85 F.2d 208 (D.D.C. 1936), 6619, Township of Franklin, Somerset County, N.J. v. Tugwell

Docket Nº:6619.
Citation:85 F.2d 208
Party Name:FRANKLIN TP. IN SOMERSET COUNTY, N.J., et al. v. TUGWELL, Administrator, Resettlement Administration, et al.
Case Date:May 18, 1936
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 208

85 F.2d 208 (D.D.C. 1936)



TUGWELL, Administrator, Resettlement Administration, et al.

No. 6619.

United States Court of Appeals, District of Columbia.

May 18, 1936

STEPHENS, Association Justice, dissenting in part.

Appeal from the Supreme Court of the District of Columbia.

Page 209

[Copyrighted Material Omitted]

Page 210

Dean G. Acheson, Spencer Gordon, and Edward B. Burling, all of Washington, D.C., for appellants.

Ralph S. Boyd, of Washington, D.C., and Allan D. Jones, of Newport News, Va., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellants, plaintiffs below, filed a bill in equity in the Supreme Court of the District of Columbia seeking to restrain defendant Tugwell, Administrator of the Resettlement Administration of the government officers from acquiring certain privately owned lands in the township of Franklin, Somerset county, N.J. The lower court granted defendants' motion to dismiss the bill, and from that decree plaintiffs appeal.

The authority of defendants is claimed under the Emergency Relief Appropriation Act of 1935 (49 Stat. 115 (15 U.S.C.A. 728 note)) and Executive Orders Nos. 7027 and 7200, dated April 30, 1935, and September 26, 1935, respectively.

It is averred in the bill, and by the motion to dismiss admitted, that the township of Franklin is a municipal corporation organized and existing under the laws of New Jersey, possessing the usual powers of such corporations, and deriving its revenues 'almost exclusively from the inhabitants within its limits and the property located therein'; 'the major portion of such revenues' being received from taxes on real estate. It is alleged that the board of education of Franklin township is a corporation organized and existing under the laws of New Jersey, charged with the duty of providing educational facilities for the inhabitants of the township, and deriving its revenues almost exclusively from the tax refunds collected by the township. The plaintiffs Suydam, VanCleef, Martin, Brill, and Alsop are property owners and taxpayers in the township.

Page 211

It appears from the averments of the bill of complaint that the Resettlement Administration contemplates the erection within the township of a so-called 'model community.' It is the plan of the Resettlement Administration, acting through the Administrator, to purchase a large area in said township and to erect thereon single and multiple dwelling houses to accommodate approximately 750 families, and to remove into the 'model community' families from congested areas in near-by manufacturing cities, low rentals being one of the principal inducements to be offered by the proposed community.

It is further averred that agents of the Resettlement Administration are securing options from owners of a large part of the real property in the area sought to be acquired; that ultimately they will pay for these lands with funds of the United States, and upon the lands so acquired the 'model community' will be constructed; and that, unless they are immediately restrained, the offers to sell will be accepted by the agents, who will then take deeds for the lands covered thereby.

It is further alleged that the rentals to be charged for the houses constructed by the Administration will be at the rate of four to five dollars a month per room, which will provide a return sufficient only to meet the costs of operation and maintenance; that the Administration will erect stores and shops at the center of the proposed community, build public roads across it, construct a system of parkways and recreation grounds surrounding the proposed development; that the Administration will pursue a policy of resettling urban industrial workers of low income on this development, and of providing better homes for persons now living in houses deemed by the Administration to be of inferior quality, and that virtually no opportunities will be furnished for employment of such persons in the township in connection with the so-called 'model community.'

It is also alleged that the township has at present a population of approximately 6,500, the bulk of which is rural and widely scattered, that under the proposed plan the Administration will bring into the township 750 families, and that eventually more will be brought in to live upon further developments, and that till will result in an immediate increase in the population of the township of at least 3,000 persons, with the threat on the part of the Administration vigorously to push this project to completion.

