operator are of no concern to the appellee. U. S. v. Marin (C. C. A. 9, 1943), 136 F. (2d) 388. V-3. Taking for public use; scope.-(2d paragraph.)-Omit: Patten & Co. v. U. S. (C. C. A., 1932), 61 F. (2d) 970; reversed (1933), 289 U. S. 705. The Federal Government has power to condemn property within the State for proper Federal purposes. U. S. v. Certain Parcels of Land in Town of Denton of Caroline County, Md. (D. C., D. Md., 1939), 30 F. Supp. 372. The Federal Government under appropriate legislation may take land devoted to a prior public use on making just compensation. Id. The rule that property devoted to a prior public use cannot be taken for another public use except by virtue of specific legislation which authorizes it to be done in express words or by necessary implication is a rule of construction of terms of grant of power sought to be exercised. Id. The authority of the Federal Government to acquire property necessary or suitable for post office is within the express grant of power given by the Federal Constitution. Const. art. 1, sec. 8, cls. 7, 17. Id. The determination of the extent, amount, or title of property to be taken by an administrative department of the Federal Government is final in the absence of bad faith. U. S. v. Meyer (C. C. A. 7, 1940), 113 F. (2d) 387. The fact that land included in The Denison Dam and Reservoir Project is owned by the State of Oklahoma, or that its taking may impair the tax revenue of the State, and that the reservoir will obliterate part of the State's boundary, and that the State's own project for water development and conservation will be interfered with-constitute no barrier to condemnation of the land by the United States under its superior power of eminent domain. Oklahoma v. Atkinson Co. (1941), 313 U. S. 508; affirming (D. C., E. D. Okla., 1941), 37 F. Supp. 93. gen VI-1. Compensation for taking; in eral.-(4th paragraph.)-Change citation to read: U. S. v. McIntosh et al. (D. C., 1932), 2 F. Supp. 244; rehearing denied (C. C. A. 4, 1934), 70 F. (2d) 507; certiorari denied (1934), 293 U. S. 586. (5th paragraph.)-Change citation to read: U. S. v. Chicago B. & J. R. R. Co. (C. C. A. 8, 1936), 82 F. (2d) 131; certiorari denied (1936), 298 U. S. 689.. The usual opportunity afforded a landowner at some stage of eminent domain proceedings to have his damages assessed by a jury is not inherent in the Federal Constitution, but is a matter of legislative discretion, restricted only by provisions of the Fifth Amendment. Const. Amend. 5. Welch v. Tennessee Valley Authority and Lewis et al. v. Tennessee Valley Authority (C. C. A. 6, 1939), 108 F. (2d) 95. Where in the construction of a set-back levee on the Mississippi River, no part of plaintiff's land was used or encroached upon by the Government, and where no part of the old river-front levee bounding plaintiff's land was torn down, removed or otherwise impaired, and where the new construction has not injuriously affected the fertility of the soil nor interfered with its annual cultivation and planting, and where plaintiff has not been ousted from his land nor deprived of the use and enjoyment of his property, it is held that there has been no taking of plaintiff's property within the meaning of the Fifth Amendment and that plaintiff is not entitled to recover. Kirch v. U. S. (1940), 91 Ct. Cl. 196. The requirement of the Fifth Amendment that just compensation shall be paid for property taken does not mean that funds must be deposited before the taking, but appropriation by Congress furnishes adequate security, since such appropriation is back of the obligation to pay for whatever is taken in pursuance of the authorized purpose. Const. Amend. 5. Id. A landowner is entitled to full compensation for the taking of his land and all its consequences. Const. Amend. 5. United States ex rel. and for Use of Tennessee Valley Authority v. Powelson et al. (C. C. A. 4, 1941), 118 F. (2d) 79; affirming with modifications (D. C., W. D. N. C., 1940), 33 F. Supp. 519. Generally, a landowner is no more entitled to damages to an entirely separate and disconnected property for the taking of other property than if the damages had resulted from the taking of the property of another. Const. Amend. 5. Id. The "just compensation" to which a landowner is entitled on the taking of his property by eminent domain is the value of the land taken and damages inflicted by the taking; such a sum as will put him in as good a position pecuniarily as he would be if his property had not been taken. Id. The Fifth Amendment does not entitle the owner of property condemned to be paid in advance of the taking, where a statute provides for ascertaining just compensation and the government has impliedly promised to pay that compensation. City of Oakland v. United States (C. C. A. 9, 1942), 124 F. (2d) 959; certiorari denied (1942), 316 U. S. 679. In determining just compensation required to be paid for property taken by eminent domain, all that is required is that proceeding shall be conducted in some fair and just manner with opportunity to owners of the property to present evidence regarding its value and to be heard thereon. Const. Amend. 