US SUPREME COURT DECISIONS

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. chanrobles.com-red

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 chanrobles.com-red

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 chanrobles.com-red

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.8d 9. 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 chanrobles.com-red

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. chanrobles.com-red

Page 160 U. S. 679