Jones v. United States

4 N.W. 519, 48 Wis. 385, 1880 Wisc. LEXIS 143

• Court: Wisconsin Supreme Court
• Decided: February 3, 1880
• Status: Published

Opinion

Oeton, J.

The state of Wisconsin, in making the improvement of the Fox and Wisconsin rivers, under the act of congress of August 8, 1846, making a grant of lands for such purpose, and the act of the legislature of Wisconsin of June 29, 1848, accepting the trust, constructed, as a part of such improvement, the dam by means of which the lands of the plaintiffs were overflowed and damaged. Any question which might otherwise have arisen, whether such flowing of and consequential damages to the lands of the plaintiffs by means of such dam constitute a taking of such lands for public use under the right of eminent domain, subject to the constitutional condition of making just compensation therefor, has been removed by the decision of the supreme court of the United States in the case of Pumpelly v. Green Bay Co., 13 Wall., 166, in which these lands, and the rights of the former owner as to compensation for such flowage, were considered, and it was held that such flowage was such a talcing. The act of congress of March 3, 1875, was doubtless framed in view of this decision, and in terms provided for the ascertainment of “compensation now legally owing” for lands “now flowed” by means of a part of- the works “heretofore constructed.”

Until this act of congress, after the United States had become tho owner of the improvement and assumed the bui'-den of making such just compensation not only for lands thereafter to he taken, but also for lands which had been already taken by such flowage, there had been no provisions made by law for such compensation or for ascertaining the same. As the dam was completed so as to cause the flowage and consequential damage in the year 1861, this act may well be construed to authorize the ascertainment of the past damages of the plaintiffs, as well as the future or permanent damages to the lands, and in this respect may not be strictly analogous to a future taking or condemnation of lands for the use of the improvement. It will be seen that the act provides for both cases, and as to the questions. of constitutionality and jurisdiction these provisions may well stand -together; but as to the measure of damages in each case, the provisions are distinctive and independent.

Such a provision, allowing full compensation to the owner of lands already flowed and damaged by works already constructed, as for lands actually taken at the time when the flowage was caused by the works, for jpast damages, within the period of limitation by the statute of the state, as well as for future and permanent damages, would be most reasonable, and appears to be within the terms of the act, and comports with the liberal and equitable policy of the United States in taking charge of the improvement and assuming the liability of making full and just compensation to the private owner for lands taken for its use.

The first section of the act provides, “ that whenever, in the prosecution and maintenance of the improvement of the Wisconsin and Eox rivers in the state of Wisconsin, it becomes necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals and cut-offs, or to' use any earth, quarries or other materials lying adjacent to or near to the line of said improvement, and needful for its prosecution or maintenance, the officers in charge of said works may, in the name of the United States, take possession of and'use the same, after first having paid or secured to be paid the value thereof, which may have been ascertained in the mode provided by the laws of the state wherein such property lies. In case any lands or other property is now or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed, for which compensation is now or shall become legally owing, and, -in the opinion of the officer in charge, it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner. The department of justice shall represent the interests of the United States in legal proceedings under this act, and for flowage damages hereinbefore occasioned.”

' The second section appropriates $25,000, to be applied in "payment for the property and rights so taken and used.

In section 2 of an act of the legislature of this state approved March 12, 1874, it is provided that, “ in case the lands of any person have leen overflowed, or injured, or taken, or if it shall be found necessary or proper hereafter to overflow, injure or take the lands of any person, for or by reason of the construction of any dam, bridge, lock or pier, or the repair or tire enlargement thereof, or the construction, repair or enlargement of any canal or other works, by the United States government, in the improvement of any harbor, river or stream of water in this state, the compensation for damages sustained by the owner or owners of the lands overflowed, injured or taken as aforesaid, may be ascertained, determined and paid, in the same manner as prescribed in chapter 119 of the laws of 1872, entitled, ‘ An act in relation to railroads and the organization of railroad companies,’ approved March 22, 1872, for acquiring title to lands by railroad companies; and all the provisions of said act may apply in case of the overflowing, injury or taking of lands by the United States government for the purposes aforesaid, which are properly applicable thereto.”

I have emphasized the words in the above acts used in a past tense, significantly applicable to these proceedings, which were instituted and have been conducted in accordance with said acts as far as their provisions were applicable.

It is contended by the learned counsel of the appellant, that the language, “in the mode” and “in like manner,” as used in the act of congress, refers only to the method, form or manner of the proceedings themselves, and does not embrace the tribunal in which they are to be instituted, and does not import any diz-ection or permission that such proceedings may be taken in the courts of the state in which the lands overflowed are situated. "We think such is not its meaning, because — First. Such a strict construction would destroy the only purpose of the act, and make the act itself wholly unnecessary; for without it there is no doubt of the jurisdiction of the federal courts in such a case, or of their method of proceeding. Kohl et al. v. United States, 91 U. S. Rep., 367. Second. In that case Mr. Justice Milleb, in his opinion, uses the word “ mode ” as embracing both the proceedings to condemn lands and the tribunal in which they are to be taken, when he says: “Doubtless congz-ess might have provided a mode of taking the land and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal or by what agents the taking and the ascertainment of the just compensation should he accomplished. The mode might have been by a commission, or it might have been referred exclusively to the circuit court; hut this, we think, was not necessary.” Third. Congress adopted and ratified such a construction of this language as gives direction or permission for these proceedings to he instituted in the courts of this state, by the subsequent act of June 20, 1878, making an appropriation “ for payment of George E. "Wheeler, Eobert H". Hotchkiss and Aaron Walters for services rendered by them as commissioners, appointed pursuant .to an act of congress of March 3, 1875, to appraise damages to lands in Fond du Lac county, Wisconsin, caused by the improvement of the Fox and Wisconsin rivers.”

