# Kohl v. United States
## Dissenting Opinion

    Field
United States Supreme Court
91 U.S. 367
Kohl v. United States
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.
2. If the proceeding was properly brought in the Circuit Court, then the act of Congress of June 1, 1872, 17 Stat. 522, requires that it shall conform to the provisions of the law of the State in a like proceeding in a State court. The eighth section of the act of Ohio of April 23, 1872, 69 Ohio Laws, 88, secures to the owner of 'each separate parcel' of property a separate trial, verdict, and judgment. The court below erred in refusing this demand of the plaintiff.
Mr. Assistant Attorney-General Edwin B. Smith, contra.
1. The right of eminent domain is an 'inseparable incident of sovereignty.' Giesy v. C. W. & T. R.R. Co., 4 Ohio St. 323, 324; West River Bridge v. Dix, 6 How. 507; 2 Kent, 339; Cooley, Const. Lim. 526.
Of course the right of the United States is superior to that of any State. Dobbins v. Comms., 16 Pet. 447.
The authority to purchase includes the right of condemnation. 4 Kent's Com. 372; Burt v. Ins. Co., 106 Mass. 364; 7 Opinions of Att'y-Gen. 114.
Congress, by the use of the term 'condemnation,' indicated an expectation that it might and would be resorted to.
The legislature of Ohio concurred in this view of the power and necessity of such action, and passed an act of expropriation. 69 Ohio Laws, 81. But the right of a State to act as an agent of the Federal government, in actually making the seizure, has been denied. 23 Mich. 471.
The power to establish post-offices includes the right to acquire sites therefor, and by appropriation if necessary. Dickey v. Turnpike Co., 7 Dana, 113; 2 Story on Const., sect. 1146.
Original cognizance 'of all suits of a civil nature at common law or in equity,' where the United States are plaintiffs or petitioners, is given to the Circuit Court of the United States.
'The term [suit] is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.' 2 Pet. 464.
No provision of local law confining a remedy to a State court can affect a suitor's right to resort to the Federal tribunals. Hyde v. Stone, 20 How. 170; Payne v. Hook, 7 Wall. 425; Railway Co. v. Whitton, 13 id. 270.
Therefore the United States had the right to pursue in the Circuit Court the remedy given by the legislature of Ohio, 70 Ohio Laws, 36.
2. The power to consolidate different suits by various parties, so as to determine a general question by a single trial, is expressly given by act of July 22, 1833. 3 Stat.; 21 R. S., ch. 18, sect. 921, p. 175.
The statute of Ohio, 69 Ohio Laws, 88, requires that the trial be had as to each parcel of land taken, not as to separate interest in each parcel.
MR. JUSTICE STRONG delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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