United States v. Advertising Checking Bureau

• Decision Date: 06 May 1953
• Docket Number: No. 10740.,10740.
• Citation: 204 F.2d 770
• Parties: UNITED STATES v. ADVERTISING CHECKING BUREAU, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

204 F.2d 770 (1953)

UNITED STATES v. ADVERTISING CHECKING BUREAU, Inc.

No. 10740.

United States Court of Appeals Seventh Circuit.

May 6, 1953.

Horace A. Young and Downer McCord, Chicago, Ill., for appellant.

H. Brian Holland, Asst. Atty. Gen., Roger P. Marquis, Elizabeth Dudley, Washington, D. C., Attorneys, Otto Kerner, Jr., U. S. Atty., and Clarence W. Beatty, Jr., Sp. Asst. to U. S. Atty., Chicago, Ill., James M. McInerney, Asst. Atty. Gen., for appellee.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This is an appeal from a summary judgment entered in favor of the United States of America in an action to condemn certain space occupied by the defendant, The Advertising Checking Bureau, Inc., in the Rand McNally Building located in Chicago, Illinois.

On June 22, 1951, the General Services Administration entered into an agreement with the Clark-Congress Corporation, owner of the Rand McNally Building, providing for a lease to the General Services Administration of the entire building for a term of five years commencing January 1, 1952. The defendant at that time occupied one-half of the eighth floor of the building under a lease having approximately four years yet to run. On the same date the General Services Administration advised the defendant, by letter, that the building was needed for government use and that arrangements had been made for its occupancy, and the defendant was invited to discuss "how the needs of the government can be satisfied insofar as they affect the space now occupied by you in this building."

The defendant continued in possession under its lease and on December 12, 1951, the United States, at the request of the Administrator of General Services, instituted this action to condemn the space occupied by the defendant, seeking the right to its use and occupancy for a five year term commencing January 1, 1952. The petition recited as authority for the taking the Act of Congress approved August 1, 1888, 40 U.S.C.A. § 257, the Act of Congress approved August 27, 1935, 40 U.S.C. A. § 304c, and the Federal Property and Administrative Services Act of 1949, 63 Stat. 377. The housing of federal agencies outside the District of Columbia was stated as the use for which the space was to be taken. On the same date a Declaration of Taking was filed by the Administrator of General Services in which he stated that he was depositing in the registry of the court the sum of $10,000 estimated by him as just compensation for the use of the persons entitled thereto.

On December 26, 1951, the defendant was directed, upon a motion of the Government for an order to deliver possession of the space involved, to surrender its occupancy on or before May 31, 1952, and to pay to the General Services Administration the monthly rental on its space for the intervening months.

The defendant answered the petition for condemnation, denying the authority of the plaintiff to condemn the space and, in the alternative, asking that the defendant be awarded damages of $95,000. The defendant filed a cross-claim against the Clark-Congress Corporation, also named by the Government as a party defendant to the action, alleging breach by that corporation of its lease with the defendant and asking damages of $95,000. A motion to strike part of the answer and the cross-claim was denied. The Government then moved for the entry of a summary judgment that the defendant was entitled to no compensation for the taking, and this motion was granted without prejudice to the defendant to proceed on its cross-claim against its lessor. It is from this judgment that the defendant appeals.

The defendant challenges, first, the Government's authority to condemn the space involved. The Act of August 27, 1935, 40 U.S.C.A. § 304c, confers upon the Administrator of General Services authority "to procure space by lease * * * for the housing of any Federal agency or agencies outside of the District of Columbia * * *." It is true that, standing alone, this statute does not authorize the acquisition of space by condemnation. However, the Act of August 1, 1888, 40 U.S.C.A. § 257, provided that in every case in which any officer of the Government "has been, or hereafter shall be" authorized to procure real estate for a public use, he may acquire the same for the United States by condemnation. We believe the question raised must be resolved against the defendant by the plain language of this Act.

It frequently has been invoked, in analogous circumstances, to sustain the asserted power. Thus, in Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809, the authority of the Government to condemn the Hanson canal for use as part of an intracoastal waterway project was affirmed on the basis of the Act of August 1, 1888, in combination with a 1912 statute authorizing the Secretary of War to purchase the canal. In that case the court said, 261 U.S. at page 587, 43 S. Ct. at page 444:

"The Acts of July 25, 1912, authorizing purchase and of August 1, 1888, make it obvious that the Secretary of War was authorized to acquire the property by purchase or condemnation."

An earlier statute expressly conferring the power of condemnation in connection with the improvement of rivers and harbors was not relied upon to sustain the taking. The appellant there argued that the earlier act by expressly granting the power to condemn in that particular field excluded the possibility that the 1888 general act could be there used but the Supreme Court held otherwise.

In United States v. Threlkeld, 10 Cir., 72 F.2d 464, statutes appropriating large sums for the construction and maintenance of roads in connection with the national forests were thought to give the Secretary of Agriculture the right to acquire land for road purposes. In that case the court held that having such right to acquire by purchase, the Act of August 1, 1888, also gave him the right to condemn land for such roads. And in Barnidge v. United States, 8 Cir., 101 F.2d 295, 297, it was held that in view of the Act of August 1, 1888, the Secretary of the Interior might acquire property by condemnation for the purposes specified in the Historic Sites Act, 16 U.S. C.A. § 461 et seq., not withstanding the fact that that "Act does not purport to authorize the condemnation of property for the consummation of its purposes." The court recognized the lack of necessity for such authority in the latter Act, stating, 101 F. 2d at page 297-298:

"As authority had already been conferred to procure real estate for public uses by condemnation, it would seem to have been quite unnecessary to embody in this Act specific authority to acquire real estate by condemnation proceedings. We must assume that Congress had full knowledge of the Act of August 1, 1888 and of the interpretation that had been placed upon it by the courts."

See also Polson Logging Co. v. United States, 9 Cir., 160 F.2d 712; United States v. Beaty, D.C., 198 F. 284, reversed on other grounds, 4...