An appropriation by Congress for continuing the work of
surveying, locating, and preserving the lines of battle at
Gettysburg, Pennsylvania, and for purchasing, opening,
constructing, and improving avenues along the portions occupied by
the various commands of the Armies of the Potomac and Northern
Virginia on that field, and for fencing the same, and for the
purchase at private sale or by condemnation, of such parcels of
land as the Secretary of War may deem necessary for the sites of
tablets, and for the construction of the said avenues; for
determining the leading tactical positions and properly marking the
same with tablets of batteries, regiments, brigades, divisions,
corps, and other organizations, with reference to the study and
correct understanding of the battle, each tablet bearing a brief
historical legend, compiled without praise and without censure, is
an appropriation for a public use, for which the United States may,
in the exercise of its right of eminent domain, condemn and take
the necessary lands of individuals and corporations situated within
that state, including lands occupied by a railroad company.
Any act of Congress which plainly and directly tends to enhance
the respect and love of the citizen for the institutions of his
country and to quicken and strengthen his motives to defend them,
and which is germane to and intimately connected with and
appropriate to the exercise of some one or all of the powers
granted by Congress, must be valid, and the proposed use in this
case comes within such description.
Page 160 U. S. 669
The mere fact that Congress limits the amount to be appropriated
for such purpose does not render invalid the law providing for the
taking of the land.
The quantity of land which should be taken for such a purpose is
a legislative, and not a judicial, question.
When land of a railroad company is taken for such purpose, if
the part taken by the government is essential to enable the
railroad corporation to perform its functions, or if the value of
the remaining property is impaired, such facts may enter into the
question of the amount of the compensation to be awarded.
The court below can, before a new trial, authorize the
allegation as to the decision by the Secretary of War upon the
necessity of taking the land to be amended, if necessary.
These are two writs of error to the Circuit Court of the United
States for the Eastern District of Pennsylvania. They involve the
same questions.
By the Act of Congress approved August 1, 1888, c. 728, entitled
"An act to authorize condemnation of land for sites of public
buildings and for other purposes," it is provided
"that 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 any 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."
By the Act of Congress approved March 3, 1893, generally called
the "Sundry Civil Appropriation Act," it was provided, among other
things, as follows:
"Monuments and Tablets at Gettysburg. For the purpose of
preserving the lines of battle at Gettysburg, Pennsylvania, and for
properly marking with tablets the positions occupied by the various
commands of the Armies of the Potomac and of Northern Virginia on
that field, and for the opening and improving avenues along the
positions occupied by troops upon those lines, and for fencing the
same, and for determining the leading tactical positions of
batteries, regiments, brigades, divisions, corps, and other
organizations with reference to the study and correct understanding
of the battle, and to mark the same
Page 160 U. S. 670
with suitable tablets, each bearing a brief historical legend,
compiled without praise and without censure, the sum of twenty-five
thousand dollars, to be expended under the direction of the
Secretary of War."
Subsequently to the passage of that act, and on the 5th of June,
1894, a joint resolution of Congress was approved by the President
which, after reciting the passage of the act of 1893, and the
appropriation of the sum of $25,000 thereby, contained the further
recital that the sum of $50,000 was then under consideration by
Congress as an additional appropriation for the same purposes, and
that it had been recently decided by the United States court
sitting in Pennsylvania that authority had not been distinctly
given necessary to enable the War Department to necessary to enable
the War Department to execute the purposes declared in the act of
1893, and that there was imminent danger that portions of the
battlefield might be irreparably defaced by the construction of a
railroad over the same, thereby making impracticable the execution
of the provisions of the Act of March 3, 1893. It was therefore
"
Resolved by the Senate and House of Representatives of
the United States of America in Congress assembled that the
Secretary of War is authorized to acquire by purchase (or by
condemnation) pursuant to the Act of August 1, 1888, such lands, or
interest in lands, upon or in the vicinity of said battlefield, as
in the judgment of the Secretary of War may be necessary for the
complete execution of the Act of March 3, 1893.
provided
that no obligation or liability upon the part of the government
shall be incurred under this resolution, nor any expenditure made
except out of the appropriations already made and to be made during
the present session of this Congress."
