The Growth of Modern Doctrine
The sporadic authorization of federal takings for an arsenal and for military cemeteries did not change the law by itself, of course. Even after those statutes, Congress still frequently relied on the old system. (282) But judicial decisions soon thereafter endorsed a federal eminent domain power.
One blow to the old system was the Michigan Supreme Court's 1872 decision in Trombley v. Humphrey. Writing for the court, Justice Cooley held that a state taking for a federal project was not a taking for a "public use" under that state's constitution. (283) This was the objection that had been made by the challengers to the Washington Aqueduct and the other projects--that a state can take private property only for the use of the state's own people, not for the government generally. Justice Cooley may have been motivated by a narrow construction of the public use doctrine--his writings on the subject have been celebrated by modern critics who favor a revival of limits on the public use doctrine (284)--but he had also endorsed federal eminent domain in a confusing passage in his famous treatise a few years earlier. (285)
The result in Trombley is not inherently inconsistent with the original theory of federal eminent domain. The federal government was required to rely on the states to take, but the states did not have to cooperate. And if a state wanted to categorically refuse to take land for federal projects in its own constitution, that was a question of state law. To be sure, nearly every state had a public use requirement, and if every state had always followed the Trombley rule, the scheme of relying on states would not have worked. But Trombley was an unusual decision, and most states had not interpreted their constitutions in the same way.
The true creation of the federal eminent domain power came when the Supreme Court's decision in Kohl upheld a federal taking power for the first time. Yet the process leading to Kohl also reflects the ambiguity attending federal eminent domain in this period. While Congress had occasionally authorized eminent domain before Kohl, it had done so only recently and infrequently, and it did not actually do so (or need to do so) in Kohl itself. At the same time, once the Court manufactured the issue during litigation, the parties did not firmly resist it either. The federal eminent domain power had not yet become a firm part of national practice, yet understandings around it were rapidly changing.
The lack of statutory authorization can be discerned from the tangle of federal and state statutes in the case. In March 1872, Congress passed a statute "authoriz[ing] and direct[ing]" the Secretary of the Treasury "to purchase a central and suitable site in the city of Cincinnati, Ohio" for a federal building. (286) The bill also provided that no money could be spent for the purchase until Ohio consented to federal jurisdiction over the land. As usual, Congress did not grant any condemnation authority. Also as usual, the state did.
The first state statute in aid of the project, passed in April 1872, provided that the state would cede jurisdiction when "the United States shall have acquired the title to the said land or lands by purchase or grant, or by lawful appropriation under the right of eminent domain" (without specifying who would authorize any eminent domain proceeding). (287) A few days later the state passed a general reform of its eminent domain procedures. (288) That June, Congress repeated the state's passive reference to eminent domain, appropriating money "for the purchase, at private sale, or by condemnation, of ground for" the new building. (289) The following February, in 1873, Ohio finally clearly provided the condemnation authority in a statute authorizing the United States to "acquire ... land by appropriation" under the terms of its recently reformed general eminent domain statute, which required the United States to pay owners the adjudicated value of their parcels. (290)
In July 1873, the United States finally initiated the condemnation in federal court. In its application, the United States expressly relied on the state eminent domain power. The government represented that it "was authorized to acquire the land ... by appropriation" by the "act of the general assembly of the State of Ohi[o]." (291) It mentioned the federal statutes as well, but never suggested that they were the source of the condemnation power. (292) The case thus began as an ordinary federal-state taking, where there was no need to invoke federal eminent domain.
There was a state-law wrinkle, to be sure-the Kohls owned a leasehold in the property, and somebody else owned the rest of the estate. Both of those property interests were put to trial in a single proceeding, (293) even though under Ohio law, "the owner or owners of each separate parcel shall be entitled to a separate trial, verdict and judgment." (294) The Kohls maintained that their leasehold and their landlord's reversion were "separate parcels" under the law, and that their trials had been illegally combined, "put[ting] these parties into antagonism with each other before the jury." (295) But as the United States dismissively suggested in its appellate brief, the Ohio statute did not grant separate trials "to every interest in each parcel." (296) And the Supreme Court agreed that the lease and reversion could be tried together under Ohio law. (297) So nothing would have stopped the condemnation from going forward in the traditional manner. Instead of resting on these state law grounds, however, the United States devoted the bulk of its argument to the claim that state law did not matter, because the federal government had its own eminent domain power and did not need the state's. (298)
This brings us to the second odd thing about the Kohl litigation: the Kohls did not actually contest the existence of a federal eminent domain power. Below, one lawyer had argued "that the government did not possess the right of eminent domain." (299) But E.W. Kitteredge, who represented the Kohls, focused on statutory arguments-the federal government had not complied with the Ohio law, and there was no federal statute that authorized federal eminent domain.
And Kitteredge had a very good point. The first federal statute did not mention condemnation at all. The second, which was an appropriations statute, did, but there was no reason to think that the money was intended for a federal condemnation rather than the usual state condemnation. As the Kohls' appellate brief put it:
[I]n view of the uniform policy of the Government, when land was to be acquired by condemnation, to obtain it under the authority of the State Government, as the agent of the State in the exercise of its power of eminent domain, doubtless this mode of acquiring the property was in the contemplation of Congress. (300) The statutory argument was good enough for Justice Field, who dissented. He, like the Kohls, "assum[ed] that the majority are correct ... that the right of eminent domain within the States ... belongs to the Federal government." (301) But, he argued, "the provision for the exercise of the right must first be made by legislation," and Congress had not done so. (302) It had not vested the federal courts with jurisdiction over such claims, (303) and it had not given the Treasury Secretary the authority to condemn the land either. (304) (The jurisdictional and substantive points were intertwined; in finding jurisdiction, the majority had relied on the statutory "investment of the Secretary of the Treasury with power to obtain the land by condemnation." (305)) But it did not carry the day with the Court.
The opinion in Kohl was the product of strange circumstances. The constitutional question did not have to be decided. It was not fully joined by the parties, it was not invoked by Congress, and it was irrelevant because of the state statute. And the Court did not rely, as it might have, on the recent authorizations of eminent domain for the Rock Island arsenal or the Civil War cemeteries. Instead, it held that the uniform practice of the first seventy-five years had been mistaken, and in doing so made no reference to its prior statements in Pollard's Lessee or Goodtitle, where it had said exactly the opposite. (306)
The basic arc of this history should be striking. Congress's early practice was not to use federal eminent domain when it needed land for federal projects. The alternative path of relying on state takings began remarkably early, and with little to no criticism. The dissenters were late and relatively few. They began nearly thirty years after the Founding, and their arguments for the use of federal eminent domain repeatedly failed to carry the day. Even more than fifty years after the Founding, the Supreme Court still confirmed the absence of a federal eminent domain power.
To be sure, part of this history may reflect the actions of those motivated by politics or convenience rather than constitutional thought. For example, some might wonder whether the federal government relied on the state eminent domain power out of economic convenience rather than constitutional need. Recall that federal takings would have been governed by the Takings Clause, whereas some scholars have argued that state takings during this time period were frequently uncompensated. (307)
I have not surveyed all of the compensation paid in state takings for federal projects throughout this period, but I can provide several reasons to think that the economic hypothesis is overstated. For one thing, even though many states did not initially have takings clauses, compensation was often paid nonetheless. (308) And at least some early authorities thought that eminent domain inherently required compensation. (309) Moreover, federal projects continued to rely on state takings even later into the nineteenth century. This was after many...
Rethinking the federal eminent domain power.
|Position:||II. The History of Federal Takings F. The Growth of Modern Doctrine through Conclusion, with footnotes, p. 1785-1825|
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