131 F.2d 491 (1st Cir. 1942), 3801, Puerto Rico Ry. Light & Power Co. v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation131 F.2d 491
Date27 November 1942
Docket Number3801.

Page 491

131 F.2d 491 (1st Cir. 1942)




No. 3801.

United States Court of Appeals, First Circuit.

November 27, 1942

Page 492

John J. Burns, of Boston, Mass., and Henri Brown, of San Juan, Puerto Rico (John F. Rich, of Boston, Mass., of counsel), for appellant.

John P. Hearne, Atty., Dept. of Justice, of Washington, D.C. (Norman M. Littell, Asst. Atty. Gen., Vernon L. Wilkinson, Atty., Dept. of Justice, of Washington, D.C., and Philip F. Herrick, U.S. Atty., of San Juan, Puerto Rico, on the brief), for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

We are obliged in this case to set aside a judgment entered July 10, 1942 by the District Court of the United States for Puerto Rico in a condemnation proceeding, adjudging and decreeing that title to the properties of the Puerto Rico Railway Light & Power Company is vested in the United States and authorizing the United States to enter upon and take possession of the premises on and after July 20, 1942.

The original petition for condemnation was filed on June 29, 1942 by the United States Attorney at the direction of the Attorney General, pursuant to the request of the Federal Works Administrator under the provisions of the amended Lanham Act,

Page 493

55 Stat. 361. 1 Accompanying the petition were a lengthy Declaration of Taking describing the various properties to be taken, a Motion for Judgment on Declaration of Taking and an Order to Surrender Possession, and a deposit by the United States of $6, 250, 000, the estimated amount of compensation due-- all in accordance with the condemnation procedure authorized by the Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C.A. §§ 258a-258e. On the same day that the petition was filed, the court

Page 494

below entered an ex parte judgment vesting title in the United States and ordering immediate surrender of possession. This judgment was shortly thereafter vacated upon motion by defendant. The United States filed an amended petition for condemnation, by leave of court, and renewed its motion for judgment on the Declaration of Taking. Defendant demurred to the amended petition, asserting its insufficiency on various legal grounds. After hearing and argument, the court in an opinion rejected the contentions of the defendant, and on July 10, 1942 entered the judgment now appealed from

At the outset the United States challenges our jurisdiction to entertain the appeal, on the ground that the judgment is not a 'final decision' within the meaning of Sec. 128 of the Judicial Code, 28 U.S.C.A. § 225. It is said that the judgment merely determined the Government's right to condemn, leaving damages for the taking yet to be assessed, and that it is therefore not a final and appealable judgment. This contention has been squarely rejected by the Second Circuit in a careful opinion reviewing all the authorities. United States v. 243.22 Acres of Land, 2 Cir., 1942, 129 F.2d 678. We agree with this decision. See also City of Oakland v. United States, 9 Cir., 1942, 124 F.2d 959, certiorari denied, 1942, 316 U.S. 679. A lengthy opinion by us on the point would therefore be superfluous. The judgment now in question is a 'final decision', for purposes of appealability, within the principle of the following decisions of the Supreme Court; Forgay v. Conrad, 1848, 6 How. 201, 204, 12 L.Ed. 404; Thomson v. Dean, 1868, 7 Wall. 342, 345, 19 L.Ed. 94; Ex parte Farmers' Loan & Trust Co., 1889, 129 U.S. 206, 213-215, 9 S.Ct. 265, 32 L.Ed. 656; Knox National Farm Loan Ass'n v. Phillips, 1937, 300 U.S. 194, 197, 198, 57 S.Ct. 418, 81 L.Ed. 599, 108 A.L.R. 738. Luxton v. North River Bridge Co., 1893, 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194, relied on by the United States, is adequately distinguished in United States v. 243.22 Acres of Land, supra, at page 682 of 129 F.2d. We said in Hubert Hermanos, Inc. v. People of Puerto Rico, 1 Cir., 1941, 118 F.2d 752, 757: 'A 'final decision' is not necessarily the ultimate judgment or decree completely closing up a proceeding. In the course of a proceeding there may be one or more final decisions on particular phases of the litigation, reserving other matters for future determination. ' 2 Under the earlier act of August 1, 1888, 25 Stat. 357, 40 U.S.C.A. §§ 257, 258, establishing the procedure for the judicial condemnation of land, there could be no judgment affecting title or possession until after the damages had been determined. It was the particular purpose of the Act of February 26, 1931, 46 Stat. 1421, 40 U.S.C.A. § 258a-258e, to sever the taking of title and possession from controversies as to valuation, and to provide a procedure whereby the United States might be speedily and conclusively vested with title and possession, with authority to demolish existing structures on the condemned land, leaving the issue as to the amount of compensation to be determined in subsequent proceedings. 3 The judgment on the declaration of taking, having this final and immediate effect on property rights, obviously should be reviewable at once, without the necessity of awaiting the outcome of long drawn out controversies as to valuation. Therefore, on reason as well as on authority, we hold that the judgment in question is a 'final decision' within the meaning of Sec. 128 of the Judicial Code.

