nDDAL REPORTER,
voL 48.
It wiUoo remembered thl!.t in Gregory v.MO'f"1"iA, (flJpra, Chief Justice WAITE observed that the contract there created a charge upon the cattle for the purchase-money in the nature of a mortgage. In Fletcher v. M(lf'f!]J, 2 Story, 555, 565, Judge STORY said: "In equity there is no difficulty in enforcing a lien or any other equitable a charge not only against real estate, but upon perl!onal estate;, or' upon money in the hands of a third person, whenever the lien or other claim is a matter of agreement against the party himself and his personal representatives, and against every person claiming under him, volunt8rilyorwlth noUae; ... ... ... for every such agreement for a lien or constitutes a trul'lt, and is, accordingly, governed by the general do<:trine applicable to trustl!."
We have only to add that this case seems to be peculiarly one for a court of equity, in of the situation of the property; and because the court can grant a reil.'Jonable time for the payment of the lien, and, in the event of a sale, may prescribe equitable terms. Upon'the whole case. then, we are of the opinion that the contractual lien of the Holly'Manufacturing Company upon the pumping-engines here inquestion is valid and binding, and is enforceable in this suit. Counsel may prepare and submit the draft of a decree in accordance. with the ,viewaexpressed in this 'opinion.
lETNA INS.
Co. ".
BRODINAX el
ale
'({j(rcuit OOUrt, S. D. Georgia. April Term, 1888.)
Ii
*-
" .Code, § declares that "the wife is a feme as to her separate estate, UDlesscontrQlle'Q'by the settlement. Every restriction on her power must be com:plied with. :'But, while a wife may contract, she cannot bind her separate estate bt , IIony contraqt,ot securityship, I\or bv any assumption of the debts of her .husband. ., thatM\.ere '110 busband settllid property on his wife free front all his liabilities, , except such.inoumbrances as .the two together shall request the trustee to make,a, " . given tpereon. to secure a debt of theb,usband is valid. SAME.
WiPlIl'S BBl-AltA,TB' ESTATB-,-POWER TO ClIARdE-INSTRUMENT OJ' SETTLlumN'J!.
, Such an' exception Is not repugnant to the grant, but is merely a qualification .thereof.A1Ilr!Jl!3d,in {I Sup. Ct. Rep. 61.
'
Equity. Spft by Insurance Company against Martha :Brodinax and. others to foreclose a mortgage. Decree for plaintiff. Joseph Gano,hl, for complainant. J. B. Cumming and Geo. A. Mercer, for defenilants. MCCAY, J. On the 11th day of June, 1866, Benjamin E. Brodinax,. of the county of Richmond, Ga., executed a deed in due form under the 'laws of Georgia, and inconsideration of his love for his wife, Martha Brodinax, to a certain parcel ofland in said county to William E. Brod,jDax, in trust for the said Martha during her life, with other limitations not here important ,to be considered. The deed contained'various other
In
lETNA INS, CO.
v.
BRODlNAX.
