Hessel v. A. Smith & Co.

• Decision Date: 30 June 1936
• Citation: 15 F. Supp. 953
• Parties: HESSEL v. A. SMITH & CO.
• Court: U.S. District Court — Eastern District of Illinois

15 F. Supp. 953

HESSEL v. A. SMITH & CO.

District Court, E. D. Illinois.

June 30, 1936.

J. G. Thomas and R. F. Dobbins, both of Champaign, Ill., for plaintiff.

J. L. Rosenberg, of Decatur, Ill., for defendant.

WHAM, District Judge.

This matter comes before the court on the sworn bill of the complainant, John Frederick Hessel, owner of certain premises which the United States government is seeking to condemn in a pending proceeding in this court and of which premises the government has taken possession with title in a statutory proceeding under the provisions of sections 258a-258e, title 40 U.S. C., 40 U.S.C.A. §§ 258a-258e (Feb. 26, 1931, c. 307, §§ 1-5, 46 Stat. 1421, 1422). In the hearing before the court plaintiff seeks a temporary injunction against the defendant, A. Smith & Co., a corporation, to restrain said defendant and those acting in its behalf under a contract with the United States for the erection of a post office building on said premises, from wrecking and demolishing the improvements now thereon or otherwise damaging said premises until the final determination of said condemnation proceedings and final hearing on plaintiff's bill for injunction. The defendant did not appear at the hearing though served with timely notice. The United States is not made a party to this suit.

It is alleged in the bill of complaint that on the day of the filing of the said condemnation proceedings against said lands in which plaintiff and others were made defendants, the United States of America filed in said cause a "Declaration of Taking," and subsequent thereto an order was entered thereon by this court entitled, "Judgment on the Declaration of Taking." Copies of said order and all papers filed in support of said declaration of taking are attached to plaintiff's bill. Said order, after setting forth the findings of the court necessary to bring the "taking" within the authority of said statute (258a, title 40, U. S.C., 40 U.S.C.A. § 258a), provided, in part, as follows:

"And the Court, having fully considered said condemnation petition and Declaration of Taking, and the statutes in such cases made and provided, is of the opinion that the United States of America was and is entitled to take said property and have the title thereto vested in it pursuant to the Act of Congress approved August 1, 1888. It is therefore, considered by the Court, and it is the order, judgment and decree of the Court, that the title to the following described lands in fee simple absolute was vested in the United States of America, upon the filing of said Declaration of Taking and the deposit in the registry of this court, as hereinabove recited, of said sum of Twelve Thousand Dollars ($12,000.00) and said lands are deemed to have been condemned and taken as of the date of said filing and deposit and are condemned and taken for the use of the United States, and the right to just compensation for the same thereby vested in the persons entitled thereto and the amount of said compensation shall be ascertained and awarded in this proceeding and established by judgment herein pursuant to law.

"The lands are described as follows: * * *

"The possession of the above described property shall be delivered to the United States of America on or before the 1st day of March 1936.

"This cause is held open for such other and further orders, judgments and decrees as may be necessary in the premises.

"Entered on this, the 28th day of January, 1936."

It is further alleged by the plaintiff that the Secretary of the Treasury of the United States has awarded a contract to the defendant herein, A. Smith & Co., a corporation, for the wrecking and demolition of the improvements upon the premises and for the erection of a building thereon, and that the defendant is about to enter upon the premises for the purpose of carrying out said contract; that the premises are improved with a dwelling house of a value in excess of $25,000 in the belief of the plaintiff; that no compensation, as provided by law, has been paid to the plaintiff, nor has reasonable, certain, and adequate provision for obtaining said compensation for said premises been made; that, in the opinion of the plaintiff, the reasonable and adequate compensation for said premises will be in excess of the limitation prescribed by Congress as a price to be paid therefor; that without the aid of the injunctive process of this court the defendant will destroy the improvements upon said premises without compensation therefor having been paid to the plaintiff and without adequate provision having been made, in violation of the rights of the plaintiff under the Fifth Amendment to the Constitution of the United States of America, in that he will be deprived of his property without due process of law and have his said property taken from him for public use without just compensation, resulting in an irreparable injury to him for which he has and will have no adequate remedy at law.

The principal contention of the plaintiff is that the statutory authority under which the United States of America has taken title and possession of said property under the order of this court prior to the conclusion of the condemnation suit is unconstitutional and void, in that it takes from the plaintiff his property without due process of law and deprives him of his property for a public use without just compensation.

There has been no showing that the procedure of "taking" has not been in strict accordance with statutory provisions. Furthermore, it appears from the record of the cause that plaintiff did not contest the right of the United States to the order of taking, though he was a party to the proceeding and had notice of the hearing, and has taken no steps in said proceedings to have said order set aside. He is without standing in this suit for injunction against the defendant acting under its contract with the United States unless the said order of taking is void and of no effect because founded on an unconstitutional law.

While reference is made in the declaration of taking filed herein to other statutes, it is obvious that the authority for the "taking," which "taking" was subsequent to the beginning of the condemnation proceedings, was found in sections 258a-258e, title 40, U.S.C., 40 U.S.C.A. §§ 258a-258e, Feb. 26, 1931, c. 307, 1-5, 46 Stat. 1421, 1422. The validity of said statute only will be considered.

It is said by counsel for plaintiff that there is no published decision wherein the constitutionality of the statute in question has been considered, and I have found none. The short but helpful brief supplied by counsel for plaintiff deals only with applicable general principles.

The Fifth Amendment to the Constitution of the United States provides: "No person shall * * * be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Whether or not the statute in question infringes the constitutional rights of the plaintiff depends on whether it provides for or permits the taking of plaintiff's property for a public use without due process of law or without just compensation. Section 258a of said statute provides, in part, as follows:

"Upon the filing said declaration of taking and of 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 in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall include, as part of the just...