We assume, therefore, that by the above acts of congress and of the legislature of this state, the United States government has authorized and directed the institution of these proceedings in the state court, and fully assented thereto, and this state has consented to the use of the state tribunals for such purpose. This brings us to the question of the constitutionality of the laws above cited, which is made the important question in this case by the learned counsel of the appellant. The condemnation of private property to the public use by the United States is the exercise of the sovereign power, through such agencies as congress- may determine; and, as the supreme court has said in Kohl et al. v. U. S., supra, “doubtless congress might have provided a mode of taking the land and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal, or by what agents, the taking and the ascertainment of the just compensation should be accomplished. It might have been by a commission, or it might. have been referred exclusively to the circuit court.” Rut, after all, the condemnation is made by the government through such instrumentalities and agencies as congress may have provided by law as the means by which, and the mode in which, the sovereign power to such end might be exercised. It is scarcely a delegation of the power of condemnation to designate the courts in which, or the agencies by which, it is exercised, although it is held that the power even may be delegated. Pratt et al. v. Brown, 3 Wis., 603. Rut more properly “the statutory process for its exercise” maybe delegated. Bohlman v. Green Bay & Minn. Railway Co., 40 Wis., 168.

The power of eminent domain is conceded by the learned counsel to be political and not judicial, and many authorities are cited by him in support of the principle, such, as People v. Smith, 21 N. Y., 597; Hays v. Risher, 32 Pa. St., 169; Bankhead v. Brown, 25 Iowa, 540, and others; and if political, of course it cannot be delegated to the courts, although congress may by law confer upon any court or tribunal, or upon a commission, jurisdiction, and prescribe and determine the proceedings for the efficient and convenient exercise of this power by the government. In this case, the power to condemn and take the lands of the respondents for the use of the improvement had already been exercised, and they have long since been actually appropriated to such use, but conditionally, upon the payment of just compensation therefor, when ascertained in the way and mode prescribed by the law of congress above considered; and neither this state nor its courts have assumed any power to condemn, but only to determine the compensation to be made for lands already taken and condemned, according to the act of congress and the statute of this state.

Whether the United States had taken the first step and asked the appointment of these commissioners, as would have been necessary to assert the power of eminent domain and condemn lands not before taken and 'already appropriated, or the respondents had become the moving party, and asked for the appointment of commissioners to ascertain the amount of the just compensation and assess the damages for lands already taken and appropriated, as in. this case, not only the proceedings but the legal results would have been the same. The commissioners, in either case, take cognizance only of the question of compensation and damages as for lands taken and- condemned. In the first ease, the proceeding would he a suit at law, brought by the United States, in form, against the owner of the lands sought to he condemned. Kohl et al. v. U. S., supra,. May not such a suit he brought by the United States in a state court? Why not? The United States, like any other party, may bring suit for any proper purpose in a state court. In Cotton v. U. S., 11 How., 229, the suit was brought in the superior court of West Florida for damages for trespass upon government lands, by the United States, and Mr. Justice GeieR says of the question of jurisdiction: “ Every sovereign state is of necessity a body politic or artificial person, and as such capable of making contracts and holding property, both real and personal. . . . It would present a strange anomaly indeed, if, having the power to make contracts and hold property as other persons, natural or artificial, they were not entitled to the same remedies for their protection. . . . Although as a sovereign the United States may not he sued, yet as a corporation or body politic they bring suits to enforce their contracts and protect their property, in the state courts, or in their own tribunals administering the same laws. ... As an owner of property in almost every state of the Union, they have the same right to have it protected by the local laws that other persons have. As was said by this court in Dugan v. United States, 3 Wheat., 181, ‘it would he strange to deny the right which is secured to every citizen of the United States.’ ” See, also, The United States v. The Bank of the Metropolis, 15 Peters, 392, and The United States v. Gear, 3 How., 120. This proceeding, when instituted by the United States, is a suit at law, and as Mr. Justice Strong says in Kohl v. U. S. et al., supra, “it is an attempt to enforce a legal right.”