893
provisions, as for the alienation and reinvestment of the estate; for the appointment of a new trustee in case the trustee, Brodinax, should fail to act, ordie; also, for the makingofliens and mortgages on the in each of which caSI;lS it was provided that the husband and wife should, in writing,join in what was done. The deed declared that the property should be for the use, benefit, and behoof of the said. Martha, free from the de.bts, contracts, and liabilities of her present or any future husband, except such incumbrances or liens. as by the written direction of the, grantor and the said Ml;lrtha, might be made thereon. W.:E. Brodinax, accepted, the trust. In January, 1858, he resigned, and the grantor and wife in writing appointed Ephraim Twedy as successor, who accepted .. ,Opthe 14th <?f June, 1866, days after the date of the deed; the trustee, in pursuance of the written request of the grantor and: wife, .executed a mortgage deed of the premises to the treasurer of the Soldiers'Loan & Building Association, a body corporate, to secure the loan taf $2,000. On the 11th of May, 1867, the trustee, in pursuance ofthe written request provided for in the deed, executed ariother mortgage' for $3,000; the same being a debt due by note from to the the said Benjamin to the complainant. On the 4th of December, 1868, the cOlllplainant bought the first mortgage, and this bill is filed to foreclose these two Inprtgages. The defense set up is practically as follows: That both the qflbts secured by the mortgages were the individual debts of Benjamin E. Brodinax, and that under section 1783 of the Georgia Code it is illegal (orothe wife to pledge her separate estate to secure her husband's debts. lasJle waE/ taken as to the debt covered by the first mortgage. and, .thQllghthe wife testifil;ld that she got no part of the proceeds of the said it did not appear very clearly that .the trustee did not, nor in fact was, nor what was the consideration. As, however, under, the \;jew I take of the case, it is wholly iIl1material whether it was the.d.ebt of thewife or the husband, it ,is unnCilcessary to go into that 'rhe in the case is whether, under such a deed, it is peteptJo.r a'married woman,under the ,laws of Georgia, to the .e81 tategrant.eqfor her hUl;lband's debts. By the terms ,of the deed it was to, be free fro;mthe contract'fl, debts, .and liabilities of the husband, cept such Ji&ns anp incumbrances as they might jointly, in writing, agree to place <upon it. This language canhllve but one meaning. It is an exoeptipu., to the clause the deed which declares the property was not to be:8ubject to the debts, etc., of the husband, and the inference is alJ;U,ost conclusive that the intent was to say, unless these debts, etc·· are by tile: written direction of both husband and wife, by special1ien or incumbralice, made such a charge thereon. It has been argued that this provision }'Vas inconsistent with the grant, and therefore void; but it is well settled that such restrictions on a separate estate to a married wo;man are not. beconl;ltrued like restrictions on a legal estate to persons sui jur,w. has only such.power as the deed gives her, and the whole An inconsistency, to be void, must be todeed is,to,Jl;le taken the !lstate: if it<;>nly fetter it or qualify,
FEDERAL REPoRTER,
vol. 48.
is still good. ',2 Story, Eq. Jut. §§1382-1384, and' the cases ferredto. See;also,'Kempton'v.Hallowell, 24 Ga.·52. Andthisisthe, law of Geot'giai,i eten oflegal estates to persons sui-j'IJitU. :Section 2697,; Code 1873. ,So tha't this case musUurn, as I think, solelyon·the special Code oft873. That C6de;;in subStance, proprovision vides, first,fhat; to create a separate estate in the'wife, no 'words of separate use are the appointment of Ii trustee,or any words suffi.. cicentto create atrust, is enough. Se,ction 2307, Code 1873: Hence, undllrthis deed,aseparate estate would be created, tilthough no words of. separa,te use are used. The '.also provides as follows, (Code,' § estate, unlessconttolled by the settlemeht. Every restriction on her power must be complied with. But, \\'1111e s"wife may contract, sbe cannot bind her separate estate by any contractof,securityship, nor by any assumption of the debts of ber,bus!:>and: and any sale of her separate estate to a of her husha¥d in extinguishment ' of hi,a. debts tlhall be absolutely void."
