Payment of just compensation.- "The provision found in the Fifth Amendment to the federal Constitution, and in the Constitutions of the several States, for just compensation, for the property taken, is merely a limitation upon the use of the power to take private property for public use. It is no part of the power itself, but a condition upon which the power may be exercised." (United States v. Jones, 109 U. S. 513, 518, Dec. 10, 1883.)

"The government may take real estate for a post office, a court house, a fortification or a highway; or in time of war it may take merchant vessels and make them part of its naval force. But can this be done without an obligation to pay for the value of that which is so taken and appropriated? Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor. " (United States v. Lynah, 188 U.S. 445, 465, Feb. 23, 1903.)

"The United States, in the exercise of such inherent and paramount right of eminent domain, is under its own limitation and injunction in respect to questions relating to just compensation for property. taken in its own right; and this results from the fifth amendment to the federal Constitution, which declares that private property shall not be taken for public use without just compensation.'" (Town of Nahant v. United States, 136 F. 273, (276, Mar. 20, 1905. See also: Seaboard Air Line Ry. v. United States, 261 U. S. 299, 306, Mar. 5, 1923; United States v. Miller, 317 U. S. 369, 379-380, Jan. 4, 1943; High Bridge Lumber Co. v. United States, 69 F. 320, July 2, 1895; United States v. Alcorn, 80 F.2d 487, Jan. 13, 1936.)

"Indisputably the duty to make compensation does not inflexibly, in the absence of constitutional provisions requiring it, exact, first, that compensation should be made previous to the taking-that is, that the amount should be ascertained and paid in advance of the appropriation--it being sufficient, having relation to the nature and character of the property taken, that adequate means be provided for a reasonably just and prompt ascertainment and payment of the compensation; second, that, again always having reference to the nature and character of the property taken, its value and the surrounding circumstances, the duty to provide for payment of compensation may be adequately fulfilled by an assumption on the part of government of the duty to make prompt payment of the ascertained compensation --that is, by the pledge, either expressly or by necessary implication, of the public good faith to that end." (Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290, 306, Apr. 8, 1912.)

"The ascertainment of compensation is a judicial function, and no power exists in any other department of the Government to declare what the compensation shall be or to prescribe any binding rule in that regard. (United States v. New River Colleries Co., 262 U.S. 341, 343-344, May 21, 1923.)

Just compensation under the Fifth Amendment for property taken for public use is determined as of the time of taking. (Danforth v. United States, 308 U. S. 271, Dec. 4, 1939. See also United States v. Miller, supra, at 374.)

"We are of the opinion that, in ascertaining. the market value of property taken in a condemnation proceeding the utility or availability of the property for the special purpose of the taker cannot be shown, if the taker is the only party who

can use the property for that purpose. If, however, the property has a special utility or availability, not only to the taker, but to other parties who could use the property for the particular purpose intended by the taker, then this utility or availability may be shown." (United States v. Boston, C. C. & N. Y. Canal Co., 271 F. 877, 893, Feb. 16, 1921.)

"The requirement that 'just compensation' shall be paid is comprehensive and includes all elements and no specific command to include interest is necessary when interest or its equivalent is a part of such compensation. Where the United States condemns and takes possession of land before ascertaining or paying compensation, the owner is not limited to the value of the property at the time of the taking; he is entitled to such addition as will produce the full equivalent of that value paid contemporaneously with the taking. Interest at a proper rate is a good measure by which to ascertain the amount so to be added. " (Seaboard Air Line Ry. v. United States, supra, at 306. See also: Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123, May 12, 1924; Phelps v. United States, 274 U.S. 341, May 26, 1927; Jacobs v. United States, 290 U. S. 13, Nov. 6, 1933; Shoshone Tribe v. United States, 299 U.S. 476, 496497, Jan. 4, 1937.)

"Where private property is taken for public use, and there is a market price prevailing at the time and place of the taking, that price is just

compensation. *** More would be unjust to the

United States and less would deny the owner what he is entitled to." (United States v. New River Collieries Co., supra, at 344. Accord: L. Vogelstein Company, Inc. v. United States, 262 U. S. 337, May 21, 1923; Davis, Agent v. Newton Coal Co., 267 U. S. 292, Mar. 2, 1925; C. G. Blake Co. v. United States, 275 F. 861, Mar. 4, 1921, aff., 279 F. 71, Feb. 7, 1922. See also United States v. Miller, supra, at 373-375.)

