23 L. Ed. 449, is a sufficient reference. We in consequence withdraw the opinion before filed. Incidentally, we ruled upon the question of the power of eminent domain without the submission of briefs because we were informed that no further briefs would be submitted. With the exercise of the power of the United States to condemn the lands in question being admitted, the subsidiary question argued arises. The power of eminent domain is a sovereign power. It does not follow because the United States may exercise it that an executive officer may do so. Before lands can be taken from the possession of their owner it must appear not merely that the Executive has taken them by condemnation, but also that Congress has sanctioned the taking by authorizing it. It has been ruled for us, however, that if the Executive is authorized to acquire title to lands, title may be acquired through condemnation proceedings. The Act of August 1st, 1888, 25 Stat. 357, 40 U.S.C.A. §§ 257, 258, expressly so provides. If, therefore, any of the projects referred to in the petition to condemn have been authorized by Congress, with authority to take title to lands in furtherance of the project, the Exeuctive may condemn lands for the public use designated. The arguments and rearguments ar bar were devoted to the question of whether there was congressional sanction for this project. Since the reargument we have just had submitted to us a supplemental brief by the owner of the lands, which seems to reopen the question of the power of Congress which we understood to have been conceded at the reargument. It is true that the cited cases may be distinguished from the instant case.
As we read the opinion of Mr. Justice Strong in the Kohl Case, however, that case flatly rules that the United States may exercise its power of eminent domain whenever lands are needed by it for public use. It may be that the ruling goes beyond the facts of the case ruled, but, if so, it is evident that this was advisedly done in order to settle the question. It does settle it.
Before discussing the question of the congressional sanction given to this condemnation, we may advert again to considerations upon which we would not think it necessary to dwell, except for the insistence of counsel upon them.
We see no merit in the point sought to be made that the owner of the lands cannot object to the condemnation becaue its former owner had conveyed a large tract of land of which the lands sought to be condemned were part. The power of eminent domain is a sovereign power which can neither be conferred nor taken away by the owner of the land, nor does his willingness to convey part of his land confer the power to condemn what he has retained.
This argument is in line with that before pressed upon us, that the owner could not be heard to object to the condemnation because she had at an earlier date contracted to sell the condemned lands.
It is likewise true that the owner of this land benefited in a real sense by this government project. It is doubtless true that she was thereby enabled to sell 3,00 acres of what otherwise would have been unsaleable lands. It may likewise turn out, and probably will, that if this land is condemned the owner will receive two or three times any price which without this project could have been obtained for it. It may be, and doubtless is, that the project in question is a highly commendable one, big with public blessings. It may be that the respondent is ungracious in opposing condemnation, but we do not see in this any right of a power to condemn. The sole question is whether the condemnation has congressional sanction.
This is a motion to quash. It is a demurrer maneuver. The averments of the petition must on this motion be accepted as true. The petition avers that the land is condemned "for use as a public park and recreational area," authorized by the Act of June 16, 1933, 48 Stat. 200, § 201 et seq., 40 U.S.C.A. § 401 et seq., and by Executive Order No. 7496, issued November 14, 1936. The carrying out of the provisions of this act and the Emergency Relief Appropriation Acts of 1935, 49 Stat. 115, 15 U.S.C.A. § 728 note, and of 1936, 49 Stat. 1608, 15 U.S.C.A. § 728 note, were committed to the Secretary of the Interior, who was thereby authorized and empowered to acquire the necessary lands by purchase or condemnation; provision for the payment of which having been made by the appropriations of moneys for this purpose. To these the Act of June 29, 1937, 15 U.S.C.A. § 728 note was added by amendment. It is further averred that the Secretary of the Interior acted in pursuance of the authority conferred upon him. The proceeding instituted is under the Act of August 1, 1888, 25 Stat. 357, 40 U.S.C.A. § 257, 258.
The motion to quash limits itself to the sole objection that the condemnation of lands "for use as a Public Park and Recreational Area" has not been authorized by Congress.
We regret that the limits of an opinion do not permit a review in detail of the argument addressed to us in support of the motion to quash. It is a logically constructed argument and the briefs pro and con really helpful ones giving us the necessary information without being overloaded with extraneous matter.
The limits of this already overlong opinion will not admit of a detailed consideration of the argument addressed to us by counsel for the landowner. We content ourselves with the statement of some very general observations and of the conclusion which we have reached. We recall to mind what it is of which we are in quest. It is whether Congress has sanctioned the condemnation of these lands. There is this distinction to be observed. The Executive may contract for the conveyance of lands to the United States. His authority to so do may be denied and brought in question. If unauthorized to acquire title, he clearly cannot condemn. If, however, he is so authorized, then he may confemn. If Congress appropriates moneys to pay for the lands, this is a sanction of the acquisition. The French Creek project has this sanction. The needed moneys have been appropriated and in large part expended. Indeed, the petition tenders in payment for the condemned lands the price at which the owner had at one time agreed to sell them. The owner acquiesced in the authority of the Secretary to acquire these lands by conveying to the United States 3,000 acres of the same tract, the consideration for which was paid. To hold all this was unauthorized would work confusion.
The point, however, is that the appropriation of the money already expended and authorized to be further expended argues that the project and the acquisition of land in furtherance of it has received the sanction of Congress. This drives counsel to take their stand upon the proposition of the unconstitutionality of these sanctioning acts. For this position the case of Township of Franklin, Somerset County, v. Tugwell, 66 App.D.C. 42, 85 F.2d 208, is relied upon. That case may be easily distinguished from this, but we decline to go into this constitutional question, adhering to our often-announced view that a court of limited territorial jurisdiction should not rule an act of Congress to be unconstitutional, unless there is no room for a difference of opinion. The reason is that if different views prevail there is created the intolerable situation of an act of Congress being the law in one or more districts and a nullity in others. Doubful questions of constitutionality should be left to the appellate courts. Here, the question could not be said to be free from doubt.
The motion to quash is denied.
© 1992-2004 VersusLaw Inc.