If a defendant, among other defenses, in various forms, and upon
several grounds, objects to the jurisdiction of the court, and
final judgment is rendered for the plaintiff, and, upon a petition
referring to all the proceedings in detail, and asking for a review
of all the rulings of the court upon the question of jurisdiction
raised in the papers on file, a writ of error is allowed generally,
without formally certifying or otherwise specifying a definite
question of jurisdiction, no question of jurisdiction is
sufficiently certified to this Court under the Act of March 3,
1891, c. 517, § 5.
Upon a writ of error under the Act of March 3, 1891, c. 517,
§ 5, in a case in which the constitutionality of a law of the
United States was drawn in question, this Court has power to
dispose of the whole case, including all questions, whether of
jurisdiction or of merits.
The Act of August 1, 1888, c. 728, authorizing the Secretary of
the Treasury, whenever in his opinion it will be necessary or
advantageous to the United States, to acquire lands for a
light-house by condemnation under judicial proceedings in a court
of the United States for the District in which the land is
situated, is constitutional.
A petition for the condemnation of land for a lighthouse, filed
by the Attorney General upon the application of the Secretary of
the Treasury, under the Act of August 1, 1888, c. 728, should be in
the name of the United States.
The only trial by jury required in proceedings in a court of the
United States for the condemnation of land under the Act of August
1, 1888, c. 728, is a trial at the bar of the court upon the
question of damages to the owner of the land.
This was a petition, filed March 21, 1890, in the District Court
of the United States for the District of Maryland for the
condemnation, under the Act of Congress of August 1, 1888, c. 728,
* of a perpetual
easement in a strip of fast land
Page 160 U. S. 500
on Hawkins Point, in Anne Arundel County, in the State of
Maryland, described by metes and bounds and courses and distances,
and as owned by Thomas C. Chappell, for the purpose of transmitting
rays of light, without obstruction, both by day and by night,
between two beacon lights, known as "Hawkins Point Light" and
"Leading Point Light," theretofore constructed and put in operation
by the United States as range lights of the Brewerton Channel of
the Patapsco River in the State of Maryland.
The petition was in the name of "William Windom, Secretary of
the Treasury of the United States and
ex officio President
of the Lighthouse Board of the United States," and alleged that
under the provisions of section 4658 of the Revised Statutes of the
United States, the Lighthouse Board is required to perform all
administrative duties relating to the construction, illumination,
inspection, and superintendence of lighthouses, light vessels,
beacons, buoys, and seamarks, and their appendages; that Congress
appropriates annually a sum of money for repairs and incidental
expenses of lighthouses, which is available to pay for the easement
aforesaid, and that in the opinion of the petitioner, it was
necessary and advantageous to the United States to acquire this
easement by condemnation under judicial proceedings. The petition
was signed by the United States district attorney, "who
Page 160 U. S. 501
appears for the Secretary of the Treasury, the petitioner, by
direction of the Attorney General of the United States."
Upon the filing of the petition, the court made an order that a
copy be served on Chappel on or before March 24, 1890, and that he
show cause on or before April 10, 1890, why the prayer of the
petition should not be granted.
On April 9, 1890, Chappell, "saving and reserving all advantages
and exceptions whatsoever, prays leave to except to the order"
aforesaid, and demurred to the petition, and for cause of demurrer
assigned
"that there is no authority of law for this proceeding, and also
that it is not shown that the Congress of the United States has
appropriated or will appropriate more than five thousand dollars to
pay for said easement, and that said easement is of a value greatly
exceeding five thousand dollars, and whether Congress annually or
has ever appropriated a sum of money for repairs and incidental
expenses of the lighthouse sufficient to pay for said easement,
which is applicable therefor, and also that there is no party
plaintiff made in said declaration and petition, and also that the
laws of the State of Maryland require said proceeding, if the right
to any such has accrued, to be conducted in the circuit court for
the county where said land is situated, and by the laws of the
United States the said laws of the state form the rule of decision
in the courts of the United States in this matter, and also that
the United States of America has passed no general law or special
law authorizing the petitioner or the Attorney General of the said
United States, nor any other person whatsoever, to institute this
proceeding, and said proceeding is instituted
ultra vires,
and the said United States cannot be made a party to said suit
except by the direction and with the consent of the lawmaking
power, and said power has neither directed the same nor consented
thereto."
