ERROR to the Circuit Court of the United States for the Southern District of Ohio.
This was a proceeding instituted by the United States to appropriate a parcel of land in the city of Cincinnati as a site for a post-office and other public uses.
The plaintiffs in error owned a perpetual leasehold estate in a portion of the property sought to be appropriated. They moved to dismiss the proceeding on the ground of want of jurisdiction; which motion was overruled. They then demanded a separate trial of the value of their estate in the property; which demand the court also overruled. To these rulings of the court the plaintiffs in error here excepted. Judgment was rendered in favor of the United States.
There are three acts of Congress which have reference to the acquisition of a site for a post-office in Cincinnati. The first, approved March 2, 1872, 17 Stat. 39, is as follows:--
'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to purchase a central and suitable site in the city of Cincinnati, Ohio, for the erection of a building for the accommodation of the United States courts, custom-house, United States depository, post-office, internal-revenue and pension offices, at a cost not exceeding three hundred thousand dollars; provided that no money which may hereafter be appropriated for this purpose shall be used or expended in the purchase of said site until a valid title thereto shall be vested in the United States, and until the State of Ohio shall cede its jurisdiction over the same, and shall duly release and relinquish to the United States the right to tax or in any way assess said site and the property of the United States that may be thereon during the time that the United States shall be or remain the owner thereof.'
In the Appropriation Act of June 10, 1872, 17 Stat. 352, a further provision was made as follows:--
'To commence the erection of a building at Cincinnati, Ohio, for the accommodation of the United States courts, custom-house, United States depository, post-office, internal-revenue and pension offices, and for the purchase, at private sale or by condemnation, of ground for a site therefor,-the entire cost of completion of which building is hereby limited to two million two hundred and fifty thousand dollars (inclusive of the cost of the site of the same), seven hundred thousand dollars; and the act of March 12, 1872, authorizing the purchase of a site therefor, is hereby so amended as to limit the cost of the site to a sum not exceeding five hundred thousand dollars.'
And in the subsequent Appropriation Act of March 3, 1873, 17 Stat. 523, a further provision was inserted as follows:--
'For purchase of site for the building for custom-house and post-office at Cincinnati, Ohio, seven hundred and fifty thousand dollars.'
Mr. E. W. Kittredge for plaintiffs in error.
1. For upwards of eighty years, no act of Congress was passed for the exercise of the right of eminent domain in the States, or for acquiring property for Federal purposes otherwise than by purchase, or by appropriation under the authority of State laws in State tribunals. A change of policy by Congress in this regard should not be supposed, unless the act is explicit. We do not raise the question as to the existence of the right of eminent domain in the national government; but Congress has never given to the Circuit Court jurisdiction of proceedings for the condemnation of property brought by the United States in the assertion or enforcement of that right.
In view of the uniform practice of the government, the provision in the act of Congress 'for the purchase at private sale or by condemnation''' means that the land was to be obtained under the authority of the State government in the exercise of its power of eminent domain. This is apparent from the language of the same section of the act of Congress of June 10, 1872, which appropriated a further sum for the 'purchase' of a site in Cincinnati, and also appropriated money 'to obtain by purchase, or to obtain by condemnation in the courts of the State of Massachusetts,' a site for a post-office in Boston.
In this case, the State delegates its sovereign power of eminent domain. The United States, if it accepts this grant of power, accepts it as other corporations do, as the agent of the State, and must exercise it in the mode and by the tribunal which the State has prescribed.