5. U. S. v. 137.82 acres of land in Cheshire County, N. H., Same v. 63.62 acres of land in Cheshire County, N. H. (D. C., D. N. H., taken for public use without just compen1940), 31 F. Supp. 723. sation, is measured by the loss caused to the The "just compensation" to which the property owner by the appropriation, and owner of property condemned by the gov- the property owner is entitled to receive ernment is entitled under the Constitution the value of what he has been deprived of, is determined by considering all the capabilities of the property and all the uses to which it may be applied or for which it is adaptable and not merely the condition it is in at the time and the use to which it is then applied by the owner. Const. Amend. 5. U. S. ex rel. Tennessee Valley Authority v. Southern States Power Co. (D. C., W. D. N. C., 1940), 33 F. Supp. 519; affirmed with modifications (C. C. A. 4, 1941), 118 F. (2d) 79; reversed (1943), 319 U. S. 266. VI-2. Compensation for taking; amount and elements. (4th paragraph.)-Change citation to read: U. S. v. McIntosh et al. (D. C., 1932), 2 F. Supp. 244; rehearing denied (C. C. A., 1934), 70 F. (2d) 507; certiorari denied (1984), 293 U. S. 586. (5th paragraph.)-Change citation to read: Jacobs et al. v. U. S. (1933), 290 U. S. 13, reversing (C. C. A., 1933), 63 F. (2d) 326. (9th paragraph.)-Change citation to read: U. S. v. Chicago B. & Q. R. R. Co. (C. C. A., 1936), 82 F. (2d) 131; certiorari denied (1936), 298 U. S. 689. Just compensation under the Fifth Amendment for property taken for public use is determined as of the time of the taking. Fluctuations in the value of property are incidents of ownership, and a reduction in value so occurring can not be considered as a "taking" in the constitutional sense. The mere enactment of legislation authorizing condemnation of property can not constitute a taking. In this case, there was no taking by the commencement or completion of a set-back levee, etc. The time of the taking in condemnation under the Flood Control Act is the time of the payment of the money award by the United States, and no interest is due upon the award. In the absence of statutory direction, no interest accrues before the taking. Const. amend. 5; Mississippi River Flood Control Act, May 15, 1928, 33 U. S. C. sec. 702a et seq. Danforth v. U. S. (1939), 308 U. S. 271; reversing in part affirming in part (C. C. A. 8, 1939), 102 F. (2d) 5; 105 F. (2d) 318. The word "just" in the phrase "just compensation" in constitutional amendment providing that private property shall not be taken for public use without just compensation, is a word of limitation, as though the provision read "without making a settlement with a citizen which leaves him no poorer or richer than he was before the property was taken." Const. Amend. 5. U. S. ex rel Tennessee Valley Authority v. Indian Creek Marble Co. (D. C., E. D. Tenn., 1941), 40 F. Supp. 811. "Just compensation" within constitutional provision that private property shall not be and no more. Const. Amend. 5. Id. The "full compensation" guaranteed by the Constitution to property owners for property taken for public use includes interest on the just compensation finally awarded, when all or a portion thereof is withheld after the taking. Const. Amend. 5. U. S. v. Certain Lands in City of St. Louis, Mo. (D. C., E. D. Mo., E. D. 1941), 41 F. Supp. 809. Interest is not allowed in eminent domain proceedings by United States as "interest" but as part of the "full compensation" guaranteed by the Constitution. 40 U. S. C. 258a; Const. Amend. 5. Id. VI-3. Compensation for taking; consequential damage. (2d and 3d paragraphs.)— Change citation to read: Buchanan et al. v. U. S. (1984), 78 Ct. Cl. 791; certiorari denied (1935), 294 U. S. 723. (7th paragraph.)-Change citation to read: U. S. v. Chicago, B. & Q. R. R. Co. (C. C. A., 1936), 82 F. (2d) 131; certiorari denied (1936), 298 U. S. 689. (8th paragraph.)-Change citation to read: Marret, Admr. et al. v. U. S. (1936), 82 Ct. Cl. 1; certiorari denied (1936); 299 U. S. 545. Damage to land by flooding as result of river improvements and structures, consisting of pile dikes and revetments, in navigable river by Government for purpose of improving river for navigation purposes, was not recoverable from the Government under the Tucker Act. Tucker Act, 28 U. S. C. A. sec. 41 (20); Act Jan. 21, 1927, 44 Stat. 1010; U. S. C. A. Const. Amend. 