D., an attorney of the court, appearing in court-but without any authority from C.-and consenting that such a bill should be filed. The amended bill was accordingly filed, alleging that B. was insolvent; that C. was chargeable for the rents as well as B., and that both were chargeable for use of certain furniture on the premises when B. entered them. Neither B. nor C. apparently had actual knowledge of the filing of this bill; and a decree was entered, pro confesso, against C., for both the value of the rents and the injury to the furniture. On C. getting knowledge of this decree, it was vacated, and, notwithstanding opposition by him, a decree for rents was entered, leaving the case open as to both parties in respect to the furniture. B. and C. then answered as to the whole case. Subsequently (being entitled as respected citizenship to do so) they removed the case into the Circuit Court of the United States, under the Act of March 2d 1867, which court set aside all the decrees in the state court, and ordering that the case should stand for hearing on bill, answer and pleadings, opened the entire suit as if nothing had been done anywhere else in any part of it. C. answered, denying all the material allegations of all the bills; and testimony being taken, no proof of their truth appeared as to him. The Circuit Court annulled the decrees in toto in the state court against both B. and C., and dismissed the whole bill. A. appealed to this court. Held,

1. That the decree against B. was wrongly vacated; that as to him the decree in the state court on the original bill for rents was res judicata; and that that decree stood as though no amended bill had been filed, and unimpeachable as to everything covered by it; while as to the other matter (the damage to the furniture), the Circuit Court of the United States should, by issue directed to a jury, or by reference to a master, have ascertained it and have decreed accordingly: French, Trustee, v. Hay et al., 22 Wall.

2. That the state court committed a gross error in entering a decree against C. for rents, on the amended bill, where the original bill had not prayed that he should be charged with them, and that his answer denying, as it did, all the material allegations of both bills against him, and those allegations being otherwise unsupported, the decree of the state court was, as to him, rightly vacated, and the bill, as to him, rightly dismissed: Id.

When a case has been removed from a state court, into the Circuit Court of the United States, under one of the Acts of Congress relating to such removal of cases (in this case the act was that of March 2d 1867), an objection that the act has not been complied with in respect of time and other important particulars, will not be listened to in this court, the point not having been made in the court below until three years after the removal made, and when the testimony was all taken and the case ready for hearing. Nor ought it under such circumstances to have been listened to in the Circuit Court. It came too late, and must be held to have been conclusively waived: Id.

Loss of Original Papers-Presumption as to Jurisdiction.-Where the Statutes of the United States authorizing a removal into the Circuit Court of the United States, of a cause brought originally in the courts of a state, require that the parties to the suit shall be citizens of different states, and where a cause has been removed from a state court to a circuit court, and all the papers in it have been afterwards destroyed by

fire, and the parties then, by writing filed in the Circuit Court, admit that the cause was brought to the Circuit Court by transfer from the state court, in accordance with the statutes in such case provided, and -being now anxious apparently only to get to trial-simply ask and get leave to file a declaration and plea as substitutes for the ones originally filed and now destroyed,—in such case this court will, in the absence of all proof to the contrary, presume that the citizenship requisite to give the Circuit Court jurisdiction was shown in some proper manner; though it be not apparent on the mere pleadings: Railway Co. v. Ramsey, 22 Wall.

Jurisdiction of Federal Courts over Collateral Suits.-When in a case which is properly removed from a state court, under one of the Acts of Congress relating to removals, into the Circuit Court of the United States, a complainant getting a decree in the State Court and sending a transcript of it into another state, sues the defendant on it there, the Circuit Court into which the case is removed may enjoin the complainant from proceedings in any such or other distant court until it hears the case; and if, after hearing, it annuls the decree in the state court, and dismisses, as wanting equity, the bill on which the decree was made, may make the injunction perpetual: French, Trustee, v. Hay, 22 Wall.

STATUTE.

Construction. In construing a statute, the punctuation is entitled to small consideration: Morrill v. The State, 38 Wis.

UNITED STATES COURTS.

Jurisdiction by Consent.-Although consent of the parties to a suit cannot give jurisdiction to the courts of the United States, the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission: Railway Co. v. Ramsay, 22 Wall.

USURY.

par

Stipulated Rate-Judgment.-Under the Act of May 4th 1869, ties may stipulate in a note for any rate of interest not exceeding 8 per cent. per annum, and such note, after maturity, without an express agreement to that effect, will continue to bear the stipulated rate until payment: Marietta Iron Works et al. v. Lottimer, 25 Ohio.

A judgment taken on such a note for the amount due, including unpaid interest, will bear the stipulated rate of interest only, without rests, until payment: Id.

WITNESS.

Party-Deposition.-In courts of the United States under section 858 of the Revised Statutes, which enact (with a proviso excepting to a certain extent, suits by or against executors, administrators or guardians) that in those courts, no witness shall be excluded in any civil action because he is a party to or interested in the issue tried, parties to a civil suit (the suit not being one of the sort excepted by or against executors or guardians), may testify by deposition as well as orally, there being, under the Act of Congress, no difference between them and other persons having no interest in the suit: Railroad Co. v. Pollard, 22 Wall.

