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CITY OF DAVENPORT v. THREE-FIFTHS OF AN ACRE OF LAND

January 15, 1957

CITY OF DAVENPORT, A MUNICIPAL CORPORATION OF THE STATE OF IOWA, AND DAVENPORT BRIDGE COMMISSION, A POLICE BODY CORPORATE AND POLITIC OF THE STATE OF ILLINOIS, PLAINTIFFS,
v.
THREE-FIFTHS OF AN ACRE OF LAND, MORE OR LESS, LOCATED IN THE CITY OF MOLINE, ROCK ISLAND COUNTY ILLINOIS, CITY OF MOLINE, A MUNICIPAL CORPORATION OF THE STATE OF ILLINOIS, AND UNKNOWN OWNERS, DEFENDANTS.



The opinion of the court was delivered by: Mercer, District Judge.

This is an action for the condemnation of four parcels of land located in the City of Moline, Illinois, pursuant to authority granted the plaintiffs herein by the Congress of the United States in Public Law No. 566 of the 82d Congress, 66 Stat. 734.

The lands sought to be acquired in these proceedings are alleged to be necessary for the construction of improvements and additions to the Iowa-Illinois Memorial Bridge which spans the Mississippi River between Bettendorf, Iowa and Moline, Illinois. Public Law No. 566 of the 82d Congress authorizes the additions to the existing bridge, including the construction of a new span adjacent to and interconnecting to the existing span.

The act further confers upon the plaintiffs the power of eminent domain to acquire property necessary for such improvements and additions. This action was commenced under Rule 71A of the Rules of Civil Procedure, 28 U.S.C.A., seeking to exercise the powers so conferred. The defendant City of Moline has filed a motion to dismiss the complaint. The motion challenges the legal sufficiency of the complaint and raises the issue of law as to whether or not the plaintiffs have power and authority to condemn public property of the City of Moline under the allegations set forth in the complaint. Plaintiffs have filed countermotions for summary judgment.

The first issue presented by plaintiffs' motions relates to the failure of defendant City of Moline to answer the complaint as required by Rule 71A(e), of the Rules of Civil Procedure, which provides as follows:

In lieu of an answer as contemplated by the provisions of the above rule, the defendant filed a motion to dismiss although the rule specifically prohibits the filing of any pleading or motion other than an answer. The obvious purpose of Rule 71A(e) is to prevent delay and dilatory tactics on the part of the defendant. It is quite possible that the defendant, not having answered within 20 days, has waived any objections or defenses to the taking of its property. However, the Courts should and do construe the rules of civil procedure so as to work substantial justice in all cases and avoid a strict technical interpretation which might work a hardship on the litigants. With this in mind the Court will consider the motion to dismiss as an answer in order that the matter may be determined upon its merits rather than upon a strict construction of procedure. The defendant has had numerous opportunities to ask the Court that the motion to dismiss be withdrawn and answer made; had such a request been made the Court no doubt, exercising a sound discretion, would have permitted the substitution. This has not been done but the Court is convinced that the defendant has not engaged in any dilatory tactics and the Court is constrained to deny the motion for summary judgment on the basis of the procedural question and said motion upon the procedural matter is denied.

The second ground in support of plaintiffs' motion for summary judgment is directed to the legal question of plaintiffs' power under Congressional legislation to condemn property owned by the City of Moline and devoted to public use. This is the substantive question in the case and the Court feels that this substantive question should be answered and the case determined by said finding rather than upon a question of a construction of Rule 71A(e).

The affidavit of A. E. Anderson, attached to City of Moline's motion to dismiss, shows that a portion of the property sought to be condemned is devoted to public use and that a portion of the property sought to be acquired shows that the same may be devoted to public use in the future. This future public use is, to some extent, speculative, however, there is little question that the public use question is involved herein.

The power to condemn is found in Public Law No. 566 of the 82d Congress. It confers "the right and power to enter upon and acquire, condemn, occupy, possess, and use such real estate and other property as may be needed upon making just compensation therefor." It is well settled that in the area of interstate commerce, including the regulation of the use of navigable streams and the erection of dams therein and bridges thereover, federal power is exclusive when the Congrss has chosen to act. Defendant contends that the construction of a bridge is not within the federal power over interstate commerce and is not specifically mentioned as one of the functions of the United States Government in the Constitution as is the construction of a postoffice or military fortification. However, the preamble to the original Act of Congress, Public Law No. 533, approved May 26, 1928, 45 Stat. 759, provides as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, in order to facilitate interstate commerce, improve the postal service, and provide for military and other purposes [naming grantees] are hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across the Mississippi River."