:i'li,Je wife is a leme ,sale as tober
'"
,Jt may be added that the supreme court of Georgiaj before the adoptionOftheCode, bad established the doctrine that, however general the words 'Of a deed to a married woman were, yet if it' provided, as does tbis, that the estate was:to be free from the debts, contracts, etc., of the were words of' restriction upon the wife; and she could not pledge her estate for her husband's ,debts. Taking these' decisions, and the provIsions of tbe Code together, it is contended that, admitting woros' of this deed to be a power to so pledge,yet neverthtlless tbe powet doC!! not exist,because: such a power is illegal, contrary to the statutes'. and therefore void. It is claimed that, whatever may be the words of the dE1ed, however strong the language of theigrantor\ it is illegal, and therefore impossible for him to make it one of the terms of the grant that the grantee,ifsh'e be a married woman, shall have' power to pledge the estate for the debt of her husband. It is claimed that the statutes plainly indicate it to be contrary to the policy of the law that a married woman' sball, under any circumstances, have sucb a power. if she be restricted by the terms of the deed, or if the Without deed be IWneral, she would not have that power. But bere is a case where tbepower is expressly declared. There is first a separate estate created in the wife, and this is plainly upon condition on the part of the grantor that he and the wife may put liens upon it to secure his conThis property belongedto the husband. Of his own tracts free will, and for the love he bore his wife, he gives it to her on these terms. Did she ever get any estate except according to these terms and with this power? What was the intent of the statutes? Plainly, to protect the wife in the estate granted j to provide that. if anybody saw fit to give a married woman an estate with the expressed intent that it should be for her benefit,she should neither be "kicked nor kissed tl into an appropriation of it, and to declare that any separate estate coming to her other than by deed, or in any unqualified way I shall not be capable of being used by her to secure her husband's debts, or to discharge- them. This
JETNA INS. CO. V. BRODINAX.
895
clause, however, it will be noticed, does not declare that a deed granting an estate to a married woman may not qualify that grllnt by declaring that she shall have power so to pledge it. It is perhaps wise enough that the law should restrict her when the deed is silent, or when she becomes the unqualified owner of a separate estate. It is fair enough to infer that; if one intends a married woman to have an estate, she shall not be subject tathe influences of her husband for its appropriation to the security or payment of hi$debts. But. if the grantor expressly says that she shall have such power, is not the inference that she cannot exercise that powElr a most shocking one? The mistake is in supposing that it was the intent of the law to protect the wife,-to establish a rule of domestic or marital economy that under no circumstances shall Ilo "Georgia" wife be in such a position as that she shall be capable of using an estate 'for the payment of ber'husband's debts, even if the grantor,of that estate so expressly declared, or even if that be one of the terms of the deed in which the grant is given. To lay down such a rule ,would, as I think, be a,great wrong to married women. Many a husband would be willing to settle property on the wife, provided she had the power to come to his relief on proper who would refuse to do so if in such a contingency she was to be powerless. Many a father-in-law would be willing, to settle property on his son's wife, provided she had such power, who would decline to do so if she was to be powerless in case of pecuniary trouble on the part of the husband. And this view of the meaning of this section is in harmony with the history of separateestates and with several other instances in the law of disability put upon persons for the performance ofotherwise legal acts. At common law, a wife could make no contracts, sell no land, could not even make a will; yet it was always held that, if the instrument creating an estate gave such a power, even a married woman might execute it. So, too, an infant may, by a deed creating an ,estate in his favor, be clothed with power to dispose of it by will before he becomes capable of making ,a will gen,e;J,'ally.· Indeed, it may'bfi $tated, as a general rule that, if an instrunlfmt creating lin estate provide for some specific mode of its disposition, only mUllt be disposed of in that but that it may be solq. and disposed of in that way although the person to whom the power is given, would. not, underthe general law, have a capacity to do such a,cts. And ,this proceeds in the idea that the OWner of property has power to of it, or provide for its disposal, at his discretion. The cont,ention tbat tbisprovision of the Georgia Code is intended to declare it to be the policy of the state that under no circumstances shall a married woman have such a power seems to me far-fetched, and colcubi.t6d to place ,an unnec&lsaryand unnatural restraint upon thedispositiOD of property to married women. The Gode is, in my judgment, in.;. tended, not to protect the wife, but to protect the estate granted to her; to carry out either the expressed or the presumed intentions of the grantor, and, generally, to say, if she have an estate to her separate use, she shall not'iispose of it to pay her husband's debts. This is a different thing entirely from the case at bar, where it is distinctly provided, if the
896
REPORTER,
vol. 42.