THE

AMERICAN LAW REGISTER.

APRIL 1876.

THE RIGHT AND POWER OF EMINENT DOMAIN IN THE NATIONAL GOVERNMENT.

ITS EXERCISE WHOLLY INDEPENDENT OF ALL ASSISTANCE, AGENCY OR CONSENT OF THE STATES. CORRECTIONS OR EXPLA

NATIONS OF SOME IMPORTANT MISCONCEPTIONS WHICH HAVE HITHERTO PREVAILED VERY EXTENSIVELY UPON THE SUBJECT. AT WHAT TIME COMPENSATION MUST BE MADE.

THE main question, which we here propose to discuss seems to us to be one of more vital importance, and attended with more consequences essential, we might almost say fundamental, to the very existence of independent, self-acting, national sovereignty, than the mass of the people, or of the profession even, have generally regarded it.

We suppose it is now pretty generally conceded, that our national government is a complete sovereignty, and that it was intended to have it possess all the powers of national sovereignty, independent of, and paramount to, all state sovereignty. We apprehend, too, that no one will now question, that the state and national sovereignties embrace the same territorial limits, each possessing sovereign power over such territory, for the exercise of its own peculiar functions, and that each is, nevertheless, as completely distinct from, and independent of, the other, as any two foreign states or governments. This is very fully stated by Chief Justice TANEY, in Ableman v. Booth, 21 How. U. S. 506, and is the pervading doctrine of all the decisions of that Court, wherever the question has arisen.

VOL. XXIV.—25

(193)

It will, therefore, be very apparent to all, that if the nation is really left dependent upon state legislatures for the ordinary exercise of the power of eminent domain, it will form a very surprising exception to the general theory of the national government. The fatal defect in the old confederation was precisely this, that it possessed no automatic functions, but was entirely dependent upon the action of the states. It was the leading, and almost exclusive purpose, of the framers of our national Constitution, to cure this very defect. It must then be very apparent to all, that if this important and indispensable power of sovereignty was still left under the exclusive control of the states, it will form a very marked and unaccountable exception to the general scope and purpose of the national Constitution. There is certainly nothing else in that instrument at all analogous to it. These considerations would surely justify any one in requiring very satisfactory evidence, that such is the necessary or natural construction of those provisions of the national Constitution, before he could fairly come to any such conclusion.

Our examination of that instrument leads to the conclusion, that there is not only no provision of that kind to be found in it, but that the contrary is expressly declared, in two of its provisions, in terms not susceptible of any other fair interpretation. In art. i., section 8, defining the powers of Congress, it is provided, that Congress shall "exercise exclusive legislation" over the territory ceded by the states for the "seat of the government of the United States, and over all places purchased by the consent of the legislature of the state * * * for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." This last clause, upon the well-known rule of construction, that a general clause following a specific enumeration, must be restricted to things ejusdem generis with the specific enumeration, can only mean, "other buildings needful" for the purposes of forts, magazines, &c. The first inquiry will then be, by what sovereignty is the site of those erections to be "purchased"? It must be by the national sovereignty, since to understand that word as having reference to the states would make nonsense of the provision. And it has been well said by the Supreme Court of the United States, in numerous cases, that the national Constitution was adopted with such careful deliberation, that we may fairly regard every word as having some definite and distinct meaning. We cannot, then, understand "pur

chased by the consent of the legislature of the state" as meaning purchased by the states, by the consent of the states, for this would be a looseness of expression for which there is no parallel in any other portion of that instrument. It must import a purchase by the national government with the consent of the states. The difference of language, too, between this provision and that in regard to the seat of the national government, shows very clearly that the intent was not a mere cession of the exclusive territorial jurisdiction. There is here to be a purchase, by the national sovereignty, of the proprietary right to the sites of "forts," &c. But what is here implied by the word "purchased"? It must naturally have the same import as in the ordinary case of purchasing land, by the sovereignty, for public purposes. It must of course embrace all the modes of such purchase, i. e., by the consent or voluntary relinquishment of the owner, and also by proceedings in invitum, for the condemnation of such land to such use, whenever that becomes necessary. For we cannot suppose that it was intended to leave the paramount national sovereignty at the mercy, or caprice, of every land-owner, as to whether it would be able to obtain the most eligible sites for its forts, and other military and naval stations. There are some public structures, where the particular site is more essential than that of other public erections. But some may inquire why the consent of the state legislatures was required in this case? Evidently because the erections, thus provided for, of necessity would exclude the state jurisdiction. It would be inconsistent with the discipline of a fort or naval station to admit any joint jurisdiction of the states. From the very nature of the case the national authority must be exclusive of all other. But we cannot for a moment suppose that so carefully framed an instrument as the national Constitution could have used the term "consent" to a purchase by the nation, for its own use, as embracing also a purchase by the state, for the use of the nation. The things are radically distinct and different.

There are many other considerations, tending to show that this must have been the intent of this provision. The exercise of the power of eminent domain can only be effected in any case, state or national, by the action of the legislative department of the government. Neither the executive or judicial departments can act in such cases, except in conformity to legislative provisions, either general or special. The legislature must determine both the use.