A further appropriation of $50,000 was made for this purpose by
the Act of August 18, 1894, the same session of Congress.
Acting under the authority of these various statutes and joint
resolution, the United States District Attorney for the Eastern
District of Pennsylvania, by direction of the Attorney
Page 160 U. S. 671
General, filed a petition in the name of the United States for
the purpose of condemning certain lands therein described for the
objects mentioned in the acts of Congress.
The petition in the first case recited the foregoing facts, and
also stated the inability to agree with the owners upon the price
of the land desired, and asked for the appointment of a jury,
according to the law of the State of Pennsylvania in such case
provided. The second section of the Act of Congress approved August
1, 1888, above mentioned, provides that the practice, pleadings,
forms, and modes of proceedings are to conform so far as may be to
those existing at the time in like causes in the courts of record
of the state within which such circuit or district courts are held.
The Gettysburg Electric Railway Company answered this petition and
set up the fact that it was a corporation existing under the laws
of Pennsylvania, and that by virtue of its charter, it had the
power to build its road along a certain portion of the Gettysburg
borough limits described in the answer; that it had acquired, as a
part of a route of one of the branches of its road, and for the
purpose of using the same as a part of its right of way, the tract
of land particularly mentioned and described in the petition, and
which is the subject of the condemnation proceedings. It alleged
that the effect of the condemnation of the strip of ground would be
to cut off a particular branch railway or extension belonging to
it, and destroy its continuity, and prevent its construction and
operation. The company further answered that the greater part of
the appropriation of $25,000 under the Act of March 3, 1893, had
already been expended for the purposes stated therein, and that the
balance remaining to the credit of the appropriation was less than
$10,000. The electric railway company afterwards filed a further or
amended answer, and therein set forth that the entire balance
remaining unexpended of the appropriation of $25,000, under the Act
of March 3, 1893, and of $50,000, which had been appropriated by
the act approved August 18, 1894, were covered by contracts already
made under the authority of the Secretary of War, and that there
was not, in point of fact at that time, any part of either
appropriation available for the
Page 160 U. S. 672
purpose of paying any judgment which might be recovered by the
company in these condemnation proceedings.
Evidence was given on the question of the value of the land to
be taken, and on the fifth of November, 1884, the jury filed a
report awarding the sum of $30,000 as the value of the land
proposed to be taken in the first or main proceeding. The
Gettysburg Electric Railway Company duly filed exceptions to the
award, and on the same day appealed therefrom. The United States
also appealed. The case was argued, and in April, 1895, an order
was entered that the first and second exceptions filed by the
defendant be sustained, and that the petition of the United States
be dismissed. 67 F. 869. Those two exceptions are as follows:
"1. The act of Congress approved August 1, 1888, provides for
the acquisition of real estate by the United States by condemnation
only for the erection of public buildings or for other public uses.
It does not appear in the petition of Ellery P. Ingham, Esq.,
United States Attorney, that the Secretary of War has been
authorized to procure the tract of land mentioned in the fifth
paragraph thereof, belonging to the Gettysburg Electric Railway
Company, for the erection of a public building or for other public
uses. The purposes named for the expenditure of the appropriation
in the Act of Congress of March 3, 1893, are not such public uses
as authorize the condemnation by the United States of the real
estate of private persons."
"2. The purpose specified in the sixth paragraph of the said
petition, namely, 'of preserving the lines of battle,' 'properly
marking with tablets the positions occupied,' and"
"determining the leading tactical positions of batteries,
regiments, brigades, divisions, corps, and other organizations,
with reference to the study and correct understanding of the
battle, and to mark the same with suitable tablets"
"are none of them public uses or purposes authorizing the
condemnation by the United States of private property."
The second proceeding was taken for the purpose of condemning a
certain other portion of land, containing a little over two acres.
There was no trial in that matter, but the
Page 160 U. S. 673
case was dismissed, under the motion made by the defendant to
quash the proceedings, upon the same grounds stated in the main
case.
The substance of the holding of the circuit judge was that the
intended use of the land was not that kind of a public use for
which the United States had the constitutional power to condemn
land. The district judge dissented from that view, and was of the
opinion that the use was public, and that the United States had the
power to condemn land for that purpose.
