Ferris v. Wilbur

• Decision Date: 15 June 1928
• Docket Number: No. 2692.,2692.
• Citation: 27 F.2d 262
• Parties: FERRIS et al. v. WILBUR, Secretary of the Navy, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

27 F.2d 262 (1928)

FERRIS et al. v. WILBUR, Secretary of the Navy, et al.

No. 2692.

Circuit Court of Appeals, Fourth Circuit.

June 15, 1928.

Allan D. Jones, of Newport News, Va., for appellants.

Luther B. Way, Sp. Asst. U. S. Atty., of Norfolk, Va. (Paul W. Kear, U. S. Atty., of Norfolk, Va., on the brief), for appellees.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a decree denying an interlocutory injunction and dismissing the bill of complaint in a suit instituted by persons owning property near the United States naval mine depot in York county, Virginia, to enjoin the Secretary of the Navy and the naval officer in charge of the depot from storing high explosives within the area acquired by the government for that purpose. The bill alleged that large quantities of high explosives were being stored within the area, that it was planned to store there even larger quantities in the future, that the storage of such explosives was and would continue to be a constant source of danger to lives and property for miles around, and that such storage so depreciated the value of the property of complainants as to constitute a taking thereof without due process of law in violation of the Fifth Amendment to the Constitution. One Johnston was joined as a defendant under an allegation that he had been awarded a contract to construct roads in the development of the depot. As to him the bill was dismissed on the merits. As to the Secretary of the Navy it was dismissed because he was not a resident of the district and had not appeared or been served with process. As to defendant Miles, the naval officer in charge of the depot, it was dismissed on the ground that the Secretary was a necessary party to the suit, as Miles was alleged to be acting under his orders.

In so far as the order dismissed the suit as to the contractor and the Secretary of the Navy, it was so obviously proper as not to merit discussion. We think, also, that it was proper to dismiss the suit as to the defendant Miles, not because the Secretary of the Navy was not made a party, but because it was in effect a suit against the United States and sought to restrain as a nuisance the exercise of a discretion reposed in the executive by a valid act of Congress.

In accordance with the purpose expressed in the Constitution "to provide for the common defense," Congress is vested with the power to raise and support armies and to provide and maintain a navy and is authorized "to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." Constitution art. 1, § 8, cls. 12, 13, and 17. Acting under these constitutional provisions, Congress by the Act of July 1, 1918, appropriated the sum of $3,000,000 for the erection and equipment of a depot for the storage of high explosives and the loading of mines on a site to be acquired by the President. 40 Stat. 722. On August 7, 1918, the President issued a proclamation designating a tract of 11,433 acres near Yorktown, Va., which is the area here involved, as the navy mine depot authorized by the act. 40 Stat. 1827. Title to this tract was acquired by the United States with the consent of the Legislature of Virginia (Acts of the General Assembly of Virginia of 1918, c. 382, p. 568), and the naval mine depot was established and large quantities of high explosives were stored upon it. Later by Act Feb. 28, 1927, Congress appropriated the sum of $580,000 for additional storage and incidental improvements at this naval mine depot. 44 Stat. pt. 2, p. 1253. There can be no doubt, therefore, that the title to the land upon which the naval mine depot is situate is held by the United States, that it was purchased by the consent of the Legislature of Virginia in accordance with the constitutional requirement, that exclusive legislative power over the land acquired is vested in Congress, that Congress has expressly authorized that it be used for the storage of high explosives, and that the discretion to determine what explosives shall be stored there and how they shall be stored has been vested in the executive.

Now defendant Miles, in storing and preparing to store explosives on the Naval Mine Depot, is admittedly acting under the direction of the Secretary of the Navy, who represents the President. In suing to restrain him, therefore, complainants are suing the authorized representative of the government, and are asking that he be restrained from carrying out on government property a policy determined upon by the Executive Department in the exercise of a discretion reposed in it by Congress. It is manifestly, then, not a suit to restrain unauthorized action by a government official, or action based upon an unconstitutional statute, but a suit to restrain action in which the official is exercising valid governmental authority by virtue of his office. There can be no doubt that such a suit is in essence a suit against the United States, and that the United States is a necessary party thereto. And, as it has not consented to be made a party, the suit must fail. Morrison v. Work, 266 U. S. 481, 488, 45 S. Ct. 149 (69 L. Ed. 394); United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 221 to 222, 34 S. Ct. 84 (58 L. Ed. 191); Naganab v. Hitchcock, 202 U. S. 473, 476, 26 S. Ct. 667 (50 L. Ed. 1113); International Postal Supply Co. v. Bruce, 194 U. S. 601, 606, 24 S. Ct. 820 (48 L. Ed. 1134); Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599.

Defendant relies particularly upon the cases of U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570, and Colorado v. Toll, 268 U. S. 228, 45 S. Ct. 505, 69 L. Ed. 927. The Lee Case decided that the owner of land held and occupied by the United States for public uses, but under a defective title, might maintain ejectment against the officers of the United States in possession. But, as pointed out by Mr. Justice Miller in Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 452, 3 S. Ct. 292, 609 (27 L. Ed. 992); and by Mr. Justice Gray in Belknap v. Schild, supra, in such case the officer in possession is sued, not as or because he is the officer of the government, but as an individual. The court is not ousted of...