with attendant expense and delay; a procedure, designed for a specific class of cases, sharply defined, which should not be lightly extended.
It appears that the Secretary of Commerce and the Attorney General are proceeding under the Act of September 7, 1950, Public Law 762, 81st Congress, 64 Stat. 770, which authorized and directed the Secretary of Commerce to construct, operate, and maintain a public airport within or in the vicinity of the District of Columbia. The Act further confers upon the secretary the power of eminent domain. It is alleged in the complaint that the airport is to be a municipal facility of the District of Columbia, located in Virginia. It is further asserted that it is unconstitutional to cover the power of eminent domain in connection with the construction and operation of a municipal facility for the District of Columbia, located outside of the District.
The court must, of course, take judicial notice of an act of Congress, and if there is an inconsistency between the act of Congress in question and a summary of its contents in the pleadings, the former must prevail. The court construes the act as not authorizing the construction of a municipal airport, but of a national or federal airport, to be located either within the District of Columbia or in its vicinity.
It is settled by decisions of the Supreme Court, beyond preadventure of doubt, that the United States is clothed with the power of eminent domain. Even though the power was not expressly conferred by the Constitution, the power is implied and is incidental to carrying out other powers, Kohl v. United States, 91 U.S. 367, 23 L. Ed. 449. The right of eminent domain which exists in the federal government may be exercised by it within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. Under its power to regulate commerce between the states, as well as foreign commerce, it is fundamental that Congress may construct, maintain, and operate instrumentalities of such commerce, California v. Pacific Railroad Co., 127 U.S. 1, 39, 8 S. Ct. 1073, 32 L. Ed. 150; Luxton v. North River Bridge Co., 153 U.S. 525, 529 et seq., 14 S. Ct. 891, 38 L. Ed. 808. Since the early days of the Republic, acting under this power as well as the power to maintain post offices and post roads, Congress constructed such instrumentalities of commerce as roads, highways, bridges, lighthouses, and the like. The power to do so is so well established that to question it does not present a substantial constitutional issue. At times Congress has maintained such instrumentalities through federal agencies, and at other times through corporations organized by its authority.
It is clear that in the light of modern developments an airport is an instrumentality of both foreign and interstate commerce. While, to be sure, what constitutes a public use is a judicial question- and if the question is substantially debatable it would justify the convening of a three-judge court- nevertheless, when it is clear that the use for which it is sought to condemn property by eminent domain is a public one, there is no basis for a conclusion that a substantial question is presented as to the constitutionality of the statute.
The court feels that it is beyond the realm of debate that an airport is as much an instrumentality of commerce as a highway, a bridge, a lock, a dam, a lighthouse, all of which have been constructed at various times in different places under the authority of acts of Congress acting under the commerce power. The court, therefore, reaches the conclusion that a substantial constitutional question is not presented, and the application for convening a three-judge court is denied.
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