5. Goodman et al. v. U. S. (D. C., 1939), 28 F. Supp. 497; affirmed (C. C. A., 1940), 113 F. (2d) 914. A railroad company whose road traverses an embankment built up from low-water mark in the bed of a navigable stream to a level above that of ordinary high water is not entitled, under the Fifth Amendment, to claim compensation from the United States for additional cost of protecting the embankment necessitated by the action of the Government in raising the water level above natural high-water mark, by means of a dam, for the purpose of improving navigation. So Held, although the embankment was remote from the natural channel and from the course of navigation through the pool formed by the dam and did not obstruct navigation. Rivers and Harbors Act of July 8, 1930. U. S. v. Chicago, M., St. P. & P. R. Co. (1941), 312 U. S. 592; reversing (C. C. A., 1940), 118 F. (2d) 919. In exercising constitutional power over navigable streams, United States may raise level of such streams and thereby obstruct the drainage of surface waters on nearby lands, and although damage be done thereby, there is no "taking" of the land so as to require compensation of landowner, unless waters of stream are backed upon the land. Lynn v. U. S. et al. (C. C. A. 5, 1940), 110 F. (2d) 587. The Tennessee Valley Authority is merely an agency of the United States in erecting iams, and hence its acts in erecting dam are not unlawful though resulting in obstruction of drainage on privately owned lands. 16 U. S. C. A. 831c (h, i, k.). Id. Whatever rights a riparian owner possesses below ordinary high-water mark are subordinate to the rights of the public, and there is no "taking" from such owner by the government when water is raised to the ordinary high-water mark for the purpose of improving navigation, and hence nothing is due for impairment or use by the United States in the improvement of navigation of property within or over the bed of its navigable waters, and intangible riparian rights are subject to the same servitude. U. S. v. Meyer et al. (C. C. A. 7, 1940), 113 F. (2d) 387. Under the Fifth Amendment, mere damage to land not taken is not compensable as an act under the power of eminent domain. U. S. C. A. Const. Amend. 5. Id. Where authorized construction by the Federal Government of improvements in navigable river results in a tuking of riparian owner's property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and riparian owner is entitled to recover it under the Tucker Act, but if Government's project has resulted in but a temporary invasion of the land or the injury thereto is but consequential result of improvement of channel of navigable river in aid of navigation, no implied obligation on part of Federal Government to compensate riparian owner can arise. Const. Amend. 5. Goodman et al. v. U. S. (C. C. A. 8, 1940), 113 F. (2d) 914. VII. Validity of statutes (2d and 3d paragraphs).-Change citation to read: U. S. v. McIntosh et al. (D. C., 1932), 2 F. Supp. 244; rehearing denied (C. C. A., 1934), 70 F. (2d) 507; certiorari denied (1984), 293 U. S. 586. AMENDMENT 6. CRIMINAL TRIALS Notes of Decisions A substantial protection of the right of is guilty of a violation of the laws of war. accused to counsel is jurisdictional and essential to the validity of a judgment of conviction. U. S. C. A. Const. Amend. 6. Thompson v. King, Warden, No. 11511 (C. C. A.. 1939), 107 F. (2d) 307. A. W. 12 and 15 recognize military commissions. Violations of the laws of war by enemy belligerents are triable by military commission regardless of the citizenship of the offenders and the fact that the courts are open. The Fifth and Sixth Amendments do not apply to such violations of the laws of war. Whether or not A. W. 43, 46, 50%, and 70 apply to military commissions, they provide no basis for the grant of writs of habeas corpus. Ex parte Quirin (1942), 317 U. S. 1. Petitions for writs of habeas corpus. Petitioners, all but one of whom were admittedly German nationals, were trained in a German military sabotage school, conveyed to the coast of the United States in German submarines, and landed during the night in German marine infantry uniforms with supplies of explosives, detonators, and other materials useful in sabotage work. They buried the supplies, put on civilian clothes, and were later arrested in United States cities and held for trial before a military commission appointed by the President of the United States on charges of violating the laws of war and A. W. 81 and 82. All of the petitioners had lived in the United States and one claimed citizenship by birth. The United States and Germany were at war when they landed and the places where they landed were within a defense command but State and Federal courts were open both there and where the military commission was sitting. Writs denied. Held: Petitioners, regardless of citizenship, were enemy belligerents. An the secret maps; (2) his military counsel enemy belligerent who secretly crosses through the lines for the purpose of waging war or committing sabotage and discards his uniform Petition for a writ of habeas corpus. Petitioner, a captain in the Regular Army, was