"The special value of land due to its adaptability for use in a particular business is an element which the owner of land is entitled, under the Fifth Amendment, to have considered in determining the amount to be paid as the just compensation upon a taking by eminent domain." (Mitchell et al. v. United States, 267 U. S. 341, 344-345, Mar. 2, 1925.)

"Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable: The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held. The fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. *** It is common knowledge that public service corporations and others having that power frequently are actual or potential competitors, not only for tracts held in single ownership but also for rights of way, locations, sites and other areas requiring the union of

numerous parcels held by different owners. And, to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account. *** But the value to be scertained does not include, and the owner is not entitled to compensation for any element resulting subsequently to or because of the taking. Considerations that may not reasonably be held to affect market value are excluded. Value to the taker of a piece of land combined with other parcels for public use is not the measure of or a guide to the compensation to which the owner is entitled." (Olson v. United States, 292 U. S. 246, 255-256, Apr. 30, 1934. See also: United States ex rel. Tennessee Valley Authority v. Powelson, 319 U. S. 266, 275-276, May 17, 1943; Continental Land Co. v. United States, 88 F.2d 104, 109-111, Feb. 15, 1937.)

"The rule is well settled that, in condemnation cases, the most profitable use to which the land can probably be put in the reasonably near future may be shown and considered as bearing upon the market value; and the fact that such use can be made only in connection with other lands does not necessarily exclude it from consideration if the possibility of such connection is reasonably sufficient to affect market value. 11 (McCandless v. United States, 298 U.S. 342, 345, May 18, 1936.)

"In condemnation cases, he most profitable use, to which land can probably be put in the reasonably near future may be shown and considered as bearing upon its market value. *** But from this principle it does not follow that a landowner is privileged to prove separately the values of various uses

to which the land is adapted, and to add the separate items of value to obtain the compensable value of the land taken by eminent domain." (Morton Butler Timber Co. v. United States, 91 F.2d 884, 887888, June 28, 1937.)

"Compensation is to be estimated by reference to uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future. Mere possible or imaginary uses or the speculative schemes of its proprietor are to be excluded. " (Morton Butler Timber Co. v. United States, supra, at 891 See also: United States v. Seufert Bros. Co., 78 F. 520, 523-524, Feb. 9, 1897; Five Tracts of Land in Cumberland Tp., Adams Co., Pa., v. United States, 101 F. 661, 664665, Apr. 25, 1900; United States v. First Nat. Bank, 250 F. 299, 302, Apr. 4, 1918; Continental Land Co. v. United States, supra, at 109-110.)

"We merely hold that the United States, in the absence of a specific statutory requirement, need not make compensation for the loss of a business opportunity based on the unexercised privilege to use the power of eminent domain where the state need not do so were it the sponsor of the public project and the taker of the lands. The constitutional obligation of the United States to make compensation does not extend so far." (United States ex rel. Tennessee Valley Authority v. Powelson, supra, at 284.)

CASE NOTES

I. RIGHT TO SPEEDY AND PUBLIC TRIAL BY JURY.

In general. "The Sixth Amendment was not needed to require trial by jury in cases of crimes. That requirement is provided by Article III, § 2, paragraph 3. The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right 'to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.' These requirements as to speed, publicity, impartiality, information as to the charge, confrontation with witnesses, compulsory process and assistance of counsel are all of first importance. But it would hardly be contended that in all these matters regard must be had to the particular forms and procedure used at common law. These requirements relate to matters of substance and not of form. And the te purpose of the Amendment can be achieved only by applying them in that sense." (United States v. Wood, 299 U. S. 123, 142-143, Dec. 7, 1936.)

Exception as to persons in armed forces.

"The sixth amendment affirms that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, 'except cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger;' and the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth." (Ex parte Milligan, 4 Wall. 2, 123, Dec. Term, 1866. See also: Kahn v. Anderson, 255 U. S. 1, 8-9, Jan. 31, 1921; Ex parte Quirin et al., 317 U. S. 1, 40, Oct. 29, 1942; Ex parte Wildman, 29 Fed. Cas. 1232, No. 17,653a, July 17, 1856; In re Waidman, 42 F.2d 239, 240-241, July 11, 1930; Terry v. United States, 2 F. Supp. 962, 963, Mar. 22, 1933.)

Exception as to offenders against law of war."We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces charged with infractions of

the Articles of War punishable by death. It is equally inadmissible to construe the Amendments-whose primary purpose was to continue unimpaired presentment by grand jury and trial by petit jury in all those cases in which they had been customary--as either abolishing all trials by military tribunals, save those of the personnel of our own armed forces, or, what in effect comes to the same thing; as imposing on all such tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jury. We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury." (Ex parte Quirin et al., 317 U. S. 1, 44-45, July 31, 1942.)