Page 160 U. S. 679
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The really important question to be determined in these
proceedings is whether the use to which the petitioner desires to
put the land described in the petitions is of that kind of public
use for which the government of the United States is authorized to
condemn land.
It has authority to do so whenever it is necessary or
appropriate to use the land in the execution of any of the powers
granted to it by the Constitution.
Kohl v. United States,
91 U. S. 367;
Cherokee Nation v. Kansas Railway, 135 U.
S. 641,
135 U. S. 656;
Chappell v. United States, 160 U.
S. 499.
Is the proposed use to which this land is to be put a public use
within this limitation? The purpose of the use is stated in the
first Act of Congress, passed on the 3d day of March, 1893 (the
Appropriation Act of 1893), and is quoted in the above statement of
facts. The Appropriation Act of August 18, 1894, also contained the
following:
"For continuing the work of surveying, locating and preserving
the lines of battle at Gettysburg, Pennsylvania, and for
purchasing, opening, constructing and improving avenues along the
portions occupied by the various commands of the Armies of the
Potomac and Northern Virginia on that field, and for fencing the
same, and for the purchase at private sale or by condemnation, of
such parcels of land as the Secretary
Page 160 U. S. 680
of War may deem necessary for the sites of tablets, and for the
construction of the said avenues; for determining the leading
tactical positions and properly marking the same with tablets of
batteries, regiments, brigades, divisions, corps, and other
organizations with reference to the study and correct understanding
of the battle, each tablet bearing a brief historical legend,
compiled without praise and without censure; fifty thousand
dollars, to be expended under the direction of the Secretary of
War."
In these acts of Congress and in the joint resolution the
intended use of this land is plainly set forth. It is stated in the
second volume of Judge Dillon's work on Municipal Corporations (4th
ed. § 600) that when the legislature has declared the use or
purpose to be a public one, its judgment will be respected by the
courts unless the use be palpably without reasonable foundation.
Many authorities are cited in the note, and indeed the rule
commends itself as a rational and proper one.
As just compensation, which is the full value of the property
taken, is to be paid, and the amount must be raised by taxation,
where the land is taken by the government itself, there is not much
ground to fear any abuse of the power. The responsibility of
Congress to the people will generally, if not always, result in a
most conservative exercise of the right. It is quite a different
view of the question which courts will take when this power is
delegated to a private corporation. In that case, the presumption
that the intended use for which the corporation proposes to take
the land is public is not so strong as where the government intends
to use the land itself.
In examining an act of Congress, it has been frequently said
that every intendment is in favor of its constitutionality. Such
act is presumed to be valid unless its invalidity is plain and
apparent. No presumption of invalidity can be indulged in. It must
be shown clearly and unmistakably. This rule has been stated and
followed by this Court from the foundation of the government.
Upon the question whether the proposed use of this land is
public one, we think there can be no well founded doubt.
Page 160 U. S. 681
And also, in our judgment, the government has the constitutional
power to condemn the land for the proposed use. It is, of course,
not necessary that the power of condemnation for such purpose be
expressly given by the Constitution. The right to condemn at all is
not so given. It results from the powers that are given, and it is
implied because of its necessity, or because it is appropriate in
exercising those powers. Congress has power to declare war and to
create and equip armies and navies. It has the great power of
taxation, to be exercised for the common defense and general
welfare. Having such powers, it has such other and implied ones as
are necessary and appropriate for the purpose of carrying the
powers expressly given into effect. Any act of Congress which
plainly and directly tends to enhance the respect and love of the
citizen for the institutions of his country and to quicken and
strengthen his motives to defend them, and which is germane to, and
intimately connected with, and appropriate to the exercise of some
one or all of the powers granted by Congress must be valid. This
proposed use comes within such description. The provision comes
within the rule laid down by Chief Justice Marshall in
McCulloch v.
Maryland, 4 Wheat. 421, in these words:
"Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adequate to that end, which are not prohibited but
consistent with the letter and spirit of the Constitution are
constitutional."
