chapter 13, Laws of 1917, the owner's title to the premises vested in the state before the ascertainment and payment of compensation, it seems to us quite clear that the law, construed alone, is unconstitutional. It does not comply with the language of Chancellor Walworth in Bloodgood v. R. R. Co., supra, that

"An adequate and certain remedy must be provided whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation."

It does not comply with the language of Chief Judge Nelson in People v. Hayden, supra, that—

"The settled doctrine, even as it respects the state itself, that, at least, certain and ample provision must be first made by law (except in cases of public emergency) so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay."

It does not comply with the language of Chief Judge Andrews in Sage v. City of Brooklyn, supra, that—

"The pledge of the faith and credit of the state, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law."

It does not comply with the test laid down by Judge Werner in Litchfield v. Pond, supra, that

"While payment need not precede the taking, the provision for compensation must not only pre-exist, but it must be so definite and certain as to leave nothing open to litigation except the title to the property taken and the amount of damages which the owner may recover."

We think that, to make chapter 13 of the Laws of 1917 constitutional, it must be accompanied by a law appropriating public funds to pay such an award as the court of claims shall make. The amount of the compensation is a judicial, and not a legislative, question. Still an appropriation law must be passed, because in no other way can compensation be secured in accordance with the provisions of the Constitution and the long-established practice under it.

The necessity of an appropriation act was recognized in this very case, because a bill appropriating $1,000,000, or so much thereof as might be necessary, passed both houses of the Legislature just before the temporary restraining order was granted herein, and the affidavits. inform us that a bill has passed the Senate appropriating $2,500,000, or as much thereof as may be necessary, for the same purpose.

The Legislature, by appropriating a sum or so much thereof as may be necessary to pay any award the court of claims shall make, does not limit or define the amount of the recovery. In our opinion, the appropriation should be of such an amount as is quite certain to cover any award that can reasonably be made. It is safer and fairer to the citizen to fix an amount too large than too small. The affidavits of experts submitted on behalf of the complainant go as high as $2,000,000, while the defendants show that the assessment for local

taxation of the whole tract, half as large again as the part sought to be condemned, is but $865,000, and that the vice president of the complainant in a verified return for the purposes of state taxation stated that to be its actual value. This court expresses and has no opinion whatever about the proper amount of compensation, and takes it for granted that the court of claims will determine the value upon proper proofs, unaffected in any way by the amount of the sum appropriated by the Legislature.

[5] No such emergency exists as is excepted in some of the foregoing cases, justifying the commandeering of private property for public use without any proceedings at all. The premises are now, with the owner's consent, in the possession of the state; temporary fortifications are being made. The only existing stay is that title shall not vest in the state until a method for recovering the owner's compensation shall be provided. The Legislature, being now in session, is entirely able to enact an appropriate law.

The interlocutory injunction as prayed for is granted, but upon the enactment of a law appropriating a sum not less than $2,000,000, or so much thereof as may be necessary, it will be vacated.

ROGERS, Circuit Judge. I concur in the foregoing opinion of Judge WARD.

[6] In the earlier years, when the United States desired land within the limits of a state for federal purposes, it was the practice to proceed in a state court and under a state statute. See U. S. v. Dumplin Island, 1 Barb. (N. Y.) 24; Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merchants' Ins. Co., 106 Mass. 356, 8 Am. Rep. 339. But in 1871 the Supreme Court of Michigan, speaking through Judge Cooley, in People ex rel. Trombley v. Humphrey, 23 Mich. 471, 9 Am. Rep. 94, held that the state could not condemn for the federal government. "In the first place," the opinion declared, "there can be no necessity for the exercise of this right by the states for this purpose, for the authority of the nation is ample for the supply of its own needs in this regard under all circumstances. In the second place, the eminent domain in any sovereignty exists only for its own purposes; and to furnish machinery to the general government under, and by means of, which it is to appropriate lands for national objects is not among the ends contemplated in the creation of the state government."

