Argument for the Gettysburg Electric Railway Company. When, however, it seeks to take private property it can and will be prevented from accomplishing that purpose if the object be not one which it has power to carry out. It is by no means clear, however, that the United States may condemn land in a State for the purpose of a national park. This question was argued and received some consideration in Shoemaker v. United States, 147 U. S. 282, but the decision was expressly rested upon the ground that the place of the exercise of the power was the District of Columbia, over which Congress has exclusive power of legislation. II. The appropriation for the payment of the property taken being entirely inadequate, it is submitted that the proviso to the resolution of June 6, 1894, "that no obligation or liability upon the part of the government shall be incurred under this resolution, or any expenditure made except out of the appropriation already made and to be made during the present session of this Congress," renders the whole unconstitutional, nugatory, and void. The first act of March 3, 1893, appropriated the sum of $25,000. The act of August 18, 1894, appropriated the sum of $50,000, and this is the total of the appropriations made during the session of Congress at which the resolution of June 6, 1894, was passed. See proviso thereto. By the supplemental answers it appears that the balance to the credit of the first named appropriation was, February, 1895, $2882.17, and the balance to the credit of the other was, as of the same date, $36,000. It further appears, however, by the answers filed March 20, 1895, that the entire balance remaining unexpended of both of the above mentioned appropriations is covered by contracts already made under the authority of the Secretary of War, for purposes for which the said appropriations were made, and that the execution of the said contracts will require the expenditure of the entire balances remaining of both appropriations. The taking of land from a citizen for the use of the United States cannot be constitutional without a provision being Argument for the Gettysburg Electric Railway Company. made for a tribunal for the ascertainment of compensation, and for a method by which payment can be enforced by such proper tribunal, or a pledge of public faith being made that a distinct fund should be held by the government for its pay ment. The settled and fundamental doctrine is thus stated by Chancellor Kent, 2 Com., 12th ed., 339, noteƒ: "The settled and fundamental doctrine is that government has no right to take private property for public purposes without giving a just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain." See also Bloodgood v. Mohawk & Hudson River Railroad, 18 Wend. 9; People v. Hayden, 6 Hill, 359; Loweree v. Newark, 38 N. J. Law, 151; Connecticut River Railroad v. Commissioners, 127 Mass. 50; In re Sedgeley Avenue, 88 Penn. St. 509; Orr v. Quimby, 54 N. H. 590; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641, 659; United States v. Great Falls Mfg. Co., 112 U. S. 645. In the present case, although the act of 1888 provides a method of ascertaining damages in cases of condemnation by the United States, there is no adequate fund provided for the payment thereof. Upon an ascertainment in the condemnation proceedings of the damage to the Electric Railway Company, it will have to await the pleasure of Congress before it can obtain payment. III. The act of Congress does not authorize the acquisition of a railway in actual operation. The law is settled that only an intention in express terms or shown to exist by necessary implication, will sustain the taking of property already devoted to a public use. General terms such as "land," etc., are not sufficient. In West River Bridge Co. v. Dix, 6 How. 507, Justice Woodbury said, page 543, that the right to take a franchise was subject to the limitation "that it must be in cases where a clear intent is manifested in the laws, that one corporation and its uses shall yield to another, or another public use under Opinion of the Court. the supposed superiority of the latter and the necessity of the case." It must be admitted that in the act of 1893 there is no expression of an intent to take this railway, or any part of it. The government knew of the situation when the act of 1893 was passed. This company had acquired this strip for the purpose of constructing its railway in 1891. The deeds were recorded in February and November, 1892. The United States could have taken the railroad, but it then said nothing on the subject. IV. A part only of the franchise of a railroad company cannot be condemned and taken. The franchise is indivisible. MR. JUSTICE PECKHAM, after stating the case, 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, 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 Sec Opinion of the Court. retary 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 a public one, we think there can be no well founded doubt. Opinion of the Court. 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 defence 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. 316, 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 consist 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 |