"'He see fit,-if she and her husband concur in:writing,-that such a. powerahall exist. She only gets the estate on these terms, and to say thnt she shall not exercise the power thus expressly granted is to confer on her an estate never contemplated by the grantor; Nor,as it seems to tne,is there any analogy between a case like this and the case of a over contrary to law or to public polioy,' :a8 conditions in the restraint of marriage, lind the like;", These cases, as their history. shows; turn upon the public evils growing out of such limitations arid restrictions, while the history of this provillion shows an intent to protect the estate of the wife, and not to establish such a rule of the marital tions aswtiuld say that it shall be illegal for a' grantor to put the wife in any such situation. Upon the Whole, therefore, Lam of the opihion that the original deed conferred upon the wife the power herecbniplained of,and, that being the case, the mortgages are good; even though they be securities for the debt of the husband. Something was said in the argument to the effect that, as a second mortgage was mitde to secure a 'past-due debt of the husband, it was therefore without consideration; but, if this was' his debt, it comeS within the scope and intent ofthe deed, whether then'due or merely then contracted." The husband made the deed on these terms, and, if this was his debt, the deed, gives her power by joining in a written request to secure i t . ' Ordered· that a decree (jf foreclosure for the amount due be upon the minutes of the court. i J:; <,:.' ':, I."
In re 1. EMINEN,T,
MONTGOMJFRY
et al: 19,1899.)' '
'(,VtstrtctOourt, D. New:;rersey. FOR 'dSEOF
' A c t Cerig.March S; 1891..l. authorizes the secretary of war to modify existing plans for the excavation of J:'etty'sisland and the shoals"in the DelawarEl river, but deolaresthat the title to any additional lands required for this purpose shall be ve$ted .in the United States without charge. BekL that, in viewotthis latter provision, the United States has nO cOnstitutional power to acquire the landil by condemnation proceedings.
ca.
Under Act Congo Aug. 1, 1888, authorizing officers ofth'e government to condema lands for the use of the UnitedState.s, a petition for c():Q,l'lemnationmust lloft!l:"lIll'tivelr show that the, officer is authorized. by congress. to al,1quire the lands, that III his opinion it is" necllssary or advantageous "to proCeed by judicial pr6tiess'i and these facts cannot be inferred from an aliegatioll that: such officer h,as re; quested the attorney genl)ral to institute such proceedings. LAW.
SAME-:EXEROISEOF RIGHT :BY UNITED
In Equity. Petition for the condemnation of lands belonging to Thomas Montgomery and others, for the use of the United States. Heard on motion to quash the petition for appointment of commissioners. Petition dismissed. W. a. Hannis, for motion. H. 8. White, Dist. Atty., J. Warren Ooulston, J08IYph. K. McOammon. and a. Y. D. JOline, contra.
IN RE MONTGOMERY.
