H. A. A. Smith, auditor as aforesaid, has failed and refused
and still fails and refuses to audit, issue and deliver the said
warrant, voucher or pay check for full amount of $500, United
States currency, and is unlawfully withholding the same from
your petitioner to secure the payment of an alleged indebted-
ness, which the said H. A. A. Smith, as auditor of the Panama
Canal, unlawfully claims and pretends is due from your peti-
tioner unto the Panama Canal or to the United States Govern-
ment, and although your petitioner has made due demand, the
said H. A. A. Smith, auditor of the Panama Canal, has failed
and refused, and still fails and refuses to issue and deliver said
warrant, voucher or pay check, as is his legal duty so to do.
Eighth. That your petitioner is not indebted in any sum or
sums whatsoever unto the Panama Canal or unto the United
States Government, nor was he so indebted in the month of
December, 1914, or in the month of March. 1916, and that
there is no judgment, lien or lawful order whereby the said
warrants, vouchers or pay checks may lawfully be withheld
from your petitioner by the said H. A. A. Smith, auditor of
the Panama Canal, to secure or satisfy any alleged or pre-
tended indebtedness due from your petitioner unto the Panama
Canal or the United States Government.
Ninth. That the action of the said H. A. A. Smith, auditor
of the Panama Canal, in withholding the issuance and delivery
to your petitioner of the warrants, vouchers or pay checks
above mentioned, tends to and does deprive your petitioner of
rights, privileges and immunities guaranteed and preserved to
him under the Constitution of the United States, under the laws
of the United States, and under the laws of the Canal Zone.
MANDAMUS. 365
Tenth. Your petitioner further avers that the action of the
said H. A. A. Smith, auditor of the Panama Canal, in failing
and refusing to audit, issue and deliver to your petitioner, the
warrants, vouchers and pay checks for services performed as
hereinbefore set forth, tends to and does deprive your peti-
tioner of his property without due process of law.
Eleventh. Your petitioner further alleges that there is no
other plain, speedy or adequate remedy by which his rights,
privileges, immunities and property may be protected and pre-
served, save that a writ of mandamus issue out of this honor-
able court, directed to the said H. A. A. Smith, auditor of the
Panama Canal, commanding him, the said H. A. A. Smith,
auditor of the Panama Canal, to audit, issue and deliver unto
your petitioner, the warrants, vouchers or pay checks in the
sums of $170.07 and $500, United States currency, respectively,
in payment for the services performed by your petitioner as
judge of the district court of the Canal Zone, during the months
of December, 1914, and March, 1916.
Wherefore, your petitioner being without remedy other than
that sought herein, respectfully prays that a peremptory writ
of mandamus issue out of this court directed to the said H. A.
A. Smith, auditor of the Panama Canal, and commanding him
as such auditor of the Panama Canal, to audit, draw, issue and
deliver unto your petitioner, the warrants, vouchers or pay
checks for the said amounts and sums of $170.07 and $50Q
United States currency, and to do and perform such other acts
and things as may be necessary and proper in the premises.
And your petitioner further prays all such other and further,
or different relief in the premises as may be deemed just and
proper and as the exigencies of the case may require.
A. B. and C. D.,
Solicitors for Wm. H. Jackson, Relator.
[Verification.']
366 SUITS AT LAW.
No. 289.
Peremptory Writ of Mandamus to United States Auditor.
[Caption.]
To the Auditor of the Panama Canal,
H. A. A. Smith, Auditor of the Panama Canal, Greeting:
This cause coming on to be heard by the court, and without
a jury by agreement of the parties, upon the petition for writ
of mandamus, the amended petition for writ of mandamus,
the answer of the respondent, the reply of the relator, the
amended and supplemental petition for writ of mandamus, and
the answer of the respondent thereto; and after argument of
counsel, and the court being fully advised in the premises, it is
considered, ordered and adjudged by the court, that the re-
spondent, the auditor of the Panama Canal, has unlawfully
withheld from the salary due to the relator as judge of the
district court of the Canal Zone the follows sums :
For the month of December, 1914 $107.07
For the month of January. 1916 66.66
For the month of March. 1916 500.00
For the month of April, 1916 341.97
For the month of May, 1916 53.06
It is further considered, ordered and adjudged by the court
that the total sum, $1,131.76, above mentioned, is a part of the
salary due to the relator as judge of the district court of the
Canal Zone, hitherto appropriated under an Act of Congress,
and that the relator is entitled to receive and be paid the full
sum of the annual stipend appropriated by the Congress as
aforesaid, in monthly installments of $500, and that it was the
legal duty of the auditor of the Panama Canal, the respondent
herein, to issue, audit and deliver to the relator the warrant,
voucher or pay check for the payment of the salary and the
MANDAMUS. 367
above amount due -to the relator. and to cause the said warrant,
voucher or pay check to be paid by the paymaster of the Pan-
ama Canal to the relator, and to do and perform any and all
other acts and things by la\v required of the said auditor of the
Panama Canal the respondent herein, in the performance of
this ministerial duty, to the end that the said William H. Jack-
son, judge of the district court of the Canal Zone, the relator
herein, may receive and be paid the salary and the above
amount to which he is legally entitled by reason of his office
and the appropriation made by the Congress for the payment
of the same.