The end to be attained by this proposed use, as provided for by
the act of Congress, is legitimate, and lies within the scope of
the Constitution. The battle of Gettysburg was one of the great
battles of the world. The numbers contained in the opposing armies
were great; the sacrifice of life was dreadful; while the bravery,
and indeed heroism, displayed by both the contending forces, rank
with the highest exhibition of those qualities ever made by man.
The importance of the issue involved in the contest of which this
great battle was a part cannot be overestimated. The existence of
the government itself, and the perpetuity of our institutions,
depended upon the result. Valuable lessons in the art of war can
now be learned
Page 160 U. S. 682
from an examination of this great battlefield in connection with
the history of the events which there took place. Can it be that
the government is without power to preserve the land and properly
mark out the various sites upon which this struggle took place? Can
it not erect the monuments provided for by these acts of Congress,
or even take possession of the field of battle in the name and for
the benefit of all the citizens of the country for the present and
for the future? Such a use seems necessarily not only a public use,
but one so closely connected with the welfare of the republic
itself as to be within the powers granted Congress by the
Constitution for the purpose of protecting and preserving the whole
country. It would be a great object lesson to all who looked upon
the land thus cared for, and it would show a proper recognition of
the great things that were done there on those momentous days. By
this use, the government manifests for the benefit of all its
citizens the value put upon the services and exertions of the
citizen soldiers of that period. Their successful effort to
preserve the integrity and solidarity of the great republic of
modern times is forcibly impressed upon everyone who looks over the
field. The value of the sacrifices then freely made is rendered
plainer and more durable by the fact that the government of the
United States, through its representatives in Congress assembled,
appreciates and endeavors to perpetuate it by this most suitable
recognition. Such action on the part of Congress touches the heart
and comes home to the imagination of every citizen, and greatly
tends to enhance his love and respect for those institutions for
which these heroic sacrifices were made. The greater the love of
the citizen for the institutions of his country, the greater is the
dependence properly to be placed upon him for their defense in time
of necessity, and it is to such men that the country must look for
its safety. The institutions of our country, which were saved at
this enormous expenditure of life and property, ought to and will
be regarded with proportionate affection. Here upon this
battlefield is one of the proofs of that expenditure, and the
sacrifices are rendered more obvious and more easily appreciated
when such a battlefield is preserved by the government
Page 160 U. S. 683
at the public expense. The right to take land for cemeteries for
the burial of the deceased soldiers of the country rests on the
same footing, and is connected with and springs from the same
powers of the Constitution. It seems very clear that the government
has the right to bury its own soldiers, and to see to it that their
graves shall not remain unknown or unhonored.
No narrow view of the character of this proposed use should be
taken. Its national character and importance, we think, are plain.
The power to condemn for this purpose need not be plainly and
unmistakably deduced from anyone of the particularly specified
powers. Any number of those powers may be grouped together, and an
inference from them all may be drawn that the power claimed has
been conferred.
It is needless to enlarge upon the subject, and the
determination is arrived at without hesitation that the use
intended, as set forth in the petition in this proceeding, is of
that public nature which comes within the constitutional power of
Congress to provide for by the condemnation of land.
Second. It is objected that the appropriations made by
the several acts of Congress had been exhausted when the amended
answers were put in, and that the proviso attached to the joint
resolution above mentioned, prohibiting any expenditure other than
such as might be appropriated in that session of Congress, renders
it impossible for the landowner to obtain payment, with any
certainty, for his property that might be taken from him. Although
it is set up in the answer of the electric company to the petition
filed on the part of the United States, the fact that the fund
appropriated has been exhausted does not appear by any evidence
contained in either record. So far as this Court can see from the
record, there is an appropriation amounting to $75,000 for the
purpose of obtaining land, a part of which has been found to be
worth $30,000, and the other and much smaller portion is not
valued. The proviso therefore would seem to be immaterial, as the
appropriations were much larger than the value of the land to be
taken. The mere fact that Congress limited the amount to be
appropriated for the purposes indicated does not
Page 160 U. S. 684
render the law providing for the taking of the land invalid.
Shoemaker v. United States, 147 U.