897
GREEN;' J. By an act of the C6ngress of the United States, approved April 24, 1888, entitled" An act to facilitate the prosecution of works projected for the improvement of rivers and harbors," it was enacted thatth'e secretary of war may cause proceedings to be instituted in the name ofthe United States in any court having jurisdiction of such proceedil:igs, for theacquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers811d harbors, for which provision has been made by law; such proceedings to be proseouted in accordance with tlie'laws relating to suits for the condemnation of property of the states wherein. the proceedings maybe instituted: provided, however, that when the owner of such land, right of way, 00' material shall fix a price for 'the same, which, in the opinion of the secretary of war, shall be may purchase tbe Same at such price without further delay: and provided further,that the secretary of war is hereby authorized to accept donations of land or materials required for the maintenance or prosecution of such works. By another act, entitled "An act to 'authorize condemnation of land for siteaof public buildings, and foi other purposes," approved August 1, 1888, it was further enacted 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 erectioIiof a public building, 00' fot other public uses, he shall be, and hereby is, authorized toaoquire the same for the United States by condemnation under judicial process, whenever in his opin.,; ion it is necessary or advantageous to the governme-nt to do so; and the United States circuit· or district courts of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation, and :itshall be the duty of. the attorney general of the United States, upon every application of the 'secretary of the treasury, under this act, or snchother officer, to caUSe proceedings to be commenced for condemnation· within SO days from the receipt of the application at the departmentoljustice. And by said act it Was provided that the practice, pleadings, forms, and modes of proceedings in causes arising under the provisions of this act shall conform as neai' as may be to the practice, pleadings, forms. and proceedingse:iisting at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding. By another act, entitled "An act making appropriatibris for sundry civil expenses of the government for the fiscal year ending June SO, 1889, and for other purposes," approved October 2, 1888, it was, inter alia, provided tbatfor the removal of Smith's island and Windmill island, in the state of Pennsylvania, and Petty's island, in the state of New J ersey. or such· parts of them and the shoals adjacent thereto as may be required, and for the improvement of the harbor between the cities of Philadelphia,Pa., and Camden, N. J., the sum of $500,000 should be a.ppropriated: provided, that no part of said sum should be expended until the title to the lands forming said islands should be acquired and vested in the United States, without; charge to theJatter beyond $SOO,-' v A8F.no.11-57
FEDERALREP9RTJj)R,:
By act, approved 3, D;laking apprqpriationsforsundrycivil expenses ()f the government fOlUh,e fisclll year ending June thirteenth, eighteen hUlldred and ninety-two, and for othf;lr purposes," it was enacted that for improving harbor and continuing the improvefbr the remQval of Smith'$jsland and Windmill jaland, Pennsylvanialf:and Petty's isJand', New Jersey, and a,pjacent sho&ls,$300,OOO weJ,'e, appropl'iated: pro.vi(led, that, the plan for, the impro,vement may bemoditle<i. by changing the line. limiting the eXC/lovation on Petty's island. tosu,ch ,poRitiQlil:ftS the. secre,taryof war mayconsiderdesil'able, lj,nd to· islands, and shoals under this a;ppropl'w.ion and .h.erl'ltofore mltde,sh1ill ,be deposited and ltnd to the.extentQf ,the. cO/lt·pfsuch deposit Ilaidllppropritl<tions areherel:>Y made available.: f\lJ,'ther, thattbe title to any additjonallllnds acquired for this purpose be vested in tbe United ,states withoqt charge to the latter. Under the\Tarious acts ab()ye referred to, the present proceedings were· begUn by way, pf petitiO-n ito this court' upon the. reqpest()f the secretary of Q( the general, to I;)btain possession by, l!;lnds, rigbt Wway, and out and depeiHionforthe PQrpO$e pfilllP1'9ying the navigation scribed in of the Deillware the city ofPbiladelpqja. The petition, reciting bereinbef()re set.forth, alleges that the secretary: of war, under tue of tlw act last above referred to, had approved modi-, ficlltions, of theprojef}t Jor improving tpe barborof Philadelphia by Qhanp;ing the line eX('4vation which ,had previously"been adopted by the in makiqg ,said impr9vement,w.hicll. modifications neStates of a..Qout 23 acres of land. cessitated the.ll.<!quisitionpy·the parcel of I'etty?s island, U. addition to' that tberetO{9re"1lCquiredj that, to acquire said lands, of war had requeittOO.theattorney .generQ.l of tbe United States to,ppmmence these in condemnation according to tbeacts in I and I and that the peti. uoner, by: its offlcildsf.had electe<iltQconform said proceedings on condemnatioJ1,to those .authorized by .the act of the legof New:Jersey entitled "An,lJ,Ct formation of to regulate the same,'r, approved April 2, The' petition described by metes and bQ.\lnds the lands so required for tbe,said: improvement, and, the names·oC.he persons having fl,ril. interest, as <nvners pr 9tberwise. therein. .The. ,prayer of the petitiqn was, that n9tice ()f this; application, should be gi.vent() the persons who were therein Milled M lands, and.for the appointment or.a partiowartime and,; .place when;and where the. ,court under seal would desigijate tbree;disi;QterestW;.,impartial, a,ndjudioious freehold-ers.residentll o.f the COUij,ty N. J., withi,n tlje limits of which county s.aid bllldswere. alleged to, J:>esi,tuate,tQ be. the. cQJ;nwissionerl'! to appraise BIlid to be 'paid by the United States therefor. Upon, the filing ofsa,id petition an '91'$8 made to 8how cause.whythe,prayeJ.: of the petition should not be granted,and
189.1, eptitled "An
e
INRE MONTGOMERY.