.

Waiver of rights. "Article six of the amendments *** gives the accused a right to a trial by jury. But the same article gives him the further right to be confronted with the witnesses against him and to have the assistance of counsel.' Is it possible that an accused cannot admit and be bound by the admission that a witness not present would testify to certain facts? Can it be that if he does not wish the assistance of counsel and waives it, the trial is invalid? It seems only necessary to ask these questions to answer them. When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." (Schick v. United States, 195 U. S. 65, 71-72, May 31, 1904. See also Mullan v. United States, 212 U.S. 516, 519-520, Feb. 23, 1909.)

"The short of the matter is that an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel. There is nothing in the .Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer." (Adams v. U. S. ex rel. McCann, 317 U.S. 269, 275, Dec. 21, 1942.)

Defendant, in a prosecution for rape, was not deprived of a public trial by an order clearing the courtroom of spectators, but permitting all persons connected with the court, either as officers or members of the bar, and all persons in any manner connected with the case as witnesses, etc., to remain. "We think the better doctrine is that it is not reversible error to exclude the spectators as was done by the order of the court in the case at bar, when there is no showing whatever, that the defendant was prejudiced thereby, or deprived of the presence, aid, or counsel of any person whose presence might have been of advantage to him. The constitutional provision for a public trial should be construed in a reasonable sense, and in view of the object thereby intended to be subserved. The mere denial of the literal right should not be held ground for reversing a judgment, unless it can be perceived that the defendant has been deprived of some benefit or advantage thereby." (Reagan v. United States, 202 'F. 488, 490, Feb. 3, 1913.)

"The Sixth Amendment provides that 'in all criminal prosecutions the accused shall enjoy the right to a public trial.' The provision is

one of the important safeguards that were soon deemed necessary to round out the Constitution, and it was due to the historical warnings of the evil practice of the Star Chamber in England. The corrective influence of public attendance at trials for crime was considered important to the liberty of the people, and it is only by steadily supporting the safeguard that it is kept from being undermined and finally destroyed. As the expression necessarily implies, a public trial is a trial at which the public is free to attend. It is not essential to the right of attendance that a person be a relative of the accused, an attorney, a witness, or a reporter for the press, nor can those classes be taken as the exclusive representatives of the public. Men may have no interest whatever in the trial, except to see how justice is done in the courts of their country." (Davis v. United States, 247 F. 394, 395-396, Dec. 31, 1917.)

Composition of jury. "There is nothing in the State or Federal Constitutions, or in any statute, which guarantees one accused of a crime a trial by a jury composed of men and women, or of only men, or of only women, or of any definite proportion of either sex. His right is to a fair and impartial jury, and not to a jury composed of any particular individuals. *** He cannot complain if he is tried by an impartial jury, and can demand nothing more." (United States v. Ballard, 35 F. Supp. 105, 107-108, Oct. 8, 1940.)

II. RIGHT TO BE INFORMED AS TO NATURE AND CAUSE OF ACCUSATION.

Requisites of an indictment. "In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed to mean, that the indictment must set forth the offence 'with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged; ' and in United States v. Cook, 17 Wall. 174, that 'every ingredient of which the offence is composed must be accurately and clearly alleged. ' It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms

as in the definition; but it must state the species, --it must descend to particulars. 1 Arch. Cr. Pr. and Pl., 291. The object of the indictment is, first, to furnish the, accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances. (United States v. Cruikshank et al., 92 U.S. 542, 557-558, Oct. Term, 1875. See also: Burton v. United States, 202 U.S. 344, 372-373, May 21, 1906; United States v. Fotter, 56 F. 83, 89-90, Oct. 29, 1892.)

"

Exceptions to general rule. "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of the witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." (Mattox v. United States, 156 U.S. 237, 242-243, Feb. 4, 1895.

"It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be brogated. The ground upon which such exception rests is that from the circumstances under which dying declarations are made they are equivalent to the evidence of a living witness upon oath -- 'the condition of the party who made them being such that every motive to faisehood must be supposed to have been silenced, and

the mind to be impelled by the most powerful considerations to tell the truth?" (Kirby v. United States, 174 U.S. 47, 61, Apr. 11, 1899.)

"The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated." (Reynolds v. United States, 98 U.S. 145, 158, Oct. Term, 1878.)