And it is further considered, ordered and adjudged by the
court that the funds appropriated by the Congress for the pay-
ment of the salary of the relator herein are now in the custody
or under the control of the auditor of the Panama Canal, the
respondent herein, and that the said auditor of the Panama
Canal, the respondent, is charged with the duty -of disbursing
said funds in the manner required by law, and that the said
auditor of the Panama Canal, the respondent, has neglected,
failed and refused to perform his ministerial duty enjoined by
law : and it is further considered, ordered and adjudged by the
court, being of the opinion that the relator is entitled to the
relief prayed for in his petition, and therefore you, the said
auditor of the Panama Canal, the respondent herein, are hereby
commanded and enjoined that immediately upon the receipt of
this writ, and without delay, you audit, issue and deliver to the
said \YiIliam H. Jackson, as the judge of the district court of
the Canal Zone, the relator herein, the warrant, voucher or pay
check for the sum of $1.131.76. unlawfully withheld by the
auditor of the Panama Canal, the respondent herein, from the
salary due to this relator. and to cause the same to be paid out
of the funds appropriated by the Congress as aforesaid : and
it is further considered, ordered and adjudged that you certify
perfect obedience and due compliance with this judgment and
368 SUITS AT LAW.
mandate to this court at its session to be held at the hour of
10 o'clock in the forenoon of Tuesday, the 18th day of July,
A. D. 1916. And it is further ordered that the relator recover
his costs in this behalf.
Herein fail not.
Witness the Honorable Henry D., Clayton, United States
district judge for the middle and northern districts of Ala-
bama, presiding in the district court of the Canal Zone by
designation of the President under the Act of Congress ap-
proved August 24, 1912, this llth day of July, A. D. 1916.
(Signed) H. D. CLAYTON,
United States District Judge.
No. 290.
Marshal's Return of Writ of Mandamus.
[Caption.]
The within writ of mandamus was served by me at Balboa
Heights, Canal Zone, on July 12, 1916, on Ad. Faure, the act-
ing auditor of the Panama Canal, by delivering to him a true
copy of the writ. H. A. A. Smith, the auditor of the Panama
Canal, respondent above named, can not now be served with
the writ by icason of his absence from the Canal Zone.
(Signed) WM. H. MAY,
Marshal for the District of the Canal Zone.
(Signed) By JOHN H. POOLE,
Deputy Marshal.
CONDEMNATION PROCEEDINGS. 369
CONDEMNATION PROCEEDINGS.
No. 291.
Petition to Condemn Land for a Government Lighthouse.
To the District Court of the United States for the Dis-
trict of .
In the matter of the petition of the United States of America
for the condemnation of lots I and 2, block i of C.'s
first addition to M. City, situate in the village of ,
county of - , state of , for the use of the peti-
tioner for government lighthouse purposes.
The petitioners, the United States of America, by J. H.,
the attorney of the United States for the district of ,
respectfully shows to the court that under the provisions of
sections 4653 to 4680, inclusive, of the Revised Statutes of the
United States and the amendments thereto, the said lighthouse
board is required to perform all the administrative duties re-
lating to the construction, illumination inspection and superin-
tendence of lighthouses and their appendages, and keeping
in good repair of the said lighthouses, under the superin-
tendence of the secretary of the treasury of the United States,
the ex-officio president of said board.