"
899
of said' order those who wer-if interested in said upon the' landsasownera, by theifcoupsel appeared quash the said petition,and set Rl3ideany proceedings thllt might 'havEl' been had there- , undet,forthe folJowing rensons: '(1) The petition fails tt> show upou its flice that the secretary of War had' been authOrized :toacquire the additionallands merttionedihthe pet!tionforpublic use. (2) The petition fails to show that, in the opinion Of the secretary ,of war, it is necessary or advantageous to the United States that the lalld in question should be acquired by condemnation under judicial proc'ess; (3) The petition fails to show that any provision had Men ;tn!!-de'''by law to compensate the land-owners for the value of their land, and the damages they might sustain by this appropriation. It cannot be denied that the petition, as it was originally filed, is open to criticism for the manner in which jurisdictional 1acts are stated 36 Fed. Rep. 369, which was a therein. In the case of lnre proceerling to condemn lands for a public building, it is held by the court that all three of the allegations which it is alleged this petition omits to make are necessary, and must a4Jirmatively appear on the face of the petition for the appointment of commissioners, or the petition will be quashed; A strict criticism of this pdition, using the opinion of the court in the case just cited as a criterion, would undoubterlly produce a similar result in tbis case. There certainlyare no distinctive averments in the petition, as originally framed, that the secretary of war had been authorized in law to acquire these lands by condemnation, or that, in his opinion, it was necessary and advantageous to the United States that they should be so Mquired. It is true, the petition alleges that the secretary of war had requested the attorney general of the United States to commence these proceedings; and it was argued that such request, made, as it was alleged to be, under the act of August 1, 1888, would carry with it the presumption that he was of opinion it was both necessary and tothe United States to acquire the lands in the manner pointed out by that act; for the only possible authority to make, or justificationof,'suchrequest, is to be sought for and found in the act referred to, and that act prescribes with precision when and under what circumstances the power of eminent domain is to be called into action at and by his request. As conditions precedent to such request for the institution of condemnation proceedings, the secretary of war must determine affirmatively both the advantage and necessity to the federal government of the possession of the lands sought tobe condemned; and, as it is always to be presumed that every officer acts strictly within the limits and upon the lines of his delegated power, itwould follow that the request made by the secretary, as stated in the petition, is evidence. presumptively at least,that all conditions precedent to the lawful making of such request have been complied with. This argument is plausible, but unsound. It is a well-settled principle that when the exercise of a special authority, delegated by statute to a particular person or to a special tribunal, is dependent Upon conditions precedent, allpreliminarieswhich show fulfillment of such conditions, and which confers upon I
900
FEDERAL REl'ORTER,
s,nch person or, tribunal power to act, must clearly appear upon the face ?fthe proceedings. The p,roper practice is to atate affirmatively and all facts upon .whicll, in such jurisdiction depends. Iptljqdment,and presumption should'Dot be resorted to for th,e,justification of any judicialproceedings; ,in derogation of private rights. But it is not nepessary, in the petitioQ, to the effect either of this or of ,tpefirst objection made to it. By opnsent, and after th,e argument, the petition waEi amended by adding. averments, Bubstaptially meeting th.eEie objections, and curing the alleged defects, Jtnd setting forth as, tpe very important aJ;ld, necesSltry fact, until that the ;fe.,deral. go:v,ernment had been unable to agree then. with the owners of the lands for the purchase thereof. These amendments,relieye the ,cause itt bar of mu$ emb:+rrassment, and take out of the discu,sEiion'objectionswhich lV,ereI/ressed upon the court at the h,ear., ing with great vigor and ,ability.., They are referred to now, only to call