Page 495

We pass, then, to a consideration of the merits.

The amended Lanham Act declares it to be the policy of the act to provide means by which 'public works' may be acquired, maintained, and operated in areas or localities found by the President to be suffering an acute shortage of public works or equipment for public works necessary to the health, safety or welfare of persons engaged in national-defense activities. We think that facilities for the generation and transmission of electricity for purposes of light and power may be comprehended within the term 'public work', defined in Sec. 201 as meaning 'any facility necessary for carrying on community life substantially expanded by the national-defense program. ' Various alternative methods are provided for remedying the acute shortage of public works or equipment for public works which the President may find to exist in any area or locality. Under Sec. 202(a) the Federal Works Administrator is authorized 'with the approval of the President' to acquire improved or unimproved lands or interests therein by purchase, donation, exchange, lease, or condemnation, for such public works. In Sec. 202(b) the Administrator is authorized, with the approval of the President, by contract or otherwise, to plan, design, construct, remodel, extend, repair or lease public works, and to demolish structures and improvements, on lands acquired by condemnation under subsection (a), to provide proper approaches thereto, also utilities, and transportation facilities, and to procure necessary materials and equipment in connection therewith. Under Sec. 202(c) the Administrator is authorized, with the approval of the President, to make loans or grants, or both, to public and private agencies for public works and equipment therefor, and to make contributions to such agencies for the maintenance and operation of public works.

Senator Maloney, the chairman of the Senate committee which reported the bill, expressed his concern lest the limited appropriation would soon be exhausted in attempts to meet the requests of the communities of the nation 'unless very great care is exercised. ' He emphasized the importance of the provision requiring approval by the President. Thus, he said, 'The bill provides that it shall be administered by the Federal Works Administrator, although it also requires that whatever he does must be with the approval of the President of the United States, and that nothing may be done except with the President's approval. ' And again he said: 'The bill first provides that the President himself must find a need. He must authorize the work; and thereafter, if we pass the bill in its present form, the Federal Works Administrator and those under him will proceed with the work.' 87 Cong.Rec. 5090-91 (1941). See also, a later colloquy at p. 5093. 4 From the text of the act and from the legislative history we are satisfied that the President is required to approve at least in main outline the particular plan, program, or project formulated by the Administrator for the relief of the defined shortage of public works or equipment therefor, before the Administrator is authorized to proceed. It is not enough that the President, after finding the existence of an acute shortage of public works in a given area or locality, should give the Administrator authority, carte blanche, to relieve such shortage by any of the various methods described in Sec. 202 which the Administrator might thereafter deem expedient

In the amended petition for condemnation it is stated that on June 8, 1942, the President, pursuant to Title II of the amended Lanham Act, found:

'(a) That an acute shortage of public works and equipment therefor, necessary to the health, safety and welfare of persons engaged in national defense activities, existed or impended, which would impede national defense activities, in and about the area or locality of Puerto Rico, with reference to electrical transmission and distribution facilities and properties and facilities incidental thereto;

'(b) That such public works and equipment therefor could not otherwise be provided when needed, or could not be provided without imposition of an increased excessive tax burden and an unusual or excessive increase in the debt limit of the taxing or borrowing authority in which such shortage existed.'

Further, it is alleged that on the same date, the President, in the same finding above referred to, 'approved action by the Federal Works Administrator by any of the methods prescribed by the act (the


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT