Darlington v. United States , 82 Pa. 382 ( 1876 )

Mr. Justice Paxson

delivered the opinion of the court, October 23d 1876.

The right of the United States to take private property for public use is too well settled to be now disputed. Of the numerous cases upon this subject it is sufficient to refer to Kohl v. The United States, which is believed to' be the last, and will be found reported in the American Law Register for September 1876. The opinion of the court was delivered by Mr. Justice Strong, who said: “ The right of eminent domain is inherent in all governments by virtue of their sovereignty. For all purposes- required by the constitution this right exists in the United States independently of any consent of the state in which the property lies.” The right itself arises from necessity, of which necessity the sovereignty taking the property must be the judge, and is qualified only by the duty of making compensation to the owner. We are in no doubt, therefore, as to the right of the United States to take and condemn a site for public buildings in the city of Pittsburgh, under and by virtue of the Act of Congress approved March 3d 1873, entitled “An Act to purchase a site for public buildings in Pittsburgh.”' Said act provides, “that the secretary of the treasury be arid he is hereby directed to purchase at private sale, or if necessary by condemnation, in pursuance of the statutes of the state of Pennsylvania, a suitable piece of ground in the city of Pittsburgh, in the state of Pennsylvania, for the erection of a building to be used for a courthouse, coustom-house, post-office, United States marshal’s office and other government offices, the cost of the same not to exceed three hundred thousand dollars.” Here the power to take is expressly conferred, and the mode designated by which the owner or owners may receive compensation. The condemnation in case of a failure to purchase shall be “in pursuance of the statutes of the state of Pennsylvania.” The proviso in said act, that the state shall release and relinquish jurisdiction over the same, is fully met by the Act of Assembly of April 2d 1873 (Pamph. L. 42). We therefore think it was competent for the United States authorities to proceed under said Act of Congress to purchase, or condemn, if necessary, a site for public buildings in the city of Pittsburgh. Have they proceeded to do so according to law ? Without entering into a tedious recital of the facts it is sufficient to say, that it appears from the record in this case that proceedings have- been commenced to condemn four different sites, with a view of selecting one out of the four. There is no warrant for this in the Act of Congress. It authorizes the selection .of one site, but it does not create a roving commission to experiment upon the values of different sites. It is said, however, that this action can be sustained under the second section of the Act of Assembly referred to, which provides, “ that the United States may pay the costs and refuse to take the land, if in their judgment the compensation assessed therefor is excessive.” The most that can be claimed for this section is, that in case the United States should select a site, and the damages assessed should be found excessive, and no terms could be made with the owner, the United States might pay the costs, abandon the proceedings and then proceed to condemn another site.. It could not be held to justify proceedings against an indefinite number of sites at the same time, and thus chaffering with the respective owners for the lowest price. And if such construction could be successfully claimed for it the answer is that the legislature has no such power. The state may take the property of a citizen for public use by virtue of its right of eminent domain, but it cannot take it for the benefit of another sovereignty, for the use of the citizens of 'the latter, nor can it delegate its right of eminent domain to another sovereignty for such purpose. I am aware that it has been held otherwise in Gilmer v. Lime Point, 18 Cal. 229, and in Burt v. The Merchants’ Insurance Co., 106 Mass. 356. But a different doctrine was asserted in Trombly v. Humphrey, 25 Mich. 471. In that case, speaking of the exercise of the power by the state for the United States, the court says: “ For the one to enter the sphere of the other and supply its officers and machinery in the exercise of its eminent domain for the benefit of the other, would not only be as much without warrant, but also as much a work of supererogation as for the United States to exercise the like authority and employ the like agencies for a foreign country.” Again, “ The eminent domain in any sovereignty exists only for its own purposes; and to furnish machinery to the general government under and. by means of which it is to appropriate land for national objects is not among the ends contemplated in the creation of the state governments.” The foundation of the right of eminent domain is necessity. The reason utterly fails when .one sovereignty proceeds to take land for the use of another sovereignty. This seems to be the view taken by the Supreme Court of the United States in Kohl v. The United States, supra. Says Justice Strong : “ The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another.’ Beyond this there exists no necessity which alone is the foundation of the right.” It is not a sufficient answer to this to say that the public, buildings proposed to be erected áre for the accommodation of our own citizens. That is a secondary object. The primary object is the accommodation of the business of the United States government, and the convenience and comfort of its officials. The citizens of this state have no rights in said buildings not common to all other citizens of the United States, nor have they any control over them.

These proceedings are radically defective for other reasons. The petition was evidently presented under the Act of Assembly of February 19th 1849, Pamph. L. 83, entitled “ An act regulating railroad companies,” and its supplements. I am not aware of any other act under which such proceedings could be instituted. The petitioners are bound by the terms of the act under which they proceeded. The eleventh section of said act provides that “ when the said company (railroad company) cannot agree with the owner or owners of any land or materials for the compensation proper for the damages doné, or likely to be done, or sustained by any such owner or owners of such land, *' * * or by reason of the absence or legal incapacity of any such owner or owners no such compensation can be agreed upon, the Court of Common Pleas of the proper county, on application thereto by petition,” may appoint viewers. In Reitenbaugh v. Chester Valley Railroad Company, 9 Harris 104, which was a case arising under this act, it was said by Woodward, J., in delivering the opinion of the court, that “ when a railroad company is about to appropriate the property of individuals, they are required by the Act of Assembly of 19th of February 1849, entitled £ An act regulating railroad companies,’ to apply to the owner of the property wanted, and endeavor to agree with him on the compensation, unless the owner be absent or légally incapacitated. Nor have they a right to petition the court for viewers until' such effort has been made; and when they do petition they should set forth the names of the owners whose property is desired, the fact that they cannot" agree on the compensation, or that the owner is absent or legally incapacitated to contract, and verify their statement by the affidavit of some person having knowledge of the facts.” To the same point is O’Hara v. The Penna. Railroad Co., 1 Casey 448. The petition filed in this case lacks all these essential pre-requisites. There was no averment that any attempt had been made to agree with the property owners. Nor is any reason given why no such attempt had been made. It was therefore error in the court below to appoint the viewers. There was no jurisdiction.

Again, in proceedings under the Act of 1849, there must be a taking, Here'there was none. There was experiment and chaffering; nothing more. A railroad company must locate its road, mark and survey the land before they can petition for a jury, and such facts must be set forth in the petition and verified by affidavit: O’Hara v. The Railroad, supra; Neal v. Pittsburgh & Connellsville Railroad Co., 7 Casey 19.

More might be said. What has been said is sufficient. A proceeding of this nature is out of the course of the common law, and every requirement of the statute under which it is taken must be complied with: Lance’s Appeal, 5 P. F. Smith 26; Dillon on Municipal Corporations, §§ 469, 470; Dwarris on Statutes 224. These proceedings are irregular from their inception.

The judgment entered, in this case, and all proceedings subsequent to the filing of the petition, so far as they relate to the plaintiffs in error, are reversed and set aside.