Statement of the Case.

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, 1894, 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. 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

Argument for the Gettysburg Electric Railway Company.

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.

Mr. Solicitor General and Mr. Attorney General for the United States.

Mr. Thomas Hart, Jr., for the Gettysburg Electric Railway Company. Mr. Charles Heebner was with him on the brief.

I. The purposes named in the act of March 3, 1893, are not public uses, and the United States are not authorized to condemn private property for them.

We concede that the United States have the right to take private property for certain public uses; but, on the other hand, it is well settled that this right cannot be exercised, within the limits of a State, for a purpose which is not incident to some power delegated to the General Government. Kohl v. United States, 91 U. S. 367; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641; United States v. Fox, 94 U. S. 315; Van Brocklin v. Tennessee, 117 U. S. 151; Shoemaker v. United States, 147 U. S. 282.

The question, therefore, for consideration is whether the four purposes named in the act of 1893, namely: the preservation of the lines of battle; the marking the positions occupied by the various commands; the opening and improving avenues; and the determination of the leading tactical positions, have such relation to the powers granted by the Constitution as to come within the above stated rule.

It is to be observed at the outset that the question of the publicity of the use is not at all determined and concluded by the fact that the sovereign itself is the medium of the exercise

VOL. CLX-43

Argument for the Gettysburg Electric Railway Company.

of the power. Such a doctrine would simply put it in the power of the government to take for any purpose it chose. The inquiry must always be: What are the objects to be accomplished—not who are the instruments for attaining them. There would be no limitation on the taking of property by the United States if it were conclusively considered that a use was a public one merely because the property was taken directly into the possession of the government.

There is in the decisions a good deal of uncertainty and conflict as to the meaning of the words "public use," two different classes of views existing-one holding that there must be a use or right of use on the part of the public or some limited portion of it, the other holding that the words are equivalent to public benefit, utility, or advantage.

It must be remembered that the question is not, for what purposes may the power of eminent domain be properly exercised by a sovereign State in the absence of restriction. The Constitution provides that private property shall not be taken for public uses without just compensation. These words are a limitation, the same in effect as, "you shall not exercise this power except for public use." Numerous cases have so held. Harvey v. Thomas, 10 Watts, 63; United States v. Jones, 109 U. S. 513; Twelfth Street Market Company's case, 142 Penn. St. 580; Palairet's Appeal, 67 Penn. St. 479; Keeling v. Griffin, 56 Penn. St. 305; West River Bridge Co. v. Dix, 6 How. 507; Memphis Freight Co. v. Memphis, 4 Coldwell, 419; Sholl v. German Coal Co., 118 Illinois, 427; In re Niagara Falls & Whirlpool Railway, 108 N. Y. 375.

There is a difference between the powers of the Federal government and the powers of a state government in acquiring land within that State by the exercise of the right of eminent domain. This difference is thus expressed in Cooley's Constitutional Limitations, 6th ed. page 645:

"As under the peculiar American system the protection and regulation of private rights, privileges and immunities in general belong to the state government, and those governments are expected to make provision for the conveniences and necessities which are usually provided for their citizens

Argument for the Gettysburg Electric Railway Company.

through the exercise of the right of eminent domain, the right itself, it would seem, must pertain to those governments also, rather than to the Government of the Nation; and such has been the conclusion of the authorities. In the new territories, however, where the Government of the United States exercises sovereign authority, it possesses, as incident thereto, the right of eminent domain, which it may exercise directly or through the territorial government; but this right passes from the nation to the newly formed State whenever the latter is admitted into the Union. So far, however, as the General Government may deem it important to appropriate lands or other property for its own purposes, and to enable it to perform its functions-as must sometimes be necessary in the case of forts, lighthouses, military posts or roads and other conveniences and necessities of the Government - the General Government may still exercise the authority, as well within the States and within the Territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case; that is to say, the absolute necessity that the means in the Government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties, or of any other authority."

The adjudicated cases show the character of the use for which the right to take private property has been sustained. Burt v. Merchants' Ins. Co., 106 Mass. 356, for a postoffice; Kohl v. United States, 91 U. S. 367, for United States Courts; United States v. Jones, 109 U. S. 513, to improve water communication between the Mississippi and Lake Michigan; United States v. Great Falls Manuf. Co., 112 U. S. 645, for supplying Washington with water; In re League Island, 1 Brewster, 524, for a navy yard; Gilmer v. Line Point, 18 California, 229, for a fort; Reddall v. Bryan, 14 Maryland, 444, for water works for Washington; Orr v. Quimby, 54 N. H. 590; United States v. Chicago, 7 How. 185, for military purposes. See also Constitution, Art. I., Sec. 8; Fort Leavenworth Railroad v. Lowe, 114 U. S. 525.

Argument for the Gettysburg Electric Railway Company.

The purposes specified in the various acts of Congress authorizing or regulating the taking of private property for public use are national cemeteries, sites for life-saving stations, lighthouses, for improvement of rivers and harbors, for fortifications and coast defences, and Government Printing Office. The present case is none of these. To what authority in Congress is it germane?

The provision for opening and improving avenues need not be considered. Congress has power to provide only for those highways, whether roads, bridges or railroads, which are intended as a means of communication between the States. California v. Central Pacific Railroad, 127 U. S. 1; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641; Luxton v. North River Bridge Co., 153 U. S. 525; Monongahela Navigation Co. v. United States, 148 U. S. 312.

When this case was argued in the court below the objects of the act of 1893 were referred by the learned United States Attorney to Art. I., Sec. 8, of the Constitution empowering Congress "to levy and collect taxes, duties, imports and excises, to pay the debts and provide for the common defence and general welfare of the United States."

It is quite sufficient, however, to say in the words of the opinion below, that the power to lay and collect taxes is quite distinct from the right to take private property for public use, and that it is not the power of taxation but the right of eminent domain which is here asserted.

This matter is to be looked at solely with reference to what the United States proposes to do by the terms of the act under which these proceedings are conducted.

The United States has not yet acquired any ground for a national park. The ground is already acquired, to a large extent, by the Gettysburg Battlefield Memorial Association, a corporation of the State of Pennsylvania, but its purposes and acts cannot be used to help out the action of the United States in the proposed condemnation.

The government may purchase land and devote it to a great many purposes which it could not be contended would entitle it to condemn the same against the will of the owner.