There, can be no question hut that the "United States may institute these proceedings in a state court -without any special legislative permission, and secure precisely the same legal results as were effected in this case. "When the proceeding is instituted by the private owner of the property already taken for public use, as in this case, merely for the ascertainment of the compensation to be paid therefor, it may be in form a suit against the United States, and be so. entitled; but this form of the proceeding does not change its substance, and it remains, until the ascertainment of the compensation, a judicial proceeding by the United States to enforce the right of eminent domain by the condemnation of the property to public use. But if it be a suit, both in form and substance, against the United States, then there is no principle better established than that the United States may, by act of congress, waive its sovereignty, and authorize, permit or consent that such suit may be brought in the state court.

"Without such consent, it is .an axiom that no sovereignty, state or national, can be sued in any court — in its own of foreign courts. In United States v. Clarke, 8 Peters, 444, Chief Justice Marshall says: “As the United States are not suable of common right, the party who institutes such suit must bring his ease within the authority of some act of congress or the court cannot exercise jurisdiction over it.” In that case the suit Was by petition against the United States, praying that the court would decree confirmation of the title of the petitioner to certain lands claimed to have been granted to him by the governor of the province of Florida; and the court held that jurisdiction of the superior court of Florida, in such case, had been conferred by the consent of the United States by act of congress. In Reeside v. Walker, 11 How., U. S., 290, Mr. Justice Woodbury says: “ It is well settled, too, that no action of any kind can be sustained against the government itself, for any supposed debt, unless by its consent under some special statute allowing it, which is not pretended to exist.” In the late case of Carr v. The United States, 98 U. S., 437, Mr. Justice Bbadlbx says: “We consider it to he a fundamental principle, that the government cannot be sued, except by its own consents See, also, 1 Kent’s Com., 297; 2 Story, Const., § 1699.

It is significant that numerous statutes of the United States, from 1789 until the present, have been passed authorizing suits to be brought against the United States in the state courts and for various purposes, and such authority has not been questioned. It is needless to discuss questions not in this case, and to review authorities cited by the learned counsel, where the United States were a party to litigation in state courts and no such jurisdiction was conferred by act of congress expressing consent.

We have been cited to no case, and we think none can be found, in which it has been held that such jurisdiction may not be conferred by such legislative assent, or that such an act of congress was unconstitutional.

We shall be brief in disposing of the other questions raised upon this appeal.

First. The title of the plaintiff appears to have been -sufficiently proved.

Second. The condition found in the act of congress above referred to, “ and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation may be ascertained in like manner,” imposes upon the officer of the United States an active, not a passive duty, which is not performed by the mere expression of an opinion, but which requires such final and conclusive action of the government of the United States, by such officer, as would he a legal release and relinquishment of all present and future right to maintain the dam. Any other coüstruction would allow the mere opinion of the officer on the question of prudence, wbicb might or might not result in a relinquishment of the right to maintain the dam for the use of the improvement, to be a perpetual obstruction to the plaintiff’s right to the damages or compensation that he might thereafter suffer, and be otherwise clearly entitled to have ascertained. We think the intention of this condition clearly was that, in the proceedings to ascertain the damages by flow-age .caused by such dam, if it should appear that the United ■States had relinquished its right to longer maintain the dam, then future and permanent damages should not be assessed, but that such relinquishment would not in any way affect the plaintiff’s right to damages already suffered. The evidence not only showed that no such relinquishment had been made, but that it probably would not be made in the future; and therefore such mere opinion constituted no defense to the plaintiff’s claim for permanent damages. The construction of this condition, claimed by the learned counsel for the appellant, would most clearly make it repugnant to the constitutional right of the plaintiffs to obtain compensation, and to the act of congress providing for its enforcement, and it would be utterly void.

Third. The fact that another dam besides the one in question might, to some extent, contribute to produce the flowage, raises a question which has already been decided by this court, and by the supreme court of the United States, adversely to the position taken by the counsel for the appellant. Arimond v. Green Bay Co., 35 Wis., 41, and Pumpelly v. Green Bay Co., 13 Wall., 166.

Fourth. The rule of damages submitted by the court to the jury appears to be more favorable to the United States than the rule contended for by the learned counsel of the appellant, and seems to have been substantially in compliance with the construction of the act of congress which we have already given to it, as allowing the assessment of all the past damages which were caused by the construction of the dam within tbe period of statutory limitation. This liberal rule of construction of the act of congress was the one adopted by the lion. Edwards Pierrepont, then attorney general of the United States, in his opinion under date of November 10, 1875, to General Gill, the special attorney of the government, after the commencement of these proceedings. He says: “ On this point I think it may well be conceded that if, at the period of the transfer [the transfer of the improvement to the United States], there were any lands flowed by means of the works of said improvement, for which the land-owners were then legally entitled to claim compensation as for property taken or appropriated for public purposes, and the United States thenceforth maintained the flowage of the lands in the same manner and to the same extent, thus, as it were, adopting the original taking or appropriation thereof, the obligation to pay such compensation devolved upon the United States, not by virtue of any agreement or understanding with said company, but by mere operation of law.” This rule of damages was substantially adopted, in all probability, by the commissioners making the assessment, as well as by the circuit court on appeal.

By the Coxtrt.— The judgment of the circuit court is affirmed, with costs.

Taylob, J., took no part in this cause.