attention to the deficiencies inth,e petition as originally framed, and to tho adoption, of it as a precedent. The Qther objection relied uponis, the petition fails to show that any provision has been made by act of Gongress, in terms, for the just compensatiqn of the owners of the property sought to be appropriated and taken. I am doubtful wh,ether this 9pjection, stated as it is, should be held v:alid. There is of Cases which sellm to hold otherwise. The conclusion, at which the courts in those cases arrived appears to be founded upon this argumel1t: The proceedings were instituted by the sovereign government by virtue of the right of eminent domain, inhernot by al)individual or,a private corporation to whom ently the right haq been delegated by the sovereign. Em" inent domllin iS,the supreme dOD;lil).ipn the sovereign power has in and over all pI:operty within its jurisdiction, coupled with t4e absolute right to appropria,te such propet;ty, agail)st the consent .of t1;le owner, for the or ,as! public necessity may require. promotion pf the general, pertains: as apdinexhaustible attribute to sov. ereignty,8J;ld, therefore upon constlt9ctional recognition or enactment"'l Aud sqjt,has been determiped tbat the clause in the Jeq.er.al cOtlsUtutiol) providing that private property shall not be is no part of .the right taken Jorpublic use witp.(ilUt itself, b ll t only a limitatiorl,upon the exercise of the right. In other words, the right: or power of eminentdomain is as supreme now, in its it was b,efore the ameIldment to the constitution, proillitial for compensatipn was adopted. The arnendment simply the harshness and severity of the final operation upon the inby endowing him with an indefeasible right terests of tJ;:1e. prqperty, to just compensation for his, property, taken andapPl'opriated against his consent. Now, it will be noticed, tbat this clauE\eof the federal constitution differs frorp similar clauses instate constitQtions in this: that it does not,requirejust compensation to be made before the taking of the prope;rty. It p'rovides forjust.compensatjon. The time of the -, making .qf the compensation is not fixed or determined. That it need
901
not be made, necessarily, before the taking, in cases where the sovereign power itself is the taker, has been repeatedly held by the courts. These adjudications go upon the ground that when the sovereign power-that is, the federal government, the state, or the municipality as agent of the state-has provided a remedy by resort to which the property owner can have his compensation duly assessed, adequate means are afforded for its satisfaction, since the whole 'property of the sovereign or of the state or of the municipality is a fund to which he can resort without risk of loss. That is to say, the compensation which becomes inalienably the owner's at condemnation becomes at the same time. and is, a public charge. The good faith of the public is pledged for its payment, and all resources of taxation may be, by the owner, called into action in raising und obtaining the amount. Hence the mere fact that a special fund for the compensation of the owner whose property was to be taken and appropriated by the sovereign power Was not designated or fixed in the act authorizing the taking and appropriation, would not necessarily im'alidate the act itself. While these cases to which I have referred are undoubtedly well considered, and the conclusion seems apparently justified by the argument, it is not necessary to consIder the present case as standing upon such narrow ground. An examination of the statute of March 3, 1891', discIosesan objection to these proceedings which must be fatal. The act not only fails to provide compensation, but in terms actually forbids the making of any compensation to the land-owner by the United States for the lands to be taken. The words of the act of March 3, 1891, are as follows: "For improving harbor at Philadelphia. Pennsylvania: Continuing improvement by the removal of Smith's island and Windmill island, Pennsylvania. and Pett.y's island, New Jersey. and adjacent shoals, three hundred thousand dollars: * * '" provid,ed, further. that the title to any additioJ;lallands aqquired for this purpose shall be vested in the United States without chargeto the latter." In other words, this act, if it, as it has been argued, authorized condemnation proceedings to be taken