On May 12, 1890, after argument on the demurrer, the court, by
an order reciting that it appeared that the Secretary of the
Treasury and
ex officio President of the Lighthouse Board
of the United States had been authorized to acquire this easement
for the use of the board, and was of opinion that
Page 160 U. S. 502
it was necessary and advantageous to the United States to
acquire this easement by condemnation under judicial proceedings,
and had made application to the Attorney General to cause such
proceedings to be commenced, overruled the demurrer; and, being of
opinion that condemnation of this easement ought to be had by the
United States, and that the question of the damages which Chappell
would sustain thereby ought to be submitted to a jury, ordered
"that, upon a day to be fixed by this Court, upon notice to said
parties, a jury of this Court be impaneled, who shall be duly sworn
to justly and impartially value and assess the damages which the
said Chappell, as the owner of said land, will sustain by the
acquisition by the United States of the easement aforesaid, and
that the said jury be impaneled from twenty jurors regularly drawn
to serve in this court, from whom each party may strike four
jurors, or, if either party refuse to so strike, the court shall
strike for him, and the remaining twelve jurors shall be the said
jury of inquest to assess said damages, and the said proceeding
shall be in such form as that the United States of America and the
said Thomas C. Chappell shall be the parties thereto."
On October 28, 1890, in accordance with this order, a jury was
duly impaneled in the cause, and was sworn
"to truly and impartially value and assess the damages for the
condemnation of the said easement over the land at Hawkins Point,
in said petition mentioned, and a true inquisition make according
to the evidence,"
and upon a trial before the court, and after hearing evidence on
behalf of the United States, and on behalf of Chappell, and the
charge of the court, returned, on November 3, 1890, an "inquisition
and award," signed and sealed by the twelve jurors, assessing to
Chappell damages in the sum of $3,500 for the enjoyment by the
United States in perpetuity of the easement aforesaid.
On November 10, 1890, Chappell filed a plea
"that the court here ought not to take cognizance of or sustain
the action aforesaid, because he says that the cause of action
aforesaid, if any accrued to the said plaintiff, accrued to him at
Annapolis, within the jurisdiction of the Circuit Court for
Page 160 U. S. 503
Anne Arundel County, State of Maryland, and not within the
jurisdiction of this Court."
On November 17, 1890, Chappell filed the following exceptions to
the inquisition:
"1st. That the statute under which this proceeding is sought to
be maintained is unconstitutional, and this Court has no
jurisdiction of the subject matter of this suit."
"2d. That the lawmaking power of the United States has not
authorized any officer to make said United States a party to this
suit or proceeding, and this Court has no jurisdiction of the
subject matter of this suit, there being a want of power to condemn
this property described in this inquisition."
"3d. That the laws of the United States have not been complied
with."
"4th. That the damages allowed are inadequate."
On December 18, 1890, the district court overruled these
exceptions, and confirmed the inquisition and award.
On December 27, 1890, Chappell prayed for, and on February 24,
1891, was allowed, under section 633 of the Revised Statutes, a
writ of error from the Circuit Court of the United States for the
District of Maryland; but never gave bond to prosecute that writ of
error.
On December 15, 1891, Chappell presented to the district judge a
petition for a writ of error, under the Act of March 3, 1891, c.
517, § 5, in which he mentions all the previous proceedings in
the case (above stated), and,
"in order that said rulings, judgments, and orders may be
reviewed and reexamined by the Supreme Court of the United States
upon the question of jurisdiction raised in said exceptions, pleas,
and demurrers, and the other papers on file in this cause, and
either reversed or affirmed, now prays for the allowance of a writ
of error to the Supreme Court of the United States, and such other
process as may cause said rulings, orders, and judgments to be
corrected, instead of to the Circuit Court of the United States for
the District of Maryland."
A writ of error was thereupon "allowed," in the usual and
general form, by the district judge, and was entered in this Court
February 27, 1892.
Page 160 U. S. 504
On December 2, 1895, the day before the case was called for
argument in this Court, the plaintiff in error moved for a writ of
certiorari, suggesting a diminution of the record in omitting to
state that on July 15, 1890, he filed in the district court a
petition for the allowance of a writ of error from the circuit
court of the United States.