And in 1875 the Supreme Court of the United States in Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 449, in an opinion written by Justice Strong, not only held that the government of the United States had as a sovereign within its sphere the power to appropriate land within a state for its public use, and was not under the necessity of applying to a state government to condemn the property, but the opinion of Judge Cooley in the Trombley Case was expressly approved, as being based on the better reason. In 1914, in State v. Milwaukee, 156 Wis. 549, 146 N. W. 775, the Supreme Court of Wisconsin held that the fact that land sought to be condemned by a city for the improvement of its river harbor was to be conveyed to the United States as a condition of receiving a federal appropriation did not affect the right

of the city to condemn the property. This was upon the theory that the authority of the city or state; such as it is fixed by the law, would be in no wise impaired by the grant. "It is," said the court, “as if the city by the authority of the Legislature of the state should convey to the United States by deed a public highway. This * * * would not make the highway any less a public use, would carry no proprietary interest therein, because the city and the state had none, * * * and would not diminish the city or state authority over it; for, as said before, that is not to be conveyed by deed." The court thought the case readily distinguishable from Trombley v. Humphrey, supra, and that it was rather controlled by the principle of Lancey v. King Co., 15 Wash. 9, 45 Pac. 645, 34 L. R. A. 817.

The power to condemn sites for forts, lighthouses, post offices, and custom houses is in the United States, and, when property is needed for the purposes specified, it should not be condemned by the state, as it is not being taken for its public use. In the latest work on this subject, Nichols on Eminent Domain, vol. 1, § 34 (1917), that writer declares:

"It is now, however, generally considered to be the sounder rule that a state cannot authorize the exercise of eminent domain except for the use of its own people, and that consequently state cannot authorize the taking of property within its jurisdiction for the use of the United States in carrying out the public and governmental functions assigned exclusively to the United States by the Constitution."

The Legislature of New York has passed an act, and the Governor has signed it, under which, if requested to do so by any officer or agent of the United States duly authorized, the Governor may execute a deed of the land proposed to be taken, transferring title to the gov ernment of the United States, to be used for purposes of defense. The validity of the law is not invalidated by such a provision, in view of the fact that the state of New York is entitled to condemn land for its own public defense, and that this land, if it should thereafter be transferred to the United States, will still be used for the defense of the state. If the state were proposing to condemn a site to be used for a post office or a custom house, I should think the court should deny its power to do so, for plainly it would not be a taking for the use of the state, and therefore be beyond its right. But where it is proposed to take property for public defense, I do not see how the right of the state can be successfully challenged on the ground that under certain conditions the property may be transferred to the United States for the defense of the lives and property of the citizens of the state as well as citizens of the United States.

This leads to a consideration of the right of the owner of the land to compensation. The rule on that subject is stated in Cooley's Constitutional Limitations as follows:

"When the property is taken directly by the state, or by any municipal corporation by state authority, it has been repeatedly held not to be essen tial to the validity of a law for the exercise of the right of eminent domain

that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it."

And in Crozier v. Krupp, 224 U. S. 291, 32 Sup. Ct. 488, 56 L. Ed. 771 (1911), and in other cases in that court which need not be cited, the doctrine is laid down by the Supreme Court of the United States that compensation for property taken by the government under eminent domain need not necessarily be made in advance, if adequate. means be provided for a reasonably just and prompt ascertainment and payment thereof.

The Legislature of New York has passed an act appropriating $1,000,000 or so much of that sum as may be needed to pay for the land it is proposed to condemn. This the Governor has not yet signed. Another bill, we are informed, has passed the Senate, and is awaiting the action of the Assembly, appropriating $2,500,000 for the purpose of providing a fund which may be used in paying for this property. So that at this time no adequate means are provided whereby the owner of the property can be compensated for its taking. Until such means are provided, and reasonable, certain, and adequate provision is made for obtaining compensation, the Constitution protects the owner against the taking of his property.