for the purpose of acquiring the land needed for the improvemen,ts mentioned, would have to be read this way: That the secretary of war is authorized, for the purpose of continuing the improvement of the Delaware river at or near Philadelphia, and within the limits of the state of New Jersey, to expend the sum of three hundred. thousand dollars; that for the purpose of acquiring possession oithe lands necessary therefor he may, if, in his opinion, such lands are, and advantageous to the United States, institute proceedings td condemn such lands in a court having jurisdiction thereof, but with the express stipulation that under no drcumstances whatever shall the United States make any compensation to the land-owner for the property so taken by them. The distinction between such legislation and the legislation which fails in itself to provide the compensation for the benefit of the land-Qwner is readily seen. The omission in the one case to proviQe the compensation where the sovereign power is the condemning party, does not deprive the
902
FEDERAL REPORTER,
,land-owner 'of any right whatever. A:a Judge Oooley $ays inbis treatise on Constitutional Limitations, the public faith is pledged to compensate him; all publiopropertyfis aubject to his claim, anll, his property cannot be taken without such compensation being awarded to him. But in the act now under consideration there isuot .only an OfUission to provide for compensation, but actual, positive, and' direct legislative interdiction of the making of any compensation to the land-owner at all. In other words, the secretary of war is by it, if these proceedings are to be justified, to depl'ivethe land-owner of his property, nnd at the same time to notify the land-owner that under no circumstance will he be compensated therefor·. Such an act would be clearly within the interdiction of the constitution. It is perfectly apparent from the reading of this act that the legislative power of the United States never intended that condemnation proceedings should be bl:'gun ,and proceeded with to obtain possession of thia property. By the true construction of the act in question it contemplates the acquisition of the land necessary for the improvements in question, not against the will of the owners, and by condemnation, but by the voluntary conveyance from theowners, or from some one who may purchase the same from the owners, and who waul d thereupon transfer the title to the United States; and in that case the United States agreed to expend the sum of $300,000 in the ex;cavations and the removal of obstructions to navigation which' the proposed improvements contemplate. In fact, the only circumstance under which the secretary ,of.war is authorized to make the improvement and expend the appropriation is the free gift of the lands to the United States. My reading of the acts in question compelR .me to the conclusion that congress never intended to authorize the acquisition of these landa by the exercise of eminent domain. . Their possession by the federal government was to depend up1>n voluntary conveyance alone. It follows that the petition roOst be dismissed.
UNITED STATES V. STROBACH.
Court, M. D· · tHabama. May Term, 1888.)
1.
PBBSBNTINGFBAUDULlllNT CLAIMS AGAINST TRB UNITED b'mO'l'MENT, ..
Undllr Rev. St. U. S. S. 5488, the offense of knowingly presenting for payment or approval to any oftlcer in the civil, military or naval service of the United States any false or. fraudulent claim against the United States, an indictment averring the presentation of sucn a olaim to "G. T., .then late marshal of the United States. he being then and there an otl1oer in the oivil servioe of the United States," is not insuftlcient or repugnant, since a marsbal. after the expiration of his term, is still an oftlcer for.th.e purpose of serving prooess then in his hands, and for aettl1ng his accounts with the government.
.. 8A.M:E-S\Tl!'FIOIENCY.
An aVclrment t.hat thf).accused, claiming to be a deputy-marshal of the United States, presented a olaimagainst the government of the United States, "purportingtQ have been for services rendered and payments made by said deputy-marshal" in a oriminal proceediJ;lg mentioned, befor", a oertain United States oommissioner, 8uftlciently shows thali the servicea were performed and payments made for the United States, in the defendant's capacity as'deputy United States marshal.