Applicability of provision to courts-martial.Accused was tried by summary court-martial and convicted on the specification "Using abusive and threatening language to another person in the naval service." The court, over the objection of the accused, admitted in evidence a written report from a member of the shore patrol. Held: the court erred in its ruling upon the objection of accused, as the statements set forth in the letter were not under oath, the witness did not confront the accused and was not subject to cross-examination by him, and the court by admitting in evidence the written report of the patrolman violated that portion of the Sixth Amendment which reads as follows: "In all criminal prosecutions the accused shall enjoy the right to be confronted with the witness against (File MM-Kelly, Joseph G/A17-21 (280730), Accord: File July 30, 1928, C.M.O. 7-1928, p. 11. MM-Foss, Roy A/A17-21 (290527), May 27, 1929, C.M.O. 5-1929, p. 18.)

him

*

11

IV. COMPULSORY PROCESS FOR OBTAINING WITNESSES.

Scope of provision. "The right of an accused before a military court, under Article VI of the amendments to the Constitution and the Twenty-second Article of war, to have the benefit of compulsory process for obtaining witnesses in his favor, does not extend to the obtaining of the services of✶ ✶✶ an expert witness, but when the accused, having obtained consent from the proper authority to introduce expert testimony on his behalf, obtains the services of an expert to give such testimony, the matter of compensation and expenses for the services rendered is solely between the accused and the expert as to which the United States assumes no obligation whatever, the situation being analogous to that when an accused is permitted to obtain the services of special civil counsel of his own selection." (10 Comp. Gen. 111, 113, Sept. 8, 1930.)

an accused, whose life or liberty is at stake, of the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 462, 463. Even as we have held that the right to the assistance of counsel is so fundamental that the denial by a state court of a reasonable time to allow the selection of counsel of one's own choosing, and the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment, Powell v. Alabama, 287 U.S. 45, so are we clear that the 'assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. " (Glasser v. United States,

315 U.S. 60, 69-70, Jan. 19, 1942.)

-

-

Waiver of right. "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused whose life or liberty is at stake is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." (Johnson v. Zerbst, 304

U.S. 458, 465, May 23, 1938. See also Buckner v. Hudspeth, 105 F.2d 396, 397, June 20, 1939.)

"The Sixth Amendment to the Constitution of the United States guarantees one charged with a crime the right to have counsel in his defense; but a defendant may waive the right provided it is waived intelligently, understandingly, and in a competent manner. *** And the waiver of such right will ordinarily be implied where the accused appears in court without counsel and fails to request or indicate in any manner a desire that counsel be assigned to him." (McDonald v. Hudspeth, 108 F.2d 943, 944, Jan. 4, 1940.)

Applicability of provision to courts-martial. "We hold that any Army officer, chosen, as here, by the accused, admitted by a court-martial to practice for him the arts of a military defense, need not also be admitted to practice by some civil court, in which military law may never have had the slightest consideration, to be the 'counsel' in a courtmartial for which the Sixth Amendment makes provision. So far as concerns the Sixth Amendment, a court-martial counsel, chosen by the litigant and accepted by that body to prosecute or defend litigation there, is the same kind of officer at the bar of that court as is one entitled to practice at the bar of any other court." (Romero v. Squier, 133 F.2d 528, 531-532, Jan. 29, 1943, cert. den., 318 U.S. 785.)

CASE NOTE

Suits in the Court of Claims.- "Suits against the government in the Court of Claims, whether reference be had to the claimant's demand, or to the defence, or to any set-off, or counter-claim which the government may assert, are not controlled by the Seventh Amendment. They are not suits at common law within its true meaning. The government

cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States." (McElrath v. United States, 102 U.S. 426, 440, Oct. Term, 1880.)

CASE NOTES

Scope and operation of Eighth Amendment.'Lifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution." (Wilkerson v. Utah, 99 U.S. 130, 135-136, Oct. Term, 1878.)

"The provision in reference to cruel and unusual punishments was taken from the well-known act of Parliament of 1688, entitled 'An act declaring the rights and liberties of the subject, and settling the succession of the crown, ་ in which, after

1

rehearsing various grounds of grievance, and among others, that 'excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed; and illegal and cruel punishments inflicted, it is declared that 'excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Stat. 1 W. & M. c. 2. This Declaration of Rights had reference to the acts of the executive and judicial departments of the government of England; but the language in question as used in the constitution of the State of New York was intended particularly to operate upon the legislature of the State, to whose control the punishment of crime was almost wholly confided. So that, if the punishment prescribed for an offence against the laws of the State were manifestly cruel