Your petitioners further show that negotiations were had
in the year nineteen hundred and under the direction
and with the approval of the said lighthouse board to acquire
by purchase the land hereinafter described, for the purpose
and reasons hereinafter mentioned, and that the said negotia-
tions proceeded to the execution of a deed of said land to the
United- States of America, but after an examination by the
then attorney of the United States for the district of
370 SUITS AT LAW.
, of the said deed and the papers relating to the title to the
said land, the same were not approved, for the reason that the
village of claimed the said lands as a park under the
dedication made to said village by one E. C. in the year
eighteen hundred and seventy, and your petitioner has been
unable to obtain the title to said land by purchase.
Your petitioners further show that the land on which the
Old Point light station now is, situate in the county of ,
in the division of the district of , is entirely
inadequate for the purpose of the said lighthouse, and that
the said secretary of the treasury has been authorized to
procure real estate for public use as an addition to the said
land now occupied by the Old Point light station aforesaid;
that in the opinion of the said secretary of the treasury it is
necessary and advantageous to the government that the land
hereinafter described be immediately acquired for your peti-
tioners, the United States of America, by condemnation under
judicial proceedings, to be used with the land now occupied
by the lighthouse aforesaid and to be used for lighthouse
purposes in connection with and as a part thereof; that the
said secretary of the treasury has made application to the
attorney-general of the United States under and in accordance
with the provisions of the Act of Congress of August i,
1888, entitled, " An Act to authorize condemnation of land
for sites of public buildings, and for other purposes," to cause
proceedings to be commenced for the condemnation of the
land hereinafter described, and that the said attorney-general
has directed the said J. N., United States attorney aforesaid,
to commence proceedings for the condemnation of said land
hereinafter described, for the purpose aforesaid.
Your petitioners further show that the land it desires to
acquire for the purposes aforesaid is described as follows,
to wit: [Here describe the property to be condemned^]
Your petitioners further show that said land is now 'owned
by one M. M., and that the village of , a municipal cor-
CONDEMNATION PROCEEDINGS. 371
poration in the county 01 , state of , claims to have
an interest therein by virtue of a conveyance made by one E.
C. in the year eighteen hundred and seventy dedicating the
said land to public uses as a park, and that the foregoing sets
forth the condition of the title to said land so far as the same
can be ascertained from the public records or can be ascer-
tained from actual occupants, and enquiries made by officials
of the petitioner.
Your petitioners further show that this petition is made
and presented for the purpose of acquiring the title and own-
ership of the lands above described to and for the use of your
petitioners, the United States of America, for lighthouse pur-
poses as aforesaid, by condemnation under the process and
proceedings of this court, as provided in the Act of Congress
of August i, 1888, entitled "An Act to authorize the con-
demnation of land for sites of public buildings, and for other
purposes," and that an appropriation was made in the Sundry
Civil Appropriation Act of March 3, 1891, for lighthouse
station at the site aforesaid, and that sufficient of such funds
are now available to pay a just and due compensation for
the lands hereinbefore described and which your petitioner
desires to acquire by this proceeding.
And your petitioners further show that the said secretary
of treasury of the United States has in all respects complied
with the Acts of Congress hereinbefore referred to, and with
all other provisions of law in regard to the acquisition and
condemnation by the United States of the land hereinbefore
described for public uses aforesaid.
Your petitioner therefore prays that said lands may be
condemned under the process and proceedings of this court
for the public uses and purposes aforesaid, and that the title
thereto may be confirmed in and to your petitioner, the
United States of America, upon payment by your petitioners
of a just and due compensation to the owner or owners there-
of, and that the said M. M. and the said village of ,
372
SUITS AT LAW.
and all other persons or corporations, municipal or otherwise
interested in said land or any part thereof, may be summoned
to appear before this honorable court and answer this petition
and show cause, if any they have, against the same.
J. H.,
Attorney of the United States for the
district of , who appears for
the petitioner by direction of the At-
torney-General of the United States.
No. 292.
Petition to Condemn Land by United States for a Public
Building.
^C option.']
Now comes the United States of America by J. H., United
States attorney for the district of , and represents
that, by an Act of Congress of the United States, approved
March 3, 1899, entitled "An Act to provide for a public
building at Cleveland, Ohio," the secretary of the treasury
of the United States was authorized and directed to purchase,
acquire by condemnation, or otherwise, the block of land
located in the city of Cleveland, which is bounded by Rock-
well street on the north, by Wood street on the east, by
Superior street on the south, and on the west by land now
owned by the United States, upon which the postoffice or
government building is located, as and for a site for a new
United States public building, including fire-proof vaults,
heating and ventilating apparatus, elevators and approaches,
for the use and accommodation of the United States post-
office, custom house, internal revenue office, United States
Circuit and District Courts, signal service, weather bureau,
pension office and other government offices, in the city of
Cleveland and state of Ohio, provided, that the secretary of the
CONDEMNATION PROCEEDINGS. 373
treasury can purchase the said property at a reasonable price.
Plaintiff further represents that, in the opinion of the said
secretary of the treasury of the United States, it has become
necessary and advantageous to the government to acquire the
said premises by condemnation, under judicial process; the
said property to be used as a site upon which to erect a new
government building, as set forth in the Act of March 3,
1899.
That on the i/th day of August, 1899, the secretary of
the treasury of the United States made application to the
attorney-general of the United States to commence proceed-
ings for the condemnation of the said lands; and, on the 2ist
day of August, 1899, the attorney-general of the United
States instructed the United States attorney for the northern
district of Ohio to institute proceedings for the condemnation
of the lands described in the Act of March 3, 1899, a copy of
which letter is hereto attached, marked Exhibit " A " ; and
these proceedings are brought under instructions from the
department of justice of the United States, and under the Act
of Congress approved August i, 1888, entitled " An Act to
authorize condemnation of land for sites of public buildings,
and for other purposes."
Plaintiff says that said land to be appropriated by the
United States for the purposes aforesaid, is more particu-
larly described as follows:
Parcel No. i : Situated in the city of Cleveland, county of
Cuyahoga and state of Ohio, and being a part of original two-
acre lot No. 64, and bounded on the north by Rockwell street,
on the east by Wood street, on the south by Superior street,
and on the west by a street called Case Place, and being the
property deeded to the Cleveland Library Association (now
Case Library) by Leonard Case, July i, 1876.
Parcel No. 2 : Situated in the city of Cleveland, county of
Cuyahoga and state of Ohio, and known as a part of original
two-acre lots Nos. 63 and 64, and known as Case place, so-
374
SUITS AT LAW.
called, bounded on the north by Rockwell street, on the east
by the property above described, on the south by Superior
street, and on the west by land deeded to the United States
by Leonard Case, May 18, 1859.
A plat of said parcels of land is attached to this petition,
marked Exhibit " B," and made a part hereof.
Plaintiff further says that the said first parcel has erected
thereon a brick and stone structure, called the Case Library
building, which building is owned by the Case library; and
that the defendants, William Bingham, Henry C. Ranney,
Samuel E. Williamson, James Barnett and Charles W. Bing-
ham, are trustees of the said Case library.
That the defendants, The Citizens' Savings & Loan Asso-
ciation, Walton Bros., C. H. Estinghaisen, Francis J. Wing,
C. B. Squire, The Savings Building & Loan Company, James
J. Tracy, John Coon and Levi T. Scofield, have, or claim to
have, some right, title or interest as lessees of portions of the
said building, the exact nature of which is unknown to this
plaintiff.
That the defendants, [naming them] are, so far as known
to this plaintiff, the heirs at law of Leonard Case, and have,
or claim to have, some right, title or interest in and to the
land above described, the exact nature of which is unknown
to this plaintiff.
That the defendant, the city of Cleveland, has, or claims
to have, some right, title or interest in and to the property
described as said second parcel, the same having been deeded
to the city as and for a street.
Wherefore the said plaintiff, the United States of America,
prays the court that a jury may be empaneled for an inquiry
and assessment of the compensation to be paid by the said
United States of America for the said property, as described
and set forth in this petition, and that, upon payment intc
court, or to the proper owners, defendants herein, by the
United States, of an amount of compensation equal to the
CONDEMNATION PROCEEDINGS. 375
sum so assessed by the jury as the value of the land above de-
scribed, with the buildings thereon, that possession may be
awarded it by this court, according to law; and that the ab-
solute title to the said property by, and thereby vest, in the
said United States, for the purposes aforesaid, and that the
court will divide the sum so paid, and order its distribution
among the several claimants, as to their respective rights here-
in ; and for such other and further orders as may be proper in
proceedings for the condemnation of private property to the
public use aforesaid.
