United States v. Forbes
| Citation | 259 F. 585 |
| Decision Date | 25 June 1919 |
| Docket Number | 2077. |
| Parties | UNITED STATES v. FORBES. |
| Court | U.S. District Court — Middle District of Alabama |
Thomas D. Samford, U.S. Atty., of Opelika, Ala., Lee J. Clayton Asst. U.S. Atty., of Eufaula, Ala., Wiley C. Hill, Sp. Asst Atty. Gen., J. J. Hubbard, Chief of Disposal Branch, Real Estate Service, War Department, of Washington, D.C., and Maj N. D. Ely, J.A.G.D., of Davenport, Iowa, for the United States.
Sidney J. Bowie, of Birmingham, Ala., and Ball & Beckwith, of Montgomery, Ala., for defendant Forbes.
This proceeding was begun by the United States on January 16 1918, to condemn for military purposes, under the Act of Congress of July 2, 1917, c. 35, 40 Stat. 241 (Comp. St 1918, Sec. 6911a), entitled 'An act to authorize condemnation proceedings of lands for military purposes,' the fee in certain lands owned by the defendant and needed by the United States as the site for military training camp.
A day was set for the hearing of the petition, due notice was given to the defendant, and on the day set, February 6, 1918, the prayer of the petition was granted. Commissioners were appointed to assess the damages or compensation to which the owner of the lands is entitled. No objection to the petition, or to any of the proceedings, was made by the defendant, who was present in court by attorneys. The order and judgment of condemnation recites that it appears 'by affirmative evidence offered in open court that the allegations of said petition are true.'
On April 13, 1918, after many weeks spent in the taking of testimony touching the value of the land sought to be condemned, at which hearings the defendant was present by attorney, the commissioners made their report to the court, and assessed the damages of the defendant at $58,055.55. And thereafter, on April 18, 1918, the court made and entered an order condemning the lands to the use of the United States upon payment of the ascertained compensation.
On May 11, 1918, the defendant, Forbes, appealed from the order of condemnation and the award of the commissioners.
The case now coming on for trial, the defendant has filed pleas numbered 1 to 12, both inclusive, and pleas marked from A to I, both inclusive. The pleas are very lengthy, but in substance, aver that the Secretary of War has not caused these proceedings to be instituted; that when the proceedings were instituted there was no necessity for condemning the fee to the lands; that since the commencement of the proceedings, and since the taking of the appeal, the government has determined to abandon the use of the lands for military purposes and for use as a military training camp; that the proceedings were not instituted for the use of the United States, but that their real object is to condemn the fee in the lands for the use of the city of Montgomery, Ala., near which city the camp is located, under an alleged contract with the city whereby the city agreed with the United States to furnish lands for use as a military training camp under a lease not expiring until 1920; that the city did not acquire or lease the land from the defendant, Forbes; and hence that the city agreed with the government that if the United States would condemn the lands the city would pay the judgment and costs.
The government now moves to strike the pleas filed by the defendant on the ground that they are frivolous, irrelevant, immaterial, filed too late, and that they present no legal answer to the petition.
The eighth ground of the government's motion to strike the pleas is as follows:
On, to wit, the 16th day of January, 1918, the petition or application in this cause was filed in this honorable court, seeking to condemn the lands mentioned therein, as well as the fee title thereto. Due notice was given to the defendant as provided by law, and a day set for the hearing of said application was fixed as made and provided for by law. The defendants, in their own proper persons and by attorneys, appeared, made no objection to the granting thereof, filed no pleas or pleadings of any kind thereto, and the said application was duly heard by this honorable court, and affirmative evidence made in open court that the allegations of said petition are true, and that it is necessary that the said lands be condemned for the purpose mentioned in said petition; and upon the hearing thereof and on, to wit, the 6th day of February, 1918, this honorable court, in strict accordance with the laws, made and entered a decree granting said application, and in strict accordance with the law appointed commissioners to assess the damages and compensation to which the said Forbes was entitled; and, said commissioners being duly qualified to act, proceeded to hear testimony; and the said Forbes appeared before the said commissioners, and without objection introduced a large number of persons as witnesses to prove the damages and compensation to which he was entitled, and never questioned in any manner whatsoever the right, power, and authority of said commissioners to act as such; and said commissioners, after many witnesses were examined, and after viewing said lands in strict accordance with law, rendered an award; and thereafter the said Forbes claimed that he was dissatisfied with the amount of said award, and sought in this honorable court a trial by jury. Wherefore petitioner says that said pleas are not filed in due season and are filed too late.'
There appears to be a clear distinction between the adjudged cases brought under acts of the state Legislature by railroad companies, waterworks companies, and the like, and those adjudged cases where the United States has sought to condemn, under Act of Congress, lands for public use.
In the first class of cases the necessity for the condemnation seems to be a question for judicial determination. In the other class, to which class the case we are now trying belongs, the question of the necessity for the condemnation is not left to judicial determination, for this power was bestowed by Congress on the Secretary of War, the Secretary of the Treasury, or Secretary of the Interior, as the case may be; and the weight of authority sustains the proposition that the action of the official to whom this duty and discretion is delegated by Congress is not reviewable by any court.
In the case of the United States v. Certain Lands in R.I. (C.C.) 145 F. 654, the act of Congress made an appropriation for improving the Point of Judith Harbor of Refuge under the direction of the Secretary of War, and provided that the money appropriated should be applied 'in extending the easterly shore or 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. ' Act March 3, 1905, c. 1482, 33 Stat. 1119.
The defendant denied that there was any power to condemn any more land than was needed to connect the shore arm of the breakwater with the shore itself, and the defendant also denied that the whole of the lands described in the petition for condemnation were requisite or necessary. It was contended that, in the absence of an express legislative act defining the extent of the property to be taken, the power to take was limited to the necessity of the case, and that the necessity of taking particular property was a question for the courts. In that case it was decided that the Secretary of War had a discretionary power conferred upon him by law, and that his discretion, when exercised, was not reviewable by the court. Citing 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.
In the opinion of the court in the Narragansett Case it is said (145 F. 657): 'It is well settled that it is not necessary that Congress itself should select the particular land. ' Citing Chappell v. United States, 160 U.S. 510, 16 Sup.Ct. 397, 40 L.Ed. 510; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. And I quote further: 'Congress has provided for no judicial review of the judgment of the Secretary of War, and the right to such review does not arise by implication.' It was there held, also, that the extent to which private property can be taken for public use rests wholly in the legislative discretion, subject only to the condition that just compensation shall be made. Citing Shoemaker v. United States, 147 U.S. 282, 298, 13 Sup.Ct. 361, 37 L.Ed. 170.
It is also competent to delegate the authority to decide upon the necessity for its taking. Cooley, Const. Lim. (5th Ed.) 668-670. As was said in the Narragansett Case, supra:
'While the taking of property must always be limited to the necessity of the case, and consequently no more can be appropriated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the appropriation is made, the Secretary of War is authorized by Congress to make the judgment as to what land is needed.'
Again, in the case of the United States v. Burley (C.C.) 172 F. 615, in a proceeding by the United States to condemn land for reservoir purposes, under the Irrigation Act, Act of Congress June 17, 1902, c. 1093, 32 Stat. 388 (Comp. St. Secs. 4700-4708), the court held that--
'Whether a more feasible plan of irrigation than the one adopted might be devised, or some other site selected for the reservoir, is immaterial; the determination of the proper government authorities being conclusive.' (1st Headnote.)
And in the case of the United States v. O'Neill (D.C.) 198 F. 677, where the power conferred upon the Secretary of the Interior by the ...
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