found guilty by a general court-martial of communicating secret Army maps to unauthorized persons, in violation of A. W. 96, and sentenced to dismissal and confinement in a penitentiary. The sentence was approved by the reviewing authority, the record was found legally sufficient by the Board of Review and The Judge Advocate General, and the sentence was confirmed by the President. Petitioner selected two line officers and a civilian as his counsel. He claimed release on the grounds: (1) his civilian counsel was excluded from the trial during the examination of one witness relative to were not members of the bar; (3) he was denied counsel at the investigation; (4) he was entrapped into the offense; (5) the secret maps which were in evidence were to counsel at the investigation. (4) The denot included in the record when it was transmitted to the Board of Review, The Judge Advocate General and the President, having been replaced by a summary of their contents; (6) the maps, having been seized from him by an illegal search, were improperly received in evidence. Petition dismissed. Affirmed. Held: (1) A. W. 17 entitles only to civilian or military counsel, not both. Having selected military counsel, petitioner was not entitled, as of right, to civilian counsel also. (2) Counsel before courtsmartial need not be members of the bar. (3) A. W. 70 does not entitle an accused fense of entrapment does not go to the jurisdiction of a court-martial and its decision thereon may not be questioned by a civil court in a collateral proceeding. (5) The failure to forward the maps with the record, likewise, did not affect the jurisdiction of the President to confirm the sentence. (6) The mentioned search was legal. Hence, it need not be decided whether a civil court court-martial may question the action of a in admitting evidence secured by an illegal search. Romero v. Squier (C. C. A. 9, 1943), 133 F. (2d) 528. AMENDMENT 10. RESERVED STATE POWERS In seeking to acquire by condemnation cemeteries within the Crab Orchard Creek Dam Project and removal of the bodies In general.-It is when Federal legislation attempts to confer power upon the national government that is not within the express or implied powers given by the Constitution therefrom, the Federal Government is not that the legislation becomes vulnerable to seeking authority to unlawfully encroach the Tenth Amendment, but such amendment upon or is no limitation on the powers expressly or invade the police powers of the impliedly granted to the Federal Govern- State of Illinois or statutes relating to ment. Const. Amend. 10. U. S. v. 2.74 | cemeteries, and removal of the bodies puracres of land in Williamson County, Ill. suant thereto would not violate such laws. (D. C., E. D. Ill., 1940), 32 F. Supp. 55. Id. AMENDMENT 14. RIGHTS OF CITIZENS Notes of Decisions II. Abridgement of privileges and immunities. Neither State legislation, State decisions, nor Congressional action can modify or affect the requirements of due process under the Fourteenth Amendment of the Federal Constitution or shelter a governmental officer, board, or commission from those requirements. U. S. C. A. Const. Amend. 14. Western Union Teleg. Co. v. Industrial Comm. of Minnesota et al. (D. C., 1938), 24 F. Supp. 370. The right of free speech and free press, understood with the limitations to prevent abuses which the law has always annexed to such freedoms, is the right both of citizens and other persons in the United States and the several States. Const. Amend. 14. Powe et al. v. U. S. (C. C. A. 5, 1940), 109 F. (2d) 147; certiorari denied (1939), 309 U. S. 679. The streets of a city are natural and proper places for purposes of assembly and of interchange of thought and opinion on religious, political and other matters, either by word of mouth or by distribution of literature, and such use of streets and public places, sanctioned by ancient usage, is part of the liberties of the people protected by Fourteenth Amendment from State encroachment. Const. Amend. 14. Hannan et al. v. City of Haverhill et al. (C. C. A. 1, 1941), 120 F. (2d) 87; certiorari denied (1942), 314 U. S. 641. The constitutional liberties of a citizen to use streets for purposes of assembly and the interchange of thought on religious, political and other matters are relative, not absolute, and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good order. Const. Amend. 14. Id. III. Due process. The guarantee by the Fourteenth Amendment of assistance of counsel in a criminal case, is not satisfied by a formal appointment of counsel to defend the accused but includes an opportunity for consultation between them and for preparation of the defense. Avery v. Alabama (1940), 308 U. S. 444; affirming (Ala., 1939), 188 So. 391. If a case between private parties is arbitrarily and capriciously decided in violation of Federal principles of law and contrary to undisputed facts, though the court SO deciding had jurisdiction over the suit, the judgment may be in violation of the Fourteenth Amendment, Const. Amend. 