Carlisle v. Cooper

• Decision Date: 25 October 1894
• Citation: 64 F. 472
• Parties: CARLISLE v. COOPER et al.
• Court: U.S. Court of Appeals — Second Circuit

64 F. 472

CARLISLE v. COOPER et al.

United States Court of Appeals, Second Circuit.

October 25, 1894

A. B Boardman, for plaintiff in error.

Edward Mitchell, U.S. Atty.

Wm. D Shipman and Chas. C. Marshall, for defendants in error.

Shipman Larocque & Choate, Anderson, Howland & Murray, J. Frederick Kernochan, and Strong & Cadwalader, for owners of lots, 2, 5 6, 7, 15, and 16, defendants in error.

Before BROWN, Circuit Justice, and WALLACE and SHIPMAN, Circuit judges.

WALLACE Circuit Judge.

The plaintiff in the court below seeks by this writ of error to review a judgment of the circuit court in a suit brought to condemn certain real estate in New York City for public uses, dismissing the suit, and awarding costs and additional allowances to the several defendants, owners of different parcels of the land, against the plaintiff. He assigns error only of that part of the judgment which awards the costs and additional allowances.

The suit was brought pursuant to an act of congress of August 1, 1888, entitled 'An act to authorize condemnation of land for sites of public buildings, and for other purposes. ' This act authorizes the secretary of the treasury, or any other officer of the government having authority to procure real estate for public uses, to acquire the same for the United States by condemnation under judicial process, and confers jurisdiction upon the circuit or district courts of the United States of the district wherein the real estate is located. Section 2 of the act provides as follows:

'The practice, pleadings, forms and modes of proceeding in causes arising under the provisions of this act shall conform as near as may be the practice, pleadings, forms and modes of proceeding existing at the time in like causes in the courts of record of the state within such circuit or district courts are held, any rule of the court to the contrary notwithstanding.'

After the suit had proceeded to a trial upon the issues made by the answers of the several defendants, a decision that the plaintiff was entitled to the appointment of commissioners of appraisal, the appointment of commissioners, the hearing of testimony, and the filing of the report of the commissioners, it appeared that the money in the hands of the secretary of the treasury, appropriated by congress for the acquisition of the property, was insufficient to satisfy the awards reported by the commissioners. Thereupon, the defendants moved to dismiss the suit, and at the hearing of that application the plaintiff elected that the suit be discontinued and wholly dismissed as to all the parties defendant thereto, and as to all the real estate in controversy. The court, in discontinuing and dismissing the suit, adjudged that the plaintiff pay, out of any funds in the treasury department of the United States available for such purposes, to the several defendants, certain taxable costs, together with an additional allowance of 5 per centum, as further costs, upon the amount awarded by the report of the commissioners to each defendant. The aggregate sum of the additional allowance was $105,000. The court also adjudged that the plaintiff pay, out of any funds in the treasury department of the United States available for such purposes, the sum of $1,000 to Arthur H. Masten, the attorney for the defendants who had not been personally served or appeared in the action. The additional allowances were made pursuant to section 3372 of the New York Code of Civil Procedure, which authorizes the court, in condemnation suits, to grant to the prevailing party 'an additional allowance for costs, not exceeding five per centum upon the amount awarded. ' The allowances to Mr. Masten was made pursuant to sections 3363 and 3372 of the Code, which provide as follows:

'Sec. 3363. * * * If a service other than personal has been made upon any defendant and he does not appear upon the presentation of the petition the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding.'

'Sec. 3373. * * * The court shall also direct in the final order what sum shall be paid * * * to an attorney appointed by the court to attend to the interests of any defendant upon whom other than personal service of the petition and notice may have been made, and who has not appeared, for costs, expenses and counsel fee, and by whom, or out of what fund, the same shall be paid.'

It is insisted for the plaintiff in error that no costs or allowances can be awarded against the government without permission of an act of congress, and that there is no such act applicable to the present case. Whether costs were properly awarded against the government, and, if so, whether the amount allowed by the circuit court was authorized by law, are questions which depend upon the effect of the act of congress of August 1, 1888. Section 721 of the United States Revised Statutes (originally section 34 of the judiciary act of 1789) has no application to the case. U.S. v Thompson, 98 U.S. 486; Ex parte Fisk, 113 U.S. 720, 5 Sup.Ct. 724. In the absence of legislation by congress authorizing costs against the government, they cannot be imposed in any suit to which it is a party. The principle is that the sovereign power is not amenable to judgments for damages or costs without its own consent. U.S. v. Hooe, 3 Cranch, 73; U.S. v. Barker, 2 Wheat. 395; The Antelope, 12 Wheat. 546; U.S. v. McLemore, 4 How. 286; U.S. v. Boyd, 5 How. 29; Reeside v. Walker, 11 How. 272; Briggs v. Light Boats, 11 Allen, 157; State v. Kinne, 41 N.H. 238; Collier v. Powell, 23 Ala. 579; U.S. v. Davis, 4...