The Rockaway-Pacific Corporation asks this court to believe that the property which it alleges that the state of New York proposes to take is worth upwards of $2,000,000. It supports this allegation by the affidavits of real estate experts of standing and character. The defendant, however, shows that the complainant in 1915 presented to the taxing officers of the state, upon the sworn affidavit of its official representative, that the entire property (one-half of which is now said to be worth upwards of $2,000,000) was worth the sum of $524,000, and that that was its true value. The plaintiff does not appear in a court of conscience in any too favorable light, asking it to exercise its discretion, and issue an injunction for the protection of the rights, which it now asserts are worth $2,000,000 and upwards. Nevertheless it has rights, and its stockholders have rights, which are not to be prejudiced by the conduct of its official representative. Moreover, the affidavits presented justify this court in seeing that a fund sufficiently large is provided to pay the true value of the land to be taken, whatever it may ultimately be ascertained to be in the tribunals authorized by law for its determination.

It may be conceded that in times of impending public danger, too urgent to admit of delay, private property may be taken for public use before compensation has been secured. But this court is not confronted by such an emergency. The Legislature of New York state is in session. The Senate of New York has passed a bill appropriating $2,000,000, if so much is needed, for the acquisition of this property. The passage of the bill through the Assembly and its signature by the Governor can be only a matter of hours. This is not, therefore, such an emergency as in my opinion justifies the taking without providing

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such securities for payment as the law entitles the owners to demand, and the injunction prayed should be granted.

HOUGH, Circuit Judge (dissenting in part). Plaintiff owns a piece of land at Rockaway Point, Queens county, a place within the boundaries of the city of New York. This land for purposes of local taxation, has never been assessed at as much as $900,000, and its assessed value has been reported under oath as its value for purposes of state taxation. Pursuant to chapter 13 of the Laws of 1917, the state of New York (as asserted in the bill) seeks to appropriate by the right of eminent domain about one-half of plaintiff's tract.

The method of procedure (not unfamiliar in this state) consists of filing a description of the land appropriated in the proper record office of Queens county, upon which filing title vests in the state; the statutory commissioners (defendants herein) being called upon, at or after such filing, to come to an agreement with the landowner as to the price to be paid; but, if such agreement cannot be reached, plaintiff is given the right of suing for what is alleged to be the proper value in the court of claims.

The bill alleges that the one-half of plaintiff's tract is worth $2,000,000, and seeks to enjoin the commissioners from filing the statutory description of the land, because (as is said) the statute under which they intend to act is unconstitutional, i. e., obnoxious to the national Constitution, in that plaintiff is about to be deprived of its property without due process of law, and to the state Constitution, in that private property is to be taken for a public purpose without just compensation.

The application for injunction pendente lite is matter of grace, and rests in the discretion of the court, which is justly influenced by the attitude of any person or party seeking injunctive relief.

The law has long required real property within the boundaries of New York City to be assessed for taxation substantially at its market value, and, for a longer period than the ownership by plaintiff of the land in question, it has been matter of notoriety that the real estate assessments in New York City were invariably very near, and very frequently above, the value of the land obtainable in the open market by an undisputed owner.

The discrepancy between the assessed value and the now asserted value of the land desired by the state is gross. Indeed, the difference between not over $450,000 and $2,000,000 cannot be overcome without imputing ignorance or dishonesty to the assessing officers or unusual exaggeration to the plaintiff's assertion. When it is noted that the assessed value was sworn to as the full value by an officer of plaintiff for the purpose of state taxation, the difficulty of accepting (even tentatively) the position of the plaintiff becomes insurmountable, and deprives the plaintiff of any right of appealing to the court, except such as may be found by necessary and strict adherence to ruling decisions.

Plaintiff invokes both the state and federal Constitution because of one act done, or one omission made, by the state, viz. the Legislature

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