Page 160 U. S. 506
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The motion for a writ of certiorari for diminution of the record
in not stating that on July 15, 1890, the plaintiff in error filed
a petition for the allowance of a writ of error from the circuit
court of the United States to the district court in which the
proceedings were pending, must be denied, for several reasons. 1st.
The motion was not made at the first term, as required by Rule 14
of this Court, and no satisfactory cause is shown for the delay.
Second. The copy of docket entries, submitted with the motion,
while it shows that a petition for a writ of error was filed on
that day, does not show that a writ of error was then allowed or
sued out, and the plaintiff in error afterwards obtained the
allowance of a writ of error from the circuit court to the district
court, which he abandoned, and,
Page 160 U. S. 507
instead thereof, applied for and obtained the present writ of
error from this Court. 3d. The order overruling the demurrer to the
petition and directing a jury to be impaneled was not a final
judgment upon which a writ of error would lie.
Luxton v. North
River Bridge Co., 147 U. S. 337.
The writ of error now before us was sued out from this Court to
the District Court of the United States for the District of
Maryland, under the Judiciary Act of March 3, 1891, c. 517, §
5, which provides that
"Appeals or writs of error may be taken from the district courts
or from the existing circuit courts direct to the Supreme Court in
the following [among other] cases:"
First. "In any case in which the jurisdiction of the court is in
issue; in such cases, the question of jurisdiction alone shall be
certified to the supreme court from the court below for
decision."
Fifth. "In any case in which the constitutionality of any law of
the United States is drawn in question." 26 Stat. 827, 828.
In order to bring a case within the first class, not only must
it appear of record that a question of jurisdiction was involved in
the decision below, but that question, and that alone, must be
certified to this Court. If both a question of jurisdiction and
other questions were before the court below, and a writ of error is
allowed in the usual and general form to review its judgment,
without certifying or specifying the question of jurisdiction, this
Court cannot take jurisdiction under this clause of the statute.
Maynard v. Hecht, 151 U. S. 324;
Moran v. Hagerman, 151 U. S. 329;
Colvin v. Jacksonville, 157 U. S. 368;
Davis & Rankin Co. Co. v. Barber, 157 U.
S. 673;
The Bayonne, 159 U.
S. 687;
Van Wagenen v. Sewall, ante,
160 U. S. 369.
If indeed the writ of error is allowed upon the petition of the
original plaintiff, asking for a review of a judgment dismissing
the action for want of jurisdiction, and the only question tried
and decided in the court below was a question of jurisdiction, that
question is sufficiently certified to this Court.
Lehigh Co.,
Petitioner, 156 U. S. 322;
Interior Construction Co. v. Gibney, ante, 160 U. S. 217. And
if an appeal from a decree
Page 160 U. S. 508
of the circuit court appointing a receiver is allowed by that
court "solely upon the question of jurisdiction," and on a petition
praying an appeal from the decree as "taking and exercising
jurisdiction," the question of jurisdiction is sufficiently
certified.
Shields v. Coleman, 157 U.
S. 168.
But in the case just cited, of
Shields v. Coleman, the
essential requisite of the appellate jurisdiction of this Court in
this class of cases was defined as follows:
"It is not necessary that the word 'certify' be formally used.
It is sufficient if there is a plain declaration that the single
matter which is by the record sent up to this Court for decision is
a question of jurisdiction, and the precise question clearly,
fully, and separately stated. No mere suggestion that the
jurisdiction of the court was in issue will answer. This Court will
not of itself search, nor follow counsel in their search of, the
record, to ascertain whether the judgment of the trial court did or
did not turn on some question of jurisdiction. But the record must
affirmatively show that the trial court sends up for consideration
a single, definite question of jurisdiction."
157 U.S.
157 U. S.
176-177.
