that the necessity of taking particular property is a question for the courts. In substance, the defendant argues that although the Secretary of War has instructed the United States Attorney to proceed for the condemnation of the specific tract of 1.39 acres, in so doing, he has exceeded the authority conferred upon him by statute, for the reason that he seeks to take more land than is necessary.
I am of the opinion that it sufficiently appears from the petition that the Secretary of War has exercised a discretionary power conferred upon him by law, and that his discretion so exercised is not reviewable by this court. Decatur v. Paulding, 14 Pet. 497, 10 L.Ed. 559, 609; Cooley on Const.Lim. (5th Ed.) 668, 669; Douglass v. Byrnes (C.C.) 59 F. 29, 32.
While it is doubtless true that an act done under the color of authority and ostensibly in the exercise of discretion may be so clearly in excess of authority, or in abuse of authority, as to require the courts to declare it to be such, and therefore of no effect, the answer does not show any facts from which it may be inferred that the Secretary of War has exceeded the discretion conferred upon him by Congress. The answer, in effect, disputes the judgment of the Secretary of War that a tract of this size is required or necessary.
The distinction between reviewing the judgment of an officer clothed with discretionary power, and determining whether his act is in excess of his authority, should be carefully observed. The Secretary of War, I think, is given power to acquire such an amount of land as is reasonably required to connect the breakwater firmly with the upland, and as will give reasonable facilities for access to the structure both for construction and maintenance. I seriously doubt whether the necessity for taking 1.39 acres could be questioned even if the act authorized merely a connection with the shore.
The purpose of the appropriation...
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