United States v. Certain Tract of Land in Cumberland Township

67 F. 869, 1895 U.S. App. LEXIS 3434

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 22, 1895
• Docket: Nos. 34 and 64
• Status: Published

Opinions

DALLAS, Circuit Judge.

The right of the United States to take private properly for public use, upon making just compensation, though questioned in Pollard’s Lessee v. Hagan, 3 How. 212, is now' fully recognized; but that this right cannot be exercised, within the limits of the several slates, for any purpose which is not incident to some power delegated to the general government, and necessary, or at least adapted, to its execution, is equally well set tied. 1 Hare, Const. Law, p. 346; Kohl v. U. S., 91 U. S. 367; U. S. v. Fox, 94 U. S. 315; Van Brocklin v. Tennessee, 117 U. S. 151, 6 Sup. Ct. 670; Cherokee Nation v. Southern Kan. Ry. Co., 135 U. S. 641, 656, 10 Sup. Ct. 965.

The end sought to be promoted in the present instance highly commends itself to patriotic sentiment' and strongly appeals to the generous impulses of all who justly esteem the services of those by whom the great battle of Gettysburg was fought and won; but such feelings may not be indulged in a place where justice is judicially administered without respect to persons, and where the constituí ion of the United ¡átales must be regarded as imperatively prescribing the paramount rule of civil conduct as well for the government as for the people. Therefore, the only question is whether the object to the furtherance of which these petitions' are directed is germane to the execution of any power vested in the general government; and upon this question I have reached a conclusion which to me seems irresistible. The powers of congress are distinctly enumerated in the constitution, and in that enumeration none is included to which the uses for which it is proposed to condemn this land can he related, without, in my opinion, enlarging the constitutional grant by grafting upon its express terms a construe iion so lax and comprehensive as to be subversive of its limited character. The learned district attorney has referred to but a single clause (article 1, § 8, cl. 1) as conferring the authority now claimed, and that clause is wholly irrelevant. The “power to lay and collect taxes * * * to pay the debts and provide for the common defense and general welfare of the United States” is quite distinct from the right to take private property for public use; and it is not the power of taxation, but the right of eminent domain, which is here asserted. Government may, in time of war, appropriate or destroy private property. This is justified by “the necessities of war.” U. S. v. Pacific R. R., 120 U. S. 234, 7 Sup. Ct. 490. But no deduction from this doctrine of the public law can be made and applied in time of peace, be the incentive what it may, without violation of “the supreme law of the land.”

Entertaining these views, with which no judicial decision that has been brought to my notice conflicts, it is impossible for me to sustain these proceedings. In the first case the exceptions to which this opinion is applicable are sustained. In the second case the motion to quash is granted.