The record in the present case falls far short of satisfying any
such test. The defendant, among many other defenses, and in various
forms, objected to the jurisdiction of the district court, because
the act of Congress under which the proceedings were instituted was
unconstitutional, because the proceedings were not according to the
laws of the United States, and because they should have been had in
a court of the State of Maryland, and the court, overruling or
disregarding all the objections, whether to its jurisdiction over
the case or to the merits or the form of the proceedings, entered
final judgment for the petitioners. There is no formal certificate
of any question of jurisdiction: the allowance of the writ of error
is general, and not expressly limited to such a question, and the
petition for the writ, after mentioning all the proceedings in
detail, asks for a review of all the "rulings, judgments, and
orders" of the court "upon the question of jurisdiction raised in
said exceptions, pleas, and demurrers, and the other papers on file
in this cause," without defining or indicating any specific
Page 160 U. S. 509
question of jurisdiction. Here certainly is no such clear, full,
and separate statement of a definite question of jurisdiction as
will supply the want of a formal certificate under the first clause
of the statute.
But, no question of jurisdiction having been separately
certified or specified, and the writ of error having been allowed
without restriction or qualification, this Court, under the other
clause of the statute above cited, has appellate jurisdiction of
this case as one in which the constitutionality of a law of the
United States was drawn in question; and, having acquired
jurisdiction under this clause, has the power to dispose, not
merely of the constitutional question, but of the entire case,
including all questions, whether of jurisdiction or of merits.
Nishimura Ekiu v. United States, 142 U.
S. 651;
Horner v. United States, 143 U.
S. 570,
143 U. S. 577;
United States v. Jahn, 155 U. S. 109,
155 U. S.
112-113.
In support of the position that the act of Congress was
unconstitutional, reliance was placed on Article I, Section 8, cl.
17, of the Constitution of the United States, which provides that
Congress shall have exclusive power of legislation
"over all places purchased by the consent of the legislature of
the state in which the same shall be, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings,"
and on the statute of Maryland by which a method is provided for
the condemnation, for the use and benefit of the United States, of
lands wanted for the erection of lighthouses or other public
buildings, and jurisdiction is ceded to the United States over such
lands "as soon as the same shall be condemned" under this statute.
Maryland Statute 1874, c. 395, §§ 1-13; 2 Public General
Laws of 1888, art. 96, §§ 5-17. It was argued that the
act of Congress was unconstitutional because it undertook to confer
exclusive jurisdiction on the courts of the United States before
purchase or condemnation of the lands in question.
But in the case at bar, the question is not of jurisdiction for
purposes of legislation, but of acquiring title by judicial
proceedings. It is now well settled that whenever, in the execution
of the powers granted to the United States by the
Page 160 U. S. 510
Constitution, lands in any state are needed by the United States
for a fort, magazine, dockyard, lighthouse, customhouse,
courthouse, post office, or any other public purpose, and cannot be
acquired by agreement with the owners, the Congress of the United
States, exercising the right of eminent domain, and making just
compensation to the owners, may authorize such lands to be taken,
either by proceedings in the courts of the state with its consent,
or by proceedings in the courts of the United States with or
without any consent or concurrent act of the state, as Congress may
direct or permit.
Harris v.
Elliott, 10 Pet. 25;
Kohl v. United
States, 91 U. S. 367;
United States v. Jones, 109 U. S. 513;
Fort Leavenworth v. Lowe, 114 U.
S. 525,
114 U. S.
531-532;
Cherokee Nation v. Kansas Railway,
135 U. S. 641,
135 U. S. 656;
Monongahela Navigation Co. v. United States, 148 U.
S. 312;
Luxton v. North River Bridge Co.,
147 U. S. 337, and
153 U. S. 153 U.S.
525;
Burt v. Merchants' Ins. Co., 106 Mass. 356;
United States, Petitioner, 96 N.Y. 227.
Nor is it necessary that Congress should itself select the
particular land to be taken. In
Kohl v. United States,
above cited, it was decided that an act of Congress authorizing the
Secretary of the Treasury to acquire by purchase at private sale or
by condemnation a site in the City of Cincinnati "for the
accommodation of the United States courts, customhouse, United
States depository, post office, internal revenue and pension
offices" was constitutional, and authorized the proceedings for
condemnation to be had in the name of the United States in the
circuit court of the United States under its general jurisdiction
of actions at law in which the United States, or any officer
thereof suing under the authority of an act of Congress, were
plaintiffs.
