Cudahy Bros. Co. v. United States

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: KERNER and MINTON, Circuit , and BRIGGLE
• Citation: Cudahy Bros. Co. v. United States, 155 F.2d 905 (7th Cir. 1946)
• Decision Date: 04 June 1946
• Docket Number: No. 8913.,8913.
• Parties: CUDAHY BROS. CO. v. UNITED STATES.

155 F.2d 905 (1946)

CUDAHY BROS. CO. v. UNITED STATES.

No. 8913.

Circuit Court of Appeals, Seventh Circuit.

June 4, 1946.

James D. Shaw and Van B. Wake, both of Milwaukee, Wis., for appellant.

Timothy T. Cronin and E. J. Koelzer, U. S. Atty., both of Milwaukee, Wis. (John

F. Sonnett, Asst. Atty. Gen., J. Francis Hayden, Sp. Asst. to Atty. Gen., and Marvin C. Taylor, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

KERNER, Circuit Judge.

This is an appeal from a judgment in plaintiff's favor in an action brought to recover from defendant what plaintiff claims is just compensation due it for requisitioned beef carcasses, pursuant to the Act of October 16, 1941, c. 445, 55 Stat. 742, as amended, 50 U.S.C.A.Appendix, § 721. The case was tried under the Tucker Act, 28 U.S.C.A. § 41 (20), to a judge without a jury. The court rendered a judgment that plaintiff was entitled to no recovery except the amount of $4,702.04 representing the unpaid fifty percent of the amount determined under the requisitioned proceedings.

The trial judge made special findings of fact. In those findings supported by the evidence are these facts. Plaintiff is engaged in the slaughtering of cattle, hogs and sheep, and in the preparation, and sale, at wholesale, of fresh beef and other meat products. On June 16, 1943, the President of the United States, acting through his authorized agent, requisitioned at plaintiff's plant seventy-five beef carcasses, and on September 2, 1943, a deputy director of the Office of Food Distribution Administration determined that the fair and just compensation for the carcasses taken was $9,404.09, but plaintiff refused to accept that amount. Thereupon, defendant, pursuant to the statute,¹ paid plaintiff fifty percent, or $4,702.05, of the $9,404.09, and plaintiff, claiming that the value of the carcasses was $12,191.49, brought this action to recover what it claimed was fair and just compensation for the requisitioned carcasses. The court also found that prior to June 16, 1943, the Office of Price Administration had fixed a ceiling price for beef carcasses; that when the carcasses were taken, there was an established market at Cudahy, Wisconsin, at which plaintiff was selling like carcasses at the ceiling price; and that the market value of the carcasses requisitioned was $9,404.09.

The record discloses that in addition to the facts found by the court, there was testimony in plaintiff's behalf to the effect that fifty cents per hundredweight more could have been gotten if the carcasses had been cut into pieces, and twenty-five cents per hundredweight more could have been obtained if the beef had been sold in less than carload lots.

Plaintiff claims that the court determined that the maximum ceiling price in effect on June 16, 1943, constituted the only basis for the determination of fair and just compensation, and contends that the standards adopted by the court did not afford an appropriate measure for, nor secure the rendition of, fair and just compensation.

The argument is that "fair value and just compensation" presupposes the existence of a free market; that in our case, no free market prevailed; and that in such a situation, resort should be had to indices of value other than an artificially created market.

True, just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined, Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236, and anticipated profits which are lost because of the taking are not to be included or used as a measure, De Laval Steam Turbine Co. v. United States, 284 U.S. 61, 52 S.Ct. 78, 76 L.Ed. 168, and Russell Motor Car Co. v. United States, 261 U.S. 514, 43 S.Ct. 428, 67 L.Ed. 778, and where there is a market price prevailing at the time and place of the taking, that price is just compensation. United States v. New River Collieries Co., 262 U.S. 341, 344, 43 S.Ct. 565, 67 L.Ed. 1014. See also Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 44 S.Ct. 471, 68 L.Ed. 934. Plaintiff, however, argues that the ascertainment of compensation is a judicial function and that no power exists in any other department of the Government to declare what the compensation shall be or to prescribe any binding rule in that regard, and that the just compensation clause may not be evaded or impaired by any form of legislation.

On the other hand, defendant contends that the court's finding that there was an established market at the ceiling price must be regarded as a finding that there was a "fair market value" for the beef at that level. It challenges plaintiff's assertion that the court determined that the maximum ceiling constituted the only basis for the determination of fair and just compensation. But even if that were true, it contends, the ceiling price represents a maximum limit of just compensation.

It may be well at this point to discuss the case of United States v. New River Collieries Co., supra, claimed by plaintiff to be decisive of the question. To be sure, the court in that case rejected the Government price, but that was so because it found that there was in fact an actual market...