It is the opinion of the Court that the original Act of Congress comes clearly with the Federal power over Interstate Commerce. The constitutionality of the above Act has not been challenged and in the opinion of this Court could not be successfully challenged since the power of Congress in this regard has been recognized by the Supreme Court whenever the issue has been presented. In Luxton v. North River Bridge Co., 153 U.S. 525, at page 530, 14 S.Ct. 891, at page 892, 38 L.Ed. 808, the Court said * * * "From these premises, the conclusion appears to be inevitable that, although congress may, if it sees fit, and as it has often done, recognize and approve bridges erected by authority of two states across navigable waters between them, it may * * * use its sovereign powers, directly or through a corporation created for that object, to construct bridges for the accommodation of interstate commerce by land, as it undoubtedly may to improve the navigation of rivers for the convenience of interstate commerce by water." At page 533 of 153 U.S., at page 894 of 14 S.Ct., the Court further stated: "In [State of] California v. [California] Pacific Railroad Co., 127 U.S. 1, 8 S.Ct. 1073 [32 L.Ed. 150], it was directly adjudged that congress has authority, in the exercise of its power to regulate commerce among the several states, to authorize corporations to construct railroads across the states as well as the territories of the United States * * *. `It cannot at the present day be doubted that congress, under the power to regulate commerce among the several states, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce. Without authority in congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce.'"

The principal contention of the defendant City of Moline is that the Congress does not have the power to condemn land owned by any state or a subdivision thereof, that the Congress does not have unlimited powers and has only such powers as are delegated to it by the Constitution of the United States and that these powers do not include the destruction of the sovereign powers of any state nor does it contain the power to condemn land owned by any state or subdivision thereof.

It is well settled that in the area of Interstate Commerce, including the regulation of the use of navigable streams and the erection of dams therein and bridges thereover, the Federal power is exclusive when the Congress has chosen to act. In this case, the plaintiffs as donees of the power have been empowered by special act of Congress to construct improvements to the existing bridge between Bettendorf, Iowa and Moline, Illinois, and in connection therewith to condemn real estate necessary for the construction of such improvements. If the State of Illinois or the City of Moline could supersede or prevent the exercise of this power of eminent domain it would be impossible to construct the authorized improvements. The inability of the States so to condition a right granted by Congress within its constitutional powers has often been made clear by both federal and state courts.

In People v. Hudson River Connecting Railroad Corporation, 228 N.Y. 203, 126 N.E. 801, the Court held that the federal government having authorized a bridge over navigable waters, possessed exclusive power with respect to the authority so granted and that the state was powerless to make unlawful the bridge so authorized. The defendant had been granted the right by Congress and by the New York Legislature to build a bridge across the Hudson River. Plans were approved by the Chief of Engineers and the Secretary of War. A controversy arose however between the defendant and the State of New York as to the type of bridge to be constructed and the State of New York brought this action against the defendant to enjoin the erection of the bridge. The State of New York had subsequently repealed its statutory authorization for the erection of the bridge and had required approval of the State Engineers and Superintendent of Public Works before this bridge could be erected. The Court held that the state could not make unlawful what an Act of Congress had authorized. It was held that the State had no power to condition or nullify the powers granted by the Congress to erect the bridge over a navigable stream. The Court cited with approval the decision of the Supreme Court in Erie Railroad Co. v. People of State of New York, 233 U.S. 671, 34 S.Ct. 756, 58 L.Ed. 1149, in which it was held that when Congress acts in such manner as to manifest its constitutional authority in regard to interstate commerce the regulating power of the state ceases to exist. A like decision was made in the case of City of Newark v. Central Railroad of New Jersey, 3 Cir., 297 F. 77, 82. The Court held that the consent of the State of New Jersey was unnecessary for the construction of a bridge across the mouth of Newark Bay, the Court stating * * "If the consent of a state were necessary before a bridge could be built over navigable waters within its borders, the power of regulating commerce among the states and with foreign nations would reside in the states and not in the Congress. In the case at bar, Congress has authorized the construction of the bridge notwithstanding the opposition of the state of New Jersey. Its power to do this was plenary and may not be interfered with by that state."

In the above case the Court referred to a provision of the Constitution delegating to the United States the power to regulate commerce and held that such power extends to the regulation of commerce on both land and water, to the control of the navigable waters of the country and the lands under them, and to the erection of piers, bridges and all other instrumentalities of commerce, which, in the judgment of Congress, may be necessary or expedient for the exercise of this power. The power of Congress is supreme and is not rendered impotent by anything a state may or can do. Whether the waters are wholly within the boundaries of one state or lie between or extend into two states is immaterial. The Court observed that ...


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