By the Revised Statutes of the United States the Lighthouse
Board, under the direction of the Secretary of the Treasury, is
entrusted with the discharge of all administrative duties relating
to the construction, illumination, inspection, and superintendence
of lighthouses, light vessels, beacons, buoys, seamarks, and their
appendages, and is authorized to purchase for the purpose, within
appropriations made by Congress,
Page 160 U. S. 511
land which does not belong to the United States. Rev.Stat.
§§ 4658, 4660. And the Act of August 1, 1888, c, 728,
under which this proceeding was instituted, authorizes the
Secretary of the Treasury, whenever in his opinion it is necessary
or advantageous to the United States, to acquire land for the
purpose of a lighthouse by condemnation under judicial process in a
court of the United States in the district in which the land is
situated. 25 Stat. 357. This act is a constitutional exercise of
the power of Congress, according to the decisions of this Court
above cited.
The statute of Maryland above cited provides that whenever the
United States are desirous of procuring the title to any land
within the state
"for the purpose of erecting thereon any lighthouse, beacon
light, range light, lightkeeper's dwelling, forts, magazines,
arsenals, dockyards, buoys, public piers, or necessary public
buildings, or improvements connected therewith,"
and cannot obtain the same by purchase, the United States, by
any agent authorized under the hand and seal of any member of the
President's cabinet may, by petition to the circuit court for the
county where the land lies, have the land condemned for the use and
benefit of the United States. That statute further provides that
the petition shall state the bounds and quantity of the land, the
purpose for which the United States desire to obtain title, and the
names of the owners, and shall be verified by an affidavit of the
agent of the United States; that, after notice to the owner, the
court shall hear and determine upon the petition and any objections
filed to the proposed condemnation, and, if it shall declare that
the condemnation ought to be had, shall issue a warrant to the
sheriff to summon twenty jurors,
"and from them each party or his agent, or, if either be not
present in person or by his agent, the sheriff for said party, may
strike four jurors, and the remaining jurors shall act as the jury
of inquest of damages;"
that the sheriff, before the jury proceed to act, shall
"administer to each of them an oath that he will justly and
impartially value the damages which the owner will sustain by the
use or permanent occupation of the land required by the United
States;"
that "the jury shall summon such witnesses
Page 160 U. S. 512
as the parties may require," and examine them on oath in
relation to the value of the land, and reduce the testimony to
writing, and ascertain and determine the compensation which ought
to be made by the United States to the party owning or being
interested in the land to be condemned, and that the jury shall
reduce their inquisition to writing, and sign and seal it, and it
shall then be returned by the sheriff, together with the testimony,
to the clerk of the circuit court for the county; that the
inquisition shall be confirmed by the court, if no sufficient cause
be shown by the fourth day of the ensuing term, and, when
confirmed, shall be recorded; that if the inquisition be set aside,
the court may direct another inquisition in the manner before
prescribed; that the inquisition shall describe the land condemned,
and state the valuation thereof, and that such valuation, when paid
or tendered to the owner, shall entitle the United States to the
land for the use and purposes set forth in the petition.
The only position, other than the denial of the
constitutionality of the act of Congress, argued by the plaintiff
in error in this Court was that, by the statutes and decisions of
Maryland, the jury which returned the inquisition was but a body of
assessors of damages, in the nature of a special jury of inquest or
board of commissioners, and that he was entitled to have the whole
case tried anew by an ordinary jury. In support of this position
were cited the following cases, decided under different statutes of
Maryland:
Tide Water Canal Co. v. Archer, 9 Gill &
Johns. 479;
Stewart v. Baltimore, 7 Md. 500;
State v.
Graves, 19 Md. 351. But, however that may be under the
statutes of the state, it is not so under the act of Congress.
The direction in the act of Congress that the practice,
pleadings, forms, and modes of proceeding in cases arising under it
"shall conform, as near as may be, to the practice, pleadings,
forms, and proceedings existing at the time in like causes in the
courts of record of the state" must, as was said by this Court in
an analogous case, following the decisions under the corresponding
provision of section 914 of the Revised
Page 160 U. S. 513
Statutes,
"give way whenever to adopt the state practice would be
inconsistent with the terms, defeat the purpose, or impair the
effect of any legislation of Congress."
Luxton North River v. Bridge Co., 147 U.
S. 337,
147 U. S.
338.