And your petitioner further prays that process be duly is-
sued by this honorable court requiring the said parties de-
fendant to appear before this court on a day set by a judge
thereof for the hearing of this petition, then and there to
make answer to this petition, and to abide the further order
and judgment of the court in the premises.
J. H.,
United States Attorney, Northern District of Ohio.
The United States of America, Northern District of Ohio, ss.
J. H., being duly sworn, says that he is the attorney of
the United States for the .Northern District of Ohio, duly au-
thorized in the premises; that the facts set forth in said peti-
tion are within the personal knowledge of affiant; and that
the facts and allegations therein stated are true, as he verily
believes.
J. H.
Sworn to before me by the said J. H., and by him subscribed
in my presence, this day of , A. D.
B. R.,
Clerk U. S. Circuit Court.
(1) Taken from the record in Avery v. U. S. 104 Fed. 711, 44 C
C. A. 161.
As to the right to appropriate property for public uses subject to the
constitutional limitations see Kohl v. U. S. 91 U. S. 367; U. S. v. Jones,
109 U. S. 513; Shoemaker v. U. S., 147 U. S. 282; U. S. v. Gettysburg
376 SUITS AT LAW.
Elec. Ry. Co., 160 U. S. 668; Cooky's Const. Limitation, 526; U. S.
Const., Art. 5, last clause.
The proceedings are on the common law side of the court, and
conform as near as may be to the practice, pleadings and forms of
proceedings in the state court. Act of August 1, 1882, 21 Stat. L. 357,
1 Supp. 601. In re Secretary of the Treasury, 45 Fed. 397. Same
case on appeal sub nom. Carlisle v. Cooper, 64 Fed. 472, 12 C. C.
A. 235.
The proceedings are ordinarily had in the circuit court but the
district court has jurisdiction to condemn lands for fortifications.
Act of August 18, 1890, 26 Stat. L. 316; U. S. v. Engeman, 45 Fed.
546.
The petition should be in the name of the United States.
See In re Rugheimer, 36 Fed. 375, and by the direction of the
attorney general upon the application of the secretary of the treasury.
U. S. v. Gettysburg Elec. Ry. Co., 160 U. S. 668.
Condemnation proceedings have been provided in rather recent
times for the acquisition of various kinds of property deemed neces-
sary for government purposes, military, naval, or other, such as:
For aviation purposes Acts of Aug. 29, 1916, 39 Stat. L. 622; June
15, 1917, 40 Stat. L. 182; July 27, 1917, 40 Stat. L. 247.
For quarantine stations Act of June 19, 1906, 36 Stat. L. 299.
For military purposes Acts of July 2, 1917, 40 Stat. L. 241; April
11, 1918, chap. 51, 40 Stat. L. ; July 9, 1918, chap. 143, XV, 40 Stat.
L. .
Aircraft patents Act May 4, 1917, 39 Stat. L. 1169.
Dams Acts of June 21, 1906, 34 Stat. L. 386; June 23, 1910, 36.
Stat. L. 595.
No. 293.
Petition to Condemn Land under a State Statute of Eminent
Domain (1).
The District Court of the United States, District of Idaho.
Postal Telegraph-Cable Company of
Idaho (a Corporation), Plaintiff,
vs.
Oregon Short Line Railroad Company
(a Corporation), Defendant.
And now Comes the said plaintiff, leave of court first having
been had and obtained, and files this complaint in the consoli-
CONDEMNATION PROCEEDINGS. 377
dated action of the Postal Telegraph-Cable Company of Idaho
(a corporation ), plaintiff, vs. Oregon Short Line Railroad Com-
pany (a corporation), defendant, removed to this court from
the Fifth Judicial District Courfc of the county of Oneida, state
of Idaho, and a like entitled cause removed to this court from
the Fifth Judicial District Court of the county of Bannock, in
tike state of Idaho ; and a like entitled cause removed to this
cowrt from the Fifth Judicial District Court of the county of
Bingham, in the state of Idaho; and a like entitled cause re-
moved to this court from the Fifth Judicial Court of the county
of Fremont, in the state of Idaho, and alleges :
First. That the Postal Telegraph-Cable Company, plaintiff
herein, is and at all times herein mentioned was a- corporation
duly incorporated under the laws of the state of Idaho, and
doing business in the state of Idaho.