S. 282,
147 U. S. 302.
MR. JUSTICE SHIRAS, in delivering the opinion of the Court in the
case cited, said:
"The validity of the law is further challenged because the
aggregate amount to be expended in the purchase of land for the
park is limited to the amount of $1,200,000. It is said that this
is equivalent to condemning the lands and fixing their value by
arbitrary enactment. But a glance at the act shows that the
property holders are not affected by the limitation. The value of
the land is to be agreed upon, or, in the absence of agreement, is
to be found by appraisers to be appointed by the court. The
intention expressed by Congress not to go beyond a certain
expenditure cannot be deemed a direction to the appraisers to keep
within any given limit in valuing any particular piece of property.
It is not unusual for Congress, in making appropriations for the
erection of public buildings, including the purchase of sites, to
name a sum beyond which expenditure shall not be made, but nobody
ever thought that such a limitation had anything to do with what
the owners of property should have a right to receive in case
proceedings to condemn had to be resorted to."
If it appeared by proof that the appropriation for the purpose
indicated had been exhausted before the proceedings had been
commenced to take the land in controversy, or during the hearing,
then the provision in the joint resolution directing that no
obligation or liability upon the part of the government should be
incurred, or any expenditure made, except out of the appropriations
already made and to be made during the then session of Congress,
would give rise to a very serious question. It is not now
presented. Congress has the power, even now, to appropriate moneys
for this purpose in addition to that which it appropriated in the
two acts of 1893 and 1894. This Court cannot, therefore, upon the
record as it stands, give judgment for the landowner on the ground
that the appropriation for the land has been exhausted in other
ways, and that Congress prohibited the incurring of any obligation
to a greater extent than the moneys then appropriated.
Third. Another objection taken in the court below,
though
Page 160 U. S. 685
not decided by that court, but which counsel for defendant in
error now urges as an additional ground for the affirmance of the
judgment, is that the land proposed to be taken in this proceeding
was already devoted to another public use, to-wit, that of the
railroad company, and that it does not appear that it was the
intention of Congress to take land which was devoted to another
public use. The defendant in error concedes what is without doubt
true -- that this is a question of intention, simply. The power of
Congress to take land devoted to one public use for another and a
different public use, upon making just compensation, cannot be
disputed. Upon looking at the two acts of Congress and the joint
resolution of June 6, 1894, above referred to, in the latter of
which it is stated,
"[t]here is imminent danger that portions of said battlefield
may be irreparably defaced by the construction of a railway over
the same, thereby making impracticable the execution of the
provisions of the Act of March 3, 1893,"
we think it is plainly apparent that Congress did intend to take
this very land occupied and used by this company for its
railroad.
Further elaboration is unnecessary. It is so plain to our minds
that extended argument would be unprofitable.
Fourth. It is also objected that the exception below is
valid wherein it was stated that all the land of the railroad
company ought to be taken if any were to be taken. The use for
which the land is to be taken having been determined to be a public
use, the quantity which should be taken is a legislative, and not a
judicial, question.
Shoemaker v. United States,
147 U. S. 282,
147 U. S. 298.
As to the effect of the taking upon the land remaining, that is
more a question of the amount of compensation. If the part taken by
the government is essential to enable the railroad corporation to
perform its functions, or if the value of the remaining property is
impaired, such facts might enter into the question of the amount of
the compensation to be awarded.
Monongahela Nav. Co. v. United
States, 148 U. S. 312,
148 U. S.
333-334.
5. It is also objected that the petition does not allege that
the Secretary of War has decided it to be necessary to take this
land. A perusal of the petition shows that the
Page 160 U. S. 686
allegation therein contained upon this subject is not very
clear. It might possibly be regarded as sufficiently alleged in an
argumentative kind of way, but it certainly is not as plainly
alleged as it ought to be. The petition, however, can be easily
amended on application to the court below before further
proceedings are taken.
This, we think, completes the review of the material questions
presented by the record. The first and important question in regard
to whether the proposed use is public or not, having been
determined in favor of the United States, we are not disposed to
take any very technical view of the other questions, which might be
subject to amendment or to further proof upon the hearing
below.
The judgment of the circuit court in each case must be
reversed, and the record remitted to that court with directions to
grant a new trial in each.