This proceeding for the condemnation of an interest in land for
the use and benefit of the United States for lighthouse purposes
was instituted in the district court of the United States by the
Secretary of the Treasury, acting through the Attorney General of
the United States, as authorized by the act of Congress. Having
been commenced in the name of the Secretary of the Treasury, it was
rightly ordered to be amended so as to make the United States the
formal, as they were the real, petitioner.
Kohl v. United
States, 91 U. S. 367;
United States v. Jahn, 155 U. S. 109,
155 U. S. 111;
United States v. Hopewell, 51 F. 798. The proceeding was
conducted in substantial accordance with the provisions of the
statute of Maryland upon the same subject, except so far as
controlled by the act of Congress under which it was instituted or
by other laws of the United States.
The provision of the Maryland statute that a petition in the
county court shall be verified by affidavit of the agent of the
United States is inapplicable to a petition presented to a court of
the United States by the officer designated in the act of Congress.
And the provision requiring a sheriff's jury to reduce to writing
and to return to the clerk of the court the testimony taken before
them has no application to a trial had and evidence taken before
the court itself.
The proceeding, instituted and concluded in a court of the
United States, was in substance and effect an action at law.
Kohl v. United States, 91 U. S. 367,
91 U. S. 376;
Upshur Co. v. Rich, 135 U. S. 467,
135 U. S. 476.
The general rule, as expressed in the Revised Statutes of the
United States, is that the trial of issues of fact in actions at
law, both in the district court and in the circuit court, "shall be
by jury," by which is evidently meant a trial by an ordinary jury
at the bar of the court. Rev.Stat. §§ 566, 648. Congress
has not itself provided any peculiar mode of trial in proceedings
for the condemnation of lands for public uses. The direction in the
act
Page 160 U. S. 514
of 1888, c. 728, § 2, that such proceedings shall conform,
"as near as may be," to those "in the courts of record of the
state," is not to be construed as creating an exception to the
general rule of trial by an ordinary jury in a court of record, and
as requiring, by way either of preliminary or of substitute, a
trial by a different jury, not in a court of record nor in the
presence of any judge. Such a construction would unnecessarily and
unwisely encumber the administration of justice in the courts of
the United States.
Indianapolis & St. Louis Railroad v.
Horst, 93 U. S. 291,
93 U. S. 301;
Southern Pacific Co. v. Denton, 146 U.
S. 202,
146 U. S. 209,
13 Sup.Ct. 44; Railway Co. v. Pinkney,
149 U.
S. 194,
149 U. S.
206-207. This plaintiff in error had the benefit of a
trial by an ordinary jury at the bar of the district court on the
question of the damages sustained by him, and he was not entitled
to a second trial by jury except at the discretion of that court or
upon a reversal of its judgment for error in law.
To prevent any possible misconception, it is fit to observe that
this case concerns only the taking by the United States, on making
compensation to the owner, of an interest in fast land above high
water mark, and does not touch the question, argued but not decided
in two recent cases, of the right of the United States to take,
without compensation, for the purpose of a lighthouse, land under
tide waters.
Hill v. United States, 149 U.
S. 593;
Chappell v. Waterworth, 155 U.
S. 102.
Judgment affirmed.
*
"
An act to authorize condemnation of land for sites
of"
"
public buildings and for other purposes"
"SEC 1. In every case in which the Secretary of the Treasury or
any other officer of the government has been or hereafter shall be
authorized to procure real estate for the erection of a public
building, or for other public uses, he shall be, and hereby is,
authorized to acquire the same for the United States by
condemnation under judicial process whenever in his opinion it is
necessary or advantageous to the government to do so, and the
United States circuit or district courts of the district wherein
such real estate is located shall have jurisdiction of proceedings
for such condemnation, and it shall be the duty of the Attorney
General of the United States, upon every application of the
Secretary of the Treasury under this act, or such other officer, to
cause proceedings to be commenced for condemnation, within thirty
days from the receipt of the application at the Department of
Justice."
"SEC. 2. The practice, pleadings, forms and modes of proceeding
in causes arising under the provisions of this act shall conform,
as near as may be, to the practice, pleadings, forms and
proceedings existing at the time in like causes in the courts of
record of the state within which such circuit or district courts
are held, and rule of the court to the contrary
notwithstanding."
25 Stat. 357.