14. Williams et al. v. Tooke et al. (C. C. A. 5, 1940), 108 F. (2d) 758; certiorari (1940), 311 U. S. 655. denied Under statute regulating public display by retail motor fuel dealers of signs at which motor fuel is sold, provision that no other price sign of motor fuel SO dispensed or signs relating to the price of such fuel should be displayed other than the signs provided by statute had no substantial relation to public health, public morals or some other phases of general welfare and unlawfully interfered the laws" clause of Federal Constitution. with and imposed unreasonable restriction upon motor fuel dealers' private business and was unconstitutional as depriving dealer of property without due process of law. Const. Amend. 14. Regal Oil Co. v. State (N. J., 1939), 10 A. (2d) 495. The condition in permit of Secretary of War granting rights of way across two military reservations to Golden Gate Bridge and Highway District to make possible erection of bridge, which required toll-free traffic of certain military and governmental employees and their dependents, was not invalid as violative of "equal protection of Where discrimination between white and colored teachers in county schedule of minimum salaries was larely influenced by race or color, colored teacher was entitled to declaratory decree that unconstitutional diserimination existed. Const. Amend. 14, sec. 1. Id. Where discrimination between white and colored teachers in county schedule of minimum salaries was largely influenced by race or color, colored teacher was entitled to injunction against continuation of such discrimination, but not against payment of less salary to a colored teacher or principal than to any white teacher or principal filling an equivalent position, since county board of education was entitled to some discretion as respects particular teachers. Const. Amend. 14, sec. 1. Id. The poor financial condition of a county and other financial considerations could not control a colored teacher's right, created by Constitution and implementing statutes, to injunction against salary discrimination between white and colored teachers. Const. Amend. 14, sec. 1. Id. 10 U. S. C. 1348; Const. Amend. 14, sec. 1. U. S. V. Golden Gate Bridge and Highway District of California (D. C., N. D. Calif. S. D., 1941), 37 F. Supp. 505; certiorari denied (1942), 316 U. S. 700. If a statute affects alike all persons similarly situated, it is not within "equal protection of the laws" clause of Federal Con stitution. Const. Amend. 14. Id. Any State action which denies to any person within its jurisdiction the equal protection of the laws runs afoul of equal protection clause of Fourteenth Amendment to Federal Constitution. Const. Amend. 14. Favors v. Randall (D. C., E. D. Pa., 1941), 40 F. Supp. 743. Under equal protection clause of Fourteenth Amendment to Federal Constitution, a State is required to extend to its citizens of the two races, white and black, substantially equal treatment in facilities it provides from Const. public funds. Amend. 14. Id. Proper segregation, that is the affording of equal facilities to both white and black races thus separated, is not within inhibition of equal protection clause of Fourteenth Amendment to Federal Constitution. Const. Amend. 14. Id. Separate schools may be maintained for the white and colored races without denying "equal treatment" as guaranteed by the Fourteenth Amendment and the provision of the State Constitution that all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness, if the educational facilities provided for each race are equal, unless such separation is in contravention of specific State law. Const. Amend. 14. Graham v. Board of Education of City of Topeka (Kans., 1941), 114 P. (2d) 313. Where white children in city were given their first six years of schooling in grade Fixing salaries of negro teachers in pub- school, the next three years in junior high lie schools at a lower rate than that paid school, and then three years in senior high to white teachers of equal qualifications and school, but colored children were compelled experience, and performing the same duties to spend their first eight years of schooling on the sole basis of race and color, is viola- in grade school and were then given only tive of the "due process" and "equal pro- one year in junior high school, and three tection" clauses of the Fourteenth Amend- years in senior high school, colored children ment. Const. Amend. 14. Alstone et al. v. School Board of City of Norfolk et al. (C. C. A. 4, 1940), 112 F. (2d) 992; certiorari denied (1940), 311 U. S. 693. who were required to attend grade school during their seventh and eighth school years, were denied "equal treatment" guaranteed by the Constitution. Const. Amend. 14. Id. |