It is further averred that, unless the defendants are immediately restrained from performing their threatened acts, the township will immediately lose approximately one-fourth in area of the taxable real estate, and approximately one-fourth of the value of the taxable real estate in the township, and ultimately will lose three-fifths in area of its taxable real estate and approximately three-fifths of the value of its taxable real estate; that the proposed community will separate the township into two parts, and will impair the township's ability to discharge its municipal duties in the separated portions remaining under its control; that the division of its territory will greatly increase the cost of discharging its duties; that, because of this increase in population, the duty will be imposed upon the township of providing increased health, police, and fire protection; that the expense of maintaining the proposed roads to be constructed in the community by the Administration will devolve upon the township; that the cost of maintaining the present roads in the township will be greatly increased by reason of the additional population; and that, in general, all costs of discharging the duties of local government, imposed upon the township, will be greatly increased, especially in the matter of furnishing educational facilities, which are already inadequate.

It is also averred that, under the laws of New Jersey, all real estate in the township taxable for the year 1936 was assessed and tabulated on October 1, 1935, and no other assessment or tabulation can, under the law, be made until October 1, 1936; that in 1936 the amount which the township will be required to pay to the county of Somerset on account of taxes for county purposes upon land within the township, assessed and tabulated as of October 1, 1935, will be approximately $54,000, 'which amount the Township must pay in 1936 by reason of said assessment and tabulation, irrespective of whether taxes are collectable or collected'; that, if the land in question is taken and title placed in the United States, taxes cannot be collected thereon, and the township will lose one-fourth of the revenues normally received for its own needs (approximately

Page 212

$10,000), and in addition will lose $13,500, the amount for which the township must account as taxes on said lands, 'and which said Township must pay to said County out of the balance of the revenues normally received for its own needs,' thus suffering 'an irretrievable loss of approximately $23,500.00, if the said lands are removed from liability for taxes in and for the year 1936.'

It is further averred that the board of education will lose a large portion of the sources of revenue for discharge of its duties, because of the loss of taxes suffered by the township, and at the same time will be forced to assume added educational burdens. It is also averred that each of the individual plaintiff taxpayers will suffer an increase in taxation, and that the rental value of property now being leased by plaintiff Alsop and by the township will be depressed because of low rentals offered by the Resettlement project.

It is then averred that defendants are wholly without authority to do any of the acts which they threaten, in that the Resettlement program is not authorized by the Emergency Relief Appropriation Act of 1935, or by any other law of the United States; and that the Emergency Relief Appropriation Act of 1935 is unconstitutional, being repugnant to article 1, Sec. 1; art. 1, Sec. 8, clauses 1, 2, and 18; art. 1, Sec. 9, clause 7; art. 2, Sec. 1, and the Tenth Amendment of the Constitution.

It is urged by counsel for defendants that plaintiffs cannot maintain this action because it is, in effect, a suit against the United States, which has not consented to be sued. We are not impressed by this contention. The action here is one to restrain agents of the United States from performing allegedly illegal acts. The authority of the agents to do the things of which complaint is made is challenged. That such a suit is not one against the United States, but against the officials who are threatening performance of such illegal acts, is well settled. Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 620, 32 S.Ct. 340, 56 L.Ed. 570; Lane v. Watts, 234 U.S. 525, 540, 34 S.Ct. 965, 58 L.Ed. 1440; Payne v. Central Pac. Ry. Co., 255 U.S. 228, 238, 41 S.Ct. 314, 65 L.Ed. 598.

In the Stimson Case the Supreme Court stated the rule as follows (223 U.S. 605, at pages 619, 620, 32 S.Ct. 340, 344, 56 L.Ed. 570):

'The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. Little v. Barreme, 2 Cranch, 170, 2 L.Ed. 243; United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 27 L.Ed. 171.181, 182; Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 40 L.Ed. 599, 601; Tindai v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Scranton v. Wheeler, 179 U.S. 141, 152, 21 S.Ct. 48, 45 L.Ed. 126, 133. And in case of an injury threatened by his illegal action, the officer cannot claim immunity from i4junction process. The principle has frequently been applied with respect to state...

To continue reading