Dissenting Opinion: Shiras, J.

If it shall appear that, in point of fact, the United States have not taken the plaintiff's property for public use, and that all that the plaintiff has to complain of is that some persons, known or unknown, but claiming to be officers or agents of the United States, have committed a trespass upon his property, and it does not appear that the acts complained of were in pursuance of any law of the United States, or that they have been ratified by the United States, by taking possession of and occupying the property for public use, then the plaintiff's case will fall within the doctrine of Langford v. United States, 101 U. S. 341, and must be treated as an attempt, under the assumption of an implied contract, to make the government responsible for the unauthorized acts of its officers, those acts being themselves torts.

But if it shall be shown, or be admitted, that the United States, by law, either authorized their agents to appropriate the property of the plaintiff, or have ratified the action of their agents by taking possession of the property and subjecting it to public use, then the constitutional duty of the court is to pronounce judgment for the plaintiff, and to award him just compensation.

These views do not overlook the well-settled doctrine that unless and until Congress shall, by adequate legislation, provide a legal remedy, private rights against the government may be in abeyance. But when Congress, in obedience to the behest of the Constitution, has provided such a remedy, then there is no legal obstacle to the plaintiff's recovery. That Congress has provided such a remedy is seen in the act of March 3, 1887, c. 359, whereby it is enacted that the Court of Claims, and, concurrently, the District and Circuit Courts of the United States, "shall have jurisdiction to hear and determine all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a

Dissenting Opinion: Shiras, J.

court of law, equity, or admiralty if the United States were suable."

This legislation perhaps originated in the regret expressed by this court in Langford's case, that "Congress has made no provision by general law for ascertaining and paying this just compensation." That was a suit brought in the Court of Claims, under section 1059 of the Revised Statutes, in which there is no remedy provided for claims founded upon the Constitution of the United States, and was, in the language of the court, the case of "an unequivocal tort.”

The later case of United States v. Great Falls Manufacturing Co., 112 U. S. 645, 656, is, in some respects, like the present one. It was there held that it was clear that these property rights have been held and used by the agents of the United States, under the sanction of legislative enactments by Congress; for the appropriation of money specifically for the construction of the dam from the Maryland shore to Conn's Island was, all the circumstances considered, equivalent to an express direction by the legislative and executive branches of the government to take this particular property for the public objects contemplated by the scheme for supplying the capital of the nation with wholesome water. The making of the improvements necessarily involves the taking of the property, and if, for the want of formal proceedings for its condemnation to public use, the claimant was entitled, at the beginning of the work, to have the agents of the government enjoined from prosecuting it until provision was made for securing, in some way, payment of the compensation required by the Constitution upon which question we express no opinion there is no sound reason why the claimant might not waive that right, and, electing to regard the action of the government as a taking under its sovereign right of ancient domain, demand just compensation. In that view we are of opinion that the United States, having by their agents, proceeding under the authority of an act of Congress, taken the property of the claimant for public use, are under an obligation imposed by the Constitution to make compensation. The law will imply a promise to make the required compensation

Dissenting Opinion: Shiras, J.

where property, to which the government asserts no title, is taken pursuant to an act of Congress, as private property to be applied for public use. Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the Court of Claims of actions founded upon any contract, express or implied, with the government of the United States.""

Having distinguished the case from that of Langford the court proceeded to say: "In such a case it is difficult to perceive why the legal obligation of the United States to pay for what was thus taken pursuant to an act of Congress is not quite as strong as it would have been had formal proceedings for condemnation been resorted to for that purpose. If the claimant makes no objection to the particular mode in which the property has been taken, but substantially denies it, by asserting, as is done in the petition in this case, that the government took the property for the public uses designated, we do not perceive that the court is under any duty to make the objection in order to relieve the United States from the obligation to make just compensation."

It will be noticed that this decision, in terms so applicable to the present case, was made before the act of March 3, 1887, in which, for the first time, an express remedy was given for "all claims founded upon the Constitution of the United States," and in "respect to claims for which the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable."

In the present case, although no express proceedings have been instituted by the United States to condemn the property for public use, yet it is admitted in the pleas that the United States have taken possession of it for a public use or purpose, and by various acts of Congress, of which we can take judicial notice, large sums of money have been granted to construct and maintain the light-house on the site in question.

The opinion of the court seeks to withdraw the case from

Dissenting Opinion: Shiras, J.

the operation of the Constitution and the act of 1887, and to bring it within the decision of the Langford case, by contending that, because the United States by their pleas deny the plaintiff's right to recover, the acts complained of are thereby shown to have been sheer torts, and therefore expressly exempted from judicial cognizance. I am unable to see the force of this reasoning. The statute having provided that all claims founded upon provisions of the Constitution shall be enforceable, surely a district attorney of the United States cannot by a mere plea, not denying the plaintiff's title to his land, but claiming that the land is legally subject to a servitude in favor of the United States, which exonerates them from making compensation, deprive the plaintiff of his right under the statute to have his claim adjudicated. Can it be possible that after Congress, in recognition of the constitutional provision and of the repeated suggestions of this court, has provided a legal remedy, that a subordinate legal functionary can by a plea, either of matter of fact or of law, defeat the beneficent purpose of Congress, deprive the plaintiff of his remedy, and convert the United States against their will, as expressed in the Constitution and the act of Congress, into a wrongdoer? I cannot accept the proposition that, by a plea putting the plaintiff upon proof of his claim, the United States thereby escape from their constitutional covenant and nullify the statute which provides a remedy.

The question presented by the second plea in the court below is, no doubt, one of difficulty and importance, which, if and when it comes before this court, will demand serious consideration, but that question is waived by the opinion of the court, and any discussion of it in this opinion would be out of place.

I, therefore, have a right to assume that the property of the plaintiff below, though held subject to the right of eminent domain, is entitled to the protection of the Constitution; that there is no kind of private property, whatever may be its nature or origin, that can be taken for public use without just compensation being made.

Hence it follows that the court below erred in overruling

Statement of the Case.

the demurrer to the second plea. I think the judgment of the court below should be reversed, and the cause be remanded to the Circuit Court to proceed therein in exercise of the jurisdiction conferred upon it, in such ample terms, by the act of March 3, 1887.

EVANS v. STETTNISCH.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 279. Submitted April 27, 1893. - Decided May 10, 1893.

An affidavit made by one of plaintiff's attorneys, he having been represented in the progress of the case by two, for use on a motion for a new trial setting forth that an order of continuance had been vacated and the case set down for trial in his absence and without notice either to plaintiff or affiant, whereby plaintiff was prevented from presenting his evidence to the jury and deprived of a fair trial, cannot be considered in this court on writ of error, because: (1) Such affidavit is no portion of the record, - it not having been incorporated in a bill of exceptions; (2) There is nothing to show that it was the only affidavit bearing upon the point in the files of the case; (3) Even if it were shown to have been the only affidavit it would not be sufficient to overthrow the recitals of the record that the parties appeared by their attorneys.

THE facts in this case are these: On November 10, 1884, plaintiff, now plaintiff in error, filed in the Circuit Court of the United States for the District of Nebraska an "amended and reformed petition." Nothing seems to have been done thereafter until 1887, when at the May term, and on the second day of May, the case was "ordered continued." On August 18, 1887, the record recites:

"On motion of defendants, leave is granted by the court to answer herein in ten days. Plaintiff is ruled to reply in twenty days, and it is ordered by the court that the continuance heretofore entered herein be, and the same is hereby, set aside and this cause stand for trial at the adjourned term of this court." An answer was filed on August 20, 1887, and a reply on the