In re United States, 17267.

• Decision Date: 01 August 1958
• Docket Number: No. 17267.,17267.
• Citation: 257 F.2d 844
• Parties: In re UNITED STATES of America Praying for a Writ of Mandamus or Writ of Prohibition.
• Court: U.S. Court of Appeals — Fifth Circuit

257 F.2d 844 (1958)

In re UNITED STATES of America Praying for a Writ of Mandamus or Writ of Prohibition.

No. 17267.

United States Court of Appeals Fifth Circuit.

August 1, 1958.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis and Harold S. Harrison, Attys., Dept. of Justice, Washington, D. C., James L. Guilmartin, U. S. Atty., Miami, Fla., Robert F. Nunez, III, Asst. U. S. Atty., Tampa, Fla., for petitioner.

Chester H. Ferguson, John M. Allison, Tampa, Fla., for respondent.

Before HUTCHESON, Chief Judge, and JONES and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

This is a petition for mandamus or prohibition to compel the district judge to set aside an order¹ vacating a declaration of taking, as amended, entered by him in a condemnation proceeding,² and to proceed to enter an appropriate order granting possession of the property here involved to the United States under the provisions of the Act of Feb. 26, 1931, 46 Stat. 1421, 40 U.S.C.A. § 258a, and the Act of August 7, 1956, 42 U.S.C.A. § 1594a.

Two questions are presented for decision:

(1) Is Mandamus available to test the validity of the complained of order?

(2) Is the order invalid as claimed?

For the reasons hereafter briefly stated and upon the authorities cited in support, we think it clear that both questions must be answered in the affirmative.

As all, including the petitioner, agree, the order is not appealable. Dade County, Florida v. United States, 5 Cir., 142 F.2d 230; Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; United States v. Richardson, 5 Cir., 204 F.2d 552.

On the other hand, we are in no doubt that this is a proper case for the issuance of the alternative writ under the principle applied in Richardson's case, supra, in denying its issuance there:

"* * * We are in no doubt that we have jurisdiction to issue an alternative writ in a proper case but these writs as was said in Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 `should be resorted to only where appeal is a clearly inadequate remedy. * * * As extraordinary remedies, they are reserved for really extraordinary causes.\' The present case may not be so characterized. The appellant contends that if a writ is not granted it is left without a remedy and that the power of reviewing will be defeated. Further that the order for examination constituted not only an abuse of discretion but an error as to the scope of the court\'s authority under the rules." 204 F.2d at page 556.

Indeed, the order granting defendant's motion to vacate the declaration of taking presents a perfect case for relief by mandamus, since it was not the function, and it was beyond the power, of the court to make such an order, and therefore no question of the use or abuse of discretion is presented. This is settled by the cases,³ as quotations from some of them will show.

In Dade County, Florida v. United States, 5 Cir., 142 F.2d 230, 231, this court, saying:

"The court does not award the right of possession nor adjudge the title. * * * The law gives the right of possession, apparently without the necessity of any court order, though it is orderly and decent to get one."

goes on to say:

"The statute declares: `Upon the filing of said declaration of taking and the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands * * * shall vest in the United States of America * * * and the right to just compensation for the same shall vest in the persons entitled thereto.\' It does not matter whether the court makes any order about it or not.

The Act proceeds to say: `and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein.\' That is the real and substantial function of the court. That judgment is the essential and final one."

United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 1045, 2 L.Ed.2d 1109, is to the same effect. There the court said:

"The Taking Act does not bestow independent authority to condemn lands for public use. On the contrary, it provides a proceeding `ancillary or incidental to suits brought under other statutes,\' Catlin v. United States, supra, 324 U.S. 229 at page 240, 65 S.Ct. 631 at page 637, 89 L.Ed. 911. Such a proceeding can be instituted either at the commencement of the condemnation suit under the `other statutes\' or, as in this case, after such a suit has been commenced and either before or after the Government has taken possession. In both situations the Taking Act enables the United States to acquire title simply by depositing funds `for or on account\' of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order. In those cases where the Government has not yet entered into possession, the filing of the declaration enables it to enter immediately and relieves it of the burden of interest from the time of filing to the date of judgment in the eminent domain proceedings. See United States v. Miller, supra, 317 U.S. 369 at pages 380-381, 63 S. Ct. 276 at pages 283-284, 87 L.Ed. 336.

"The scheme of the Taking Act makes it plain that when the Government files a declaration before it has entered into possession of the property the filing constitutes the `taking.\'" (Emphasis supplied.)

In United States v. 6.74 Acres of Land, 5 Cir., 148 F.2d 618, 620, this court said:

"We conclude that under the Congressional Acts the necessity of the taking and the extent of the title to be taken are questions vested exclusively in the Secretary of War, and that upon the filing of the declaration of taking and the depositing of the money in the registry of the court neither appellee nor the court below could assail or in anywise limit the title which immediately passed to the Government thereunder."

Even respondents in effect concede in their brief that the order vacating the declaration of taking is on its face invalid. They undertake to avoid the consequences of the concession by arguing that the order, though on its face an order vacating the order of taking, an order beyond the court's power to make, should be treated as an order denying possession and referred for its authority to the last two sentences of Sec. 258a, Title 40:

"Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable."

In his answer to the petition, the district judge gives expression to the view that the provision in the statute that the declaration of taking shall contain or have annexed thereto "a statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken", means a good faith, fair, and honest estimate, and that this provision, taken with the further provision of the statute, "upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioners", authorizes the district judge, when he is of the opinion, on the record, that the amount rendered does not constitute estimated just compensation as required by law, to find and hold that the declaration of taking was not filed in good faith but arbitrarily, and, on the basis of that finding, to vacate the declaration and refuse the requested order of possession.

With deference to the contrary views of the district judge, we deem the settled law to be that the purported bad faith exception to the rule of finality of the administrative estimate of just compensation does not exist, that, in short, the courts have no jurisdiction to review the amount of estimated compensation, none to set aside or vacate a declaration of taking, none to refuse a declaration of possession on the...