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in error, being the defendant below. The return of service is in
"Received the within writ, September the 12th, 1882. I served the within summons on said township of Salamanca, Cherokee county, state of Kansas, by delivering a true and certified copy thereof to Joseph A. Jones, the last elected and qualified treasurer of said Salamanca township, in the county of, Cherokee, state and district of Kansas; and I made diligent search and inquiry for, but could not find, in the township of Salamanca, or county of Cherokee, state and district of Kansas, the last elected and qualified trustee or clerk of said within defendant, township of Salamanca. "All done this eighteenth day of September, A. D. 1882. "B. F. SIMPSON,
"U. S. M., Dist. of Kansas.
The controlling question certified is as follows:
"(2) Whether service of said summons upon Joseph A. Jones, the last elected and qualified treasurer of said township, after said Jones had removed out of said township and across the line into the adjoining township of Crawford, in said county of Cherokee, was good and sufficient service of said summons.
It is not denied that the service was good if Jones was, in law, the treasurer of the township when served. By the constitution of Kansas, art. 9, § 4, township officers, except justices of the peace, hold their offices one year from the Monday next succeeding their election, and until their successors are qualified. Jones was therefore presumptively in office when served, unless his removal across the line into Crawford township of itself created a vacancy. Borton v. Buck, 8 Kan. 302; Rheinhart v. State, 14 Kan. 318; Hubbard v. Crawford, 19 Kan. 570.
There is nothing in the constitution or laws of Kansas which requires a township treasurer to be a resident of or voter in the town. ship when elected or qualified; neither is there anything which vacates the office if the officer removes from the township during the term for which he was elected. Justices of the peace are township officers, and as to them it is expressly provided that they "shall reside and hold their office in the township for which they shall have been elected." Section 4, (5970,) Dass. Comp. Laws, (1879,) 978. As no similar provision is made in respect to any other township officer, the implication necessarily is that actual residence in the township is not required of them. Expressio unius est exclusio alterius. That residence, as a qualification for office, was in the minds of the framers of the constitution and of the legislature is apparent, for article 3, § 11, of the constitution, provides that all judicial officers "shall reside in their respective townships, counties, and districts during their respective terms of office;" article 2, § 4, that "no person shall be a member of the legislature who is not at the time of his election a qualified voter of and resident in the county or district for which he is elected;" and section 218 (1643) of the General Statutes, (Dass. Comp. Laws, 311,) that "ceasing to be an inhabitant of the county
for which he was elected or appointed" vacates the office of a county officer. Undoubtedly the removal of a township treasurer from a township may, under some circumstances, vacate his office and authorize the county commissioners to fill the place,-section 12, (1978,) Dass. Comp. Laws, 978;-but we think it does not necessarily vacate the office under all circumstances. In the present case the question is whether moving "across the line" into an adjoining township of itself has that effect. In our opinion it does not, and consequently we answer the second question certified in the affirmative.
The motion to set aside the service was therefore properly overruled, and the judgment is affirmed.
(109 U. S. 513)
UNITED STATES v. Jones, Adm'r, etc., and others.
(December 10, 1883.)
EMINENT DOMAIN-DAMAGES-DELEGATION OF POWER TO STATE COURTS.
The United States, in the exercise of the power of eminent domain, may lawfully delegate to a state court the ascertainment of damages.
In Error to the Supreme Court of the State of Wisconsin.
Sol. Gen. Phillips, for plaintiff in error.
N. S. Gilson, Geo. E. Sutherland, B. J. Stevens, and E. Mariner, for defendants in error.
FIELD, J. By an act of congress, passed on the eighth of August, 1846, certain lands were ceded to Wisconsin to aid in improving the navigation of Fox and Wisconsin rivers, in that state, and in constructing a canal to unite the rivers, and thus form a connection between the waters of Green bay, in Lake Michigan, and the waters of the Mississippi. St. 1846, c. 170.
The state accepted the cession of the lands, and in August, 1848, created a board of public works, under whose superintendence it placed the construction of the improvement contemplated. The work, however, was not done under that board; the means furnished proved inadequate. Various other attempts, therefore, were made by different companies created by the state to carry out the improvement, and in furtherance of it congress ceded additional lands; but none of these attempts proved successful. The improvement was only partially made.
In 1866, by various transfers, which it is unnecessary to detail, the lands ceded by congress, and the works of improvement, including the locks, dams, canals, and other structures connected with it, became the property of a corporation known as the Green Bay & Mississippi Canal Company.
In July, 1870, congress passed an act "for the improvement of water communication between the Mississippi river and Lake Michigan, by the Wisconsin and Fox rivers;" by which, among other things, the secretary of war was authorized to ascertain the sum which ought to be paid to the Green Bay & Mississippi Canal Company for the transfer of its property and rights of property in the line of water communication between Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much thereof as, in his judgment, should be needed; and for that purpose to join with the company in the appointment of a board of arbitrators.
In making their award, the arbitrators were required to take into consideration the amount of money obtained from the sale of lands ceded by congress to aid in the construction of the water communi. cation which was to be deducted from the valuation found by them. 16 St. c. 210.
Under this act arbitrators were appointed, the value of the works ascertained, and an award made, the amount of which having been paid, the entire property was, in 1872, conveyed to the United States. Since then the United States has been the owner and in possession of the works, and congress has made various appropriations to carry on and complete the improvement.
The arbitrators, in making their award, proceeded upon the principle that the United States should pay for the works what their construction had cost the state, and the companies succeeding to its interests, after making a reasonable abatement for wear and decay, and deductting the amount obtained from the sale of the ceded lands. Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States, no*account was taken of the liability of the company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States, and this question was submitted by the committee on commerce of the house of representatives to the secretary of war, and by him was referred to the assistant judge advocate general. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred, and devolved on the United States. Upon this opinion a bill was prepared for the assumption by them of the company's liability for such damages, which was passed by congress and approved on the third of March, 1875. This act provided that whenever, in the prosecution and maintenance of the improvement mentioned, it should become necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals or cut-offs, or to use any earth, quarries, or other material adjacent to the line of improvement and needful for its prosecution or maintenance, the officers in charge of the works might, in the name
of the United States, take possession of and use the same, after having first paid, or secured to be paid, the value thereof, “which may have been ascertained in the mode provided by the laws of the state" wherein the property lay.
The act also provided that in case any lands or other property were then or should be overflowed or injured by means of any part of the works of the improvement theretofore or thereafter constructed for which compensation was then or should become legally owing, and in the opinion of the officers in charge it should not be prudent to lower the dam or dams, the amount of such compensation might be "ascertained in like manner;" that the department of justice should represent the interest of the United States in legal proceedings under the act and for "flowage damages" previously occasioned, and that a portion of the appropriation made for the prosecution of the improvement, not exeeding in amount twenty-five thousand dollars, might be applied in payment for property and rights thus taken and used.
*In the previous year, 1874, the legislature of Wisconsin had passed a law providing for ascertaining the compensation to be made for damages caused to lands by their being overflowed or otherwise injured, or taken by the United States in the construction of any public works. It declared, among other things, that in case the lands of any person had been overflowed or injured or taken, or if it should be found necessary or proper thereafter to overflow, injure, or take the lands of any person for or by reason of the construction of
dam, bridge, lock, or pier, or the repair or enlargement thereof, or the construction, repair, or enlargement of any canal or other works of the United States government in the improvement of any harbor, river, or stream of water in the state, the compensation for damages sustained by the owner or owners of the lands overflowed, injured, or taken might be ascertained, determined, and paid in the manner prescribed in chapter 119 of the Laws of 1872, entitled “An act in relation to railroads and the organization of railroad companies,” for acquiring title to lands of railroad companies, and that all the provisions of such act properly applicable thereto should apply in the case of the overflow, injury, or taking of lands by the United States government for the purposes mentioned. Chapter 119 of the Laws of 1872, referred to in this act of 1874, prescribes the mode in which land may be condemned for railroad purposes. The company is to file a petition for the appointment of commissioners of appraisal with the clerk of the circuit court of the county in which the property is situated, containing, among other things, a description of the land desired and the names of parties interested in it. Notice is then to be given, by publication for three successive weeks in a newspaper of the county or adjoining county, of the filing of the petition, of the time and place of its presentation, and of the application for the appointment of commissioners. On the presentation of the petition, the parties whose interest may be affected by the proceeding are at liberty to show cause against its prayer. If no sufficient cause be shown, the court or judge may grant the petition and appoint three disinterested and competent freeholders, resident in the county or adjoining county, to ascertain and appraise the compensation to be made to the owner or owners of the property. Either party to the proceeding, if dissatisfied with the award rendered, may appeal from it to the circuit court, where a trial is to be had by a jury and the compensation fixed by them. The proceeding, so far as the ascertainment of compensation is concerned, there takes the form of a reg. ular action at law, in which the petitioner becomes the plaintiff and the contestants the defendants. The chapter also provides that the party interested in the land may institute and conduct the proceedings to a conclusion, if the company delay or omit to prosecute the
Under the legislation referred to, the present proceeding was insti. tuted by the defendants in error to recover the value of certain lands which had been overflowed by a dam constructed by the canal company in the prosecution of the improvement mentioned. In their petition they ask for the appointment of commissioners for the appraisal of certain lands, which are described, and of the damage caused to them by a dam constructed by the canal company, but owned by the United States, they having succeeded to the title and possession of the company. They also set forth the ownership of the lands, the injury to them from the dam causing the waters of Lake Winnebago to set back and overflow them, and that the dain cannot be maintained without a continuance of such injuries. All the allegations required by the statute were set forth. Commissioners were accordingly appointed, before whom the parties interested appeared, the United States being represented by counsel retained by the department of justice. They awarded the petitioners the sum of $8,000. From this award both parties appealed to the circuit court, where the case was tried before a jury. Previously, how- . ever, to its being empaneled, the defendants objected to the action of the court on three grounds: First, that it had no jurisdiction of them; second, that it had no jurisdiction to try a cause in which the United States were a party; and, third, that the act of congress of March 3, 1875, was unconstitutional in that it assumed to confer upon the state court authority to try a cause in which the United States were a party. These objections were overruled, and the trial resulted in a verdict for the plaintiffs for $10,000. The judgment entered thereon was affirmed by the supreme court of the state, and from that court the case is brought here on writ of error.
Various exceptions were taken to the rulings of the court on the trial, but as they do not involve any question of federal law they art not open for consideration here. The only point presented upon which we can pass relates to the jurisdiction of the court below; if that can be sustained, its judgment must be affirmed.